rng IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.216 OF 2008 NO.216 OF 2008 NO.216 OF 2008 inin in NOTICE NOTICE NOTICE OF MOTION NO.4040 OF 2005 OF MOTION NO.4040 OF 2005 OF MOTION NO.4040 OF 2005 inin in SUIT SUIT SUIT NO.3448 OF 2005 NO.3448 OF 2005 NO.3448 OF 2005 with with with NOTICE NOTICE NOTICE OF MOTION NO.1950 OF 2008 OF MOTION NO.1950 OF 2008 OF MOTION NO.1950 OF 2008 inin in APPEAL APPEAL APPEAL NO.216 OF 2008 NO.216 OF 2008 NO.216 OF 2008 inin in NOTICE NOTICE NOTICE OF MOTION NO.4040 OF 2005 OF MOTION NO.4040 OF 2005 OF MOTION NO.4040 OF 2005 inin in SUIT SUIT SUIT NO.3448 OF 2005 NO.3448 OF 2005 NO.3448 OF 2005 Jayesh Navalshankar Joshi & anr .. Appellants vs Samruddhi Coop Hsg.Society Ltd & 2 others .. Respondents .. Ms.Divya R.Trivedi for Appellants Ms.Sumedha Rao for Respondents CORAM CORAM CORAM : : : Smt Ranjana Desai & Smt Ranjana Desai & Smt Ranjana Desai & K.K.Tated, K.K.Tated, K.K.Tated, JJ JJ JJ DATED DATED DATED : 12th December, 2008 : 12th December, 2008 : 12th December, 2008 P.C. P.C. P.C. 1. The appellants are original defendants 2 and 3 in Suit No. 3448 of 2005. Respondent 1 is the original plaintiff (hereinafter referred to as the Society for convenience) and respondents 2 and 3 are original defendants 1 and 4. The instant suit is filed by the Society praying inter alia that defendants 1 to 4 may be jointly and severally directed to pay Rs.4,83,981/- and that defendants 1 to 4 be restrained by an order of permanent injunction from selling, parting with 2 possession, creating any third party rights, mortgaging, selling or in any other way encumbering Flat No.B/213 situate in the Society’s building. In short, we are concerned here with Flat No.B/213 and arrears of maintainance and other dues of the Society in connection with the said flat (suit flat for convenience). The case of the Society inter alia is that the appellants / defendants 2 and 3 are in arrears of maintainance charges and other dues. 2. Notice of Motion No. 4040 of 2005 was taken out by the Society praying that defendants 2 to 4 be jointly and severally directed to pay to the Society monthly maintainance of Rs.1977/- as per the bills furnished to them and that pending the hearing and final disposal of the suit defendants 1 to 4 be restrained by an order of temporary injunction from selling, parting with possession or creating third party interest in or in any way encumbering the suit flat. 3. By the impunged order, learned Single Judge has disposed of the said motion. Learned Single Judge has referred to the affidavit in reply filed on behalf of defendants 2 and 3 by defendants 2 wherein it is stated that defendants 2 and 3 have 3 no intention of inducting third person without the Society’s permission. Learned Single Judge has accepted the said statement and observed that in view of this statement, it is not necessary to pass any further orders except to restrain the defendants from inducting any third person, disposing of or alienating, encumbering or creating any third party rights in respect of the suit flat without the Society’s permission. So far as prayer (a) regarding maintainance charges is concerned, learned Single Judge has observed that it is basically a claim for money and therefore no order is called for as regards that prayer. Learned Single Judge has further observed that if there is any breach of order dated 21st December, 2005 the plaintiff is at liberty to take action in accordance with law. We may at this stage note that order dated 21st December, 2005 was passed by the learned Single Judge directing the defendants to pay the outgoings of the Society, except non-occupancy charges. 4. We have heard learned Counsel for the appellants at some length. She firstly submitted that the present suit squarely falls within the provisions of section 91 B of the Maharashtra Cooperative Societies Act, 1960 and therefore this 4 court has no jurisdiction to try and entertain it. She further submitted that the suit is hit by the principles of res judicata inasmuch as while deciding the appeal filed by the defendants under section 22 and 23 of the Maharashtra Cooperative Society’s Act 1960, the Registrar of Cooperative Society has disposed of the proceedings filed under section 101 of the said Act filed by the Society observing that the Society is not entitled to recover non-occupancy charges and interest. The Society has filed a revision which is pending before the Joint Registrar. Therefore, the present suit is hit by the principles of res judicata. She further submitted that defendants 2 and 3 have voluntered to make payment of the maintainance charges. However, the society has refused to accept the charges. Learned counsel further submitted that it was not open to learned Single Judge to accept the statement made by defendants 2 and 3 in their affidavit in reply and pass an order of injunction on the basis thereof without giving any reasons. Learned counsel submitted that learned Single Judge should have given reasons for the order of injunction. Lastly, learned counsel submitted that learned Single Judge erred in granting liberty to the Society to take action in accordance with law in 5 case of breach of the order dated 21st December, 2005. She submitted that it is always open to a party to take resort to the Contempt of courts Act and it was improper for learned single Judge to grant liberty to the plaintiff. 5. It appears that defendants 2 and 3 want to give the suit flat on leave & licence basis to somebody and therefore they are anxious to get the interim order vacated. We must first note that since the suit basically involves the question of payment of society charges, we made efforts to settle the matter. Since that was not possible, we asked learned counsel for defendants 2 and 3 whether the defendants 2 and 3 would be willing to deposit the arrears in this court. Ms. Rao appearing for the Society submitted that if the amount is deposited in the court the Society would be willing to consider the request of defendants 2 and 3 to allow them to give the suit flat on leave and licence basis. However, there was no positive response from learned counsel for defendants 2 and 3. Hence, we proceeded to hear the matter. 6. So far as the issues regarding jurisdiction and suit being hit by the principles of res judicata are concerned, we are not inclined to 6 deal with them at this stage. It appears that these points were not canvassed before learned single Judge because there is no reference to them in the order. Needless to say that at the appropriate stage in the suit the said issues will be dealt with. It will also be open to defendants 2 and 3 to raise them by filing appropriate application in the suit, if they so desire. 7. There is no dispute about the fact that in the affidavit in reply filed by the defendants there is a statement that the defendants have no intention to induct any third person in the suit flat without the plaintiff’s permission. We therefore, find nothing wrong in learned single Judge reproducing the said statement in his order. After recording that statement learned Single Judge has restrained the defendants from inducting any third person or disposing of the suit flat or creating any third party rights in the suit flat. We find nothing wrong in this. Order of injunction is in terms of the statement. It is contended that learned Single Judge should have given reasons. It is pertinent to note that learned Single Judge has referred to the prayer which pertains to maintenance charges. He has then referred to order dated 21st December, 2005 7 which directs the defendants to pay outgoings of the Society. It is obvious therefore that injunction order is passed because the Society’s case is that the defendants have not paid maintenance charges. It cannot be said therefore that the order is devoid of reasons. Reasons are implicit in the order. 8. The dispute pertains to maintainance charges. Unless the maintenance charges are paid no member can be permitted to dispose of the flat. It is therefore not possible for us to vacate the interim injunction order passed by learned Single Judge unless the arrears are deposited in this court. Such deposit would obviously be without prejudice to the rights of defendants 2 and 3. The deposited money could have been directed to be invested. However, defendants 2 and 3 did not show willingness to deposit the arrears in the court. 9. So far as learned Single Judge’s order giving liberty to the Society to take action in case of breach of order dated 21st December, 2005, is concerned, we do not find any infirmity in that part of the order because, any action taken for breach of the order would obviously be in 8 accordance with law. Needless to say that if any action is taken by the Society because of the conduct of defendants 2 and 3 the court will deal with it in accordance with law. Granting liberty does not tantamount to passing final order. In the circumstances in our opinion, no interference is necessary with the impugned order. Appeal is rejected. In view of this, motion also stands disposed of. {K.K.Tated, {K.K.Tated, {K.K.Tated, J} J} J} {Smt. {Smt. {Smt. Ranjana Desai, J} Ranjana Desai, J} Ranjana Desai, J}