Gunrock Enclave Co-Operative Housing Society Ltd v. Army Welfare Housing Society Ltd
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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
THURSDAY ,THE FIRST DAY OF SEPTEMBER TWO THOUSAND AND TWENTY TWO PRESEI,IT THE HONOURABLE SMT JUSTICE P.SREE SUDHA CIVIL REVISION PETITICIN NO: 468 OF 2022 .
Petition under Arlicle 227 of the Constitution of lndia aggrieved by the Order dated 1710212022 in OS No 149 of 2009 (Old No 322 of 2004) on the file of the Court of the XXVII Additional Chief Judge, City Civil Court at Secunderabad.
Between Gunrock Enclave Co-Operative Housing Society Ltd, Registered no TAB 203 having its registered Office at 1 Gunrock Enclave, Secunderabad Telangana 500 009 Represented by its President Col Ranga Rao Name (Retd) S/o Late N V Naidu Aged about 78 years, ccupation. Business R/o 86 Gunrock Enclave, Secunderabad Telangana 500 009 ...REVISISON PETITIONER/PLAINTIFF AND
1. Army Welfare Housing Society Ltd, (registered no TAB 600) Sector A, AWHO Colony Gowtham Enclave, Sikh Road, Secunderabad-9 Represented by its General Secretary, Ltd Col V K Rao
2. The Army Welfare Housing, Organisation (AWHO) represented by its Project Director Col. H S Sethi c/o MES Office Complex, Mudfort Secunderabad ...RESPONDENTS/DEFENDANTS lA NO: 2 OF 2022 Petition under Section ',l51 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in OS No.149 of 2009on file of Honorable XXVII Additional Chief Judge, City Civil Court at Secunderabad pending disposal of this Revision Petition.
Counsel for the Petitioner : SRl. SUNIL B GANU Counsel for the Respondents: SRI ZEESHAN ADNAN MAHMOOD The Court made the following: ORDER
HON'BLE Smt. JUSTICE P.SREE SUDHA CI\/IL REVISION PETITION No.468 of 2022
ORDER
1.
This revision is directed against the docket order dated 17.O2.2O22 passed in O.S.No. 149 of 2009 (Old No.322 of 2OO4) on the lile ol the learned XXVII Additional Chief Judge, City Civil Court, Secunderabad.
2.
One Gunrock Enclave Cooperative Housing Society Limited-plaintiff filed suit O.S.I.lo.322 of 2OO4 against Army Welfare Hou sing Sociely Limited and Army Welfare Housing Organization-defendants seeking to delivery vacant possession of the suit schedule property to plaintiff or its authorized representative. During the pendency of the suit proceedings one Lt. Gen ARK Reddy filed an affidavit as D.W. 1. stating that as a President of the Society he is acquainted with the facts of the I case. The piaintiff filed a memo stating that the first defendant society approached the Deputy Registrar, Cooperative Society, Secunderabad, for winding up of the societ5r and accordingly the Deputy Registrar appointed Mohd. Yousuf Ali, Senior Inspector, as the Liquidator of the first defendant society on 25.O8.2O2O.
Later, the Deputy Registrar appointed one S. Ramesh Kumar, Assistant Registrar, as Liquidator of the first defendant society ot 22.O9.2020. Learned counsel for the defendants filed a reply memo dated 24.1I.2O2I along with the letter dated 15.1 l.2O2O issued by the Office of the Liquidator of the first defendant society authorizing him to sign in legal documents like affidavits, written evidences and also depose before the Courts to protect the interest of the society. The plaintiff in the suit stated that the said authorization is bad in iaw and Liquidator has no power within the meaning of Sections 66 and Rule 5 1 of the Telangana Cooperative Societies Act, 1964 (for short, 'the Act of 1964) to authorize or to delegate his powers to anybody much less to the Ex-President of the first defendant society.
Ex-President represented himself as President of the society in the affidavit filed on 23.09.2021 and that they also enclosed the Rules and requested the Court to eschew the evidence of the D.W. I as it amounts to perjury. The copy of the order passed by the Deputy Registrar is also enclosed.
3.
The trial Court after considering the arguments advanced by both the learned counsel observed that the suit is filed in the year 2OO9 and the Liquidator was appointed in the year 2O2O and as he is already authorized the X-President of Iirst
I J defendant societlr who {iled additional written statement is having knowledge about the pleadings he is a proper person to depose in the Court to protect the interest of the society and thus permitted D.W.l to lead evidence, received chief affidavit and posted the case for cross-examination. Aggrieved by the said order, thc plaintiff in the suit liled this revision. 4.
I-earned counsel for the revision petitioner-plaintiff would contend that the Liquidator was appointed under Section 66 of the Act of 1964 and the same does not preclude from giving authorization and as per Rule 51 Clause (e) the Liquidator may empower any person, by general or special order in writing, to make collections and grant valid receipts on his behalf and except the said Clause there is no other Clause permitting the Liquidator to delegate any office bearer. Moreover, D.W.1 stated himself as President of the Society, though as per the letter dated 15. I 1 .2O2O he was shown as Ex-President. Learneil counsel would also contend that when tl-e Liquidator was appointed, the office bearer of the society has no role to play either in pending matters or otherwise. He would also contend that Rules 36A, 368 and 37 of Telangana Cooperative Societies Rules are not relevant and only Section 66 of the Act of 1964 and Rule 51 are relevant for the present lis. He would also argue I
that as the members of the society requested the Registrar for winding up of the society, the Liquidator was appointed and as such permitting the Ex-President to represent the society is beyond the powers of the Liquidator and it will frustrate the process of winding up of tl.e societ5r and therefore requested the Court to set aside the impugned docket order dated 17.O2.2022. 5.
Heard the learned counsel appearing for the petitionerplaintiff and the learned counsel appearing on behalf of the respondents-defendants. Perused the record.
6.
Learned counsel for the first respondent relied upon Section 118 of the Indian Evidence Act, 1872, which reads as under:
All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or airy other cause of the same kind.'
7.
Learned counsel for the first respondent would argue that D.W.1 is a competent witness and he is having knowledge of the affairs of the societSr as he was contesting the matter since long time. He relied upon a citation reported in GARMENT CRAFT
t, V/s. PRAKASH CHAND GOELI in which the scope of Article 227 of th.e Constitution was reiterated.
8.
No doubt, any competent witness as per Section 118 of the Evidence Act can depose before the Court, but in so far as the facts of the case on hand is concerned winding up of the society was done as per the request of the members of the society and a Liquidator was appointed to take care of the affairs of the sociely and he cannot delegate his powers to the Ex-President and authorize him to depose. The Liquidator addressed a letter dated l5.ll.2O2O authorizing the Ex-President to give evidence before the Court and the said authorization is not proper. Under Section 66(1)(a) of the Act of 1964 the liquidator is only authorised to institute and defend suits and other legal proceedings on behalf of the society by the name of his ofhce and he can delegate powers to any other person as Rule 5 1(e) of the Rules of 1964 , which reads as follows:
'51(e) The liquidator lnay empower any person, by general or special order in writing, to make collections and to grant valid receipts on his behalf.'
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9.
Though the revision petitioner has raised an objection before the trial Court, the trial Court in a routine manner observed that D.W. I is having knowledge about the affairs of the society and he is a proper person to depose before the Court and permitted his chief-examination and the said appreciation of the facts are not on proper lines and hence the order o[ the trial Court is to be set aside.
10. In the result the civil revision petition is allowed and the docket order under challenge is set aside.
11. Miscellaneous Petitions, if any, pending in this revision shall stand closed in the light of this final order. SD/.K.SHYLESHI DEPUTY REGISTRAR i{ SECTION OFFICER To, //TRUE COPY// The XXVII Additional Chief Judge, City Civil Court Secunderabad One CC to SRl. SUNIL B GANU, Advocate. [OPUC] One CC to SRl. ZEESHAN ADNAN MAHMOOD, Advocate. [OPUC] Two CD Copies One Spare Copy SB \ Y I J
HIGH COURT DATED:01 10912022 ci: Itst s c2 ?
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ORDER
CRP.No.468 of Z0Z2 ALLOWING THE CRP WITHOUT COSTS :
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