Bombay High Court
Sweet Home Co-Operative Housing vs Himanshu Khurana on 28 October, 2010
Bench: R.Y. Ganoo
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USJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 2354 OF 2003
Sweet Home Co-operative Housing
Society Ltd., a society registered
under the provisions of the Maharashtra
Co-operative Societies Act, 1960 having
its office at Plot No.24, RDP IV, SVP Nagar,
Versova MHADA layout, Andheri (W),
Mumbai - 400 053 .. Plaintiffs
v/s.
Himanshu Khurana
TPS III, 32nd Road, Near National College,
Bandra (W), Mumbai - 400 050. .. Defendant
.........
Mr. A.A. Joshi, Rohit Pawaskar, Sufiyan Shaikh, Ms. Prachiti Naphade i/by
RMG Law Associates for the plaintiffs
Mr. C.P. .Deogirikar for the defendant
.........
WITH
SUIT NO. 2355 OF 2003
Sweet Home Co-operative Housing
Society Ltd., a society registered
under the provisions of the Maharashtra
Co-operative Societies Act, 1960 having
its office at Plot No.24, RDP IV, SVP Nagar,
Versova MHADA layout, Andheri (W),
Mumbai - 400 053 .. Plaintiffs
v/s.
Bhimsain Khurana
TPS III, 32nd Road, Near National College,
Bandra (W), Mumbai - 400 050. .. Defendant
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.........
Mr. A.A. Joshi, Rohit Pawaskar, Sufiyan Shaikh, Ms. Prachiti Naphade i/by
RMG Law Associates for the plaintiffs
Mr. C.P. .Deogirikar for the defendant
.........
CORAM : R.Y.GANOO, J.
DATE : 28th OCTOBER, 2010
Oral Judgment :
1. The plaintiffs namely Sweet Home Co-operative Society has filed
these two suits for recovery of possession of flats more particularly
described in the respective plaint from the respective defendant. Each
of the defendant had objected to the jurisdiction of this Court and
accordingly by order dated 3rd February, 2009 issue as regards
jurisdiction was framed in Suit No.2355 of 2003. Perusal of the order
dated 3rd February, 2009 passed in Motion No.443 of 2007 with Motion
No.741 of 2007 in Suit No.2354 of 2003 would go to show that issue as
regards jurisdiction was also intended to be framed in Suit No.2354 of
2003. It is noticed that no formal issue has been framed in Suit No.
2354 of 2003. Hence, by consent of both the sides, issue as regards
jurisdiction in Suit No.2354 of 2003 was engrossed on 26th October,
2010 and arguments on both the sides on the question of jurisdiction in
both the suits i.e. Suit No. 2354 of 2003 and Suit No. 2355 of 2003 were
heard.
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2. Facts in these two suits are similar to each other except flat
number in regard to which respective suit is filed. It would be
convenient to narrate the facts in Suit No. 2354 of 2003 first. The
promoter of the present plaintiffs made an application to MHADA and
plot no.24 more particularly described in para 3 of the plaint
(hereinafter referred to as the said property) was allotted to construct a
building on the said plot and to accommodate members of the Sweet
Home Co-operative Housing Society Ltd. (proposed). Thereafter, the
present plaintiffs were registered as a co-operative society and the co-
operative society took lead in construction of the building at site on the
plot described in paragraph 3 of the plaint. The plaintiffs allotted flat
no.1 (hereinafter referred to as Suit flat) to the defendant in his
capacity as a member of the plaintiffs' Society. The defendant was
required to pay to plaintiffs the cost of the flat and reading of the plaint
would go to show that by holding general body meeting of the plaintiffs,
the cost of the flat was decided from time to time. The defendant had
paid part payments and it was noticed by the plaintiff that the
defendant is in arrears of Rs.7,55,625/- as of July, 2000. In terms of the
resolution passed in the general body meeting, it was decided to cancel
the allotment if the cost of the flat is not paid. The plaintiffs by notice
dated 13th September, 2001 called upon defendant to pay to plaintiff
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Rs.13,56,669/- and interest as set out in the said notice. According to
plaintiffs, the defendant did not comply with the said demand notice
and that is why the allotment of the said flat was cancelled. According
to plaintiffs the formal possession of the flat was not handed over to the
defendant on account of cancellation of the allotment. According to
plaintiffs, the office bearer of the plaintiffs' society noted that the
defendant has taken forcible and illegal possession of the suit flat on
11th October, 2002 and that is how the plaintiffs came to the conclusion
that the defendant is illegally occupying the suit flat w.e.f. 11th October,
2002. Efforts were made by the plaintiffs to move the police machinery
to get possession of the suit flat. However, the said efforts failed.
Hence, plaintiffs instituted the present suit for recovery of possession of
the suit flat being suit under Section 6 of the Specific Reliefs Act.
Relevant averments as regards institution of the suit under Section 6 of
the Specific Reliefs Act are found in paragraph 16 in the plaint. As
mentioned earlier, the defendant raised the objection as regards
jurisdiction and consequently issue as regards jurisdiction came to be
framed in the present suit on 26th October, 2010 which is as follows:
"Whether the defendant proves that this Court has no
jurisdiction to entertain and try the present suit ?"
3. So far as Suit No.2355 of 2003 is concerned, the suit flat is Flat
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No.25 on the 13th / 14th Floor more particularly described in paragraph 1
of the plaint (hereinafter referred to as the suit flat). The defendant
was called upon to pay Rs.18,20,261/- alongwith interest more
particularly set out in the said notice dated 13th September, 2001. The
defendant did not pay the amount and that is how the allotment came
to be cancelled as had happened in Suit No.2354 of 2003. It has been
the case of the plaintiffs that the defendant was not put in possession
of the suit flat on account of cancellation of allotment.
4.
It is the case of the plaintiffs that defendant on 11th October, 2002
took forcible and illegal possession of suit flat and the said fact was
noticed by the Managing Committee member of the plaintiffs, Mr. R.R.
Badlani. The police machinery was moved for the purposes of getting
the possession restored. However, plaintiffs were unsuccessful. The
present suit came to be filed by the plaintiffs to get back the possession
of the suit flat which came to be occupied by the defendant in an illegal
manner. The defendant had objected to the jurisdiction of this Court
and that is how issue as regards jurisdiction of the Court was framed by
order dated 3rd February, 2010 which is as follows:
"Whether the defendant proves that this Court has no
jurisdiction to entertain and try the present Suit ?"
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5. It must be mentioned that the parties were permitted to lead
evidence and accordingly defendant in each suit stepped into witness
box and gave evidence on the issue framed as aforesaid. No other
witness was examined on behalf of the defendant. No witness was
examined on behalf of the plaintiffs. Certain documents have been
relied upon by the respective defendant.
6. Since the point involved in both the suits was common, it was
agreed by and between the learned Counsel that the common
argument would be advanced.
7. Learned Counsel Mr. Deogirikar appearing on behalf of the
defendants took me through the plaint and submitted that plaintiffs
admitted that the defendants were enrolled as member of the plaintiffs
society and the respective flat was allotted to the respective defendant.
He submitted that the plaintiff has not cancelled the membership of the
defendants as on the date of institution of the suit and, therefore, on
the date of institution of the suit, plaintiffs and each of the defendant
were governed by the provisions of the Maharashtra Co-operative
Societies Act, 1960 (hereinafter referred to as the said Act) as the
defendants happen to be the member of the plaintiffs' society. Learned
Counsel Mr. Deogirikar submitted that keeping in view the status of the
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plaintiffs as a Co-operative Society and the defendants as member of
the said society, the dispute raised by the plaintiffs in the present suits
is a dispute between the co-operative society and its member. He also
took me through the text of the plaint and pointed out that the plot on
which present building is standing was allotted to the promoter of the
co-operative society and eventually the said plot came to be allotted for
the benefit of the co-operative society and the co-operative society had
taken up the task of construction of the building for the benefit of the
members and the co-operative society was formed by the respective
members of the society. Learned Counsel Mr. Deogirikar, therefore,
submitted that if the activities carried out by the plaintiffs society are
considered qua suit flats as well as qua the concerned defendants, the
dispute raised by the plaintiffs society in the present suit would be
governed by the term "management or business of the society"
appearing in Section 91 of the said Act. Learned Counsel Mr. Deogirikar
had, therefore, submitted that the dispute raised by the plaintiffs in
terms of these two suits falls fairly and squarely within the parameters
of Section 91 of the said Act and hence the Co-operative Court alone
will have jurisdiction to try and entertain the present suits and no other
Court shall have jurisdiction to try and entertain the present suits.
Learned Counsel Mr. Deogirikar had submitted that on account of the
provisions of Section 163 of the said Act, the jurisdiction of the Civil
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Court is expressly barred and that is how this Court shall have no
jurisdiction to try and entertain the present suits. He had submitted
that the mandate of Section 91 of the said Act should be accepted by
this Court once the Court comes to the conclusion that dispute raised in
the present suits is covered by parameters of Section 91 of the said Act.
Learned Counsel Mr. Deogirikar had taken me through the evidence
furnished by each of the defendant and had ultimately submitted that
this Court has no jurisdiction to try and entertain the present suits.
8.
It was also argued by learned Counsel Mr. Deogirikar that nature
of the suit by itself will not make any difference once the Court comes
to the conclusion that the present suits is between a co-operative
society and a member concerning management of the business of the
Society. Learned Counsel Mr. Deogirikar had reiterated the contention
that this Court has no jurisdiction to try and entertain the present suits.
9. Considering the averments in the plaint, it is clear that each of
the defendant happens to be the member of the plaintiffs' society. If
one peruses the averments in the plaint, it is clear that the membership
of each of the defendant is not cancelled. Learned Counsel Mr. Joshi
had submitted that a perusal of the plaint would go to show that though
initially the suit flat was allotted to each of the defendant respectively,
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the respective flat was not put in possession of the respective
defendant and on account of cancellation of the allotment, said
defendant had no right to take possession of respective flat. Learned
Counsel Mr. Joshi had submitted that in the plaint, appropriate
averments are set out to state as to how each of the defendant took
forcible possession of the suit flat on 11th October, 2002. According to
him, respective plaint clearly indicates that each defendant took
possession of the suit flat illegally and the said act of the defendant was
not approved by the plaintiffs and that is how the plaintiffs proceeded
to move the police machinery and ultimately have come to this Court
for recovery of possession of the suit flat. Learned Counsel Mr. Joshi
had also submitted that perusal of the plaint would clearly go to show
that the suit is filed on limited ground namely each of the defendant
taking forcible possession of the respective flat and the plaintiffs trying
to have the said possession restored in accordance with the provisions
of Section 6(1) of the Specific Reliefs Act. Learned Counsel Mr. Joshi
had, therefore, submitted that this Court will have to consider the
nature of the suit and according to him the Civil Court alone will have
jurisdiction to try and entertain both the suits which are filed on the
basis of Section 6(1) of the Specific Reliefs Act. He had submitted that
since the suit is filed under Section 6 of the Specific Reliefs Act, the
provisions of Section 91 and Section 163 of the said Act would not be
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attracted to the facts of these two cases and the Civil Court alone shall
have jurisdiction. Learned Counsel Mr. Joshi had submitted that
provisions as regards bar of jurisdiction of this Court appearing in
Section 163 of the said Act will not be attracted to the facts stated in
the present plaint as the suits are filed under the provisions of Section
6(1) of the Specific Reliefs Act i.e. suit for restoration of possession of
the respective suit flat.
10. Learned Counsel Mr. Joshi relied upon the judgment of division
bench of this Court in the case of Shiavax C. Cambata Vs.
Sunderdas Ebji reported in 1950 BLR, 381. Learned Counsel Mr.
Joshi took me through the text of the judgment and had pointed out the
view of the division bench as regards the suits filed under Section 6 of
the said Act and the ultimate observations and the decision given by
the learned division bench. Learned Counsel Mr. Joshi had submitted
that at the time when this judgment was delivered, provisions of
Section 9 of Specific Relief Act (then prevailing) permitted a party to
institute a suit for recovery of possession as is presently permitted
under Section 6 of the Specific Reliefs Act. He had submitted that the
judgment delivered by learned division bench would equally be
applicable to the suits, which are now filed under Section 6 of the
Specific Reliefs Act. Learned advocate Mr. Joshi had drawn my attention
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to the facts in the case of Shivax C. Cambata Vs. Sunderdas Ebji and
had pointed out that the appellant was the tenant of the respondent
and the appellant had approached the High Court in its original side by
stating that the respondent who was defendant in original suit
dispossessed the appellant-plaintiff from the suit premises and that the
appellant-plaintiff should be put in possession of the said premises by
utilizing the provisions of Section 9 of the Specific Reliefs Act which was
then prevailing. He pointed out that the trial Court came to the
conclusion that on account of provisions of Section 28 of the Bombay
Rent Act, 1947, the High Court in its original side did not have
jurisdiction to try and entertain the suit filed under the Specific Reliefs
Act for restoration of possession under Section 9 of Specific Relief Act
then prevailing. He pointed out that division bench held that despite
Section 28 of the Bombay Rent Act the Civil Court shall have jurisdiction
and that was done looking to the nature of the suit.
11. Learned Counsel Mr. Joshi had submitted that the principles laid
down by the learned division bench should be equally applicable to the
facts of the present case, despite the provisions of Section 91 and 163
of the said Act. He submitted that the reasons given by the learned
division bench to hold that the Civil Court shall have jurisdiction to try
and entertain a suit under Section 6 of the Specific Reliefs Act despite
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establishment of special Courts for parties who are governed by specific
relationship should be accepted. He, therefore, submitted that the
arguments advanced by learned Counsel for the defendant be rejected
and the issue be answered in favour of the plaintiffs.
12. Learned Counsel Mr. Joshi had relied upon the judgment in the
case of Dattatraya Krishna Jangam Vs. Jairam Ganesh Gore, AIR
1965, Bombay 177 (v 52 C 36). Learned Counsel Mr. Joshi had drawn
my attention to paragraph 11 of the said judgment and had submitted
that the learned full bench of this Court agreed with the view taken by
the learned division bench in the case of Shiavax C. Cambata Vs.
Sunderdas Ebji as regards jurisdiction of the Civil Court to try and
entertain the suit under the Specific Reliefs Act. He had, therefore,
submitted that this Court should apply the principles laid down in the
case of Shiavax C. Cambata Vs. Sunderdas Ebji to the facts of this case
and decide the issue.
13. I have considered the rival submissions. A plain reading of Section
91 and Section 163 of the said Act gives impression that all kinds of
suits between the co-operative society and a member would lie to the
Co-operative Court if the nature of the dispute falls in any one of the
categories mentioned in Section 91 of the said Act. Provisions of
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Section 163, no doubt, create bar of the jurisdiction of Civil Courts.
However, I am inclined to observe that the said bar would not be
applicable to suits filed between a co-operative society and a member
being a suit under Section 6(1) of the Specific Reliefs Act. I am inclined
to observe that the principles laid down by the learned division bench in
the case of Shiavax C. Cambata Vs. Sunderdas Ebji will have to be
applied to a dispute between the co-operative society and each of the
defendant who is a member of the plaintiffs. If the suit is for recovery
of possession where the plaintiffs allege that the possession of the
property in question was taken in high handed manner and the
plaintiffs were dispossessed and if the suit is filed for recovery of
possession irrespective of the question of title as well as irrespective of
the manner in which the parties to the suits related to each other
namely landlord and tenant, co-operative society and its members, the
Civil Court will have jurisdiction to decide such a suit for restoration of
possession filed under Section 6 of said Act. It is true that in the
present suit plaintiffs and each of the defendant is related to each other
as a co-operative society and a member, however, that has nothing to
do with the subject matter of the suit. The subject matter of the suit is
recovery of possession from the respective defendant on the ground
that each of the defendant had taken forcible possession of the
respective suit flat and the plaintiffs want restoration of the said
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possession. The plaintiffs want to have the said restoration of
possession by having the benefit of provisions of Section 6(1) of the
Specific Reliefs Act.
14. If a suit instituted by a tenant for recovery of possession from the
landlord on the ground that the said tenant was dispossessed by the
landlord illegally is to be entertained by this Court in its original civil
jurisdiction, there is no reason to create distinction between such a suit
and suit filed by a co-operative society against its members for
restoration of possession under the provisions of Specific Relief Act.
The judgment delivered by the learned division bench clearly indicates
as to how status of parties is immaterial in a suit filed for restoration of
the possession.
15. I am inclined to accept the arguments advanced by learned
Counsel Mr. Joshi. I am of the view that the principles laid down in the
case of Shiavax C. Cambata Vs. Sunderdas Ebji as regards institution of
suits in the Civil Court for recovery of possession under Section 6 of the
Specific Reliefs Act should equally be applied to a suit filed by a co-
operative society against its member. In view of this, two suits filed by
the plaintiffs i.e. the co-operative society are maintainable in this Court
being the suits for recovery of possession under Section 6 of the
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Specific Reliefs Act and as such this Court shall have jurisdiction to try
and entertain the suits.
16. I must mention that I had gone through the evidence furnished by
each of the defendant in the present suits. No help could be obtained
from the evidence furnished by the respective defendant for the
purposes of deciding the aforesaid issue.
17. In the circumstances mentioned aforesaid, I am inclined to hold
that the each of the defendant has failed to show that this Court has no
jurisdiction to try and entertain the present suits. Accordingly, issue in
each suit is answered in the negative. Consequently, this Court will
have jurisdiction to try and entertain the present suits. In view of the
aforesaid findings, the Court shall now proceed to decide these two
suits on merits.
(R.Y.GANOO, J.)
