1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.901 OF 2009 WITH CIVIL APPLICATION NO.1108 OF 2009 Dhaval Rajnikant Shah & Anr. ..Appellants V/s M/s.Roop Realtors ..Respondents ---- Mr .Uday P. Warunjikar for the appellants. Mr.P. K. Dhakephalkar, Sr.Advocate alongwith Cyrus Ardeshi, Anil Jaryal & Mrs.Rashmi for the respondents. ---- Coram : R.S.MOHITE,J Date : 15th September, 2009. PC 1 This is an appeal filed by the original plaintiffs impugning an order dated 14.5.2009 passed by the City Civil Court in their Notice of Motion. By the impugned order the City Civil Court has dismissed the plaintiffs’ Notice of Motion. The plaintiffs are the joint purchasers and joint shareholders of the suit premises bearing flat no.A-2 on the ground floor of Kandivali Roop Nagar Co-operative Housing Society Ltd, situated at Swami Vivekanand Road, Kandivali (West), Mumbai-400 064. The premises has been purchased by them by an agreement dated 11.7.2002. Plaintiff no.1 is an Architect by profession and he along with some other family members are carrying on business of Architect in the name of D.I.Construction in the suit premises. It is the case of the plaintiffs that the society is charging them commercial rates and they are also paying commercial rates to the B.M.C. It 2 is not in dispute that there is no specific order for change of user granted in respect of the said premises. 2 It appears from the record that the Co-operative society in a Special General Body Meeting held on 12.8.2007 has passed a resolution concerning re-development of the property and in pursuance of the said resolution by re-development agreement dated 31.5.2008, appointed the defendants to effect the said re-development. It appears that out of 62 members of the society, 2 members claimed that they have not signed the resolution. Out of the 2 members, 1 person had filed the suit but subsequently he also consented to the re-development. It also appears that society has filed dispute in the Co-operative court at Mumbai inter alia for a declaration that withholding of possession by the present plaintiffs is illegal. In the said dispute a further declaration is sought that the resolution of the General Body dated 12.8.2007 and 17.8.2008 as well as related decisions and resolutions are proper. There are further prayers which are sought relating to change of user and appointment of Court Receiver. The said dispute is pending. 3 The plaintiffs have filed the present suit prior to filing of the dispute on 19.1.2008 and by the said suit they pray that the defendants should not disturb their possession in accordance with due process of law. They further pray for a declaration that since there is no privity of contract, the plaintiffs are not bound and liable under the development agreement. In their suit they filed a Notice of Motion and by the impugned order, trial Court has refused to grant reliefs as prayed for by the plaintiffs. 4 After hearing both sides, in my view, the issue is covered by the judgment of this 3 Court in the case of Raja Construction Co. V/s. Sahara Co-op. Hsg. Ltd & Ors decided by this Court on 31st August, 2007 in Notice of Motion No.2753 of 2007 in Suit No.2105 of 2007. In that case this Court considered the question of binding nature of a resolution passed by a General Body of a Co-operative Society on a minority of members who were not parties to the said resolution and had not attended the General Body Meeting. In paragraphs-6 & 7 of the judgment the Court observed as under :- (6)So far as the merits of the case is concerned, fulcrum of the argument of the Defendant Nos.2 and 3 was that the agreement executed in favour of the plaintiff is without following due process of law. The grievance is that in one General Body Meeting held on 11th June, 2006, all actions have been finalised, namely, invitation of tender from the plaintiff and acceptance thereof including resolution passed to appoint the plaintiff as developers. The argument clearly overlooks that the General Body resolution was passed in the meeting held on 11th June, 2006, attended by nine members out of twelve members of the society, unanimously. In other words, the overwhelming members are committed not only to development of the property, which is imperative having regard to the dilapidated condition of the building, but also in favour of assigning the work of redevelopment to the plaintiff only. It is on that basis, agreement has been executed in favour of the plaintiff on 1st September, 2006. Consequent to that agreement, the plaintiff has taken all necessary steps for obtaining permission of Municipal authorities. It is a matter of record that the Corporation has already issued IOD in respect of the building to be redeveloped as back as in March, 2007 but the work could not be proceeded further because of the recalcitrant attitude of the defendant NO.2 and 3. It is also matter of record that due to delay in work, portion of the building has collapsed in April, 2007. (7) Significantly, the resolution passed by the General Body as back as on 11th June, 2006 has been allowed to operate and to be acted upon without any challenge from the three members who did not attend the General Body Meeting. As has been mentioned earlier, although the Defendant No.4 was not present in the General Body Meeting has now through Counsel supported the cause of the Defendant No.1- society and agrees to abide by the resolution of the General Body Meeting. Thus understood, it is only the Defendant Nos.2 and 3, who are in miniscule minority, are resisting the development work of the project by resorting to frivolous and untenable pleas, such as taken before this Court, without challenging the validity of the resolution already passed by the General Body as back as on 11th June, 2006, which is binding on them. It is not only that resolution but also the actions taken by the Defendant No.1 on the basis of such resolution will bind the Defendant Nos.1 and 3 who are members thereof. Even the steps taken by the Defendant No.1 society acting upon the General Body resolution which is supreme, have not been challenged before any court of law. The Defendant No.1 society is obviously a 4 Tenant Co-partnership Housing Society. The interest of the Defendant Nos.2 and 3 in the premises occupied by them is limited. It is seen that the agreement between the society and plaintiff fully secures that interest of the Defendant Nos.2 and 3. They have been assured of allocation of premises in the newly constructed building in lieu of their present premises. 4 The observations of the Court indicate that the view taken is that the General Body of a Co-operative Society and the resolution that it passes is supreme and is binding on the minority which does not agree with the resolution. That being the position, in my view, no fault can be found in the impugned order. Senior Counsel for the respondents states that without prejudice to the rights of the parties who had filed the dispute in the Co-operative court, his clients will be filing independent proceedings in an appropriate court if necessary, and relying upon the aforesaid judgment, will be praying for an appointment of Court Receiver and consequent directions. This indicates that the respondents are also inclined to follow due process of law. This is one additional reason why this appeal is required to be rejected. Appeal is therefore, dismissed. 5 As the main appeal is dismissed, Civil Application No.1108/2009 does not survive and stands disposed off accordingly. (R.S.MOHITE,J) 5