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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. Dharmadhikari, G.S. Patel, JJ.
Mohinder Rijhwani – Appellant
Versus
Hiranandani Construction Pvt. Ltd. – Respondent
Appeal (L) No. 142 of 2019, 143 of 2019; Notice of Motion No. 595 of 2017; Suit No. 229 of 2017; Notice of Motion (L) No. 322 of 2019, 324 of 2019
Decided On : 09-09-2019
Criminal Procedure Code - Section 156- Maharashtra Co-operative Societies Act – Circumstances evidence - Possession thereof including – Claim of compensation - This Honble Court be pleased to order and decree Defendants by a mandatory order and direction to forthwith handover or cause to be handed over vacant possession of said premises being old fat Nos. A/35/2 (along with shifting of the said Idol), B/36/1, B/38/1 and B/37/3 of the Defendant Nos. 1 to 4 respectively and shift to the new fat Nos. 1301B/1302B/1303B,1401B/1402B,1301A/1401A, and 901A/1001A allotted in the new buildings along with their materials, furniture and all belongings - This Honble Court be pleased to order and decree the Defendant Nos. 1 to 4 by a mandatory order and direction to forthwith make payments of total sum of Rs. 1,03,77,450 (Rupees One Crore Three Lacs Seventy Seven Thousand Four Hundred and fifty only)/- (as per Exhibit Q & R) towards extra area purchased by them over and above their entitlement area along with other charges as per Development Agreement – Held, final dimension to the matter is the detailed discussion in the impugned order in regard to the principles underlying cooperative societies and the rationale of the governing Maharashtra Co-operative Societies Act. We need not repeat the various authorities cited and considered by the learned single Judge. We are in the fullest agreement with his views and his appreciation of the law. Before us, the appellants counsel were at some pains to contend that they accepted that view and that they were not, in fact, opposing the society or re-development. The facts are to the contrary. They are indeed holding up the entire re-development, and they have indeed moved the cooperative courts repeatedly, and repeatedly without success, to agitate a minority view against the decision of the majority. That majority decision binds them. There is no separate privilege or benefit that can be made available to these members just because they believe they have some other idea or interpretation. They are bound to subject themselves to the discipline of the majority decision. In case after case, we see a handful of members holding up the betterment of the society, and this comes at the very real cost of their fellow society members. Of all the 273 society members, only the Rijhwanis and the Hindujas continue to hold out. They continue to delay and obstruct the re-development. They cannot. They have no such right - In the event of Defendant No.3 and/or Defendant No.4 failing to comply with the directions given in Clause (i) above, the Court Receiver, High Court, Bombay shall forthwith stand appointed as Receiver in respect of the said fats and shall take physical possession of the said fat/s from Defendant Nos.3 and/or 4 and/or any other person found therein, if necessary with the help of Police and shall handover possession of the said fat/s to the Plaintiff – Appeal dismissed
JUDGMENT :
G.S. Patel, J.
These two Appeals are by, respectively, original Defendant No. 4 and original Defendant No. 3 to the suit fled by the present 1st Respondent. Both Appeals are directed against an order dated 13th March 2019 of the learned Single Judge. We will refer to the parties as arrayed in the suit for convenience. The sole Plaintiff is one Hiranandani Constructions Private Limited. Defendant No. 3 is shown as two persons, Veena Hinduja and Haresh R Hinduja. Defendant No. 4 is shown as three persons, Mohinder Rijhwani, Prakash H Rijhwani and Prem H Rijhwani. Defendant No. 5 is M/s. Maitri Park Cooperative Housing Society. Veena Hinduja and Haresh R Hinduja are the Appellants in Appeal (L) No. 143 of 2019 and the three Rijhwanis are the Appellants in Appeal (L) No. 142 of 2019.
2. The suit itself was for the following reliefs:
"a) this Hon'ble Court be pleased to order and decree the Defendants by a mandatory order and direction to forthwith handover or cause to be handed over vacant possession of said premises being old fat Nos. A/35/2 (along with shifting of the said Idol), B/36/1, B/38/1 and B/37/3 of the Defendant Nos. 1 to 4 respectively and shift to the new fat Nos. 1301B/1302B/1303B,1401B/1402B,1301A/1401A, and 901A/1001A allotted in the new buildings along with their materials, furniture and all belongings.
(b) this Hon'ble Court be pleased to order and decree the Defendant Nos. 1 to 4 by a mandatory order and direction to forthwith make payments of total sum of Rs. 1,03,77,450 (Rupees One Crore Three Lacs Seventy Seven Thousand Four Hundred and fifty only)/- (as per Exhibit Q & R) towards extra area purchased by them over and above their entitlement area along with other charges as per Development Agreement;"
3. Hiranandani Constructions fled Notice of Motion No. 595 of 2017 seeking following reliefs:
"a) That pending the hearing and final disposal of the present suit, court Receiver be appointed of the said premises being fat Nos. A/35/2 (along with shifting of the said Idol), B/36/1, B/38/1 and B/373 with direction to take possession thereof including by way of forcible possession from the Defendant Nos. 1 to 4 respectively and hand over the same to the Plaintiffs on such terms as this Hon'ble Court deems ft and proper.
(b) That pending the hearing and final disposal of the present suit, this Hon'ble Court be pleased to order and decree the Defendants by a mandatory order and direction to forthwith handover or cause to be handed over vacant possession of said premises using old fat Nos. A/35/2 (along with shifting of the said Idol), B/36/1, B/38/1 and B/373 with direction to take possession thereof including by way of forcible possession from the Defendant Nos. 1 to 4 respectively and shift to the new fat Nos. 1301B/1302B/1303B,1401B/1402B,1301A/ 1401A, and 901A/1001A allotted in the new buildings.
(c) That pending the hearing and final disposal of the present suit, this Hon'ble Court be pleased to order and decree the Defendant Nos. 1 to 4 to forthwith deposit the payments of total sum of Rs. 1,03,77,450 (Rupees One Crore Three Lacs Seventy Seven Thousand Four Hundred and fifty only) (as per Exhibit P) with this Hon'ble Court towards extra area purchased by them over and above their entitlement area along with other charges as per Development Agreement;
(d) That pending the hearing and final disposal of the present suit, this Hon'ble Court be pleased to order and decree the Defendant Nos. 1 to 4 not to create third party rights in respect of the new fats allotted in the new buildings."
4. The history of this litigation can be traced to a Development Agreement dated 27th May 2006 between the Maitri Park Cooperative Housing Society and Hiranandani Constructions. This was an agreement by which the Maitri Park Society's property was to be developed. The society had 273 members. At the time of the Notice of Motion it was said that Hinduja Defendants and Rijhwani Defendants were refusing to vacate their premises despit
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