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2018 Supreme(Bom) 1075
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Mridula Bhatkar, J.
Alankar Sahkari Griha Rachana Sanstha Maryadit, through Chairman – Petitioner
Versus
Atul Mahadev Bhagat & Anr. – Respondents
Writ Petition No. 4457 of 2014 With Civil Application No. 2589 of 2015 & 1478 of 2017
Decided On : 31-08-2018
For the Petitioner:Mr. Nitin P. Deshpande, Advocate
Mr. Sandesh Shukla a/w. Mr. Amit Singh I/b. Santosh Sawant, Advocate for the respondents and applicants in CAW/1478/2017.
Headnote:
Indian Contract Act,1872 - section 72 and 23 - Cooperative Housing Society - section 38(e)(ix) - Challenging the said transaction - legally permissible charges - Persons come together with common object of housing - Respondent nos 1 and 2 have filed Dispute No- before Cooperative Court for recovery of amount - Alongwith interest which disputants have paid to petitioner Housing Society - Cooperative Court has passed an order directing petitioner Society to pay disputant amount of - Along with interest from till realization of claim - petitioner-Society challenged said order by filing Appeal before State Cooperative Appellate Court Bench at which was partly allowed and Society was directed to pay instead of with interest till realization of amoun - Said order is challenged by petitioner Housing Society learned counsel has submitted that respondents have admitted that y could not produce any evidence that Society made demand of - towards transfer charges- learned counsel has submitted that if at all member of Housing Society voluntarily agrees to pay money to Society n it is not to be covered as a restriction under byelaws - In support of his submissions learned counsel relied on judgment of Single Judge of High Court in Writ Petition No in case – Held, incoming and outgoing member both are having a subordinate position and Society enjoys a dominant status in transfer of premises - Incoming member somehow wants possession of premises and share certificate to be transferred in his name without any hassle - So also outgoing member who is in need of money wants to get rid of further complications and is interested in smooth transaction- For this reason consent of Managing Body by passing necessary resolution to that effect is required - Under such circumstances it cannot be inferred that outgoing/incoming member has paid donation voluntarily - In present case though respondents have given admission that y paid - Towards donation to petitioner - Society it cannot be further read that it was paid voluntarily without any pressure - When persons come together with common object of housing after formation of a Cooperative Society y are governed under rules and bye-laws of Cooperative Societies Act - So far as members are concerned Cooperative Housing Society can collect or increase its funds only by legally permissible charges or fees- Society is not expected to indulge into profiteering business from members and if such amount is earned n it is taxable under law - there is no bar for any member to pay donation to Society however it should be voluntary without any compulsion and coercion - Petition disposed of accordingly
In this Writ Petition, the order dated 12th December, 2013 passed by the Member, Maharashtra State Cooperative Appellate Court, Mumbai Bench at Pune thereby directing the respondents to pay an amount of Rs.4,75,000/- with interest is challenged.
2. Respondent nos. 1 and 2 have filed Dispute No. 398 of 2005 before the Cooperative Court, Pune for recovery of amount of Rs.6,98,740/- alongwith interest, which the disputants have paid to the petitioner-Housing Society. The Cooperative Court has passed an order dated 1st October, 2007 directing the petitioner-Society to pay the disputant amount of Rs.5,00,000/- along with interest @ 11% from 29th December, 2005 till the realization of claim. The petitioner-Society challenged the said order by filing Appeal No. 02 of 2008 before the Maharashtra State Cooperative Appellate Court, Mumbai Bench at Pune, which was partly allowed and the Society was directed to pay Rs.4,75,000/-, instead of Rs.5,00,000/-, with 11% interest from 29th December, 2005 till realization of the amount. The said order is challenged by the petitioner-Housing Society. The respondents/original disputants were alloted plot No. 59 during the membership. Due to some violation of the conditions, the Society threatened to dispossess so the respondents filed Dispute No. 223 of 2000, which was compromised by filing consent terms and they agreed to deposit Rs.50000/- by way of security for completion of construction of the bungalow within three years. Thereafter, the respondents were in dire need of the money and therefore, they decided to sell the flat to third party and for the sale, they agreed to pay transfer fees of Rs.25,000/- to the Society. However, they alleged that the Society demanded Rs.5,00,000/- for regularizing the transfer. Therefore, the respondents, under pressure, paid Rs.5,00,000/- by issuing two demand drafts of Rs.2,50,000/- each on 27th April, 2005. After selling the plot, they sent a letter of demand on 4th July, 2005 which was replied denying such liability of payment and so the respondents filed the dispute before the Cooperative Court on 29th December, 2005.
3. The learned counsel for the petitioner-Society has submitted that both the Cooperative Court and the Appellate Court have not properly assessed the evidence of the respondents wherein they have given admission that they paid Rs.5,00,000/- towards donation to the petitioner-Society. He pointed out that besides this admission, the respondents have admitted that they sent a letter to the Society on 9th December, 2004 where they offered to pay transfer charges @Rs.25/- per sq.ft. (D-14). The learned counsel has submitted that the respondents have admitted that they could not produce any evidence that the Society made demand of Rs.5,00,000/- towards the transfer charges. The learned counsel has submitted that if at all the member of the Housing Society voluntarily agrees to pay money to the Society, then it is not to be covered as a restriction under the byelaws. In support of his submissions, the learned counsel relied on the judgment of Single Judge of Bombay High Court in Writ Petition No. 1094 of 2004 in the case of Bharatiya Bhavan Cooperative Housing Society Ltd. & Anr. vs. Smt. Krishna H. Bajaj & Ors., pronounced on 17th February, 2010.
4. Per contra, the learned counsel for the respondents has submitted that the Society cannot demand any transfer fees more than Rs.25,000/- which is fixed as per the bye-laws No. 38 and section 38(e)(ix) of the Cooperative Housing Society, i.e., Notice of transfer of shares and interest in the capital/property of the Society. He also relied on the Circular issued on 9th August, 2001 by the Government in respect of transfer fee by which the transfer fee of the immovable property within the Corporation limit is fixed as Rs.25,000/- and the said circular is still in force. The learned counsel has submitted that the respondents were in need of money and they have stated so in the evidence, therefore, th
