Everard Towers Co-Operative Housing Society Ltd. Vs State of Maharashtra and Ors.

2023:BHC-AS:39759

3-wp-1130-2021.doc

¶3

Sonali

¶4

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

¶5

WRIT PETITION NO.1130 OF 2021

¶6

Everard Towers Co-operative Housing Society Ltd....Petitioner
 Versus

¶7

State of Maharashtra & Ors...Respondents

¶8

Mr. Bhavik Manek a/w. Mr. Pranav Chavan i/b. Mahesh Menon, for the
Petitioner.

¶9

Mr. S. D. Rayrikar, AGP, for the State/Respondent Nos.1 to 3.

¶10

Mr. Sanjeev Punalekar and Mr. Ranjeet Nair i/b. Ms. Suvarna Vast Avhad,
for Respondent No.4.

¶11

CORAM : MADHAV J. JAMDAR, J. DATED : 9^th OCTOBER 2023

¶12

JUDGMENT:

¶13

1. Heard Mr. Manek, learned Counsel appearing for the Petitioner,

¶14

Mr. Rayrikar, learned AGP appearing for the State/Respondent Nos.1

¶15

to 3 and Mr. Punalekar, learned Counsel appearing for Respondent

¶16

No.4.

¶17

2.The challenge in the present Writ Petition is to the legality and
validity of the Order dated 26th February 2019 passed by the learned
Deputy Registrar, Co-operative Societies, L Division, Mumbai in
Recovery Application No.24 of 2018 filed under Section 101 of the
Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to

¶18

1/8

¶19

3-wp-1130-2021.doc

¶20

Sonali

¶21

as “said Act”) and to the legality and validity of Order dated 4th
January 2020 passed by the learned District Deputy Registrar, Co-
operative Societies(2), Eastern Suburb, Mumbai in Revision
Application No.11 of 2019 filed under Section 154 of the said Act.
Both the impugned Orders have been passed by giving reasons that
there are triable and complicated issues are involved in the matter.

¶22

3.The factual position on record shows that the dispute is with
respect to the arrears of maintenance charges regarding flat
No.B/106, Everard Towers Co-operative Housing Society Limited,
Sion (“said flat”). The said flat was belonging to original member
Mrs. Queenie Szarafinski who was residing abroad. The said original
member passed away on 16th January 2009 and after the death of
original member, the Respondent No.4-Valentine Charlesworth
claimed membership on the basis of last Will and Testament dated
11th February 2008 of the deceased. He has also relied upon
nomination dated 2nd December 2004. The Petitioner-society
however, did not transfer the Share Certificate in the name of
Respondent No.4 and therefore, Respondent No.4 approached the
learned Deputy Registrar Co-operative Societies and obtained Order
dated 8th August 2012 directing the Petitioner to transfer the Share

¶23

2/8

¶24

3-wp-1130-2021.doc

¶25

Sonali

¶26

Certificate to the name of the Respondent No.4 and said Order was
challenged by the society and ultimately the said challenge failed vide
Order dated 26th July 2013 passed by this Court in Writ Petition
No.5669 of 2013. Thereafter, the Share Certificate was transferred on
4th September 2013 in favour of the Respondent No.4. In the
meanwhile, the redevelopment of the society’s building took place
and developer constructed the new building comprising of 2
basements +Ground+12 floors having 92 residential flats. The
developer by letter dated 16th March 2016 forwarded an amount of
Rs.5,39,750/- to the Petitioner-Society which was due and payable to
the said original member.

¶27

4.Thereafter, the society initiated proceedings under Section 101
of the said Act seeking recovery of Rs.4,11,129/-. The said
Application was filed on 22nd May 2014 for the period of 1st April
2011 to 31st March 2014. On the basis of the said Application, the
Recovery Certificate has been issued by Order dated 27th October
2017 passed by the learned Deputy Registrar, Co-operative Societies,
L Division, Mumbai and the same has attained finality.

¶28

5. Thereafter, again the Recovery Application No.24 of 2018 is taken out in June 2018 for recovery of Rs.4,12,653/- as on April

¶29

3/8

¶30

3-wp-1130-2021.doc

¶31

Sonali

¶32

2018 i.e. from 1st June 2014 to 30th September 2017. The learned
Deputy Registrar after considering the various contentions and on the
basis of the decision of a Division Bench of this Court in the case of
Top Ten, vs. State of Maharashtra1held that very small types of
disputes in which only limited question is that of quantification of
arrears due, is to be looked into by such Registrar while undertaking
inquiry under Section 101 of the said Act. It is further held that either
the arrears are already declared due by some authority or if the same
can be ascertained on the basis of statement of accounts and other
material on record can be determined by Registrar. The moment it is
demonstrated to Registrar that a bona fide and genuine defense
about said arrears is raised which calls for a finding on disputed facts,
need for cross examination surfaces then in such event Section 101 of
the said Act ceases to apply. It is further held that the concerned
society, in such circumstances, has to take recourse to filing of a
dispute under Section 91 of the said Act, where such disputed
questions can be gone into. Hence, a bona fide defence being raised
by a borrower or other person against whom such certificate is
sought, cannot be resolved by the Registrar under this jurisdiction. If

¶33

1 (2012) 1 Mah LJ 347

¶34

4/8

¶35

3-wp-1130-2021.doc

¶36

Sonali

¶37

he finds such dispute arising, he has to deny the Recovery Certificate
by passing appropriate judgment under Rule 86F of the Maharashtra
Co-operative Societies Rules, 1961(“said Rules”).

¶38

6.In view of the above legal position, it is necessary to appreciate
the factual position. The said original member passed away on 16th
January 2009. The Respondent No.4 claimed ownership on the basis
of last Will and Probate obtained from the State of Michigan, USA
and accordingly, the learned Divisional Joint Registrar, Co-operative
Societies, Mumbai by Order dated 30th April 2013 dismissed the
Revision filed by the Petitioner under Section 154 of the said Act and
upheld the Order dated 7th August 2012 passed by the learned
Deputy Registrar seeking membership. The Petitioner-Society
challenged the said Order by filing Writ Petition No.5669 of 2013 and
a learned Single Judge by Order dated 26th July 2013 dismissed the
said Petition. The said order reads as under:-

¶39

“Heard.

¶40

By this petition, the petitioner impugns the order of
the Divisional Joint Registrar, Co-operative Societies,
Mumbai dated 30.4.2013 dismissing the revision filed
by the petitioner under section 154 of the
Maharashtra Co-operative Societies Act and upholding

¶41

5/8

¶42

3-wp-1130-2021.doc

¶43

Sonali

¶44

the order of the Deputy Registrar dated 7.8.2012
allowing the application filed by the respondent no.1
under section 23 of the Act.

¶45

On hearing the learned counsel for the parties and on
a perusal of the impugned orders it appears that there
is no scope for interference with the impugned orders
in exercise of the writ jurisdiction. Mrs. Queenie
Szaranfinski was the owner of the flat and the
respondent no.1, who claims the membership under
section 23 had produced a Will and the Probate
obtained from the State of Michigan (U.S.A.) before
the Authorities. The authorities found that the
question whether the Will was valid or not could not
have been considered by the authorities. The
authorities held that there was nothing on record to
show that the Probate was fraudulently obtained.
Moreover, it was found that the petitioner-society had
not sent a letter to the owner or to the respondent
no.1 that the nomination of the respondent no.1 could
not have been accepted. The findings recorded by both
the authorities are pure findings of facts based on a
proper appreciation of the material on record and call
for no interference in exercise of the writ jurisdiction.
The submission made on behalf of the petitioner that
the order of the Deputy Registrar dated 7.8.2012 is
contrary to its earlier order dated 13.9.2011 is not

¶46

6/8

¶47

3-wp-1130-2021.doc

¶48

Sonali

¶49

well founded and liable to be rejected.
Since there is no merit in the writ petition the same is
dismissed with no order as to costs.”

¶50

(Emphasis added)

¶51

7. It is significant to note that admittedly by letter dated 16^th

¶52

March 2013 the developer forwarded an amount of Rs.5,39,750/- to
the Petitioner on account of the original member i.e. Mrs. Queenie
Szarafinski. In fact, pursuant to orders passed by the authorities, as
confirmed by this Court, as set out hereinabove the transfer of Share
Certificate took place on 4th September 2013 and therefore, the
Society should have made the payment of the said amount of
Rs.5,39,750/- to the Respondent No.4. However, it is an admitted
position that the said amount is still lying with the Petitioner-Society.
Thus, it is clear that this is a matter where an Application for
Recovery Certificate has been filed for an amount of Rs.4,12,653/-
which included interest on arrears at 21% per annum and at the
same time, the Society has retained the said deposit of Rs.5,39,750/-.

¶53

8.Thus, as rightly held by the impugned Orders there are several
triable issues raised by Respondent No.4. In the light of law laid
down by this Court in Top Ten(supra), there is no illegality or
irregularity committed by the authorities in passing the impugned

¶54