GOPIBAI Vs. ASNEW DRUMS LTD

JUDGEMENT

(1.) This appeal takes exception to the quashing by a single Judge of an award made by the Registrar's Nominee upon a reference made to him under S.91 of the Maharashtra Co-operative Societies Act, 1960, (MCS Act).

(2.) The question that arises for determination in this appeal requires enumeration of the background and it may be stated thus :- A builder took up for construction a building at 50, Altamount Road, Bombay-26 sometime in the year 1962. One of the flats therein was taken up by deceased Mahtani. After construction the building came to be known as Olympus Apartments. The owners of the flats comprising the building were to form a co-operative housing society and steps were taken to get the society registered. Prior thereto negotiations took place between Mahtani on the one hand and M/s. Asnew Drums Ltd. on the other hand. The concern wanted Mahtani's flat for the use and occupation of its director Mr. Bramha Paul. The discussion culminated in an agreement described as being one of leave and licence on September 24, 1962. One of the clauses appearing therein and numbered as clause 2(k) was worded thus :-

(3.) In keeping with the resolution mentioned in the preceding paragraph, a dispute was lodged and eventually referred to a Nominee of the Registrar. The contention raised by the disputants Mahtani and the Society was, that the licence in favour of the opponents stood terminated and that their continued occupation of the flat was wrong and illegal. The opponents questioned the jurisdiction of the Nominee, pleading that S.91 of the MCS Act did not apply, inasmuch as they were tenants against whom proceedings could be initiated only in the court specified under S.28 of the Rent Act. The learned Nominee raised appropriate issues, recorded evidence of witnesses examined by the rivals and passed an award. That award went in favour of the disputes and the same was the subject of a challenge before the single Judge. That learned Judge held that the Nominee's award was without jurisdiction as the dispute raised did not attract S.91 of the MCS Act. The transaction between the parties had preceded the formation of the society and therefore it could not be said that the dispute related to "the business of the society". Sustaining this submission, the learned Judge upheld reliance placed upon the judgements of the Supreme Court in I.R. Hingorani v. Pravinchandra Kantilal Shah, AIR 1972 SC 2161 and Deccan Merchants Co-operative Bank Ltd. v. M/s. Dalichand Jugraj Jain, AIR 1969 SC 1320.