Thursday 13 September 2012

Receipt Issued By Gas Company is a Public Document

Receipts for gas connection marked as Exhibits D­32 and D­33 in evidence. Receipt No. 431443 issued by Burshane Ideal Gas storage and distribution company of India Ltd. is dated 22.05.1969. The document is issued by a public corporation. It may be taken to be a public document. The slip produced by the defendants is a carbon copy made out at the time the document was executed. It shows the receipt of Burshane Gas Cylinder for which a deposit of Rs.70/­ is made. The carbon copy of the slip is the one handed over to the defendants and produced from their custody. The original document would be with the relevant department of the public corporation. The document is more than 30 years old at the time of its production. It carries a presumption of correctness of the handwriting as

well as the signature thereon.
IN THE HIGH COURT OF High Court Of BOMBAY
Santacruz Prakash Co­op. Hsg. Society Ltd. Vs. Smt. Rehmani Begum & Ors.

CORAM: MRS. ROSHAN DALVI, J.
Dated : 9 APRIL, 2012.
Citation : 2012 (5) MH.L.J. 129
JUDGMENT

1.Maharashtra Co­operative Societies Act, 1960 (MCSA) on 27.09.1969 as a

tenants partnership society under Rule 10(1)(5)(b) of the Maharashtra Co­

operative Societies Rules, 1961 (MCSR).

The plaintiff is a co­operative society registered under the

2.

Construction Company constructed the plaintiff’s society building having 11

flats and 2 garages in 1966. The builders sold the flats on ownership basis

to the flat purchasers who occupied them after the completion certificate

was issued by the Mumbai Municipal Corporation (MMC) on 19.11.1966.

The flat purchasers formed a co­operative society under Section 10 of the

Maharashtra Ownership Flats (Regulations of the Promotion of

Construction, Sale, Management and Transfer) Act, 1963 (MOFA). It is the

It is the plaintiff’s case that one M/s. Jhangiani Gurbuxani

(2) S 260/79

plaintiff’s case that on the date of registration of the society 12 persons

holding 11 flats and 1 garage became members of the plaintiff’s society. It is

plaintiff’s case that all the purchasers entered into separate agreements with

the builders which the plaintiff relied upon.

3.

Building one Sitabai Shewaram was shown as the purchaser from the

aforesaid builders. She purchased 2 flats of 2 rooms and one kitchen with

an area of 500 sq. ft. It is the plaintiff’s case that Sitabai occupied the flats

until November, 1969 having taken possession of it from the builders. She

was the first person to occupy the suit flat.

In respect of the suit flat being Flat No. 9 on 2nd floor of Prakash

4.

constructed on the land taken from the owners of the land by the builders

on free hold basis. A conveyance was executed on 17th June, 1972 by the

builders’ firm as owners in favour of the society. It conveyed to the society

the land with the building consisting of 11 flats and 2 garages and open

space described in the schedule thereof. There are 2 schedules to the

conveyance. The first schedule describes the building structure on the plot

of land conveyed to the society. The second schedule shows the names of

the members. Sitabai is shown at serial No.9 having paid Rs.30,000/­ as

contribution towards flat and garages. That is however the flat purchased

by her from the builders on ownership basis. Hence that amount is

consideration paid by her to the builders pursuant to which she came into

possession and occupation of the suit flat.

It is also the case of the plaintiff’s society that the building was

5.

by Sitabai she was alloted the user of the suit premises as member of the

plaintiff’s society.

It is the case of the plaintiff that consequent upon the purchase

(3) S 260/79

6.

with possession of the suit premises in favour of the defendants in

November, 1969 without the permission of the society and the defendants

have been inducted in the suit premises illegally and unauthorizedly since

then without the permission of the plaintiff’s society. It is the plaintiff’s case

that the Sitabai was not entitled to part with possession of the premises in

favour of the defendants under bye­law 71D and Regulation 4 of Form­A of

the model bye­laws adopted by the plaintiff as the bye­laws of the society

without the permission of the plaintiff as also the Registrar of the society.

The plaintiff called upon Sitabai to remedy to breach. She failed to comply.

The plaintiff claimed that Sitabai was bound to pay charges to them at the

rate of Rs.125/­ per month by way of municipal taxes and outgoings which

are paid until 31st January, 1971. Sitabai failed to pay thereafter. Hence the

plaintiff terminated her co­partnership tenancy by the notice of termination

dated 28th January, 1972 and expelled her from the membership of the

society under bye­law 12(1)(g).

It is the further case of the plaintiff that Sitabai illegally parted

7.

Sitabai and the defendants under the dispute being an Arbitration case filed

by the plaintiff on 10th January, 1973 in the Co­operative Court under

Sections 91­96 of the MCSA. The defendants challenged the jurisdiction of

the Co­operative Court since they were not members of the society and the

dispute was not between the society and its members. An award came to be

passed but was set aside by the Appellate Curt on the ground of lack of the

inherent jurisdiction of the Co­operative Court. Writ Petition challenging

that Judgment has been dismissed and hence this Suit is filed for recovery of

possession from the defendants as trespassers.

The plaintiff sued for recovery of possession of the suit flat from

(4) S 260/79

8.

the suit premises to them for consideration of Rs.30,000/­ paid in cash

without any written agreement. The defendants were put in possession of

the suit flat in or before May, 1969 and not in November, 1969 as alleged by

the plaintiff.

The essential case of the defendants is that Sitabai transferred

9.

came into the suit premises prior to the registration of the plaintiffs’ society

but yet they were wrongly not shown as members and Sitabai who had

already sold and transferred the suit premises for consideration to the

defendants was shown as the member. The defendants contend that since

the original defendants came into the suit premises prior to the registration

of the society but were not accepted as members, the society could not apply

the provisions of bye­law 71D or Regulation 4 of Form­A against them. Bye­

laws could have been adopted by the society only after the registration of

the society and is, therefore, not applicable to the case of the defendants.

It is the case of the defendants that the original defendants

10.

framed and answered as follows:

ISSUES
Whether Smt. Sitabai Shewaram is a necessary No.
party to the Suit as alleged in para 1 of the written
statement ?

1.

Based upon the aforesaid pleadings, the following issues were

2.

Whether the plaintiffs are tenant Co­partnership Yes.
type of Housing Society as alleged in para 1 of the
plaint.

3.

Whether Smt. Sitabai Shewaram parted with No.
possession of suit premises in November, 1969 as
alleged in para 6 of the plaint.

4.

Whether the plaintiffs prove that the defendants No.

(5) S 260/79

were bound to obtain permission under 71D of the
Bye Laws of the plaintiff and also by virtue of
Regulation 4 of Form A of the Bye Laws of the
society.

5.

Whether the defendants prove that the aforesaid Yes.
Bye Laws are not applicable to the defendants as
the defendants have purchased the property before
the said Bye Laws have come into force.

6.

Whether the plaintiffs had directly or indirectly Not shown, but
recognised the defendant No.1 as a person who need not be
had agreed to purchase the suit flat from Smt. answered.
Sitabai and as a person who had succeeded to the
rights of the said Smt. Sitabai as alleged in para 5
of the written statement.

7.

Whether the defendants are trespassers as alleged No.
in para 7 of the plaint.

8.

Whether the plaintiffs expelled Smt. Sitabai Not required to
Shewaram from membership of plaintiffs as alleged be answered.
in para 11 of the plaint.

9.

Whether the plaintiffs are entitled to obtain No.
possession of suit premises from the defendants as
alleged in para 17 of the plaint.

10. What order ?

11. What decree ?

As per final order.

As per final order.

ISSUE NO.1 :

One Sitabai Shewaram has admittedly purchased the suit flat

11.

from the builders and developers under an agreement of flat purchase

executed by her. This purchase was prior to the plaintiff­society being

registered and prior to the society adopting the bye­laws. Sitabai is stated to

have put the original defendants in possession of the suit premises. This suit

(6) S 260/79

is for recovery of possession from the parties inducted by Sitabai. The

original defendant and the present defendants would alone contest the suit.

Sitabai has never sought to contest the rights of the plaintiff­society. Hence

Sitabai is not a necessary party to the suit. Hence Issue No.1 is answered in

the negative.

ISSUE NO. 2 :

The plaintiff claims that they are tenants co­partnership type of

12.

housing society. The bye­laws of the plaintiff­society adopted by the

members of the society show that it is flat owners co­operative housing

society limited. Bye­laws also make a reference to Tenants in Chapter XX

under Rules 71 to 74. The society has to allot the tenements after its

registration and after it acquired title of the land and the building of the

society to the persons who subscribed to or offered to subscribe to the shares

of the society of tenants under Bye­law 71. There is no real dispute and

contest on this aspect, the contest being on when the society came into

existence and when the bye­laws would constitute a contract between the

society and its members. Hence the plaintiff­society may be taken to be a

tenants co­partnership society. Consequently Issue No.2 is answered in the

affirmative.

ISSUE NO. 3 :

The plaintiff­society has claimed and deposed that Sitabai

13.

Shewaram parted with possession of the suit flat No.9 in the plaintiff society

holding in November, 1969. This is a bare statement, left wholly

unsubscribed.

14.

As against this, the essential case of the defendants is that

(7) S 260/79

Sitabai transferred the suit premises to them for consideration of Rs.

30,000/­ paid in cash without any written agreement. The defendants were

put in possession of the suit flat by Sitabai in or before May, 1969 and not in

November, 1969 as alleged by the plaintiff. The defendants have relied

upon a number of documents to prove their possession. The plaintiff has not

disputed the defendants’ possession. The plaint itself shows that the

defendants are in possession albeit unauthorizedly and illegally. The

defendants must, therefore, show that they are in authorized possession, use

and occupation of the suit flat.

15.

receipts for gas connection marked as Exhibits D­32 and D­33 in evidence.

Receipt No. 431443 issued by Burshane Ideal Gas storage and distribution

company of India Ltd. is dated 22.05.1969. The document is issued by a

public corporation. It may be taken to be a public document. The slip

produced by the defendants is a carbon copy made out at the time the

document was executed. It shows the receipt of Burshane Gas Cylinder for

which a deposit of Rs.70/­ is made. The carbon copy of the slip is the one

handed over to the defendants and produced from their custody. The

original document would be with the relevant department of the public

corporation. The document is more than 30 years old at the time of its

production. It carries a presumption of correctness of the handwriting as

well as the signature thereon. The date of the document is most material. It

is issued in the name of the original defendant No.1. If defendant No.1 was

not put in possession prior to that date such a document could not have

been issued.

16. memo bearing No. 2482 of Cambata Industries Pvt. Ltd. for Rs. 226.41 made

The other document relied upon by the defendant is a bill/cash

(8) S 260/79

in the name of original defendant No.1. It shows her consumer number. It

shows Ideal Gas Service as the sub­agent. It is the private document. It is

required to be proved by direct oral evidence since it does not carry any

presumption of its correctness as a public document. The defendant has

sought to prove it through the evidence of an independent witness who is a

partner of one M/s. Universal Gas Co. who are the agents of Burshane Gas

for supply of gas cylinders. The witness has deposed that the earlier agents

were Cambata Industries Pvt. Ltd. and their sub­agents were M/s. Ideal Gas

Service. Ideal Gas Service closed down and their customers were

transferred by M/s. Bharat Petroleum Corporation to the firm of deponent.

The witness has identified the consumer number belonging to original

defendant No.1. She has identified the flat as the suit premises and she has

testified of the correctness of the service voucher No. 431443 of Burshane

Gas issued on 22.05.1969. There is no cross­examination to challenge this

evidence. Hence the plaintiff has failed to prove the specific positive case

made out by it and such case is disproved by the documentary evidence led

by the defendants. Hence Issue No.3 is answered in the negative.

ISSUE NOS. 4 & 5 :

The plaintiff­society is the tenancy partnership society and

17.

hence under Rule 10(1)(5)(b) it holds the land and building on free hold

basis as conveyed to it under the Conveyance dated 17.06.1982. The society

can allot flats to the members only after it is registered as such tenants

partnership housing society and after it acquires title itself. The registration

certificate of the society is dated 27.09.1969.

18.

was registered on 27.09.1969. It adopted bye­laws thereafter. The suit

property was conveyed to the society on 17th June, 1972. The society

The admitted facts between the parties show that the society

(9) S 260/79

became the owner of the suit premises only on and from date of conveyance

and could exercise rights of ownership only since then.

19.

purchased flats and who were in possession at the relevant time. The

members initially purchased flats from the aforesaid builders as set out in

para 2 of the plaint itself. If any member has sold any flat prior to society

being formed and registered and prior to the conveyance in favour of society,

the society cannot allot any flat in the society to such person as its member.

The society must then allot the flat to the transferee of such member who

would then be the purchaser of such flat and in possession thereof. It is only

from and after the registration of the society and the adoption of the bye­

laws that the bye­laws would constitute a contract between its society and

its members and the society as well as members would be governed by the

bye­laws. Hence it is only thereafter that that the aforesaid bye­laws could

be made applicable to the then members of the society.

The society has to allot flats to those persons who had

20.

into possession of the suit premises in or before May, 1969 and consequently

were in possession on the date the society was registered.

The aforesaid evidence shows that the original defendants came

21.

Whoever be those 10 members, the registration of the society would enure

for the benefit of all the persons in possession of the society premises at the

relevant time. Once the defendants’ possession and occupation of the suit

premises is seen on the date of the registration, the plaintiff­society must

accept them as members and the defendants cannot be taken to be

trespassers. Such members need not have taken any permission of the

plaintiff­society for transfer of the premises made to them as the society was

Minimum 10 members are required to register the society.

(10) S 260/79

not in existence as a legal entity until it was registered. Hence the original

defendants should have been made members of the society but were not

made members. Their transferor who had already transferred their right,

title and interest before the society itself was formed and registered was

sought to be shown as the member. The plaintiff society, however, had

refused to accept the original defendants as members on the premise that

the original defendants had not obtained the society’s permission for such

transfer.

22.

the original defendant or the present defendants. They would have applied

to the original defendants and the present defendants only if they were

accepted as members of the plaintiff­society. It is in this light that the Bye­

law 71D and Regulation 4 of Form­A are required to be seen. They run

thus :

Bye­law 71D.
A member to whom a tenement is allotted shall
occupy it himself and shall not assign, underlet, vacate or part with
the possession of the tenement or any part thereof without the
previous consent in writing of the Managing Committee.

Regulation 4 (Form A). No tenant shall assign, underlet, vacate or
part with the possession of the tenement or any part thereof without
the previous consent in writing of the Society.

It may be mentioned that the society can allot the tenements only after its

registration. Hence it must allot the tenement to such person who has the

legal right by purchase from the developers or the previous owners on the

date of its registration. Therefore, such person, who becomes a member

under its bye­laws, is bound by the bye­laws and thereafter has to occupy

the tenement itself and cannot assign or transfer it without the permission of

the society.

Hence the bye­laws of the society cannot be made applicable to

(11) S 260/79

23.

shows that there is a provision against assignment or underletting by a

member or tenant without the previous written consent of the society as also

the registering authority. At the time the original defendant was put in

possession of the suit flat there was no society that was registered. Hence

no permission of the society or even the registering authority could be taken

by the original defendants.

A reading of bye­law 71D as also Regulation 4 of Form A itself

24.

pursuant to the conveyance dated 17.06.1972 and can take proceeding for

recovery of the premises in the possession of its members or those

trespassers from such persons who have not taken premises of the society

when it was legally competent to grant permission as a legal entity and not

for trespassers effected prior thereto, which it must accept upon the

breaches committed by the members of any of the bye­laws or upon non

payment of the society charges and taxes as is claimed by the plaintiff­

society, it cannot take a similar action against the person in possession prior

to its registration who should have rightfully been made a member of the

society but who was not so made.

Though, therefore, the society has become owner of the suit flat

25.

answered in the affirmative.

Hence Issue No.4 is answered in the negative and Issue No.5 is

ISSUE NO. 6 :

Though the defendants have claimed that in fact the plaintiff­

26.

society has recognized them as members, there is no material evidence on

this score. However that does not matter in view of the aforesaid legal

position. Hence Issue No.6 is not required to be answered in view of the

(12) S 260/79

answers to issue Nos.4 & 5.

ISSUE NO. 7 :

Under Regulation 71, the person in occupation of any premises

27.

in the plaintiff­society could not be a tenant of the society unless he

subscribed to such number of shares as the Managing Committee of the

society prescribed. Regulation 71 runs thus:

71. No member shall be a tenant of the Society unless he subscribes
to such number of shares as the Managing Committee prescribes.

28.

offered to be members of the society but the plaintiff­society never accepted

the defendants or original defendants as such. Since the society has refused

to recognize the defendants as its members, the defendants could not have

subscribed to the shares of the society. It may be mentioned that in the

original bye­laws produced by the plaintiff as Exhibit P­2, there are 11

members who are shown to have subscribed their names with their

signatures to the bye­laws. Sitabai has not subscribed as a member of the

plaintiff­society. The defendants claim that though they offered to be the

members on such terms as the plaintiff­society may subscribe, the society

has not accepted them as members. Consequently the original defendant

and the present defendants have continued in occupation of the suit flat No.

9 in the plaintiff­society building without being allotted the suit flat and

without being made members of the society though they were eligible to be

made members on the date of the registration of the plaintiff­society.

It is the case of the defendants that the defendants always

29.

Om Jai Shri Gurukrupa Co­operative Housing Society Ltd. Vs. Vasudha

The plaintiff­society has relied upon the judgment in the case of

(13) S 260/79

Vasant Dhavale & Ors. 2004(4) Mh.L.J. 916 to show that for the

unauthorized user of the society’s flat contrary to its bye­laws, an eviction

award can be passed by the Co­operative Court upon the expulsion of the

member under bye­law 12(1)(g) read with bye­law 12(1)(a) consequent

upon the unauthorized transfer of the society’s flat by the member to an

outsider or unauthorized occupation of the outsider without the written

permission of the society, which could issue the permission as a legal entity

when the transfer was made. This, however, does not apply to a person who

has been in possession of the premises prior to the registration of the society.

The original defendant or the present defendants are, therefore, not

trespassers in the suit flat. Issue No.7 is, therefore, answered in the

negative.

ISSUE NO. 9 :

The defendants, therefore, cannot be taken to be unauthorized

30.

occupants who have come into occupation without the permission of the

society. The judgment in the case of Om Jai Shri gurukrupa Co­operative

Housing Society Ltd. (supra) as also the aforesaid regulation would apply

only to the persons who would transfer their flats or induct third party after

the society is registered. Similarly the society can claim recovery of

possession as the owner of any premises for acts done only after it obtains

registration and conveyance in its favour. The society must necessarily

accept all the persons who are in possession of the premises of the society

prior to its registration as its members. Accepting a person who was in

possession earlier but who had inducted another person on whatever basis is

a malafide act and cannot be accepted by the Court.

31.

It is seen from the dispute between the parties that the plaintiff­

(14) S 260/79

society has illegally not accepted the original defendants as its members but

sought to treat them as trespassers upon a false case in para 6 of the plaint

itself that the Sitabai inducted the original defendants into the suit premises

in November, 1969. That oral statement has not been substantiated or

corroborated in the evidence of the plaintiff. That statement has to be

rejected in view of the documentary evidence produced by the defendants by

way of gas service voucher and the gas billing Exhibits D­32 and D­33.

32.

be in unauthorized or illegal occupation of the suit premises since the

original defendants are not shown to have been inducted in the suit

premises without the permission of the society or the Registrar of the Co­

operative Society since there was no society at the time of their induction.

The society itself became the owner of the suit premises only on 17.06.1972

well after the defendants were in occupation of the suit premises even upon

the case of the plaintiff itself. Consequently Issue No. 9 is answered in the

negative.

Upon the aforesaid evidence the defendants cannot be taken to

ISSUE NO. 8 :

The plaintiffs have passed the resolution on 23rd April, 1972 to

33.

expel Sitabai from the membership of the plaintiff­society. Her expulsion is

under bye­law 12(1)(g). Bye­law 12 and the relevant sub bye­law (1) (g)

run thus :

12.(1) A member may be expelled from the Society by the vote of not less
than three­fourths of the members present and voting at a General
Meeting of the Society on a motion that in the opinion of the Meeting
such member has.

(g) without the previous written permission of the Managing Committee,
let or sub­let or given on caretaker or leave licence basis or used for
accommodating paying guests or disposed of in any other manner any

(15) S 260/79

portion of the dwelling accommodation/shops/godowns/garages.

34.

and its members. That would be the members as would be available,

present and in possession of the flats in the building of the plaintiff­society

on the date of its registration and thereafter.

The bye­laws constitute a contract between the plaintiff­society

35.

is sought to be applied because she was a person who had already

transferred her right, title and interest to another and was not in possession

of the suit flat. The plaintiff relies upon Bye­law 71D as also Regulation 4 of

Form­A of the Bye­laws to show that without the previous permission of the

society as also the Registrar the flat of any member could not be assigned

underlet or vacated.

Bye­law 12 (1) (g) does not even apply to Sitabai on the date it

36.

Sitabai has not applied for registration. Sitabai has not signed the bye­laws

of the society adopting them. Sitabai has not claimed any rights against the

plaintiff­society. Sitabai has inducted the original defendants since May,

1969, prior to the registration of the plaintiff­society, contrary to the false

case made out by the plaintiff without any particulars about Sitabai having

inducted the original defendants in November, 1969. Sitabai has not been

sued.

As seen above Sitabai never claimed to be a member at all.

37.

an eyewash to deny the original defendant and the present defendants’

rights of membership as transferee of Sitabai prior to the plaintiff­society

being registered. The expulsion of Sitabai whilst she did not even continue

to be a member is of no consequence whatsoever. It does not even arise

Consequently it is seen that the alleged expulsion of Sitabai is

(16) S 260/79

between the parties to the Suit. Hence Issue No.8 is not required to be

answered.

ISSUE NOS. 10 & 11 :

The plaintiff­society is not entitled to recover possession of the

38.

suit flat No. 9 in its building from the original defendant or the present

defendants. It is only if the plaintiff­society had accepted the original

defendants as members of the plaintiff, it could have sued to recover

possession on any ground under the bye­laws from the original defendants.

Since though the original defendants are shown to be in possession of the

suit flat since prior to the registration of the plaintiff­society but were never

made members, the original defendants are not seen to have been allotted

the suit flat by the plaintiff­society. Consequently upon the claim of the

plaintiff­society that it is a tenants co­partnership society under Rule 10(1)

(5)(b) of the MCSR, the relationship of the plaintiff­society as owner and

defendant Nos.1 & 2 as the tenants has not been shown and is not

established.

39.

occupation charges in respect of the suit flat initially from Sitabai and later

from the defendants. Sitabai having left the suit premises prior to the

registration, the plaintiff­society has rightly not sued Sitabai. The plaintiff­

society would not be able to recover any dues from Sitabai.

The plaintiff would be only entitled to recovery of non

40.

continued to use and occupy of the suit premises. They are bound and liable

to pay the society’s charges and outgoings as also all the incidental expenses

upon their occupation being non­occupancy charges, municipal taxes,

The original defendant as also the present defendants have

(17) S 260/79

property taxes, society’s electricity charges, sinking funds, water charges,

salaries of the society’s staff, building repair fund, parking charges (if the

defendants are car owners) etc.

41.

Contract Act, the aforesaid reasonable charges for the entire period of

occupation by the original defendants and later the present defendants

would have to be paid to the society as a quasi contract between the society

and the defendants; the defendants cannot claim to live in the plaintiff­

society gratuitously. Section 70 of the Indian Contract Act runs thus :

70. Obligation of person enjoying benefit of non­gratuitous
act.­ Where a person lawfully does anything for another person, or
delivers anything to him, not intending to do so gratuitously, and such
other person enjoys the benefit thereof, the latter is bound to make
compensation to the former in respect of, or to restore, the thing so
done or delivered.

42.

the aforesaid charges from the defendants but only sought to recover

possession (which is seen to be misconceived), the court must modify the

relief to grant the plaintiff the aforesaid charges whilst rejecting the prayer

for recovery of possession.

It may be mentioned that even under Section 70 of the Indian

Hence though the plaintiff­society has not claimed recovery of

43.

the Court the amount payable by the defendants in respect of the aforesaid

charges. Mr. Makhija on behalf of the society produced before the Court the

society’s letter dated 10.03.2012 showing the arrears in respect of the suit

flat No. 9 in the plaintiff­society building as on 31.03.2012. The letter is

taken on record. The plaintiff­society has rightly claimed the aforesaid

charges. The Court cannot go into the arithmetic of the aforesaid charges.

To that end the Court called upon the plaintiff­society to show

(18) S 260/79

The aforesaid charges aggregate to Rs.4,75,566/­.

44.

use and possession of the suit premises since May, 1969 the aforesaid

amount is rather reasonable.

Keeping in mind that the defendants have been in occupation,

45.

transfer fees which would have to be paid only if the defendants are made

members in the plaintiff­society upon transfer from another member. Since

no transfer of the suit flat from another member is shown (which could have

been shown only after the transferor become a member), no transfer fee can

be levied by the society from the defendants. They would be the first lawful

members of the society entitled to the allotment of the suit flat No.9 in

society building.

The amount claimed by the plaintiff­society includes the

46.

litigation period. This interest aggregates to Rs.6,75,764/­. Since the

plaintiff­society has consistently refused to make the original defendants or

the present defendants members of the society and it is seen that they have

made out a completely false case of the defendants having been come into

use, occupation and possession of the suit premises since November, 1969,

the plaintiff would not entitled to any interest upon the aforesaid amount.

The society has claimed interest @ Rs.9% per annum during the

47.

plaintiff for the various amounts payable by the defendants as parties in

occupation and possession of the suit flat No. 9 in the plaintiff’s building as

per the plaintiff’s letter dated 10.03.2012 which is taken on record of this

suit. Issue Nos.10 & 11 are answered in the following order :

However the relief of recovery of Rs.4,75,566/­ is granted to the

(19) S 260/79

:: O R D E R ::

1.

are rejected. The plaintiff­society shall not be entitled to recover possession

of the suit flat No.9 in the plaintiff’s building being Prakash Building or to

any injunction against the defendants. The defendants shall pay the

plaintiff­society Rs.4,75,566/­ towards municipal taxes, property taxes,

plaintiff­society’s electricity charges, sinking fund, water charges, salary,

maintenance charges, building repair fund, non­occupancy charges and

parking charges (if the defendants park their car in the society premises).

The plaintiff shall not be entitled to any transfer fees or to any interest on

the aforesaid amount until the date of this Judgment. However the

defendants shall pay interest @ Rs.16% per annum on the aforesaid amount

from today until payment/realization.

The suit as prayed is dismissed. Prayer clauses (a), (b) & (c)

2.

Suit is disposed of accordingly.

(ROSHAN DALVI, J.)
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