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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.K. MENON, J.
NATIONAL PROPERTIES THROUGH ITS PROPRIETOR SANJAY GHANSHAM JUMANI - Appellant
Versus
SINDHI IMMIGRANTS CO-OPERATIVE HOUSING SOCIETY LTD AND OTHERS - Respondent
Notice of Motion No. 285 of 2016; Commercial Suit No. 509 of 2016
Decided on : 02-05-2019
Co-operative Societies Act – Section 72 – Code of Civil Procedure, 1908 – Order XL Rule 1 – Mandatory Injunction – By this notice of motion the plaintiff seeks a mandatory injunction directing defendant no. 1 to handover peaceful possession of the suit property with vacant building forming subject matter of the suit Development Agreement, while directing defendant nos. 2 to 16 to vacate the suit flat and garages and hand over the same to the plaintiff for the purpose of demolition. – Further injunctions are sought restraining the office bearers of the defendants from interfering with and obstructing performance of the said Development Agreement. – The plaintiff also seeks appointment of Court Receiver, High Court, Bombay with all powers under Order XL Rule 1 of the Code of Civil Procedure, 1908 including power to take possession and handover the same to the plaintiff for the purpose of demolition. – Lastly a direction is sought against defendant nos. 2 to 16 to execute agreements of permanent alternate accommodation in respect of flats proposed to be constructed after demolition of the old building. – Reliefs are opposed only by defendant nos. 2 to 13 and 16. – Defendant no. 1 - society and the remaining members do not oppose the application. – In fact barring a few all other defendants support the plaintiff with the tacit approval of the society – Held, Court is of the view that, in the present case, the plaintiff has a very strong case much beyond a prima facie case. – The building having been found to be in a deteriorating condition, it is necessary to prevent mishaps and to abide by the will of the majority of the flat owners and failure to do that may result in irreparable or serious injury, which cannot be compensated in monetary terms; especially considering that, in realistic terms, the final disposal of the suit is not possible in the midst of the project. – The balance of convenience is also clearly in favour of the society. – Court is of the view that the grant of the relief in the notice of motion is justified. – if court consider the case of the defendants, the rights of the defendants are extremely limited and there is virtually no prejudice that can be caused to the defendants, who are bound by the decision of the society even from the inception of their membership by virtue of the order of the Deputy Registrar, which holds the field. – The requirement of compliance with Section 72 of the Co-operative Societies Act cannot be ignored. –Court is of the view that, in the facts of the case, the contesting defendants have attempted to steal a march on the plaintiff and seeking to thwart performance of a valid and subsisting Development Agreement between the plaintiff and defendant No.1-Society. – These special circumstances are that the majority of the members have opted for re-development of the building, which is not in a good condition, as evident from the fact that repairs are regularly being carried out by this very plaintiff. – The report of the Structural Auditor is also in favour of the plaintiff and also favours re-development and certifies the building to be in a dilapidated condition and that it would be better to redevelop, rather than repair it. – Court do not find any impediment in permitting the relief, though mandatory in nature. – Motion Allowed
A.K. MENON, J.
1. By this notice of motion the plaintiff seeks a mandatory injunction directing defendant no. 1 to handover peaceful possession of the suit property with vacant building forming subject matter of the suit Development Agreement dated 19th December, 2014, while directing defendant nos. 2 to 16 to vacate the suit flat and garages and hand over the same to the plaintiff for the purpose of demolition. Further injunctions are sought restraining the office bearers of the defendants from interfering with and obstructing performance of the said Development Agreement. The plaintiff also seeks appointment of Court Receiver, High Court, Bombay with all powers under Order XL Rule 1 of the Code of Civil Procedure, 1908 including power to take possession and handover the same to the plaintiff for the purpose of demolition. Lastly a direction is sought against defendant nos. 2 to 16 to execute agreements of permanent alternate accommodation in respect of flats proposed to be constructed after demolition of the old building. The reliefs are opposed only by defendant nos. 2 to 13 and 16. The defendant no. 1 - society and the remaining members do not oppose the application. In fact barring a few all other defendants support the plaintiff with the tacit approval of the society.
2. Affidavits in reply dated 24th June, 2016 and 4th April, 2017 have been filed on behalf of defendant no. 1. On behalf of defendant no. 7 also an affidavit in reply dated 29th June, 2016 has been filed. Defendant nos. 2 to 8, 10 and 11 have not filed affidavits in reply to the motion but have filed a written statement dated 23rd June, 2017. Defendant no. 9 has also filed written statement dated 5th July, 2017. Likewise defendant nos. 13 and 16 have also filed written statement dated 11th September, 2017. On behalf of defendant nos. 2 to 13 and 16 Mr. Ankhad submitted that the written statement may be treated as replies to the motion. Defendant nos. 17 to 20, 22 to 24, 26, 27, 29 to 31, 33 to 39, 41 to 42 support the plaintiff and defendant no. 1.
A few facts may be gone into by way of background :
3. The plaintiff is a proprietary concern of one Mr. Sanjay Ghanshyamdas Jumani. Defendant no. 1 is a Co-operative Housing Society comprising of 162 plots having buildings thereon with a common recreation ground along with gymkhana located at Chembur Village, Mumbai. Gurukripa Building ["Gurukripa"] is part of the defendant no. 1 society. Gurukripa consists of 42 flats and 11 garages constructed in 5 wings on plot of land bearing CTS No. 199 admeasuring 3445.9 sq.mtrs. Except for one flat ad-measuring 500 sq.ft the remaining 41 flats measure 400 sq.ft in area. These 42 flats are held by 42 shareholders of defendant no. 1. Defendant no. 1 however has 500 shareholders.
4. The building is said to be in a dilapidated condition and has been repaired a few times and it was eventually decided to go in for redevelopment. It is the plaintiffs' contention that the flat holders of Gurukripa had all conveyed their consent by executing consent letters in favour of the plaintiff. However after the consent letters were executed defendant nos. 2 to 11 purchased 10 flats in Gurukripa from the original owners, who had consented to redevelopment. Defendant nos.2 to 11, 12, 13 and 16 amongst others are now opposing redevelopment.
5. It is plaintiffs' case that these Defendants 2 to 11 are family members of persons in ownership and management of the Kukreja Group of Companies ["Kukreja Group"], who are developers of real estate. They have sought to stall the redevelopment and are interested in redeveloping Grukripa themselves. Several of the flat holders are said to have vacated their premises whereas defendant nos. 2 to 11 are claiming ownership and possession of the flats but do not reside there. It is the plaintiffs case that the flats have only been purchased to frustrate the redevelopment of the building. In the process of identifying the plaintiff as the developer the flat
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