Case Note & Summary
The appellant, Gajanan Eknath Sonankar, purchased agricultural land Gat No. 83 admeasuring 2 Acres at Mouja Lasura Bk., Tq. Shegaon, Dist. Buldhana by a registered sale deed dated 19.04.2002 from Raju Gopikisan Rathi. Before purchasing, he verified the 7/12 extract which showed no charge on the property. However, on 17.06.2002, after the sale, the vendor Raju Rathi mortgaged the same property with the respondent no.1 Credit Cooperative Society and obtained a loan. The appellant had no concern with the society. The appellant issued a notice under Section 164 of the Maharashtra Cooperative Societies Act on 27.08.2012 and filed a suit on 10.09.2012, before the expiry of two months, seeking perpetual injunction under Section 38 of the Specific Relief Act against the society from attaching the suit property. The respondent society filed an application (Exh.15) to dismiss the suit for non-compliance of Section 164 of the MCS Act. The trial court allowed the application and dismissed the suit. The appellant appealed to the District Judge, who confirmed the dismissal. The appellant then filed this second appeal. The High Court framed the substantial question of law: whether the suit is barred for non-compliance of Section 164 of the MCS Act. The court held that Section 164 applies only to suits between a society and its members or persons claiming through a member. Since the appellant was a purchaser from a member and not a member himself, and did not claim through the member (as the sale was prior to the mortgage), he was not required to serve a notice under Section 164. The court allowed the appeal, set aside the judgments of the lower courts, and remanded the suit for trial on merits.
Headnote
A) Cooperative Societies Act - Section 164 - Notice Requirement - Applicability to Non-Members - Section 164 of the Maharashtra Cooperative Societies Act, 1960 - The requirement of a two-month notice under Section 164 applies only to suits between a society and its members or persons claiming through a member. A purchaser of property who is not a member of the society and does not claim through a member is not required to serve such notice before filing a suit for injunction against the society. (Paras 5-7) B) Specific Relief Act - Section 38 - Perpetual Injunction - Maintainability - Section 38 of the Specific Relief Act, 1963 - A suit for perpetual injunction filed by a non-member purchaser against a cooperative society for restraining the society from attaching the suit property is maintainable without compliance with Section 164 of the MCS Act, as the plaintiff is not a member and does not claim through a member. (Paras 5-7)
Issue of Consideration
Whether the suit filed by the appellant (a non-member purchaser) against the respondent cooperative society is barred for non-compliance of Section 164 of the Maharashtra Cooperative Societies Act, which requires a notice of two months before filing a suit against a society.
Final Decision
The High Court allowed the second appeal, set aside the judgment and decree of the District Judge and the order of the trial court, and remanded the suit to the trial court for decision on merits in accordance with law. The court held that Section 164 of the MCS Act does not apply to a suit by a non-member purchaser against the society.
Law Points
- Section 164 of the Maharashtra Cooperative Societies Act applies only to suits between a society and its members or persons claiming through a member
- not to suits by a non-member purchaser against the society
- Section 38 of the Specific Relief Act
- 1963
