caw2734-09.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2734 OF 2009 IN WRIT PETITION NO.3860 OF 2004 Sind Hindu Co-operative Hsg.Soc. Ltd .. Applicant versus Giridhar Thakurdas Bhojraj & Ors .. Respondents Mr.P.K.Dhakephalkar, Sr. Adv with Jaydeep Deo for the applicant. Mr.Vikas Shivarkar for intervenor. CORAM : S.C.DHARMADHIKARI, J. DATE : 4th July 2011. P.C.: 1] Mr.Dhakephalkar, learned Senior Counsel appearing for applicant – original petitioner states that the petitioner withdraws all allegations against the then Secretary of the Society, Mr.Dardi. The statement is accepted. Equally, it is stated that the applicant – original petitioner has no grievance against the Advocate who appeared for the society on the caw2734-09.doc 2 relevant date. 2] It is pointed out that the petition was withdrawn in the light of the fact that the society resolved that the dispute be amicably settled and consent terms be filed in the Court, recording withdrawal of the petition. However, no such consent terms are on record but the petition is simplicitor withdrawn and that was under some mistaken belief. My attention is invited to annexures of this application and it is contended that the petitioner society wishes to continue with the petition. That is how the application is made and the affidavit/ affirmation is by the Chairman who has been duly instructed by the society to go ahead and make an application seeking restoration of this petition to its file. 3] The request is opposed by the then Secretary who has moved an application being Civil Application Stamp No.989 of 2010 for intervention and amendment. It is contended that the present application is moved but it is not supported by any caw2734-09.doc 3 resolution of the society. Therefore, such a resolution be produced as the documents which are annexed to the application by Mr.Dardi would show that the society has indeed resolved to withdraw this petition and that the Chairman and all others were signatories to the same. My attention is also invited to this document which would show that the petition is rendered infructuous. 4] After hearing both sides to my mind, whether the relief can be granted or that the petition has become infructuous, is a matter which cannot be resolved in the present application. Suffice it to note that the application is made on the basis that the society did not resolve to withdraw the petition without comprehensive terms recording arrangements between the parties. The matter was hotly contested and that is evident from the record of the Executing court as well. On some oral statements being made, the executing Court proceeded to direct implementation and execution of the award which is challenged in this petition. There would be serious caw2734-09.doc 4 complications if the matter is not resolved and decided on merits is the reply of the petitioner. It appears that internal disputes are being brought before this Court. In the light thereof, the interest of the Cooperative society should not suffer. In the larger interest of justice and a writ petition in relation to Flat No.22 being pending in this Court, the relief can be granted. 5] Having perused both applications I am of the opinion that no prejudice would be caused by restoration of the petition to the file of this Court. Whether any relief can be granted in favour of the petitioner society or that the petition is rendered infructuous or not are matters which can be kept open post restoration also. The same can be pointed out to this Court later on. It is not as if mere restoration causes prejudice to opposite parties. It is stated that all respondents to this application are duly served. In these circumstances and when allegations made against the then Secretary are withdrawn, this application is allowed. It is made absolute in terms of prayer caw2734-09.doc 5 clauses (a) and (b). The petition is restored to file of this Court for being decided in accordance with law. All contentions of parties are kept open. (S.C.DHARMADHIKARI, J)