Case Note & Summary
The petitioner, The Sangli Salary Earners Cooperative Societies, Sangli, is a cooperative society that leased out ground floor premises to the respondent, Sameer Fulchand Shaha, proprietor of Chandan Steel Centre. The respondent affixed a large sign board (30 ft. x 4 ft.) on the first floor balconies of the building without permission. The society issued several notices to the respondent to remove the board. In response, the respondent filed a dispute before the Cooperative Court (AB No.220 of 2010) seeking permanent injunction. The society raised a jurisdictional objection, and the Cooperative Court upheld the plea, holding it had no jurisdiction. Thereafter, the respondent filed a civil suit (Regular Civil Suit No.174 of 2011) before the Civil Judge, Junior Division, Sangli, for permanent injunction. In that suit, the respondent filed an application for temporary injunction (Exhibit 5). The society opposed it, contending that the board was unauthorized. The trial court rejected the injunction application on 18/1/2012, holding that the suit could not be filed without issuing statutory notice under Section 164 of the Maharashtra Cooperative Societies Act, 1961. The respondent appealed (Misc. Civil Appeal No.18 of 2012) before the District Judge-1, Sangli, who allowed the appeal on 20/2/2012, granting temporary injunction restraining the society from removing the board without due process. The society then filed the present writ petition under Article 227 of the Constitution. The High Court found that the appellate court had not considered the issue of maintainability of the suit in the absence of statutory notice under Section 164. The High Court held that the requirement of notice under Section 164 is mandatory and the appellate court erred in granting injunction without first determining whether the suit was maintainable. The High Court set aside the appellate order and remanded the matter to the appellate court for fresh consideration of the appeal, including the issue of maintainability. The court also directed that the appellate court should decide the appeal within four months from the date of receipt of the order.
Headnote
A) Cooperative Societies - Statutory Notice - Section 164 Maharashtra Cooperative Societies Act, 1961 - Maintainability of Suit - The issue was whether a civil suit filed by a tenant against a cooperative society for injunction regarding removal of a sign board was maintainable without prior statutory notice under Section 164 of the Act. The trial court had rejected the temporary injunction application on the ground of lack of notice. The appellate court allowed the appeal and granted injunction without considering the maintainability issue. The High Court held that the requirement of notice under Section 164 is mandatory and the appellate court erred in granting injunction without first determining whether the suit was maintainable. The order of the appellate court was set aside and the matter remanded for fresh consideration. (Paras 6-8) B) Cooperative Societies - Temporary Injunction - Consent - Section 164 Maharashtra Cooperative Societies Act, 1961 - The appellate court had relied on alleged consent of the society for putting up the sign board. The High Court held that even if there was consent, the statutory requirement of notice under Section 164 cannot be waived. The appellate court's approach was erroneous as it did not address the preliminary objection regarding maintainability. (Paras 6-8)
Issue of Consideration
Whether a civil suit against a cooperative society is maintainable without issuance of statutory notice under Section 164 of the Maharashtra Cooperative Societies Act, 1961, and whether the appellate court could grant temporary injunction without addressing the issue of maintainability.
Final Decision
The High Court allowed the writ petition, set aside the order dated 20/2/2012 passed by the District Judge-1, Sangli, and remanded the matter to the appellate court for fresh consideration of the appeal. The appellate court was directed to decide the appeal within four months from the date of receipt of the order, after considering the issue of maintainability of the suit in the absence of statutory notice under Section 164 of the Maharashtra Cooperative Societies Act, 1961.
Law Points
- Statutory notice under Section 164 of Maharashtra Cooperative Societies Act
- 1961 is mandatory before filing a civil suit against a cooperative society
- Consent cannot override statutory requirement of notice
- Appellate court cannot grant injunction without considering maintainability of suit
