1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No. 348 of 2009 in Suit No.126 of 2009 M/s Jaydeep Constructions, ) a partnership firm registered ) under the Indian Partnership ) Act, 1932 and having its ) principal place of business at) Shop No.7/8, Patidar Complex ) Kannamwar Nagar No.2,Vikhroli ) (East), Mumbai 400 083 ) ..Plaintiff vs. 1 Pant Nagar Rail View ) Co-operative Housing Society) Ltd. a Society duly ) registered under the ) provisions of Maharashtra ) Co-operative Societies Act ) 1960 bearing Registration ) No.MUM/MHADB/HSG/(TO)/(TC)/ ) 12007/YEAR 2002-2003 having ) its registered office at ) building no.184, Block No. ) 5026, D Wing, Opp:Railway ) Station, Pantnagar,Ghatkoper) (East), Mumbai 400 075 ) 2(a) Mr.Hitesh D.Shah, adult ) Indian Inhabitant, residing ) at Flat No.4995,ground floor) Pant Nagar Rail View ) Co-operative Housing Society) Ltd. building no.184, Block ) No.184 D Wing, Opp:Railway ) 2 Station,Pantnagar,Ghatkoper ) (East), Mumbai 400 075 ) 2(b) Shri Vinayak Venkatesh ) Raikar, adult, Indian ) Inhabitant,occupant of flat ) No.4995, Ground floor, Pant ) Nagar Rail View Co-operative) Housing Society Limited, ) building no.184, Block ) No.184 D Wing, Opp:Railway ) Station,Pantnagar,Ghatkoper ) (East), Mumbai 400 075 ) 3(a) Shri Vasudeo M.Kshirsagar) also adult, Indian Inhabitant) residing at flat No.6, ) Mateshri Sulabh Co-operative ) Housing Society, Plot No.28 ) Ideal Colony, Kotundi, Pune ) 411 038 ) 3(b) Shri Tukaram K. Pawar, ) also adult, Indian Inhabitant) occupant of Flat no.5003, ) Ground floor,Pant Nagar Rail ) View Co-operative Housing ) Society Limited, Building no ) 184, Pant Nagar, C Wing, ) Opp: Railway Station, Pant ) Nagar, Ghatkoper (East) ) Mumbai 400 075 and currently ) residing at Bldg.No.43, Room ) No.1283, Pant Nagar, Opp. ) Municipal School No.,2 ) Ghatkoper (East),Mumbai400075) 4 Smt.Shubhada S.Sanaye, also ) adfult, Indian Inhabitant ) residing at Flat no.5018, ) Third floor,Pant Nagar Rail ) View Co-operative Housing ) 3 Society Limited, Building ) No.184, Pant Nagar, C Wing) Opp: Railway Station,Pant ) Nagar, Ghatkoper (East) ) Mumbai 400 075 ) 5 Smt.Kamla Ramdas Adhav ) also adult,Indian Inhabitant) residing at Flat No.5019, ) Ground floor, Pant Nagar ) Rail View Co-operative ) Housing Society Limited, ) Opp: Building No.184,Pant ) Nagar, D Wing Railway ) Station, Pantnagar, ) Ghatkoper (East), Mumbai ) 400 075 ) 6 Shri Bajrang V.Gawali, also ) adult, Indian Inhabitant ) carrying on business at ) Hotel Gokul , at flat No.) 5020, Ground floor, Pant ) Nagar Rail View Co-operative) Housing Society Limited, ) Opp: Railway Station, Pant ) Nagar, Ghatkoper (East) ) Mumbai 400 075 ) 7 Shri Ashish B.Gawali, also ) adult, Indian Inhabitant ) carrying on business at ) Flat No.5022, First floor, ) Pant Nagar Rail View Co-op. ) Housing Society Limited, ) Opp: Railway Station, Pant ) Nagar, Ghatkoper (East) ) Mumbai 400 075 ) ..Defendants Mr.Janak Dwarkadas, Sr.Counsel with Mr.Vineet Naik i/b Ashwinikumar and Co. for plaintiff. 4 Mr.V.R.Dhon, i/b Mr.Jagjeet Rehel for defendant no.1 Mr.Deepak S.Jadhav for defendant no.2(b),4 and 5 Mr.Harihar Bhave i/b Bhave and Co. for defendant no.3(b) Mr.B.B.Prabhavalkar for defendant nos. 6 and 7. Judgment Reserved on 5.10.2009 Judgment pronounced on: 8.01.2010 CORAM: S.C. DHARMADHIKARI J. 8th January, 2010 P.C. 1 This is a Notice of Motion praying for a mandatory order and injunction so also appointment of a Court Receiver in respect of the premises described in prayer (a) reproduced hereinbelow. The mandatory order is sought in the following terms. (a) That pending the hearing and final disposal of the suit, this Hon ble Court be pleased to direct the Defendant Nos. 2 to 7 by an order of mandatory injunction to forthwith quit, vacate and hand over peaceful 5 possession of their respective Flat Nos.4995, 5003, 5018, 5019, 5020 and 5022 in Building No.184, situated on the said property i.e. to all that piece or parcel of land admeasuring 1258 sq. mtrs. Situated at Survey No.236A, C.T.S.No.5705/8, TPS Scheme -275 of village Ghatkoper Kirol being part of MHADA land at Pantnagar in the Registration District of Mumbai City situated at Pantnagar, Ghatkoper (East), Mumbai 400 075 more particularly described in Exhibit A to the plaint to the plaintiff herein so as to enable the plaintiff to demolish and redevelope the property in accordance with the Development Agreement dated 1st June, 2006 with the First Defendant. 2 The plaint averments are that the first defendant is a Co-operative Housing Society. The plaintiff is a partnership firm carrying on business as a builder and 6 developer. The first defendant society has several members and it is stated that the Maharashtra Housing and Area Development Authority was the owner of a piece or parcel of land admeasuring 1258 sq. meters situate at Survey No.236A, C.T.S.No.570/8, T.P.S.Scheme 275 of village Ghatkopar, Mumbai. This is a part of the land belonging to the Housing and Area Development Authority at Pant Nagar, Ghatkopar (East). The Housing and Development Authority constructed a building bearing no.184 on this property. The tenements in this building were allotted to individual allottees on rental basis. This was a Government of India scheme and, therefore, the State Government was permitted by the Government of India to transfer the tenements on certain conditions laid down by the Government of India itself. The building no.184 consists of ground plus 3 upper floors having total 32 tenements. In the year 7 2002-03 the occupants of this building formed a Cooperative Housing Society which bears the name as defendant no.1. It is stated that the society approached MHADA and the MHADA agreed to convey the building no.184 on the terms and conditions more particularly set out in the conveyance. Thereafter by lease deed dated 11th September, 2006 (duly registered) MHADA as a lessor and the first defendant as a lessee executed a deed on the terms and conditions set out therein. Thus, it is stated that the first defendant has a right, title and interest in the land and is also the owner of the building. The building and property is described at Annexure A to the plaint. Annexure B to the plaint is a list of members/occupants. 3 In paragraphs 11 and 12 of the plaint, the plaintiff alleges thus: 11. The plaintiff states that the said building No.184 is 45 years old and same is in 8 dilapidated condition and as such requires major structural repairs. The first Defendant Society is collecting money from the members only for the purpose of payment of taxes, water charges and watchmen and as such said extensive repairs are beyond the capacity of the first Defendant society and or its members individually. In the circumstances, all the members of the first defendant society decided to redevelop the said property by constructing a new building in place of its existing building through interested Developers. In the circumstances, the first Defendant invited offers for redevelopment of the said property wherein the plaintiff was also one of the offerer. The first Defendant society with the assistance of its Architect considered several offers received by the first Defendant and upon discussion and consent given by 27 members 9 present in the special General Body Meeting held on 5th February, 2006, it was resolved that the development of the said property was to be entrusted to the plaintiff for the consideration and upon the terms and conditions mutually agreed upon.... 12 The plaintiff says and submits that after the second Defendant society decided to entrust the of re-development of the property to the plaintiff, the plaintiff has obtained consent in writing of 27 members inclusive of Defendant no.4 out of 30 members of the First Defendant society...... 4 Thereafter it is stated that on account of acceptance and consent of the majority members given in the Special General Body meeting held on 5th February, 2006, to redevelop the property through the plaintiff, the first defendant society executed the development agreement and the development 10 agreement is dated 1st June, 2006. Thus, the holding of the meeting of the General Body, the Resolution/decision and the development agreement are all prior to the land and building being conveyed to the society. 5 Relying upon the terms and conditions of the Development Agreement, the plaintiff submits that they approached the consultants who gave report that the building is RCC framed construction of ground plus 3 upper floors. It is over 45 years old. Most of the structural components of RCC beams, RCC columns and RCC slabs are in a highly deteriorated condition. The observations of the consultants are contained in his report dated 9th October, 2006. 6 These findings are confirmed by the Society s Architect s letter dated 20 th November, 2006. 7 It is then alleged that after obtaining consent of 27 members of the first 11 Defendant Society and execution of the agreement, the plaintiff applied for and obtained sanction to the plans and I.O.D. On 25th July, 2007. Total 26 members of the first Defendant have already vacated their respective flats and handed over possession for the purpose of re-development. The plaintiff has stated in paragraph 18 of the plaint as under: 18. Immediately as soon as the 26 members who had vacated and handed over possession of their respective flats to the plaintiff, plaintiff has pursuant to clause 16 of the said Development Agreement, the plaintiff has paid one time deposit to 26 members being sum of Rs.75,000/- to each member though it was agreed to pay only sum of Rs.60,000/- to each member aggregating to Rs.19,50,000/- In addition to that and pursuant to clause 17 of the said Development Agreement, the plaintiff has also 12 paid to said 26 outgoing members sum of Rs.10,000/- per month for each member being rent for the period June 2007 to April, 2008 aggregating to Rs.28,60,000/- though agreed upon for only Rs. 7,000/- per month to each member. The plaintiff has also paid to said 26 outgoing members sum of Rs.15,000/- per month for each member being rent for the period of May 2008 to July 2008 aggregating to Rs.1,17,000/- The plaintiff has also paid to said 26 outgoing members sum of Rs.18,000/- per month for each member being rent f0or the period of August 2008 to December, 2008 aggregating to Rs.23,40,000/- The plaintiff has also handed over to the said 26 outgoing members post dated cheque for Rs. 56,16,000/- i.e. Rs.18,000/- per month for each member being total rent from January 2009 to December, 2009 aggregating to Rs. 56,16,000/- Thus the plaintiff 13 has till filing of the suit paid to said 26 outgoing members total sum of Rs.1,39,36,000/- towards rent and one time deposit as stated aforesaid. 8 It is stated that though the plans have been sanctioned and I.O.D. is obtained, the plaintiff cannot demolish the entire building and start construction since defendant nos.2(a) to 7 are refusing to vacate and hand over possession of their respective flats for the purpose of re- development. It is stated that defendant no. 2(a)and 3(a), have already entered into an agreement for sale with defendant no.2(b) and 3(b) of the respective flats bearing Nos. 4955 and 5003. These purchasers have not physically occupied the flats. They are lying vacant. Defendant no.4 is the Member of flat no.5018 but not handed over possession of her flat to the plaintiff. Defendant no.5, though had given confirmation letter for re- 14 development of the suit property, failed to hand over possession of flat no.5019. Defendant nos. 6 and 7 are only tenants of MHADA and not even members of the first defendant society. They have failed to vacate and hand over possession of flat no.5020 to the plaintiff. 9 Therefore, the agreement of re- development has come to a halt. The entire building is required to be demolished. The building is fairly old and dilapidated and structurally weak. Further, 26 members of the first defendant society are suffering. 10 In paragraphs 22 and 23 of the plaint, the plaintiff has referred to the proceedings instituted by defendant no.2(b, 3(b), 4 and 5 before the Co-operative Court against the first defendant society, Secretary of the First Defendant and the plaintiff for a declaration that the Resolution passed in the Extra Ordinary 15 General Meeting and AGM of the first defendant held on 5th February 2006, 20th January, 2006 and 26th January 2006 be declared improper, illegal, bad in law and the plaintiff is not entitled to take possession of the flats without following due process of law. It is alleged that this dispute is pending but no interim orders are passed therein. Further, a writ petition was filed by defendant no.6 in this Court but the same has been withdrawn. 11 For all these reasons, the plaintiff is entitled to mandatory order and injunction in terms of the final prayer and as far as interim reliefs are concerned, temporary order in the mandatory form be granted as strong prima facie case is made out. Further, balance of convenience is in favour of the plaintiff and all members of defendant no.1, they will suffer grave loss,harm and injury in case the relief is not granted. 16 12 At the ad-interim stage, affidavit was filed by defendant no.6 to oppose Ad- interim reliefs in which it has been stated that the plaintiff is a mere developer. On the plaintiff s own showing defendant nos. 6 and 7 are not members of defendant no.1 society. They are allottees of MHADA according to the plaintiff. Therefore, there is no privity of contract between defendant nos. 6 and 7. They are not bound by the Development Agreement. The plaintiff being developer under the Development Agreement, has no authority of whatsoever nature to file a suit for recovery of possession. They have no right to claim damages as well. In these circumstances, there cannot be any interim relief. 13 There is a dispute raised by defendant no.6 and he states that the first defendant has not admitted him as a member of the society despite an order dated 4th April, 17 2007 of the Deputy Registrar of Co-operative Societies. 14 Defendant no.6 has pointed out that the society was formed on 31st October, 2002 and ever since its formation he had shown willingness to become member but then office bearers were hostile against him as he was carrying on commercial activities. He alleged that the Managing Committee members were expecting illegal gratification but since he refused to succumb to their illegal demands they started harassing him and, therefore, he filed the suit no.1531 of 2003 in the City Civil Court at Mumbai for a declaration that the society and its office bearers have no right to interfere with and/or disturb his possession in respect of his premises. A Notice of Motion was moved therein and on 4th April, 2007 ad-interim order came to be granted. He has alleged that during pendency of the suit on 30th August, 2004, the officer 18 of MHADA at the instance and instigation of the first defendant visited the suit site and demolished the compound wall, gate and over head tank and also damaged the water pipe line and gas pipe line of the hotel. Therefore, Notice of Motion No.3794 of 2004 was moved by him. Further, he has stated that there was a dispute on account of cancellation of N.O.C. Dated 4th May, 1998 by MHADA and, therefore, another suit being suit no.603 of 2005 was filed against MHADA with regard to revocation of permission. A permanent injunction was claimed and it is stated that the suit and Notice of Motion in that behalf are pending. Defendant no.6, therefore, stated that it is in these circumstances that he is not involved in the re-development project. He has then alleged that he is ready and willing to cooperate with the first defendant and the plaintiff in the matter of re-development provided he and 19 his son are admitted as members of the first defendant society unconditionally and the plaintiff executes an agreement for providing permanent alternative accommodation in lieu of flat no.5020 and 5022 being commercial premises situated on the ground and first floor of the building no.184 and he claims other amenities as well. 15 He, therefore, takes a stand that the agreement in favour of the plaintiff does not bind him. 16 To this affidavit, a rejoinder has been filed by the plaintiff and it is stated that MHADA is the owner of the land and building and defendant no.6 converted the residential flat no.5020 to commercial by carrying on business of restaurant in the name of Hotel Gokul . There were proceedings initiated against him under the MRTP Act, 1966 by the Corporation and even the Estate Department of MHADA has taken action against 20 him with regard to cancellation of permission for non residential user. It is based on the certificate of MHADA that the allegations and averments in the plaint are made against defendant no.6. 17 Thereafter, there is an affidavit in reply by defendant no.2(b). He stated that flat no.4995 admeasuring 550 sq.ft. carpet area on the ground floor of building no.184 is purchased by him under an agreement of sale dated 5th May 2004 from defendant no. 2(a). This flat was originally owned by one Mr.Dharamshi Deraj Shah who expired on 13th April, 2001 at Mumbai leaving behind him defendant no.2(a) along with 6 others as his heirs and legal representatives. 3 out of them have subsequently expired and rest in the form of joint declaration transferred and assigned the flat to defendant no.2(b). Defendant no.2(b) applied to the society for transfer of flat in his favour and he made 21 various applications to MHADA for transfer of tenancy in his favour. MHADA has transferred the tenancy in respect of the suit premises vide letter dated 8th June 2004 with effect from 7th June 2004. He too states that on the application to defendant no.1 society for transfer of the flat in his name, a No Objection was conveyed for the said transfer by letter dated 31st May 2004. He states that he has been regularly paying the maintenance charges and the society is accepting the same. The society with a malafide intent does not make him a member. He states that he entered into a leave and licence arrangement with one Parvatibai Ganpat Ahire from 1st May 2005 and the same was intimated to defendant no.1. He states that it was mutually decided between the licensee and defendant no.2(b) that a small front side portion of the said flat no.4995 shall be used by defendant no. 2(b) for carrying out the commercial 22 activities. The society is well aware of this arrangement and it was not objected to the same. 18 In addition thereto, he alleges that the agreement in favour of the plaintiff is blank and vague. He submits that the identity of the proposed flats to be allotted to each member should have been intimated by the plaintiff and should have been demarcated on the sanctioned plan. Similarly, an undertaking should have been given by the plaintiff of not making any changes in the sanctioned plan. There has to be some provision for compensation of account of delay and how much and on what basis the FSI is made available. He states that he had opposed along with defendant no.3(b), 4 and 5 the procedure for re-development adopted by the parties to the agreement. This objection was conveyed by letter dated 10th August, 2007. He has alleged that the first defendant 23 had not taken any proper steps for inviting tenders. He has stated that vital and important information has not been supplied and after several requests inspection of the sanctioned plan was granted at the Advocate s office. On perusal of the documents pertaining to the alleged development agreement, he was surprised to note that the sanction is granted for construction upto 4th floor of the proposed building whereas the agreement states that the members shall be accommodated up to 7th floor of the proposed building. He has made allegations of collusion between the Managing Committee of defendant no.1 and the plaintiff in paragraphs 12 and 13 of the affidavit in reply. For all these reasons and when the flat is not demarcated and there are disputes with defendant no.1 society that he submits that no relief be granted in terms of the prayers of the Notice of Motion. 24 19 To this affidavit, a rejoinder has been filed by the plaintiff and it has in paragraph 9 of the rejoinder stated thus: 9. .....I say that Defendant no.1 has not made defendant no.2(b) as member of the society for the reason that defendant no.2(b) has not registered his flat agreement and also not complied with all the conditions as mentioned in Form 21 under the Maharashtra Co-operative Societies Act though time and again the first defendant society has called upon defendant no.2(b) to comply with said terms and conditions. I say that Defendant no.1 Society is agreeable to make defendant no.2(b) as member on Defendant no.2(b) complying with all the terms and conditions mentioned in Form 21 as required under the Maharashtra Cooperative Societies Act. 20 Thus, the plaintiff alleges that defendant no.2(b) has not complied with the 25 terms of the membership, he has allowed the licensee to stay in the flat. He utilised the premises for commercial purpose and these are noting but blackmailing tactics. 21 The plaintiff in its rejoinder had denied the allegations of collusion and stated that the first defendant society had called for and received offers from developers like Choice Group of Companuies, Kashilkant Constructions Pvt. Ltd and their quotations were considered but the first defendant approved the quotation of the plaintiff which is lowest out of all the bidders. The plaintiff denied that the agreement is in any way secret or that information was not given to defendant no. 2(b) or that a flat as permanent alternate accommodation is not identified as alleged. At the same time a stand is taken that the plaintiff will construct the building and hand over the same to the first defendant 26 and the first defendant will allot the flats to the present members and occupants. Thus denying the allegations in the affidavit in reply of defendant no.2(b) the plaintiff claims that the interim reliefs be granted. 22 Defendant no.3(b) has filed an affidavit and in paragraph 7(b) and (d) he states as under: 7(b): I say that Room No.5003 admeasuring about 594 sq. ft. (built up) situated on the ground floor in the building no.184 situated in the Pantnagar Rail View Co-operative Housing Soc.Ltyd., Pantnagar, Ghatkoper (East), Mumbai 400 077 (hereinafter referred to as suit flat for sake of brevity) was allotted to defendant no.3(a) herein. I have purchased the said flat from the defendant no.3 herein by an Agreement for sale dated 26th May 2005. The said Agreement is duly registered with the Sub Registrar of Assurance, Kurla. I crave leave to refer to and rely upon the aforesaid agreement dated 26th May 27 2005 when produced. I say that, I have been using the suit premises to conduct my business of florist i.e. on commercial basis. I crave leave to refer to and rely upon the necessary documents in this respect as and when produced. I have made various applications to the Defendant no.1 requested them to grant me necessary permission to use the suit flat for the commercial purpose. I crave leave to refer to and rely upon the said applications as and when produced. However, defendant no.1 society has failed to reply to the said application. I say that defendant no.1 is well aware of the fact that I am utilizing the suit flat for commercial purpose. However, defendant no.1 society never objected to the same..... (d) I say that thereafter I had made an application with defendant no.1 society for transfer of the suit flat in my name. The Defendant No.1 society conveyed its