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Judgment
F.M. Reis, J.—Heard Shri Mulgaonkar, learned Counsel appearing for the Petitioner, Shri Agni, learned Counsel appearing for the Respondent nos. 9 and 10 and Shri Shirodkar, Government Advocate appearing for the Respondent no.12. The Petitioner is the Appellant in Co-operative Appeal no. 6/2005 filed before the Registrar of Co-operative Societies Goa State, Panaji, who challenged the Order dated 07.06.2005 passed by the Respondent no.10.
Briefly, the facts of the case are that the Petitioner claims to be the owner in possession of shop nos. 12/House no. 2684/I(12), Shop no.13 House no. 684/I (13) and flat nos. FF-12 and 13 in view of an Agreement executed in favour of the Petitioner. It is further their case that the Petitioner has paid total consideration towards the sale of the said premises and that he is a bonafide purchaser. It is further their case that they purchased the said premises pursuant to an Agreement dated 11.06.1999 executed by the Chairman of the Respondent no. 8 herein represented by Shri Nilesh Patel. It is further their case that since the year 1999, they have been in peaceful possession and enjoyment of the said premises and the shops and have been regularly occupying the same. In support of their claim in respect of the said premises, the Petitioner produced before the Liquidator several documents including documents such as Agreements showing the rights of the Petitioner in the respective row houses and shops. The Petitioner also produced all the relevant documents which establish according to him that they have purchased the row houses/shops for a consideration from the Respondent no. 8. On the basis of such claim, the Petitioner lodged an objection/claim before the Liquidator to show how he is the owner in possession of the said premises and the said Shri Nilesh Patel was authorized to sign such Agreements on behalf of Respondent no. 8 and also accepted the payments on behalf of the Society/Respondent no. 8 herein. It is further their case that the Liquidator raised objections to the claim put forward by the Petitioner and challenged the authority of the said Nilesh Patel to issue such receipts and that the property is mortgaged to the Bank and the loan was granted by the said Bank and, as such, the Agreement does not bind the Goa State Co-operative Housing Federation Limited. The said objections were duly answered by the Petitioner to the Liquidator. It was brought to the notice of the Liquidator that the said property was originally belonging to Caitan D'' Souza and his wife and that by Sale Deed dated 19.03.1988, the said property was sold by the said owner along with his wife to M/s. Alabhya Co-operative Housing Society Ltd., represented by its Chairman Thakur with the consent of M/s. Creative Enterprises. It was further brought to the notice of the Liquidator that by an Agreement for Development dated 29.11.1997 which was duly executed before the notary between M/s. Meghavi Developers Pvt. Ltd., and M/s. Alabhya Co-operative Housing Society Ltd., it was declared that the said Society by a Resolution dated 28.10.1997, has authorized the Chairman Bharatbai M. Thakur to enter into Agreements. It was also stipulated that said M/s. Meghavi Developers Pvt. Ltd., were also free to obtain necessary loans against the said project. The Agreement dated 25.11.1999 was also produced before the Liquidator. It was further brought to the notice of the Liquidator that the Director of said Meghavi Developer had issued a Power of Attorney in favour of said Nilesh Patel to represent the said developers and enter into Agreement. Correspondence was also brought to establish that said Nilesh Patel had requisite authority to execute the Agreements. It is further brought to the notice of the Liquidator that the loan transactions were not in accordance with the guidelines and there were no individual loan applications from any of the members and that the mortgage, if any, was to secure the loans of the Members obtained by individual members who have applied for such loans and not as far as Petitioner is concerned who had not sought for any such loan. The Petitioner also disputed the authenticity of the claim of the said Finance Federation in respect of the said loan and disclosed that such loan was not utilised for the project. The Petitioner also claimed that they were not liable for any loan nor was the loan utilised for putting up the premises. It is also the contention of the Petitioner that a N.O.C. was given by the Society to sell the shops and flats nos. 12 and 13 in favour of the Petitioner.
The said Finance Federation disputed the contention of the Petitioner by filing their reply. By Order dated 07.06.2005, the Liquidator dismissed the claim/objections of the Petitioner on the ground that the Petitioner is not a bonafide purchaser and is not entitled for any protection of his possession on the basis of the said Agreement. The Petitioner thereafter preferred an Appeal before the Registrar which came to be dismissed by Judgment dated 27.02.2007.
Being aggrieved by the said Judgments, the Petitioner filed the present Writ Petition.
This Court by Order dated 02.11.2007 disposed of the Petition in 10, Federation, filed a Misc. Application no.207/2010 before this Court for re-calling the said Order. By Order dated 30.10.2010, the Order disposing of the Petition on the basis of the Minutes of Order, came to be recalled. The Petitioner preferred a Petition before the Hon''ble Supreme Court, which came to be disposed of on 14.01.2011. As such, the Petition came to be heard finally.
Shri Mulgaonkar, learned Counsel appearing for the Petitioner, has assailed the impugned Order passed by the Registrar to the effect that the dispute raised by the Petitioner in respect of the disputed premises consists of row houses and two shops, is essentially a civil dispute which cannot be adjudicated by either Respondent no.10 nor by the Registrar. The learned Counsel has pointed out that pursuant to an Agreement dated 06.01.2000, the developer-Original Respondent no.11, agreed to convey the row houses and the shops in favour of the Petitioner herein. Learned Counsel further pointed out that the said Agreement entered into by the Original Respondent no.11 was also consented to by the Respondent no.9 which is clearly manifested in the said Agreement. Learned Counsel further pointed out that pursuant to the said Agreement, the Petitioner has paid a substantial amount to the developer as well as to the Society and, consequently, the Petitioner is entitled to the disputed premises. Learned Counsel further pointed out that as the premises agreed to be sold were not completed, an Agreement came to be executed between the Petitioner as well as the said Developer, original Respondent no.9 whereby the Petitioner was directed to complete the construction and an amount of consideration thereof was agreed to be set off. Learned Counsel further pointed out that pursuant to the Agreement, such construction has been completed by the Petitioner at his own cost and the Petitioner has been in possession of the disputed premises. Learned Counsel further pointed out that subsequently, the Respondent no.10 came to be appointed as Liquidator in view of the liquidation ordered by the Registrar of the said Society. Learned Counsel further pointed out that a notice came to be issued in the local newspaper calling upon the claims against the said Society. Learned Counsel further pointed out that pursuant to the said notice, the Petitioner lodged his claim before the Liquidator bringing to their notice that the Petitioner has been occupying the said disputed premises on the basis of the Agreement and that he had paid the consideration and further that the Petitioner has also agreed to be the member of the Society of the Respondent no.10 herein. Learned Counsel further pointed out that despite of the fact that the Petitioner had already occupied the disputed premises on the basis of such Agreement, the Respondent no. 10 by Order dated 07.06.2005, rejected the claim of the Petitioner essentially on the ground that as the Petitioner have not being the members of the Society, such Agreement could not be entered into by the Developer-original Respondent no.11 herein. Learned Counsel further pointed out that the Petitioner thereafter preferred an Appeal before the Registrar in accordance with the provisions of Section 105 of the Maharashtra Co-operative Act, which came to be rejected by the learned Joint Registrar. Learned Counsel has taken me through the Appeal Memo and pointed out that the Petitioner had made allegations of fraud against the Liquidator as well as the persons involved in such proceedings which have not at all been considered by the learned Registrar whilst deciding the said Appeal. Learned Counsel further pointed out that despite of a concluded Agreement with the Society, the learned Registrar rejected the claim put forward by the Petitioner. Learned Counsel further pointed out that considering the nature of the dispute raised by the Petitioner which entail a decision on title and/or ownership of the disputed premises, the question of the Registrar deciding such disputes would not arise. Learned Counsel further pointed out that even under the provision of the Co-operative Societies Act, the Liquidator-Respondent no.10 has no powers to decide such disputes essentially considering the fact that the dispute in the present proceedings is essentially a civil dispute. Learned Counsel as such submits that the Registrar has not considered the contentions raised by the Petitioner before him and, as such, this Court may consider the submission and/or remand the matter back to the learned Registrar for a fresh decision on the Appeal preferred by the Petitioner in accordance with law.
On the other hand, Shri Agni, learned Counsel appearing for the Respondent nos. 9 and 10, has supported the impugned Orders. Shri Agni fairly concedes that the contentions raised by the Petitioner in the above Appeal Memo before the learned Registrar, have not been considered by the Registrar whilst disposing of the Appeal preferred by the Petitioner. But, however, Shri Agni, learned Counsel, points out that such exercise would be an empty formality as, according to him, the Petitioner was not a member of the Society and as such the question of entering into any Agreement by the Developer and the Original Respondent no.11 is not justified. Learned Counsel further pointed out that the contention of Shri Mulgaonkar, learned Counsel appearing for the Petitioner to the effect that the Liquidator as well as the Registrar has no jurisdiction to decide the Appeal is restricted as, according to him, u/s 105 of the Maharashtra Co-operative Societies Act, the Registrar has powers to investigate any claims against the Society. Learned Counsel further pointed out that on a plain reading of Section 105 of the Maharashtra Co-operative Societies Act, the Liquidator has powers under its jurisdiction to decide all disputes concerning the Society. Learned Counsel further pointed out that the learned Registrar has rightly considered the matter in the proper prescription and, as such, the question of any further remand of the matter to the learned Registrar, at this stage, cannot be said to be justified. Learned Counsel further pointed out that the property as well as the suit premises were already mortgaged to the Respondent no.10 much before the execution of the said Agreement and that the said mortgage was sought to be redeemed by the Liquidator after his appointment and, in the course of such exercise, a specific amount was to be paid by the Petitioner pertaining to the disputed premises which the Petitioner failed and neglected to pay. Learned Counsel as such submits that there is no reason for any interference of the impugned Order passed by the learned Registrar and, consequently, the above Petition deserves to be dismissed. Learned Counsel further pointed out that all the material produced by the Respondent no. 10 as produced by the Petitioner has been duly considered by the Respondent no.10 as well as by the learned Registrar whilst passing the impugned Order.
Having heard the learned Counsel and on perusal of the record, I find that on the plain reading of Section 105 of the Maharashtra Co-operative Societies Act, the Liquidator has specific powers as enumerated therein. It is pertinent to note that such powers are to be exercised subject to the directions of the Registrar. In the present case, that by itself would not disclose that the Liquidator can decide a civil dispute which create or defeat proprietary rights of ownership and title of these disputed premises. Apart from that, the Petitioner whilst filing the Appeal before the Registrar, had made allegations not only against the Respondent nos. 9 and 10 and further it was contended that the whole exercise carried out by the Respondent no.10 is vitiated and with malafide purposes only for the purpose of depriving the ultimate rights over the disputed premises. On perusal of Section 105 of the Maharashtra Co-operative Societies Act, I find that the Liquidator in specific circumstances even entitled to refer the dispute before a Civil Court. Besides that, Section 93(2) of the Maharashtra Cooperative Societies Act further contemplates that the Registrar also has powers to direct the Applicants to file appropriate proceedings in the Civil Court for getting their rights adjudicated in accordance with law. Considering the dispute evolved in the present proceedings, I find that it was incumbent upon the Liquidator u/s 105 or by the Registrar himself to exercise powers u/s 93(2) of the Maharashtra Cooperative Societies Act. Considering the said aspect and taking note of the fact that there were allegations of fraud against the Respondent nos. 9 and 10, I find that there is no consideration on that regard in the impugned Order passed by the learned Registrar. These aspects are very material for the purpose of considering as to whether any right has accrued in favour of the Petitioner in respect of the disputed premises. Apart from that, the Registrar has failed to consider the fact that the Society was a formal party to the Agreement executed in favour of the Petitioner herein. The contention of Shri Agni, learned Counsel appearing for the Respondent nos. 9 and 10 that the property was already amalgamated in favour of the Respondent no.10, is also a matter which has not been dealt with by the Registrar whilst passing the impugned Order. All these aspects have to be reconsidered by the learned Registrar and decide as to whether the dispute raised by the Petitioner is a matter to be adjudicated by the Registrar or as to whether the parties should file appropriate proceedings u/s 93(2) of the Maharashtra Co-operative Societies Act. It is also pertinent to note the fact that under the said provisions of the Maharashtra Co-operative Societies Act, the Liquidator has such powers to refer such matters before the Civil Court.
Considering the facts and circumstances of the case, I find it quashed and set aside and the said Co-operative Appeal no. 6/2005 be restored before the learned Registrar for re-consideration afresh on merits. In view of the above I pass the following :
ORDER
(i). The impugned Order dated 07.06.2005 passed by the learned Registrar is quashed and set aside.
(ii). Co-operative Appeal no. 6/2005 is restored to the file of the Joint Registrar.
(iii). Learned Joint Registrar is directed to decide the said Appeal afresh in the light of observations herein above in accordance with law.
(iv). Considering the nature of the dispute, the learned Joint Registrar is directed to dispose of the Appeal within six months from the receipt of this Order.
(v). All contentions of the parties on merits are left open.
(vi). Rule is made absolute in the above terms.
(vii). Petition stands disposed of accordingly.