Bombay High Court
Vishal Kokan Coop.Housing Scty.Ltd vs Vishwanath Vasant Poyekar And Anr on 2 February, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-AS:6311
2-wp5438-2018.f.doc
VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5438 OF 2018
Prafull Shankar Sabnis ... Petitioner
V/s.
Vishwanath Vasant Poyekar & Anr. ... Respondents
WITH
INTERIM APPLICATION NO.1342 OF 2021
IN
WRIT PETITION NO.5438 OF 2018
Prafull Shankar Sabnis ... Applicant
V/s.
Vishwanath Vasant Poyekar & Anr. ... Respondents
WITH
WRIT PETITION NO.5440 OF 2018
Prafull Shankar Sabnis ... Petitioner
V/s.
Vishwanath Vasant Poyekar & Anr. ... Respondents
WITH
INTERIM APPLICATION NO.1345 OF 2021
IN
WRIT PETITION NO.5440 OF 2018
Prafull Shankar Sabnis ... Applicant
V/s.
Vishwanath Vasant Poyekar & Anr. ... Respondents
WITH
WRIT PETITION NO.5441 OF 2018
Prafull Shankar Sabnis ... Petitioner
V/s.
Vishwanath Vasant Poyekar & Anr. ... Respondents
1
::: Uploaded on - 08/02/2024 ::: Downloaded on - 23/02/2024 05:12:18 :::
2-wp5438-2018.f.doc
WITH
INTERIM APPLICATION NO.1344 OF 2021
IN
WRIT PETITION NO.5441 OF 2018
Prafull Shankar Sabnis ... Applicant
V/s.
Vishwanath Vasant Poyekar & Anr. ... Respondents
WITH
WRIT PETITION NO.5439 OF 2018
Prafull Shankar Sabnis ... Petitioner
V/s.
Vishwanath Vasant Poyekar & Anr. ... Respondents
WITH
INTERIM APPLICATION NO.1343 OF 2021
IN
WRIT PETITION NO.5439 OF 2018
Prafull Shankar Sabnis ... Applicant
V/s.
Vishwanath Vasant Poyekar & Anr. ... Respondents
WITH
WRIT PETITION NO.8573 OF 2018
Vishal Konkan Coop. Hsng. Scty. Ltd. ... Petitioner
V/s.
Vishwanath Vasant Poyekar & Anr. ... Respondents
WITH
INTERIM APPLICATION NO.18459 OF 2023
IN
WRIT PETITION NO.8573 OF 2018
Vishwanath Vasant Poyekar ... Applicant
In the matter between
Vishal Konkan Co-operative Housing
2
::: Uploaded on - 08/02/2024 ::: Downloaded on - 23/02/2024 05:12:18 :::
2-wp5438-2018.f.doc
Society Limited ... Petitioner
V/s.
Prafulla S. Sabnis ... Respondent
WITH
WRIT PETITION NO.8174 OF 2018
Vishal Konkan Cooperative Housing
Society Limited ... Petitioner
V/s.
Vishwanath Vasant Poyekar & Anr. ... Respondents
WITH
INTERIM APPLICATION NO.18455 OF 2023
IN
WRIT PETITION NO.8174 OF 2018
Vishwanath Vasant Poyekar ... Applicant
In the matter between
Vishal Konkan Co-operative Housing
Society Limited ... Petitioner
V/s.
Prafulla S. Sabnis ... Respondent
Mr. G. Krishna Mohan Nair for the petitioner in
WP/5438/2018, WP/5440/2018, WP/5441/2018,
WP/5439/2018 & for the applicant in connected IAs.
Mr. Ravindra P. Walwaikar for the petitioner in
WP/8573/2018, WP/8174/2018 and for respondent
No.2 in WP/5438/2018, WP/5440/2018,
WP/5441/2018, WP/5439/2018 & for the respondent
No.2 in connected IAs.
Mr. Achyut G. Pandit for respondent No.1 in all WPs.
CORAM : AMIT BORKAR, J.
DATED : FEBRUARY 2, 2024
2-wp5438-2018.f.doc
P.C.:
1. Rule. Rule is made returnable forthwith.
2. The writ petitions are filed challenging judgment and orders
passed by the Cooperative Appellate Court confirming judgment
and award passed by the Cooperative Court declaring resolution
dated 15th June 1980 of general body meeting of the housing
society for cancellation of allotment of respondent No.1 as illegal,
and further declaring that respondent No.1 is entitled to allotment
and vacant possession of flat No.3. The petitioners were further
directed to handover vacant possession of flat No.3. The receiver
was also directed to handover flat No.4 to the opponent No.2.
3. Aggrieved thereby, the society and the allottee of flat No.3
filed appeals before the Cooperative Appellate Court. The
Cooperative Appellate Court allowed the appeals by judgment and
order dated 27th November 2003. Aggrieved thereby, the disputant
filed Writ Petition No.1109 of 2004.
4. This Court, by order dated 6th April 2016, allowed the
petition and remanded proceedings back to the Cooperative Court
to decide the issue of limitation. This Court also granted liberty to
the disputant to file an application for condonation of delay in
terms of section 92(3) of the Maharashtra Cooperative Societies
Act, 1960. The Cooperative Court was directed to decide the issue
of limitation and render its finding to the Cooperative Appellate
Court after receipt of the report on the point of limitation. The
Cooperative Appellate Court was directed to render a finding on
the issue of limitation.
2-wp5438-2018.f.doc
5. The disputant, therefore, filed an application for
condonation of delay on 20th April 2016. The petitioner contested
the application by filing his reply. The Cooperative Court, by order
dated 17th December 2016, allowed the application for
condonation of delay subject to costs of Rs.10,000/-.
6. The petitioner challenged the order on the application for
condonation of delay by filing the Appeal from Order Nos.33 and
34 of 2017. The Appellate Court, by separate judgments, dismissed
the Appeal from the Order filed by the Society and the allottee.
The Cooperative Appellate Court allowed Appeal No.195 of 2003
modifying the award of the Cooperative Court to the extent it
directed flat No.4 to be handed over to opponent No.2 (allottee).
Aggrieved thereby, the society and the allottee have filed present
six writ petitions.
7. Learned advocate for the allottee and the society submitted
that respondent No.2-society on 15th June 1980 cancelled
allotment of eight flats by general body resolution including flat
No.3, which is subject matter of dispute on the ground of non-
payment of balance amount. The allottee was allotted flat No.3
immediately in June 1980. The disputant filed the dispute in the
month of November 1980. According to the petitioners, the said
dispute did not contain a prayer for setting aside resolution dated
15th June 1980 nor a declaration in relation to the validity of the
resolution passed by the general body cancelling the disputant's
allotment was sought. The petitioner/society filed its written
statement and raised the issue of maintainability of dispute. It was
also pointed out that flat No.3 was disposed of. Therefore, the fact
2-wp5438-2018.f.doc
of resolution of the general body was within the knowledge of the
disputant on the date of filing of dispute i.e. in the year November,
1980. He sought relief of declaration of resolution regarding
cancellation of his allotment on 22nd November 1996 by filing an
application for amendment. Therefore, the petitioner submitted
that such relief by way of amendment was barred by limitation.
The cause furnished by the disputant cannot be termed a sufficient
cause. On merits, it is submitted that the disputant had agreed to
pay a cost of Rs.42,400/- out of which he paid Rs.21,449/-.
Despite receiving notices on 24th March 1980, 15th April 1980, 7th
May 1980, and 7th June 1980 the disputant did not pay the balance
amount. Therefore, the society in general body meeting dated 15 th
June 1980 cancelled the disputant's allotment. The decision to
cancel allotment was intimated to the disputant on 21 st June 1980.
He filed a dispute on 28th November 1980. It is submitted that the
allottee was granted membership on 18 th June 1980 and he
occupied flat No.3 on 26th July 1980.
8. Per contra, the learned advocate for the disputant submitted
that the disputant had sufficiently furnished an explanation for
filing an application for amendment on 20th April 2016. Broadly,
the sufficient cause shown by the disputant for condonation of
delay of 16 years was on the ground of wrong legal advice by the
advocates and domestic problems faced by the disputant. It was
also stated that the disputant tried to settle the dispute with the
society. The disputant has been seriously ill since 1988. It is also
stated that in the year 1989, the disputant's father suffered an
accident which ultimately resulted in death on 20th January 1990.
2-wp5438-2018.f.doc
He further submitted that assuming the amendment is barred by
limitation, in view of Rule 74 of the Maharashtra Cooperative
Societies Rules, 1961 which were in force till 2014, strict rules of
pleadings were not applicable to the dispute under section 91 of
the Maharashtra Cooperative Societies Act, 1960. According to
him, therefore, the relief of delivery of possession includes all
necessary reliefs sought by the petitioner by way of amendment.
According to him, strict rules of pleadings are inapplicable to the
dispute under the Maharashtra Cooperative Societies Act, 1960.
He submitted that the sufficient cause under section 5 of the
Limitation Act, 1963 needs to be construed liberally. In support of
his submission, he placed reliance on the judgment of the Apex
Court in Civil Appeal No.4440 of 2008 [Perumon Bhagvathy
Devaswom, Perinadu Village vs. Bhargavi Amma (Dead) By Lrs &
Ors.] decided on 11th July 2008.
9. Having considered the submission made on behalf of both
sides, it is necessary to set out the facts relevant for adjudication of
the issue of limitation which are as under:
10. On 15th June 1980, respondent No.2-society cancelled the
allotment of the disputant's flat.
11. On 28th November 1980, the disputant filed a dispute
without prayer for declaration.
12. On 20th April 2016, the disputant filed an application for
condonation of delay.
13. On 22nd November 1996, the disputant applied to amend the
dispute to incorporate relief of declaration of the legality of the
2-wp5438-2018.f.doc
general meeting dated 15th June 1980 and consequential allotment
of the suit flat in favour of opponent No.2 and a declaration that
the disputant is entitled to allotment of flat No.3.
14. For the purpose of considering sufficiency of cause in filing
the application for amendment is concerned, the reasons stated by
the disputant in an application for condonation of delay dated 20 th
April 2016 need to be considered. As observed earlier, the reasons
in the application broadly are two (i) wrong legal advice by the
concerned advocates; and (ii) inability to file such an application
due to various domestic issues.
15. The Trial Court condoned the delay by treating inability due
to domestic problems as sufficient cause. The Trial Court in its
order referred to the illness of the disputant from the year 1988,
the death of his father in 1990, death of his near relative in the
year 1992 as the sufficient cause for condoning a delay of 16
years. The Trial Court also held that it is always desirable that the
dispute between the parties be decided on merits and in the
interest of justice, both parties need to be given opportunity. The
Appellate Court in paragraph 41 referred to the circumstances
noted by the Trial Court and observed that the circumstances
prevalent prior relevant time were of such nature that the
disputant was unable to make his own decision. It is held that the
act of the disputant was not deliberate. It is held that the Trial
Court has elaborately discussed the reasons for the condonation of
delay which cannot be termed as perverse or illegal.
16. Having considered the facts of the case, in my opinion, it was
2-wp5438-2018.f.doc
always open for the disputant to seek necessary reliefs regarding
the declaration of inability to resolution cancelling allotment of the
disputant and challenging the validity of allotment in favour of
opponent No.2 (allottee). The disputant was deliberately pursuing
the dispute till the filing of an application for amendment. The
disputant was well aware of the existence of a general body
resolution which cancelled his allotment. Once these facts which
constitute a cause of action for seeking relief of declaration were
within the knowledge of the disputant, the reasons such as wrong
legal advice or inability due to domestic problems do not
constitute sufficient cause for seeking relief of declaration after 16
years of filing of dispute.
17. It is true that the sufficient cause under section 5 of the
Limitation Act, 1963 needs to be construed liberally. However, in
the facts of the case, the explanation furnished by the disputant for
condonation of delay of 16 years cannot, by any legal standard, be
termed as sufficient cause. Therefore, both the Courts below were
not justified in condoning a delay of 16 years in filing an
application for amendment seeking relief of declaration.
18. The question therefore arises for consideration is whether
the dispute without considering reliefs prayed by amendment can
be allowed. To decide the said issue, it is necessary to set out the
original prayers in the dispute and the amended prayers in the
dispute which read as under:
The original prayers:
a) That Opponent No.1 be ordered to restore the
2-wp5438-2018.f.doc
membership of the Disputant which has been illegally
expelled by the Opponent No.1;
b) That the Opponent No.1 and 2 be ordered to hand over
the vacant possession of the Flat No.3 on ground floor, Vishal
Konkan Co-operative Housing Society Ltd., Fateh-baug, S.V.
Road, Kandivli (West), Bombay-400 067;
c) The Opponents be restrained by an ad-interim
injunction from transferring or assigning the said tenements
of creating any right, title and interest therein or parting
with the possession of the whole or any part thereof in
favour of any person other than the Disputant;
d) The Opponents be ordered and decreed to pay to the
Disputant the costs of the present Dispute including the
professional costs."
The amended prayers.
a) That the Opponent No.1 be ordered to restore the
membership of the Disputant which has been illegally
expelled by the Opponent No.1; (Deleted)
a) The alleged resolutions with regard to cancellation of
allotment of suit flat in favour of the Disputant alleged to
have been passed in the meeting of the Extra Ordinary
Special General Body meeting held on 15 th June, 1980 be
declared as illegal, invalid, improper and as null and void;
a-1) The alleged resolutions with regard to the allotment of
suit flat in favour of the Opponent No.2 alleged to have been
passed in the meetings of the Managing Committee held on
15th June, 1980 and 28th June, 1980 be declared as illegal,
improper and null and void;
a-2) It be declared that the Disputant is entitled for an
allotment and possession of flat No.3 on the ground floor of
the building of the Opponent No.1;
b) That the Opponent No.1 and 2 be ordered to hand over
2-wp5438-2018.f.doc
the vacant possession of the Flat No.3 on ground floor, Vishal
Konkan Co-operative Housing Ltd., Fateh-baug, S. V. Road,
Kandivli (West), Bombay-400 067;
b(1) The Opponents be ordered and decreed to pay to the
Disputant the sum of Rs.28,410/- (Deleted)
b(2) The Opponents be ordered to pay interest at 18% per
annum to the Disputant on the said sum of Rs.28,410/- from
the date of this dispute. (Deleted)
c) The Opponents be restrained by an ad-interim
injunction from transferring or assigning the said tenements
of creating any right, title and interest therein or parting
with the possession of the whole or any part thereof in
favour of any person other than the Disputant;"
19. In so far as prayer clause (a) of unamended dispute is
concerned, the disputant has sought direction against the housing
society to restore his membership. In this regard, it is to be noted
that it is not the case of respondent society that the disputant was
expelled from his membership. The advocate for the society also
states that the disputant continues to be a member of opponent
No.1 society. Therefore, based on pleadings and material before
this Court, it is held that the disputant continues to be a member
of opponent No.1 society.
20. In so far as prayer clause (b) is concerned, the disputant is
seeking relief of handing over of possession of flat No.3. As noted
earlier, the general body of opponent No.1-society, on 15th June
1980, cancelled the allotment of eight flats including flat No.3
allotted to the disputant for non-payment of balance amount. It is
not in dispute that the disputant failed to pay the balance amount
on 15th June 1980. The total amount was Rs.42,400/- out of which
2-wp5438-2018.f.doc
the respondent No.2 paid Rs.21449/-. It is also not in dispute that
the flat in dispute was allotted to opponent No.2. It is also a
proven fact that the disputant communicated on 21 st June 1980
about the cancellation of his allotment. It is also a proven fact that
opponent No.2 was allotted flat No.3. Therefore, in the absence of
setting aside the effect of the resolution of the general body
meeting dated 15th June 1980, thereby cancelling allotment of
petitioner and without cancelling allotment in favour of opponent
No.2, no relief of delivery of possession simpliciter in favour of the
disputant can be granted. Ordinarily, in a suit for possession, it is
not necessary to seek a declaration of ownership as such issue of
ownership is inherent in the suit for possession. However, in the
facts of the case, the general body resolution dated 15 th June 1980
extinguishing the petitioner's right to occupy flat No.3 continues to
hold the field. The fact of allotment of flat No.3 to opponent No.2
confers the right on opponent No.3 to occupy the said premises, in
the absence of extinguishment of his right by the relief granted by
the Court, the relief of possession in the facts of the case, amount
to a consequential relief. In my opinion, in the facts of the case,
relief of declaration regarding invalidity of resolution dated 15 th
June 1980 and invalidity of resolution of allotment of flat in favour
of opponent No.2, constitute main relief. Therefore, the main relief
being barred by limitation, the Court below could not have granted
consequential relief of possession.
21. However, at this stage, it will be useful to advert to the
observations of the Apex Court in the case of Gurubax Sing v.
Financial Commissioner, reported in 1991 Supp (1) SCC 167, in
2-wp5438-2018.f.doc
paragraph 23 which reads thus:
"Under the above circumstances we feel that while
this Court is to administer justice according to law there
may be scope for doing justice and equity between the
parties. In such a situation we remember what the
Institutes of Jusinian, De Justitia Et Jure, in 'Liber Primus'
Tit. I said: "Justita est constans et perpetua voluntas jus
sum cuique tribuendi." Justice is the constant and
perpetual wish to render everyone his due.
"Jurisprudentia est divinarum atque humanarum rerum
notitia, justi atque injusti scientia." Jurisprudence is the
knowledge of the things divine and human; the science of
the just and unjust. The divine is that which right reason
commends. The humane is also in the contents of the law.
As Mas Rumelin said in the struggle to Govern Law,
"Justice is rivaled by equity." The dilemma that equity is to
be better than justice and yet not quite opposed to justice,
but rather a kind of justice has troubled us. Gustav
Radbruch clarifies the mutual relation between two kinds
of justice, namely, cumulative and distributive. We may
call "just" either the application or observance of law, or
that law itself. "The former kind of justice, especially the
justice of the Judge true to the law." according to him,
"might better be called righteousness." Here "we are
concerned not with justice which is measured by positive
law, but rather with that by which positive law is
measured." Justice in this sense means equality. Aristotle's
doctrine of justice of equality is called by him cumulative
justice which requires at least two persons while
distributive justice requires at least three. Relative
equality in treating different persons while granting relief,
according to need, or reward and punishment according
to merit and guilt is the essence of distributive justice.
While in cumulative justice the two persons confront each
other as co-equals, three or more persons are necessary in
2-wp5438-2018.f.doc
distributive justice in which one, imposes burdens upon or
grants advantages to the others, is superior to them.
Therefore, it presupposes an act of distributively justice
which has granted to those concerned, equality or rights,
equal capacity to act, equal status. According to
Radbruch, distributive justice is the prototype of justice.
In it we have found the idea of justice, toward which the
concept of law must be oriented." Law offers and protects
the conditions necessary for the life of man and his
perfection. In the words of Cardozo, "What we are
seeking is not merely the justice that one receives when
his rights and statute are determined by the law as it is
what we are seeking is a justice to which law in its
making should conform." The sense of justice will be
stable when it is firmly guided by the 'pragma' of objective
and subjective interests."
22. The Single Judge of this Court in case of Siddharth Holding
Pvt. Ltd. v. Saidale Co-operative Housing Society Ltd., reported in
(2003) 6 Bom CR 857 at page 876 held as under
"A priori, I have no hesitation in taking the view that a
Tenant Co-partnership Housing Society is under legal
obligation to provide a suitable tenement to each of its
members, the member of such a society has an inseparable
right to seek house from the society."
23. In the facts of the present case, it is not in dispute that the
disputant continues to be a member of the Tenant Co-partnership
housing society. Both parties submitted that the building is in
dilapidated condition and, therefore, the matter needs to be
decided at the stage of admission. It is also submitted that the
society is considering a proposal for redevelopment of its building.
2-wp5438-2018.f.doc
Therefore, in view of the observations made in Siddharth Holding
Pvt. Ltd. (supra) and Gurubax Sing (supra), in my view, it would
be necessary to direct the society, to ensure that the disputant is
treated at par and equality with other members. Therefore it is
directed that, in case the society decides to redevelop the building,
the society shall consider allotment of flat to the disputant similar
to other members in the redeveloped building on the disputant
paying Rs.24,000/- along with simple interest at the rate of 8%
from November 1980 till the payment of such amount.
24. With this modification, rule is made absolute in terms of
prayer clause (a) in all petitions.
25. The writ petitions are stand disposed of. No costs.
26. In view of the disposal of the writ petitions, all interlocutory
applications stand disposed of as infructuous.
27. The Court Receiver is directed to hand over possession of flat
No.4 to the society within two weeks from the date of receipt of
the order.
(AMIT BORKAR, J.)
