Maneklal Mansukhbhai Cooperative Housing Society Ltd. Vs. Rajendra Kumar Maneklal Shah & Anr.
EmailAppeal: Civil Appeal No. 4398 of 1997
(with C.A. No. 1362/1980)
(with C.A. No. 1362/1980)
Petitioner: Maneklal Mansukhbhai Cooperative Housing Society Ltd.
Respondent: Rajendra Kumar Maneklal Shah & Anr.
Apeal: Civil Appeal No. 4398 of 1997
(with C.A. No. 1362/1980)
(with C.A. No. 1362/1980)
Judges: V.N. KHARE & B.N. AGRAWAL, JJ.
Date of Judgment: Jan 08, 2001
Head Note:
SPECIFIC PERFORMANCE/CO-OPERATIVE SOCIETY
Specific Relief Act, 1963
Section 16(c) with Gujarat Co-operative Societies Act, 1961 – Sections 37, 170 – Specific performance of agreement to lease – Suit for – Maintainability – Trust entering into agreement with one ‘N’ for lease in July, 1969 – In Nov., 1969, housing society coming into existence by registration – ‘N’ was one of the promoters – No assignment of rights to society – Trust preparing draft lease in favour of society but not executing – Suit for specific performance, at the instance of society. Held, was not maintainable. A Society becomes competent to hold, acquire or dispose of property only after registration. Since on the date of agreement, Society was not registered, it was not competent to file suit. (Paras 2, 4)
JUDGEMENT:
ORDER
In C.A. No. 1362/1980
1. It is the plaintiff’s appeal. Shri Ramji Mandir Narsinhji Tekri Trust (hereinafter referred to as the ‘trust’) is registered under the Bombay Public Trust Act, 1950. On 30.7.1969, the trust entered into an agreement with one Nanubhai Jogibhai Desai for granting lease for a period of 50 years in respect of survey no. 262 having an area of 149150 square feet. Subsequently, on 19.11.1969, the plaintiff was registered under the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as the ‘Act’). It appears that after the plaintiff was registered, the respondent-trust prepared a draft lease in favour of the plaintiff but the same was not executed. It appears that Nanubhai Jogibhai Desai is one of the promoters of the plaintiff. In that view of the matter, Society wrote to the trust for execution of the lease deed in pursuance of the agreement dated 30.7.1969 in their favour. It further appears that the trust avoided to execute the lease deed. Under such circumstances, the plaintiff-Society filed a suit for specific performance of agreement dated 30.7.1969. The suit was contested by the trust. However, the trial court decreed the suit. The trust filed the first appeal before the High Court of Gujarat. The High Court was of the view that since on the date of agreement, the plaintiff-Society was not registered, therefore, the suit filed by the plaintiff was not maintainable. In that view of the matter, the defendants’ appeal was allowed and the suit was dismissed. It is against the said judgment, the plaintiff is in appeal before us.
2. Learned counsel, appearing for the appellant, urged that the view taken by the High Court is erroneous inasmuch as the provisions of the Specific Relief Act have not been considered by the High Court while allowing the respondents’ appeal. We will consider the legal position slightly later. However, on facts, it is established on record that the society was not competent to file the suit for the reason hereinafter stated. It is not disputed that the agreement was entered into between the trust and Nanubhai Jogibhai Desai. It is also not disputed that the plaintiff was not registered on the date of the agreement. It is also not disputed that the draft lease prepared by the trust was not executed. It is also admitted between the parties that the promoters of the Society, Nanubhai Jogibhai Desai did not assign his right flowing from the agreement to the Society. It is also admitted that Nanubhai Jogibhai Desai in whose favour agreement was executed did not join in the suit. Under these circumstances, the Society was not competent to file the suit for specific performance of the agreement dated 30.7.1969 and the suit ought to have dismissed on this very ground alone.
3. Coming to the legal position, as urged by the learned counsel for the appellant, section 37 of the Act provides that a Society on its registration shall be a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to acquire, hold and dispose of property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all such things as are necessary for purpose for which it is constituted. Section 170 of the Act excludes the provisions of the Companies Act. Rule 3 of the Gujarat Co-operative Societies Rules, 1965 framed under the Act provides that every application for registration of Society shall be in Form A and shall be accompanied by-
(a) ……………………………….
(b) ……………………………….
© the scheme showing the details explaining how the working of the Society will be economically sound and, where the scheme envisages the holding of immovable property by the Society, the description of immovable property proposed to be purchased, acquired or transferred to the Society.”
4. The aforesaid provision shows that the Society becomes competent to acquire, hold and dispose of the property only when it is registered and not otherwise. We have noticed earlier that there was no assignment of the rights of Nanubhai Jogibhai Desai flowing from the agreement in favour of the Society. In absence of such assignment, the Society was not competent to file a suit for specific performance of agreement to sell under the Act.
5. For the aforesaid reasons, the appeal fails and is, accordingly, dismissed. There shall be no order as to costs.
In C.A.No. 4398/1997
6. In view of the decision in C.A. No. 1362/1980, this appeal fails and is, accordingly, dismissed. There shall be no order as to costs.
In C.A. No. 1362/1980
1. It is the plaintiff’s appeal. Shri Ramji Mandir Narsinhji Tekri Trust (hereinafter referred to as the ‘trust’) is registered under the Bombay Public Trust Act, 1950. On 30.7.1969, the trust entered into an agreement with one Nanubhai Jogibhai Desai for granting lease for a period of 50 years in respect of survey no. 262 having an area of 149150 square feet. Subsequently, on 19.11.1969, the plaintiff was registered under the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as the ‘Act’). It appears that after the plaintiff was registered, the respondent-trust prepared a draft lease in favour of the plaintiff but the same was not executed. It appears that Nanubhai Jogibhai Desai is one of the promoters of the plaintiff. In that view of the matter, Society wrote to the trust for execution of the lease deed in pursuance of the agreement dated 30.7.1969 in their favour. It further appears that the trust avoided to execute the lease deed. Under such circumstances, the plaintiff-Society filed a suit for specific performance of agreement dated 30.7.1969. The suit was contested by the trust. However, the trial court decreed the suit. The trust filed the first appeal before the High Court of Gujarat. The High Court was of the view that since on the date of agreement, the plaintiff-Society was not registered, therefore, the suit filed by the plaintiff was not maintainable. In that view of the matter, the defendants’ appeal was allowed and the suit was dismissed. It is against the said judgment, the plaintiff is in appeal before us.
2. Learned counsel, appearing for the appellant, urged that the view taken by the High Court is erroneous inasmuch as the provisions of the Specific Relief Act have not been considered by the High Court while allowing the respondents’ appeal. We will consider the legal position slightly later. However, on facts, it is established on record that the society was not competent to file the suit for the reason hereinafter stated. It is not disputed that the agreement was entered into between the trust and Nanubhai Jogibhai Desai. It is also not disputed that the plaintiff was not registered on the date of the agreement. It is also not disputed that the draft lease prepared by the trust was not executed. It is also admitted between the parties that the promoters of the Society, Nanubhai Jogibhai Desai did not assign his right flowing from the agreement to the Society. It is also admitted that Nanubhai Jogibhai Desai in whose favour agreement was executed did not join in the suit. Under these circumstances, the Society was not competent to file the suit for specific performance of the agreement dated 30.7.1969 and the suit ought to have dismissed on this very ground alone.
3. Coming to the legal position, as urged by the learned counsel for the appellant, section 37 of the Act provides that a Society on its registration shall be a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to acquire, hold and dispose of property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all such things as are necessary for purpose for which it is constituted. Section 170 of the Act excludes the provisions of the Companies Act. Rule 3 of the Gujarat Co-operative Societies Rules, 1965 framed under the Act provides that every application for registration of Society shall be in Form A and shall be accompanied by-
(a) ……………………………….
(b) ……………………………….
© the scheme showing the details explaining how the working of the Society will be economically sound and, where the scheme envisages the holding of immovable property by the Society, the description of immovable property proposed to be purchased, acquired or transferred to the Society.”
4. The aforesaid provision shows that the Society becomes competent to acquire, hold and dispose of the property only when it is registered and not otherwise. We have noticed earlier that there was no assignment of the rights of Nanubhai Jogibhai Desai flowing from the agreement in favour of the Society. In absence of such assignment, the Society was not competent to file a suit for specific performance of agreement to sell under the Act.
5. For the aforesaid reasons, the appeal fails and is, accordingly, dismissed. There shall be no order as to costs.
In C.A.No. 4398/1997
6. In view of the decision in C.A. No. 1362/1980, this appeal fails and is, accordingly, dismissed. There shall be no order as to costs.
