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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 ..... known methods, the saleable interest of the vendor. He had verified 7/12 extract when he purchased the land in the year 200102 but there was no charge mentioned in the said 7/12 extract. It, however, appears that 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 Cooperative 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 Cooperative 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 Exh.15 with a prayer to dismiss the suit for noncompliance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rashtra Cooperative Societies Act was essential or a mandatory requirement in the absence of which the suit must fail. He then argued that though mortgage was not mutated in 7/12 extract before sale deed was executed, the same was surely recorded thereafter on 25.11.2003 and, therefore, there was a charge recorded in the record of revenue department. He then submitted that at any rate, the appellant had in fact issued notice under section 164 of the MCS Act but without waiting for the period of two months, he filed the suit which is in contravention of Sec. 164 of the MCS Act. CONSIDERATION: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmovable property of members borrowing from certain societies: Notwithstanding anything contained in this Act or in any other law for the time being in force, (a) any person who makes an application to a society of which he is a member, for a loan shall, if he owns any land or has interest in any land as a tenant, make a declaration in the form prescribed. Such declaration shall state that the applicant thereby creates a charge on such land or interest specified in the declaration for the payment of the amount of the 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 clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the particulars of every charge on land or interest created under a declaration under clause (a) or (b) (and also the particulars of extinction of such charge.). Explanation: For the purposes of this section, the expression "society" means (i) any resource society the majority of the members of which are agriculturists and the primary object of which is to obtain credit for its members, or (ii) any society, or any society of the class of 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 conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute that the suit was filed by the appellant/ plaintiff for claiming permanent injunction against the respondent no. 1 Credit society in the matter of proposed attachment of suit property purchased by the plaintiff prior to the mortgage thereof created by the original owner /vendor-Raju Rathi with the Society. To repeat, Raju Rathi, executed the sale deed in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff wants to exercise his independent civil right. In the light of the above decision of the Apex Court and the facts of the present case, I am of the considered opinion, that notice u/s 164 for filing the suit was not at all necessary. The Question No. 2, therefore will have to be answered in negative. As to Question 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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