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2014 (8) TMI 1181 - HC - Indian LawsWhether compliance of the provisions of Section 48 of the MCS Act, and Rule 48 (5) of MCS Rules, 1961 is mandatory for lending cooperative society before claiming protection/charge on immovable property of members? - HELD THAT:- Unless and until there is compliance of these two provisions, namely Section 48 and Rule 48 (5), the people at large cannot be expected to know about the charge, if any, on immovable property. In other words, if a society wants to claim protection or benefit of Section 48 of the MCS Act, the same can be obtained only from the date the charge is actually recorded in the record of rights and not otherwise - the provisions of Section 48 and Rule 48 (5) are mandatory in nature for a Cooperative Society if a cooperative society wants to claim benefit /protection of the said provisions - answered in affirmative. Whether it was necessary/mandatory for the appellant/plaintiff to serve the notice u/s 164 of the MCS Act before filing RCS No. 87/2012? - HELD THAT:- The act of the society in mortgaging the suit property which was already sold to the appellant who was not even a member of the society cannot fall in the definition of Sec. 164 of the Act. Therefore, the provisions of Section 164 will have no application in addition because the plaintiff wants to exercise his independent civil right - the notice u/s 164 for filing the suit was not at all necessary - answered in negative. Whether the appellant/ plaintiff having served the notice under section 164 of the Act were estopped in law in filing the suit before expiration of statutory period of two months contemplated by he said provision? - HELD THAT:- When notice u/s 164 of the MCS Act was not at all necessary before filing the suit in a civil court as held by me above, even if the respondents/plaintiffs, in fact, had given such notice but did not wait for two months, there cannot be any estoppel against law when the legal position that no such notice is necessary for filing the suit as a prerequisite to maintain the suit. Whether or not the plaintiffs had issued notice u/s 164 or he did not wait for the period of two months, would hence make no difference at all - When the law does not require issuance of notice u/s 164 of the MCS Act at all, to file the suit before expiry of the period would be of no consequence - answered in negative. Whether for filing the suit u/s. 38 of the Specific Relief Act, prior notice u/s 164 of the MCS Act is mandatory? - HELD THAT:- The suit had nothing to do with the any legal act touching the business of society as stated in Section 164 of the Act. On the contrary, it is well-settled legal position that suit under section 38 of the Specific Relief Act for perpetual injunction is clearly out of the purview of such type of provisions - the suit u/s 38 filed by the appellant/plaintiff in this case was not required to be preceded by notice u/s 164 of the Act. Application disposed off.
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