S.B.MHASE, J. - (1.) THIS Appeal is directed against the judgment and order passed by the learned single Judge of this court on 24th December, 2008 in Chamber Summons No.587 of 2007 in Suit No.3376 of 2005. By the said judgment and order the learned single Judge has rejected the Chamber Summons proposing to amend the Plaint.
(2.) FOR the sake of convenience, the appellant is referred to as plaintiff and the respondents are referred to as defendants No.1, 2, 3, 4 and so on respectively. The plaintiff filed Suit No.3376 of 2005 on the Original Side of this Court praying for several reliefs as claimed in paragraph 67 of the Plaint. The suit is based on Memorandum of Understanding dated 22nd December, 2001, executed between the plaintiff and the defendant No.1 and the plaintiff has, inter alia, prayed for specific performance of the same. It has also been prayed in the suit that the Consent Decree passed in Suit No.4925 of 2000 is null and void and has no effect or consequence and, in any event, it is not binding upon the plaintiff and/or the 177 companies controlled by the plaintiff and/or the defendant No.4 of which the said 177 companies are the members. At this juncture, it is not necessary to go into the factual averments in the Plaint. Suffice it to state that the defendant No.4 Usha Madhu Cooperative Housing Society is a registered society under the Bombay Cooperative Societies Act and, therefore, a Cooperative Society under the Maharashtra Cooperative Societies Act, 1960 (hereinafter referred to as "MCS Act"). Section 164 of the said MCS Act reads thus: '164. Notice necessary in suits:- No suit shall be instituted against a society, or any of its officers, in respect of any act touching the business of the society, until the expiration of two months next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left." With regard to this provision, the plaintiff has averred in paragraph 62 of the Plaint as follows: "The Plaintiff submits that notice under Section 164 of Maharashtra Co-operative Societies Act, 1960 is not necessary as far as the Defendant No.4 is concerned." Thus, at the time of filing of the suit, there was no notice issued and served as provided under section 164 and it is the case of the plaintiff that such notice is not necessary so far as defendant No.4 is concerned. Thus, it is a fact on record that the suit as against defendant No.4 was filed without issuing notice under section 164 of the MCS Act. Whether such a notice to the defendant No.4 is necessary or not is a matter to be considered in the suit when the suit reaches the stage of final hearing.
(3.) AFTER filing of the suit, the plaintiff filed Notice of Motion No.3950 of 2005 and the learned single Judge allowed the said Notice of Motion. It is admitted before this court by Mr. Aspi Chinoi, the learned senior counsel appearing for the respondent No.4 that the objection of non compliance of section 164 of the MCS Act, though raised while opposing the said Notice of Motion, the same was given up then for the time being for hearing of the said Notice of Motion. He submitted that the said objection of non compliance of section 164 of the MCS Act was given up for the time being for hearing of said Notice of Motion because, according to him, had it been pressed by the defendants, the matter would have come under section 9-A of the Code of Civil Procedure (Maharashtra Amendment) and it would then have been necessary to record evidence for disposal of the said objection. The procedure under Section 9-A requires that the issue in respect of jurisdiction and/or maintainability of the suit at the time of granting and/or hearing interlocutory applications is required to be heard finally by recording evidence. Therefore, the learned senior counsel submitted that had the said issue been pressed at that time, the hearing of the Notice of Motion would have prolonged and, therefore, the said objection was not pressed at that point of time. According to him, this was done as the defendants were in a hurry to get the said Motion disposed of as there was an ad-interim order running against the defendants. However, the learned senior counsel for the plaintiffs submitted that the objection was waived and given up by the defendants. We need not enter into this controversy at this stage because we find that it is not necessary for us to adjudicate on this point at this stage in this appeal. However, since the submissions have been made in this regard, we have recorded it. Notice of Motion No.3950 of 2005 was heard by the learned single Judge under the above referred circumstances and the learned single Judge granted relief as prayed for in the said Notice of Motion in favour of the plaintiff. However, the defendants preferred Appeal No.496 of 2007 as against the said order passed in Notice of Motion No.3950 of 2005. The said Appeal was disposed of by the Division Bench (R.M.S. Khandeparkar & P.B. Majmudar, JJ.) of this court on 11th June, 2008. The Division Bench allowed the said Appeal and set aside the impugned order and dismissed the Notice of Motion No.3950 of 2005. The ad-interim relief which was running against the defendants was not continued by the Division Bench and the prayer made to that effect was also rejected. However, the learned counsel for the defendants No.1, 4, 7 and 11 had made a statement before the court that the defendants would not create any third party rights in the property in question for a period of four weeks from the date of the said order. The plaintiff, being aggrieved by the said judgment and order passed in Appeal No.496 of 2007 dated 11th June, 2008, preferred Special Leave Appeal (Civil) No.15654 of 2008 before the Apex Court. The undertaking given by the defendants No.1, 4, 7 and 11 was continued by the Apex Court, initially when the notice was issued in the said SLP and it has been continued when the SLP was disposed of by the Apex Court by order dated 5th February, 2009 which was subsequently modified by the Apex Court. Suffice it to state at this stage that the undertaking given by the defendant No.4 that the defendant No.4 will not create any third party interest is continuing as against defendant No.4 even today. The Apex Court merely granted injunction in invitum. The Apex Court has further granted liberty to the defendant No.4 to move the Apex Court for modification of the said undertaking in case the Appeal preferred against the Chamber Summons No.587 of 2007 viz. the present Appeal No.78 of 2009 is disposed of in favour of the defendant No.4. While disposing of the above SLP, the Apex Court has directed this court to dispose of the Suit No.3376 of 2005 expeditiously without being influenced by the orders of the Division Bench and Single Judge in the Notice of Motion referred to above. The Apex Court has also directed, having taken note of the fact that the Appeal as against Chamber Summons No.587 of 2007 viz. The t Appeal is pending before this Court, that the Appeal should be disposed of as expeditiously as possible, preferably within a period of one month with liberty as stated above, for modification of the undertaking if the present appeal is decided in favour of the defendant No.4. Under these circumstances, we have heard the present Appeal filed by the plaintiff.;