SHIVKISHANversusSUJATA TARACHAND MAKHIJA AND ORS.

796                       [2019]
               SUPREME COURT     12 S.C.R. 796
                              REPORTS                    [2019] 12 S.C.R.


A                               SHIVKISHAN
                                       v.
                SUJATA TARACHAND MAKHIJA AND ORS.
                     (Civil Appeal Nos.7652-7653 of 2019)
B                           SEPTEMBER 27, 2019
           [UDAY UMESH LALIT AND VINEET SARAN, JJ.]
             Maharashtra Cooperative Societies Act, 1960 –s.91 – First
      Respondent (the disputant), an employee of Life Insurance
      Corporation of India (LIC) opted for Plot No.2 in the Cooperative
C
      Housing Society, meant principally for such employees– Allegedly,
      in terms of seniority, she was entitled to be allotted the said Plot,
      however it was illegally allotted to the appellant – Interim order
      passed by the Cooperative Court injuncting the Society from
      making any allotment in respect of Plot No.2– Despite the order,
D     registered sale deed executed by the Society in favour of the
      appellant – Plea of the Society that it was the husband of the
      disputant who was the original depositor and that she had attended
      the meeting dtd. 18.12.88 not in her own capacity but as
      representative of her husband – Cooperative Court inter alia found
      that the the disputant could not claim to be the Member/deemed
E     Member of the Society and thus, was not entitled to any relief,
      however, her husband was entitled to get sale deed executed after
      getting all the formalities completed – Cooperative Appellate Court
      held that the Disputant was senior Member of the Society as against
      the appellant and was entitled to Plot No.2 opted by her – High
F     Court affirming the findings of the Appellate Court inter alia held
      that the allotment of plot in favour of the appellant was illegal and
      directed the Society to follow the procedure in accordance with law
      for allotment of the plot – Held: In view of the fact that the
      Disputant was an employee of LIC and had admittedly deposited
      Rs.4,750/-, her status was clearly that of Depositor –Thus, in the
G     face of such admission and the findings rendered by the Courts
      below, the Disputant was a Depositor of the Society and like all
      other Depositors was entitled to and had attended the meeting dtd.
      18.12.88 in her own right – At no stage the husband of the
      Disputant claimed that he was the Depositor in his own right and
      entitled to allotment of any Plot – Money deposited by all the
H
                                      796
SHIVKISHAN v. SUJATA TARACHAND MAKHIJA AND ORS.                       797


Depositors including the Disputant helped the Society to have the     A
requisite land whereafter the Plots could be carved and allotted
to the concerned members – On the other hand, at no stage the
Appellant made any such contribution – He was neither present
in the meeting dtd.18.12.88 nor had he submitted any application
along with requisite fees – Disputant opted for Plot No.2 and as
on that date there was nobody else apart from the Disputant who       B
opted for the said plot – These aspects of the matter be taken into
account by the authorities while acting in terms of the direction
issued by the High Court and the allotment be restricted to those
who exercised their option as on 18.12.88 and were not otherwise
allotted any plot and had not accepted such allotment.                C
      Dismissing the appeals, the Court
       HELD: 1.1 In the face of the admitted position that she
had deposited Rs.4750/- and the findings rendered by the Courts
below, it has to be concluded that the Disputant was a Depositor
of the Society and like all other Depositors was entitled to and      D
had attended the meeting dated 18.12.1988 in her own right. At
no stage the husband of the Disputant claimed that he was the
Depositor in his own right and entitled to allotment of any Plot.
Further, it is not the case of the Disputant and her husband that
over and above the entitlement of the Disputant, her husband          E
is also entitled to an additional Plot. The submission was always
that there was only one entitlement, in exercise of which the
option was given for Plot No.2. If between the husband and wife,
the claim has always been only with respect to one entitlement,
it really made no difference whether the Disputant attended the
                                                                      F
relevant meeting in her own right or as a representative of her
husband. The fact of the matter is, an option was exercised in
favour of Plot No.2 and the issue is whether such option ought
to have been allowed and accepted or not. The communications
addressed by the Society were, normally in printed format where
the name of the addressee would be written after the printed          G
prefixes “Mr./Mrs.” and many such communications were
addressed to “Mr./Mrs. Makhija”. The record also shows that
some meetings were attended by the Disputant while some were
attended by her husband. But, considering the facts that the
Disputant was an employee of Life Insurance Corporation of India      H
798           SUPREME COURT REPORTS                     [2019] 12 S.C.R.


A     and had deposited Rs.4,750/-, her status was clearly that of a
      Depositor. It is a matter of record that the Depositors had
      collectively raised funds with the help of which, the consideration
      for purchase of the land over which the layout was to be formed,
      could be arranged. All the required and incidental expenses thus
B     came from the funds raised by the Depositors and to that extent
      the Disputant had definitely made her contribution. The money
      deposited by all the Depositors including the Disputant had thus
      helped the Society to have the requisite land whereafter the Plots
      could be carved and allotted to the concerned members. On
      the other hand, at no stage the Appellant had made any such
C     contribution. [Paras 22-24] [816-G-H; 817-A-F]
            1.2 It is accepted that the Appellant was neither present
      in the meeting dated 18.12.1988 nor had he submitted any
      application along with requisite fees. It is also accepted that he
      had not deposited anything by way of deposit with the Society
D     before or on 18.12.1988, with the help of which the land could
      be purchased by the Society. It is true that the tenor of the
      Resolution passed by the depositors on 24.06.1984 shows that
      no depositor was willing to take a bigger Plot but that resolution
      was passed in the year 1984 and it was four years thereafter that
E     the day had arrived for exercise of choices or options. For the
      employees of Life Insurance Corporation it may be that the
      Depositors at an earlier stage were not in a position to arrange
      requisite funds and if the Society had to depend upon funding
      from an outsider, on the strength of such resolution, the Society
      could have garnered the requisite finances from an outsider. But
F
      the facts on record disclose that no such funding from any
      outsider was required to arrange the requisite finance towards
      consideration for purchase of land. If no outsider had contributed
      in any manner there is no reason why a Plot could be reserved
      for such an outsider disregarding the claim of a Depositor with
G     the help of whose money the Society had reached the stage
      where the Plots could be allotted to the concerned. In a situation
      where none of the other Depositors had even made a claim with
      respect to Plot No.2 and if the Disputant had exercised such
      option, the Plot had to be allotted to the Disputant. No outsider
H     could have had a better claim as against any Depositor as
SHIVKISHAN v. SUJATA TARACHAND MAKHIJA AND ORS.                     799


regards to that Plot. As on 18.12.1988, the Appellant had not       A
even submitted his application form for membership whereas all
the Depositors including the Disputant had submitted such forms
along with requisite fees for membership. Even on this count,
the claim of the Disputant stands on a better footing as against
the Appellant. [Paras 25, 26] [817-G-H; 818-A-E]                    B
      1.3 It was accepted by the then Secretary in his cross-
examination that:- a) the Appellant had not paid any amount
towards the cost of shares of the Society and admission fee
towards membership of the Society at any time before or on
18.12.1988. b) the notice calling the meeting dated 18.12.1988      C
had not mentioned that choice to be exercised by the Depositors
was restricted to plots other than Plot Nos. 1 and 2. It was also
accepted by the counsel for the Appellant that neither any
invitation was received by the Appellant to attend the meeting
nor did the Appellant attend the meeting and no payment was
                                                                    D
made by the Appellant before 18.12.1988. No document was
produced or relied upon to say that there was any allotment of
Plot Nos.1 and 2 in favour of anybody before the meeting was
actually held on 18.12.1988. [Paras 27-29] [818-F-H; 819-A-B]
      1.4 In the circumstances, the conclusions drawn by the        E
High Court that the allotment of Plot No.2 in favour of the
Appellant was illegal and that the Resolution passed by the
Society in its meeting dated 25.03.1990 and the sale deed
executed by the Society on 25.04.1989 were required to be
quashed, are absolutely correct and fully justified. As regards
other conclusions drawn by the High Court, anything need not        F
be said as the Petition for Special Leave to Appeal filed by the
Disputant was disposed of by this Court on 15.01.2016. The
Disputant was a Depositor of the Society; that she was entitled
to attend the meeting dated 18.12.1988 in her own right; that
she had preferred requisite application for membership and had
                                                                    G
paid requisite fees on 18.12.1988 itself; that she had opted for
Plot No.2 and as on that date there was nobody else apart from
the Disputant who opted for said Plot No.2. These aspects of
the matter shall be taken into account by the concerned
authorities while acting in terms of direction (v) issued by the
High Court which are quoted by us in para 15 and the allotment      H
800                SUPREME COURT REPORTS                             [2019] 12 S.C.R.


A     shall be restricted to those who had exercised their option as
      on 18.12.1988 and were not otherwise allotted any plot and had
      not accepted such allotment. [Paras 30-33] [819-E-H; 820-A-B]
               Sujata Tarachand Makhija vs. Shivkishan and Ors.
               Order of Supreme Court dated 15.01.2016 in
B              SLP(C)No.136 of 2016 – referred to.
            CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7652-
      7653 of 2019.
            From the Judgment and Order dated 21.09.2015 of the High
      Court of Judicature at Bombay, Nagpur Bench, Nagpur in Writ Petition
C     No. 1460 of 2006 and order dated 01.08.2016 in Miscellaneous Civil
      Application No. 206 of 2016 in Writ Petition No. 1460 of 2006 (D).
            Anupam Lal Das, Sr. Adv., Parthiv K. Goswami, Ms. Diksha
      Rai, Ms. Palak Mahajan, Ishan Bisht, Ratnesh Kumar, Anirudh Singh,
      Krishanu Barua, Ms. Ritu Sharma, Advs. for the Appellant.
D
            Vinay Navare, Sr. Adv., Ms. Sushma V. Deshpandey, Ms. Gwen
      Karthika, Ms. Abha R. Sharma, Gagan Sanghi, Rameshwar Prasad
      Goyal, Rajat Singh, Lokender Raghav, Farrukh Rasheed, Chander
      Shekhar Ashri, Advs. for the Respondents.
               The Judgment of the Court was delivered by
E
               UDAY UMESH LALIT, J.
               1. Leave granted.
             2. These appeals challenge the decisions of the High Court1,
      namely, (i) Judgment and Final Order dated 21.09.2015 passed in Writ
F     Petition No.1460 of 2006 and; (ii) Final Order dated 01.08.2016 passed
      in Miscellaneous Civil Application No.206 of 2016 in Writ Petition No.
      1460 of 2006(D).
             3. The facts leading to the filing of Dispute No.136 of 1989 under
      the provisions of Section 91 of the Maharashtra Cooperative Societies
G     Act, 1960 (‘the Act’ for short) from which present appeal has arisen,
      as culled out from the decision of the Cooperative Court are as under:-
               “The opponent No.1 is a duly registered Cooperative Housing
               Society having its registered office at Sneha Nagar, Nagpur. The
      1
H         High Court of Judicature at Bombay, Nagpur Bench, Nagpur
SHIVKISHAN v. SUJATA TARACHAND MAKHIJA                                   801
     AND ORS. [UDAY UMESH LALIT, J.]

opponent No.2 is the then Secretary of the opponent No.1 Society.        A
The disputant is an employee of Life Insurance Corporation India
and is working at Nagpur. The employees of the Life Insurance
Corporation are admittedly the members of the opponent No.1
Society and have a preferential claims over other members who
are not working in the L.I.C. It is alleged that opponent No.2           B
being a Secretary has indulged himself in illegal activities including
misappropriation of funds of the Society for his own use. It is
also alleged that the opponent No.2 has used to take the amounts
from the members of the Society in cash and used to
misappropriate the same as alleged in para – 1 & 2 of the dispute.
                                                                         C
It is further stated that as per policy of the Society, the senior
members shall have preferential claim in the matter of allotment
of plots of the Society. The disputant with an intention to get the
allotment of plot in the Society, paid certain amounts on dated 5-
11-1981 vide receipt No.334 on dated 9-9-1983; and accordingly,
the Society assured the disputant that he shall be allotted the plot     D
admeasuring 3000 Sq. Ft. in the Layout in Kh. No.152/3 of Mouja
Sornalwada on dated 18-12-1988, disputant submitted her
application for the membership/allotment of shares with the Form
– ‘E’ & ‘I’ to the Secretary of the society. In the: said meeting,
she was allowed to give her choice for allotment of plot to her,         E
as per the seniority list, then prepared on dated 15-12-1988,
wherein her name appears at Sr. No.5. On the same day, the
disputant also deposited an amount of Rs.105/- as per demand
of the society. But neither receipt of the said amount was issued
to her nor society has communicated any decision within 3                F
months from the date of receipt of her application for membership,
and hence, she deemed to be a member of the opponent No.1
Society; and as such, she is entitled to claim a plot in dispute. It
is further alleged that the plot No 2 has been wrongly allotted to
the opponent No.3, who claims to be a member of opponent No.1
                                                                         G
Society. It is also stated that disputant is a senior member to the
opponent No.3. However, the society has illegally executed the
sale deed of the said plot on dt. 25-10-1989 in favour of opponent
No.3, who is not eligible to claim the said plot. In view of this, it
is stated that the allotment of plot in dispute to the opponent No.3
by society vide Resolution No.5 passed in A.G.M. in dated 25-            H
802            SUPREME COURT REPORTS                         [2019] 12 S.C.R.


A           3-1990, is illegal and required to be quashed and set aside, as
            alleged in Para 5 (a) & (b) of the dispute. It is also stated that
            the disputant deposited the amount of Rs.3,000/- on dt. 5-11-1981,
            vide receipt No.334, Rs.4,750/- as per letter of the society dt. 9-
            9-1983 by cheque No.105998, dt, in 19-8-83; Rs.2500/- as per
B           letter of opponent No.2 dt.16-10-1987; Rs.3000/- by self cheque
            No.503079, dt. 17-9-87: Rs.5000/- as per letter dt. 14-10-88
            Rs.105/- or on dt.18-12-88. Thus, it is stated that the disputant
            has paid in all total amount of Rs.18,355/- to the opponent No.1
            society from time to time as alleged and sated in para – 5[c] of
            the dispute. It is further alleged that in the meeting dt. 18-12-
C
            1988, the Secretary has allotted the plots according to his own
            choice to various members of the society excluding plot Nos.1
            & 2 along with other plots. It is further stated that the disputant,
            being a senior member is entitled to claim plot No plot No plot 2
            in the said layout. In spite of this, the opponent Society illegally
D           not allotted the said plot to her and hence, she issued a notice
            through Advocate on dt. 23-12-1988 to the opponents calling upon
            them to allot the plot No.2 and execute the sale deed for the
            same. However, till filing of the dispute, the disputant did nether
            receive any reply to the said notice nor any positive action by
E           the society as alleged in para 6 to 10 of the dispute and hence,
            disputant constrained to file this dispute.”
             4. The Disputant namely the first Respondent herein thus alleged
      that Plot No.2 was illegally allotted to the Opponent No.3 (the Appellant
      herein) and prayed that the Resolution No.5 dated 25.03.1990 as well
F     as the sale deed dated 25.10.1989 executed in favour of the Appellant
      be set aside. It was submitted:-
              a) The Disputant, an employee of Life Insurance Corporation
                 of India had been paying amounts as stated above to the
                 Society in the capacity of a Member.
G             b) She had deposited an amount of Rs.18,355/- from time to
                 time till the Lay-out was approved on 01.12.1988.
              c) In the meeting held on 18.12.1988 she had submitted her
                 application for membership/allotment of shares in Forms ‘E’
                 & ‘I’, had deposited a sum of Rs.105/- as demanded by
H                the Society and had opted for said Plot No.2.
       SHIVKISHAN v. SUJATA TARACHAND MAKHIJA                               803
            AND ORS. [UDAY UMESH LALIT, J.]

        d) Though, in terms of seniority, she was entitled to be allotted   A
           Plot No.2, the Secretary of the Society had allotted said Plot
           wrongly and illegally to the Appellant.
      She claimed following reliefs:-
      “(b) direct the opponents to allot Plot No.2 to the disputant in
      scheme No.2 at Khasra No. 152/3 of Mouza-Somalwada, Nagpur            B
      and further execute the sale deed in respect of the said plot in
      favour of the disputant and hand over the possession of the said
      plot to the disputant.
      (c) prohibit the opponents permanently from allotting Plot No.2
      in Scheme No.2 at Khasra No.152/3 of Mouza – Somalwada,               C
      Nagpur or dealing with the same in any manner with any other
      person that the disputant, either themselves or through their
      servants, agents, attorneys etc.”
      5. According to the record, an interim order was passed on
25.04.1989 by the Cooperative Court at Nagpur in said Dispute injuncting    D
the Society from making any allotment in respect of Plot No.2.
However, despite such interim order, a registered sale deed was
executed by the Society in favour of the Appellant in respect of said
Plot on 25.10.1989. Later, in the General Body Meeting of the Society
held on 25.03.1990 the allotment of Plot No.2 and the execution of sale
deed in favour of the Appellant was confirmed vide Resolution dated         E
25.03.1990.
      6. Thereafter, by way of amendment paragraphs 5(a), (b) and
(c) were inserted in the Dispute Application and it was prayed that the
Resolution dated 25.03.1990 and the sale deed dated 25.10.1989 be
quashed and set aside. Said paragraphs 5(a), (b) and (c) were:-             F
      “5.(a) In the meeting of the Society held on 18-12-1988 at Jagat
      Restaurant, the disputant submitted her application for
      membership/allotment of shares with Form “E” and “I” to the
      Secretary of the Society, thereafter she was allowed to give her
      choice for allotment of plot to her as per the seniority list then    G
      prepared on 18-12-1988 wherein her name appears at Sr. No.5.
      Disputant also deposited an amount of Rs.105/- on 18-12-1988
      as demanded by the Society. However, no receipt was then
      issued to her. That the opponent No.1 Society has not
      communicated any decision to the disputant within three months
      from the date of receipt of her application for membership            H
804      SUPREME COURT REPORTS                       [2019] 12 S.C.R.


A     submitted by her on 18-12-1988 and as such she has become
      deemed member of the opponent No.1 Society and as such she
      is entitled to claim the plot in dispute.
      5. (b) Plot No.2 has been wrongly allotted to opponent No.3 who
      claims to be member of opponent No.1 society by respondent
B     on dt. 25-3-1990 passed by the A.G.M. of the opponent No.1
      Society superseding the claim of the disputant for the said plot
      being senior to him. It is now learnt that the Society has also
      executed sale deed on 25-10-1989 of the said plot in favour of
      opponent No.3 who is not eligible to claim the said plot. However,
      the date on which the said sale deed was executed is not
C     disclosed by the present Secretary and President of opponent
      No.3 by the opponent No.1 Society vide Resolution No.5 dated
      25-03-1990 passed by the Annual General Meeting of the Society,
      be declared illegal and it be quashed and set aside. Similarly,
      the sale deed of the said plot, executed on 25-10-1989 by the
D     opponent No.1 Society in favour of the opponent No.3 be also
      declared illegal and it be quashed and set aside with direction to
      the opponent No.1 Society to allot the said plot to the disputant
      and execute proper transfer deed by way of sale deed and/or
      lease deed in her favour and opponent No.1 and 2 be directed
      to deliver vacant possession of the said plot to the disputant.
E
      5. (c) That the disputant deposited an amount of Rs.3000/- on
      5-11-1981 vide receipt No.334. That the disputant received letter
      dated 9th Sept., 1983 from the Secretary of opponent No.1
      Society asking her to pay Rs.4750/- within 20 days. This amount
      was termed as balance amount. Accordingly, the disputant paid
F     Rs.4750/- to the opponent No.1 Society by cheque No.105998
      dt. 19-9-1983 drawn on Central Bank of India, Kingsway Br.
      Nagpur, within a stipulated time limit, and the said cheque had
      been encashed by the society on 6-12-1983. However, no receipt
      was issued by the Society for the said payment received by it
      from the disputant. That the disputant received letter dt. 16-10-
G
      1987 from Shri N.H. Deshpande, Secretary of opponent No.1
      Society, asking her to pay an amount of Rs.2500/- within a week.
      This payment was specified as dues – 1) N.A taxes, 2)
      Registration charges, 3) Membership fee and 4) Other
      miscellaneous expenses. Accordingly, the disputant paid Rs.2500/
H     - in cash to opponent No.2 as Secretary of opponent No.1 society
       SHIVKISHAN v. SUJATA TARACHAND MAKHIJA                                  805
            AND ORS. [UDAY UMESH LALIT, J.]

      within one week of the receipt of the said amount recovered by           A
      him till this dated. The disputant further paid an amount of
      Rs.3000/- to the opponent No.2 as Secretary of opponent No.1
      Society, by self cheque No.503079 dt.17-9-1987 drawn on Central
      Bank of India, Branch, Nagpur. The said cheque was encashed
      by opponent No.2 and has received the said amount from the
      Bank, However, no receipt is issued till this dated for the said         B
      payment made by the disputant. Disputant further received letters
      dated 14-10-1988 followed by letter dated 29-10-1988 from
      Secretary of the opponent No.1 Society asking her to pay
      Rs.5000/- as development charges to N.I.T. Disputant paid an
      amount of Rs.5000/- as opponent No.2 by an intermediatory by             C
      withdrawing amount of self cheque No.0738632 dt. 26-10-1988
      drawn on Canara Bank, Ramdaspeth, Nagpur. However, no
      receipt is issued by opponent No.2 for the said payment received
      by him. Similarly disputant paid an amount of Rs.105/- to the
      opponent No.1 Society in the meeting held on 18-12-1988 at Jagat
      Restaurant, Nagpur. No receipt for this payment was also issued          D
      to the disputant has paid an amount of Rs.18355/- to the opponent
      No.1 society under specified heads, as and when demanded by
      the society, from time to time, an amount of Rs.3000/- was
      refunded by the Secretary by Cheque No.7674 drawn on Nagari
      Sahakari Bank, Nagpur and cashed on 22-03-1982. Inference                E
      drawn in preliminary objection with regard to this refund, by the
      Secretary on 18-01-1989 in this Court, are neither valid nor
      correct.”
       7. In the written statement dated 03.05.1991 filed on behalf of
the Society, it was asserted that the husband of the Disputant was the
                                                                               F
original depositor; that the Disputant had initially made a deposit of
Rs.3,000/- which was withdrawn subsequently and as such, she had
ceased to be a depositor; that she had attended the meeting dated
18.12.1988 not in her own capacity but as representative of her husband.
It was asserted:-
                                                                               G
      “As is already submitted by the opponent in the forgoing para,
      husband of the disputant is the Depositor of the opponent society
      and as such the disputant was allowed to attend the said meeting
      as a representative of her husband and not as a member. As such
      the disputant does not acquire any right in the affairs of the society
      by virtue of mere attendance in the meeting held on 18-12-1988.          H
806            SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A           It is specifically denied that the disputant submitted an application
            for membership or allotment of shares with Form-E and I to the
            then Secretary of the Society the opponent No.2. It is stoutly
            denied that the disputant deposited an amount of Rs.105/- to the
            society towards membership. It is further submitted that as on
            the date of the said meeting the disputant had already ceased to
B           the member of the society and as such she had no right to give
            her choice for the allotment of plots. The alleged choice by the
            disputant was on behalf of her husband who admittedly is the
            depositor of the society. It is specifically denied that the name
            of the disputant appears at Serial Number 5 in the seniority list.
C           It is also submitted that having once known that the disputant
            has ceased to a member of the society about 6½ years prior to
            the meeting that was held on 18-12-1988, the disputant is trying
            to mislead to this Hon’ble Court by claiming that she was
            readmitted as the member of the society by the principle of
            deemed membership. At the cost of repetition, it is denied that
D           the disputant deposited an amount of Rs.105/- to the society since
            the disputant had not applied for membership or rather did not
            have any right to apply so, the society did not communicate
            anything to her. The alleged payment by the disputant to the
            society was on behalf of her husband and as such no right is
E           carved out in favour of the disputant as a member of the
            society………….
            It is specifically denied that the disputant was sent a letter dated
            9th September, 1983 asking to pay Rs.4750/-. It is also denied
            that the disputant paid an amount of Rs.4750/- on her behalf. It
            is submitted that the said transaction was between the husband
F           of the disputant and the opponent Society and the disputant has
            no business with the said transactions. It is further submitted
            that the accounts of the opponent Society are audited upto dated
            and all receipts had been passed from time to time which fact is
            cleared from the audited accounts.”
G            8. Mr. N.H. Deshpande, the then Secretary of the Society also
      filed his written statement on 06.10.1994 stating inter alia:-
            “It is submitted that disputant preferred to withdraw her
            membership of the Society. The Society refunded her
            membership fees and deposit to the disputant vide Cheque
H           No.7678 for Rs.3,000/- drawn on Nagpur Mahila Nagrik Sahakari
      SHIVKISHAN v. SUJATA TARACHAND MAKHIJA                                 807
           AND ORS. [UDAY UMESH LALIT, J.]

     Bank. The said cheque was encashed by the disputant on                  A
     22.3.1982. As such the disputant ceased to be the member
     depositor of the opponents society and claim any plot much less
     to give a preference for it. Contents of this para so far as they
     relate to the matter of record are not disputed. It is specifically
     denied that the disputant has preferncial claim to get the plot No.2.
     It is submitted that the plot No.2 was never allotted to the            B
     disputant as she was not the depositor of the society when
     allotment was made.”
                                  …
     It is specifically denied that the disputant submitted an application   C
     for membership or allotment of shares with Form-E and I to the
     then Secretary of the society, the opponent No.2. It is stoutly
     denied that the disputant deposited, an amount of Rs.105/- to the
     society towards membership.
                                  …
                                                                             D
     The alleged choice by the disputant was on behalf of her husband
     who admittedly is the depositor of the Society.
                                  …
     It is denied that the opponent No.1 issued letter on 9.9.1983,
     asking her to pay Rs.4,750/- within 20 days as alleged. It is denied    E
     that the disputant has deposited the alleged amount according to
     the direction of this answering opponent. It is denied that the
     opponent No.2 issued a letter on 6.10.1987 to the disputant,
     asking her to deposit an amount of Rs.2,500/- within a week for
     the purpose of a(a) N.A. Taxes, (b) Registration charges, (c)
     Membership fee and other miscellaneous expenses as alleged.             F
     It is specifically denied that the disputant has paid Rs.2,500/- in
     case to Opponent No.2, as Secretary of opponent No.1 Society
     as alleged.”
       9. Said Mr. N.H. Deshpande examined himself as witness and
in his examination-in-chief stated as under:-                                G
     “As Smt. Makhija, the Plaintiff who had withdrawn her deposit
     sometime in the year 1982 and hence she did not have any right
     to remain present in the meeting held on 18.12.1988, as a
     depositor member. However, the Society allowed her to remain
     present in the meeting as her husband’s representative. All the         H
808      SUPREME COURT REPORTS                         [2019] 12 S.C.R.


A     depositor members had given their options for the plots except
      Plot Nos.1 and 2. Smt. Makhija, however, gave her option for
      Plot No.2. At that time, the Society suggested her to give her
      option for any other plot except Plot Nos.1 and 2 as per the
      criteria decided earlier. However, she refused to change her
      option.”
B
      In his cross-examination the witness however stated:-
      “It is true that prior to 18.12.1988, I and Plaintiff were working
      together in LIC Office…
      …The Plaintiff’s husband was working as a Professor in G.S.
C     Commerce College.
                                   …
      “I had issued a Notice of Meeting to be held on 18.12.1988, under
      my signature. A copy of the said Notice is kept at Ext.D-1. The
      entire matter in the said Notice is correct. Now, I have been
D     shown the Ext.D-1. It is a copy of the proceedings of the meeting
      dated 18.12.1988. It is correct. It is true that only 21 plot
      depositors were present for this meeting. It is also true that the
      Respondent No.3 was not present for this meeting. If it is the
      contention that nowhere in the Notice at Ext.D-1, it is mentioned
E     that choice for a plot should be given by depositors except Plot
      Nos.1 and 2, the contention is correct.
                                   …
      It is true that the said three forms (Ext. O-2 and O-3) were not
      given in the said meeting held on 18.12.88 by her husband.
F
                                   …
      If it is the contention that the Respondent No.3 had not paid
      rs.105/-, vis. Rs.100/- towards cost of shares and Rs.5/- as
      admission fee during the meeting on 18.12.88, the contention so
      made is correct. It is true that the petitioner was present for
G     the meeting held at Hotel Jagat on 18.12.88. If it is the contention
      that the Petitioner had filled in and signed the Share Application
      Form and Forms ‘E’ and ‘I’ during the meeting on 18.12.88, and
      had headed over the same to me, the contention is correct.
      Similarly, if it is the contention that the Petitioner had made
H     payment of Rs.105/- to the Society, the said contention is correct.
       SHIVKISHAN v. SUJATA TARACHAND MAKHIJA                                 809
            AND ORS. [UDAY UMESH LALIT, J.]

      Question: On which date the allotment of the said Plot Nos.1            A
      and 2 was made and by whom?
      Reply: I myself have allotted both these plots. However, I do
      not remember the date on which the allotment of these two plots
      was made ….
                                                                              B
      If it is the contention that even though the Hon. Court had passed
      an order on 25.4.89 in respect of allotment of the said Plot No.2
      – placed in this suit at Exh. 5, I have allotted the said Plot to the
      Respondent No.3 on 25.10.89, such contention is correct.
                       …          …          …                                C
      Now I have been shown the Exh. D-6 which is a Xerox copy
      of the letter dated 9.9.83 written by the Society to the Plaintiff.
      My signature is on the original letter. In the said letter, I have
      informed the Petitioner to pay an amount of Rs.4,750/- within a
      period of 20 days which is correct. If it is the contention of the      D
      Plaintiff that the same amount was paid to me by a cheque and
      that as the Witness says the said amount was paid to me for the
      Society by cheque, the said cheque was deposited in the Society’s
      account which has been cleared, the contention is correct.
                       …           …         …                                E
      I am shown Exh. D-11. It is a copy of the proceedings of the
      meeting of Plot Depositors held on 18.12.88. If it is the contention
      that the said proceedings do not clearly mention that the plot
      depositors should given their choice for allotment of plots other
      than Plot Nos.1 and 2, it is correct.”                                  F
       10. After considering the record, the Cooperative Court found
that the Disputant had proved that she had paid a sum of Rs.4,750/- to
the Secretary of the Society; that she had handed over the membership
application Forms ‘E’ & ‘I’ and requisite fees to the then Secretary of
the Society in the meeting dated 18.12.1988 but the Disputant could           G
not claim to be the Member or deemed Member of the Society and
that she was not entitled to any relief as prayed for. However, the
Cooperative Court observed that her husband was entitled to get sale
deed executed in respect of Plot No.26 after getting all the formalities
completed. The Dispute Application was thus disposed of on 31.01.2004.        H
810            SUPREME COURT REPORTS                        [2019] 12 S.C.R.


A            11. The Disputant being aggrieved, filed Appeal No.11 of 2004
      in the Cooperative Appellate Court, Nagpur, under Section 97 of the
      Act. The Cooperative Appellate Court considered the rival submissions
      and observed:-
            “(11) Admittedly the meeting of the Depositors dated 8-12-88 is
B           the first meeting after the layout plan was sanctioned by the NIT
            on 1-12-88. There is no document to show that before 18-12-88
            that some plots were reserved for the senior members or for the
            special category of the members. This being the first meeting of
            the depositors it was not possible that the plot No.2 was already
C           allotted to some other depositor members. When the disputant
            had exercised her option for plot No.2 also it cannot be said that
            nobody was interested for the plot No.2” as mentioned in the
            minute of the meeting dated 18-12-88 Ex-D-11. I am, therefore,
            not inclined to accept the case of the respondent society that plot
D           No.2 was not available for allotment in the meeting dated 18-
            12-88.
            (12) It is now to consider whether the disputant was present in
            the meeting dated 18-12-88 on behalf of her husband. Admittedly
            according to the disputant she had submitted her application for
E           membership/allotment of shares with form “E” & “I” to the
            secretary of the society and thereafter she was allowed to give
            her choice for allotment of the plot as per seniority list then
            prepared. She has also deposited the amount for Rs.105/- on 18-
            12-88 required for membership. The then secretary opponent
            No.2 has deposed at Ex.91 and admitted that the disputant was
F
            present in the meeting dated 18-12-88 and she had submitted
            application for membership for herself with form “E” & “I” and
            had deposited the amount of Rs.105/- for which no receipt was
            given to her. He had not given the receipt to any of the depositors
            who had submitted their forms for membership on that date.
G           Upon this evidence the learned trial court has held that the
            disputant has proved her case that she submitted her application
            along with form “I” & “E” and paid the entrance fee Rs.5/- and
            share amount of Rs.100/- total Rs.105/- on 18-12-88. The
            findings have not been challenged by the opponents by filing the
H           appeal.”
       SHIVKISHAN v. SUJATA TARACHAND MAKHIJA                                 811
            AND ORS. [UDAY UMESH LALIT, J.]

      12. It held that since the application for membership was given         A
by the Disputant on 18.12.1988 and she was not communicated any
decision in respect of her application, by virtue of Section 22 of the
Act she became deemed Member of the Society after the expiry of
three months; and on the other hand, the Appellant and certain other
persons were admitted as Members of the Society only in the meeting
                                                                              B
dated 25.03.1990; and as such, the Disputant was a senior Member of
the Society as against the Appellant and was entitled to Plot No.2 opted
by her. The Cooperative Appellate Court thus set aside the order dated
31.01.2004 passed by the Cooperative Court and allowed Dispute
No.136 of 1989 with following directions: -
      “(4) It is declared that the allotment of plot No.2 in favour of        C
      opponent No.3 by Resolution No.5 dated 25-3-1990 passed in
      the Annual General Meeting of the opponent No.1 Society and
      the sale deed dated 25-10-1989 executed by the opponent No.1
      in favour of opponent No.3 in respect of plot No.2 are illegal
      and hence those are quashed and set aside.                              D
      (5) The opponent No.1 society is directed to allot plot No.2 to
      the disputant in scheme No.2 Khasra No. 152/3 of mouza-
      Somalwada, Nagpur and further directed to execute the sale deed
      in respect of said plot No.2 in favour of disputant on payment of
      remaining amount of cost of the plot giving credit to the amount        E
      deposited by her i.e. Rs.4750/- and handover possession of the
      said plot to her.”
       13. The Appellant being aggrieved, approached the High Court
by filing Writ Petition No. 1460 of 2006. While affirming the findings
of the Cooperative Appellate Court, the High Court observed as under:-        F
      “8.In the present case, it is undisputed that the society had neither
      taken any decision nor had communicated any decision to the
      respondent no.1 rejecting her claim for membership of the society.
      Therefore, as per the deeming fiction, the respondent No.1
      became member of the society after three months from the date           G
      of application. The respondent No.1 undisputedly submitted her
      application for membership on 18th December, 1988 and as the
      decision was not taken by the society within three months it is
      to be held that the petitioner became member of the society from
      18 th March, 1989. The contention of the society that the
      application of the petitioner came to be rejected in the meeting        H
812            SUPREME COURT REPORTS                        [2019] 12 S.C.R.


A           held on 25th March, 1990 cannot be accepted as the petitioner
            became member of the society much earlier and therefore,
            rejection of her application seeking membership, on 25th March,
            1990 is inconsequential.
                                        …
B
            It is clear from the pleadings and the evidence on the record that
            the claim of the respondent No.1 for Plot No.2 has not been
            considered by the society treating her to be a member of the
            society w.e.f. 18th March, 1989. Even if the submissions made
            on behalf of the petitioner that the option given by the respondent
C           No.1 for plot No.2 on 18th December, 1988 cannot be accepted
            on the ground she was not the member of the society on that
            date, it goes unexplained as to why the entitlement of the
            respondent No.1 for plot No.2 has not been considered when it
            came to be allotted to the petitioner on 25th March, 1990. The
D           respondent No.1 acquired the membership of the society by
            deeming fiction on 18th March, 1989 i.e. much before 25th
            March, 1990.
            In these facts, I find that the allotment of Plot No.2 in favour of
            the petitioner on 25th March, 1990 without considering the claim
E           of the respondent No.1, is illegal. The finding recorded by the
            Cooperative Appellate Court in this regard are proper.”
             14. The High Court, however, found that the Disputant could not
      have given option for Plot No.2 on 18.12.1988 as she was not a
      Member of the Society on that date; that she acquired the membership
F     rights on and after 18.03.1989; that allotment of Plot No.2 to the
      Appellant was without following proper procedure and was done
      arbitrarily and that after quashing the allotment it must be left to the
      Society to follow the procedure in accordance with law for allotting
      Plot No.2.
G           15. In the premises, the operative part of the order passed by
      the High Court was as under:-
            “i) the impugned orders are modified.
            ii) It is declared that the allotment of Plot No.2 in favour of the
H           petitioner is illegal.
       SHIVKISHAN v. SUJATA TARACHAND MAKHIJA                                     813
            AND ORS. [UDAY UMESH LALIT, J.]

       iii) The resolution No.5 passed by the society in its meeting held         A
       on 25th March, 1990 regarding the allotment of Plot No.2 in
       favour of the petitioner and the sale-deed executed by the society
       in favour of the petitioner on 25th October, 1989 in respect of
       the Plot No.2 are quashed.
       iv) The claim of the respondent No.1 for allotment of Plot No.2            B
       as made in the dispute is rejected.
       v) It is left open for the society to consider the allotment of plot
       No.2 in favour of its member, however, it is clarified that while
       allotting Plot No.2 the society shall follow the same procedure
       as was followed by it in the year 1988 while allotting the other           C
       plots to its members.
       The petition is partly allowed in the above terms. In the
       circumstances, the parties to bear their own costs.”
      16. The aforesaid judgment and order passed by the High Court               D
was challenged by the Disputant by filing Special Leave Petition (Civil)
No. 136 of 2016 which was dismissed by this Court on 15.01.2016 with
following observations2 :-
       “We find no ground to interfere.
                                                                                  E
       The special leave petition is dismissed. However, it goes without
       saying that the petitioner may avail the remedy granted by the
       High Court. In the event, petitioner is aggrieved by the order of
       the society, she may approach the High Court in accordance with
       law. In case she approaches the High Court, the matter will be
       dealt with expeditiously.”                                                 F

      17. In this appeal, we heard Mr. Anupam Lal Das, learned Senior
Advocate for the Appellant, Mr. Vinay Navare, learned Senior Advocate
for the Disputant and Mr. Gagan Sanghi, learned Advocate for the
Society.
                                                                                  G
       18. It was submitted by Mr. Lal Das, learned Senior Advocate
that in the meeting held on 24.06.1984 all the depositors had submitted
that none of them was interested in two big sized plots admeasuring
2
 Order dated 15.01.2016 in SLP(C)No. 136 of 2016 – Sujata Tarachand Makhija vs.
Shivkishan and Ors.                                                               H
814            SUPREME COURT REPORTS                        [2019] 12 S.C.R.


A     5000 square feet each and that the society could give those plots to
      persons other than the depositors. The Resolution to that effect was
      as under:-
            “(10) The depositors told that nobody among them is interested
            for such big size of Plot and the society should give it to the
B           persons other than us who are interested in it. Resolution to this
            effect has been passed in the meeting.”
             It was further submitted that (i) the husband of the Disputant
      was present in the meeting but no grievance or objection was raised
      either in said meeting or in subsequent meetings held on 27.08.1985,
C     28.09.1987 and 16.10.1988; (ii) the Disputant was not a member of the
      Society and therefore could not have made any choice and opted for
      Plot no.2; (iii) the Appellant was rightly inducted as member of the
      society and allotted Plot No.2; (iv) though the decisions of the Society
      in accepting the application of the Appellant for membership and
      allotment of Plot No.2 were ratified in the General Body Meeting dated
D
      25.03.1990, they would relate back to 18.12.1988 and the Appellant
      would be senior to the Disputant as member of the Society; (v) the
      application of the Disputant seeking membership of the Society in place
      of her husband was also rejected in said meeting dated 25.03.1990. Mr.
      Lal Das, learned Senior Advocate however fairly accepted that the
E     Appellant was not present in the meeting dated 18.2.1988 and that
      neither was he invited to attend said meeting nor had he submitted
      application form for membership and deposited requisite fees.
             19. Mr. Vinary Navare, learned Senior Advocate for the
      Disputant submitted that (i) she was the employee of Life Insurance
F     Corporation, not her husband; (ii) the Society was for the employees
      of Life Insurance Corporation; (iii) as found by the Courts below she
      had paid a sum of Rs.4750/- to the Secretary of the Society which was
      accepted by the then Secretary in his deposition though it was stoutly
      denied in the written statement filed earlier; (iv) she had handed over
      the membership application Forms ‘E’ & ‘I’ along with requisite fees
G     to the then Secretary of the Society in the meeting dated 18.12.1988
      which fact was also accepted by the then Secretary; (v) as Depositor
      of the Society, she was entitled to claim Plot No.2; (vi) in the meeting
      dated 18.12.1988 nobody else had claimed Plot No.2 and as such she
      had a better claim to said Plot as against anybody else; (vii) the
H     Appellant was neither a Depositor nor a member of the Society and
       SHIVKISHAN v. SUJATA TARACHAND MAKHIJA                               815
            AND ORS. [UDAY UMESH LALIT, J.]

as such could not be allotted Plot No.2 disregarding the claim of the       A
Disputant.
       20. Mr. Gagan Sanghi, learned Advocate appearing for the
Society placed the relevant record for perusal of the Court and submitted
that the amount of Rs.4750/- which the then Secretary had accepted
to have been received from the Disputant was credited to the account        B
of the Society.
      21. At this stage, the Resolution dated 18.12.1988 passed by
the Society needs to be extracted:-
      “The meeting of depositors held on 18/12/88 at 9:30 AM at Jagat
      Hotel Nagpur.                                                         C
      The following depositors attended the meeting
      (1) Shri Kelkar (2) Prayaji (3) Durani (4) Sh Kurve (5) Bhambani
      (6) L.G. Deshpande (7) Joshi (8) Kashikar (9) Shri Vaidya (10)
      Bhadagne (11) Patait (12) Sahu, (13) Sonone (14) Jairaman (15)
      Yawalkar (16) Prayagi (17) Nanoti (18) Arvikar (19) Smt Mishra        D
      (20) Smt Makhija on behalf of T D Makhija (21) Pillay
      The following Business transacted in meeting:
       (1) Last meeting minutes confirmed.
       (2) Shri Changde old member ex-Secretary presided over the
                                                                            E
           meeting.
       (3) The Secretary briefed the depositors about the developments
           in new layout. The Secretary requested Shri Changde to
           proceed further with allotment of plot.
       (4) The choice of allotment has been called for from every body
                                                                            F
           for 1st pref. IInd preference and IIIrd preference.
       (5) Accordingly everybody gave the choice and as per criteria
           decided earlier by depositors the plot Nos. have been allotted
           to them.
       (6) But Smt. Makhija who attended the meeting on behalf of           G
           Mr. Makhija was interested in plot No.6 only. She pleaded
           that even though the criteria is decided, the said plot No.6
           must be allotted to Mr. Makhija. All the depositors tried to
           convince her but in vain. Lastly she gave choice under her
           signature for plot No.6 (1st preference) and plot No.2 second
           preference.                                                      H
816            SUPREME COURT REPORTS                         [2019] 12 S.C.R.


A           It was cleared in the meeting that the plots are being allotted as
            per seniority of depositors hence plot No.6 cannot be allotted to
            Mr. Makhija. As plot Nos.1 and 2 were already allotted as
            nobody was interested in them the question of allotment of Plot
            No.2 does not arise.
B           Finally, Mr. Changde declared the allotment as per criteria and
            the number of plot before each name have been allotted. The
            letter of allotment have also been issued to them. For the
            absentees the plot has been allotted as per the seniority from the
            available one.
C            (7) The allottee plot holders were asked to deposit their share
                 of Rs.105/- with Society to finalize their membership.
            The meeting ended with vote of thanks & dinner.
            Nagpur
D
            18/12/88
                                                                          Sd/-
                                                                    Secretary”
             22. Before we deal with the rival submissions, an important facet
      of the matter whether it was the husband or the Disputant herself who
E
      was the Depositor of the Society needs to be considered. It is accepted
      that the Disputant was an employee of Life Insurance Corporation of
      India and the Society was meant principally for such employees. It was
      however denied in the pleadings that she was a Depositor and it was
      submitted that she had withdrawn the amount of Rs.3000/- which she
F     had earlier deposited and had thus lost the status of being a Depositor.
      The then Secretary of the Society, when confronted with the documents
      however had to accept that he had received a sum of Rs.4750/- from
      the Disputant. He also accepted that she had attended the meeting on
      18.12.1988, had submitted an application form and deposited the requisite
      fees. Though it was tried to project that it was her husband who was
G
      the Depositor and the Disputant had attended the meeting as a
      representative of the husband, in the face of the admitted position that
      she had deposited Rs.4750/- and the findings rendered by the Courts
      below, it has to be concluded that the Disputant was a Depositor of
      the Society and like all other Depositors was entitled to and had attended
H     the meeting dated 18.12.1988 in her own right.
       SHIVKISHAN v. SUJATA TARACHAND MAKHIJA                                 817
            AND ORS. [UDAY UMESH LALIT, J.]

       It is significant to note that at no stage the husband of the          A
Disputant claimed that he was the Depositor in his own right and entitled
to allotment of any Plot. Further, it is not the case of the Disputant
and her husband that over and above the entitlement of the Disputant,
her husband is also entitled to an additional Plot. The submission has
always been that there was only one entitlement, in exercise of which
the option was given for Plot No.2.                                           B

       23. If between the husband and wife, the claim has always been
only with respect to one entitlement, it really made no difference
whether the Disputant attended the relevant meeting in her own right
or as a representative of her husband. The fact of the matter is, an
option was exercised in favour of Plot No.2 and the issue is whether          C
such option ought to have been allowed and accepted or not. It may
be stated here that the communications addressed by the Society were,
normally in printed format where the name of the addressee would be
written after the printed prefixes “Mr./Mrs.” and many such
communications were addressed to “Mr./Mrs. Makhija”. The record               D
also shows that some meetings were attended by the Disputant while
some were attended by her husband. But, considering the facts that
the Disputant was an employee of Life Insurance Corporation of India
and had deposited Rs.4,750/- as stated above, her status was clearly
that of a Depositor.
                                                                              E
       24. It is a matter of record that the Depositors had collectively
raised funds with the help of which, the consideration for purchase of
the land over which the layout was to be formed, could be arranged.
All the required and incidental expenses thus came from the funds raised
by the Depositors and to that extent the Disputant had definitely made
her contribution. The money deposited by all the Depositors including         F
the Disputant had thus helped the Society to have the requisite land
whereafter the Plots could be carved and allotted to the concerned
members. On the other hand, at no stage the Appellant had made any
such contribution.
       25. It is accepted that the Appellant was neither present in the       G
meeting dated 18.12.1988 nor had he submitted any application along
with requisite fees. It is also accepted that he had not deposited anything
by way of deposit with the Society before or on 18.12.1988, with the
help of which the land could be purchased by the Society. It is true
that the tenor of the Resolution passed by the depositors on 24.06.1984
shows that no depositor was willing to take a bigger Plot but that            H
818            SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A     resolution was passed in the year 1984 and it was four years thereafter
      that the day had arrived for exercise of choices or options. For the
      employees of Life Insurance Corporation it may be that the Depositors
      at an earlier stage were not in a position to arrange requisite funds and
      if the Society had to depend upon funding from an outsider, on the
      strength of such resolution, the Society could have garnered the requisite
B     finances from an outsider. But the facts on record disclose that no
      such funding from any outsider was required to arrange the requisite
      finance towards consideration for purchase of land. If no outsider had
      contributed in any manner there is no reason why a Plot could be
      reserved for such an outsider disregarding the claim of a Depositor with
C     the help of whose money the Society had reached the stage where the
      Plots could be allotted to the concerned. In a situation where none of
      the other Depositors had even made a claim with respect to Plot No.2
      and if the Disputant had exercised such option, the Plot had to be allotted
      to the Disputant. No outsider could have had a better claim as against
      any Depositor as regards to that Plot.
D
            26. It is also a matter of record that as on 18.12.1988, the
      Appellant had not even submitted his application form for membership
      whereas all the Depositors including the Disputant had submitted such
      forms along with requisite fees for membership. Even on this count,
      the claim of the Disputant stands on a better footing as against the
E     Appellant.
            27. Further, though the Resolution dated 18.12.1988 records, “As
      Plot Nos. 1 and 2 were already allotted as nobody was interested in
      them, the question of allotment of Plot No.2 does not arise”, it was
      accepted by the then Secretary in his cross-examination that:-
F
              a) the Appellant had not paid any amount towards the cost of
                 shares of the Society and admission fee towards
                 membership of the Society at any time before or on
                 18.12.1988.

G             b) the notice calling the meeting dated 18.12.1988 had not
                 mentioned that choice to be exercised by the Depositors
                 was restricted to plots other than Plot Nos. 1 and 2.
             It was also accepted by the learned counsel for the Appellant
      that neither any invitation was received by the Appellant to attend the
H     meeting nor did the Appellant attend the meeting and no payment was
       SHIVKISHAN v. SUJATA TARACHAND MAKHIJA                                819
            AND ORS. [UDAY UMESH LALIT, J.]

made by the Appellant before 18.12.1988. No document has been                A
produced or relied upon to say that there was any allotment of Plot
Nos.1 and 2 in favour of anybody before the meeting was actually held
on 18.12.1988.
       28. In the circumstances, it must be held that the assertion so
made in the Resolution was completely incorrect and against the record.      B
The then Secretary accepted in his deposition that he himself had allotted
these two plots but could not give the date when such allotment was
made. In any case, it is accepted by the Appellant that no such
allotment was done at any time before 18.12.1988.
       29. As on the date when the sale deed was executed on                 C
25.10.1989 by the Society in favour of the Appellant, there was an
interim order passed by the Cooperative Court at Nagpur on 25.04.1989
injuncting the Society from making any allotment of Plot No.2. The
then Secretary accepted in his cross-examination that such allotment
and execution of sale deed was done in spite of the order of injunction.
                                                                             D
For persons who had clearly violated the order of injunction, no
sympathetic consideration can be extended, nor any equity can be found
in favour of such persons. It is also apparent that the execution of the
sale deed was even before the Resolution was passed in the meeting
held by the Society on 25.03.1990 regarding allotment of Plot No.2 in
favour of the Appellant.                                                     E
        30. In the circumstances, the conclusions drawn by the High
Court that the allotment of Plot No.2 in favour of the Appellant was
illegal and that the Resolution passed by the Society in its meeting dated
25.03.1990 and the sale deed executed by the Society on 25.04.1989
were required to be quashed, are absolutely correct and fully justified.     F
      31. As regards other conclusions drawn by the High Court, we
need not say anything as the Petition for Special Leave to Appeal filed
by the Disputant was disposed of by this Court on 15.01.2016 with the
observations as quoted hereinabove.
                                                                             G
       32. We, however, do conclude that the Disputant was a Depositor
of the Society; that she was entitled to attend the meeting dated
18.12.1988 in her own right; that she had preferred requisite application
for membership and had paid requisite fees on 18.12.1988 itself; that
she had opted for Plot No.2 and as on that date there was nobody else
apart from the Disputant who opted for said Plot No.2.                       H
820            SUPREME COURT REPORTS                        [2019] 12 S.C.R.


A            33. These aspects of the matter shall be taken into account by
      the concerned authorities while acting in terms of direction (v) issued
      by the High Court which are quoted by us in para 15 hereinabove and
      the allotment shall be restricted to those who had exercised their option
      as on 18.12.1988 and were not otherwise allotted any plot and had not
      accepted such allotment.
B
            34. With the aforesaid directions the appeals stand dismissed. No
      order as to costs.


      Divya Pandey                                              Appeal dismissed.
C




D




E




F




G




H