TaxTMI 
TaxTMI 
2024 (12) TMI 1558
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....to the Respondent No. 1-Society. 3. The facts necessary to be exposited are that the Petitioner, which is a Scheduled Multi State Co-operative Bank, vide Agreement dated 29th August, 1987 purchased the ground floor and first floor premises [for short "subject premises"] in a building constructed by Respondent No. 4 Developer on land bearing Plot No. 57, Rebello Road, Bandra West, Mumbai 400 050, which was leased to the Respondent No. 2 and 3 by the Respondent No. 1 Society. 4. The Respondent No. 1 Society was formed in the year 1915, with the object of carrying out business of developing land and is governed by the bye-laws adopted on 24th August, 1922. The Bye-laws restricts the membership of Respondent No. 1 Society only to Roman Catholics. The Society was at liberty to grant leases to its members as per prescribed Form A. Bye-law No. 8B permits the members of Respondent No. 1-Society to develop their plots by construction of building on the leasehold land and upon such development, the flat purchasers consisting of persons eligible to be members as per the Bye-laws, were entitled to form a co-operative housing Society, which was required to apply for membership of Responde....
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....ctify the breach and restore status quo ante within period of three months failing which the Respondent No. 1 will re-enter the plot and lease shall stand terminated upon expiry of the period of notice. There were subsequent exchange of correspondence between the Petitioner and Respondent No. 1-Society. 8. Vide communication dated 6th March, 1990, final opportunity was given by the Respondent No. 1 to the Respondent Nos. 2 and 3 to rectify the breach within three months as per the Society's Bye-laws upon expiry of which the rights of Respondent Nos. 2 and 3 were to come to an end and lease in respect of the subject plot and membership of Society to stand terminated. Respondent Nos. 2 and 3 responded to the said notice by reply dated 26th March, 1990 stating that they are ready and willing to co-operate with the Society and are not responsible for the situation. 9. On 9th October 1992, the Respondent No. 1-Society filed R.A.E Suit No. 9 of 1992 against the Respondent Nos. 2 to 4 and the Petitioner seeking decree and order to handover vacant and peaceful possession of the suit plot. Vide order dated 4th September 1996, the Small Causes Court returned the plaint for want of ....
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....ef of mandatory injunction is rightly granted. He submits that the Respondent No. 1-Society is sub-classified as tenant ownership Society and is the lessor/owner of the land and not the owner of the superstructure as concept of dual ownership is recognised in India. He submits that the Dispute describes the suit premises as Plot No. 57 and the Award passed is contrary to the relief prayed for in the Dispute. He would further submit that the only after obtaining declaration of lawful termination of lease-deed, the Respondent No. 1-Society would be entitled for a decree of physical possession. He submits that the decree as granted is inexecutable as the building will be required to be removed in execution and without impleading all the flat purchasers, the decree cannot be executed. He would further submit that the judgment dated 9th April, 2002 passed by the Appellate Court in A.O. No. 37 of 2019 is only an interlocutory order and the issue of inherent lack of jurisdiction is open for adjudication. He submits that there is no privity of contract between the Petitioner and the Respondent No. 1- Society and therefore the Co-operative Court could have only granted the relief of bringin....
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....dwelling house and outbuildings erected thereon. He would further point out that the lessee had covenanted to keep the demised plot and premises and all buildings and improvements and all additions thereon etc., in good condition and all of which were included in the expression "demised premises". He would further point out Clause 2(20) of the Lease deed which provides that at the end or sooner determination of the term, lessee shall peaceably and quietly yield up and deliver the demised premises to the lessor with all additions and improvements. 16. In rejoinder, Mr. Godbole would contend that the lessor had covenanted that where the lease has been determined by notice under proviso contained Clause 4(1) and (2), the lessor shall pay to the lessee the value of lessee's interest in the demised plot and premises and therefore the same cannot be handed over free of cost to the Respondent No. 1-Society. Pointing out to the termination notice, he submits that the notice has been issued under proviso contained in Clause 4 and not under sub-clause (17) of clause 2 of the lease-deed and therefore the value has to be determined and the same cannot be given free of cost to the Respon....
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....of land bearing Plot No. 57 together with the dwelling house and outbuildings erected thereon and to hold the said premises referred to as "the demised plot" from 25th April, 1958 for term of 998 years. 22. Some of the relevant covenants of the Lessee contained in Clause 2 of the lease-deed read thus : "(5) To well and substantially repair cleanse maintain uphold support amend and keep demised plot and premises and all buildings and improvements which may at any time be thereon and all additions thereto and the boundary walls hedges and fences and gates thereof and drains sewers and other pipes and sanitary and water apparatus thereof (all of which hereinafter included in the expression "the demisted premises") in good substantial condition and brick work property pointed.". "(6) To use the demised plot and premises for the purpose of private residence only and not without the license in writing of the lessor first had and obtained to do or permit any trade or business in any building or upon any part of the demised plot and premises." "(9) To keep the compound and open spaces of the demised plot in a clean and sanitary condition allow the same to be o....
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....ontend that whatever the status might be during the subsistence of lease, upon determination of lease, it is only the terms of contract which will prevail. It is this contention which will have to be tested in present case. 25. In this context, Section 108 of TP Act governs the rights and liabilities of the lessor and lessee in the absence of a contract or local usage to the contrary and relevant for our purpose is Clause (h) which reads thus : "(h) the lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased and not afterwards all things which he has attached to the earth; provided he leaves the property in the state in which he received it" 26. The provisions of Section 108(h) of TP Act came up for consideration before the the Apex Court in Dr.K.A. Dhairyawan v. J.R Thakur (supra). The Apex Court recognizing the concept of dual ownership held that Section 108(h) of TP Act does not prohibit the lessee from contracting to hand over the building erected on the land by them to the lessors without receiving any compensation. In the facts of that case, the Apex Court further held that although under Sectio....
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....use 2(17) hereof to pay to the lessee the value of the lessee's interest in the demised plot and premises at the date of the said notice such value to be determined by a valuer to be appointed by the Registrar of Co-operative Societies appointed under the co-operative societies Act. or by a valuer appointed as aforesaid and by the representatives appointed by the Lessor and the Lessees the opinion of the majority in respect of the valuation to prevail. 4. PROVIDED ALWAYS and it is expressly agreed as follows : (1) That if the society shall in accordance with the by- laws of the society for the time being in force pass a resolution expelling the Lessee from the society or in the event of the demised plot and premises being occupied by or vested in any person who is not a member of the society or his heir or legal representative or the nominee of the member under by-laws of the society the Lessor may at any time thereafter by giving to the Lessee three calendar months' previous notice in writing to that effect determine the term hereby granted then on the expiration of such notice this present lease and everything herein contained shall cease and be absolute....
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....specifically states that the Respondent Nos. 2 and 3 have committed breach of the covenants contained in the Agreement dated 8th February, 1987, which includes the covenant to abide by the rules, regulations and bye-laws of the Respondent No. 1-Society. The cause of termination is non observance of the Bye-Laws covered by Clause 2(17). Clause 3(2) carves out a specific exception where there is breach of Clause 2(17), in which event, the condition of acquiring the lessee's interest upon payment of compensation upon termination is not applicable. The notice called upon the Respondent Nos. 2 to 4 to remedy the situation within 2 weeks failing which the notice to be treated as 3 calendar months notice upon the expiry of which the lease of the said plot and the membership of the Society to stand terminated. By the said notice, Respondent Nos. 2 to 4 were called upon to handover quiet, vacant and peaceful possession of suit plot to the lessor. Digressing a little, to support the earlier discussion about demise of plot of land, the said notice makes it that the Respondent No. 1-Society also construed the lease as demise of only the plot and not the superstructure which was standing on....
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....n of condition by opponent no 4 itself would not give right to the disputant society to terminate the lease. Moreover, one thing which I have noted that, in that event when the disputant society claiming possession of plot bearing no 57 it includes the entire structure of building and other society members have not been made parties to the present dispute. In that event, when the disputant society claiming possession of the entire plot then all members became necessary and proper parties to the present dispute. Opponent No. 1 and 2 are not representing all the members of the disputant society. Therefore the relief claimed by the disputant regarding recovery of vacant possession of plot no 57 is not maintainable and finally the disputant society is not entitled for its. Hence I answer issue no 3 in the negative." 36. By holding that there is no violation by the original lessees which will give right to the Respondent No. 1-Society to terminate the lease, the trial Court held that the lease subsists. If the lease subsists, the consequence is that the Lessee continues to remain the owner of the superstructure. Even accepting the submission of Mr. Anturkar, the terms of the contract....
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.... the Court lacks the inherent jurisdiction over the subject matter, the decree would be a nullity. 41. It will be profitable to refer to Section 91 of the Maharashtra Co- operative Societies Act, 1960 (MCS Act), which reads thus: 91. Disputes (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, elections of the committee or its officers conduct of general meetings, management or business of a society shall be referred by any of the parties to the dispute, or by a federal society to which the society is affiliated or by a creditor of the society, to the co-operative Court if both the parties thereto are one or other of the following:-- (a) a society, its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the society, or the Liquidator of the society or the official Assignee of a deregistered society. (b) a member, past member of a person claiming through a member, past member of a deceased member of society, o....
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....on 91 of the MCS Act. As far as the parties to the lis is concerned, the bye-laws of Respondent No. 1 makes it clear that for lease to be executed in respect of the plot owned by the Society, the person is required to be member of the Society and the Petitioner claims through the member. The parties to the lis are therefore of the class enumerated in Section 91 of MCS Act. 43. As far as subject matter of the Dispute is concerned, Section 91 encompasses five kinds of disputes: (a) Dispute touching the Constitution of the Society. (b) Dispute touching the elections of the committee or its officers. (c) Dispute touching the conduct of general meetings of the Society. (d) Dispute touching the management of the Society and (e) Dispute touching the business of the Society. 44. The jurisdictional paragraph in the Dispute is that the Respondent No. 2 and 3 are members of the Respondent No. 1 and the business of the Respondent No. 1 as per its bye-laws is to lease and develop plots of land and the suit property was leased as members of the Respondent No. 1 and the Dispute is filed inter alia seeking recovery of possession of Petitioner'....
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.... business of the bank, and the appeal should fail on this short ground. [Emphasis supplied] 47. The relief sought in the Dispute was recovery of possession of Plot No. 57 and the Petitioner's premises on the ground that that the lease has been terminated for breach of the Bye-laws and therefore the property yields to the the Respondent No. 1-Society in accordance with the lease agreement. The business of the Society as evident from the object of the Society is to carry on the trade of building and of buying, selling, hiring, letting and developing land and for achieving the object to purchase, hold, rent, lease, sub-lease and deal with lands and houses of any tenures. That being the business of the Society, the dispute relating to the recovery of the asset of the Society albeit after termination, is a dispute touching the business of the Society. 48. It is well settled that the Co-operative Court established under the MCS Act is a substitute for Civil Court and the jurisdiction of the Co- operative Court will not go beyond the jurisdiction vested in the Civil Court. The Respondent No. 1 has come with a case of violation by a member of the bye-laws adopted by the ....