:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOBBY THE HIGH COURT OF JUDICATURE AT BOBBY THE HIGH COURT OF JUDICATURE AT BOBBY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO. 1096 OF 2008 SUMMONS NO. 1096 OF 2008 SUMMONS NO. 1096 OF 2008 IN IN IN EXECUTION EXECUTION EXECUTION APPLICATION (L) NO. 245 OF 2008 APPLICATION (L) NO. 245 OF 2008 APPLICATION (L) NO. 245 OF 2008 IN IN IN CASE CASE CASE NO. CC/IV/240/2002 NO. CC/IV/240/2002 NO. CC/IV/240/2002 Smt. Bhagvati K. Joshi. ... Applicant. V/s. Shree Markendeya Padmashali. ... Respondent. Mr. Rajiv Narula a/w. Mr. Dasgupta i/b. J. Narula & Assoc. for the Applicant. Mr. Santosh Kyadipuppi for the Intervener. Mr. D.G. Bagwe for Society. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 29TH 29TH 29TH JANUARY 2009. JANUARY 2009. JANUARY 2009. P.C. P.C. P.C. : : : . In this Execution Application the request of the Applicant/Original Disputant before the Cooperative Court is that the Court Receiver be appointed as Receiver of the flats more particularly described in prayer clause (a) of this Chamber Summons. 2. Prayer clause (a) of this Chamber Summons reads as under :- (a) That this Hon’ble Court be pleased to appoint Court Receiver, High Court, Bombay as Receiver of the flats namely B-23, B-34, C-37 or :2: C-38 admeasuring 500 square feet in the property of the Respondents Society situate at Park Avenue, Plot No.34-35, Sr. No.111-B, Near RTO Office, Four Bungalow, Andheri (West), Mumbai 4000 053 or any other vacant flat admeasuring 500 square feet in the Respondent Society with all powers under Order XL, Rule 1 of the Code of Civil Procedure and the Receiver be directed to take charge of the said flats and hand over the same to the Applicant." 3. It is stated in the affidavit in support of this Chamber Summons that the Applicant had filed a dispute in Cooperative Court at Mumbai being Case No.CC-IV/240/02 for a declaration that she is entitled to a flat having area of 500 sq.ft. in the Respondents - Society and for a direction to this Society to hand over the same to her. 4. It is stated that the Cooperative Court has passed an order dated 16th January 2004 and the Award made in pursuance of this order reads as under :- "WHEREAS, the disputant has filed this dispute, against the opponent for allotment of flat to the disputant. NOW, after service of the summons, and after hearing both parties, judgment is passed separately and following award is passed :- :3: (1) It is hereby declared that, the disputant is entitled for a flat, having area of 500 Sq.ft. in the opponent society. (2) The opponent society is hereby directed to handover a flat having area of 500 sq.ft. to the disputant, subject to payment of cost of construction as decided by the society. (3) No Order as to the costs." 5. Mr. Narula’s submission on the last occasion as also today is that this award is executable as a Decree of a Civil Court. The award has been transmitted to this Court for execution as a decree of this Court and therefore, the relief claimed in the Chamber Summons be granted and the Applicant be permitted to enjoy the fruits of this award/decree in her favour. 6. When this matter was placed before me on 7th October 2008, I had recorded the statement of Mr. Narula that without prejudice to the rights and contentions of the parties, the Applicant would deposit in this Court a sum of Rs.4.5 lakhs on or before 20th October 2008. This amount is deposited in this Court. 7. The Society had filed an affidavit and stated :4: before me that it is unable to hand over the flat in the Co-operative Housing Society to the Applicant/Disputant because third parties have taken possession of the flats without the knowledge of the Society or its Office bearers. A reference is made to some police complaints and that is how the Court Receiver was directed to visit Flat B-23 and make inventory thereof so also submit a report. The Court Receiver was not permitted to disturb the physical possession of the occupant. 8. After the Court Receiver submitted a report, the matter was placed before me on 25th November 2008. After hearing parties at length, I had noted that one M/s. Villayati Ram Mittal, allegedly claiming to be a assignee of the financer engaged by the Respondent - Society, claims to be in possession of this Flat No.B-23. Notice was, therefore, directed to be issued to the said M/s. Villayati Ram Mittal and one Vinod Saraf, Constituted Attorney of this firm was present in Court. His Advocate was also permitted to make submissions. 9. The Advocates sought to intervene on behalf of this Villayati Mittal and it is urged by him that the Society is trying to defeat the rights of M/s. Villayati Mittal. It is not correct that M/s. Villayati Mittal and the Society have no privity of contract. On the other hand, it was sought to be clarified that one M/s. Shrimati Trading & Finance Co. had assigned the rights to M/s. :5: Villayati Ram Mittal and this assignment is to the knowledge of the Society. However, the Society denies being a party to the alleged arrangement. It states that it has not assigned any right in favour of this developer. 10. It is with regard to the flats which are more particularly mentioned in my order dated 25th November 2008 that I intended to appoint a Receiver and therefore permitted the third party to file an affidavit. 11. M/s. Villayati Ram Mittal has co-operated in implementation of this order by handing over a set of keys of Flat No.B-23 to the Court Receiver. However, the request was not to disturb the physical possession of the occupant who is none other than an employee/watchman of M/s. Villayati Ram Mittal. 12. After the matter was adjourned, not only the Society but M/s. Villayati Ram Mittal have filed affidavits. The Applicant/Decree Holder has filed an affidavit disputing the contents of the affidavit of M/s. Villayati Ram Mittal. 13. After all the affidavits were filed, parties were permitted to make oral submissions. 14. I have perused with the assistance of Mr. Narula and Mr. Bagwe so also the Counsel appearing for the :6: Intervenor all affidavits and annexures thereto. 15. The submission of the developer M/s. Villayati Ram Mittal is that Flat No.B-23 which is claimed by the Applicant/Decree Holder belongs to the developer and he has rights therein. It is contended that without making the developer a party and suppressing from the Co-operative Court the material facts pertaining to the rights of the developer, the Applicant and Society have colluded with each other and that is how the Award has been passed. The said award does not bind M/s. Villayati Ram Mittal. It is null and void and cannot be given effect. 16. That apart, the award dated 16th January 2004 has been challenged by the Developer by filing an Appeal before the Co-operative Appellate Court and the developer intends to make application for Interim Reliefs therein shortly. It is contended that if the Court Receiver is directed to take possession of this flat from the Developer and to hand it over to the Applicant/Decree Holder not only the rights of the Developer, but his appeal would be rendered infructuous. Therefore, the developer be heard in these proceedings and be permitted to make detailed submissions so that the rights of the developer - Society can also be considered by this Court. 17. After having perused the entire material on record, :7: in my view, this Court cannot go into the disputes interse between the society and M/s. Villayati Ram Mittal. This Court has a very limited jurisdiction inasmuch as an Execution Application is filed by the Applicant in the above Co-operative Court Dispute, for execution of the Award dated 16th January 2004 passed in her favour. She states that the Award be executed as a decree of this Court and appropriate orders in execution be passed so as to give effect to the same. The limited prayer is that the Applicant is entitled to a flat of 500 sq.ft. and the Society must be directed to hand over the said flat. The Society has accepted the Award and from 2004 till date the Award has not been set aside. It is pointed out to me that the society, in its affidavit filed in these proceedings, has made a statement on oath that the society has approved membership of the Applicant and Flat No.B-23 has been reserved for the Applicant in the Society Building. Thus, as far as the Society is concerned, the Award is final and binding. 18. I do not wish to enter into any controversy about any further amount being payable by the Applicant to the Society. That is not subject matter of the proceedings before me nor in the Award any direction is given to that effect. If at all any further amounts are payable to the society by the Applicant, it is for the Society to adopt appropriate proceedings for recovery of the same. As of now, when the Society has reserved Flat No.B-23 for the :8: Applicant, then, it must proceed to hand over possession thereof to this Applicant. The direction to do so can always be issued. More so, when the Society has consented to the Court Receiver being appointed in respect of this Flat and the keys of this flat are deposited with the Court Receiver. 19. The only request made by Mr. Bagwe at this stage is that the Society be permitted to withdraw the sum of Rs. 4.5 lakhs deposited by the Applicant in this Court with accrued interest. The request is not opposed by Mr. Narula. The Society is, therefore, permitted to withdraw the sum deposited by the Applicant with accrued interest on production of authenticated copy of this order. Needless to state that this will not put an end to the rights of the Society and the Applicant in so far as any payments to the society and all pleas and contentions of both sides in that behalf are kept open. 20. However, it is contended by the Developer M/s. Villayati Mittal that having permitted him to argue the matter and file affidavit, this Court must go into all aspects of the dispute including between M/s. Villayati Mittal and the Co-operative Housing Society/Respondent/Opponent before me. It is contended that Flat No.B-23 and other flats cannot be claimed by the Society. It is stated that the Society is bound by the arrangement between the M/s. Villayati Mittal and M/s. :9: Shrimati Finance and the Society. It is contended that if direction is issued to the Receiver to hand over possession of the flat to the Applicant, then, grave loss and serious prejudice will be caused to the developer. 21. As already indicated above, and once the developer M/s. Villayati Ram Mittal has filed an Appeal challenging the Award of the Co-operative Court and even otherwise has remedies in law to assert the rights, if any, in these flats, this Court cannot to decide the dispute between persons who are not party to the decree/award. Admittedly, M/s. Mittal is not a party to the Award of the Co-operative Court. Admittedly, M/s. Mittal does not urge that the Award cannot be executed by this Court as its decree. The contention is that while executing and enforcing the Award, this Court must not loose sight of the rights of M/s. Villayati Mittal and pass any order prejudicial to him. 22. I am not passing any order prejudicial to M/s. Villayati Mittal. Since the Applicant is entitled to a flat in the Society and the Society states that it has reserved flat No.B-23 for the Applicant that I issued directions to the Court Receiver so that the Decree/Award can be enforced and executed in law. Ultimately, the Applicant must enjoy the fruits of her decree and should not be deprived it merely because there is some dispute between the Society and the developer before me. It is in :10: such circumstances and in my limited jurisdiction that I can appoint the Court Receiver. However, none of my orders including one passed today shall be construed as expressing any opinion on the controversy raised with regard to the rights of M/s. Villayati Mittal and the Cooperative Housing Society. All pleas and contentions in that behalf are kept open. It is clarified that this order does not conclude that controversy. As and when M/s. Villayati Mittal is able to assert his rights in the flat in appropriate proceedings all such orders and directions as are issued in the same, would be given effect to and this order shall not be construed as any impediment or power to do so. In other words, if M/s. Villayati Ram Mittal succeeds in the Appeal or obtains any interim orders in his favour or otherwise asserts and proves his rights, then, orders in these proceedings shall be given effect to irrespective of this Court appointing a Court Receiver and issuing directions to put the Applicant in possession of Flat No.B-23. The orders and directions issued today as well as earlier shall be subject to outcome of the proceedings initiated by M/s. Villayati Mittal. 23. Pursuant to my order passed on 25th November 2008, keys of flat No.B-23 have been deposited with the Court Receiver. Further, the developer M/s. Mittal was directed not to create any third party rights or part with possession of the flats which are more particularly :11: described in para 5 of my order dated 25th November 2008. 24. I had recorded in the further order passed on 13th January 2009 that status-quo in respect of these flats be maintained, what remained to be done was to obtain the list of employees/persons occupying the flats. That was not forwarded on 13th January 2009 but the developer sought time to file additional affidavit. Now, an additional affidavit is filed in which all details are disclosed with regard to the occupation of these flats. 25. In the light of the above, and considering that the developer seeks liberty to apply for and obtain appropriate orders from the Co-operative Appellate Court, it is directed that for a period of two weeks from today, the Court Receiver shall retain with him the keys of Flat No.B-23 and shall not disturb the physical possession/occupation of the occupant of this Flat. However, if M/s. Mittal is unable to obtain any orders from the appropriate Court within this period, then, the Applicant is at liberty to move the Court Receiver and request him to put her in possession of Flat No.B-23 and the Court Receiver thereupon shall put the Applicant in possession of this flat by removing all obstructions and impediments including forcibly taking possession of this flat from the occupant with Police help. The Court Receiver shall, then, put the Applicant in possession of this Flat but such possession and occupation shall not :12: affect the rights of the society and the developer in the proceedings that may be initiated or are pending. 26. As far as the other flats are concerned, the order passed on 25th November 2008 shall continue for a period of four weeks from today. 27. On the earlier occasion, I had requested the learned Assistant Government Pleader who had appeared before me to take instructions from the Collector, Mumbai Suburban District and the Registrar, Co-operative Housing Society about allotment of Plot Nos. 34 and 35 to the Respondent/Defendant/Society, construction made thereon as the dealings and transactions by the Society leave a lot to be desired. Mr. Bagwe does not dispute that the society was under the charge of the Administrator on more than 4 to 5 occasions but the Administrator was not been successful in improving the state of affairs. The management is not satisfactory but no remedial steps could not be taken to improve it. In other words, the powers of the Administrator were not being exercised so as to take remedial measures. In my view, all orders and directions in this matter are enough indication of the Society’s affairs being not conducted in a manner befitting the principals for which co-operative movement has been initiated in this State. The principles enshrined in Articles 40 and 43 of the Constitution of India based upon which the Co-operative movement gained roots in :13: Maharashtra and the statutory enactment viz. M.C.S. Act. 1960 was enacted, are being defeated and frustrated in this case. The authority even now can take steps not only to appoint an Administrator but to take charge of the affairs of this Society so as to protect and preserve valuable State property. It is for the authorities to initiate enquiries and proceedings against the defaulting office bearers/officers and recover amounts from them in accordance with law. However, until that is done, this Court cannot refuse to assist a genuine member. I cannot take further action in my limited jurisdiction. 28. A copy of this order be forwarded to the Collector, Mumbai Suburban District and the Registrar, Co-operative Society Ltd. for action and report. The said authority to submit their report after necessary investigation within a period of three months from today. 29. In the result, the Chamber Summons is made absolute in terms of prayer clause (a). 30. However, the Court Receiver is appointed only in respect of Flat No.B-23 with directions as above. As far as the other flats are concerned, the order of status-quo to continue in the manner and for the time stipulated above. The Court Receiver shall stand discharged after he implements the orders and directions of this Court and puts the Applicant in possession but the Applicant shall :14: be liable to re-imburse the costs, charges and expenses incurred by the Court Receiver. No costs. 31. The intervention of the developer is permitted to the limited extent as indicated above and only to enlist the factual position at site. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)