2013 Supreme(Bom) 1820

HIGH COURT OF JUDICATURE AT BOMBAY
S.J. KATHAWALLA, J.
Disha Construction
Versus
SJaysen S. Mastakar & Others
Notice of Motion No. 859 of 2013 in Suit No. 397 of 2013
Decided on: 16-09-2013

Headnote:Civil Procedure Code, 1908 - Order XL, Rule 1 - Appointment of Court Receiver.

       Since case made out for interim reliefs in favour of plaintiff, developer of building of housing society hence Court Receiver appointed. - In the circumstances it is clear that out of 120 members 93 members have already given up their present accommodation to the society and have started residing elsewhere for which the plaintiff Developer has been paying huge sums of money every month towards compensation for alternate accommodation. In addition as set out in detail in Ex. LLL of the plaint, the plaintiff has incurred an aggregate sum of Rs. 22,95,68,776/- (Rupees Twenty-two crores ninety-five lakhs sixty-eight thousand seven hundred seventy-six only) for carrying out the work set out in paragraph 60 of the plaint. The buildings are admittedly in a dilapidated condition and because of the 27 non-co-operating members, the entire redevelopment project has come to a halt. In fact because of the dilapidated condition of the building, most of the non-co-operating members are also not residing in their respective flats but are residing elsewhere and are adopting a dog in the manger policy. The majority of the members have no quarrel in having the redevelopment project executed through the plaintiff as per the terms contained in the second Development Agreement. The majority of the members also have no grievance qua the conduct of the meeting and the resolutions passed thereat. The non-co-operating 27 members being an admitted minority cannot stall/obstruct the redevelopment project as held by the Court in several of its decisions. The resolutions passed by the majority of the members at the general meetings of the society are binding on the non-co-operating members. The plaintiff is therefore prima facie entitled to the relief of specific performance of the agreements annexed at Exs. ’O’, ’U’, and ’II" to the plaint and have also made out a strong prima facie case for grant of interim reliefs in their favour. The balance of convenience is completely in favour of the plaintiffs and the large number of members of the defendant No 28 society who, along with their family members are out of their premises since almost a year and waiting to get new ownership premises upon redevelopment. Under such circumstances even if certain interim and final reliefs are overlapping, the grant of interim reliefs being in the interest of a huge majority of the members and their families who have left their present accommodation and are residing elsewhere since the last one year, cannot be denied.

       The Court Receiver, High Court, Bombay, is appointed Receiver in respect of the suit property;

       The plaintiff developer shall on or before 3rd October, 2013, furnish the Bank guarantee to the defendant No. 28 society as provided in the suit agreements and also make payment to the non-co-operating members as agreed under the suit agreements, on or before 3rd October, 2013;

       The defendant No. 28 society shall, on 3rd October, 2013, hand over all the flats in possession of the society to the Court Receiver who shall in turn, after confirming that the plaintiff has furnished the agreed Bank guarantee to the defendant No. 23, hand over possession of the same to the plaintiff developer for the purpose of commencing the redevelopment project;

       The non-co-operating members who have not executed the Tripartite Agreements shall execute the Tripartite Agreements on or before 3rd October, 2013;

       The non-co-operating members who have retained possession of their flats shall on or before 3rd October, 2013, hand over possession of their respective fiats to the Court Receiver and the Court Receiver shall in turn hand over possession of the same to the plaintiff developer for the purpose of commencing the redevelopment project.

       In the event of any non-co-operating member/s not handing over possession of their respective flat/s to the Court Receiver as directed herein, to enable the Court Receiver to further hand over the same to the plaintiff developer, the Court Receiver shall take forcible possession of the flat/s from such non-co-operating member/s or any person found in possession of such flat/s, if necessary with police assistance, and hand over the same to the plaintiff developer.

       Maharashtra Co-operative Societies Act, 1960 - Section 91 - Jurisdiction of Court.

       A dispute between a developer and Society or its members, not covered by Section 91 of Act, lies within jurisdiction of Civil Court and not of Co-operative Court. - The suit between a developer and the society or its members cannot be a dispute which can be adjudicated by the Co-operative Court under Section 91 of the Maharashtra Co-operative Housing Societies Act, 1960. The process of redevelopment of the Society by the Developer does not constitute the business of the Society within the meaning of Section 91 of the MCS Act and in view thereof no notice under Section 164 of the MCS Act is required.

       Specific Relief Act, 1963 - Section 34 - Suit for specific performance of agreement.

       In view of dilapidated condition of society building, huge money invested by plaintiff, developer and interest of 93 majority members who vacated their flats, plaintiff, developer entitled to specific performance of redevelopment agreement.