Judgment:
ORDER
R.J. Kochar, J.
1. The Petitioner is aggrieved by the impugned order dated 13-7-1999 passed by the Maharashtra State Co-operative Appellate Court in Appeal No. 228 of 1998 filed by him and the Society against the Judgment and order dated 3-4-1998 passed by the Co-Operative Court No. 4 in the case No. IV/229 of 1989 filed by the Original Disputant K.KiV. Salvi under Section 91 of the Maharashtra Go-operative Societies Act, 1960 for a declaration that he was entitled to a flat in the said Society and possession thereof.
2. I have heard the learned counsel for their parties and I have carefully gone through the proceedings. I do not find any reason to interfere with the impugned Judgment and Order for the reasons which follow. Both the Courts below have held in favour of the Disputant and have recorded facts against the! Petitioner and have castigated him and impeached his credibility and credit worthy-ness of his evidence and have further accused him of 'prevarication-in-full' and of suppression of facts and documents not produced by him in spite of directions and in spite of his promises to produce on 'the next date' which never came as observed by the trial Court. In the opinion of both the courts below the documents were not produced by him as they would have gone against himand would have helped the Disputant's case. It may further be observed by me at this stage itself that my learned brother H.L. Gokhale, J. had also directed him by his specific order dated 22-9-1999 to produce the original documents as under but it appears that the petitioner has not complied with the said order of this Court also:
'(i) The Resolution expelling respondent No. 1 from the membership of the Society as recorded in the Minutes Book of the Society bearing the signatures of those who were present in that meeting.
(ii) The letter/application sent to the Registrar seeking approval to this decision,
(iii) Correspondence, if any, calling upon respondent No. 1 to pay the construction cost, and
(iv) The receipts of payments made by various members and particularly the petitioner and respondent No. 2.
S.O. to 4th October, 1999.'
3. The case of the disputant is very simple. He was the Chief Promoter of the Society and was one of the original members entitled to a flat in the Society. After the First General Meeting of the members the Petitioner was elected to function as the Secretary of the Society and since then he did not communicate anything or any decision of the Society to the Disputant though his address was available in the records of the Society. According to him, the cost of the land was paid by him, to the, MHADA on behalf of the Society and he was always ready and willing to pay the instalments for the cost of construction but the Petitioner as the Secretary of the Society never demanded through usual/regular notices the specific or any amount with oblique motive. According to the disputant he was originally allotted the flat No. 202 which was grabbed by the Petitioner without making any payment towards the cost of construction to the Society. He has very vehemently throughout denied the case of the petitioner and through him the case of the Society that he was ever expelled from the society and that he had never received any show cause notice to expel him. He has also strongly substantiated his case that there was no resolution of his expulsion passed nor was it processed under Section 35 of the Act and he has further relied on the letters of the Dy. Registrar that there was nothing in their record in respect of the expulsion of the disputant. In theaforesaid circumstances and on the basis of the oral and documentary evidence produced on record and on the basis of suppression or non-production of the relevant documents by the society and the Petitioner as its Secretary, the trial Court has finally concluded as under :
'In the light of above discussion, I came to the conclusion tht the Disputant has proved his membership, his contribution towards the cost of the land. The Disputant is ready to pay construction cost and, therefore, he is entitled for allotment and possession of flat admeasuring 750 Sq.ft. In the building of the Society i.e. flat No.302 which at present is occupied by the Opponent No.3'
From the above concluding part and the final order of the trial Court it is clear that the Disputant was held to be entitled to a flat in the Society but he was not allotted the Flat No.202 of the Petitioner but the Society was ordered to allot to the Disputant the Flat No. 302 allotted to the present Respondent No. 2 (Smt. Vichare), who was said to be the Junior most member and who asserts that she had made full payment to the Society for the said flat in a legal and valid transaction. She was naturally aggrieved by this Order and she also preferred an Appeal along with the Appeal filed by the Petitioner and the Society against the said order of the trial Court.
4-5. Before I revert to the order of the Appellate Court it would be relevant and material to read the following portion of the findings of the trial Court :
The opponent No. 2 on various occasion assured that he will produce I and J registers, proceeding book, cash book and other documents relevant to the subject matter of the dispute, but he never produced. From it, this can safely be inferred that if the Opponent No.2 could produce that would definitely go against the case of the Opponents. The Opponent No.2 pretended that of feign ignorance about the which are if established would defeat the claim of Disputant. Taking into consideration totally of the evidence produced by the Opponent No.2, one would infer that there is no meaning and evidential value to the deposition of the Opponent No.2.'
Before those observations the trial Court has also observed that the Petitioner who was Opponent No.2 in the original proceedings, he even refused to give inspection of those documents to the Court Commissioner also, leave apart the disputant. The Trial Court has termed the evidence of the Petitioner, as false, not trust-worthy and not believable while it has certified the evidence of the disputant as consistent and without any prevarication and contradictions. It is therefore surprising to note why the flat of the Petitioner was saved by the trial Court and the flat of Smt. Vichare was ordered to be allotted to the disputant. The Appellate Court, however, has corrected the said error and modified the order to direct to allot to the Disputant the Flat No.202 of the Petitioner instead of the Flat No. 302 of Smt. Vichare.
6. It is pertinent to note that the Appellate Court has concurred with the facts findings recorded by the trial Court in every respect including the criticism levelled against the Petitioner for his not producing the relevant and material documents and statutory registers required to be maintained by every Coop, Society under the law. The Appellate Court has also disbelieved the case of the petitioner for having paid any amount to the Society towards the cost of construction of the flat in the absence of proper account books and proper receipts issued by the Society, Following the judgment of the Supreme Court in the case of AIR 1984 SC 854 the Appellate Court has held that the Petitioner had played fraud upon the Court by withholding the material and vital documents from the Court. The Appellate Court has also confirmed the certificate of un trust-worthiness of the evidence of the Petitioner given by the trial Court. It has held that his evidence was not reliable and that he was 'purposely hiding something' to deprive the disputant of his right to get the flat which was in the possession of the Petitioner i.e. flat No. 202. The Appellate Court as also gone through the entire evidence threadbare and has agreed with the criticism of the Petitioner as levelled by the trial Court. The Appellate Court has also pointedly referred to absence of the allotment letter or document giving the flat No.202 to the Petitioner. According to the disputant that the flat was allotted to him in first constituted general body meeting. Had it not been so, the Petitioner as the Secretary of the Society would have instantly produced the Minutes Book to disprove the contention of the disputant and prove his own allotment. The Appellate Court has finally concluded that the membership of the disputant was 'in tact' and that his money to the tune of Rs.36,000/-was not refunded by the Society. The Court has further found that the disputant as a Member of the Society was entitled to a flat of 750 Sq. ft. and that the Secretary (Petitioner) had played mischief. The Appellate Court has therefore, modeled the order of the trial Court by altering the number of flat to be allotted to the disputant from 302 to 202 i.e. from the flat of Smt. Vichare to the flat of the Petitioner. In my opinion in the facts which have clearly emerged on the surface I do not find any error nor miscarriage of justice to warrant interference with the reasoned orders of both the Courts below and I further agree with the modification ordered by the Appellate Court to allot the flat No.202 of the Petitioner to the disputant. The Appellate Court was well within its Jurisdiction to modify the order of the trial Court and for doing so there are cogent and Justifiable reasons. I fully endorse the said modification of the Appellate Court.
7. Apart from what has been observed by both the Courts below to impeach the credit worthiness of the Petitioner and the charge that he had suppressed the documents as the Secretary of the Society and that had played fraud on the Court, I further find from the record of this Petition that the Petitioner did not care to comply with the order dated 22-9-1999 passed by Gokhale. J. directing him to produce those original documents to arrive at a right and just conclusion qua the valuable property rights of the parties. I further find from the affidavit filed by Shri R.A. Moraes, the Chartered Accountant that he had never audited nor written any accounts for the society. He has further sworn on oath that he had never maintained any personal accounts of the Petitioner as contended by the petitioner, Smt. Vichare has also sworn an affidavit confirming the contents of which are not in dispute by the petitioner that in spite of the order passed by this Court on 28-9-1999 (A.P.Shah, J.) not to transfer the flats (Smt. Vichare and the Petitioner) pending the disposal of this Petition, the Petitioner has mortgaged his flat for Rs. 24 lacs with the Bharat Co-operative Bank Ltd., Goregaon. Again a loan of Rs. 22 lacs was raised by him on the same flat. The Petitioner has created burden of Rs. 46 lacs on this flat in spite of the Court's Order and irrespective of the dispute pending in the present proceedings. The Petitioner appearsto possess master skill to scheme unscrupulously. He cannot be assisted in any way in the extra ordinary jurisdiction under Article 226 of the Constitution of India.
8. The Writ Petition stands dismissed. Rule is discharged. The Petitioner shall pay cost of Rs. 10,000/- each to the Disputant and Smt. Vichare, within four weeks from today.
9. Parties to act on an ordinary copy of this order duly authenticated by the Associate of this Court.