WESTIN SANKALP DEVELOPERS Vs. AJAY SIKANDAR RANA

JUDGEMENT

(1.) This is the second case in as many weeks of dissenting members of a cooperative society holding up its re-development, though this re-development is approved by a vast majority of the general body. Mr Pachundkar urges the same point of law that has been raised and negatived repeatedly by this court. He claims that since his clients, Respondents Nos. 1 and 2, have not signed the development agreement, they are not bound by the arbitration clause and no relief in Section 9 can be made against them. The question is no longer res integra. It has not been res integra for many years. Every dissenting member of society after society constantly repeating the same jaded mantra again and again, totally unmindful of the law, is a practice that must now be deprecated in the strongest possible terms. This is now the very last time I will refrain from imposing severe costs. These are claims in the Commercial Division of this court and we are under the Commercial Courts Act, 2015. That Act amended the provision for costs in Section 35 of the Code of Civil Procedure, 1908. One of the factors to be borne in mind while awarding costs - which can be actual costs and even exemplary costs - is the frivolity of the defence and whether the party against whom costs are to be made has wasted the Court 's time. Every such untenable and unsustainable objection by a dissenting member is a colossal waste of judicial time. The next such matter will receive, first, an order of immediate eviction of the dissenting member (i.e., vacating that very day, or at best the next), and, second, an appropriately severe order of costs. That order will be made keeping in mind the costs incurred by the Society, the loss to other society members, and the actual loss suffered by the developer on account of the delay occasioned by such members. Consequently, the order of costs is unlikely to be moderate or modest. This is, in my view, only fitting, for there is nothing moderate or modest about the opposition by these dissenting members. They behave as if they are not bound by orders of this Court or by the law. They are.

(2.) An identical question came before me only a few days ago in Chirag Infra Projects Pvt Ltd v Vijay Jwala Coop Hsg Soc Ltd and Anr.1 The entire case law on the subject has been considered there: in particular the decisions of a Division Bench of this Court in Girish Mulchand Mehta and Ors v Mahesh S Mehta and Ors.; 2 the decision of a learned Single Judge of this Court (the Hon 'ble Mr Justice KK Tated) in Aditya Developers v Nirmal Anand Coop Hsg Soc Ltd & Ors.;3 and the decision in Sarthak Developers v Bank of India AmrutTara Staff CHSL. 4

(3.) I refuse to waste time by re-visiting the same law again and again. I will simply quote the relevant portions of my decision in Chirag Infra Projects Pvt Ltd to set the stage for a brief factual discussion.