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2012 Supreme(Bom) 1498
High Court of Judicature at Bombay
MOHIT S. SHAH, N.M. JAMDAR
M/s.Sumer Associates & Another
Versus
Margaret Almeida & Others
APPEAL NO.413 OF 2011 IN NOTICE OF MOTION NO.172 OF 2010 IN SUIT NO.144 OF 2010 WITH APPEAL NO.414 OF 2011 IN NOTICE OF MOTION NO.173 OF 2010 IN SUIT NO.145 OF 2010 WITH APPEAL NO.487 OF 2011
Decided on : 09-08-2012
For the Appellants:Rafiq Dada, Sr.Counsel with Dr. Birendra Saraf with Vatsal Merchant i/b M/s.Kishore Thakordas & Co., Ravi Kadam, Sr. counsel, Prasad Dhakephalkar, Sr. Counsel with Vineet Naik & Lalan Gupta i/b M/s.Dhruve Liladhar & Co., Advocates.
For the Respondents:R1 to R9, Rohit Kapadia, Sr.Counsel i/b Amardev Uniyal, R27 & R28, Iqbal Chagla, Sr.Counsel with F. Devitre, Sr. Counsel & J.P. Sen, Gaurav Joshi & Vishesh Malviya & R.P. Carvalho i/b M/s.Federal & Rashmikant, R20, Clive D'souza, R30 & R31, V.A. Thorat, Sr.Counsel with Chetan Kapadia & Ivon Peter D'cruz i/b Lokhandwala & Co., Rohit Kapadia, Sr. counsel with Aditya Thakkar i/b Rafique Vanoo, E.P. Bharucha, Sr. Counsel with Farhan Dubhash & Cyrus Bharucha i/b Amardev Unniyal, Advocates.
Headnote:Civil Procedure Code, 1908 - Order XXXIX, Rule 1 - Interim injunction.
Since microscopic minority had stated decision of overwhelming majority to redevelop property hence interim injunction granted by trial Court against Co-operative Housing Society restraining development of suit property, vacated. - It has to be appreciated that the Society had taken a decision to redevelop the property as far back as in 1966. Thus, it is for last almost 40 years the property has remained to be developed. The issue whether the tenant- members have any proprietary interest was settled as far back as 1972. In spite of this position, some of the tenant-members have not permitted the redevelopment to take place by pursuing applications for bifurcation of the Society. As regards bifurcation, in the earlier paragraphs. Out of 762 members of the society, only 15 persons have filed two suits and thus, the entire project is held up by a microscopic minority of the Society. This minuscule minority has successfully managed to stall the decision of overwhelming majority of members to redevelop the property. The developer, M/s. Sumer Associates has kept the amount of Rs. 70 crore in escrow for the last almost 3 years that apart from the legal questions it will be practically not possible for these 15 persons to develop the property separately.
The plaintiffs are litigating for 40 years on an issue which was settled in the year 1972 itself. Apart from the legal issues, bifurcation and redevelopment by plaintiffs practically does not seem to be possible. Merely because some challenge is likely to be made against the order rejecting bifurcation, in its third round, the development of the society cannot be stalled any further. Even the support of tenant-members in respect.of their demand of bifurcation has dwindled steadily and now only 15 persons arrayed as plaintiff. It will, therefore, be no longer equitable to stall the redevelopment of the society linking it to the demand of bifurcation. The continuance of injunction on the ground that a minority of the tenant-members are pursuing their demand for bifurcation has now become unjust and unequitable. There is no unanimity amongst tenant-members regarding a development of the suit land by themselves. The original plaintiffs do not represent all the tenant-members. Today after forty years of litigation,, with dissenting persons reduced to 15, it is no longer equitable to let the redevelopment drag behind the issue of bifurcation. It is time that the will of majority prevails and path for redevelopment is cleared. It will be in the interests of justice to vacate the order of interim injunction granted by the trial Judge.
It is also submitted by the society that the amount is to be disbursed amongst the members, who are having shares in the society and that the amount will be disbursed after verifying their share holdings and addresses and that in order to avoid the allegations being made by the plaintiffs, the society is ready to make such disbursement under intimation to the Deputy Registrar of Co-operative Societies to make the procedure transparent to ensure that the amount will be disbursed to the rightful claimants.
All these appeals are directed against the order dated 5 May 2011 of the learned trial Judge of this Court allowing the respondents/plaintiffs' notice of motion and granting injunction in terms of prayer (a)(i ) of the notice of motion and also directing all the parties to maintain status-quo in respect of the suit property pending the hearing and final disposal of the suits, being suit No.144 of 2010 and suit No.145 of 2010. Prayer clause (a)(i ) of the notice of motion reads as under:
(a)(i) Issue an Order and Injunction restraining the Defendant Nos. 1 to 26 and Defendant No.29 from taking any steps in furtherance of the said purported Resolution dated 6th December 2009 and/or Conveyance dated 7th December 2009.
2. Broad facts leading to filing of these appeals are as under:-
The land in question admeasuring about 5 ½ acres in Santacruz, Mumbai belongs to Bombay Catholic Co-operative Housing Society ltd. (“the Society” for brevity). There are 25 structures of the Society scattered over the land. There are 69 tenements in these 25 structures. The tenements are occupied by 69 tenants, out of whom 54 are members of the Society. Other 15 tenants are tenants simplicitor. The challenge in the suits filed by 15 persons is to the Resolution dated 6 December 2009 passed by the Society for giving development rights to Robin Home Developers Pvt.Ltd., who have nominated M/s.Sumer Associates as their nominees. As per the said Resolution the developer is to construct 230 tenements-69 to be allotted to the 69 tenants in possession of the existing tenements and 161 to be allotted to the members (allottees members) who had applied more than 40 years back for allotment of tenements.
3. 25 structures in question were constructed some time in the year 1930 and the Society had passed a Resolution on 25 September 1966 to demolish the existing structures and to construct new tenements. That Resolution and the order of the Registrar of the Co-operative societies, Mumbai rejecting challenge to the said Resolution were assailed in Misc. Petition No.250 of 1972 filed by the petitioners who are plaintiffs in the present suits. Misc. petition came to be dismissed by judgment dated 17 April 1972 of a learned Single Judge of this Court.
4. The learned Single Judge held that the petitioners therein, who are present plaintiffs, have no proprietary interest in the land and tenements belong to the Society which is the absolute owner of the property. The aforesaid judgment of the learned Single Judge was confirmed in appeal, which came to be dismissed by the judgment dated 25 July 1972.
5. Some time in the year 1979, some tenant-members of the Society made an application dated 3 June 1979 to the Deputy Registrar of Co-operative Societies for bifurcation of the Society under Section 18 of the Maharashtra Co-operative Societies Act, 1961 (hereinafter referred to as “the Act”). By order dated 22 February 1983, that application was granted, but the said order was challenged by the Society by filing a writ petition in this Court. The writ petition against the order of bifurcation came to be dismissed by the learned Single Judge of this Court by judgment dated 21/22 October 1999. However, by judgment dated 4 August 2007, the Division Bench in appeal No.20 of 2000 set aside the said judgment and remanded the matter to the authorities under the Act for considering the question of bifurcation. The Deputy Registrar of Co-operative Societies by order dated 29 September 2009 ultimately dismissed the application for bifurcation. However, the Joint Registrar of Co-operative Societies in appeal remanded the matter back to the Deputy Registrar. That order of the Joint Registrar came to be challenged in revision before the Minister of Co-operation. During the pendency of the proceedings before the Minister, the Association of Tenant-members, who had made the application for bifurcation, decided to withdraw the application and to co-operate with the Society for redeve
