MAKER TOWER 'H' CO-OP HSG. SOCY. LTD. vs LEENA N. PAREKH

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(Bom) 663

IN THE HIGH COURT OF BOMBAY
(S.U. Kamdar, J.)
MAKER TOWER H CO -OP HSG. SOCY. LTD. and another - Petitioners
V.

LEENA N. PAREKH and others - Respondents
Advocates appeared
For petitioners: Ramesh Dhanuka instructed by Ms. Anita Dhanuka For Show Cause Noticee : G. W. Mattos, A.G.P.
For respondent Nos. 5 and 6 : Milind More, A.G.P.
For respondent No.4: N. R. Parikh
For respondent No.3: Pankaj Vijayan
For applicant: Shyam Mehta instructed by Ajay Khandhar

Headnote:Maharashtra Co-operative Societies Act, 1960 - Section 23 - Grant of deemed membership of society - Entitlement - Application by respondent flat owner for deemed membership - Flat in question was attached by cooperative bank and ad interim order was also passed by High Court - The application of respondent for transfer of membership to children rejected - Once the application is rejected the question of deemed membership does not arise - Authorities proceeded on wrong footing that deemed membership period started from date of attachment being lifted and before ad interim order was granted period of 60 days having expired, respondent’s children have become deemed member - Finding of authorities is liable to be rejected. - The respondent is a holder of the flat and was also a member of the petitioner society and was holding 5 shares. On 1.6.1996, the respondent made an application to the society inter alia requesting therein to add the names of his children and also simultaneously requested to delete the name of his wife from the said share certificate. By another letter dated 15.10.1996 the respondent No. 4 requested that the said flat should be transferred in the name of his two children. The flat in question was attached by Co-operative Bank and there was ad interim order passed by High Court in respect thereof. The application of respondent came to be rejected. Once the application is rejected then the question of deemed membership on expiry of period of 60 days cannot arise. The authorities below have proceeded on the wrong footing that the deemed membership period started from the date an attachment is lifted and before the ad interim order was granted by the High Court a period of 60 days having expired the respondent Nos. 2 and 3 have become deemed member. The said finding of the authorities is contrary to the plain reading of Section 23 and therefore must be set aside. The said findings are unsustainable in law. Once the application is rejected on 24.11.1996 the question of any deemed membership cannot and does not arise. It was open for the respondent No. 4 to make a fresh application after the attachment order was lifted but his earlier application cannot be treated as pending in spite of rejection by a letter dt. 25.10.1996 by the society due to an attachment order. Thus, the finding of the authorities below that the period of 2 months commences from the date of attachment being lifted and that on expiry of 60 days which is prior to the ad interim order respondent Nos. 2 and 3 have become deemed member is unsustainable in law and therefore, the same is liable to be rejected.
       Maharashtra Co-operative Societies Act, 1960 - Section 23 - Membership - Application for - Rejection of - Section 23 provides 60 days period for - After rejection of application period not continue to run - As there is an separate provision under Section 23(2) of Act for filing an appeal - Application for directions for deemed membership under Section 23(1-A) of Act, not maintainable. - A plain reading of provisions of Section 23 indicates that the period of 60 days commences from the application made by the member for a transfer of flat and said application should be complete in all its respects. It also contemplates that if application is rejected, an appeal has to be filed before the authority and if the application is not rejected and the person seeks to apply for deemed membership then he has to apply for a direction to the society by the Registrar that he should be treated as a member of the said society.
       The application complete in all respects has been filed on 15.10.96 and is rejected on 25.10.96. Courts opinion, once the application is rejected then the question of deemed membership on expiry of period of 60 days cannot arise. The authorities below have proceeded on the wrong footing that the deemed membership period started in the present case from the date an attachment is lifted and before the ad interim order was granted by the High Court a period of 60 days having expired the respondent Nos. 2 and 3 have become deemed member. The said finding of the authorities is contrary to the plain reading of Section 23 and therefore must be set aside. The said findings are unsustainable in law, once the application is rejected on 24.11.96 the question of any deemed membership cannot and does not arise.
       Maharashtra Co-operative Societies Act, 1960 - Section 23 - Constitution of India, Article 226 - Jurisdiction of High Court - Orders passed by High Court - Effect of - Deputy Registrar and Divisional Joint Registrar are Authorities subject to jurisdiction of High Court - They cannot avoid orders passed by High Court in any proceeding whatsoever. - Court of the opinion that the Deputy Registrar and Divisional Joint Registrar both being authorities subject to the jurisdiction of this Court are not entitled to ignore the orders passed by this Court in any proceeding whatsoever. The Deputy Registrar and Divisional Joint Registrar are bound by the operative orders passed by this Court and by no stretch of imagination, it can be ignored.
       Maharashtra Co-operative Societies Act, 1960 - Section 23 - Deemed membership - Application filed by flat holder - Interim order of injunction granted by High Court restraining applicant from alienating, encumbering or transferring or creating any third party rights in respect of the said flat - It is not open to the authorities to ignore the orders of the High Court on the ground that they are passed after the period of 60 days having expired from the date of the lifting the attachment and therefore deemed membership should be granted - The authorities are bound to take into consideration the orders passed by the High Court on the date of passing of the orders by them.

ORAL JUDGMENT : - The present petition challenges the order d 22 -7 -1999 passed by the Deputy Registrar Co -op. Societies and order dt. 19 -6 2001 passed by the Divisional Joint Registrar Co -op. Societies being Ex. D an F to the petition. By the said order, the Deputy Registrar has held that the respondent No. 1 is entitled to be a deemed member of the petitioner society Some of the material facts of the present case are briefly enumerated as under:

2. The respondent No.4 was an original owner of flat bearing No. H -21 in the petitioner society being Maker Tower Co -op. Housing Society Ltd situated Cuffe Parade, Mumbai. The respondent No.4 is a holder of the said flat and was also a member of the petitioner society and was holding 5 shares bearing No.2 to 30. The said shares were originally held in the name of three brothers, Shri Nitin M. Parekh, Shri K. M. Parekh, and Shri M. M. Parekh. Sometime in about 1994, Shri K. M. Parekh and Shri M. M. Parekh resigned from the sai membership and thus Shri Nitin M. Parekh remained as a sole owner of the s~i shares in the said property. On 14 -8 -1994 respondent No.4 made an application to add the name of Ms. Leena M. Parekh also as an associate member of t society. On 1 -6 -1996, the respondent No.4 made an application to the society inter alia requesting therein to add the names of his children, Master Vish Parekh and Master Niral Parekh and also simultaneously requested to delete the name of his wife Ms. Leena M. Parekh from the said share certificate. The said application did not accompany the share certificate to the society and thus it is the case of the petitioner society that the said application was not complete in respects. By another letter dt. 15 -10 -1996 the respondent No.4 requested that t said flat should be transferred in the name of his two children because he h gifted the same to them. He also forwarded the share certificate along with t same for the purpose of carrying out correction and requested for an issuance of fresh certificate. On 25 -10 -1996 the society addressed a letter to the respondent No.4 inter alia pointing out to respondent No.4 that they have received a letter from the Deputy Registrar Co -op. Soc. Bombay inter alia stating therein that the said flat and the bank accounts are attached in the proceeding initiated by Vin Sahakari Bank Ltd. and therefore the society should take cognisance of the said attachment and should not permit the transfer of the said property. By the said letter dt. 25 -10 -1996 the petitioner -society informed the respondent No.4 that i view of the restrain order they are unable to transfer the said share certificate until they receive the clearance in that behalf. The said attachment order levied on 1 -8 -1996 was lifted and the society was informed about the same on 3 -11 -1997. However, before that, on 25 -6 -1997, the respondent No. 1 addressed a letter to the society that in spite of the fact that the application was made for transfer of the flat as far back as 1 -6 -1996 still no cognisance has been taken and contended that the attachment order should not be considered for the purpose of the transfer of the said flat. The said attachment order was ultimately lifted on 3 -11 -1997.

3. In the meantime, a suit came to be filed being suit No. 1320 of 1995 in the High Court of Bombay against respondent No. 4 seeking recovery of about Rs. 2.25 crores. In the said suit, on 31 -8 -1998 this Court passed an ad interim restrain order restraining the respondent No.4 from in any manner dealing with, transferring, alienating, the right, title and interest in respect of the said flat. The said order was ultimately confirmed on 19 -7 -1999 by this Court. In the meantime, the respondent No.4 entered into an agreement on 17 -8 -1998 purportedly for the sale of the said flat in favour of one Chandrakant V. Shah and it is the case of the said Chandrakant V. Shah that under the said agreement he has pai

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