MISTRY PARK CHS LTD Vs. BHARAT PREM SHIVDASANI

JUDGEMENT

(1.) Petitioner, a Co-operative Housing Society, is aggrieved by order dtd. 18/10/2021 passed by the Deputy Registrar of Co-operative Societies declaring that Respondents No.1 and 2 have become its members and directing it to record their names in the Membership Register, Share Certificate etc. Aggrieved by the decision of the Deputy Registrar, Petitioner-Society filed Revision before the Joint Registrar of Co-operative Societies, which is rejected by order dtd. 22/3/2022 upholding the decision of the Deputy Registrar. Petitioner-Society is accordingly challenging the decisions of the Deputy Registrar and the Divisional Joint Registrar in the present Petition.

(2.) It is Petitioner-Society's case that on 8/3/1966, lessors of the plot executed a lease in favour of the Society and one of the conditions for lease in Clause-2(f) was not to use the building for any purpose other than as private residences and further not to use motor garages for any purpose other than for garaging the motor cars. The Developer-Mistry Construction Company constructed two buildings consisting of residential flats on upper floor and garages on the ground floor. One Dr. Prem Kalyandas Shivdasani purchased garage 'A' from the Developer. He does not own any residential flat in the building. The occupiers of the building have formed Petitioner Co-operative Housing Society and have adopted Bye-laws, which are registered with the Registrar on 18/2/1965. Bye-law No.6 limits admission of membership to the number of tenements or plots available for allotment. It is Petitioner-Society's case that only a flat owner or plot owner can become member of the Society. Under Clause-7(a), there is a provision for admission of nominal member, who does not enjoy any right of membership or receive any advantage or benefit of dividend. Dr. Prem Kalyandas Shivdasani was admitted as a nominal member of the Society.

(3.) Dr. Prem Kalyandas Shivdasani was using the garage for running his clinic, which according to the Society is not permissible in law. He expired in the year 1992, leaving behind his wife Nirmala and two sons, Dr. Bharat and Dr. Haresh. Smt. Nirmala Prem Shivdasani held a nomination from her husband and was brought on record as a nominal member. Smt. Nirmala Shivdasani expired on 9/9/2018. On her death, Respondents No.1 and 2 made an application on 10/10/2019 stating that the mother had nominated them to hold 60% (Dr. Bharat) and 40% (Dr. Haresh) shares in the garage. They requested the Society to add them as nominal members by submitting applications in the prescribed format. On 28/11/2020, Respondents No.1 submitted an application for issuance of Share Certificate/Sinking Fund Certificate.