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2021 Supreme(Bom) 1176
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S.Karnik, J.
Shantivan Co-operative Housing Society Limited - Appellant
Versus
Mahesh G. Sugnani - Respondent
Writ Petition No.2330 of 2021
Decided On : 20-07-2021
Durgesh Kulkarni, Advocate, Renuka Kavedia, Advocate, V. S. Nimbalkar, Advocate, Mayank Bagla, Advocate, Rupali Bagla , Advocate
The main legal point established is that the Co-operative Court has the jurisdiction to appoint a Court Receiver and may pass appropriate orders based on the prayers made in the applications before it.
Headnote:
Co-operative Society - Appointment of Court Receiver - Code of Civil Procedure - Order 40, Rule 2 - Mahabir Nuniwal Vs. Neptune Co-operative Housing Society Ltd., Mumbai - 2009 4 MhLJ 304
Fact of the Case:
The Co-operative Society filed a petition challenging the order passed by the Maharashtra State Co-operative Appellate Court, which set aside the order of the Co-operative Court appointing a Court Receiver for a flat in a dilapidated building. The Respondent No.1 had no objection to the redevelopment of the Society but objected to the appointment of the developer without his consent.
Finding of the Court:
The Court found that the Co-operative Appellate Court should not have interfered with the order passed by the Co-operative Court, as the majority of occupants had vacated the building, and the Respondent No.1 had not opposed the redevelopment. The building had been declared dilapidated by the Municipal Corporation.
Issues: The issues involved the jurisdiction of the Co-operative Court to appoint a Court Receiver and the objection of the Respondent No.1 to the appointment of the developer without his consent.
Ratio Decidendi: The Court held that the Co-operative Court was justified in appointing the Court Receiver, and the absence of a specific prayer for handing over possession in one application did not preclude the Court from passing appropriate orders if such a prayer was made in another application before it.
Final Decision: The Court stayed the effect, execution, and operation of the Appellate Court's order, considering the arguable questions raised and the interest of justice.
JUDGMENT
M.S.KARNIK, J. - Heard learned counsel for the parties.
2. The Co-operative Society is before this Court in a Petition filed under Article 227 of the Constitution of India challenging the order passed by the Maharashtra State Co-operative Appellate Court.
3. By an order dated 21.04.2021 this Court had issued notice to the Respondents. The Petitioner filed affidavit of service on 09.07.2021 stating that the Respondent No.1 is served. This was pursuant to the order dated 30.06.2021 passed by this Court where the statement of learned counsel appearing on behalf of the Petitioner was recorded that the Respondent No.1 is already served and he would like to place on record the affidavit of service. Accordingly, the matter was kept for further consideration. Despite service none appears for Respondent No.1.
4. Briefly stated it is the Petitioner's case that the building of the Co-operative Society is in a dilapidated condition and the notice to that effect was already issued by the Corporation. My attention is invited to the reply filed on behalf of the Respondent No.1 before the Co-operative Court. At paragraph 12 it is averred by the Respondent No.1 that he has no objection for redevelopment of the said Society but the only objection of the Respondent No.1 is that the developer was appointed and proposed flat was allotted without Respondent No.1'ss consent. The objection is to the appointment of the developer without the consent of Respondent No.1. The resolution is passed by the Society by a majority. This resolution is not under challenge by the Respondent No.1. The Respondent No.1 has even not challenged the redevelopment or proposed allotment of the flat.
5. The Petitioner has filed the dispute in the Co-operative Court against the Respondent No.1 to handover the vacant and peaceful possession of Flat No.24 and to restrain the Respondent No.1 from entering into the property of the disputant-Society and consequential reliefs.
6. Along with the application for temporary ad-interim injunction at Exhibit 5, the disputant filed an application for appointment of a Court Receiver at Exhibit 7 under Order 40, Rule 2 of the Code of Civil Procedure. The Petitioner's prayed that during the pendency of the dispute, the Court Receiver be appointed for the said flat and take possession of the said flat. It is prayed that Court Receiver should hand over the vacant and peaceful possession of the said flat to the disputant-Society.
7. The Co-operative Court passed an order below Exhibit 5 and Exhibit 7 and for the reasons mentioned in the order dated 11.12.2020 appointed the Court Receiver to take possession of the Respondent No.1'ss flat.
8. The Respondent No.1 challenged the order passed by the Co-operative Court appointing the Court Receiver before the Co-operative Appellate Court. By the impugned order the order passed by the Co-operative Court is set aside. The Co-operative Appellate Court was of the opinion that the Co-operative Court has no jurisdiction to appoint the Court Receiver. Further it held that in the Exhibit 5 application no relief for handing over possession is prayed for and therefore the Co-operative Court's order deserves to be set aside.
9. I have heard learned counsel for the Petitioner and Respondent No.2 and the AGP.
10. I have gone through the impugned order as well as the order passed by the Co-operative Court and also the pleadings and the documents in support. Reliance is placed by learned counsel for the Petitioner in the case of Mahabir Nuniwal Vs. Neptune Co- operative Housing Society Ltd., Mumbai and another; 2009 4 MhLJ 304 to contend that the Co-operative Court would be justified in appointing the Court Receiver in an appropriate case where sufficient case is made out. Learned counsel submits that order of the Co-operative Court is explicit and in the facts of the present case there is nothing wrong with the view taken by the Co-operative Court appointing the Court Receiver.
11. It is my prima facie v
