Receipts for gas connection marked as Exhibits D32 and D33 in evidence. Receipt No. 431443 issued by Burshane Ideal Gas storage and distribution company of India Ltd. is dated 22.05.1969. The document is issued by a public corporation. It may be taken to be a public document. The slip produced by the defendants is a carbon copy made out at the time the document was executed. It shows the receipt of Burshane Gas Cylinder for which a deposit of Rs.70/ is made. The carbon copy of the slip is the one handed over to the defendants and produced from their custody. The original document would be with the relevant department of the public corporation. The document is more than 30 years old at the time of its production. It carries a presumption of correctness of the handwriting as
well as the signature thereon.
IN THE HIGH COURT OF High Court Of BOMBAY
Santacruz Prakash Coop. Hsg. Society Ltd. Vs. Smt. Rehmani Begum & Ors.
CORAM: MRS. ROSHAN DALVI, J.
Dated : 9 APRIL, 2012.
Citation : 2012 (5) MH.L.J. 129
JUDGMENT
1.Maharashtra Cooperative Societies Act, 1960 (MCSA) on 27.09.1969 as a
tenants partnership society under Rule 10(1)(5)(b) of the Maharashtra Co
operative Societies Rules, 1961 (MCSR).
The plaintiff is a cooperative society registered under the
2.
Construction Company constructed the plaintiff’s society building having 11
flats and 2 garages in 1966. The builders sold the flats on ownership basis
to the flat purchasers who occupied them after the completion certificate
was issued by the Mumbai Municipal Corporation (MMC) on 19.11.1966.
The flat purchasers formed a cooperative society under Section 10 of the
Maharashtra Ownership Flats (Regulations of the Promotion of
Construction, Sale, Management and Transfer) Act, 1963 (MOFA). It is the
It is the plaintiff’s case that one M/s. Jhangiani Gurbuxani
(2) S 260/79
plaintiff’s case that on the date of registration of the society 12 persons
holding 11 flats and 1 garage became members of the plaintiff’s society. It is
plaintiff’s case that all the purchasers entered into separate agreements with
the builders which the plaintiff relied upon.
3.
Building one Sitabai Shewaram was shown as the purchaser from the
aforesaid builders. She purchased 2 flats of 2 rooms and one kitchen with
an area of 500 sq. ft. It is the plaintiff’s case that Sitabai occupied the flats
until November, 1969 having taken possession of it from the builders. She
was the first person to occupy the suit flat.
In respect of the suit flat being Flat No. 9 on 2nd floor of Prakash
4.
constructed on the land taken from the owners of the land by the builders
on free hold basis. A conveyance was executed on 17th June, 1972 by the
builders’ firm as owners in favour of the society. It conveyed to the society
the land with the building consisting of 11 flats and 2 garages and open
space described in the schedule thereof. There are 2 schedules to the
conveyance. The first schedule describes the building structure on the plot
of land conveyed to the society. The second schedule shows the names of
the members. Sitabai is shown at serial No.9 having paid Rs.30,000/ as
contribution towards flat and garages. That is however the flat purchased
by her from the builders on ownership basis. Hence that amount is
consideration paid by her to the builders pursuant to which she came into
possession and occupation of the suit flat.
It is also the case of the plaintiff’s society that the building was
5.
by Sitabai she was alloted the user of the suit premises as member of the
plaintiff’s society.
It is the case of the plaintiff that consequent upon the purchase
(3) S 260/79
6.
with possession of the suit premises in favour of the defendants in
November, 1969 without the permission of the society and the defendants
have been inducted in the suit premises illegally and unauthorizedly since
then without the permission of the plaintiff’s society. It is the plaintiff’s case
that the Sitabai was not entitled to part with possession of the premises in
favour of the defendants under byelaw 71D and Regulation 4 of FormA of
the model byelaws adopted by the plaintiff as the byelaws of the society
without the permission of the plaintiff as also the Registrar of the society.
The plaintiff called upon Sitabai to remedy to breach. She failed to comply.
The plaintiff claimed that Sitabai was bound to pay charges to them at the
rate of Rs.125/ per month by way of municipal taxes and outgoings which
are paid until 31st January, 1971. Sitabai failed to pay thereafter. Hence the
plaintiff terminated her copartnership tenancy by the notice of termination
dated 28th January, 1972 and expelled her from the membership of the
society under byelaw 12(1)(g).
It is the further case of the plaintiff that Sitabai illegally parted
7.
Sitabai and the defendants under the dispute being an Arbitration case filed
by the plaintiff on 10th January, 1973 in the Cooperative Court under
Sections 9196 of the MCSA. The defendants challenged the jurisdiction of
the Cooperative Court since they were not members of the society and the
dispute was not between the society and its members. An award came to be
passed but was set aside by the Appellate Curt on the ground of lack of the
inherent jurisdiction of the Cooperative Court. Writ Petition challenging
that Judgment has been dismissed and hence this Suit is filed for recovery of
possession from the defendants as trespassers.
The plaintiff sued for recovery of possession of the suit flat from
(4) S 260/79
8.
the suit premises to them for consideration of Rs.30,000/ paid in cash
without any written agreement. The defendants were put in possession of
the suit flat in or before May, 1969 and not in November, 1969 as alleged by
the plaintiff.
The essential case of the defendants is that Sitabai transferred
9.
came into the suit premises prior to the registration of the plaintiffs’ society
but yet they were wrongly not shown as members and Sitabai who had
already sold and transferred the suit premises for consideration to the
defendants was shown as the member. The defendants contend that since
the original defendants came into the suit premises prior to the registration
of the society but were not accepted as members, the society could not apply
the provisions of byelaw 71D or Regulation 4 of FormA against them. Bye
laws could have been adopted by the society only after the registration of
the society and is, therefore, not applicable to the case of the defendants.
It is the case of the defendants that the original defendants
10.
framed and answered as follows:
ISSUES
Whether Smt. Sitabai Shewaram is a necessary No.
party to the Suit as alleged in para 1 of the written
statement ?
1.
Based upon the aforesaid pleadings, the following issues were
2.
Whether the plaintiffs are tenant Copartnership Yes.
type of Housing Society as alleged in para 1 of the
plaint.
3.
Whether Smt. Sitabai Shewaram parted with No.
possession of suit premises in November, 1969 as
alleged in para 6 of the plaint.
4.
Whether the plaintiffs prove that the defendants No.
(5) S 260/79
were bound to obtain permission under 71D of the
Bye Laws of the plaintiff and also by virtue of
Regulation 4 of Form A of the Bye Laws of the
society.
5.
Whether the defendants prove that the aforesaid Yes.
Bye Laws are not applicable to the defendants as
the defendants have purchased the property before
the said Bye Laws have come into force.
6.
Whether the plaintiffs had directly or indirectly Not shown, but
recognised the defendant No.1 as a person who need not be
had agreed to purchase the suit flat from Smt. answered.
Sitabai and as a person who had succeeded to the
rights of the said Smt. Sitabai as alleged in para 5
of the written statement.
7.
Whether the defendants are trespassers as alleged No.
in para 7 of the plaint.
8.
Whether the plaintiffs expelled Smt. Sitabai Not required to
Shewaram from membership of plaintiffs as alleged be answered.
in para 11 of the plaint.
9.
Whether the plaintiffs are entitled to obtain No.
possession of suit premises from the defendants as
alleged in para 17 of the plaint.
10. What order ?
11. What decree ?
As per final order.
As per final order.
ISSUE NO.1 :
One Sitabai Shewaram has admittedly purchased the suit flat
11.
from the builders and developers under an agreement of flat purchase
executed by her. This purchase was prior to the plaintiffsociety being
registered and prior to the society adopting the byelaws. Sitabai is stated to
have put the original defendants in possession of the suit premises. This suit
(6) S 260/79
is for recovery of possession from the parties inducted by Sitabai. The
original defendant and the present defendants would alone contest the suit.
Sitabai has never sought to contest the rights of the plaintiffsociety. Hence
Sitabai is not a necessary party to the suit. Hence Issue No.1 is answered in
the negative.
ISSUE NO. 2 :
The plaintiff claims that they are tenants copartnership type of
12.
housing society. The byelaws of the plaintiffsociety adopted by the
members of the society show that it is flat owners cooperative housing
society limited. Byelaws also make a reference to Tenants in Chapter XX
under Rules 71 to 74. The society has to allot the tenements after its
registration and after it acquired title of the land and the building of the
society to the persons who subscribed to or offered to subscribe to the shares
of the society of tenants under Byelaw 71. There is no real dispute and
contest on this aspect, the contest being on when the society came into
existence and when the byelaws would constitute a contract between the
society and its members. Hence the plaintiffsociety may be taken to be a
tenants copartnership society. Consequently Issue No.2 is answered in the
affirmative.
ISSUE NO. 3 :
The plaintiffsociety has claimed and deposed that Sitabai
13.
Shewaram parted with possession of the suit flat No.9 in the plaintiff society
holding in November, 1969. This is a bare statement, left wholly
unsubscribed.
14.
As against this, the essential case of the defendants is that
(7) S 260/79
Sitabai transferred the suit premises to them for consideration of Rs.
30,000/ paid in cash without any written agreement. The defendants were
put in possession of the suit flat by Sitabai in or before May, 1969 and not in
November, 1969 as alleged by the plaintiff. The defendants have relied
upon a number of documents to prove their possession. The plaintiff has not
disputed the defendants’ possession. The plaint itself shows that the
defendants are in possession albeit unauthorizedly and illegally. The
defendants must, therefore, show that they are in authorized possession, use
and occupation of the suit flat.
15.
receipts for gas connection marked as Exhibits D32 and D33 in evidence.
Receipt No. 431443 issued by Burshane Ideal Gas storage and distribution
company of India Ltd. is dated 22.05.1969. The document is issued by a
public corporation. It may be taken to be a public document. The slip
produced by the defendants is a carbon copy made out at the time the
document was executed. It shows the receipt of Burshane Gas Cylinder for
which a deposit of Rs.70/ is made. The carbon copy of the slip is the one
handed over to the defendants and produced from their custody. The
original document would be with the relevant department of the public
corporation. The document is more than 30 years old at the time of its
production. It carries a presumption of correctness of the handwriting as
well as the signature thereon. The date of the document is most material. It
is issued in the name of the original defendant No.1. If defendant No.1 was
not put in possession prior to that date such a document could not have
been issued.
16. memo bearing No. 2482 of Cambata Industries Pvt. Ltd. for Rs. 226.41 made
The other document relied upon by the defendant is a bill/cash
(8) S 260/79
in the name of original defendant No.1. It shows her consumer number. It
shows Ideal Gas Service as the subagent. It is the private document. It is
required to be proved by direct oral evidence since it does not carry any
presumption of its correctness as a public document. The defendant has
sought to prove it through the evidence of an independent witness who is a
partner of one M/s. Universal Gas Co. who are the agents of Burshane Gas
for supply of gas cylinders. The witness has deposed that the earlier agents
were Cambata Industries Pvt. Ltd. and their subagents were M/s. Ideal Gas
Service. Ideal Gas Service closed down and their customers were
transferred by M/s. Bharat Petroleum Corporation to the firm of deponent.
The witness has identified the consumer number belonging to original
defendant No.1. She has identified the flat as the suit premises and she has
testified of the correctness of the service voucher No. 431443 of Burshane
Gas issued on 22.05.1969. There is no crossexamination to challenge this
evidence. Hence the plaintiff has failed to prove the specific positive case
made out by it and such case is disproved by the documentary evidence led
by the defendants. Hence Issue No.3 is answered in the negative.
ISSUE NOS. 4 & 5 :
The plaintiffsociety is the tenancy partnership society and
17.
hence under Rule 10(1)(5)(b) it holds the land and building on free hold
basis as conveyed to it under the Conveyance dated 17.06.1982. The society
can allot flats to the members only after it is registered as such tenants
partnership housing society and after it acquires title itself. The registration
certificate of the society is dated 27.09.1969.
18.
was registered on 27.09.1969. It adopted byelaws thereafter. The suit
property was conveyed to the society on 17th June, 1972. The society
The admitted facts between the parties show that the society
(9) S 260/79
became the owner of the suit premises only on and from date of conveyance
and could exercise rights of ownership only since then.
19.
purchased flats and who were in possession at the relevant time. The
members initially purchased flats from the aforesaid builders as set out in
para 2 of the plaint itself. If any member has sold any flat prior to society
being formed and registered and prior to the conveyance in favour of society,
the society cannot allot any flat in the society to such person as its member.
The society must then allot the flat to the transferee of such member who
would then be the purchaser of such flat and in possession thereof. It is only
from and after the registration of the society and the adoption of the bye
laws that the byelaws would constitute a contract between its society and
its members and the society as well as members would be governed by the
byelaws. Hence it is only thereafter that that the aforesaid byelaws could
be made applicable to the then members of the society.
The society has to allot flats to those persons who had
20.
into possession of the suit premises in or before May, 1969 and consequently
were in possession on the date the society was registered.
The aforesaid evidence shows that the original defendants came
21.
Whoever be those 10 members, the registration of the society would enure
for the benefit of all the persons in possession of the society premises at the
relevant time. Once the defendants’ possession and occupation of the suit
premises is seen on the date of the registration, the plaintiffsociety must
accept them as members and the defendants cannot be taken to be
trespassers. Such members need not have taken any permission of the
plaintiffsociety for transfer of the premises made to them as the society was
Minimum 10 members are required to register the society.
(10) S 260/79
not in existence as a legal entity until it was registered. Hence the original
defendants should have been made members of the society but were not
made members. Their transferor who had already transferred their right,
title and interest before the society itself was formed and registered was
sought to be shown as the member. The plaintiff society, however, had
refused to accept the original defendants as members on the premise that
the original defendants had not obtained the society’s permission for such
transfer.
22.
the original defendant or the present defendants. They would have applied
to the original defendants and the present defendants only if they were
accepted as members of the plaintiffsociety. It is in this light that the Bye
law 71D and Regulation 4 of FormA are required to be seen. They run
thus :
Byelaw 71D.
A member to whom a tenement is allotted shall
occupy it himself and shall not assign, underlet, vacate or part with
the possession of the tenement or any part thereof without the
previous consent in writing of the Managing Committee.
Regulation 4 (Form A). No tenant shall assign, underlet, vacate or
part with the possession of the tenement or any part thereof without
the previous consent in writing of the Society.
It may be mentioned that the society can allot the tenements only after its
registration. Hence it must allot the tenement to such person who has the
legal right by purchase from the developers or the previous owners on the
date of its registration. Therefore, such person, who becomes a member
under its byelaws, is bound by the byelaws and thereafter has to occupy
the tenement itself and cannot assign or transfer it without the permission of
the society.
Hence the byelaws of the society cannot be made applicable to
(11) S 260/79
23.
shows that there is a provision against assignment or underletting by a
member or tenant without the previous written consent of the society as also
the registering authority. At the time the original defendant was put in
possession of the suit flat there was no society that was registered. Hence
no permission of the society or even the registering authority could be taken
by the original defendants.
A reading of byelaw 71D as also Regulation 4 of Form A itself
24.
pursuant to the conveyance dated 17.06.1972 and can take proceeding for
recovery of the premises in the possession of its members or those
trespassers from such persons who have not taken premises of the society
when it was legally competent to grant permission as a legal entity and not
for trespassers effected prior thereto, which it must accept upon the
breaches committed by the members of any of the byelaws or upon non
payment of the society charges and taxes as is claimed by the plaintiff
society, it cannot take a similar action against the person in possession prior
to its registration who should have rightfully been made a member of the
society but who was not so made.
Though, therefore, the society has become owner of the suit flat
25.
answered in the affirmative.
Hence Issue No.4 is answered in the negative and Issue No.5 is
ISSUE NO. 6 :
Though the defendants have claimed that in fact the plaintiff
26.
society has recognized them as members, there is no material evidence on
this score. However that does not matter in view of the aforesaid legal
position. Hence Issue No.6 is not required to be answered in view of the
(12) S 260/79
answers to issue Nos.4 & 5.
ISSUE NO. 7 :
Under Regulation 71, the person in occupation of any premises
27.
in the plaintiffsociety could not be a tenant of the society unless he
subscribed to such number of shares as the Managing Committee of the
society prescribed. Regulation 71 runs thus:
71. No member shall be a tenant of the Society unless he subscribes
to such number of shares as the Managing Committee prescribes.
28.
offered to be members of the society but the plaintiffsociety never accepted
the defendants or original defendants as such. Since the society has refused
to recognize the defendants as its members, the defendants could not have
subscribed to the shares of the society. It may be mentioned that in the
original byelaws produced by the plaintiff as Exhibit P2, there are 11
members who are shown to have subscribed their names with their
signatures to the byelaws. Sitabai has not subscribed as a member of the
plaintiffsociety. The defendants claim that though they offered to be the
members on such terms as the plaintiffsociety may subscribe, the society
has not accepted them as members. Consequently the original defendant
and the present defendants have continued in occupation of the suit flat No.
9 in the plaintiffsociety building without being allotted the suit flat and
without being made members of the society though they were eligible to be
made members on the date of the registration of the plaintiffsociety.
It is the case of the defendants that the defendants always
29.
Om Jai Shri Gurukrupa Cooperative Housing Society Ltd. Vs. Vasudha
The plaintiffsociety has relied upon the judgment in the case of
(13) S 260/79
Vasant Dhavale & Ors. 2004(4) Mh.L.J. 916 to show that for the
unauthorized user of the society’s flat contrary to its byelaws, an eviction
award can be passed by the Cooperative Court upon the expulsion of the
member under byelaw 12(1)(g) read with byelaw 12(1)(a) consequent
upon the unauthorized transfer of the society’s flat by the member to an
outsider or unauthorized occupation of the outsider without the written
permission of the society, which could issue the permission as a legal entity
when the transfer was made. This, however, does not apply to a person who
has been in possession of the premises prior to the registration of the society.
The original defendant or the present defendants are, therefore, not
trespassers in the suit flat. Issue No.7 is, therefore, answered in the
negative.
ISSUE NO. 9 :
The defendants, therefore, cannot be taken to be unauthorized
30.
occupants who have come into occupation without the permission of the
society. The judgment in the case of Om Jai Shri gurukrupa Cooperative
Housing Society Ltd. (supra) as also the aforesaid regulation would apply
only to the persons who would transfer their flats or induct third party after
the society is registered. Similarly the society can claim recovery of
possession as the owner of any premises for acts done only after it obtains
registration and conveyance in its favour. The society must necessarily
accept all the persons who are in possession of the premises of the society
prior to its registration as its members. Accepting a person who was in
possession earlier but who had inducted another person on whatever basis is
a malafide act and cannot be accepted by the Court.
31.
It is seen from the dispute between the parties that the plaintiff
(14) S 260/79
society has illegally not accepted the original defendants as its members but
sought to treat them as trespassers upon a false case in para 6 of the plaint
itself that the Sitabai inducted the original defendants into the suit premises
in November, 1969. That oral statement has not been substantiated or
corroborated in the evidence of the plaintiff. That statement has to be
rejected in view of the documentary evidence produced by the defendants by
way of gas service voucher and the gas billing Exhibits D32 and D33.
32.
be in unauthorized or illegal occupation of the suit premises since the
original defendants are not shown to have been inducted in the suit
premises without the permission of the society or the Registrar of the Co
operative Society since there was no society at the time of their induction.
The society itself became the owner of the suit premises only on 17.06.1972
well after the defendants were in occupation of the suit premises even upon
the case of the plaintiff itself. Consequently Issue No. 9 is answered in the
negative.
Upon the aforesaid evidence the defendants cannot be taken to
ISSUE NO. 8 :
The plaintiffs have passed the resolution on 23rd April, 1972 to
33.
expel Sitabai from the membership of the plaintiffsociety. Her expulsion is
under byelaw 12(1)(g). Byelaw 12 and the relevant sub byelaw (1) (g)
run thus :
12.(1) A member may be expelled from the Society by the vote of not less
than threefourths of the members present and voting at a General
Meeting of the Society on a motion that in the opinion of the Meeting
such member has.
(g) without the previous written permission of the Managing Committee,
let or sublet or given on caretaker or leave licence basis or used for
accommodating paying guests or disposed of in any other manner any
(15) S 260/79
portion of the dwelling accommodation/shops/godowns/garages.
34.
and its members. That would be the members as would be available,
present and in possession of the flats in the building of the plaintiffsociety
on the date of its registration and thereafter.
The byelaws constitute a contract between the plaintiffsociety
35.
is sought to be applied because she was a person who had already
transferred her right, title and interest to another and was not in possession
of the suit flat. The plaintiff relies upon Byelaw 71D as also Regulation 4 of
FormA of the Byelaws to show that without the previous permission of the
society as also the Registrar the flat of any member could not be assigned
underlet or vacated.
Byelaw 12 (1) (g) does not even apply to Sitabai on the date it
36.
Sitabai has not applied for registration. Sitabai has not signed the byelaws
of the society adopting them. Sitabai has not claimed any rights against the
plaintiffsociety. Sitabai has inducted the original defendants since May,
1969, prior to the registration of the plaintiffsociety, contrary to the false
case made out by the plaintiff without any particulars about Sitabai having
inducted the original defendants in November, 1969. Sitabai has not been
sued.
As seen above Sitabai never claimed to be a member at all.
37.
an eyewash to deny the original defendant and the present defendants’
rights of membership as transferee of Sitabai prior to the plaintiffsociety
being registered. The expulsion of Sitabai whilst she did not even continue
to be a member is of no consequence whatsoever. It does not even arise
Consequently it is seen that the alleged expulsion of Sitabai is
(16) S 260/79
between the parties to the Suit. Hence Issue No.8 is not required to be
answered.
ISSUE NOS. 10 & 11 :
The plaintiffsociety is not entitled to recover possession of the
38.
suit flat No. 9 in its building from the original defendant or the present
defendants. It is only if the plaintiffsociety had accepted the original
defendants as members of the plaintiff, it could have sued to recover
possession on any ground under the byelaws from the original defendants.
Since though the original defendants are shown to be in possession of the
suit flat since prior to the registration of the plaintiffsociety but were never
made members, the original defendants are not seen to have been allotted
the suit flat by the plaintiffsociety. Consequently upon the claim of the
plaintiffsociety that it is a tenants copartnership society under Rule 10(1)
(5)(b) of the MCSR, the relationship of the plaintiffsociety as owner and
defendant Nos.1 & 2 as the tenants has not been shown and is not
established.
39.
occupation charges in respect of the suit flat initially from Sitabai and later
from the defendants. Sitabai having left the suit premises prior to the
registration, the plaintiffsociety has rightly not sued Sitabai. The plaintiff
society would not be able to recover any dues from Sitabai.
The plaintiff would be only entitled to recovery of non
40.
continued to use and occupy of the suit premises. They are bound and liable
to pay the society’s charges and outgoings as also all the incidental expenses
upon their occupation being nonoccupancy charges, municipal taxes,
The original defendant as also the present defendants have
(17) S 260/79
property taxes, society’s electricity charges, sinking funds, water charges,
salaries of the society’s staff, building repair fund, parking charges (if the
defendants are car owners) etc.
41.
Contract Act, the aforesaid reasonable charges for the entire period of
occupation by the original defendants and later the present defendants
would have to be paid to the society as a quasi contract between the society
and the defendants; the defendants cannot claim to live in the plaintiff
society gratuitously. Section 70 of the Indian Contract Act runs thus :
70. Obligation of person enjoying benefit of nongratuitous
act. Where a person lawfully does anything for another person, or
delivers anything to him, not intending to do so gratuitously, and such
other person enjoys the benefit thereof, the latter is bound to make
compensation to the former in respect of, or to restore, the thing so
done or delivered.
42.
the aforesaid charges from the defendants but only sought to recover
possession (which is seen to be misconceived), the court must modify the
relief to grant the plaintiff the aforesaid charges whilst rejecting the prayer
for recovery of possession.
It may be mentioned that even under Section 70 of the Indian
Hence though the plaintiffsociety has not claimed recovery of
43.
the Court the amount payable by the defendants in respect of the aforesaid
charges. Mr. Makhija on behalf of the society produced before the Court the
society’s letter dated 10.03.2012 showing the arrears in respect of the suit
flat No. 9 in the plaintiffsociety building as on 31.03.2012. The letter is
taken on record. The plaintiffsociety has rightly claimed the aforesaid
charges. The Court cannot go into the arithmetic of the aforesaid charges.
To that end the Court called upon the plaintiffsociety to show
(18) S 260/79
The aforesaid charges aggregate to Rs.4,75,566/.
44.
use and possession of the suit premises since May, 1969 the aforesaid
amount is rather reasonable.
Keeping in mind that the defendants have been in occupation,
45.
transfer fees which would have to be paid only if the defendants are made
members in the plaintiffsociety upon transfer from another member. Since
no transfer of the suit flat from another member is shown (which could have
been shown only after the transferor become a member), no transfer fee can
be levied by the society from the defendants. They would be the first lawful
members of the society entitled to the allotment of the suit flat No.9 in
society building.
The amount claimed by the plaintiffsociety includes the
46.
litigation period. This interest aggregates to Rs.6,75,764/. Since the
plaintiffsociety has consistently refused to make the original defendants or
the present defendants members of the society and it is seen that they have
made out a completely false case of the defendants having been come into
use, occupation and possession of the suit premises since November, 1969,
the plaintiff would not entitled to any interest upon the aforesaid amount.
The society has claimed interest @ Rs.9% per annum during the
47.
plaintiff for the various amounts payable by the defendants as parties in
occupation and possession of the suit flat No. 9 in the plaintiff’s building as
per the plaintiff’s letter dated 10.03.2012 which is taken on record of this
suit. Issue Nos.10 & 11 are answered in the following order :
However the relief of recovery of Rs.4,75,566/ is granted to the
(19) S 260/79
:: O R D E R ::
1.
are rejected. The plaintiffsociety shall not be entitled to recover possession
of the suit flat No.9 in the plaintiff’s building being Prakash Building or to
any injunction against the defendants. The defendants shall pay the
plaintiffsociety Rs.4,75,566/ towards municipal taxes, property taxes,
plaintiffsociety’s electricity charges, sinking fund, water charges, salary,
maintenance charges, building repair fund, nonoccupancy charges and
parking charges (if the defendants park their car in the society premises).
The plaintiff shall not be entitled to any transfer fees or to any interest on
the aforesaid amount until the date of this Judgment. However the
defendants shall pay interest @ Rs.16% per annum on the aforesaid amount
from today until payment/realization.
The suit as prayed is dismissed. Prayer clauses (a), (b) & (c)
2.
Suit is disposed of accordingly.
(ROSHAN DALVI, J.)
well as the signature thereon.
IN THE HIGH COURT OF High Court Of BOMBAY
Santacruz Prakash Coop. Hsg. Society Ltd. Vs. Smt. Rehmani Begum & Ors.
CORAM: MRS. ROSHAN DALVI, J.
Dated : 9 APRIL, 2012.
Citation : 2012 (5) MH.L.J. 129
JUDGMENT
1.Maharashtra Cooperative Societies Act, 1960 (MCSA) on 27.09.1969 as a
tenants partnership society under Rule 10(1)(5)(b) of the Maharashtra Co
operative Societies Rules, 1961 (MCSR).
The plaintiff is a cooperative society registered under the
2.
Construction Company constructed the plaintiff’s society building having 11
flats and 2 garages in 1966. The builders sold the flats on ownership basis
to the flat purchasers who occupied them after the completion certificate
was issued by the Mumbai Municipal Corporation (MMC) on 19.11.1966.
The flat purchasers formed a cooperative society under Section 10 of the
Maharashtra Ownership Flats (Regulations of the Promotion of
Construction, Sale, Management and Transfer) Act, 1963 (MOFA). It is the
It is the plaintiff’s case that one M/s. Jhangiani Gurbuxani
(2) S 260/79
plaintiff’s case that on the date of registration of the society 12 persons
holding 11 flats and 1 garage became members of the plaintiff’s society. It is
plaintiff’s case that all the purchasers entered into separate agreements with
the builders which the plaintiff relied upon.
3.
Building one Sitabai Shewaram was shown as the purchaser from the
aforesaid builders. She purchased 2 flats of 2 rooms and one kitchen with
an area of 500 sq. ft. It is the plaintiff’s case that Sitabai occupied the flats
until November, 1969 having taken possession of it from the builders. She
was the first person to occupy the suit flat.
In respect of the suit flat being Flat No. 9 on 2nd floor of Prakash
4.
constructed on the land taken from the owners of the land by the builders
on free hold basis. A conveyance was executed on 17th June, 1972 by the
builders’ firm as owners in favour of the society. It conveyed to the society
the land with the building consisting of 11 flats and 2 garages and open
space described in the schedule thereof. There are 2 schedules to the
conveyance. The first schedule describes the building structure on the plot
of land conveyed to the society. The second schedule shows the names of
the members. Sitabai is shown at serial No.9 having paid Rs.30,000/ as
contribution towards flat and garages. That is however the flat purchased
by her from the builders on ownership basis. Hence that amount is
consideration paid by her to the builders pursuant to which she came into
possession and occupation of the suit flat.
It is also the case of the plaintiff’s society that the building was
5.
by Sitabai she was alloted the user of the suit premises as member of the
plaintiff’s society.
It is the case of the plaintiff that consequent upon the purchase
(3) S 260/79
6.
with possession of the suit premises in favour of the defendants in
November, 1969 without the permission of the society and the defendants
have been inducted in the suit premises illegally and unauthorizedly since
then without the permission of the plaintiff’s society. It is the plaintiff’s case
that the Sitabai was not entitled to part with possession of the premises in
favour of the defendants under byelaw 71D and Regulation 4 of FormA of
the model byelaws adopted by the plaintiff as the byelaws of the society
without the permission of the plaintiff as also the Registrar of the society.
The plaintiff called upon Sitabai to remedy to breach. She failed to comply.
The plaintiff claimed that Sitabai was bound to pay charges to them at the
rate of Rs.125/ per month by way of municipal taxes and outgoings which
are paid until 31st January, 1971. Sitabai failed to pay thereafter. Hence the
plaintiff terminated her copartnership tenancy by the notice of termination
dated 28th January, 1972 and expelled her from the membership of the
society under byelaw 12(1)(g).
It is the further case of the plaintiff that Sitabai illegally parted
7.
Sitabai and the defendants under the dispute being an Arbitration case filed
by the plaintiff on 10th January, 1973 in the Cooperative Court under
Sections 9196 of the MCSA. The defendants challenged the jurisdiction of
the Cooperative Court since they were not members of the society and the
dispute was not between the society and its members. An award came to be
passed but was set aside by the Appellate Curt on the ground of lack of the
inherent jurisdiction of the Cooperative Court. Writ Petition challenging
that Judgment has been dismissed and hence this Suit is filed for recovery of
possession from the defendants as trespassers.
The plaintiff sued for recovery of possession of the suit flat from
(4) S 260/79
8.
the suit premises to them for consideration of Rs.30,000/ paid in cash
without any written agreement. The defendants were put in possession of
the suit flat in or before May, 1969 and not in November, 1969 as alleged by
the plaintiff.
The essential case of the defendants is that Sitabai transferred
9.
came into the suit premises prior to the registration of the plaintiffs’ society
but yet they were wrongly not shown as members and Sitabai who had
already sold and transferred the suit premises for consideration to the
defendants was shown as the member. The defendants contend that since
the original defendants came into the suit premises prior to the registration
of the society but were not accepted as members, the society could not apply
the provisions of byelaw 71D or Regulation 4 of FormA against them. Bye
laws could have been adopted by the society only after the registration of
the society and is, therefore, not applicable to the case of the defendants.
It is the case of the defendants that the original defendants
10.
framed and answered as follows:
ISSUES
Whether Smt. Sitabai Shewaram is a necessary No.
party to the Suit as alleged in para 1 of the written
statement ?
1.
Based upon the aforesaid pleadings, the following issues were
2.
Whether the plaintiffs are tenant Copartnership Yes.
type of Housing Society as alleged in para 1 of the
plaint.
3.
Whether Smt. Sitabai Shewaram parted with No.
possession of suit premises in November, 1969 as
alleged in para 6 of the plaint.
4.
Whether the plaintiffs prove that the defendants No.
(5) S 260/79
were bound to obtain permission under 71D of the
Bye Laws of the plaintiff and also by virtue of
Regulation 4 of Form A of the Bye Laws of the
society.
5.
Whether the defendants prove that the aforesaid Yes.
Bye Laws are not applicable to the defendants as
the defendants have purchased the property before
the said Bye Laws have come into force.
6.
Whether the plaintiffs had directly or indirectly Not shown, but
recognised the defendant No.1 as a person who need not be
had agreed to purchase the suit flat from Smt. answered.
Sitabai and as a person who had succeeded to the
rights of the said Smt. Sitabai as alleged in para 5
of the written statement.
7.
Whether the defendants are trespassers as alleged No.
in para 7 of the plaint.
8.
Whether the plaintiffs expelled Smt. Sitabai Not required to
Shewaram from membership of plaintiffs as alleged be answered.
in para 11 of the plaint.
9.
Whether the plaintiffs are entitled to obtain No.
possession of suit premises from the defendants as
alleged in para 17 of the plaint.
10. What order ?
11. What decree ?
As per final order.
As per final order.
ISSUE NO.1 :
One Sitabai Shewaram has admittedly purchased the suit flat
11.
from the builders and developers under an agreement of flat purchase
executed by her. This purchase was prior to the plaintiffsociety being
registered and prior to the society adopting the byelaws. Sitabai is stated to
have put the original defendants in possession of the suit premises. This suit
(6) S 260/79
is for recovery of possession from the parties inducted by Sitabai. The
original defendant and the present defendants would alone contest the suit.
Sitabai has never sought to contest the rights of the plaintiffsociety. Hence
Sitabai is not a necessary party to the suit. Hence Issue No.1 is answered in
the negative.
ISSUE NO. 2 :
The plaintiff claims that they are tenants copartnership type of
12.
housing society. The byelaws of the plaintiffsociety adopted by the
members of the society show that it is flat owners cooperative housing
society limited. Byelaws also make a reference to Tenants in Chapter XX
under Rules 71 to 74. The society has to allot the tenements after its
registration and after it acquired title of the land and the building of the
society to the persons who subscribed to or offered to subscribe to the shares
of the society of tenants under Byelaw 71. There is no real dispute and
contest on this aspect, the contest being on when the society came into
existence and when the byelaws would constitute a contract between the
society and its members. Hence the plaintiffsociety may be taken to be a
tenants copartnership society. Consequently Issue No.2 is answered in the
affirmative.
ISSUE NO. 3 :
The plaintiffsociety has claimed and deposed that Sitabai
13.
Shewaram parted with possession of the suit flat No.9 in the plaintiff society
holding in November, 1969. This is a bare statement, left wholly
unsubscribed.
14.
As against this, the essential case of the defendants is that
(7) S 260/79
Sitabai transferred the suit premises to them for consideration of Rs.
30,000/ paid in cash without any written agreement. The defendants were
put in possession of the suit flat by Sitabai in or before May, 1969 and not in
November, 1969 as alleged by the plaintiff. The defendants have relied
upon a number of documents to prove their possession. The plaintiff has not
disputed the defendants’ possession. The plaint itself shows that the
defendants are in possession albeit unauthorizedly and illegally. The
defendants must, therefore, show that they are in authorized possession, use
and occupation of the suit flat.
15.
receipts for gas connection marked as Exhibits D32 and D33 in evidence.
Receipt No. 431443 issued by Burshane Ideal Gas storage and distribution
company of India Ltd. is dated 22.05.1969. The document is issued by a
public corporation. It may be taken to be a public document. The slip
produced by the defendants is a carbon copy made out at the time the
document was executed. It shows the receipt of Burshane Gas Cylinder for
which a deposit of Rs.70/ is made. The carbon copy of the slip is the one
handed over to the defendants and produced from their custody. The
original document would be with the relevant department of the public
corporation. The document is more than 30 years old at the time of its
production. It carries a presumption of correctness of the handwriting as
well as the signature thereon. The date of the document is most material. It
is issued in the name of the original defendant No.1. If defendant No.1 was
not put in possession prior to that date such a document could not have
been issued.
16. memo bearing No. 2482 of Cambata Industries Pvt. Ltd. for Rs. 226.41 made
The other document relied upon by the defendant is a bill/cash
(8) S 260/79
in the name of original defendant No.1. It shows her consumer number. It
shows Ideal Gas Service as the subagent. It is the private document. It is
required to be proved by direct oral evidence since it does not carry any
presumption of its correctness as a public document. The defendant has
sought to prove it through the evidence of an independent witness who is a
partner of one M/s. Universal Gas Co. who are the agents of Burshane Gas
for supply of gas cylinders. The witness has deposed that the earlier agents
were Cambata Industries Pvt. Ltd. and their subagents were M/s. Ideal Gas
Service. Ideal Gas Service closed down and their customers were
transferred by M/s. Bharat Petroleum Corporation to the firm of deponent.
The witness has identified the consumer number belonging to original
defendant No.1. She has identified the flat as the suit premises and she has
testified of the correctness of the service voucher No. 431443 of Burshane
Gas issued on 22.05.1969. There is no crossexamination to challenge this
evidence. Hence the plaintiff has failed to prove the specific positive case
made out by it and such case is disproved by the documentary evidence led
by the defendants. Hence Issue No.3 is answered in the negative.
ISSUE NOS. 4 & 5 :
The plaintiffsociety is the tenancy partnership society and
17.
hence under Rule 10(1)(5)(b) it holds the land and building on free hold
basis as conveyed to it under the Conveyance dated 17.06.1982. The society
can allot flats to the members only after it is registered as such tenants
partnership housing society and after it acquires title itself. The registration
certificate of the society is dated 27.09.1969.
18.
was registered on 27.09.1969. It adopted byelaws thereafter. The suit
property was conveyed to the society on 17th June, 1972. The society
The admitted facts between the parties show that the society
(9) S 260/79
became the owner of the suit premises only on and from date of conveyance
and could exercise rights of ownership only since then.
19.
purchased flats and who were in possession at the relevant time. The
members initially purchased flats from the aforesaid builders as set out in
para 2 of the plaint itself. If any member has sold any flat prior to society
being formed and registered and prior to the conveyance in favour of society,
the society cannot allot any flat in the society to such person as its member.
The society must then allot the flat to the transferee of such member who
would then be the purchaser of such flat and in possession thereof. It is only
from and after the registration of the society and the adoption of the bye
laws that the byelaws would constitute a contract between its society and
its members and the society as well as members would be governed by the
byelaws. Hence it is only thereafter that that the aforesaid byelaws could
be made applicable to the then members of the society.
The society has to allot flats to those persons who had
20.
into possession of the suit premises in or before May, 1969 and consequently
were in possession on the date the society was registered.
The aforesaid evidence shows that the original defendants came
21.
Whoever be those 10 members, the registration of the society would enure
for the benefit of all the persons in possession of the society premises at the
relevant time. Once the defendants’ possession and occupation of the suit
premises is seen on the date of the registration, the plaintiffsociety must
accept them as members and the defendants cannot be taken to be
trespassers. Such members need not have taken any permission of the
plaintiffsociety for transfer of the premises made to them as the society was
Minimum 10 members are required to register the society.
(10) S 260/79
not in existence as a legal entity until it was registered. Hence the original
defendants should have been made members of the society but were not
made members. Their transferor who had already transferred their right,
title and interest before the society itself was formed and registered was
sought to be shown as the member. The plaintiff society, however, had
refused to accept the original defendants as members on the premise that
the original defendants had not obtained the society’s permission for such
transfer.
22.
the original defendant or the present defendants. They would have applied
to the original defendants and the present defendants only if they were
accepted as members of the plaintiffsociety. It is in this light that the Bye
law 71D and Regulation 4 of FormA are required to be seen. They run
thus :
Byelaw 71D.
A member to whom a tenement is allotted shall
occupy it himself and shall not assign, underlet, vacate or part with
the possession of the tenement or any part thereof without the
previous consent in writing of the Managing Committee.
Regulation 4 (Form A). No tenant shall assign, underlet, vacate or
part with the possession of the tenement or any part thereof without
the previous consent in writing of the Society.
It may be mentioned that the society can allot the tenements only after its
registration. Hence it must allot the tenement to such person who has the
legal right by purchase from the developers or the previous owners on the
date of its registration. Therefore, such person, who becomes a member
under its byelaws, is bound by the byelaws and thereafter has to occupy
the tenement itself and cannot assign or transfer it without the permission of
the society.
Hence the byelaws of the society cannot be made applicable to
(11) S 260/79
23.
shows that there is a provision against assignment or underletting by a
member or tenant without the previous written consent of the society as also
the registering authority. At the time the original defendant was put in
possession of the suit flat there was no society that was registered. Hence
no permission of the society or even the registering authority could be taken
by the original defendants.
A reading of byelaw 71D as also Regulation 4 of Form A itself
24.
pursuant to the conveyance dated 17.06.1972 and can take proceeding for
recovery of the premises in the possession of its members or those
trespassers from such persons who have not taken premises of the society
when it was legally competent to grant permission as a legal entity and not
for trespassers effected prior thereto, which it must accept upon the
breaches committed by the members of any of the byelaws or upon non
payment of the society charges and taxes as is claimed by the plaintiff
society, it cannot take a similar action against the person in possession prior
to its registration who should have rightfully been made a member of the
society but who was not so made.
Though, therefore, the society has become owner of the suit flat
25.
answered in the affirmative.
Hence Issue No.4 is answered in the negative and Issue No.5 is
ISSUE NO. 6 :
Though the defendants have claimed that in fact the plaintiff
26.
society has recognized them as members, there is no material evidence on
this score. However that does not matter in view of the aforesaid legal
position. Hence Issue No.6 is not required to be answered in view of the
(12) S 260/79
answers to issue Nos.4 & 5.
ISSUE NO. 7 :
Under Regulation 71, the person in occupation of any premises
27.
in the plaintiffsociety could not be a tenant of the society unless he
subscribed to such number of shares as the Managing Committee of the
society prescribed. Regulation 71 runs thus:
71. No member shall be a tenant of the Society unless he subscribes
to such number of shares as the Managing Committee prescribes.
28.
offered to be members of the society but the plaintiffsociety never accepted
the defendants or original defendants as such. Since the society has refused
to recognize the defendants as its members, the defendants could not have
subscribed to the shares of the society. It may be mentioned that in the
original byelaws produced by the plaintiff as Exhibit P2, there are 11
members who are shown to have subscribed their names with their
signatures to the byelaws. Sitabai has not subscribed as a member of the
plaintiffsociety. The defendants claim that though they offered to be the
members on such terms as the plaintiffsociety may subscribe, the society
has not accepted them as members. Consequently the original defendant
and the present defendants have continued in occupation of the suit flat No.
9 in the plaintiffsociety building without being allotted the suit flat and
without being made members of the society though they were eligible to be
made members on the date of the registration of the plaintiffsociety.
It is the case of the defendants that the defendants always
29.
Om Jai Shri Gurukrupa Cooperative Housing Society Ltd. Vs. Vasudha
The plaintiffsociety has relied upon the judgment in the case of
(13) S 260/79
Vasant Dhavale & Ors. 2004(4) Mh.L.J. 916 to show that for the
unauthorized user of the society’s flat contrary to its byelaws, an eviction
award can be passed by the Cooperative Court upon the expulsion of the
member under byelaw 12(1)(g) read with byelaw 12(1)(a) consequent
upon the unauthorized transfer of the society’s flat by the member to an
outsider or unauthorized occupation of the outsider without the written
permission of the society, which could issue the permission as a legal entity
when the transfer was made. This, however, does not apply to a person who
has been in possession of the premises prior to the registration of the society.
The original defendant or the present defendants are, therefore, not
trespassers in the suit flat. Issue No.7 is, therefore, answered in the
negative.
ISSUE NO. 9 :
The defendants, therefore, cannot be taken to be unauthorized
30.
occupants who have come into occupation without the permission of the
society. The judgment in the case of Om Jai Shri gurukrupa Cooperative
Housing Society Ltd. (supra) as also the aforesaid regulation would apply
only to the persons who would transfer their flats or induct third party after
the society is registered. Similarly the society can claim recovery of
possession as the owner of any premises for acts done only after it obtains
registration and conveyance in its favour. The society must necessarily
accept all the persons who are in possession of the premises of the society
prior to its registration as its members. Accepting a person who was in
possession earlier but who had inducted another person on whatever basis is
a malafide act and cannot be accepted by the Court.
31.
It is seen from the dispute between the parties that the plaintiff
(14) S 260/79
society has illegally not accepted the original defendants as its members but
sought to treat them as trespassers upon a false case in para 6 of the plaint
itself that the Sitabai inducted the original defendants into the suit premises
in November, 1969. That oral statement has not been substantiated or
corroborated in the evidence of the plaintiff. That statement has to be
rejected in view of the documentary evidence produced by the defendants by
way of gas service voucher and the gas billing Exhibits D32 and D33.
32.
be in unauthorized or illegal occupation of the suit premises since the
original defendants are not shown to have been inducted in the suit
premises without the permission of the society or the Registrar of the Co
operative Society since there was no society at the time of their induction.
The society itself became the owner of the suit premises only on 17.06.1972
well after the defendants were in occupation of the suit premises even upon
the case of the plaintiff itself. Consequently Issue No. 9 is answered in the
negative.
Upon the aforesaid evidence the defendants cannot be taken to
ISSUE NO. 8 :
The plaintiffs have passed the resolution on 23rd April, 1972 to
33.
expel Sitabai from the membership of the plaintiffsociety. Her expulsion is
under byelaw 12(1)(g). Byelaw 12 and the relevant sub byelaw (1) (g)
run thus :
12.(1) A member may be expelled from the Society by the vote of not less
than threefourths of the members present and voting at a General
Meeting of the Society on a motion that in the opinion of the Meeting
such member has.
(g) without the previous written permission of the Managing Committee,
let or sublet or given on caretaker or leave licence basis or used for
accommodating paying guests or disposed of in any other manner any
(15) S 260/79
portion of the dwelling accommodation/shops/godowns/garages.
34.
and its members. That would be the members as would be available,
present and in possession of the flats in the building of the plaintiffsociety
on the date of its registration and thereafter.
The byelaws constitute a contract between the plaintiffsociety
35.
is sought to be applied because she was a person who had already
transferred her right, title and interest to another and was not in possession
of the suit flat. The plaintiff relies upon Byelaw 71D as also Regulation 4 of
FormA of the Byelaws to show that without the previous permission of the
society as also the Registrar the flat of any member could not be assigned
underlet or vacated.
Byelaw 12 (1) (g) does not even apply to Sitabai on the date it
36.
Sitabai has not applied for registration. Sitabai has not signed the byelaws
of the society adopting them. Sitabai has not claimed any rights against the
plaintiffsociety. Sitabai has inducted the original defendants since May,
1969, prior to the registration of the plaintiffsociety, contrary to the false
case made out by the plaintiff without any particulars about Sitabai having
inducted the original defendants in November, 1969. Sitabai has not been
sued.
As seen above Sitabai never claimed to be a member at all.
37.
an eyewash to deny the original defendant and the present defendants’
rights of membership as transferee of Sitabai prior to the plaintiffsociety
being registered. The expulsion of Sitabai whilst she did not even continue
to be a member is of no consequence whatsoever. It does not even arise
Consequently it is seen that the alleged expulsion of Sitabai is
(16) S 260/79
between the parties to the Suit. Hence Issue No.8 is not required to be
answered.
ISSUE NOS. 10 & 11 :
The plaintiffsociety is not entitled to recover possession of the
38.
suit flat No. 9 in its building from the original defendant or the present
defendants. It is only if the plaintiffsociety had accepted the original
defendants as members of the plaintiff, it could have sued to recover
possession on any ground under the byelaws from the original defendants.
Since though the original defendants are shown to be in possession of the
suit flat since prior to the registration of the plaintiffsociety but were never
made members, the original defendants are not seen to have been allotted
the suit flat by the plaintiffsociety. Consequently upon the claim of the
plaintiffsociety that it is a tenants copartnership society under Rule 10(1)
(5)(b) of the MCSR, the relationship of the plaintiffsociety as owner and
defendant Nos.1 & 2 as the tenants has not been shown and is not
established.
39.
occupation charges in respect of the suit flat initially from Sitabai and later
from the defendants. Sitabai having left the suit premises prior to the
registration, the plaintiffsociety has rightly not sued Sitabai. The plaintiff
society would not be able to recover any dues from Sitabai.
The plaintiff would be only entitled to recovery of non
40.
continued to use and occupy of the suit premises. They are bound and liable
to pay the society’s charges and outgoings as also all the incidental expenses
upon their occupation being nonoccupancy charges, municipal taxes,
The original defendant as also the present defendants have
(17) S 260/79
property taxes, society’s electricity charges, sinking funds, water charges,
salaries of the society’s staff, building repair fund, parking charges (if the
defendants are car owners) etc.
41.
Contract Act, the aforesaid reasonable charges for the entire period of
occupation by the original defendants and later the present defendants
would have to be paid to the society as a quasi contract between the society
and the defendants; the defendants cannot claim to live in the plaintiff
society gratuitously. Section 70 of the Indian Contract Act runs thus :
70. Obligation of person enjoying benefit of nongratuitous
act. Where a person lawfully does anything for another person, or
delivers anything to him, not intending to do so gratuitously, and such
other person enjoys the benefit thereof, the latter is bound to make
compensation to the former in respect of, or to restore, the thing so
done or delivered.
42.
the aforesaid charges from the defendants but only sought to recover
possession (which is seen to be misconceived), the court must modify the
relief to grant the plaintiff the aforesaid charges whilst rejecting the prayer
for recovery of possession.
It may be mentioned that even under Section 70 of the Indian
Hence though the plaintiffsociety has not claimed recovery of
43.
the Court the amount payable by the defendants in respect of the aforesaid
charges. Mr. Makhija on behalf of the society produced before the Court the
society’s letter dated 10.03.2012 showing the arrears in respect of the suit
flat No. 9 in the plaintiffsociety building as on 31.03.2012. The letter is
taken on record. The plaintiffsociety has rightly claimed the aforesaid
charges. The Court cannot go into the arithmetic of the aforesaid charges.
To that end the Court called upon the plaintiffsociety to show
(18) S 260/79
The aforesaid charges aggregate to Rs.4,75,566/.
44.
use and possession of the suit premises since May, 1969 the aforesaid
amount is rather reasonable.
Keeping in mind that the defendants have been in occupation,
45.
transfer fees which would have to be paid only if the defendants are made
members in the plaintiffsociety upon transfer from another member. Since
no transfer of the suit flat from another member is shown (which could have
been shown only after the transferor become a member), no transfer fee can
be levied by the society from the defendants. They would be the first lawful
members of the society entitled to the allotment of the suit flat No.9 in
society building.
The amount claimed by the plaintiffsociety includes the
46.
litigation period. This interest aggregates to Rs.6,75,764/. Since the
plaintiffsociety has consistently refused to make the original defendants or
the present defendants members of the society and it is seen that they have
made out a completely false case of the defendants having been come into
use, occupation and possession of the suit premises since November, 1969,
the plaintiff would not entitled to any interest upon the aforesaid amount.
The society has claimed interest @ Rs.9% per annum during the
47.
plaintiff for the various amounts payable by the defendants as parties in
occupation and possession of the suit flat No. 9 in the plaintiff’s building as
per the plaintiff’s letter dated 10.03.2012 which is taken on record of this
suit. Issue Nos.10 & 11 are answered in the following order :
However the relief of recovery of Rs.4,75,566/ is granted to the
(19) S 260/79
:: O R D E R ::
1.
are rejected. The plaintiffsociety shall not be entitled to recover possession
of the suit flat No.9 in the plaintiff’s building being Prakash Building or to
any injunction against the defendants. The defendants shall pay the
plaintiffsociety Rs.4,75,566/ towards municipal taxes, property taxes,
plaintiffsociety’s electricity charges, sinking fund, water charges, salary,
maintenance charges, building repair fund, nonoccupancy charges and
parking charges (if the defendants park their car in the society premises).
The plaintiff shall not be entitled to any transfer fees or to any interest on
the aforesaid amount until the date of this Judgment. However the
defendants shall pay interest @ Rs.16% per annum on the aforesaid amount
from today until payment/realization.
The suit as prayed is dismissed. Prayer clauses (a), (b) & (c)
2.
Suit is disposed of accordingly.
(ROSHAN DALVI, J.)
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