TaxTMI 
TaxTMI 
2019 (1) TMI 2009
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.... alia praying that the defendant no.1, their servants and agents be restrained from creating any third party rights, from carrying out any redevelopment or otherwise in respect of the suit flat, for mandatory order and injunction against the defendant no.1 to pay an amount of Rs.4,000/- towards monthly compensation to the plaintiff for the suit flat, for appointment of Court Receiver with a direction to hand over possession of the suit flat to the plaintiff and allow the plaintiff to occupy the flat as an agent of the Court Receiver. 3. The plaintiff has filed a suit inter alia praying for an order and decree to hand over vacant and peaceful possession of the suit flat to the plaintiff and prayed that in all the record of the defendant no.1 society, the plaintiff be shown as the owner of the suit flat and seeking temporary order and injunction against the defendant no.1, their servants and agent from creating any third party rights for redevelopment or otherwise in respect of the suit flat, for appointment of the Court Receiver and for an order and direction against the defendant no.1 to pay an amount of Rs.14,40,000/- towards compensation and further amount of Rs.40,000/- per m....
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....cieties Act, 1960 against the plaintiff and the licensee Mr.A.Rajam for recovery of arrears of dues of the society and for declaration that the plaintiff herein had no right, title or interest in the suit flat. The defendant no.1 society also prayed for possession of the suit flat and for arrears of dues of the society. The said dispute being Case No.ABN/504/663 of 1978 came to be disposed of by the First Cooperative Court, Bombay by an order dated 22nd November 1982. The learned Judge of the Co-operative Court rejected the prayer of the defendants with regard to the declaration that the plaintiff had no right in the suit flat. The Co-operative Court held that the Will dated 4th January 1968 tantamount to nomination under the provisions of the Maharashtra Co-operative Societies Act and Rules and the plaintiff herein was duly nominated to succeed to the shares and the flat in dispute after the death of both Smt.Shamibai Punwani and Mr.Issardas Punwani and that the defendant no.1 was bound to transfer the shares and the flat in dispute in the name of the plaintiff herein (opponent no.2 in the said dispute). 7. In so far as the plaintiff is concerned, it is held that tenancy does n....
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....o-operative Appellate Court directed the said Mr.A. Rajam to hand over the actual possession of the flat in dispute to the defendant no.1 society. It was directed that the society shall be entitled to recover monthly outgoings from the said Mr.A.Rajam till he hands over vacant possession to the society. The revision application no.26 of 1984 filed by Mr.A.Rajam came to be dismissed as the same did not survive. 12. Being aggrieved by the said order dated 28th October 1985 passed by the Maharashtra State Co-operative Appellate Court, the said Mr.A.Rajam filed a writ petition bearing no.4853 of 1985 before this Court. In the said writ petition, the society as well as the plaintiff herein were impleaded as the respondents. The said Mr.A.Rajam and the society filed consent terms on 21st July 1999 in the said writ petition. The plaintiff was not a party to the said consent terms. 13. Under the said consent terms, the said Mr.A.Rajam and the society agreed that decree for eviction against the said Mr.A.Rajam in respect of the suit flat was confirmed subject to the deletion of the directions that the plaintiff do pay jointly or severally the sum of Rs.2543.29 to the society with inte....
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....On 18th September 2014, the Maharashtra State Cooperative allowed the application dated 16th November 2011 filed by the defendant no.1 society under Section 9A of the Code of Civil Procedure, 1908 and declared that the Co-operative Court had no jurisdiction to try the said dispute and the same was directed to be returned to the plaintiff herein for filing in competent Civil Court. 18. It is the case of the plaintiff that during the period when the said dispute was pending before the Co-operative Court, parties were sent for mediation of Advocate P.V. Joshi. The matter however could not be settled between the parties before the learned mediator. 19. On 17th January 2015, the plaintiff filed a suit bearing No.750 of 2015 for recovery of possession and for various reliefs. The plaintiff also filed the aforesaid two notices of motion for various reliefs. 20. Learned counsel for the plaintiff made various submissions in Notice of Motion No.735 of 2016 followed by the submissions in Notice of Motion No.1559 of 2015. Learned counsel for the plaintiff invited my attention to various documents, pleadings, orders passed by the Maharashtra State Co-operative Court, the Maharashtra St....
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.... the 'landlord' of the member or the said Mr.A.Rajam by any stretch of imagination and Section 28 of the Rent Act will have no application to the claim of the society against the member or the said Mr.A.Rajam. 24. In so far as the appeal filed by the defendant no.1 society against the order of the Co-operative Court is concerned, the Cooperative Appellate Court rendered a finding that the said deceased Shamibai had not only nominated her husband by separate application for nomination but also she had executed a Will in favour of her husband. The said deceased Shamibai made a subsequent Will to the effect that in case of the death of her husband, the said flat should be transferred in the name of the plaintiff herein. The Co-operative Appellate Court accordingly held that the nomination can be made by a document which is signed by a member or the nomination can be made by a statement which can be entered in a book which is separately kept for that purpose. 25. It is held that the society could have called upon for the original Will or the original writing on which the plaintiff had relied upon and could have satisfied itself about the genuineness of the documents. Howe....
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....ashtra State Co-operative Appellate Court were confirmed subject to the deletion of certain directions against Mr.A. Rajam and the said Mr.A. Rajam handing over the possession of the suit flat to the society. 29. Learned counsel for the plaintiff placed reliance on the judgment of the Hon'ble Supreme Court in case of Raveesh Chand Jain vs. Raj Rani Jain, (2015) 8 SCC 428 and in particular paragraphs 5 and 6 in support of his submission that the defendants not having raised the issue of jurisdiction of civil court in the earlier round of litigation though had filed an application under section 9A of the Code of Civil Procedure, 1908 and more particularly before the Maharashtra State Co-operative Court in a dispute filed by the plaintiff, the said issue of jurisdiction of a civil court now raised is barred by the principles of constructive resjudicata. He submits that the power of court to pass a judgment under Order 12 Rule 6 of the Code of Civil Procedure, 1908 is very wide and can be exercised at any stage of the suit on the basis of the admission of facts made in the pleadings or otherwise without waiting for the determination of other questions which arose between the par....
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....t petition, the plaintiff did not challenge the consent terms between the defendant society and the said Mr.A.Rajam or the order passed by this court in terms of the said consent terms dated 21st July, 1999. 33. It is submitted that it was the defendant who took various steps for eviction of the said Mr.A.Rajam from the suit flat and not the plaintiff. The defendant had incurred substantial amount of expenditure on filing the proceedings for eviction of the said tenant and also in defending the proceedings filed the said Mr.A.Rajam and the plaintiff and thus the demand raised by the plaintiff for recovery of the possession in these circumstances is not an equitable demand. The defendant no.1 society has been already in continuous possession of the said flat since 1999 and has been using the said premises for the purpose of holding its meetings in the said flat and has been using the same as an office of the society. It is submitted that the provisions of Order 12 Rule 6 of the Code of Civil Procedure, 1908 does not apply to the facts of this case. 34. Insofar as the judgments relied upon by the learned counsel for the plaintiff are concerned, it is submitted by the learned co....
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....tice of motion filed under Order 12 Rule 6 of the Code of Civil Procedure, 1908. 38. Insofar as Notice of Motion No.1559 of 2015 filed by the plaintiff is concerned, it is submitted by the learned counsel for the defendants that the defendants have already made a statement before this court at the ad-interim stage of the hearing of the Notice of Motion No.1559 of 2015 that the defendant did not want to go for redevelopment. There is no conveyance deed executed in favour of the defendant society. If any redevelopment proposal in future, the same would be then only after obtaining prior permission of this court. She submits that this court has already granted an order of status-quo in the said notice of motion which would protect the interest, if any, of the plaintiff in the suit flat. 39. Learned counsel for the plaintiff in rejoinder submits that the so-called plea of lack of jurisdiction of this court raised by the defendant in the written statement and in the affidavit in reply to the notice of motion is not a bonafide plea and has been raised only with an intention to delay the outcome of the result of the notice of motion filed by the plaintiff under Order 12 Rule 6 of th....
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....ed by the defendants at any stage earlier. 42. Insofar as the issue of limitation sought to be raised by the defendants during the course of he argument is concerned, it is submitted by the learned counsel for the plaintiff that Article 65 of the Schedule to the Limitation Act, 1963 provides for a period of limitation of 12 years for filing a suit for recovery of possession. He submits that the plaintiff had demanded possession from the defendants from time to time. The plaintiff had filed a dispute before the co-operative court within three years from the date of such demand and had filed this suit within 9 years from the date of obtaining grant of Letters of Administration from this court. 43. Insofar as judgment of the Hon'ble Supreme Court Rame Gowda (Dead) by LRs. (supra) relied upon by the learned counsel for the defendants is concerned, learned counsel for the plaintiff distinguished the said judgment on the ground that the present suit filed by the plaintiff for recovery of the possession from the defendants itself is due process of law. The said judgment of the Hon'ble Supreme Court thus would not assist the case of the defendants but would assist the case of....
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.... to decide the dispute in respect of the flat and only the competent civil court has jurisdiction of allowing the said claim made by the plaintiff in the said dispute and not the co-operative court. 46. It is further held by the co-operative court that if the defendant society had retained the possession of the suit flat with it unauthorizedly, then there would be encroachers in the suit flat and even in that situation the dispute against the encroacher i.e. the opponent no.1 society was not cognizable in the co-operative court and only civil court can dispose of the said dispute. A perusal of the said order clearly indicates that it was not the case of the defendants before the co-operative court that the defendants had become the owner by adverse possession or that the defendants was the tenant or gratuitous licensee in respect of the suit flat. In my view, the plea now raised that this court has no jurisdiction to try the plea of tenancy/gratuitous licensee raised by the defendants in this suit is not a bonafide plea but is a dishonest plea. The said plea of jurisdiction ought to have been raised before the co-operative court which was not raised admittedly by the defendants.....
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.... the defendants, which the practical unfolding of the provision of section 9-A indicates, in the experience of the trial Judges of this Court, would emphasize the necessity of allowing a modicum of discretion on the part of the trial Judge while dealing with an application for the raising of a preliminary issue under section 9A. The Division Bench of this Court adverted to a judgment of the Hon'ble Supreme Court in case of Tayabbhai M. Bagasarwalla vs. Hind Rubber Industries Private Limited, (1997) 3 SCC 443 which provided that the trial Court is not helpless merely because of a preliminary issue is sought to be raised under section 9A. It is held by the Division Bench that in order to ensure that section 9A is not susceptible to grave abuse at the behest of an unscrupulous defendant, it would be within the jurisdiction and authority of the trial Judge to consider as to whether the objection as to jurisdiction arises bonafide or whether it is wholly frivolous. 50. The Division Bench further made it clear that abuse contemplated a minimal enquiry by the Court, since if at that stage comprehensive adjudication were to be contemplated that would factually defeat the provisions ....
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....e suit. The principle behind Order XII Rule 6 is to give the plaintiff a right to speedy judgment so that either party may get rid of the rival claims which are not in controversy. 54. The Hon'ble Supreme Court in case of Karam Kapahi vs. Lal Chand Public Charitable Trust, (2010) 4 SCC 753 and in particular paragraphs 39 to 42 held that in an appropriate case a party on the admission of the other party can press for judgment, as a matter of legal right however, the Court always retains its discretion in the matter of pronouncing the judgment. It is held that in Order XII Rule 6, the expression "or otherwise", is much wider in view of the words used therein, viz. "admission of fact ........ either in the plea or otherwise, whether orally or in writing". The Hon'ble Supreme Court held that since the question of ownership was already decided in the earlier suit filed by the appellant in that matter, the said issue need not have to be decided afresh and hence on the basis of the finding of the ownership decided in favour of the plaintiff, the suit has to be decreed so far as recovery of possession is concerned. In my view, the principles laid down by the Hon'ble Supreme ....
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....ntion of the defendants herein that the suit flat was held by its member Smt.Shamibai Issardas Punwani in accordance with the rules, regulations and bye-laws of the society who was required to pay the outgoings and charges of the society from time to time. It was the case of the society that the said Smt. Shamibai Issardas Punwani had filed a nomination form dated 25th April, 1960 with the society with her husband Shri Issardas Hirasingh Punwani in respect of the suit flat. Upon the death of the Smt.Shamibai Issardas Punwani, the suit flat vested in Shri Issardas Hirasingh Punwani in pursuance of the said nomination which was not revoked. Before the suit flat could be transferred in the name of Shri Issardas Hirasingh Punwani, who had approached the society for transfer of the suit flat in the name of said Shri Issardas Hirasingh Punwani he died on 21st June, 1972. 58. The plaintiff herein thereafter had requested the society to transfer the said flat in dispute in his name on the ground that the said Smt.Shamibai Issardas Punwani had lodged with the society a copy of her Will dated 4th January,1968 with the consent of her husband assigning the said flat in dispute and relating ....
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....o-operative Societies Act,1960. 61. It is held by the Co-operative Court that the witness of the society who was a treasurer of the society had admitted that Shri Issardas Hirasingh Punwani had told him that time that after the death of Smt.Shamibai Issardas Punwani and Shri Issardas Hirasingh Punwani, the plaintiff herein would be the owner of the flat in dispute. It is also held by the Co-operative Court that the plaintiff had shown that his father Bhagwandas Chaudhry was adopted by Shri Issardas Hirasingh Punwani and Smt.Shamibai Issardas Punwani as their son. The Co-operative Court rendered a finding that after considering the totality of the case, it was obvious that the plaintiff was clearly named by Smt.Shamibai Issardas Punwani and Shri Issardas Hirasingh Punwani to succeed to the shares and flat after their death. The writing dated 4th January,1968 though described as the Will could also be termed as a document within the meaning of section 30 of the Maharashtra Co-operative Societies Act, 1960, the purpose of which is to transfer the interest of the deceased member according to the wishes expressed in the writing which requires to be deposited with the society during t....
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....ed Smt.Shamibai Issardas Punwani had not only nominated her husband by a separate application for nomination but had also executed a Will in favour of her husband. The Maharashtra State Co-operative Appellate Court upheld the findings of the Co-operative Court that the said Will submitted by Smt.Shamibai Issardas Punwani was a document which would amount to a nomination in records of the society as per the provisions of law. The society could have called upon the original Will or the original writing on which the plaintiff herein relied upon and could have been satisfied itself about the genuineness of the document. The Co-operative Appellate Court accordingly held that the said document could be treated as an application for nomination and the society could very well admit the petitioner as a member. However, if the society entertain any doubt about the claim in writing of the plaintiff, the society could very well direct the plaintiff to produce the probate. 66. The Maharashtra State Co-operative Appellate Court held that the appeal thus filed by the society was not tenable. The Cooperative Appellate Court accordingly directed the society to consider the claim of the plaintiff....
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....Court, Maharashtra State Co-operative Appellate Court and the order passed by this court in the consent terms dated 21st July, 1999. The rights in the flat and the share certificate in the suit flat vests in the plaintiff and thus the defendant society cannot claim any right, title contrary to the order passed by the Co-operative Court, Maharashtra State Co-operative Appellate Court and this court in respect of the suit flat. The plaintiff has thus made out a case for grant of relief insofar as possession of the suit flat is concerned in this notice of motion under Order 12 Rule 6 of the Code of Civil Procedure, 1908 on the basis of various admissions in the pleadings and various orders binding on parties insofar as judgment for recovery of possession is concerned by applying the principles laid down by the Hon'ble Supreme Court in case of Raveesh Chand Jain (supra). 69. I am thus inclined to grant the relief sought in the Notice of Motion No.735 of 2016 in terms of prayer clause (a). 70. I, therefore, pass the following order :- (i) Notice of Motion No.735 of 2016 is accordingly made absolute in terms of prayer clause (a). The defendant society is directed to ha....