B D JOSHI Vs. SHASHIBALA MADHUSUDAN SHARMA

JUDGEMENT

(1.) THE appeal arises out of the judgment and award passed by the learned Judge of the Co-operative Court Ne. 1, Bombay dated 29-3-1985. The learned Judge in the dispute fried by the respondent No. 1 passed the order that the opponents i. e. the appellant and the respondent No. 2, Housing Society should hand over vacant possession of the suit premises bearing Flat No. A-l on the 3rd floor of the society's building at Mulund to the disputant within one month from the date of the order. The Society and the appellant were also directed to make the payment to the plaintiff of a sum of Rs. 45. 800/- in total for the period from July, 1975 to March, 1985 out of which Rs. 11,700/- be paid by the Society and Rs. 35,100/- by the appellant herein and that amount is payable at the rate of Rs. 100/- by the Society and Rs. 300/- by the appellant per month till delivery of possession by them to the plaintiff-respondent no. 1 herein, in addition to the costs of the dispute. To understand the proper perspective of the issues involved in the matter fat decision I shall refer to the facts in dispute in brief as follows : the respondent No. 1 Mrs. Shashibala Madusudan Sharma filed the dispute against Om Mayuresh Co-operative Housing Society Ltd. , only at first instance in the month of July, 1976, but somewhere in March, 1979 by order of amendment, added the appellant as opponent No. 2 in the dispute. Her case before the Court was that she is a member of the Society in respect of Flat No. A-l admeasuring 716 sq. ft. located on 3rd floor of the building. The Society by it's letter dated 8th October, 1973 asked her to send her contribution equal to 20% of the cost of flat which was then admitted 610 sq. ft. The cost was estimated at the rate of Rs. 60/- per sq. ft. The society demanded Rs. 7320/ -. The disputant claims to have paid this amount along with the amount of shares and entrance fee. Subsequently the Society informed her that the cost of the flat had increased to Rs. 85/- per sq. ft. and the flat to be allotted to her was of 716 sq. ft. area. Therefore, 20% of the cost of construction would be her contribution and it would be Rs. 12,745/ -. So it demanded further Rs. 3,295/- from her, by letter dated 20-5-l975. She claimed to have paid the amount on 29-5-1975. The balance of 80% of the cost of the flat was received as a loan from Municipal Corporation of Greater bombay. At the Annual General Body Meeting of the Society held on 28-6-1975 it was decided to give possession to the members of the flats on 1-7-1975. the Secretary of the Society was, however, reluctant to hand over possession to the disputant inspite of her requests. She claims then that she had contacted one P. K. Desai the Hon. Treasurer of the Society and he had given her possession in the presence of one of the members of the managing Committee by name G. R. Patkar. Mr. Desai at that time requested for one set of keys as some minor work had remained to be done by the Contractor. She handed over one set of keys to him, who had promised to return the same within a week's time, the Society carried out the work within a short time thereafter. The society thereafter removed the disputant's lock with the set of the key in their possession and fixed new Aldrop at the top of the door and put up their own lock. The set of keys were also not returned to the disputant nor was the lock put up by them removed from the Aldrop. The Society, therefore, alleged to have retained possession of the disputant's flat illegally. In the month of August, 1975 the disputant left the services of the Bombay Munioipal Corporation. On 30-9-1975 the Society at their general body meeting passed a resolution that the disputant be called upon to pay security deposit of Rs. 5,000/- before obtaining possession of the Sat as she was not in the service of the Bombay Municipal Corporation. Mr. G. P. Patkar, who was a member of the Managing Committee had similarly resigned from the services of the Corporation oarlier, but no sueh security deposit was demanded from him. The bye-laws of the Society do not restrict membership to the Municipal employees only. Therefore, the Society was not entitled to demand security deposit, on such ground. On 4-10-1976 the Society again called upon the disputant to pay a sum of Rs. 5,000/- as was resolved by the genral Body earlier. The disputant was called upon to hand over one set of keys in her possession to a committee consisting of 3 men mentioned in the letter of to the Hon. Secretary or Treasurer of the Society. She was assured of the return of the keys when she would actually occupy the flat. On 29-10-1975, the Society called upon the disputant to occupy her flat by paying security deposit of Rs. 5. 000/- within a period of 10 days from the receipt of the letter. She was threatened for an action in default of payment. She had, however, protested against the demand by her letter dated 5-11-1975 and she asked for the keys and removal of the lock so that she could occupy the flat. The Society alleged that she had already removed her own lock as well as the lock put up by the Society and kept the flat open and, therefore, the Society was compelled to lock the flat as a safety for giving possession. They demanded security deposit of Rs. 5,000/- under their letter dated 15-11-1975. She, therefore, alleged that the resolution for security deposit was illegal and she was entitled to have the possession of the flat without any payment. From July, 1975 onwards, she claims to have made the payment in respect of loan instalment, service charges, sinking fund. She had dispute about payment by cheque for March to June, 1976 which was not encashed by the Society. The cheque was sent under a letter dated 19-6-1976. She has sought a declaration that the resolution passed by the general body of the Society on 30-9-1975 demanding a security was illegal and discriminatory, so void and mala fide. It should be set aside. She was entitled for possession and for compensation or damages at the rate of Rs. 250/- per month for want of possession from July, 1975 onwards. For some family difficulties stated in her plaint she was not in a position to contact the society's office-bearers for a long time. She sought for an injunction against the Society restraining it from parting with possession as she apprehended that the Society may keep third party in possession. Subsequently it is amended with the contention that since the appellant was in possession of the flat, who claims to be a member of the Society she has joined her as a co-defendant and sought amendment of the plaint and the prayers in the dispute.

(2.) THE Society in reply to the injunction notice contended that the injunction order was served in the second week of July, 1976, but on the very date of the service of the order, the appellant was already in possession. The Society filed it's written statement in December, 1976. It has denied that the disputant was a member of the Society. According to the Society, she by her letter dated Nil addressed to the Commissioner Bombay Municipal Corporation and a copy endorsed to the opponent-Society, had requested the opponents to accept her resignation immediately. Accordingly, the society at it's general body meeting held on 25-4-1976 accepted her resignation or her membership and since then she has ceased to be the member of the respondent Society. According to the Society in it's general body meeting held on 28-6-1975 at which the disputant was also present, it was decided to hand over possession of the flats to the members on 1-7-1975. The disputant, however, did not the possession of her flat on 1-7-1975 as some internal minor work were to be carried out in her block. On 20-7-1975 the disputant took one set of keys from the Society for the purpose of inspection of the flat. She, however, did not return the said set of keys, but removed the loek of the Society and put up her own lock, preventing the contractor from carrying out the work in the flat. The Society in it's general body meeting held on 30-9-1975, discussed this conduct of the disputant vis-a. vis the Society. The Society learnt that the disputant was negotiating for the disposal of the flat either on leave and licence basis or for out right saigas she was not interested in the flat. Therefore, the Society in their intent decided in the general body meeting that the disputant should be called upon to return the duplicate set of keys of the flat which she had retained and she should pay the deposit of Rs. 5,000/- or give two personal sureties of the like amount. The disputant had then assured the general body that she would do the needful. She, however, did not keep her assurance and wrote a letter on 30-9-1975 informing the Society that she was unable to take possession before December, 1975. The Society again wrote a letter on 4-10-1975 requesting her to return the keys. But instead of -returning the keys she removed her lock without informing the Society and left the flat open therefore, the Society in order to safeguard their interest put their lock On the flat. She sent false letter dated 5-11-1975 to which the Society sent a reply on 15-11-1975. The disputant thereafter in the third week of February, 1976 arranged a meeting with the Deputy Municipal Commissioner of the bombay Municipal Corporation one Mr. Gulgule. At that meeting Hon. Secretary of the Society and the father of the disputant were present. Her father had then informed that he had financed the disputant for contributiea towards the construction cost, but his daughter was not then interested in the said flat and so she should dispose it off or the Society should arrange for the transfer of the same whereby she would get Rs. 5,000/- over and above her contribution and interest. The Hon. Secretary had, then informed them that it would be decided by the General Body, which he would appraise for discussion. In the last week of February, 1975, the Society received a photostat copy of the disputant's letter addressed to the Commissioner of the bombay Municipal Corporation regarding her inability to her membership Of the Society. The Society, therefore, requested the disputant to send a true copy to enable it to place it before the General Body of the Society. She accordingly forwarded a copy of her letter addressed to the Commissioner of B. M. C. with a request to accept her resignation immediately. The letter was considered by the General Body at their meeting held on 25-4-1976 aad the resignation of the disputant was accepted and her flat was allotted to a member on the waiting list one Mr. B. D. Joshi, the appellant herein, The disputant was informed of the decision accepting her resignation by the society by their letter dated 1-6-1976. So the Assistant Registrar of the co-operative Societies was also informed by letters dated 26-4-1976 and 14-6-1976. On 20-6-1976 the possession of the flat was given to this appellant The Society claims to have no knowledge as to when the disputant left the services of the B. M. C. They have, therefore, denied that they have passed the resolution calling upon her to pay the security deposit as she was not in service of the B. M. C. , as alleged. They have alleged that the members of the Society had learnt that the disputant was negotiating for disposal of the flat and was not ready to occupy the flat till December, 1975. The General Body of the Society decided to take Rs. 5,000/- as security or surety bond from two members of the like amount for the disputant. Therefore, it is said that the resolution was legal. They denied that this disputant has paid all the dues required as member's contribution of 20% of the cost and she was entitled for possession. According to the Society, the subsequent payments were not accepted from the disputant from March, 1976 because she had ceased to be the member of the Society. They have denied the claim for compensation or damages; of Rs. 250/- per month or any amount from July, 1975 onwards. Therefore, it is claimed that the dispute be dismissed with costs.

(3.) THE disputant alleged by amendment that the appellant was illegally and without proper authority, admitted to the membership of the Society and was illegally allotted the suit premises the appellant has no right, title and interest in respect of the flat and she was entitled to a decree or award against him. She further claimed damages and/or compensation from the opponents i. e. the Society and the appellant at the rate of Rs. 750/- per month till the delivery of possession of the premises. She asked from the appellant damages at this rate for unauthorised use and occupation from july, 1975 till she gets vacant possession.