Category: Allied Laws

1 Dr. A. Parthasarathy and Ors. vs. E Springs Avenues Pvt. Ltd. and Ors.
SLP (C) Nos. 1805-1806 of 2022 (SC)
Date of order: 22nd February, 2022
Bench: M.R. Shah J. and B.V. Nagarathna J.Arbitration – High Court has no jurisdiction to remand matter to same Arbitrator – Unless consented by both parties. [Arbitration and Conciliation Act, 1996 S. 37]

FACTS

The Appellants challenged the judgment and order passed by the High Court in exercise of power u/s 37 of the Arbitration and Conciliation Act, 1996, wherein the High Court set aside the award passed by the Ld. Arbitrator and remanded the matter to the same Arbitrator for fresh decision.HELD

As per the law laid down in the case of Kinnari Mullick and Anr. vs. Ghanshyam Das Damani (2018) 11 SCC 328 and I-Pay Clearing Services Pvt. Ltd. vs. ICICI Bank Ltd. (2022) SCC OnLine SC 4, only two options are available to the Court considering the appeal u/s 37 of the Arbitration Act. The High Court either may relegate the parties for fresh arbitration or consider the appeal on merits on the basis of the material available on record within the scope and ambit of the jurisdiction u/s 37 of the Arbitration Act. However, the High Court has no jurisdiction to remand the matter to the same Arbitrator unless it is consented by both the parties that the matter be remanded to the same Arbitrator.The appeal was allowed.

2 Horticulture Experiment Station Gonikoppal, Coorg vs. The Regional Provident Fund Organization
Civil Appeal No. 2136 of 2012 (SC)
Date of order: 23rd February, 2022
Bench: Ajay Rastogi J. and Abhay S. Oka J.

Labour Laws – Compliance – Default or delay in payments – sine qua non for levy of penalty – mens rea or actus rea not essential. [Employees Provident Fund and Miscellaneous Provisions Act, 1952, (Act) S. 14B]

FACTS

The establishment of the Appellant(s) is covered under the Employees Provident Fund and Miscellaneous Provisions Act, 1952, (Act). The Appellant(s) failed to comply with the provisions of Act from 1st January, 1975 to 31st October, 1988. For non-compliance of the mandate of the Act, proceedings were initiated u/s 7A of the Act and dues towards the contribution of EPF for the intervening period were assessed by the competent authority, and after adjudication, that was paid by the Appellant to the office of EPF. Thereafter, the authorities issued a notice u/s 14B of the Act to charge damages for the delayed payment of the provident fund amounts which were levied for the said period.The High Court, under the impugned judgment, held that once the default in payment of contribution is admitted, the damages as being envisaged u/s 14B of the Act are consequential, and the employer is under an obligation to pay the damages for delay in payment of the contribution of EPF u/s 14B of the Act, which is the subject matter of challenge in the present appeals.

HELD

Taking note of three-Judge Bench judgment in the case of Union of India and Others vs. Dharmendra Textile Processors and others [2008] 306 ITR 277 (SC), the apex Court held that that any default or delay in the payment of EPF contribution by the employer under the Act is a sine qua non for imposition of levy of damages u/s 14B of the Act and mens rea or actus reus is not an essential element for imposing penalty/damages for breach of civil obligations/liabilities.The appeal was dismissed.

3 Arunachala Gounder (Dead) by Lrs. vs. Ponnusamy and Ors.
AIR 2022 Supreme Court 605
Date of order: 20th January, 2022
Bench: S. Abdul Nazeer J. and Krishna Murari J.

Succession – Intestate – Daughters of a Hindu male – Entitled to self-acquired and other properties obtained by their father in partition. [Hindu Succession Act, 1956, S. 14, S. 15]

FACTS

The property under consideration belonged to a person who had two sons, namely, Marappa and Ramasamy. Marappa had one daughter, namely, Kuppayee Ammal, who was issueless, and once she died, property devolved on legal heirs of Ramasamy, who predeceased his brother.The suit for partition was filed by one of the daughters of Ramasamy. Ramasamy had one son and four daughters, one of the daughters amongst these was deceased. The petitioner is the daughter claiming 1/5th share in the suit property on the basis that the plaintiff and defendants are sisters and brothers. All five of them being the children of Ramasamy Gounder, all the five are heirs in equal heirs and entitled to 1/5th share each.

HELD

The right of a widow or daughter to inherit the self-acquired property or share received in the partition of a coparcenary property of a Hindu male dying intestate is well recognized not only under the old customary Hindu Law but also by various judicial pronouncements.Thus, if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father, whereas the property inherited from her husband or father-in-law would go to the heirs of the husband.

In the present case, since the succession of the suit properties opened in 1967 upon the death of Kupayee Ammal, the Hindu Succession Act,1956 shall apply, and thereby Ramasamy Gounder’s daughters being Class-I heirs of their father too shall be the heirs and shall be entitled to 1/5th share each in the suit properties.

The suit was decreed accordingly.

4 Bishnu Bhukta thru. Lrs. vs. Ananta Dehury and Anr.
AIR 2022 ORISSA 24
Date of order: 10th November, 2021
Bench: D. Dash J.

Gift – Donor having 1/5th interest in property – No partition of property – Interest of donor not covered under the definition of gift – Gift is invalid. [Transfer of Property Act, 1882, S. 122]

FACTS

Plaintiff’s case is that the land described in the schedule of the plaint belonged to one Barsana Bhukta who died, leaving his widow Sapura and four daughters, namely, Budhubari, Asha, Nirasa and Bilasa. Budhubari and Asha died issueless in 1970 and 1980 respectively. In 1983, Nirasa died, leaving as her heirs her two sons, the Plaintiffs. After the death of the daughters of Barsana, the Plaintiffs succeeded to the property.The Plaintiffs had filed Civil Suit for partition of the suit land, arraigning Bilasha as the Defendant. Defendant claimed exclusive right over the suit land on the strength of one registered deed of gift dated 2nd September, 1967 covering the entire property standing in favour of his wife, Bilasha, which he inherited upon Bilasha’s death.

The Appellant/Defendants filed the present Appeal challenging the judgment and decree passed by the Ld. District Court while dismissing the Appeal filed by the present Appellant.

HELD

Section 122 of the Transfer of Property Act, 1982 defines ‘gift’. It is the transfer of certain existing movable or immovable property, made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he/she is still capable of giving.

Sapura was only having 1/5th interest over the property, and there was no partition amongst the five. So, Sapura cannot be said to be having any definite property. Thus, here the interest of the donor over the property would not get covered under the definition of a gift. Further, here in such a case, the acceptance of the same by the donee cannot be found out being faced with uncertainty as to which portion of the property the donee would be accepting to be the property gifted to her.

The registered deed of gift executed by Sapura on 12th September, 1967 gifting away the property in suit in favour of one of her daughters, namely, Bilasha is neither valid in its entirety nor can it be said to be valid up to the extent of her share over the entire property belonging to her and her four daughters.

Under the given circumstance, Sapura was neither competent nor had the authority to make a gift of the property inherited by her and her four daughters either in whole or even to the extent of her interest.

The appeal is dismissed.

5 Somuri Ravali vs. Somuri P. Roa and Ors.
AIR 2022 (NOC) 30 (TEL)
Date of order: 8th June, 2021
Bench: A. Rajasheker Reddy J.

Partnership – Original Partnership Deed contains an arbitration clause for disputes amongst partners – Amended deed did not have such a clause – Since firm is not re-registered after amended deed – original deed is valid – Dispute can be referred to Arbitration. [Indian Partnership Act, 1932 S. 43]

FACTS

Petitioner and Respondents No. 1 to 3 have established a Partnership Firm by the name M/s. Reliance Developers vide Partnership Deed dated 27th October, 2011. In 2014, vide Amendment Deed dated 18th September, 2014 they intended to amend the original Partnership Deed with regard to sharing pattern, inter alia. However, a dispute arose amongst the partners who tried to resort to arbitration.

The question arose on the applicability of the arbitration clause in the Original Deed after the termination of the contract on dissolution of the firm.

HELD

The purpose of the Arbitration and Conciliation Act, 1996 is to minimize the burden of the Courts so also to expedite the matters. Once the parties have intended to refer their disputes, if any, to the Arbitrator in the agreement, then any dispute pertaining to the contents of the agreement or touching the subject matter of the agreement is necessarily to be referred to the Arbitrator even though the agreement is mutually terminated by both the parties. Therefore, the arbitration clause in such a contract does not perish. Any dispute arising under the said contract is to be decided as stipulated in the arbitration clause.The arbitration agreement constitutes a “collateral term” in the contract, which relates to the resolution of disputes and not to the performance of the contract. Upon termination of the main contract, the arbitration agreement does not ipso facto come to an end. However, if the nature of the controversy is such that the main contract would itself be treated as non-est in the sense that it never came into existence or was void, the arbitration clause cannot operate, for along with the original contract, the arbitration agreement is also void.

Where a contract containing an arbitration clause is substituted by another contract, the arbitration clause perishes with the original contract unless there is anything in the new contract to show that the parties intended the arbitration clause in the original contract to survive. Even if a deed of transfer of immovable property is challenged as not valid or enforceable, the arbitration agreement would remain unaffected for the purpose of resolution of disputes arising with reference to the deed of transfer.

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Manuel Sons Financial Enterprises (P) Ltd. vs. Ramakrishnan and Ors. AIR 2016 Ker. 47.

An important and an interesting legal question arose before the Kerala High court about the authority of a counsel, who does not hold a vakalat for the party, to make an endorsement on the plaint that the party-defendant has no objection in decreeing the suit as prayed for.

In this case while the suit for redemption of mortgage was pending, one advocate by name Sri Mahadevan endorsed on the reverse of the plaint, said to be on behalf of the defendant company, that it had no objection in decreeing the suit. On the basis of this endorsement, learned trial Judge passed a decree in the suit as prayed for on 29.06.2006. Later on, the said decree was challenged by the defendant.

The High Court held that from the records of the trial court it was found that the Managing Director of the defendant company had authorised Advocate Sri Unnikrishnan by executing a vakalat to appear and act on behalf of the company. Advocate Sri. Mahadevan’s name, who made the endorsement on the reverse of the plaint on 27.06.2006 agreeing to decree the suit, was not seen mentioned in the said vakalat. Further, there was no reason brought out from the records to hold that the counsel who filed a vakalat for the defendant company had authorised another counsel to plead on his behalf for the party. Even if one assumes so, such counsel gets no authority to confess judgment against the interest of the party for whom he was only authorised to plead. In other words, an advocate cannot, unless he has filed in the court a memorandum of appearance (vakalat) prescribed by the Rules, concede the claim or confess judgment affecting the rights of a party as it exceeds the authority. The power to “plead” would include within its scope and ambit, the right to examine witnesses, seek adjournments, address arguments, etc. But such a pleader however cannot have the power to compromise a case or withdraw a case or to do any other act which may have the effect of compromising the interest of the client. No court shall accept or act on such a compromise or confession or admission without verifying whether the advocate doing so had been authorised by the party by executing a vakalatnama. A decree passed in a case on the basis of an endorsement by an advocate, who had no vakalat in the case, cannot be said to be a consent decree.

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Vishal N. Kalsaria vs. Bank of India and Others. AIR 2016 SC 530

The landlords had approached the Bank of India for a financial loan, which was granted against equitable mortgage of several properties belonging to them, including the property in which the Appellant before the Apex Court was a tenant. As the landlords failed to pay the dues within the stipulated time in terms of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the SARFAE SI Act), their account became a non-performing asset. Consequently, the Bank filed an application before the Chief Metropolitan Magistrate, Mumbai, u/s. 14 of the SARFAE SI Act for seeking possession of the mortgaged properties which were in actual possession of the Appellant. The Appellant then filed an application as an intervenor to stay the execution of the order passed by the Chief Metropolitan Magistrate. The learned Chief Metropolitan Magistrate vide order dated 29.11.2014 dismissed the application filed by the Appellant. The matter ultimately reached the Apex court.

The broad point which required consideration was whether a protected tenant under the Maharashtra Rent Control Act, 1999 (Rent Control Act) can be treated as a lessee and whether the provisions of the SARFAE SI Act will override the provisions of the Rent Control Act.

The Apex court also laid down the law where the tenancy is not registered. The Apex court held that the provisions of the SARFAE SI Act cannot be used to override the provisions of the Rent Control Act. Once tenancy is created, a tenant can be evicted only after following the due process of law, as prescribed under the provisions of the Rent Control Act.

The Apex Court further held that according to section 106 of the Transfer of Property Act, 1882 a monthly tenancy shall be deemed to be a tenancy from month to month and must be registered if it is reduced into writing. The Transfer of Property Act, however, remains silent on the position of law in cases where the agreement is not reduced into writing. If the two parties are executing their rights and liabilities in the nature of a landlord – tenant relationship and if regular rent is being paid and accepted, then the mere factum of non-registration of deed will not make the lease itself a nugatory. Further, in terms of section 55(2) of the Rent Control Act, the onus to get such a deed registered is on the landlord. In light of the same, neither the landlord nor the banks can be permitted to exploit the fact of non-registration of the tenancy deed against the tenant.

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Santosh Popat Chavan & Others vs. Mrs. Sulochana Rajiv & Others. AIR 2016 Bombay 29

The plaintiff-respondent herein, Sulochana, widow of Rajiv Chavan filed Civil Suit for partition against the brothers and sister of her deceased husband. The matter ultimately travelled to the Bombay High Court.

The Bombay High Court in the case of Ananda Krishna Tate since deceased by Legal Heirs vs. Draupadibai Krishna Tate and others; 2010 (1) BCJ 714, had taken a view that a Hindu woman (mother, in that case) had no right to file a suit for partition under the provisions of the Hindu Succession Act, 1956 (the Act of 1956), which was earlier available as per section 3(3) of the Hindu Women’s Rights to Property Act, 1937 (the Act of 1937). In the absence of any other coparcener in the joint family demanding partition of the joint family property, the suit on her own was not maintainable.

The Bombay High Court held that the Hindu Succession Act was brought into force in the year 1956 and for emancipation of right to the women, the widow was given exclusive right to the property by removing the limited right that was given to her under the Act of 1937. Thus, right to share has been given to a widow upon death of her husband as per the Act of 1956. Further, the Act of 1956 does not carve out any prohibition on her from filing the suit independently. Hence, it must be held that she has the right to file the suit independently.

Thus, the right having been given to a widow or mother or women under the Act of 1956, she cannot be told that though she has a right to get the share, she cannot file a suit for recovery of share of her deceased husband as she had no right to file a suit. When a right is given, the remedy has to be there namely remedy to file a suit for partition, which cannot depend upon the desire or demand of other coparceners in the family to have a partition of the joint family property. The decision in the case of Ananda (supra) was held to be per incuriam.

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Mehmood and Ors. vs. Nargis Begum and Ors. AIR 2016 (NOC) 172 (Cal).

A
suit was brought about by the children of first wife of one Md. Bashir,
a Mohammedan, against his widow and the off-springs through his second
marriage for a declaration that the transfer by Md. Bashir of certain
premises to his widow by the alleged registered deed of gift dated 3rd
August, 2003 is voidable.

The alleged deed of gift was
challenged on the ground that under Mohammedan law, a gift of immovable
property is complete and valid only by delivery of possession. 80% of
the property was tenanted and that to make the gift complete and valid
there had to be delivery of possession of the tenanted portion by the
tenants attorning the tenancy in favour of the donee. Further, Md.
Bashir continued to issue rent receipts in his own name. No mutation of
the property with Kolkata Municipal Corporation was made.

The
court held that Chapter VII of the Transfer of Property Act relating to
gifts specifically stipulates in section 129 thereof that the provisions
in the Chapter do not “affect any rule of Mohammedan law.” This simply
meant that the gift would have to be justified in terms of Mohammedan
law.

Under the Mohammedan law, if the donor and donee are
residing in the same property, it is not essential that the donor should
depart from the premises to deliver possession to the donee. The gift
is completed by any overt act on the part of the donor to divest himself
of the control over the property. (paragraph 152 (2) of Mohammedan law
by Mulla). In paragraph 153, Mulla says that the same rule applies in
the case of husband and wife where the property is used for the joint
residence or is let out to tenants or partly used for residence and
partly let out to tenants. The husband is the natural manager of the
wife. Even if after gift of the property the husband collects rents from
the tenants, he is deemed to be doing so as the manager of his wife.
(paragraph 153 of Mulla). Hence, there were sufficient overt acts to
make the gift valid.

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MECON Indraprastha Sahakari Avas Samiti Ltd. and Ors. vs. State of U.P. and Ors. AIR 2016 (NOC) 170 (ALL)

Before the Lucknow bench of the Allahabad High Court, a challenge was raised to the constitutional validity of the provisions of section 113(2) of the Uttar Pradesh Cooperative Societies Act, 1965 whereby the state legislature enacted a provision which stipulated that the Right to Information Act, 2005 – enacted by Parliament – shall cover all cooperative societies in the state.

The provision of section 113(2) is as under : “113(2) Every co-operative society shall be covered by the Right to Information Act, 2005.”

The challenge to the constitutional validity of section 113(2) was premised on the basis that as a result of the amendment, all co-operative societies in the State were brought within the purview of the RT I Act, enacted by the Parliament, irrespective of whether or not these cooperative societies constituted public authorities within the meaning of section 2(h) of the Central Act, i.e. the RT I Act.

The Court held that the issue which was required to be considered was whether the state legislature could, by a legislative amendment to the Act, have mandated that all cooperative societies in the State would be governed by the RT I Act.

The court further held that unless the state legislature is competent to enact a law on the subject, it would not be open to it to provide that the RT I Act which has been enacted by the Parliament must apply to all co-operative societies in the State. This was clearly impermissible and fell outside the legislative competence of the state legislature. Hence, the provisions of section 113(2) were held to be unconstitutional.

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Patel Engineering Ltd. vs. UOI 2015 (315) ELT 533 (Bom.)

The
Revenue proceeded to recover the entire amount by attaching the bank
account towards demand on account of service tax and penalty even though
the stay application was pending.

The grievance of the
Petitioner is that though an appeal has been filed before the
Commissioner of Central Excise (Appeals) against an order of
adjudication and even the stay application was pending, the Revenue
proceeded to recover the entire amount by attaching the bank account.
This action was purportedly taken in pursuance of a circular dated 1st
January 2013 of the Central Board of Central Excise and Customs.

The
Court observed that the circular has been considered and has been dealt
with in a judgment of this Court in Larsen & Toubro Limited vs.
Union of India (2013) (288) ELT 481 (Bom) wherein the court observed as
under:

“….The impugned circular dated 1 January 2013 mandating
the initiation of recovery proceedings thirty days after the filing of
an appeal, if no stay is granted, cannot be applied to an assessee who
has filed an application for stay, which has remained pending for
reasons beyond the control of the assessee. Where however, an
application for stay has remained pending for more than a reasonable
period, for reasons having a bearing on the default or the improper
conduct of an assessee, recovery proceedings can well be initiated as
explained in the earlier part of the judgment…..”

The court
further observed that there was no reason or justification on the part
of appellate authority to keep the stay application pending and take
recourse to coercive remedies under the law.

The law laid by the
Court on the interpretation of the circular of the Central Board of
Central Excise and Customs would bind all authorities who are subject to
the jurisdiction of this Court. In this case, we are of the view that
the court directed the appeal which has been filed by the Petitioner, to
be disposed of expeditiously by the Commissioner of Central Excise
(Appeals) within a period of four weeks of the date on which an
authenticated copy of this order is produced on the record.

The
Court further directed that henceforth the controlling authority shall
issue a circular to all the authorities within his jurisdiction that the
directions contained in the judgment of this Court in Larsen &
Toubro Limited (supra) shall be duly observed.

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Jai Kumar vs. Hanuman & Ors. AIR 2015 Rajasthan 24 The petitioner plaintiff Jai Kumar through his power of attorney holder brother Yogesh Chandra filed a suit for declaration and permanent injunction against the respondent defendant. When during the course of statement by the power of attorney holder Yogesh Chandra the power of attorney given by the plaintiff – Jai Kumar was sought to be exhibited, an objection was raised that the power of attorney was neither registered nor the same bear requisite stamp duty and therefore, the same was inadmissible in evidence.

In reply, it was contended that the document was not required to be registered and as the power of attorney was executed at Qatar before the Indian Embassy and requisite fee amounting to 75 Qatari Riyals was paid, the same was sufficient in terms of sections 32 and 33 of the Indian Registration Act, 1908 (`the Act’).

The trial court came to the conclusion that the power of attorney was required to be compulsorily registered u/s. 17(1)(g) of the Act and as the same was not registered, u/s. 49 of the Act, the same was inadmissible.

The Hon’ble Court observed that a bare look at the said provision reveals that the power of attorney relating to transfer of immovable property should be `irrevocable’ for the same to be liable for compulsory registration.

The power of attorney nowhere indicates that the same was irrevocable. The requirement of applicability for provision of section 17(1)(g) of the Act, i.e. the power of attorney must be irrevocable, not being present in the document, it cannot be said that the same was compulsorily registerable.

The trial court without considering the said aspect has presumed the power of attorney as irrevocable, which presumption on face of it is incorrect and as such the said finding cannot be sustained.

So far as the objection raised by learned counsel for the respondent regarding deficient stamp duty is concerned, the submission has substance. The document and the receipt alongwith the document, does not indicate payment of any stamp duty on the said power of attorney. The amount of 75 Qatari Riyals said to have been paid by the plaintiff Jai Kumar cannot be said to be a payment of stamp duty.

Even otherwise, under the provisions of section 20 of the Stamp Act, even if a stamp duty has been paid in another State and the document is brought within Rajasthan, the document is chargeable with the difference of duty in case the duty to be paid is higher and the duty should have been already paid on the document `in India’.

In that view of the matter, even if, any payment has been made by the Petitioner at Qatar, which though cannot be termed as payment of stamp duty, and the Power of Attorney is liable to payment of stamp duty under article 44 of the Schedule attached to the Stamp Act.

The document was, therefore, liable to be dealt with by the trial court u/s. 39 read with sections 37 and 42 of the Stamp Act for determination and payment of deficient stamp duty.

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In the case of Subodh Gopal Bose, AIR 2015 Calcutta 27

One Subodh Gopal Bose, was the owner of substantial properties, both movable and immovable. He died on 1st August, 1975 after having made and published his last will and Testament dated 8th July 1975 leaving behind as his only legal heirs, his wife Kamala Bose, and four daughters. Who are the beneficiaries under the said Will and Testament? Kamala Bose expired in 1977. Gita Dutta, one of the daughters, expired in June 2012. The present petition has been filed by Dipak Sarkar in his capacity as the executor of the will and Testament dated 28th April 2012 made and published by Gita Dutta. Application for grant of probate of the said will of Gita Dutta is still pending.

Vesting of property of deceased in executor does not take place as a result of probate. On the executor accepting his office, the property vests in him and the executor derives his title from the Will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain. U/s. 213 of the Indian Succession Act, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the Will. The vesting of right is enough for the executor to represent the estate in a legal proceeding. The right of action in respect of personal property of the testator vests in the executor on the death of the testator. S/s. 211 and 213 of the said Act have different areas of operation. Even if the will is not probated that does not prevent the vesting of the property of the deceased in the executor and consequently, any right of action to represent the estate of the executor can be initiated even before the grant of probate.

The present petitioner has made this application in his capacity as executor of the last will and Testament of Gita Dutta. However, no Court of competent jurisdiction has granted probate of such will as yet although application for such probate may be pending. As such, the present petitioner cannot exercise any right as executor of the will of late Gita Dutta.

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Gajanan Eknath Sonan Kar vs. Shegaon Shri Agrasen Co-op. Credit Society Ltd. Buldana & Anr. AIR 2015 (NOC) 163 (Bom.)

The appellant plaintiff purchased, admeasuring 2 acres by registered sale deed dated 19-04-2002 from Raju Gopikisan Rathi. Before purchasing the property, he had ascertained, by all known methods, the saleable interest of the vendor. He had verified 7/12 extract when he purchased the land in the year 2001-02 but there was no charge mentioned in the said 7/12 extract. The vendor Raju Gopikisan Rathi on 17-06-2002, i.e. after the execution of sale deed in favour of appellant, mortgaged the said property with respondent No.1 Credit Co-op. Society, which granted him loan by mortgage of the said property without verifying whether he had sold the property to the appellant. Raju Rathi was member of respondent No.1 Credit Co-op. Society since he obtained the loan but the appellant had no concern with the said society. Obviously, because he had purchased it even before it was mortgaged. The appellant plaintiff issued a notice on 27-08-2012 u/s.164 of the MCS Act and filed suit on 10-09-2012, i.e. before the expiry of two months period for perpetual injunction u/s. 38 of the Specific Relief Act against respondent No. 1 Society and claimed injunction against Society for attachment of suit property. Respondent No. 1 Society, i.e. defendant No.1 therein, filed an application with a prayer to dismiss the suit for non compliance of section 164 of the MCS Act. The application was heard and the trial Judge allowed the said application and dismissed the suit.

The Hon’ble Court observed that it is thus clear from the above facts that the mortgage was made two months after the sale deed was executed and actually mutuated on 25- 11-2003 in the revenue records. Therefore, the appellant was not at all aware about the future course of action which Raju Rathi had decided to adopt after execution of sale deed. He is, therefore, at all not concerned with the mortgage made with the respondent No. 1 Credit Society. What is relevant is the entry of charge and the date thereof in the revenue record of the Govt. and not in the office of the society. At any rate, mere filing of application for loan on 14-12-2001 cannot be said to be charge u/s. 48 and Rule 48(5) of the Act and the Rules.

A careful reading of section 48 of the MCS Act and Rule 48 of the Rules framed thereunder, establishes that for knowledge to the people at large about the charge over immovable property or for claiming protection of section 48 of the Act, it would be mandatory for the society to get the charge on immovable property created or recorded in the record of rights maintained by the village officers of the village where the property is situated. Sub-rule 5 clearly says that if such charge is shown in the record of rights the same shall be treated as a reasonable notice of such charge created u/s. 48. Therefore, unless and until there is compliance of these two provisions, namely section 48 and Rule 48(5), the people at large cannot be expected to know about the charge, if any, on immovable property. In other words, if a society wants to claim protection or benefit of section 48 of the MCS Act, the same can be obtained only from the date the charge is actually recorded in the record of rights and not otherwise. I hold that provisions of section 48 and Rule 48(5) are mandatory in nature for a cooperative society if a cooperative society wants to claim benefit/protection of the said provisions.

It is well settled legal position of interpretation that when a similar expression is used in different places in a statute, it carries the same meaning unless contrary intention is disclosed. The institution of the suit claiming perpetual injunction to protect the civil right of the appellant qua the suit property cannot be said to be either an `act’ touching the business of the society even for that matter, `dispute’ touching the business of the society. It must always be construed that the `act’ touching the business of the society means `legal’ act for attracting the provision of section 164 of the Act. The act of the society in mortgaging the suit property which was already sold to the appellant who was not even a member of the society cannot fall in the definition of section 164 of the Act. Therefore, the provisions of section 164 will have no application in addition because the plaintiff wants to exercise his independent civil right.

The Respondent No. 1 Society is unnecessarily harassing the appellant/plaintiff without even bothering to look that the fault clearly lay with the respondent No. 1 Society in not taking the search report in respect of execution of sale deed in favour of the appellant on 19-04-2002 as against the charge being recorded in the revenue records on the suit property on 25-11-2003 for the first time. The respondent No.1 society is not at all justified in harassing the appellant when he has innocently and bona fidely and with all care, caution and circumspection purchased the suit property. Respondent No.1 should be saddled with exemplary costs payable to the appellant in the sum of Rs.10,000/-.