Bombay High Court
Usha Pandurang Dhabekar vs Shree Prakash Gruha Nirman ... on 24 February, 2021
Bench: Z.A. Haq, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
LETTERS PATENT APPEAL NO. 102 OF 2009
IN
WRIT PETITION NO. 2429 OF 2007 (D)
Smt. Usha Pandurang Dhabekar,
Aged Major, R/o. 85, Snehnagar, Nagpur
through Power of Attorney
Mr. Pandurang Dhabekar
(Dead through L.Rs.)
1. Pandurang Sadashiv Dhabekar (Husband)
Aged about 78 years, Occ. Business,
2. Sushil Pandurang Dhabekar (Son),
Aged about 50 years, Occ. Business,
3. Prashant Pandurang Dhabekar (Son),
Aged about 48 years, Occ. Business,
4. Kamlesh Pandurang Dhabekar (Son),
Aged about 46 years, Occ. Business,
5. Rachana D/o. Pandurang Dhabekar
(Daughter)(before marriage)
Rachana W/o. Prasad Pathak
(after marriage)
All R/o. Plot No. 64, Central Excise Colony,
Telecom Nagar, Nagpur. . . . APPELLANTS
...V E R S U S..
1. Shree Prakash Gruha Nirman Sahakari
Sanstha Limited, Sahakarnagar,
Khamla Road, Nagpur through its President
and Secretary.
2. Vijay Vitthalrao Joshi,
Aged Major, R/o. Pawansoot Apartments,
Ramdaspeth, Nagpur.
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3. Smt. Kalpana Vikas Kawade,
Plot No. 104, Chhatrapati Nagar,
Wardha Road, Nagpur. . . . RESPONDENTS
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Mr. R. L. Khapre, Senior Advocate a/w. Mr. R. G. Kavinandan,
Advocate for appellant/s.
Mr. R. R. Vyas, Advocate for respondent no. 1.
Mr. R. S. Parsodkar, Advocate for respondent nos. 2 and 3.
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CORAM :- Z. A. HAQ AND
AMIT B. BORKAR, JJ.
RESERVED ON :- 09.12.2020
PRONOUNCED ON :- 24.02.2021
JUDGMENT (PER : AMIT B. BORKAR, J.) :-
1. Invoking Clause 15 of the Letters Patent, the appellant has
taken exception to the judgment passed by the learned Single Judge
on 08.10.2008 in Writ Petition No. 2429/2007, thereby confirming the
judgments passed by the Courts below refusing to grant declaration of
the sale deed executed by the respondent no. 1-Society in favour of the
respondent no. 2 be declared as void and also refusing to direct the
respondent no. 1-Society to execute sale deed in respect of Plot No. 1
in favour of the appellant.
2. In order to appreciate the grievance of appellant, it will be
necessary to have a glance at a few introductory facts:-
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The appellant, who is original disputant, had filed Dispute
bearing no. 612/1996 before the Co-operative Court, Nagpur under
Section 91 of the Maharashtra Co-operative Societies Act, 1960
(hereinafter referred to as "the said Act") seeking reliefs of declaration
of sale deed executed by the respondent no. 1-Society in favour of the
respondent no. 2 as null and void and without authority; direction to
the respondent no. 1-Society to execute sale deed in respect of Plot No.
1, admeasuring 50 feet x 100 feet at Somalwada, Layout No. 3, Khasra
No. 152/2, Nagpur in favour of the appellant; to deliver the possession
of the said plot to the appellant. The appellant based his claim on four
material facts viz.
(i) The Co-operative Court in earlier dispute declared that the
appellant was entitled to plot admeasuring 50 feet x 100 feet
belonging to the respondent no. 1-Society.
(ii) Sale deed executed by the respondent no. 1-Society in
favour of the respondent no. 2 was without authority as it was
executed by a person, who had no authority to execute the said sale
deed on behalf of the respondent no. 1-Society.
(iii) The respondent no. 2 was not a member of the Society and
there was no reference in the sale deed that the respondent no. 2 was
member of the Society.
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(iv) The sale deed executed in favour of the respondent no. 2
was affected by doctrine of lis pendens .
3. The Co-operative Court, Nagpur by judgment and order
dated 07.06.2003 dismissed the dispute of the appellant holding that it
was barred by the provisions of the Order II, Rule 2 of the Code of Civil
Procedure; by the provisions of the Limitation Act; being barred by the
principle of res judicata. The Co-operative Court further held that the
appellant failed to prove that Mr. Sathe, Administrator, who executed
the sale deed in favour of the respondent no. 2, had no authority to
execute the sale deed on 29.08.1991.
4. The appellant had challenged the judgment passed by the
Co-Operative Appellant Court in appeal. The Co-operative Appellate
Court dismissed the appeal of the present appellant by judgment and
order dated 24.11.2005 confirming the finding recorded by the Co-
operative Court as regards authority to execute the sale deed but,
reversed the finding on the issues under Order II, Rule 2 of the Code of
Civil Procedure, limitation and res judicata. The appellant therefore
filed Writ Petition No. 2429/2007 before this Court and the learned
Single Judge by impugned judgment dismissed the Writ Petition of the
appellant holding that Administrator Mr. Sathe had authority to
execute the sale deed; principle of lis pendence is not applicable as the
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proceedings before the learned Single Judge were not original
proceeding, the decree passed by the Co-operative Court in earlier
Dispute no. 479/1991 granting declaration in favour of the appellant
could not be executed in such manner.
5. The appellant has therefore, filed the present appeal
challenging the judgment and order passed by the learned Single
Judge. The present Letters Patent Appeal was admitted by this Court
on 26.07.2010.
6. We have heard Mr. R. L. Khapre, learned Senior Advocate
a/w. Mr. R. G. Kavinandan, Advocate for the appellant, Mr. R. R. Vyas,
learned Advocate for the respondent no. 1-Society and Mr. R. S.
Parsodkar, learned Advocate for the respondent nos. 2 and 3.
7. Mr. R. L. Khapre, learned Senior Advocate a/w. Mr. R. G.
Kavinandan, Advocate for the appellant submitted that once
declaration was granted by the Co-operative Court in Dispute no.
479/1991 ,the appellant is entitled to plot admeasuring 50 feet x 100
feet in the respondent no. 1-Society. The Courts below had no
discretion but, to issue the directions to execute sale deed and delivery
of possession of the said plot in favour of the appellant, in compliance
of declaration in earlier dispute. It is further submitted that there was
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serious dispute regarding authority of Mr. Sathe, Administrator, who
was amongst one of the three Administrators on the Board of
Administrators appointed under the provisions of Section 77A of the
said Act. It is submitted that the sale deed in favour of the respondent
no. 2 was executed on 29.08.1991. Before the execution of the said
sale deed, the Chief Administrator Mr. D. D. Chavhan had informed the
members and intimated Mr. Sathe that he had unauthorizedly
removed the papers of layout and receipt books. It is further submitted
that copy of the said communication dated 26.05.1991 was also sent to
the Registrar to declare the said act of Mr. Sathe as unauthorized. He
submitted that on 09.08.1991, the Chief Administrator informed co-
Administrators that Mr. Sathe and Mr. Rode are acting in illegal
manner and asked Mr. Sathe to hand over entire records as well as
keys of the office of the Society to him. Learned Advocate invited our
attention to the Circular dated 16.08.1991 by which Mr. Chavhan,
Chief Administrator communicated to all the members of the Society
that acts done by Mr. Sathe will not be binding on the Society and he
will not be responsible for the acts of Mr. Sathe. He further submitted
that Mr. Sathe alone could not have executed the sale deed in favour
of the respondent no. 2 in absence of specific resolution by the Board
of Administrators to execute the sale deed in favour of the respondent
no. 2. He further submitted that the Dispute bearing no. 479/1991
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was filed by the appellant on 08.08.1991 and Mr. Sathe executed the
sale deed in favour of the respondent no. 2 of Plot No. 1 on
29.08.1991. Therefore, the sale deed was subject to decision of
dispute in view of the doctrine of lis pendence.
8. Mr. R. R. Vyas, learned Advocate for the respondent no. 1-
Society submitted that execution of the sale deed in favour of the
respondent no. 2 by the Administrator was valid and proper. He
further submitted that principle of lis pendence will not apply to the
sale deed of the respondent no. 2. He further submitted that the
learned Single Judge and both the Courts below have not committed
any error in dismissing the dispute of the appellant.
9. Mr. R. S. Parsodkar, learned Advocate for the respondent
nos. 2 and 3 submitted that the judgment and order of the learned
Single Judge is based on correct appreciation of law and facts.
According to him, the appellant was declared defaulter for non-
payment of deposit before the due date. He further submitted that the
respondent no. 2 was enrolled as member of Layout no. 3 on
18.07.1982. He further submitted that the allotment of Plot No. 1 in
favour of the respondent no. 2 was made on 12.02.1987. He further
submitted the respondent no. 1-Society through Administrator had
executed the sale deed of Plot No. 1 in favour of the respondent no. 2
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after the respondent no.2 deposited an amount of ₹ 72,630/-. He 72,630/-. He
invited our attention to the judgment of the learned Single Judge of
this Court in Revision Application No. 15/1995, which according to
Mr. Parsodkar holds that the appellant is not entitled to Plot No. 1. It
is submitted that the appellant has not challenged the allotment of Plot
No. 1 in favour of the respondent no. 2. The respondent no. 2 has
already constructed house on Plot No. 1 and has incurred huge
expenses for construction of house in the year 1996 itself. He further
submitted that the Letters Patent Appeal is devoid of merit.
10. We have carefully gone through the impugned judgment of
the learned Single Judge and both the Courts below along with other
material produced on record by the parties. After carefully scrutinizing
the material on record, we find following points needs consideration in
the present appeal.
(i) Whether Mr. Sathe, who had executed the sale deed in
favour of the respondent no. 2, was duly authorized by respondent no.
1-Society to execute the sale deed in favour of the respondent no. 2.
(ii) Whether the relief of execution of sale deed could have
been denied by the Courts below in view of the award in Dispute
bearing no. 479/1991 declaring the appellant entitled to allotment of
plot admeasuring 50 feet x 100 feet in Layout no. 3.
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(iii) How equities can be balanced, if it is held that the sale deed
in favour of the respondent no. 2 was without authority but, the
respondent no. 2 continues to be member of the respondent no. 1-
Society and there is subsisting allotment in his favour by the
respondent no. 1-Society.
11. In the backdrop of the aforesaid points, we have scrutinized
the entire record of the case and we find that undisputedly award is
passed in favour of the appellant declaring the appellant to be entitled
to plot in the respondent no. 1-Society, which reads as under :-
"It is hereby declared that disputant is entitled for allotment of
plot admeasuring 50 feet x 100 feet in Somalwada, Layout No. 3,
Khasra No. 152/2 belonging to the opponent Society."
Once the award dated 15.05.1993 in favour of the appellant
has attained finality, the award is binding on the respondent no. 1-
Society. It is therefore, incumbent on the respondent no. 1-Society to
allot plot admeasuring 50 feet x 100 feet from Somalwada, Layout No.
3 in favour of the appellant. The learned Single Judge has brushed
aside the declaration granted by the Competent Court in favour of the
appellant by observing that the proceeding before the learned Single
Judge is not the original proceeding and the decree by the Co-
operative Court in Dispute no. 479/1991 could not be executed in such
manner. In our view, the learned Single Judge has misconstrued the
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effect of decree in favour of the appellant as an executable decree.
From the language in the said decree, it is clear that the said decree
was declaratory decree. The learned Single Judge has not held that
the present dispute of the appellant is not maintainable. The
respondent no. 1-Society, who is bound by the declaratory decree has
failed to perform its obligation under the said decree to give effect to
declaratory decree. There is no other manner, except dispute under
Section 91 of the said Act, which entitles the appellant to seek
redressal of his legal rights created by the declaratory decree dated
15.05.1993. The appellant being member of Co-operative Society had
no other option but to file dispute under Section 91 of the said Act to
ventilate her grievance. The respondent no. 1-Society failed to execute
sale deed in compliance of declaratory decree, which is touching the
business of the Co-operative Housing Society. We are therefore of the
opinion that respondent no. 1-Society is under obligation to execute
sale deed of plot admeasuring 50 feet x 100 feet from Layout No. 3,
Somalwada, as per the terms of the declaratory decree.
12. We do not find merit in the submission of Mr. R. S.
Parsodkar, learned Advocate for the respondent nos. 2 and 3 that the
appellant being defaulter of respondent no.1-Society, was not entitled
to plot in the respondent no. 1-Society. The submission of Mr. R. S.
Parsodkar, learned Advocate is contrary to the provisions of the said
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Act. The member of a Co-operative Society, if declared as defaulter,
has to suffer consequences as provided under the provisions of the said
Act. The consequence of a member being defaulter is not
extinguishment of his membership right. Separate procedure for
extinguishment of the membership is provided under Section 35 of the
said Act read with Rules 28 and 29 of the said Rules. The member,
who is defaulter of Co-operative society is not entitled to exercise
certain rights as a member, which includes right to vote or right to
contest election of the Society. Even otherwise, once the Competent
Court had granted declaration, the appellant is entitled to plot
admeasuring 50 feet x 100 feet and the Courts below could not have
gone beyond the terms of the said award by holding that the appellant
was not entitled to the said plot.
13. The record shows that initially the sole Administrator was
appointed on respondent no. 1-Society, who was substituted by Mr. S.
N. Pandhare as sole Administrator. Thereafter, two more
Administrators were appointed on 16.01.1990 as Co-Administrators.
On 25.06.1990, Mr. D. D. Chavhan was appointed as Chief
Administrator in place of Mr. M. N. Pandhare. The record shows that
Mr. D. D. Chavhan addressed a letter to Mr. Sathe on 26.07.1991
indicating that Mr. Chavhan being Chief Administrator, he was in-
charge of the affairs of the Society and the act of Mr. Sathe collecting
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various amounts in respect of layout from the members was
unauthorized and he shall not be responsible for such illegal acts
committed by Mr. Sathe. Thereafter, on 09.08.1991 Mr. Chavhan had
written a letter to Mr. Sathe and Mr. Rode, members of Board of
Administrators, that they were misusing their powers as
Administrators and they shall be responsible for any illegality
committed by them. Mr. Chavhan called upon Mr. Sathe to hand over
keys of the office of the Society to him. The record shows that Mr.
Chavhan had issued a Circular on 16.08.1991 informing all the
members of the Society that Mr. Sathe was illegally recovering huge
amount from the members of the Society for allotment of plot and for
development of the layout. He had specifically stated in the said
Circular that he had not consented for the illegal acts of Mr. Sathe, and
Mr. Sathe was acting in his own right. Mr. Chavhan by the said
Circular made it clear that he shall not be responsible for any acts done
by Mr. Sathe. Copy of the said Circular was addressed to the
appellant.
14. In the background of the aforesaid communication, when
the Chief Administrator had distanced himself from the acts of Mr.
Sathe as one of the Administrator of Board of Administrators, it was
necessary for the respondent no. 1-Society to place on record the
specific resolution signed by all three members of the Board of
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Administrators thereby authorizing Mr. Sathe to execute sale deed in
favour of the respondent no. 2.
15. Having carefully scrutinized entire material on record, we
do not find specific authorization by the Board of Administrators in
favour of Mr. Sathe to execute the sale deed in favour of the
respondent no. 2. The learned Single Judge was not right in holding
that it is not necessary that each and every Administrator must
execute sale deed in favour of the party. The Board of Administrators
having stepped into shoes of the Managing Committee of the Co-
operative Society must act and speak through their resolution. One of
the members of the Board of Administrators individually could not
have executed the sale deed in respect of plot of the Housing Society,
particularly when the Chief Administrator had questioned the authority
of Administrator Mr. Sathe by issuing specific letters. We are,
therefore, satisfied that Mr. Sathe individually, as one of the member
of Board of Administrators, had no authority to execute sale deed in
favour of the respondent no. 2 in absence of the specific resolution of
the Board of Administrators authorizing him to execute the sale deed
in favour of the respondent no. 2.
16. The respondent no. 1-Society has come out with the case
that now it is not possible for the Society to allot plot admeasuring 50
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feet x 100 feet in favour of the appellant, as no plot is available. We
have also carefully reflected over the said contention. But, fact remains
that the sale deed executed in favour of the respondent no. 2 was
without authority but, it is equally true that the respondent no. 2
remains a member of the respondent no.1- Society and there is
subsisting allotment of plot in favour of the respondent no. 2 on
12.02.1997, which is not challenged in the present dispute. We must
also take into consideration the fact that in the year 1996 itself the
respondent no. 2 had constructed house and had incurred huge
expenses. On the one hand there is declaratory decree, which entitles
the appellant to plot admeasuring 50 feet x 100 feet and on the other
hand the respondent no. 2 is a member and allotment in his favour is
subsisting and had incurred huge expenses in the year 1996 for
construction of house on the plot. We are of the opinion that to
balance the equities between the parties to the dispute, in case the
Society is not in a position to execute sale deed of plot as per decree in
favour of the appellant, the Society must compensate the appellant in
terms of money for the loss caused to the appellant due to failure on
the part of respondent no. 1-Society to honour the declaratory decree.
17. 'Compensation' is a return for a loss or damages sustained.
Justice requires that it should be equal in value, although not alike in
kind. The term 'compensation' as stated in the Oxford Dictionary,
15 lpa-102-09j.odt
signifies that which is given in recompense, an equivalent rendered.
The term 'compensation' suggests the image of balancing one thing
against another; its primary signification is equivalence, and the
secondary and more common meaning is something given or obtained
as an equivalent. Pecuniary damages are to be valued on the basis of
'full compensation'. The word 'compensation' is derived from Latin
word "compensare" meaning "weigh together" or "balance".
18. Mr. R. R. Vyas, learned Advocate for the respondent no. 1-
Society has placed on record a chart of Ready Reckoner in respect of
land, which forms Layout No. 3 of the respondent no. 1-Society. The
said chart of Ready Reckoner is for the year 2020-21, which shows that
the rate of open plot of the lands of the respondent no. 1-Society is
₹ 72,630/-. He 40,700/- per sq. mtr. The area of plot as per the award in Dispute
bearing no. 479/1991 is 5000 sq. mtrs. The Ready Reckoner value of
plot admeasuring 50 feet x 100 feet comes to ₹ 72,630/-. He 1,89,05,557/-. We,
therefore, feel that interests of justice would be served if the
respondent no.1-Society is directed to pay an amount of ₹ 72,630/-. He 50 lakhs as
compensation to the appellant, if the respondent no. 1-Society is not
able to execute sale deed of plot admeasuring 50 feet x 100 feet as per
the decree.
16 lpa-102-09j.odt
19. Taking into consideration the reasons stated above, we pass
the following order :-
(i) The Letters Patent Appeal No. 102/2009 is partly allowed.
(ii) The judgment and order passed by the learned Single Judge
in Writ Petition No. 2429/2007 is quashed and set aside.
(iii) The respondent no. 1-Society is directed to execute sale
deed of the plot admeasuring 50 feet x 100 feet from Somalwada,
Layout No. 3, Khasra No. 152/2, Nagpur in favour of the appellant and
deliver vacant possession of the plot to the appellant, within three
months from today.
(iv) If the respondent no. 1-Society fails to execute sale deed
and deliver possession as directed in Clause (iii), then the respondent
no. 1-Society shall pay an amount of ₹ 72,630/-. He 50 lakhs to the appellant as
compensation, within a period of six months from today.
CIVIL APPLICATION (CAZ) Nos. 4/2019 AND 16/2019
In view of the disposal of the present Letters Patent Appeal,
the Civil Applications praying for grant of early hearing by giving fixed
date do not survive. They are disposed accordingly.
JUDGE JUDGE
RR Jaiswal
