Allowed

Shanti D.Talreja v. R.D.Javkar and Ors.

Bombay HC15 Oct 2004WP/68/2003

Case brief

AI extract

What is this about?

Writ petition challenging eviction order against a flat allottee who gained membership via invalid transfer from an originally allotted member. The court affirmed lower court orders directing petitioner to refund dues with interest, denied delayed rejoinder, and granted temporary stay against eviction.

What did the court decide?

Direction to respondent society to refund amounts paid by petitioner with 12% interest; stay on eviction for eight weeks.

Shanti D.Talreja Vs R.D.Javkar and Ors. — Cooperative Societies | Bombay HC (2004)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

ORDINARY ORIGINAL CIVIL JURISDICTION

¶3

WRIT PETITION NO.68 OF 2003 WITH CHAMBER SUMMONS NO.192 OF 2004

¶4

Miss Shanti Daryanomal Talreja ) An adult, Indian Inhabitant, ) residing at Flat No.22,6th Floor) Matushree Bhanibai Co-operative ) Housing Society Ltd., Plot No.82) Survey No.111-D, Ambivali, Near ) RTO Andheri (W), Mumbai-400 053 )..PETITIONER

¶5

Versus

¶6

1.Mr.R.D. Javkar,	)
Indian Inhabitant	)
250/37, Hendra Building,	)
Prarthana Samaj, Vallabhai	)
Patel Road, Girgaon,	)
Mumbai-400 004	)
2.Matushree Bhanibai Co-op.	) )
Housing Society Ltd., A	)
Co-operative Housing Society	)
registered under Maharashtra	)
Co-operative Societies Act,1960 )
Plot No.82, Survey No.111-D,	)
Ambivali, Near RTO Andheri (W), )
Mumbai-400 053	)

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¶8

3.Smt. S.R. Pawar, Hon’ble Judge) of Co-operative IVth Court at ) Mumbai having her office at ) Contractor Building, 2nd Floor, ) Ballard Pier, Mumbai-400 039 ) ) 4.Shri A.V. Nirgude, Hon’ble ) President, Maharashtra State ) Co-operative Appellate Court, ) Mumbai, Old Secretariat, Ground ) Floor, M.G. Road, Mumbai-400 032)..RESPONDENTS Mr. G.S. Godbole with Mr. G.D. Talreja, for the Petitioner

¶9

Mr. S.Y. Katkade with Ms. Nirmala Gopal for the

¶10

Respondent No.1.

¶11

CORAM: F.I. REBELLO J.

¶12

DATE : 15th October,2004

¶13

ORAL JUDGMENT:

¶14

. The petitioner was admitted to the membership of respondent No.2, which though served has chosen not to be represented before this Court. As a member on payment of consideration the petitioner was allotted Flat No.22. It is her case that she was admitted as a member in place of one Pednekar. The respondent No.1 raised a dispute before the Co-operative Court. It

¶15

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¶16

was respondent	his contention that he was a member of No.2. He had paid substantial	the contribution
for	the purpose of purchase of a flat and the	flat
No.22	admeasuring 460 sq.ft. on the 6th floor	was
allotted	to him. It was his case that he had	been
expelled	from membership by the respondent	No.2
without	following the due procedure. The disput	e was
initially	filed against the respondent No.2 alone	on
25th	January, 1995. The respondent No.1	thereafter
added	one Mrs. Surekha Prahalad Akre as	opponent
No.2.	The grievance therein was that in his	place
Surekha	P. Akre had been admitted as a member.	A
second	amendment came to be made wherein the	present
petitioner	came to be added as an opponent	and
consequently	the amendments were also made.	Surekha
P.	Akre initially filed reply some time in	January,
1997	setting out that flat No.22 was allotted to	her
by	respondent No.2 herein. She thereafter	filed
another	application on 30th April, 1997 setting	out
therein	that she is allotted flat No.17 by	allotment
on	5th October, 1994 and she was also issued	share
certificate.	This reply came to be filed in	the
Review	Application. The respondent No.2 filed	written
statement	wherein in paragraph 4 which was in	answer
to	paragraph 5 of the claim statement of	respondent
No.1.	The respondent No.2 admitted that Flat	No.22
was	allotted to respondent No.1, but it was	only
tentative.	Surekha P. Akre vide application	dated
2nd	May, 1997 prayed that her name be deleted as	she
was	not involved to the dispute in respect of	flat

¶17

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¶18

No.22.		The	petition	er herein file	d her	written
statement	sett	ing o	ut	therein that the	respondent	No.3
herein	had	adm	itted	her as a member	on 4th	October,
1993	and	had	issu	ed share certific	ate. I	t was
explained		that	the	share certificates	were	initially
allotted		to one	N	.D. Pednekar whi	ch were	transferred
to	the	petitioner	on	4th October, 1993.	She	also set
out	that	she	was	staying in Flat No.22	and had	paid
construction		charges		amounting to	Rs.1,14,980/-	as
also	taxes	the	rein.	She denied that	flat NO.22	was

¶19

allotted to respondent No.1 or that he was entitled to

¶20

the same.

¶21

. The application by Surekha was considered and

¶22

by	order	dated	19th	Marc	h,	1998 her	name was	deleted.
This	was	not	cha	llenged	by	any party	including	the
petitioner	befo	re	thi	s cour	t.	Thereafter	by	award
dated	17th	April,		2002	the	dispute	filed by	the
respondent	No.1		was	allo	wed.	The	petitioner	was
ordered	to	q	uit,	vacate	and	hand over	possession	of
flat	No.22	to	the	respond	ent	No.1 within	3 months	and
there	are	other	co	nsequential		reliefs.	The	respondent
No.1	was	dir	ected	to	pay	remaining	construction	costs

¶23

of Rs.1,65,000/- with 12% interest from the date of

¶24

filing of the dispute to the society within 3 months.

¶25

The petitioner being aggrieved preferred an

¶26

Appeal	which	was	numbered	as Appeal	No.81		of	2002.
The	Appellate	Co	urt also	noted that		the		respondent
No.2	admitted	that	respond	ent No.1	had		made	some

¶27

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¶28

payments.	The	last	such	pay	ment	being	in	the	year
1983.	The	order	of	the	Co-	operative	Court	was	upheld
considering	the	failure		by	the	respon	dent	No.2	in
following	the	princ	iples	of	nat	ural	justice	as	also

¶29

the requirements of law It is these orders which are the subject matter of challenge in this Petition.

¶30

At the hearing of this petition on behalf of

¶31

the petitioner their learned Counsel contends as under:-

¶32

(1)	The dispute as r	aised by respondent No.1
without	joining Surekha	P. Akre	was	not	main	tainable.
It	is the conten	tion of the peti	tioner	that	it	was
Surekha	P. Akre	who had been	admitted	in	place	of
Respondent	No.1, whereas the petitioner	had been
inducted as	claiming rights through one Pe	dnekar.

¶33

(2)	It is	then submitted	that on facts	and
circumstances	it	really	could	not	be	said	that	the
expulsion	of	respondent	No.1	was	not	legal	and	in
these circumstanc	es no order	could have been	passed
against the petitio	ner herein.

¶34

(3)	It is lastly s	ubmitted th	at the reliefs as
prayed	for are	in	the nature	of	speci	fic	per	formance
of	a contract.	The	Courts be	low	before	gran	ting	the
relief	even if	they	had come	to	the	conclu	sion	that
the	respondent	NO.1	was not	law	fully	expelle	d	could
not	have granted	relief	against	the	petiti	oner	who	was

¶35

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¶36

bonafidely inducted into the premises having paid due

¶37

consideration.

¶38

. No.1	On the other hand on behalf of the respondent his learned Counsel contends	that	the p	etitioner
cannot	now contend that the orders	are	liable to	be
set	aside on the ground that Smt.	Sur	ekha Akre	was
not	a party. It is submitted that	Surek	ha Akre wa	s a
party.	Surekha Akre applied for	being	dropped as	a
party.	That application was allo	wed.	The p	etitioner
herein	did not protest. In the	appeal	filed also	the
petitioner	did not raise a ground	of	non-joinder	of
Surekha	P. Akre and in these	circumsta	nces it is	not
open	to the petitioner for the	first	time before	this
Court	to raise the plea of non-join	der	of Shrekha	Akre
before	the Registrar for the first	time	before	this
Court	in a Petition seeking exerc	ise of	its	extra
ordinary	jurisdiction. In so far	as	expulsion	of
concerned,	it is pointed out that	apart	from	failure
to	comply with the principles of	natural	justice	and
fair	play there has been statutory	non	-compliance	by
the	respondent No.1 and in these		circumstances	the
petitioner	cannot complain that t	he	expulsion	was
illegal.	Lastly, it is submitted	that	the res	pondent
No.2	has admitted that the respond	ent	No.1 as	a
member.	Their Lawyer served a	notice	on	the
respondent	No.2 which the respondent	NO.2	accepted	the
respondent	No.1 as a member. There	is	an admission	in
the amount	reply filed that the respondent of Rs.40,000/-. If at a	No.1 ll the	had paid respondent	the No.1

¶39

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¶40

had	not	paid	the balanc	e amo	unt it	was because	the
respondent	No.2	did	not c	all o	n the	respondent N	O.1 to
pay	the	said	amount	which	otherwise	the	respondent
No.1	was	willing	to pay.		At any	rate it is	submitted
that	having	accep	ted that	Flat	No.22	was allotted	to
respondent	N	o.1 an	d the	same	flat is	allotted now	to
petitioner	as	a	consequence	of	setting	aside the	order
of	expulsion	the	respondent	No.1	will	have to be	put
back in	the	same	position	as	a me	mber entitled	to flat
No.22.		It	is, th	erefore,	submitted	that this	Court

¶41

ought not to interfere with the findings of fact and

¶42

the reliefs granted by the Courts below.

¶43

4.	The matter wa	s adjourned and heard on several
days.	Attempts	were also made to	see	if the		matter
could	be amicably	resolved. It	was	howe	ver,	not
possible	to do so.	At the hearing	on	behalf	of	the
petitioner	their learned	Counsel sought	to	pro	duce	the
documents	to show	that it is Surekha	Akre		who	was
admitted	as a me	mber in place of	the	respo	ndent	No.1.
This	plea of the	petitioner was rejec	ted	as it	is	not
the	case of the	petitioner that she	was	not		properly
represented	and, t	herefore, unable to		produc	e	the
documents	which are	sought to be p	roduced.		These	are
also	not documents	which have subseq	uently	came		into
existence	and/or whic	h were not	available		to	the
petitioner	when the	dispute was pending	or	have		been
now	discovered.	In these circumstances	to	my	min	d it
would	not be proper	at this stage	after	havi	ng	allowed
Surekha	Akre’s name	to be deleted	from	the	pr	oceedings

¶44

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¶45

to once again to reenlarge the scope of enquiry by allowing the said documents. That plea is, therefore, rejected.

¶46

5.	Having said so the 1st question that will have
to b	e decided is whether the respondent No.1	was
allotted	Flat No.22. To my mind apart from	the
findings	of facts there can be no dispute on	that
count.	We firstly have letter dated 1st	September,
1994,	wherein on behalf of the society their	learned
Counsel	had admitted that Flat No.22 had been	allotted
to Res	pondent No.1. In the written statement file	d by
respondent	No.2 in paragraph 4 they admitted	once
again	allotment of flat No.22, but sought to set	out
that	it was only tentative. In paragraph 8 of	the
written	statement it is set out that allotment of	flat
No.22	was cancelled. There is no dispute,	therefore,
that	the flat No.22 was allotted to the	respondent
No.1.	The only dispute remained is whether	that
allotment	was tentative. The society,	respondent
No.2,	which has raised the plea, chose not to	lead
evidence.	Apart from that not only was there	an
allotment	but the respondent No.1 herein was able	to
show	that he had paid to respondent No.2 a a sum	of
Rs.40,309/-	as part payment towards the cost	of
construction.	Respondent NO.1 has been able	to

¶47

establish and the Courts below have rightly held that

¶48

Flat No.22 was allotted to the respondent No.1.

¶49

Dealing with the second contention of

¶50

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¶51

expulsion	from membership it	woul	d be clear on	the
findings	of fact recorded	that	respondent No.1	was
expelled	without following	due	procedure though	this
was	sought to be contest	ed	on behalf of	the
petitioner.	Nevertheless	the	fact remains that	the
expulsion	was not approved	by	the Registrar	as
required	under the provisions	of	the Act. Once	there
was	no approval from the	Reg	istrar the expulsion	would
be	of no consequence and	the	respondent No.1	would

¶52

continue to be a member. That contention must also be

¶53

rejected.

¶54

7.		The last conten	tion is whether the relief as
granted	c	ould have	been granted in f	avour	of	the
respondent		No.1.	The respondent No.1	was	legally	and
lawfully		admitted as	member. He was		allotted	flat
NO.22.		He has paid	a sum of Rs.40,000/-	and	odd.	The
balance		amount was	not paid as it was	his	co	ntention
that h	e	was not so	informed. In other	words	in so	far
as	the	respondent	No.2 is concerned	the	res	pondent
NO.1	has	done whatever	legally he had to	do.	It is	no
doubt	true	that the	petitioner is now	in	possession	of
the	prem	ises and	has been there for		nearly	eight
years.		The petiti	oner has also paid the		amount	as
demanded		by the	respondent No.2. The		question	is
whether		on accoun	t of that the petitio	ner	should	be
denied	the	relief.	To my mind the r	esponden	t No.1	has
done		nothing which	would disentitle him	to	the	relief
as	granted.	In	these circumstances me	rely	because	the
hardship		would be	occasioned to the	pe	titioner	cannot

¶55

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¶56

be a ground for refusing the relief to the respondent No.1 herein. In my opinion therefore, it would not be

¶57

possible to interfere with the reliefs as granted by

¶58

the Courts below.

¶59

8.	It was	lastly submitted that as	now the
petitioner	would	be denied	posses	sion	of the	flat	the
Courts	below	have also not	gra	nted	as a	n	equitable
consideration,	refund	of the	am	ounts	taken	from	the
petitioner.	In	my opinion	ends	of	justice	would	be
met	if the	respondent No.2	is	direc	ted to	refund	to
the pet	itioner the	amount paid	by	her	towards	the	cost
of	the flat.	Considering	that	the	Courts	below	had
directed	payment	of interest	at 1	2%	per	annum	by
petitioner	to res	pondent NO.2	it	would	be	in	the
fitness	of things	that the	resp	ondent	No.2	is	directed
to	pay to	the petitioner	that	amo	unt with	interes	t at

¶60

the rate of 12% per annum from the date of payment

¶61

till the amount is paid to the petitioner.

¶62

9.		It may	be mentioned	that the pe	titioner	has
also	taken	out	Chamber	Sum	mons	being	Chamber		Summons
NO.192	of	2004	to	amend	the	petition	in so	far	as
Surekha	P.	A	kre.	For	the	reasons	already	stated	in

¶63

the judgment this will not be a fit case to allow the

¶64

Chamber Summons. Hence, Chamber summons rejected.

¶65

For all the aforesaid reasons petition

¶66

disposed of in terms aforesaid with the direction as

¶67

set out in paragraph 8. There shall be no order as to

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costs.

¶70

11.			Learned Co	unsel for	the petitione	r seeks	stay
of	the		order	of	eviction	of	the	petitione	r	for a
period		of	eight		weeks.		Conside	ring	that	the
petitioner		is	in	posse	ssion	of	the	flat	the	petitioner

¶71

not to be evicted for a period of eight weeks from

¶72

today.

¶73

12.		It will b	e open to t	he petitioner	to take such
steps	for	recovery	of	any	additional	money	paid	by the
petitioner		to	the	society	according	to	law.	However,

¶74

that question was not in issue in this petition and

¶75

neither has been considered or answered.

¶76

. Parties/Authorities to act on an ordinary copy

¶77

of this order duly authenticated by the

¶78

Associate/Personal Secretary of this Court.

¶79

(F.I . REBELLO, J.)

Shanti D.Talreja v. R.D.Javkar and Ors.

Case brief

What is this about?

What did the court decide?

Shanti D.Talreja v. R.D.Javkar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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