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2019 Supreme(Bom) 608
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. Kulkarni, J.
Apna Sahakari Bank Ltd. – Appellant
Vs.
Matulya Centre Premises Co-Op. Soc. Ltd. – Respondent
Writ Petition No. 468 of 2010
Decided On : 16-04-2019
Virendra Tulzapurkar, Adv., Sandeep Parikh, Adv., Kirtida Chandarana, Adv., Nandini Chittal, Adv., Mahernosh Humranwala, Adv., G.S. Godbole, Adv., Mayur Khandeparkar, Adv., Aditya Shiralkar, Adv., Vijay Kakwani, Adv., Hemant Haryan, Adv.
Headnote:
Constitution of India, 1950 – Article 226 – Maharashtra State Cooperative Societies Act 1960 – Sections 23, 29, 25, 27, 91 – Sale Deed – Possession – A short but important question which arises for consideration in this petition is that when indisputedly the petitioner has a registered sale deed executed in its favour by one Capstan Trading Pvt. Ltd. selling the premises in question to the petitioner, and when there is no dispute that the petitioner is unimpeachingly in possession of the premises since 2003, can the society refuse to accept the petitioner as its member by not issuing a share certificate at the instance of the developer. – Held, Contention as urged on behalf of the society referring to the provisions of Section 25 of the MCS Act which provides for cessation of membership of a society on the resignation of a member, or on the transfer of the share or interest in the society to another member, or on his death, or removal or expulsion from the society, or where a firm, company, any other corporate body, society or trust, in no manner would be relevant in the context of the present dispute. – Similarly, the contention as urged on behalf of the society referring to Section 27 which pertains to voting powers of members is totally outside the present controversy. – The reference to the said provisions in the context of the present proceedings completely is a hairsplitting argument. – In the facts of the present case, there is no need to delve or any contingent consequence in regard to voting powers which may be attached to a share certificate. – Further the respondents contention referring to Section 29 which provides for restrictions on transfer or charge of share or interest also cannot be accepted. – In the clear facts of the case, Section 29 would have no application. – It is quite clear to court that the Divisional Joint Registrar has acted in total disregard to the mandate of law as Sections 22 and 23 of the MCS Act would provide, in denying benefits of membership to the petitioner. – There is a clear and patent error in exercise of the revisional jurisdiction as vested in the Divisional Joint Registrar in setting aside the order passed by the Deputy Registrar who directed the society to grant membership to the petitioner. – Petition Allowed
G.S. Kulkarni, J.
A short but important question which arises for consideration in this petition is that when indisputedly the petitioner has a registered sale deed of 30th December 2002 executed in its favour by one Capstan Trading Pvt. Ltd. (for short 'Capstan') selling the premises in question to the petitioner, and when there is no dispute that the petitioner is unimpeachingly in possession of the premises since 2003, can the society refuse to accept the petitioner as its member by not issuing a share certificate at the instance of the developer.
2. This petition under Article 226 of the Constitution of India challenges an order dated 23 November 2009 passed by the Divisional Joint Registrar, Co-op. Societies, Mumbai (the Revisional Authority) whereby an order passed in favour of the petitioners by the Deputy Registrar under Section 23(2) of the Maharashtra State Cooperative Societies Act 1960 (for short "the MSC Act") directing respondent No.1 - Matulya Centre Premises Co-op. Society Ltd. (for short, "the society") to grant the petitioner society's membership stands set aside. The society had initially rejected petitioners' application for membership of the society.
3. A brief summary of the facts will aid the discussion:-
By a memorandum of understanding (MOU) one Capstan agreed to sell the entire first floor bearing Unit No.1 admeasuring 3216 sq.ft. (built up area) ("the premises") in the building known as "Matulya Centre Annexe "C" constructed on sub-plot "A", CTS No.249 (part) of Lower Parel Division to petitioner no.1 (for short 'petitioner'), for a total consideration of Rs.1,65,00,000/-. Thereafter a registered sale deed dated 30 December 2002 was executed by Capstan in favour of the petitioner under which the petitioner acquired the said premises from Capstan. The petitioner was also put in possession of the premises. The petitioner also commenced renovation work as the premises were to be used for banking activities of the petitioner's Lower Parel Branch. The petitioner's branch in the said premises was formally inaugurated on 19 April 2003. It is not in dispute that since 2003 and till date banking business is being conducted by the petitioner from the said premises.
4. It is the petitioner's case that when the renovation work of the premises was being undertaken one Mr.R.S.Bajaj claiming to be a secretary of the society approached the petitioner and called upon the petitioner to remove itself from the premises and that the petitioner would not be allowed to carry its banking business from the said premises. This was the first occasion when the petitioner learnt that the developer had formed a co-operative society of the said premises. On 3 February 2003 a representative of the petitioner and Capstan met the office bearers of the society and were informed that the society was formed in May, 2002. The representative of the petitioner informed the office bearers of the respondent-society that Capstan had purchased the said premises in November 1996 from one Ferani Hotels Pvt.Ltd. (for short 'Ferani') who was the builder-developer of the said premises and also expressed surprise as to why Capstan was not informed about formation of the Co-operative Society.
5. After the above said meeting, Capstan addressed a letter dated 25 February 2003 to the Society forwarding certified true copies of the relevant documents pertaining to the said premises, including the agreement dated 30 November 1996 entered between Ferani and Capstan. Capstan also recorded that as Capstan was not earlier aware of the formation of the society, the society was requested to admit Capstan as a member of the society and issue a share certificate in its favour.
6. At this stage, it is necessary to take note of a letter dated 25 February 2003 addressed by the Society to Ferani, informing Ferani that the society has received a request from Capstan claiming ownership of the premises. This is revealed from a letter dated 19 March 2003 of Ferani
