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IN THE HIGH COURT OF BOMBAY
R.D. Dhanuka, J.
Mangal Milan Co-Operative Housing Society Ltd., Mumbai - Petitioner
Versus
Sudhir Shah And Others - Respondents
Notice Of Motion No.1291 of 2014 in Suit No.780 of 2014
Decided on : 12-11-2014
Court Receiver - Society's Appointment - Maharashtra Co-operative Societies Act, 1960 - [Section 91(3), Section 163(1)(b)]
Fact of the Case:
The plaintiff, a housing society, sought the appointment of a Court receiver for the redevelopment of its property. The defendants, members of the society, opposed the redevelopment and the suit filed by the plaintiff.
Finding of the Court:
The Court found that the plaintiff failed to establish a prima facie case for specific performance of the alleged oral contract recorded in the resolutions passed by the society. The Court dismissed the notice of motion for appointment of a Court receiver.
Issues: The issues included the maintainability of the suit, jurisdiction of the Court, and the validity of the resolutions passed by the society for redevelopment.
Ratio Decidendi: The Court held that the resolutions passed by the society for redevelopment did not establish a clear and definite contract, and the plaintiff failed to demonstrate readiness and willingness to perform its obligations. The Court also found that the proposed redevelopment did not amount to the business of the society and did not require an amendment to the society's bye-laws.
Final Decision: The Court dismissed the notice of motion for appointment of a Court receiver, finding that the plaintiff did not establish a prima facie case for specific performance.
R.D. Dhanuka, J.
The plaintiff/applicant-Society has prayed for an appointment of the Court receiver in respect of the suit flats described in prayer clause (c) of the notice of motion with a direction to the Court receiver to take physical possession of the suit flats with the help of police, and to hand over vacant and peaceful possession of the suit flats to the plaintiff for the purpose of redevelopment of the suit property.
2. The plaintiff has filed the suit, inter alia, praying for a direction to the defendants to specifically perform their part of oral contract evidenced by resolutions dated 10th November 2012, 3rd January 2013 and 21st January 2013 and for various other reliefs. Some of the relevant facts for deciding this notice of motion are as under :
3. The plaintiff-Mangal Milan Co-operative Housing Society Limited is the owner of all that piece or parcel of land ad measuring 1040 sq. yards forming the western portion of original final plot no.5 and now bearing final plot no.5B of Town Planning Scheme No.IV, Santacruz and bearing C.T.S. No.G/516 of village Bandra-'G' together with the building standing thereon known as 'Mangal Milan' situate at East Avenue, Sharad Chandra Chatterji Road, Santacruz (W), Mumbai -400 054. The building was constructed in the year 1981 and comprises of stilts and 7 upper floors and contains 14 flats. It is the case of the plaintiff that actually there are only 7 flats. All the flats have been allotted to husband and wife respectively on each floor.
4. On 10th November 2012, the society passed a resolution in the Special General Body Meeting which was attended by all the members of the society. It was resolved by the members of the society to reconstruct its property by demolishing the existing building and constructing a new building thereon by utilising the potential FSI of the Society's plot plus TDR-FSI that could be loaded thereon. The said resolution was proposed by four members of the society including defendant nos.1 & 3. The society resolved that the society would go in for self development of its property by way of each member contributing towards a common fund specially created for the said purpose. The society also resolved to appoint an Architect/Project Consultant for the proposed redevelopment project. On 3rd January 2013, in the Special General Body Meeting of the society which was also attended by all members of the society, it was resolved that the members approved the appointment of Shri G.K. Vanwari of Vanwari Architects as an Architect for the proposed redevelopment of the Society's property.
5. In the Special General Body Meeting held on 21st January 2013, the Society proposed to give an advance as per the terms of the said Architect so that he could start the preliminary work of surveying/measuring the Society's plot. The society also resolved to open a new bank account in the name of 'Mangal Milan CHS Ltd., A/c Reconstruction' and agreed that the said account could be operated by any three members of the Core Committee. The names of defendant nos.1 & 3 were suggested as members of the Core Committee. In the said meeting, it was also resolved that all the members present also assured the Managing Committee that they will make timely contribution towards the costs and expenses involved in the proposed redevelopment as and when required and demanded by the Core Committee. All the members proposed that they do not require more flats and instead would prefer larger flats in the proposed new building. The society accordingly passed the resolution. It was agreed that each member of the society should make an initial contribution of Rs. 70 lacs. The amount shall be contributed by each member of the society towards redevelopment expenses on or before 15th April 2013. The said meeting was also attended by all the members of the society.
6. It is the case of the plaintiff that pursuant to the said resolution passed by the society, all the members excluding defendant nos.1
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