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SCA/9777/1993 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9777 of 1993
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
URMILABEN
SHIRISHBHAI MEHTA - Petitioner(s)
Versus
NAIMISH
CO OP HOUSING SOCIETY - Respondent(s)
=========================================================
Appearance
:
MR
MB GANDHI for
Petitioner(s) : 1,
MR VIJAY H PATEL for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 28/03/2008
ORAL
JUDGMENT
The
petitioner has preferred the petition for challenging the order
passed by the Board of Nominees, and its confirmation thereof by the
tribunal whereby it is held that the learned Board of Nominees has
no jurisdiction for examining the legality and validity of the
resolution of the society for expulsion under Section 36 of the
Gujarat Cooperative Societies Act (hereinafter referred as to the
‘Act’).
Heard
Mr. Gandhi learned Counsel for the petitioner, Mr. Vijay Patel
learned Counsel for the respondent society.
After
some arguments, learned Counsel appearing for both the sides under
the instruction of their clients are on agreement on the following
aspects:
1.
If the petitioner pays the total amount of Rs. 75,000/- towards
outstanding dues including penal interest, and the cost of the
litigation to the respondent society within a period of three
months, in monthly installments of Rs. 25,000/- of each, and the
first installment shall become due on 30.04.2008, the society is not
desire to expel the petitioner as the member by implementation of
the resolution, which is subject matter of the challenge in the suit
proceedings.
2.
It is also agreed that if the petitioner makes payment of Rs.
75,000/- within the aforesaid three months by installments, after
full payment is received, the society shall issue No Due Certificate
and shall also issue duplicate share certificate, if it is so
desired by the petitioner, after payment of the cost for the
formality to be undertaken.
3.
The petitioner is also ready to file undertaking to this Court for
payment of Rs. 75,000/-.
4.
After payment of Rs. 75,000/- and after issuance of No Due
Certificate, whole dispute shall stand settled, which was subject
matter of the Lavad Suit No. 3424 of 1989.
Considering
the above, as such it appears that in view of the decision of the
Court in case of Gordhabhai N Vaghela v. Maruti Co-op. Housing
Society and Ors. reported at 2003 ((1) GLH page 117 the
expulsion is only by way of last resort and society should consider
the aspect of recovery of the amount by giving opportunity of
hearing to the person concerned to pay up the amount etc. Further,
as per the view taken by this Court in case of Arjunbhai K
Vegda V. Tejvir Park Co-Op. Housing Society Ltd. and ors reported at
2002 (4) GLR 3026, until
there is valid resolution of 3/4th majority, and the
proposal submitted to the Registrar for approval, it cannot be said
the Board of Nominees has inherent lack of jurisdiction. No further
observations are required to be made, since learned Counsel
appearing for both the sides have agreed to settle the dispute
between the members of the society and the society. Further, it also
appears that the member has shown willingness to pay outstanding
dues and the cost of the litigation and the society has also
positively responded to the same and the matter is amicably settled.
Therefore, it would be just and proper to permit the petitioner and
the respondent society to settle the dispute by putting an end to
the litigation and for also putting an end for action for expulsion
of the members.
Hence,
it is ordered as under:
a)
The petitioner shall pay the amount of Rs. 75,000/- to the
respondent society toward all outstanding dues and the cost of
litigation in three installments of Rs. 25,000/-, each payable every
month and the first installment shall become due on 30.04.2008; the
second on 31.05.2008; and the third on 30.06.2008.
b)
The petitioner shall also file an undertaking to the Court for
payment of the amount as per the declaration made before this Court
and such undertaking shall be filed within two weeks from today.
c)
After the payment of the aforesaid amount of Rs. 75,000/-, within
one week, the society issue No Due Certificate to the petitioner.
d)
Upon compliance to condition of the payment of the aforesaid amount
of Rs. 75,000/-, the action for expulsion of the petitioner, which
was subject matter of the suit, would not survive and the dispute
shall stand concluded upon payment of Rs. 75,000/-
The
petition is disposed of in terms of the aforesaid directions. Rule
made absolute accordingly. No order as to costs.
(JAYANT
PATEL,J.)
Suresh*
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