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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRADEEP NANDRAJOG, BHARATI DANGRE, JJ.
Bay Home Properties Developers Pvt. Ltd. & Others – Appellants
Versus
M/s. National Properties Builders & Developers – Respondents
Commercial Appeal No. 371 of 2019 in Commercial Notice of Motion No. 285 of 2016 in Commercial Suit No. 509 of 2016 with Notice of Motion No. 679 of 2019
Decided on : 11-12-2019
Maharashtra Co-Operative Societies Act, 1960 - Section 79A - Bombay Co-Operative Societies Act, 1925 - Mandatory injunction - Possession of flats - Backdrop facts necessary to be noted while deciding the appeal are that 1st Defendant in the suit, which is respondent No.2 in the appeal was registered as a Co- Operative Society under the Bombay Co-Operative Societies Act, 1925 - It is named Sindhi Immigrants Co-Operative Housing Society Ltd - Society was allotted of land comprising plots each plot is a single entity plot, which means that Floor Space Index available is plot-wise and not to entire land which was allotted to Society - Appeal concerns only one plot of land - Society has Members - In building constructed there are residential flats and garages - With passage of time building deteriorated and reached a stage where it was not advisable to refurbish the building - After demolition building reconstructing a new building was the only way forward. flat owners in building decided on May to appoint a Member Sub-Committee to decide on redevelopment of building - Committee invited quotations from well-known developers to submit offers to demolish existing building and re-construct a new building - Six developers - National Properties was short-listed as the Developer and on May Building Committee addressed a communication to it informing that redevelopment work would be allotted to it on conditions set out therein – Held, Decision which triggered redevelopment process was taken by more than of affected members - After Sub-committee obtained quotations from six developers and short-listed National Properties as best at General Body meeting of Building Flat Owners held on June where flat owners were present the proposal sent by National Properties was accepted - Since the Society had to formally approve the decision taken by the majority of the flat owners affected, on March meeting took place - Coram was present and notwithstanding members present it cannot be lost sight of that were owners of the flats in Building - Unanimous resolution passed shows that more than of flat owners of Building gave the necessary approval - This led to the dated July being executed - National Properties proceeded with execution of development work by obtaining necessary sanctions and permissions - On August flat owners sought to withdraw their consent - Some of them had thought evidenced by the fact that on flat owners informed that they stood by the earlier decision - It may be true that flat owners requested National Properties to submit fresh proposal in response where to National Properties wrote to provide a signed letter for it to provide to revised proposal but occupants addressed a communication to National Properties recording that they would like to forget the unfortunate events of the past and would like to move forward as per the decision taken - It was only thereafter that of Group surfaced and relevant would it be to highlight that before that members owning the flats in Building affirmed, duly notarized affirmations that they agreed and consented to redevelopment through National Properties - It may be further true that National Properties had submitted a fresh proposal to the Members of Building and had requested on to take a final decision but from the fact that thereafter National Properties obtained the clearance from the Airport Authority of India and thereafter necessary No Objection from the fire department members of Building executed the agreement for permanent alternative accommodation - Thus it cannot be said that an abandoned proposal was sought to be implemented by National Properties – Appeal dismiss
JUDGMENT :
Pradeep Nandrajog, J.
1. The correctness of the view taken by the learned Single Judge in allowing Notice of Motion No. 285/2016 in Commercial Suit No. 509/2016 vide impugned order dated 2nd May 2019 is under scrutiny in the present appeal. Vide order dated 2nd May 2019 a Court Receiver has been appointed to take possession of the suit property. Defendant Nos. 2 to 16 in the suit have been directed to execute permanent alternative accommodation agreements and receive temporary accommodation charges. Said defendants have been directed vide an interim mandatory injunction to hand over possession of the flats and two garages in their possession.
2. The backdrop facts necessary to be noted, while deciding the appeal are that the 1st Defendant in the suit, which is respondent No.2 in the appeal was registered as a Co- Operative Society under the Bombay Co-Operative Societies Act, 1925. It is named Sindhi Immigrants Co-Operative Housing Society Ltd. (“Society”). The Society was allotted 38 Acres and 15 Gunthas of land comprising 162 plots, each plot is a single entity plot, which means that Floor Space Index (“FSI”) available is plot-wise and not to the entire land which was allotted to the Society. The appeal concerns only one plot of land bearing CTS No. 199. The Society has 500 Members. In the building constructed on CTS No. 199 there are 42 residential flats and 11 garages. The building is named “Gurukripa”.
3. It was constructed in the year 1970. With passage of time the building deteriorated and reached a stage where it was not advisable to refurbish the building. After demolition the building, reconstructing a new building was the only way forward. 37 out of the 42 flat owners in Gurukripa building, decided on 7th May 2002 to appoint a 8 Member Sub-Committee to decide on the redevelopment of the building. The Committee invited quotations from well-known developers to submit offers to demolish existing building and re-construct a new building. Six developers: (i) M/s. Pranjee Properties Ltd., (ii) M/s. Dlbit Associate, (iii) M/s. Goyal Builders, (iv) M/s. Gulraz Contractors, (v) M/s. D.S. Group, and (vi) National Properties (the Plaintiff/Respondent No.1) submitted offers. National Properties was short-listed as the Developer and on 19th May 2008 the Gurukripa Building Committee addressed a communication to it informing that the redevelopment work would be allotted to it on the conditions set out therein.
4. In response, National Properties informed the Society and the Development Committee vide letter dated 31st May 2008 that it would provide to each Member 770 square feet carpet area with one stilt parking and Rs.2 lakhs to each flat 2 lakhs to each flat owner. The construction would be of the best quality. Other monetary and non-monetary benefits were offered.
5. At the asking of the Development Committee, a General Body Meeting of Gurukripa Building Flat Owners was held on 1st June 2008 where the Honorary Secretary of the Society was present. 33 out of 42 Members who were owners of the flats in Gurukripa building attended the meeting and unanimously accepted the proposal sent by National Properties.
6. On 3rd January 2009, in exercise of the power conferred by Section 79A of the Maharashtra Co-Operative Societies Act, 1960 a directive was issued prescribing the procedure to be followed by Group Housing Societies for redevelopment, and succinctly put the same required the Society to obtain quotations from at least 5 persons for the redevelopment of buildings and approval at the Special General Body of the Society with 3/4th members of the Society approving the proposal and the award of work to the redeveloper.
7. On 29th January 2009 Gurukripa Building Development Sub-Committee addressed a letter to the Society forwarding the proposal to redevelop Gurukripa Building, seeking a No Objection to form a separate Co-operative Housing Society as a limb of the Society.
8. On 22nd February 2009 the Society issued a notice conveni
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