G SWAMINATHAN Vs. SHIVRAM CO OPERATIVE HOUSING SOCIETY

JUDGEMENT

(1.) The petitioner is a former Chairman of the 1st respondent. Co-operative Housing Society. The petitioner has filed the present petition challenging the judgment and award of the Maharashtra Co-operative Appellate Court, Bombay, dated 31st December 1981 in Appeal No. 517 of 1980. The petitioner had filed an Arbitration Suit No. ABN/760 of 1972 before the Co-operative Court at Bombay to recover from the 1st respondent Society and others a sum of Rs. 20,000/- together with interest as stated therein. The said arbitration suit of the petitioner was decided by the Co-operative Court in favour of the petitioner and the 1st respondent Society was directed to pay the said amount to the petitioner. In appeal, however, the judgment and award of the Co-operative Court was set aside and the claim of the petitioner was dismissed with costs. The present writ petition challenges the decision of the Co-operative Appellate Court.

(2.) The 1st respondent Co-operative Housing Society owns a building now known as Shivram Sadan and originally known as "Prerana", situate at Antop Hill, Wadala (East), Bombay. Originally one Pareshkumar S. Jain had entered into an agreement for the purchase of the land on which the said building now stands, with the then owner of the land, and had proceeded to construct the said building thereon for the purpose of selling flats on ownership basis to various parties. He had collected various amounts from third parties to whom he had agreed to allot flats in the building. Thereafter the 1st respondent-society entered into an agreement with Pareshkumar Jain dated 26th December, 1966 whereunder the 1st respondent-society agreed to purchase the said land and the building under construction from Pareshkumar Jain on the terms and conditions mentioned in that agreement. Under the agreement Pareshkumar Jain was required to hand over possession of the building to the 1st respondent in the manner provided therein. A certain period was set out within which possession of the building floor wise was to be given to the 1st respondent. A list of flat-owners who had paid various amounts to Pareshkumar Jain for the purchase of flats in the said building was annexed to the said agreement showing the names of such purchasers and the amounts paid by each of them to Pareshkumar Jain. It was provided in the said agreement between the 1st respondent and Pareshkumar Jain that on or before 28th February 1967 the 1st respondent would pay a sum of Rs. 2 lacs to Pareshkumar Jain for the purpose of enabling Pareshkumar Jain to refund to the said purchasers the amounts paid by them to Jain. One such purchaser listed at Serial No. 9 in the said list annexed as Exhibit `C to the said agreement was Mrs. A. Chellamma, respondent No. 3 herein who was shown as having paid a sum of Rs. 15,500/- to Jain for the purchase of a flat. It seems that Jain did not refund the sum of Rs. 15,500/- to Mrs. Chellamma, and to some other persons with whom we are not concerned. No flat in the building was allotted to Mrs. Chellamma nor was the amount paid by her refunded to her. Ultimately she filed a complaint in the Court of the Chief Presidency Magistrate, Esplande, Bombay being Case No. 108/S of 1968 against Pareshkumar Jain, the petitioner and two other persons who were office bearers of the 1st respondent society. The accused No. 1 Pareshkumar Jain was charged under section 13 read with section 4 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 as also under section 13 read with section 10 of the Act, and under section 406 of the Indian Penal Code. Accused Nos. 2, 3, and 4 were charged under section 13 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 as also under section 406 of the Indian Penal Code read with section 109 of the Indian Penal Code. The 1st accused Pareshkumar Jain was convicted and sentenced to rigorous imprisonment for 12 months for the offence of criminal breach of trust and was also convicted under section 13 of the Maharashtra Ownership Flats Act, 1963 and sentenced to undergo rigorous imprisonment for 2 months. This sentence was passed on 4th December, 1968. Accused Nos. 2, 3 and 4 were acquitted in respect of the charges framed against them, but a notice was ordered to be issued against them asking them to show cause why they should not be prosecuted for fabricating false evidence under sections 193, 465, 467, 468 and 471 of the Indian Penal Code. A similar notice was also directed to be given to all other persons who had signed the Minutes of the meeting of the 1st respondent Co-operative Society alleged to have been held on 13th February, 1967. This notice was directed to be issued to them because the learned Presidency Magistrate in the course of recording evidence had found that the Minutes of a meeting of the Managing Committee alleged to have been held on 13th February, 1967, which recorded that all the flats in that building had been allotted to various parties mentioned therein, appeared to be fabricated.

(3.) After the judgment and order dated 4th December, 1968 and during the pendency of criminal prosecution against the petitioner and the other accused persons, a letter was addressed to Mrs. Chellamma on behalf of the 1st respondent society dated 27th May, 1969 expressing willingness of the 1st respondent society to allot a flat to her in the said building. By her advocates letter dated 28th May, 1969 addressed to the Advocate of the 1st respondent society, Mrs. Chellamma accepted the said offer. It seems that thereafter the petitioner, who was then the Chairman of the 1st respondent society, paid to Mrs. Chellamma the sum of Rs. 20,000/- in full and final satisfaction of all her claims against the 1st respondent society and Pareshkumar Jain, and obtained from her a receipt dated 20th June, 1969 to this effect. In the meanwhile Mrs. Chellamma had filed a suit in the City Civil Court at Bombay being Suit No. 7537 of 1967 against Pareshkumar Jain for the recovery of a sum of Rs. 20,000/- being the amount paid by her towards the purchase of a flat in the said building and obtained a decree against Pareshkumar Jain for the said amount. This decree had been obtained by her prior to the settlement of her claim. In the receipt dated 20th June, 1969, therefore, it has been mentioned that the decree passed in the City Civil Court Suit No. 7537 of 1967 against Pareshkumar Jain is satisfied by virtue of this payment of Rs. 20,000/- and that she has no claim left against the said Pareshkumar Jain or against the 1st respondent society.