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MOHINDER KAUR KOCHAR V/S MAYFAIR HOUSING PRIVATE LTD. & OTHERS, decided on Wednesday, August 1, 2012.
[ In the High Court of Bombay, APPEAL LODGING NO. 474 OF 2012 IN NOTICE OF MOTION NO. 3627 OF 2011 IN SUIT NO. 997 OF 2010. ] 01/08/2012
Judge(s) : CHIEF MOHIT S. SHAH & N.M. JAMDAR
Advocate(s) : A.S. Karwande. R1, Dinyar Madon, Senior , with Shailesh Shah, Senior , Vishal Talsania, S.K. Srivastav, Ms. Manorama Mohany & Gunjan A. Shah i/by M/s. S.K. Srivastav & Co., R4, Dr. Birendra Saraf i/by Kalpesh Nansi.
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  "2012 (6) BCR 194"   ==   "2012 (6) All MR 862"  







judgment - Chief JusticeThe appeal is directed against the order dated 27 June 2012 of the learned Single Judge dismissing the Notice of Motion taken out by the appellant by which the appellant had prayed that the Court has no jurisdiction to try and decide the present suit filed by respondent No. 1 herein as only Co-operative Court has the jurisdiction to try the subject-matter of the present suit under Section 91 of the Maharashtra Co-operative Societies Act 1960 (hereinafter “the Act” for short).2. Respondent No. 1 herein (hereinafter referred to as “the plaintiff”) entered into Re-development Agreement with Ganga Vihar Co-operative Housing Society Ltd. respondent No. 4 herein for development of the flats of the Co-operative Society. The LOI was issued by the Society on 24 April 2006. Clause 9 of the LOI provided that the plaintiff-developer had to purchase certain flats after the building was re-constructed. Pursuant to the said requirement the plaintiff became member of respondent No.4-Society by purchasing one garage.3. Thereafter the Re-development Agreement was entered into on 7 November 2007. The Co-operative Society has 13 members and the plaintiff is the 14th member of the Co-operative Society.4. On account of disputes raised by respondent Nos. 1 to 3 (defendant Nos. 1 to 3 in the suit) the plaintiff filed Suit No. 997 of 2010 praying for the following reliefs:-“(a) That this Hon'ble Court be pleased to declare that the Development Agreement dated 07.11.2007 at Exhibit- “C” hereto is binding upon the Defendants No. 1 to 3;(b) For a mandatory order and injunction of this Hon'ble Court directing the defendants No. 1 to 3 to quit vacate and hand over to the Plaintiffs vacant and peaceful possession of the suit Flat No. 4 1st Floor Flat No.6 2nd floor and Flat No. 13 3rd Floor of the Gangavihar Co-operative Housing Society Ltd. Opp. Guru Nanak Park Bandra (West) Mumbai 400 050 for the purpose of redevelopment in accordance with the said Development Agreement Exhibit “C” hereto;(c) that the Defendant Nos. 1 to 3 their servants agents and all persons claiming through / under them be restrained by a permanent order and injunction of this Hon'ble Court from in any manner interfering / obstructing creating any impediment in the fulfilment or performance of any obligations under the said Development Agreement Exhibit “C” hereto;”5. The plaintiff also prayed for a decree ordering defendant Nos. 1 to 3 to pay the plaintiff a certain sum on account of damage being caused to it due to the illegal acts of defendant Nos. 1 to 3.6. Defendant No. 1 (the appellant herein) took out Notice of Motion No. 3627 of 2011 praying that the Court may frame a preliminary issue under Section 9-A of the Code of Civil Procedure 1908 praying for the following reliefs:-“a) that this Hon'ble Court may be pleased to frame a preliminary issue under section 9A of the Code of Civil Procedure 1908 and determine as to whether this Honourable Court has jurisdiction to try and decide the present suit or it is only the Co-operative Court under section 91 of the Maharashtra Co-operative Societies Act 1960 which alone can try and decide the dispute raised by the plaintiffs in the present suit;b) That this Hon'ble Court may be pleased to pass an order rejecting the Plaint filed by the Plaintiffs under Order VII Rule 11 of the Code of Civil Procedure 1908.”7. The learned trial Judge of this Court held that this Court has jurisdiction to try and decide the suit. Hence this appeal.8. The learned counsel for the appellant submits that since the plaintiff is a member of defendant No. 4-Co-operative Society the present suit is barred by the provisions of Section 91 of the Act. Reliance is placed upon the provision of sub-section (1) of Section 91 which reads as under:-“CHAPTER IX[SETTLEMENT OF DISPUTES]91. Disputes(1) Notwithstanding anything contained in any other law for the time being in force any dispute touching the constitution elections of the committee or its officers other than elections of committees of the specified societies including its officer conduct of general meetings management or business of a society shall be referred by any of the parties to the dispute or by a federal society to which the society is affiliated or by a creditor of the society to the co-operative Court if both the parties thereto are one or other of the following:--(a) a society its committee any past committee any past or present officer any past or present agent any past or present servant or nominee heir or legal representative of any deceased officer deceased agent or deceased servant of the society or the Liquidator of the society or the official Assignee of a de-registered society.(b) a member past member of a person claiming through a member past member of a deceased member of society or a society which is a member of the society or a person who claims to be a member of the society;(c) a person other than a member of the society with whom the society has any transactions in respect of which any restrictions or regulations have been imposed made or prescribed under section 43 44 or 45 and any person claiming through such person;(d) a surety of a member past member or deceased member or surety of a person other than a member with whom the society has any transactions in respect of which restrictions have been prescribed under section 45 whether such surety or person is or is not a member of the society;(e) any other society or the Liquidator of such a society or de-registered society or the official Assignee of such a deregistered society.Provided that an industrial dispute as defined in clause (k) of section 2 of the Industrial Disputes Act 1947 or rejection of nomination paper at the election to a committee of any society other than a notified society under section 73-1C or a society specified by or under section 73-G or refusal of admission to membership by a society to any person qualified therefor or any proceeding for the recovery of the amount as arrear of land revenue on a certificate granted by the Registrar under sub-section (1) or (2) of section 101 or sub-section (1) of section 137 or the recovery proceeding of the Registrar or any officer subordinate to him or an officer of society notified by the State Government who is empowered by the Registrar under subsection (1) of section 156 or any orders decisions awards and actions of the Registrar against which an appeal under section 152 or 152A and revision under section 154 of the Act have been provided shall not be deemed to be a dispute for the purposes of this section.”9. Very recently by judgment dated 30 January 2012 in Civil Appeal Nos. 1175-1177 of 2012 (Margret Almeida & Ors. Etc. Etc. v. the Bombay Catholic Co-operative Housing Society Ltd. & Ors. Etc. Etc.) the Supreme Court has interpreted the provisions of Sections 91 and 163 of the Act and has held that for a suit to be maintainable under Section 91 and to be barred by Section 163 of the Act both the following tests must be satisfied:-(a) the subject-matter of the suit must be covered by the opening words of sub-section (1) of Section 91 and if at all the dispute must fall in any of the following categories:-(1) Constitution of the Society(2) Elections of the “Committee or its officers”(3) General Meetings(4) Management of the Society or(5) Business of the Society.The second test is that the dispute must have arisen between the parties who shall belong to one or the other categories specified under clauses (a) to (e) of sub-section (1) (hereinafter referred to as “enumerated persons”). Hence it can be seen from the scheme of Section 91 that to confer exclusive jurisdiction on the Co-operative Court the dispute must satisfy two requirements i.e. the subject-matter of the dispute as well as the parties to the same must be those specified hereinabove. In other words if either of the abovementioned two requirements is not satisfied then the dispute cannot be adjudicated by the Co-operative Court. If it is found in a given case that the subject-matter of dispute is not covered by Section 91 an enquiry into the question whether the parties to the dispute fall under any of the categories enumerated under that section would become irrelevant.10. Mr. Madon learned senior counsel for respondent No. 1 (original plaintiff) has submitted that the reliefs sought for in the suit are not in the plaintiff's capacity as a member of respondent No. 4-Society. He submitted that it was only in view of the LOI issued by respondent No. 4-Cooperative Society requiring the plaintiff to purchase certain flats that the plaintiff became a member by purchasing the garage on 22 December 2006 pursuant to the LOI dated 24 April 2006. He further submits that the plaintiff not having claimed the relief in capacity as a member of the Co-operative Society cannot be treated as falling under Section 91(1)(b).11. Without prejudice to the above submission it is also submitted that in any view of the matter the dispute arising from implementation of the Re-development Agreement cannot be considered as a dispute arising from the business of respondent No. 4-Society. In support of the said contention strong reliance is placed on the decision of learned Single Judge of this Court dated 7 March 2011 in VardhamanDevelopers Limited v. Thailambal Co-operative Housing Society Ltd. & Ors. (Notice of Motion No. 3274 of 2010 in Suit No. 2725 of 2010) as confirmed by the judgment dated 26 April 2011 of Division Bench of this Court in Appeal No. 277 of 2011.12. The learned counsel for the appellant (defendant No.1) however relied on the following decisions in support of the contention that re-development is also a part of the business of the Society:-(a) SuprabhatCo-operative Housing Society Ltd. & Anr. v. Span Builders & Anr. 2002 (6) Bom.C.R. 257 and(b) C.F. Marconi v. Madhav Co-operative Housing Society Ltd. 1985 (2) Bom.C.R. 357.13. As far as the position in Marconi's case (supra) is concerned the object of the Society was as under:-“a) to engage in the business of real estate observing principles of co-operation for the benefit of its members and in the particular purchase and sale of land and/or buildings and owning buying selling hiring letting sub-letting exchanging mortgaging accepting mortgage renting leasing sub-leasing surrendering accepting surrender accepting lease tenancy or sub-tenancy and constructing reconstructing altering or demolishing buildings through its own agency or through licensed contractors and purchasing holding in stock or selling materials incidental to construction repair overhaul or maintenance of land and building; to fix and collect rents;”It is therefore clear that the Co-operative Society in the said case was engaged in the business of real estate and therefore by the very nature of its business it was engaged in the activities of purchase sale of flats and/or buildings constructing reconstructing altering or demolishing buildings through its own agency or through licensed contractors and even purchasing holding in stock and selling materials incidental to construction repair etc.14. On the other hand even according to defendant No.1 the objects of respondent No.4-Society are as per the Model Bye-laws for Co-operative Housing Societies. Byelaw No. 5 reads as under:-“5. The objects of the society shall be as under:*(a) to obtain conveyance from the owner/Promoter (Builder) in accordance with the provisions of the Ownership Flats Act and the Rules made thereunder of the right title and interest in the land with building / buildings thereon the details of which are as hereunder:The building / buildings known / numbered as …............ constructed on the plot / plots Nos. …........... of ….......... admeasuring ….......... sq. metres more particularly described in the application for registration of the Society;OR(APPLICABLE FOR PLOT PURCHASED TYPE SOCIETY)*(a) to buy or take on lease a plot or plot nos. …........... of ….......... admeasuring ….......... sq. metres and to construct flats thereon for allotment to the members of the society for their authorised use.ORTo purchase a building or buildings known as …............ constructed on the plot / plots nos. …........... of ….......... admeasuring ….......... sq. metres for allotment of flats therein to the members of the society for their authorized use.(b) To manage maintain and administer the property of the society;(c) To raise funds for achieving the objects of the society;(d) To undertake and provide for on its own account or jointly with a co-operative institution social cultural or recreative activities;(e) To do all things necessary or expedient for the attainment of the objects of the society specified in these bye-laws.*Struck whichever is not applicable ”15. It is thus clear that respondent No. 4 by the very nature of its object had purchased land and got the flats constructed in accordance with the provisions of the Ownership Flats Act and the Rules made thereunder. The object of the society was not to engage in the business of real estate and demolition of buildings as it was in Marconi's case (supra). When the Society was formed in or about year 1965 it had purchased land and got the flats constructed and allotted the same to its members. After more than 40 years when respondent No. 4-Society has undertaken the project of re-development of its property it cannot be said that respondent No.4-Society has engaged in the business of re-development i.e. as has specifically been held by this Court in the decision dated 7 March 2011 in VardhamanDevelopers Limited v. Thailambal Co-operative Housing Society Ltd. & Ors. wherein the learned Single Judge observed as under:-“Section 91 (of the Act) brings within its purview disputes touching inter-alia the constitution management or business of a society. Now in the present case the process of re-development of the Society by the Developer does not constitute the business of the society within the meaning of Section 91. The demolition of the existing building and the reconstruction of the building of the society is not the business of the society. Section 91 is therefore not attracted.”16. The judgment dated 26 April 2011 in Appeal No. 277 of 2011 clearly expresses the agreement with the learned Single Judge as regards the reasoning and conclusion of the learned Single Judge.17. At this stage we must deal with the submission of the learned counsel for the appellant in respect of the decision of the learned Single Judge of this Court in SuprabhatCo-operative Housing Society Ltd. (supra). In that case the object of the Society was inter alia to buy or take on lease the specified plot and to construct flats thereon for allotment to the members of the Society for their authorised use. The Court therefore held that the construction contract which was entered into with the respondents was clearly in pursuance of the basic object of the Society. The construction contract was in furtherance of and towards implementing the basic object of the Co-operative Society as tenant Co-partnership Housing Society; and the dispute which had arisen between the parties was in pursuance of the contract which was further entered into. The Court therefore held that the suit which was instituted by the respondent-contractors was one which touched the business of the Society and the suit was not maintainable as notice under Section 164 of the Act was not served.18. In the present case as also pointed hereinabove respondent No. 4-Society was formed in or about year 1965 and therefore the re-development work undertaken after 40 years cannot be treated as a part of the business of respondent No.4-Society. The dispute regarding development of property of a housing society may touch the business of the society broadly in two categories. Firstly in the kind of cases contemplated under the judgment of C.F.Marconi (supra) where the object of the society was to engage in the business of real estate purchase properties and redevelop the purchased properties. Second type of cases where a housing society undertakes activity of initial construction of the building where the members would reside. In the case at hand admittedly the object of the society is not like the one in the case of C.F.Marconi (supra) i.e. the business engaging in real estate. Thus we are not concerned with the first category.19. When a co-operative housing society initially constructs the buildings for its members it is not a redevelopment but the initial development of the property. The initial construction of the property for a co-operative housing society is one of its prime objects. The two activities namely initial construction of a building and its redevelopment are different activities. By passage of time as the building becomes older the Housing Society may take a decision to repair or redevelop the property. Such activity is totally different from initial development of the building. The dispute arising from such redevelopment which becomes necessary by passage of time is not “business” of the society. Such activity cannot be considered as 'touching the business' of the society. The dispute involving members developers managing committee in respect of redevelopment of the property which becomes necessary in view of passage of time is not relatable to the business of the society. The initial development of the co-operative housing society of constructing the building may be business of the society but the subsequent redevelopment is not.20. In view of the above discussion we do not find any merit in this appeal. It is therefore dismissed.