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TMI Blog2014 (8) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... was already sold to the appellant who was not even a member of the society cannot fall in the definition of Sec. 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 notice u/s 164 for filing the suit was not at all necessary - answered in negative. Whether the appellant/ plaintiff having served the notice under section 164 of the Act were estopped in law in filing the suit before expiration of statutory period of two months contemplated by he said provision? - HELD THAT:- When notice u/s 164 of the MCS Act was not at all necessary before filing the suit in a civil court as held by me above, even if the respondents/plaintiffs, in fact, had given such notice but did not wait for two months, there cannot be any estoppel against law when the legal position that no such notice is necessary for filing the suit as a prerequisite to maintain the suit. Whether or not the plaintiffs had issued notice u/s 164 or he did not wait for the period of two months, would hence make no difference at all - When the law does not require issuance of notice u/s 164 of the MCS Act at all, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant 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 Exh.15 with a prayer to dismiss the suit for noncompliance of section 164 of the MCS Act. The application Exh. 15 was heard and the trial Judge allowed the said application and dismissed the suit. The appellant preferred appeal Reg.C.A.No. 34/2013 before the District Judge who dismissed it by the impugned appellate order and confirmed the order made by the trial Judge. SUBMISSIONS: 4. In support of the Appeal, Mr. Bhide, learned counsel for the appellant argued that the appellant had purchased the property even before the same was mortgaged with respondent no. 1 Society on 17.06.2002; while the sale deed in favour of the appellant was executed earlier on 29.04.2002. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 6. Upon hearing the learned counsel for rival parties and upon perusal of the entire record, the following substantial questions of law arise for my determination: 1) Whether compliance of the provisions of Section 48 of the MCS Act, and Rule 48 (5) of MCS Rules, 1961 is mandatory for lending cooperative society before claiming protection/charge on immovable property of members ?.Yes. 2) Whether it was necessary/mandatory for the appellant/plaintiff to serve the notice u/s 164 of the MCS Act before filing RCS No. 87/2012?..No 3) Whether the appellant/ plaintiff having served the notice under section 164 of the Act were estopped in law in filing the suit before expiration of statutory period of two months contemplated by he said provision?..No 4) Whether for filing the suit u/s. 38 of the Specific Relief Act, prior notice u/s 164 of the MCS Act is mandatory? No. As to Question No.(1): Following are the admitted facts; 7. Raju Gopikisan Rathi made an application to the respondent no. 1 Cooperative Credit Society on 14.12.2001 for grant of loan by proposing to mortgage the suit land which was owned by him. Raju Rathi, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loan which the society may make to the member in pursuance of the application, and for all future advances (if any) required by him which the society may make to him such member, subject to such maximum as may be determined by the society, together with interest on which amount of the loan and advances; (b) any person who has taken a loan from a society of which he is member, before the date of the coming into force of this Act, and who owns any land or has interest in land as a tenant, and who has not already made such a declaration before the aforesaid date shall, as soon as possible thereafter, make a declaration in the form and to the effect referred to in clause (a); and no such person shall, unless and until he has made such declaration, be entitled to exercise any right, as a member of the society; (c) a declaration made under clause (a) or (b) may be varied at any time by a member, with the consent of the society in favour of which such charge is created; (d) No member shall alienate the whole or any part of the land or interest therein, specified in the declaration made under clause (a) or (b) until the whole amount borrowed by the member togeth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f societies, specified in this behalf by the State Government, by a general or special order. Rule 48 of Maharashtra Cooperative Societies Rules, 1961 reads thus: 48. Form of declarations to be made by members borrowing loans from certain societies and conditions on which any charge in favour of a society shall be satisfied: (1) A declaration to be made under clauses (a) and (b) of Section 48 shall be in Form 'L'. (2) A register of such declarations shall be kept by the society in Form 'M'. (3) A charge on any immovable property created by a member in favour of a society for amounts borrowed or likely to be borrowed by him, from time to time, shall, subject to the provisions of clauses (c) and (d) of Section 48 continue in force till the person creating the charge ceases to be a member of the society. (4) Where a member of a society creates a charge on his land or on his interest in any land as a tenant by declaration under Section 48, the society may, if compelled to make use of such property for the recovery of the loan granted to such member against the security of such property or interest in the property, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the appellant on 19.4.2002 in respect of the suit property while the charge contemplated by Section 48 of the MCS Act was actually inserted in the record of rights for the first time on 25.11.2003 and never before. Thus, the appellant/ plaintiff was not at all concerned with the respondent no.1 society or the loan obtained by Raju Rathi after he sold the suit property to the appellant. The appellant, in fact, has no concern with the society or any transaction with the respondent no.1 society. The appellant wanted to exercise his independent civil right for protecting the suit property from attachment by the Credit Society since subsequent to the sale deed, Raju Rathi had mortgaged the suit property with respondent no. 1 society. It appears that the respondent no. 1 society did not take the search report about the status of the suit property and in a most casual and cursory manner obtained the mortgage of the suit property which was already sold. I have already held that mere filing of the application for loan on 14.12.2001 does not mean creation of any charge contemplated by Sec. 48 and Rule 48(5) supra. Section 164 of the MCS Act reads thus: Sec. 164 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 3: 10. It is true that the present appellant had given notice under section 164 of the MCS Act before filing the suit but then without waiting for a period of two months he had filed the suit in the Civil Court. I find that when notice u/s 164 of the MCS Act was not at all necessary before filing the suit in a civil court as held by me above, even if the respondents/plaintiffs, in fact, had given such notice but did not wait for two months, there cannot be any estoppel against law when the legal position that no such notice is necessary for filing the suit as a prerequisite to maintain the suit. Whether or not the plaintiffs had issued notice u/s 164 or he did not wait for the period of two months, would hence make no difference at all. When the law does not require issuance of notice u/s 164 of the MCS Act at all, to file the suit before expiry of the period would be of no consequence. As such, Question No. 3 is answered in negative. As to Question No. 4 : 11. The appellant had filed the suit under section 38 of the Specific Relief Act for grant of perpetual injunction against the respondent no. 1 society in respect of the suit property legally owne ..... 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