STATE OF WEST BENGAL Vs. BIJOY KUMAR UKIL

JUDGEMENT

(1.) This is an appeal against the judgment and order dated 15th Apri!, 1992 passed by the learned Trial Judge in C. O. No. 2238(W) of 1991. By that order, the learned Trial Judge quashed the report of the liquidator dated 18th/21st July, 1989 and also the earlier order dated 3rd June 1980 passed by the Deputy Registrar of Co-operative Societies, for winding up of 'Arco-Co-operative Housing Society Ltd. (hereinafter referred to as 'the Society'). The learned Trial Judge also directed the Registrar, Co-operative Societies, to act upon the unanimous resolution dated 24th April 1989 for the revival of the Society and accordingly the said Society was directed to be revived with immediate effect. The facts, of this case, are briefly as follows ; On or about 9th April, 1969 the Arco Co-operative Housing Society Ltd. was duly registered with the primary object of establishing residential apartments on Co-operative basis to meet the housing needs of its members. The said Co-operative Society, thereafter raised funds and purchased a plot of land at premises No. 9-A. Judges Court Road, Calcutta for the purpose of constructing a residential housing complex thereon for its members. But, the proposed scheme for construction of the (Housing) Complex had to be deferred due to the death of the Chief Promotor, B, S. Dua, who was then in charge of the development of the said premises. After the death of the said Chief promoter, B. S. Dua, various confusions cropped up amongst the members of the Society and the proposed scheme for construction of the Housing Project could not implemented for several years, Meanwhile, by an order dated 3rd June 1980 the Deputy Registrar of Co-operative Societies, Calcutta Retropolitan Areas (Housing) in exercise of the powers under Section 89(1) of the West Bengal Co-operative Societies Act. !973 directed the winding up of the said Society and appointed a liquidator under Section 90 of the said Act. Inasmuch as, the majority members of the said Society never desired winding up of the Society at any point of time, a unanimons resolution was passed at a meeting of the members of the said Society held on 11th July, 1980 to oppose the winding up and to take steps for revival of the Society. As such, the majority members of the Society by an application dated 22nd July 1980 appealed to the authorities to rescind and/or withdraw the impugned order of winding up. The authorities, however, took no steps for revocation of the winding up order and revival of the Society. Thereafter, the writ petitioner/opposite parties one Sri Biswanath Banerjee & another moved a writ application before this Court in C. O. No. 12097(W) of 1981. By an order dated 11th October, 1982 this Court directed the respondent therein to dispose of the said pending application for revocation of the winding up order and the revival of the said Society, expeditiously. This Court further directed that the liquidator in respect of the said Society in the hands of the Liquidator. By an order and award dated 4th October 1983 the said application for revocation of the winding up order and revival of the said Society dated 22nd July, 1980 and 30th July, 1983 were disposed of by the Deputy Registrar, Co-operative Society. As a result of the said award, the said two applications stood rejected Being aggrieved by and dissatisfied with the said award and/or order dated 4th October 1983 another writ petition was moved before this Court. In the said writ application, an order was passed by this Court on 10th February, 1984 by which the Registrar of Co-operative Society was directed to consider personally the application for revocation of winding up order and for revival of the said Co-operative Society.

(2.) The Registrar of Co-operative Societies, thereafter, by the order dated 7th March 1984 maintained the said winding up order of the said Society. Against the said award dated 7th March, 1984 another writ application was filed before this Court for appropriate relief. By a judgment and order dated 6th October, 1988 the said writ application was disposed of. The relevant portion of the said judgment is as follows ;

(3.) As no step was taken in terms of the said order, another writ application was filed being C. O. No. 13855(W) of 1988, In the said writ application prayer was made for directing the said respondent to act in accordance with law and by directing, interalia, a meeting of the members of the said Society in terms of the order dated 6th October, 1988 passed by a learned Single Judge in C. O. No. 4242(W) of 1984, as well as for keeping the property intact and encumbrance frej as well as for appointment of a Special Officer. Upon hearing the said writ application, an order was passed by a learned Single Judge on 3Jst December, 1988 appointing Sardar Amjad Ali an Advocate of this Court, as Special Officer to take charge of the said property of the said Society situated at No. 9A, Judges, Court Road, Calcutta 27 with directions to take steps for maintenance of the said property and keep the same free from encroachment and also directing the said Liquidator to convene a meeting of the members of the said Society within certain time for that purpose. The said application ultimately came up for hearing before another learned Single Judge of this Court on 12th January 1981. The learned Single Judge directed the Special Officer not to hold any meeting of the parties scheduled to be held on 12th January, 1989 as fixed by the Special Officer. The Special .Officer was further directed not to take possession of the said property until further order. Thereafter, an order was passed by the said learned Trial Judge after considering the report from the said Special Officer whereby the Special Officer was directed to take steps for appointing security guards at the said premises belong to the said Society. An appeal was preferred against that order and the order of the learned Trial Judge was stayed. In the said appeal one Smt. Lakshmi Shivaraman & others on behalf of Rama Co-operative Housing Society filed an application for being added as parties and also seeking direction on the Special Officer to hand-over the possession of the said property to them. Ultimately, the said appeal in F. M. A. T, No. 404 of 1989 and the writ application being C. O. No. 13855(W) of 1989 were disposed of by the following order : 1. The interim orders dated 31st December, 1988 and 3rd February, 1989 are both vacated ; the Special Officer (Sardar Amjad Ali is discharged. He is directed to hand-over the possession of the disposed property to the third appellant (Liquidator) without prejudice to the rights and contentions of the parties to be ultimately decided in an appropriate proceeding as aforesaid. 2. The original respondents (writ petitioners) will deposit a sum of Rs. 6,000/- (Rupees six thousand only) per month from month to month, on and from the current month, with the third appellant to enable him to take all the necessary steps in the direction of the maintenance and preservation of the disputed property including the posting of security guards to the extent necessary and to otherwise discharge his functions and duties as liquidator in connection with the said property. The deposit is subject to accounting by the third appellant and to the right of the original respondents writ petitioners to claim refund, if ultimately, it is found that any balance sum is left with the third appellant after utilising the funds as aforesaid. In case of non-payment the Liquidator will be at liberty to make an application to the Court seeking appropriate directions. The amount accordingly deposited will be kept in a separate Bank account and will be withdrawn and utilised in the first instance, for posting adequate number of security guards from time to time. 3. If and when an appropriate proceeding is instituted before a proper forum by any of the parties hereto to enable its/their rights, title and interest, with respect to the disputed property, being declared and/or endorced such claim(s) without feeling in any manner inhibited by any of the orders passed by this Court in the course of the proceeding out of which this appeal arises. 4. The second appellant (Registrar of Co-operative Societies, West Bengal agrees and states through his counsel that no formal order seeking his leave to institute any proceeding against the third appellant (Liquidator) by way of the parties hereto would be required to be obtained in terms of such Section (3) of Section 134 of the West Bengal Co-operative Societies Act, so far as any claim with respect to the disputed property is concerned and that such leave may be deemed to have been granted by him by the statement herein recorded in terms aforesaid. 5. The third appellant (Liquidator) will convene a meeting of the members of the first respondent, ARCO Co-operative Housing Society Ltd. (in liquidation) in terms of the direction issued on 6th October 1988 in C. O. No. 4242(W) of 1984 by this court and he will take all other and further actions in terms of the said order. The meeting will be convened on 24th April, 1989 at 3 P. M. in the office of the second appellant (Registrar of Co-operative Societies, W.B.). The notice of the meeting will be served by registered post with acknowledgement due by the third appellant upon the members of the Society whose list will be submitted to him by the second and third respondents after being satisfied that they are, in fact, members of the Society. The list of creditors, if any, will also be supplied to him, if required, by those respondents for service of notice of otherwise. In case, the third appellant submits a report in favour of the cancelling of the winding up proceedings and second appellant shall act upon such report in appropriate orders in connection therein within a period of fifteen days from the date of the submission of such report." Pursuant to the said order of the Division Bench, the liquidator of the said Society duly convened a meeting of the members and creditors of the said society on 24th April 1989 for consideration of the request of the members to cancel the winding up proceedings and in the said meeting, the following resolution was passed :