GODREJ P. JOSHI Vs. M.V. BHATIA

JUDGEMENT

(1.) THESE two revision applications are by the original accused except accused No. 4 who is dead because they are aggrieved by the order passed by the learned Presidency Magistrate, Girgaum, Bombay on their preliminary objection. The preliminary objection, which was raised on behalf of the accused, was that a registered cooperative housing society was excluded from the operation of the provisions of Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963, hereinafter referred to as the 'Flats Act', as the word 'promoter' as defined in the said Act did not include a registered cooperative housing society. Complainant Bhatia, who is a purchaser of Flat No. 16 D on the 16th floor of the building known as 'Shanaz', Napean Sea Read, Bombay has filed a complaint against eight accused charging them with offences punishable under Sections 4, 5, 9, 10 read with Section 14 and 14(7)(2)(a) of the Flats Act, 1963 as well as under Sections 420 and 403 of the Indian Penal Code. Accused No. 1 was the Chief Promoter as well as the Chairman of the said Society; accused No. 2 was its Honorary Secretary; accused No. 3, an employee of M/s. Vegetable Vitamins Food Co. (Pvt.) Ltd., of which accused No. 1 was the managing director, was treasurer of the said Society. Accused No. 4 is sister of accused No. 1 and also a member of the managing committee. Accused No. 5 is wife of accuse No. 1 and is also a member of the managing committee of the Society. Accused Nos. 5 and 7 are also employees of the said Vegetable Vitamins Food Co. (Pvt.) Ltd. and are also members of the managing committee of the said Society. The complainant alleges that all the accused held shares in the Society but did not have any flats in their names. Accused No. 8 is the registered Society.

(2.) THE complaint of the complainant is that the accused have created a charge by way of mortgage on the land after execution of an agreement to sell the flat to the complainant, without his previous consent and thereby violated provisions of Section 9 of the Flats Act. Another charge is that the complainant is not made a member of the said Society although they represented to him in writing that they would do so. Yet another charge is that the accused have misappropriated the moneys paid by the complainant towards the cost of shares in payment of the mortgage and have not appropriated the moneys towards the share capital and in this way have committed an offence punishable under Section 5 of the said Flats Act. The last complaint is that the accused have neither entered into an agreement in accordance with Section 4 of the Flats Act nor have they annexed any document as specified in Rule 7.

(3.) THE point, therefore, that arises here for consideration is whether the word 'promoter' occurring in Section 2(c) of the said Flats Act will include or will not include a registered cooperative housing society.