S.B.SHUKRE, J. - (1.) This petition challenges the legality and correctness of two judgments rendered by the Judge, Cooperative Court, Nagpur in Case No. 636 of 1980 on 12.8.1996 and the Member, Maharashtra State Cooperative Appellate Court, Mumbai, Nagpur Bench, Nagpur in Appeal No. 88 of 1996 on 12.12.1997.
(2.) By the judgment rendered on 12.8.1996, the learned Judge of the Cooperative Court dismissed the dispute raised under Section 91 of the Maharashtra Cooperative Societies, 1960 (for short, the "Societies Act") and directed respondent no. 1 to refund the amount of Rs. 33,871/- with interest @ 18% per annum from 15.2.1980 till satisfaction of the decree. The judgment and order of the Cooperative Court came to be confirmed by the Cooperative Appellate Court by its judgment and order dated 12.12.1997
(3.) In nut-shell, the case of the petitioner-disputant was as under: (i) The disputant being a member and share-holder of respondent no. 1 Society, which was formed primarily for the purpose of floating and operating housing schemes for its members, applied for allotment of one flat in one of the apartment schemes initiated by it in Dhantoli, Nagpur. By a resolution passed on 7.11.1979, the general body of the society took a decision to allot one flat to the petitioner and accordingly assigned to her Flat No. 8 on the 1 st floor in one of such housing schemes situated at Dhantoli, Nagpur. The petitioner contended that she completed all the formalities and deposited by making payments from time to time a total amount of Rs. 39,871/- towards her obligation to pay the price for the flat. (ii) It appears that respondent no. 1 Society wanted to help its members raise housing loan from the Maharashtra Cooperative Housing Finance Corporation Limited, Mumbai ("Finance Corporation" for short) and with that object in view, the Society called upon its members to submit various documents to the Society as it submitted proposals on behalf of its members to the Finance Corporation. The dispute of the Society with the petitioner started at this juncture. The petitioner was called upon to submit certain documents to justify her unearned income and as a proof of it she was also called upon to submit to the Society a copy of income-tax assessment order or deposit Rs. 6000/- in lieu thereof. The petitioner gave her explanation that her income was below the taxable limit and, therefore, question of her submitting income-tax return and obtaining income-tax assessment order never arose. She also furnished an affidavit stating the fact that she earned income of Rs. 9900/- from her sewing and embroidery work and Rs. 2100/- by way of household savings. She also entered into correspondence on these lines with the Society. The dispute, however, could not be resolved. (iii) The petitioner contended that she received a letter from the Finance Corporation dated 6.10.1980 informing her as to how her case was not considered for advancing loan to enable her to purchase a flat in the housing society of respondent no. 1. The Finance by its letter dated 6.10.1980, as submitted by the petitioner, informed her that it was intimated by respondent no. 1 society by its letter dated 10.9.1980 to it that the petitioner was no longer a member of the Society. The petitioner asserted that it was by this letter of the Corporation dated 6.10.1980 that she learnt for the first time that her membership had been cancelled by respondent no. 1 Society and, therefore, she sent a registered notice to the Society dated 24.10.1980 taking exception to her removal from membership and also objecting to the legality and correctness of the resolution passed by the Society in that regard, on the ground that no notice was given to her and her say was not called. The society did not respond and, therefore, the petitioner filed a dispute under Section 91 of the Societies Act against respondent no. 1 Society. Later on, the petitioner also joined respondent no. 2 as party-respondent when she learnt that flat no. 8 or the disputed flat had been allotted and sold by respondent no. 1 Society to her. (iv) Respondent no. 1 Society by filing its Written Statement strongly opposed the dispute so raised by the petitioner. According to it, this was a case of resignation from the membership and voluntary withdrawal of allotment of the disputed flat to the petitioner done by her on the authority impliedly given by her to her husband and, therefore, there was no question of sending her notice of convening of the special general body meeting the society. According to respondent no. 1, husband of the petitioner, Chhotelal Verma, was the contractor who was initially allotted the work of construction of the scheme of apartments by respondent no. 1 and as some disputes were there and the matter was likely to be reported to the Income-tax Authorities, the husband of petitioner with a desire to let the matter be at rest there only, offered that his wife would resign from the membership and make a request for withdrawal of allotment of the disputed flat to her so that all differences between the Society on the one hand and his wife as well as he himself, on the other, would be closed and accordingly having been duly authorized by her i.e. the petitioner, Chhotelal Verma by letter dated 2.5.1980 written on behalf of his wife, resigned from the membership of respondent no. 1 Society and also made a request for withdrawal of the allotment of the disputed flat to his wife voluntarily. The Society also contended that all these events were communicated to the petitioner by the Society in detail by its letter dated 17.6.1980, about two days after the managing committee of the Society discussed the resignation letter dated 2.5.1980 from all angles and also considered various defaults committed by the petitioner and the reluctance shown by her to personally attend even once the office of respondent no. 1 society. This meeting, it is not in dispute, was held on 15.6.1980 and in this meeting, as submitted by respondent Society, it was proposed that the resignation letter of the petitioner be accepted. It appears that there was no response given by petitioner to the letter of the Society dated 17.6.1980. The respondent No.1 Society also took the plea of benami transaction in it's defence made alternately. (v) Respondent no. 1 Society convened a special general body meeting on 7.9.1980 and passed a resolution accepting the resignation cum withdrawal letter dated 2.5.1980 which was accordingly informed to the petitioner. The Society submitted that as this was a case of resigning from the membership and requesting withdrawal of allotment of disputed flat by the petitioner herself, the question of sending any notice of the special general body meeting to the petitioner never arose. The society also submitted that it refunded the amount of Rs. 16,000/- to the petitioner which was disputed by the petitioner. (vi) On merits, the Cooperative Court found no substance in the case of the petitioner and accordingly, dismissed the dispute with a direction to the Society to refund amount of Rs. 39,871/- to the petitioner by its judgment dated 12.8.1996 which came to be confirmed by the Cooperative Appellate Court on 12.12.1997. ;