Bhanushali Hsg. Coop. Society Ltd. Vs Mangilal .

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5704 OF 2015 (Arising out of SLP (C) No.36497of 2012)

Bhanushali Housing Cooperative Society Ltd. …Appellant

Vs.

Mangilal & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

Leave granted.

1. The short question that arises for consideration in this appeal,

by special leave, is whether a dispute arising out of a contract for

sale and purchase of immovable property owned by the

respondents was amenable to adjudication under Section 64 of the

M.P. Cooperative Societies Act, 1960. By his order dated 1st March,

2004, the Deputy Registrar, Co-operative Societies, Ujjain, before

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whom the proceedings were initiated, answered that question in

the affirmative and decreed specific performance of the contract

entered into between the parties. A first appeal preferred by the

sellers (respondents-herein) before the Joint Registrar Ujjain failed

and was dismissed by his order dated 7th August, 2009. Aggrieved

by the said two orders, the respondents preferred a second appeal

before the M.P. State Co-operative Tribunal, Bhopal who allowed

the same and set aside the orders passed by the Deputy Registrar

and that passed by the Joint Registrar holding that the dispute

raised by the purchaser-society could not be made the subject

matter of proceeding under Section 64 of the M.P. Cooperative

Societies Act, 1960. The purchaser-society then filed writ petition

No.15195 of 2011 which was heard and dismissed by a Division

Bench of the High Court of Madhya Pradesh. The High Court

concurred with the view taken by the Tribunal that a dispute arising

out of a contract of sale and purchase of immovable property was

beyond the purview of Section 64 of the Act. The present appeal

calls in the question the correctness of the said judgments and

orders.

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2. Section 64 of the M.P. Cooperative Societies Act, 1960, may,

at this stage, be extracted in extenso :

“64. Disputes: - (1) Notwithstanding anything contained in any other law for the time being in force, [any dispute touching the constitution, management or business, or the liquidation of a society shall be referred to the Registrar] by any of the parties to the dispute if the parties thereto are among the following:-

(a) a society, its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or a nominee, heirs or legal representatives of any deceased agent or deceased servant of the society, or the liquidator of the society; (b) a member, past member or a person claiming through a member, past member or deceased member of a society or of a society which is a member of the society; (c) a person other than a member of the society who has been granted a loan by the society or with whom the society has or had business transactions and any person claiming through such a person.

(d) a surety of a member, past member of deceased member or a person other than a member who has been granted a loan by the society, whether such a surety is or is not a member of the society. (e) any other society or the liquidator of such a society; and

(f) a creditor of a society.

(2) For the purpose of sub-section (1), a dispute shall include –

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(i) a claim by a society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased member, whether such debt or demand be admitted or not;

(ii) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand be admitted or not;

(iii) a claim by a society for any loss caused to it by a member, past member or deceased member, any officer, past officer or deceased officer, any agent, past agent or deceased agent, or any servant, past servant or deceased servant or its committee, past or present, whether such loss be admitted or not;

(iv) a question regarding rights, etc., including tenancy rights between a housing society and its tenants or members; and

(v) any dispute arising in connection with the election of any officer of the society or of composite society;

Provided that the Registrar shall not entertain any dispute under this clause during the period commencing from the announcement of the election programmed till the declaration of the results.

(3) If any question arising whether a dispute referred to the Registrar is a dispute, the decision thereon of the Registrar shall be final and shall not be called in question in any court.”

3. A careful reading of the above would show that for a dispute

to be brought within the purview of Section 64 two essential

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requirements must be satisfied viz. (i) that the dispute must “touch

the constitution, management or business of the society or must

relate to the liquidation of the co-operative society;” and (ii) that

the dispute must be between parties referred to in clauses ‘a to f’

of Section 64(1) (supra). It is only when the twin requirements

are in the facts and circumstances of a given case satisfied that a

dispute can be said to be amenable to adjudication under Section

64. Failure of any one of the two requirements would take the

dispute beyond the said provision.

4. In the case at hand the dispute raised by the appellant-society

before the Deputy Registrar related to the alleged refusal of the

respondent to complete the sale transaction in terms of the

agreement to sell executed between the respondents and/or their

predecessors-in-interest, on the one hand, and the

appellant-society on the other. The nature of the dispute,

therefore, did not obliviously touch the constitution and

management of the society nor did the dispute have anything to do

with the liquidation of the society. Whether or not the dispute

sought to be raised was a dispute “touching the business of the

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society” is in that view one of the questions that needs to be

examined.

5. As regards the second requirement viz. that the dispute must

be between the persons referred in clauses ‘a’ to ‘f’ of Section 64 of

the Act, it is common ground that the respondents-sellers were not

members of the society nor do they fall under anyone of the

clauses ‘a’, ‘b’, ’d’ or ‘f’ enumerated under Section 64 (1). This

would mean that the respondents must answer the description of

persons mentioned in clause (c) to Section 64(1) of the Act. The

Tribunal as also the High Court have taken the view that the

respondents do not answer the description of parties falling under

Section 64 (1)(c). That is because the appellant-society had

neither granted any loan to the respondents or any one of them

nor did the respondents have any “business transactions” with

the society. The Tribunal and the High Court have interpreted the

words “business transactions” to mean a series of transactions in

connection with the business of the society. The expression did

not, according to them, postulate a single contract for sale or

purchase of the property between the society and a third party.

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6. Two distinct questions that need to be answered by this Court,

therefore, are:

(i) whether the dispute in the case at hand touches the business

of the appellant-society? and

(ii) whether the dispute sought to be raised arising as it is out of

the execution of a contract for sale of property by the

respondent in favour of the appellant-society constitutes

“business transactions” within the meaning of

Section 64 (1)(c)?

Re: Question No.1:

7. The expression “business of the society” has not been defined

in the Act or elsewhere. The expression has fallen for interpretation

of the courts in the country with commendable frequency.

Pronouncements from different High Courts have even led to a

cleavage in judicial opinion as to the true meaning and scope of

that expression appearing as it was in Section 43(1) of the

co-operative Societies Act, 1912 and later in analogous provisions

made in different State enactments. One line of decision takes a

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liberal view of the expression “business of the Society” while the

other prefers a narrower interpretation. Both these were noticed by

this Court in Deccan Merchants Co-operative Bank Ltd. vs.

M/s. Dalichand Jugraj Jain and Ors. (AIR 1969 SC 1320). An

elaborate discussion on the subject led this Court to declare that

the legislature had used the expression “business of the society” in

a narrower sense and approved the view taken by the High Courts

of Madras, Bombay and Kerala in preferences to that taken by the

High Courts of Madhya Pradesh and Nagpur. While saying so, this

Court enumerated five kinds of disputes mentioned in Section 91

(1) of the Maharashtra Co-operative Societies Act and observed:

“The question arises whether the dispute touching the assets of a society would be a dispute touching the business of a society. This would depend on the nature of the society and the rules and bye-laws governing it. Ordinarily, if a society owns buildings and lets out parts of buildings which it does not require for its own purpose it cannot be said that letting out of those parts is a part of the business of the society. But it may be that it is the business of a society to construct and buy houses and let them out to its members. In that case letting out property may be part of its business. In this case, the society is a co-operative bank and ordinarily a co-operative bank cannot be said to be engaged in business when it lets out properties owned by it. Therefore, it seems to us that the present dispute between a tenant and a member of the bank in a building, which has subsequently been acquired by the bank cannot be said to be a dispute touching the business of the bank, and the appeal should fail on this short ground.

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xxx xxx xxx While we agree that the nature of business which a society does can be ascertained from the objects of the society, it is difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects can be said to be part of its business. We, however, agree that the word ‘touching’ is very wide and would include any matter which relates to or concerns the business of a society, but we are doubtful whether the word ‘affects’ should also be used in defining the scope of the word ‘touching’. ”

8. Dealing in particular with the question whether a dispute

touching the assets of the society would be a dispute touching the

business of the society, this Court observed:

“18 .xxxxx xxxxx xxxxx

…... Ordinarily, if a society owns buildings and lets out parts of buildings which it does not require for its own purpose it cannot be said that letting out of those parts is a part of the business of the society. But it may be that it is the business of a society to construct and buy houses and let them out to its members. In that case letting out property may be part of its business....”

9. The question was once again considered by this Court in O.N.

Bhatnagar vs. Smt. Rukibai Narsindas & Ors. (1982) 2 SCC

244 where this Court referred to the decision in Deccan

Merchant’s case (supra) and observed:

“Thus, the Court adopted the narrower meaning given to the word “business” as expressed by the Madras, Bombay

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and Kerala High Courts in preference to the wide meaning given by the Madhya Pradesh and Nagpur High Courts. According to the view taken in Deccan Merchants Cooperative Bank case the word “business” in the context means “any trading or commercial or other similar business activity of the Society”. It was held that the word “business” in Section 91(1) of the Act has been used in a narrower sense and that it means the actual trading, commercial or other similar business activity of the Society which the Society is authorised to enter into under the Act and the Rules and its bye-laws.”

10. On the facts of the case before it, this Court in Bhatnagar’s

case (supra) held that the act of initiating proceedings for

removing an act of trespass by a stranger from a flat allotted to

one of its members could not but be a part of its business. This

Court held that it was as much the concern of the society formed

with the object of providing residential accommodation to its

members, which was normally its business, as it was of the

members to ensure that the flats are in occupation of its members

in accordance with the bye laws framed by it, rather than the

occupation of a person who had no subsisting reason to be in such

occupation. The decision in Deccan Merchant’s case (supra) was

on facts held to be distinguishable and resort to proceedings under

Section 64 of the Act, held legally permissible.

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11. Reference may also be made to the decision of this Court in

The Co-operative Central Bank Ltd. and Ors. vs. The

Additional Industrial Tribunal, Andhra Pradesh and Ors.

(1969) 2 SCC 43, wherein the question was whether the

expression business of the society appearing in Section 61 of the

Andhra Pradesh Co-operative Societies Act, 1964 covered a dispute

in respect of alteration of the conditions of service of an employee

of the society. The tribunal and the High Court had in that case

taken the view that such a dispute fell outside the purview of

Section 61 of the Act. Affirming that view this Court observed:

“In that case [Deccan Merchants case], this Court had to interpret section 91 of the Maharashtra Co-operative Societies Act, 1960. [Maharashtra Act 32 of 1961], the dispute related to alteration of a number of conditions of service of the workmen which relief could only be granted by an Industrial Tribunal dealing with an industrial dispute. xxx xxx xxx ….. Since the word “business” is equated with the actual trading or commercial or other similar business activity of the society, and since it has been held that it would be difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects, such as laying down the conditions of service of its employees, can be said to be a part of its business, it would appear that a dispute relating to conditions of Service of the workmen employed by the society cannot be held to be a dispute touching the business of the society.”

(emphasis supplied)

12. In the case at hand the objects of the appellant-society as set

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out in the Articles of Association are as under:

“Objective of this society would be to make arrangement for the construction of building, to purchase, sale, take on rent or rent out, prepare land for construction of building and to make arrangement related to social, educational and entertainment to its members and it would be complete right to this society to carry out such work which will be necessary and proper in its opinion. These rights shall mean and include to purchase land, take land on lease, sale, exchange, mortgage, let out on lease, sub-lease, to give resignation, or to accept resignation and to do all other relative work and to sell the building on instalment on proper and necessary restrictions, to give loan or guarantee of loan for facilitating construction of building, to make repairing, and will include other rights to carry out work related to it.”

13. Purchase of land for being used in the manner set out in the

objects extracted above is, therefore, one of the facets of the

business that the society undertakes. Such purchase is directly

linked to the object of developing the acquired land for allotment of

house sites to the members of the society. There is, therefore, a

clear and discernible nexus between acquisition/purchase of land

and the object of providing house sites to the members which

under the circumstances happens to be the main business of the

society. It is not a case where the facts giving rise to the dispute

are not relatable to the objects of the society or where the connect

between the facts constituting the dispute and the objects of the

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society is remote or their interplay remarkably tenuous or

peripheral, as was the position in Co-operative Central Bank

Ltd.’s case (supra) involving alteration of the conditions of service

of the employees of the society. We have in that view no hesitation

in holding that the dispute arising out of the purchase of the land

owned by the respondents was, in the instant case, a dispute

touching the business of the appellant-society. Question No.1 is

answered accordingly.

Re: Question No.2:

14. The second essential requirement for a dispute to fall within

the purview of Section 64 is that the parties to the dispute must be

those enumerated in sub-clauses ‘a to f’ under Section 64 of the

Act. Clause (a) of Section 64(1) envisages disputes between a

society, its committee, any past committee, any past or present

officer, any past or present agent, any past or present servant or a

nominee, heirs or legal representatives of any deceased agent or

deceased servant of the society, or the liquidator of the society.

This clause has obviously no application to the facts of the present

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case. That is true even about clause ‘b’ whereunder the dispute

between a member, past member or a person claiming through a

member, past member or deceased member of a society or of a

society which is a member of the society is brought within the

purview of Section 64. We shall presently deal with clause ‘c’ to

Section 64 (1) upon which counsel for the appellant-society placed

reliance but before we may do so we may deal with the application

of clauses (d), (e) and (f). Clause (d) of Section 64 (1) envisages

disputes involving a surety of a member, past member of the

society, member or a person other than a member who was

appointed by the society; whether or not such a society is a

member of the society. So also clauses (e) and (f) do not have any

application to the case at hand as the same deal with disputes

between any other society, the liquidator of such a society or

creditor of a society.

15. That leaves us with clause (c) of Section 64 (1), which

postulates disputes between non-members to whom loans are

granted by the society and the society or disputes between the

society or a non-member with whom the society has or had

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“business transactions” or any person claiming under such a

society.

16. It was argued on behalf of the appellant-society that the

dispute between society, on the one hand, and the respondent, on

the other, arising out of the contract for sale and purchase of

immovable property fell under this clause inasmuch as the society

was a party to the dispute arising out of a transaction that

constitutes a business transaction between the society and the

respondent non-members. The fact that the dispute related to a

single transaction did not, according to the learned counsel for the

appellant, make any material difference having regard to the

provisions of Section 5 of the M.P. General Clauses Act, 1957. That

provision, it was argued, made it clear that words in singular shall

include the plural, and vice-a-versa. This implied that a single

business transaction could also bring the dispute arising out of any

such transaction within the purview of Section 64.

17. On behalf of the respondents, it was contended that Section

64(1)(c) had no application to the case at hand not only because a

single transaction did not constitute business but also because the

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legislature had deliberately used the expression “business

transactions” to make it clear that it is only a series of transactions

that would bring the dispute arising out of such transactions within

the purview of Section 64. The scheme underlying Chapter VII of

the Act that provides for settlement of disputes clearly suggests

that it is only when there are multiple transactions which can be

described as “business transactions” that any dispute arising out of

such transactions would come within the purview of Section 64. In

the light of such legislative intent, the provisions of General

Clauses Act, could not be called in aid by the appellant-society.

18. What is the true scope and meaning of the expression

“business transactions” appearing in clause (c) of Section 64(1) of

the Act is what falls for our consideration. That expression has not

been defined in the Act or elsewhere. Advanced Law Lexicon

(3rd Edition, 2005) by P. Ramanatha Aiyar describes the

expression “Business transaction” as under:

“Business transaction is a generic expression used in the sense that it is a transaction which a businessman, in a commercial business, would enter into.”

19. The above meaning ascribed to the expression is fairly

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accurate hence acceptable. All that may be added is that in order

that a transaction may be treated as “business transaction”, it must

be a transaction that answers the above description from the stand

point of both the parties to the transaction. It cannot be a business

transaction from the standpoint of one party to the transaction and

something else from the other. It must be business bilaterally. So

viewed a single transaction where an owner of immovable property

agrees to sell his land to a society may or may not constitute a

business transaction, depending upon whether the seller is in the

business of selling property for profit. If the seller is not in any such

business, the transaction from his stand point will not be a business

transaction no matter, from the point of view of the society the

transaction may be a business transaction because the society is in

the business of buying land and developing it for the benefit of its

members. A transaction of sale of property would in such a case fall

outside the expression “business transaction”. A somewhat similar

view was taken by this Court in Manipur Administration vs. M.

Nila Chandra Singh (AIR 1964 SC 1533). This Court was in that

case dealing with the provisions of Manipur Foodgrains Dealers

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Licensing Orders 1958. The question was whether a single

transaction of sale, purchase or storage of food grains was enough

to make the person concerned a dealer and whether any such act

would constitute business. Repelling the contention that a single

transaction would also constitute “business”, this Court observed:

“In dealing with the question as to whether the respondent is guilty under Section 7 of the Essential Commodities Act, it is necessary to decide whether he can be said to be a dealer within the meaning of clause 3 of the Order. A dealer has been defined by clause 2(a) and that definition we have already noticed. The said definition shows that before a person can be said to be a dealer it must be shown that he carries on business of purchase or sale or storage for sale of any of the commodities specified in the Schedule, and that the sale must be in quantity of 100 mds. or more at any one time. It would be noticed that the requirement is not that the person should merely sell, purchase or store the foodgrains in question, but that he must be carrying on the business of such purchase, sale, or storage; and the concept of business in the context must necessarily postulate continuity of transactions. It is not a single, casual or solitary transaction of sale, purchase or storage that would make a person a dealer. It is only where it is shown that there is a sort of continuity of one or the other of the said transactions that the requirements as to business postulated by the definition would be satisfied. If this element of the definition is ignored, it would be rendering the use of the word “business” redundant and meaningless. It has been fairly conceded before us by Mr. Khanna that the requirement that the transaction must be of 100 mds. or more at any one time governs all classes of dealings with the commodities specified in the definition. Whether it is a purchase or sale or storage at any one time it must be of 100 mds. or more. In other words, there is no dispute before us that retail transactions of less than 100 mds. of the prescribed commodities are outside the purview of the definition of a dealer.”

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20. Reference may also be made to the decision of this Court in

Barendra Prasad Ray and Ors. vs. Income Tax Officer ‘A’

Ward, Foreign Section and Ors. (1981) 2 SCC 693 where this

Court interpreted the word “business” and held that the same was

an expression of wide import and means an activity carried on

continuously and systematically by a person by the application of

his labour or skill with a view to earning profit. In B.R.

Enterprises etc. vs. State of U.P. and Ors. etc. (1999) 9 SCC

700 this Court held that business is a term wider than trade. It

includes almost anything which is an occupation as distinguished

from pleasure. The term must, however, be construed according to

its context. To the same effect are the decisions of this Court in

Mahesh Chandra vs. Regional Manager U.P. Financial

Corporation and Ors. (1993) 2 SCC 279, and S. Mohan Lal vs.

R. Kondiah (1979) 2 SCC 616.

21. Suffice it to say that while the expression “business” is of a

very wide import and means any activity that is continuous and

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systematic, perceptions about what would constitute business may

vary from public to private sector or from industrial financing to

commercial banking sectors. What is certain is that any activity in

order to constitute business must be systematic and continuous. A

single transaction in the circumstances like the one in the case at

hand would not constitute business for both the parties to the

transaction. At any rate, the legislature having used the expression

“business transactions” has left no manner of doubt that it is not

just a solitary transaction between a society, on the one hand, and

a third party, on the other, which would bring any dispute arising

out of any such transaction within the purview of Section 64(1)(c).

The dispute must be between parties who have had a series of

transactions, each one constituting a business transaction in order

that the provisions of Section 64 are attracted and a dispute arising

out of any such transaction brought within its purview.

22. The argument that the plural used in the expression “business

transactions” must include the singular in view of the provisions of

Section 5(b) of the M.P. General Clauses Act has not impressed us.

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We say so because Section 5 of the M.P. General Clauses Act, 1957

like Section 13 of the Central General Clauses Act postulates

singular to include the plural and vice-versa only if no different

intention appears from the context. That intention, in the case at

hand, appears to be evident not only from the scheme of the Act

but also from the context in which the expression “business

transactions” has been used. The purpose and the intent underlying

the provision appears to be to bring only such disputes under the

purview of Section 64 as are disputes arising out of what is

business for both the sides and comprise multiple transactions.

Decisions of this Court in Newspapers Ltd. vs. State Industrial

Tribunal, U.P. and Ors. (AIR 1957 SC 532) and M/s.

Dhandhania Kedia & Co. vs. The Commissioner of Income

Tax (AIR 1959 SC 219) have settled the legal position and

declared that the principle underlying Section 13 of the General

Clauses Act regarding singular including the plural and vice versa

does not have universal application and that the principle can apply

only when no contrary intention is deducible from the scheme or

the language used in the statute.

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23. In the case at hand, that there was a single transaction

whereunder the respondents-sellers had agreed to sell to the

appellant-society a parcel of land to the society, for use by the

society in terms of the objects for which it is established. It may, in

that sense, be a transaction that touches the business of the

appellant-society but it is common ground that the respondents

were not in the business of selling land as a commercial or business

activity for it is nobody’s case that the respondents were property

dealers or had a land bank and were, as a systematic activity,

selling land to make money. If the respondents were agriculturists

who had agreed to sell agricultural land to the appellant-company,

the transaction was, from their point of view, not a “business

transaction”. For ought we know that transaction may have been

prompted by family necessity, poverty or some such other

compulsion. Such a transaction without any business element in the

same could not constitute a “business transaction” leave alone

“business transactions” within the meaning of Section 64(1)(c).

24. For the reasons stated above Question No.2 is to be answered

in the negative.

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25. In the result this appeal fails and is hereby dismissed, but in

the circumstances leaving the parties to bear their own costs.

……………………………………….…..…J. (T.S. THAKUR)

……………………………………….…..…J. (R.K. AGRAWAL)

……………………………………….…..…J. (R. BANUMATHI)

New Delhi; July 24, 2015

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ITEM NO.1C-For Judgment COURT NO.2 SECTION IVA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS C.A. No.5704/2015 @ Petition(s) for Special Leave to Appeal (C) No(s). 36497/2012 BHANUSHALI HSG. COOP. SOCIETY LTD. Appellant(s) VERSUS MANGILAL & ORS. Respondent(s) With Conmt. Pet. © No. 96/2015 in SLP (C) No. 36497/2012 Date : 24/07/2015 These matters were called on for pronouncement of JUDGMENT today. For Petitioner(s) Ms. Pragati Neekhra,Adv.

Mr. Karanveer Jindal, Adv. For Respondent(s) Mr. N.K. Mody, Sr. Adv. Mr. A. Venayagam Balan,Adv. C.A. No.5704/2015 @ SLP (C) No(s). 36497/2012

Hon'ble Mr. Justice T.S. Thakur pronounced the judgment of the Bench comprising His Lordship, Hon'ble Mr. Justice R.K. Agarwal and Hon'ble Mrs. Justice R. Banumathi.

Leave granted. The appeal is dismissed in terms of the Signed Reportable

In view of our judgment delivered in the appeal today,

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we see no reason to keep these proceedings on our board. The contempt petition is accordingly dismissed.

(VINOD KR.JHA) (VEENA KHERA) COURT MASTER COURT MASTER

(Signed Reportable judgment is placed on the file)