VARSHA VILLAS DHAGE Vs. ACKLIKUTTY THOMAS

JUDGEMENT

(1.) The appeal arises out of the judgment and award passed by the learned trial Judge, Co-operative Court No. II, Bombay, in the dispute filed by the respondent No. 1 to the effect that the appellant should deliver vacant possession of the disputed flat to the respondent No. 1 and the Society was directed to pay costs of the dispute to the respondent No. 1.

(2.) The facts which give rise to the judgment and award are briefly stated as follows : The respondent No. 1 came before the Court with the contention that the respondent No. 2 is a Co-operative Housing Society registered under the Maharashtra Co-operative Societies Act, which has been found, to have been registered on 27-9-1974 and she is the member of the said Society fpr the purpose of a flat which was allotted to her bearing No. C-32 in the Scheme No. 1. The facts disclosed during the proceedings, show that one Mr. Narvekar organised the schemes Nos. 1 and 2 for providing Housing Complex to the Municipal Employees. After regi tration, however, he ceased to have anything to do with the Society. The respondent No. 1 was a member for a flat in the Scheme No. 1. The scheme required 20% of the cost of the flat as contribution by member and 80% was to be secured from Municipal Corporation as loan for individual member. She joined the Society in March, 1974 by initial payment of Rs. 3,351/-. She was informed by the Society, by inviting the disputant of a meeting on 19-10-1974 that, she had been allotted a flat of 590 sq, ft. at a total cost of Rs. 36,580/- at the rate of Rs. 62/- per sq. ft. of which Rs. 3,100/- were received towards the cost. Balance Rs. 4,416/- out of her contribution was to be paid. She paid the said amount as and when demanded. Her total contribution by the end of October, 1974 was Rs. 6,100/-. However, on or about 8-11-1974, the Secretary of the Society one Mr. Dalvi informed her that the area of the flat allotted to her was 634 sq. ft. and the cost was Rs. 41,910/- at the rate of Rs. 66/- per sq ft. So her contribution was Rs. 8382/-instead of Rs. 7316/-, whereas she had paid and the Society had received from her Rs. 6,100/- and balance of Rs. 2,282/- remained. The Society in its general body meeting on 30-11-1975 allotted the flat No. 32 on the 4th floor in 'C' Block covering an area of 760 sq. ft. Allottees were present in the said meeting. The disputant's husband on 20-3-1976 tendered the balance of Rs. 1,650/- payable to the Society towards 20% contribution which was duly received by Mr. Baji, the Chairman of the Society. However, the Society did not debit the said cheque in the bank in her husband's account. When the husband of the disputant met the Organiser Mr. Narvekar on 6th April, 1976 he informed him that the disputant's membership bad been cancelled. Suspecting foul play, he sent four cheques of Rs. 1,650/- to the Chairman Mr. G. V. Baji, President Shri G. V. Mhatre, Chief Organiser L. R. Narvekar and Secretary Shri T. Z. Dalvi. The cheques were sent under covering letter stating the above facts. The Chairman and the President received the communications and cheques, while Secretary and Chief Organiser refused to accept the communication. However, no reply was sent to the disputant by the Society or it's office bearers with regards to the acknowledgement of the letter and the cheque. No acknowledgement of the receipt of the amount was also sent to her. She was informed that the other members of the Society were offered occupation of the ready flats on 16-5-1976 and the flat in dispute was handed over to somebody else which was subsequently found from the written statement of the Society to the appellant. The Society has no right to reconsider or handover possession of the said flat to anybody else. Though the disputant had tendered all the dues and was willing to make payments whatever in balance, she is entitled for possession and injunction against them from allotting or handing over or parting with possession other than to the disputant. So the dispute was filed for a declaration that the flat in dispute was allotted to her and she was entitled for possession thereof and for an order of possession. On 3-5-1976, injunction was also obtained testraining the Society from parting with possession of the flat. By subsequent amendment which was necessitated on account of the facts disclosed by the Society in it's written statement, the disputant further alleged that the Society manipulated it's record, particulaly minutes of the general body meeting that, the flat in question was not allotted to the disputant. The word 'vacant' was shown agaiost the said flat. Nevertheless, subsequently it was recorded in the minute books of the general body meeting that the flat was allotted to the disputant. The rights were created on allotment in her favour in the said flat and without following the principles of natural justice, she was out before cancellation of the allotment. There could not a reallotment to others without termination of allotment after giving proper notice. It was recorded by the Society, falsely, in the meeting held in June, 1976 that, this very flat was allotted to the appellant herein, who was joined as opponent No 2. However, the appellant was a member of 2nd scheme and she had not paid the entire amount due, to enable her for allotment or possession of the said flat. The disputant was not served with the notice of the Special General Meeting alleged to have been held in June, 1976, not it was sent to ail other members.

(3.) Therefore, transactions deliberated in the said meeting were not binding on her and others. She has not been expelled as required under the provisions of the M. C. S. Act. Therefore, she questioned the allotment in favour ot the appellant as bad in law, illegal, unjust and improper and sought for setting aside the same, in the proceedings book of the general body meeting held on 30-11-1973 there is an insertion made subsequently in a different ink purporting to record tnat, the membership of the disputant as well allotment of the flat to the disputant were cancelled and the words 'and allotment" are made in different ink clearly indicaung that the same were inserted subsequently. The Society could not have directed the Contractors or Builders to hand over possession of any flat to any member without their having been clearing necessary dues, in respect of the flat and without proper allotment to members concerned. The Managing Committee claims to have held in April, 1976 that they had directed the Contractors to hand over possession to the appellant which was premature order and direction and was illegal They have committed fraud and they acted in collusion with the appellant. Even in the absence of occupation certificate being obtained by the Society, none could have occupied the flats including the flat No. 32 by the appellant. The injunction was duly served not to part with possession. The Socicty did not disclose anything that they had given possession to the appellant. The notice was served on 12-5-1976, on the Society and they flied the written statement on 30-6-1976. However, if actually they had handed over possession to the appellant, it could have been revealed to the Court, when the first date of hearing was 20-5-1976 and the allotment allegedly made only in June, 1875. They were really liable for prosecution under Section 147 of the M. C. S. Act for this manipulation of the record. Therefore, the additional prayers were made by amendment of the plaint that, it should be declared that the purported allotment of the suit flat in favour of the appellant at the special general body meeung allegadly held in June, 1976, was bad in law and hot binding on the diputant or on the Society, and it should be declared as illegal, as it was without notice to the disputant and other deliberations taken thereof were not binding, particularly, regarding allotment in favour of the appellant in the said meeting, it should be held that the disputant continues to hold the allotment of the suit flat and there was no observation of provisions of law for cancellation of allotment or expulsion of the disputant. She also asked for compensation at the rate of Rs. 100/- per month for the period the appellant is in occupation, The Society riled it's written statement, first on 30th June, 1976. According to the Society the disputant bad become the member of the Society in March, 1974 and on 11-3-1974 she paid Re. 1/-as entrance fee, Rs. 250/- for share money and Rs. 3100/- towards the part payment of 20% of cost. It claimed that, it had sent circular of the meeting which was to be held on 19th October, 1974, informing her that the Carpet area and the cost of the block to be constructed and 20% cost amounting to Rs, 4216/- as balance due and payable by her. It has denied the payment of this amount by the disputant. According to them the disputant was persistent defaulter in payment of her contribution towards 20% of the cost of construction. The payment was part payment. Balance was payable within one month from her joining the Society. That was on or before 10th April, 1974. She had paid on repeated request and warning Rs. 3,000/- on 3-8-1974, Rs. 1,000/- on 3-6-1975 and Rs. 1,282/- on 26th April, 1975. As the disputant had not paid the full amount, the Chief Organiser of the Society had to advance from his own account the amount of the outstanding balance payable by the disputant to secure the loan from the Corporation. The application for loan was made on 19-1-1975 after adjusting the outstanding balance payable by the disputant from the account of the Chief Orgaciser of the Society. The loan was sanctioned on 15th April, 1975. The Secretary of the Society by letter, communicated to the disputant the carpet area of the flats that were being constructed and cost of the flat and contribution payable in respect thereof. However, he was not authorised to allot the flat and he had not allotted. The Society, therefore, denied the allotment made in favour of the disputant on 30-11-1985. They claimed that there was only consideration for drawing of lots of allotment of blccks where the disputant was present ia the meeting dated 30-11-1975. She had asked for 4 days time to clear up the balance and for inclusion of her name in the draw of lots. She was given time with a condition that only on payment within 4 days from the date of the meeting she would be entitled for allotment, in the event of her failure, the said flat would be allotted to the members of the Unit No. 2. It is claimed that, she was provisionally allotted subject to the conditions of payment of outstanding balance within 4 days, from 30-11-1975. She had not signed the record of alletment. Therefore, they claimed that the block was allotted to the appellant as per the authorhrity to the Managing Committee by the general body and she was in occupation when the written statement was filed. They denied to have received the cheque on 20-3-1976 towards the balance. According to them, the husband of the disputant had tendered to the Chairman of the Society on 12-3-1976, by his cheque dated 20-3-1976 for Rs. 1,650/-, but since the allotment of the block to her was cancelled, the cheque was not credited to the account of the Society. The Society claimed that the receipts of remaining payments were already issued. The Society claimed that this very suit premises were allotted to the appellant on 10th December, 1975 and she was in occupation from 2-5-1976, that is to say from one day earlier tp the granting of injunction and filing of the dispute by the respondent No. 1, The Society has claimed that, it has a right to allot and hand over possession to anyone of their choice, subject to the Bye-laws and they had followed the Bye-laws. Therefore, they denied the right of possession and such declaration as stated above. The appellant also filed separate written statement on 14-10-77. According to the appellant this suit flat was allotted to her at the special general meeting held in June, 1976. She denied that she was a member for second scheme and denied that she had not paid the entire amount due. According to her the disputant was aware of her possession prior to the filing of the dispute. Therefore, she claimed that the suit be dismissed, as malacious one.