Case Note & Summary
The plaintiff, Kumar Tarachand Laungani, filed a suit against his brother, Deepak Tarachand Laungani (defendant no.1), and Shikarpuri Co-operative Housing Society Ltd. (defendant no.2), seeking a declaration that a gift deed dated 30 December 2011 executed by their mother in favour of defendant no.1 was illegal, invalid, and void ab initio. The plaintiff also sought a restraint order against defendant no.1 from dealing with the suit flat and consequential reliefs against the society, including not transferring the flat to defendant no.1 and disclosing the sequence of events regarding the transfer. The defendant no.1 raised a preliminary objection that the suit was not maintainable because the plaintiff had not issued a notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960, before suing the society. The court framed a preliminary issue under Section 9A of the Code of Civil Procedure, 1908, to determine jurisdiction. The plaintiff argued that the reliefs against the society were merely consequential and not adversarial, as the society itself had suggested obtaining a court order. The court agreed, holding that the suit was not instituted against the society in respect of any act touching its business, and therefore no notice under Section 164 was required. The court relied on the Supreme Court decision in Deccan Merchants Co-operative Bank Ltd. vs. Dalichand Jugraj Jain. Consequently, the court answered the preliminary issue in favour of the plaintiff, holding that the suit was maintainable.
Headnote
A) Civil Procedure - Preliminary Issue - Jurisdiction - Section 9A CPC - The court framed a preliminary issue under Section 9A of the Code of Civil Procedure, 1908, to determine whether the suit was maintainable for lack of notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960. The parties agreed to argue without evidence. (Paras 1-2) B) Co-operative Societies - Notice under Section 164 - Maintainability of Suit - Section 164 of the Maharashtra Co-operative Societies Act, 1960 - The plaintiff sought declaration that a gift deed was void and restraint against defendant no.1, with consequential reliefs against the society (defendant no.2) to not transfer the flat and disclose information. The court held that these reliefs were not adversarial and did not touch the business of the society, hence no notice under Section 164 was required. The suit was held maintainable. (Paras 3-4) C) Co-operative Societies - Act Touching Business of Society - Interpretation - Section 164 of the Maharashtra Co-operative Societies Act, 1960 - The court relied on Deccan Merchants Co-operative Bank Ltd. vs. Dalichand Jugraj Jain to interpret that the phrase 'act touching the business of the society' does not cover consequential reliefs sought against the society in a dispute primarily between private parties. (Para 4)
Issue of Consideration
Whether the suit is maintainable for want of notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960, when the reliefs sought against the society are consequential and not adversarial.
Final Decision
The court answered the preliminary issue in favour of the plaintiff, holding that the suit is maintainable despite the absence of notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960.
Law Points
- Section 164 of the Maharashtra Co-operative Societies Act
- 1960
- notice requirement
- maintainability of suit
- consequential relief
- act touching the business of the society
