Dismissed

Gandhinagar Cooperative Housing Society Ltd. Thr. Its President v. Navnath Mahajan and Anr.

Bombay HC18 Dec 2012WP/3854/2012

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging concurrent orders of Cooperative Courts. The society was directed to execute a sale deed for a plot reserved for the respondent despite the petitioner's claim of no concluded contract and a pending civil suit injunction.

What did the court decide?

Writ petition dismissed with no order as to costs.

Gandhinagar Cooperative Housing Society Ltd. Thr. Its… — Property and Title | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.

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WRIT PETITION NO. 3854 OF 2012

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(Gandhinagar Co-op. Housing Society Ltd. Vs. Navnath Mahajan & another)

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Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders.

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Court's or Judge's Orders.

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Shri N. A. Vyawahare, Advocate for the petitioner. Shri V. A. Gosavi, Advocate for the respondent No.1.

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CORAM : SMT. VASANTI A. NAIK, J . DATED : DECEMBER 18 , 2012.

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By this writ petition the petitioner impugns the two concurrent judgments passed by the Cooperative Court and the Cooperative Appellate Court holding that the petitioner-society was liable to execute the sale deed of plot No.99 (old) plot No.

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1 (new) within a period of one month from the date of the award, failing which the respondent No.1 was at liberty to get the sale deed executed through the Court.

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The respondent No.1 is the original disputant. A dispute was filed by the respondent No.1 against the petitioner-society under Section 91 of the Maharashtra Cooperative Societies Act. It was the case of the respondent No.1 that the petitioner-society had allotted plot No. 99 in favour of the respondent No.1. It was pleaded that an amount of Rs.

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1,39,750/- (rupees one lac thirty-nine thousand seven hundred

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and fifty only) was paid by the respondent No.1 towards the consideration of the plot and an amount of Rs.55,250/(rupees fifty-five thousand two hundred & fifty only) was paid towards the development charges. Since the petitioner-society did not execute the sale deed of the plot in question in favour of the respondent No.1, the respondent No.1 filed the dispute.

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The petitioner-society denied the claim of the respondent and also denied that the plot was allotted in favour of the respondent No.1. It was the case of the petitionersociety that the letter issued by the petitioner-society was not an allotment letter, but was a simple letter informing the respondent No.1 that the plot would be reserved for him. According to the petitioner-society, the respondent No.1 could not have sought execution of the sale deed on the basis of the said letter. On the pleadings of the parties, the Cooperative Court framed the issues and on an appreciation of the evidence on record, held that though the plot was not allotted in favour of the respondent No.1, the plot was reserved by the petitioner-society for the respondent No.1. The Court observed that the entire consideration was paid by the respondent No.1 and the petitioner-society was liable to execute the sale deed in his favour.

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The petitioner-society was aggrieved by the order

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passed by the Cooperative Court and, therefore, filed an appeal before the Cooperative Appellate Court. The Cooperative Appellate Court, by the impugned judgment dated 27/4/2012, dismissed the appeal filed by the petitioner-society.

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It is submitted on behalf of the petitioner-society that there was no concluded contract between the parties and both the Courts have committed an error in directing the petitioner-society to execute the sale deed in favour of the respondent No.1 on the basis of a simple letter reserving the plot in favour of the respondent No.1. The learned Counsel for the petitioner submitted that there was no agreement of sale executed between the parties and the price of the plot was also not fixed. In such a case, according to the petitioner, the Courts could not have held that the respondent No.1 was entitled to purchase the plot in question. It is submitted that a civil suit is pending before the trial Court and in that suit an injunction is operating against the petitioner-society, thereby restraining the petitioner-society from selling the plots in the layout. It is submitted that, in view of the injunction, the respondent No.1 was not entitled to the relief granted by both the Courts. It is also submitted that since the Cooperative Court had observed that there was no allotment of the plot in favour of the respondent No.1, the Cooperative Court could

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not have directed the petitioner-society to execute the sale deed in favour of the respondent No.1.

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The learned Counsel for respondent No.1, on the other hand, supported the concurrent judgments passed by the Courts and submitted that both the Courts have correctly recorded a clear finding of facts that the plot was reserved for the respondent No.1 and since the respondent No.1 had paid the consideration as also the development charges, the petitioner-society was duty bound to execute the sale deed in favour of the respondent No.1. The learned Counsel sought for the dismissal of the writ petition.

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On hearing the learned Counsel for the parties and on a perusal of the impugned judgments, it appears that the Cooperative Court was justified in directing the petitionersociety to execute the sale deed in favour of the respondent No.1. Though, in the letter issued by the petitioner-society to the respondent No.1 the word ‘allotment’, did not occur, it was clearly stated in the communication that the plot was reserved for the respondent No.1. From the communications placed on record, the Cooperative Courts found that the respondent No.1 had paid the amounts as and when demanded by the petitioner-society, The petitioner-society had received an amount of Rs.1,39,750/- (rupees one lac thirty-nine thousand

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seven hundred and fifty only) towards the consideration and an amount of Rs.55,250/- (rupees fifty-five thousand two hundred and fifty only) towards the development charges. If the plot was not allotted to the respondent No.1, there was no occasion for the petitioner-society to demand the amount towards consideration and development charges and there was no necessity for the respondent No.1 to pay the said amount. At no point of time the petitioner-society returned the amount paid by the respondent No.1 to him. In this background, both the Courts rightly held that the petitioner-society could not have backed out from the agreement by which the petitionersociety had reserved the plot for the respondent No.1 and had secured the consideration as well as the development charges for the plot. Merely because the word, ‘allotment’ is not used in the communication, it cannot be said that there was no concluded contract between the parties. The cooperative society cannot be permitted to take advantage of its own wrong and deny the reliefs sought by the petitioner solely because the word, ‘allotment’ is not used in the communication issued by the petitioner-society to the respondent No.1. The submission made on behalf of the petitioner-society that the contract was not concluded is liable to be rejected. Both the Courts found that the petitioner-society demanded certain

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amounts towards the price of the plot and development charges and the respondent No.1 paid the same to the petitioner-society, without any demur.

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The submission made on behalf of the petitionersociety that the relief could not have been granted in favour of the respondent No.1 in view of the operation of a temporary injunction against the petitioner-society is also liable to be rejected. The petitioner-society can as well raise this issue at the appropriate stage, but the same cannot be a relevant fact for deciding the issues involved in this writ petition. The findings of facts recorded by both the Courts are just and proper and call for no interference in exercise of the writ jurisdiction.

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In the result, the Writ Petition is dismissed with no

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order as to costs.

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JUDGE

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wwl

Gandhinagar Cooperative Housing Society Ltd. Thr. Its President v. Navnath Mahajan and Anr.

Case brief

What is this about?

What did the court decide?

Gandhinagar Cooperative Housing Society Ltd. Thr. Its President v. Navnath Mahajan and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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