IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.350 OF 2003 IN WRIT PETITION NO.789 OF 2002 Nandadeep Highway Co-operative Housing Society Ltd., New M.I.G.Colony, Western Express Highway, Behind P.F.Office, ...Appellant Bandra (E), Mumbai-400 051 (Org.Petitioner) Versus Moti Gobindram Bijlani, 8/212, Nandadeep Highway Co-operative Housing Society Ltd., New M.I.G. Colony, Western Express Highway, Behind P.F.Office, ...Respondent Bandra (East), Mumbai-400 051. (Org.Respondent) ...... Sri C.P.Deogirikar for the Appellant. Mrs.R.S.Peerbhoy for Respondent. ...... CORAM: SRI R.M.S.KHANDEPARKAR & CORAM: SRI R.M.S.KHANDEPARKAR & CORAM: SRI R.M.S.KHANDEPARKAR & SRI P.B.MAJMUDAR, JJ. SRI P.B.MAJMUDAR, JJ. SRI P.B.MAJMUDAR, JJ. DATED: APRIL 29, 2008. DATED: APRIL 29, 2008. DATED: APRIL 29, 2008. ORAL JUDGMENT : (Per Majmudar, J.) ORAL JUDGMENT : (Per Majmudar, J.) ORAL JUDGMENT : (Per Majmudar, J.) 1. By filing this appeal, the appellant has challenged the order passed by the learned Single Judge dated 18th February 2003 passed in Writ : 2 : Petition No.789/2002, by which, the learned Single Judge set-aside the order dated 14th August 2001 passed by the President, Maharashtra State Co-operative Appellate Court No.II, Mumbai in Appeal No.125 of 2000. The learned Single Judge modified the order to the extent that the appellant society is entitled for Rs.3,700/- (Rupees Three Thousand Seven Hundred) only from the respondent towards principal amount and interest thereon at the rate of 12% per annum from the date of filing of the dispute application till September 1992 and thereafter entitled to the interest at the rate of 21% till the amount is actually paid to the society. It is the aforesaid order of the learned Single Judge which is impugned at the instance of the appellant/original writ petitioner. The respondent is the heir and legal representative of the original opponent. The society instituted proceedings for recovery of unpaid monthly instalments payable to the appellant society by one Smt.Satidevi Gobindram Bijlani who was the member of the society. In the year 1979, the appellant society instituted the suit against said Smt.Satidevi seeking recovery of the amount towards : 3 : arrears of monthly outgoings. However, the aforesaid dispute was withdrawn by the society unconditionally. The society subsequently instituted another dispute which can be referred to as present dispute in the year 1983 to recover the arrears of monthly outgoings amounting to Rs.12,490.60 ps. (Rupees Twelve Thousand Four Hundred Ninety & Paise Sixty Only) as arrears as on 31st March 1983 and Rs.2,072.75 (Rupees Two Thousand Seventy-two & Paise Seventy-five) being interest until 31st March 1983 on the amount due. The society also demanded 12% on the principal amount till the amount is recovered. The society has sought an award for recovery of amount of of Rs.330/- (Rupees Three Hundred Thirty) per month or at such increased rate as might be awarded by the Court with interest at the rate of 12% per annum with effect from 1st April 1983 till the date of the award. The said dispute was filed on 14th June 1983. 2. During the pendency of the aforesaid dispute, original respondent to the dispute Smt.Satidevi died and the present respondent was : 4 : brought on record as her legal heir and representative. Originally, said Smt.Satidevi also filed written statement opposing the said dispute and the present respondent, after having brought on record, also has submitted his written statement. The claim of the society was disputed by the respondent on the ground that the same is not maintainable since the earlier dispute was withdrawn unconditionally without seeking leave of the Court under Order II Rule 2 of the Code of Civil Procedure, 1908. The dispute was also opposed on the additional ground to the effect that Smt.Satidevi was never informed by the Estate Manager of the Housing Board that she should pay lease rent and other outgoings to the society and that the society has not obtained any authority to collect such amount from the members. It was also averred that the society was not managing the affairs in proper manner. The present respondent has also filed additional written statement taking the point that he was not liable to pay any dues purported to be payable by his mother and unless it is proved that he has succeeded to the property left behind by his mother, he is not required to : 5 : pay such amount to the society. It is his case that the flat was not transferred in his name. It seems that during the pendency of the dispute and at the time when Smt.Satidevi was alive, the appellant society made an interim application for mandatory direction against Smt.Satidevi to deposit certain amount and interim order was also passed by the Trial Court on 26th February 1985, by which Smt.Satidevi was directed to pay appellant society Rs.17,307/- (Rupees Seventeen Thousand Three Hundred Seven) being the arrears during the period between September 1978 to June 1984, without prejudice to the rights and contentions of the parties. Other interim directions were also given by the Court. It seems that in the year 1989, the said dispute was dismissed for default and subsequently it was restored to the file in the year 1993. It was the case of the appellant before the Trial Court that Smt.Satidevi had not paid the monthly outgoings regularly and subsequently on the application of the society, the Court directed for payment of such arrears since February 1989 and the same was deposited with the society. : 6 : 3. The learned Trial Court after considering the evidence on record came to the conclusion that the society had proved his claim. The Court also came to the conclusion that the appellant was liable to pay Rs.3,700/- towards the principal amount and Rs.1,04,707.10 towards interest on the defaulted amount. The Trial Court accordingly allowed the claim and granted award in respect of the arrears of monthly outgoings accrued after 31st March 1983. The said Judgment of the learned Judge Cooperative Court No.II, Mumbai dated 8th December 1999 delivered in dispute No.612/1983 was challenged by the respondent before the Maharashtra State Cooperative Appellate Court, Mumbai by way of Appeal No.125/2000. The Tribunal allowed the said appeal partly and the impugned order of the lower Court was modified in the following terms: "The appeal is partly allowed. The impugned order of the lower Court is modified and the same is substituted as follows:- The society shall recover Rs.12,490-60 and Rs.2,072-75 being interest. The society shall further recover interest @ 12% per annum on principal sum of Rs.12,490-60 from 1st April 1983 till the amount is recovered. : 7 : In view of the long pendency of dispute, I am not awarding any costs to any party. The society is given liberty to file fresh dispute for recovery of monthly out goings, interest thereon and ancillary demands relating to it as per bye-laws from 1st April 1983 and the Appellant would have all defendants available under : 8 : the law including set off of the amount which he had already deposited. Sd/- President 6.9.2001 At the request of Mr.Deogirikar the Appellant is directed to continue payment of monthly out goings until the end of October 2001. Such payment shall be without prejudice to his contentions in future disputes. Sd/- President" 4. Accordingly, the Tribunal permitted the society to file fresh dispute for monthly outgoings and interest thereon and ancillary demand related to it as per the Bye-laws from April 1983. The appellant society being aggrieved by the said order of the Tribunal, preferred Writ Petition before the learned Single Judge being Writ Petition No.789/2002. The learned Single Judge by the impugned order dated 18th February 2003 came to the conclusion that as on 31st March 1998 Rs.3,700/- were due and payable towards the principal sum and that from the statement of the witness of the society that an amount of Rs.95,630/- paid by the respondent was adjusted towards principal and : 9 : interest and after deducting suit amount from total arrears as on 31st March 1997, Rs.3,700/- was due towards principal amount. Accordingly, Single Judge came to the conclusion that the Society is entitled for Rs.3,700/- only towards principal and the interest thereon at the rate of 12% per annum from the date of filing of the dispute application till September 1992 and entitled to interest at the rate of 21% till the amount is actually paid by the respondent to the society. The learned Single Judge accordingly set-aside the order of the Cooperative Court No.II, Mumbai in Case No.CC/II/612/1998 and ultimately held that the society is entitled to Rs.3,700/- only from the Respondent towards principal amount at the rate of interest as pointed out earlier. it is the aforesaid order of the learned Single Judge, which is impugned in the present appeal at the instance of the appellant society. 5. Learned Counsel for the appellant submitted that the society filed Writ Petition before the learned Single Judge regarding its claim for getting 21% from the relevant date as at the : 10 : relevant time as per the Bye-laws, the rate of interest was increased from 12% to 21% and therefore, the only prayer before the learned Single Judge was in connection with the interest at the aforesaid rate. It is further submitted that in the Petition filed by the appellant before the learned Single Judge, learned Single Judge should not have disturbed the finding of the Tribunal regarding quantum of principal amount, as the other side had not challenged the order of the Tribunal before the Single Judge complaining the order passed by the Tribunal in appeal. It is further submitted that the order of the learned Single Judge by which it has been held that the society is entitled to get Rs.3,700/- is, therefore, not tenable in law. Learned Advocate for the other side on the other hand has supported the Judgement of the learned Single Judge. 6. We have heard both the Advocates at length. We have perused the record. We have also gone through the Judgment of the Trial Court, Appellate Court as well as of the learned Single Judge. In this connection, it is required to be : 11 : noted that the original dispute was raised by the society for recovery of Rs.12,490.60 with interest at the rate of 12%. Against the order of the Trial Court, the respondent preferred an appeal before the Tribunal and the Tribunal, after considering the facts and circumstances of the case, partly allowed the appeal by holding that the society was entitled to recover Rs.12,490.60 and Rs.2072.75 being interest amount. The Tribunal also further directed that the society shall be entitled to recover interest at the rate of 12% p.a. on principal sum of Rs.12,490.60 from 1st April 1983 till the amount is recovered. It is required to be noted that sofar as this part of the order is concerned, the respondent has not challenged the same and has accepted the award, meaning thereby that sofar as the dispute regarding the principal amount is concerned, it was never under challenge at the instance of either side. The main grievance of the Society was in connection with the direction given by the Tribunal permitting the appellant to take further proceedings for recovering the balance amount, which the society may be entitled to in view of the change in Bye-laws and in view of the : 12 : increase in the rate of interest. Sofar as this aspect is concerned, in our view, the Tribunal was perfectly justified in giving liberty to the appellant to take out fresh proceedings towards the increase in the rate of interest at the rate of 21%. The Tribunal, therefore, has secured interest of the Society on this aspect by giving permission to lodge fresh proceedings. In our view, therefore, the Single Judge was not justified in coming to the conclusion that the principal amount which the society would be entitled is only Rs.3,700/- which was not even the subject matter of dispute before the learned Single Judge and in our view the Tribunal was right in coming to the conclusion that the appellant society will be entitled to recover principal amount of Rs.12,490.60 with interest as quantified in the order i.e. principal amount at the rate of 12% per annum, as it is not in dispute that the principal amount for which the dispute was raised was Rs.12,490.60. In our view, the learned Single Judge was not justified in coming to the conclusion that the amount payable towards principal amount should be treated as Rs.3,700/-, simply because : 13 : some amount is paid during the interregnum period when the dispute was pending before the Trial Court. In that view of the matter, in our view, the order of the learned Single Judge insofar as he has come to the conclusion that the principal amount payable is to be treated as Rs.3,700/- is not correct especially when the Suit was filed for recovering of Rs.12,490.60. In these circumstances, we are of the opinion that the the Single Judge was not right in holding that the society would be entitled to receive principal amount of Rs.3,700/- instead of Rs.12,490.60. Even apart from that as pointed out earlier, the other side has not challenged the order of the Tribunal before the learned Single Judge by filing any cross Petition. Considering the said aspect, the order of the learned Single Judge is set-aside and the order passed by the Tribunal is upheld, by which the Tribunal has given liberty to the appellant to take out fresh proceedings for raising a dispute in connection with their demand regarding interest at an enhanced rate in view of the amendment in the Bye-laws. The appeal is accordingly allowed by : 14 : setting aside the order of the learned Single Judge and restoring the order of the Tribunal. No order as to costs. P.B.MAJMUDAR, J. R.M.S.KHANDEPARKAR, J.