Bombay High Court
Usha Pandurang Dhabekar vs Shree Prakash Gruha Nirman Sanstha ... on 24 February, 2021
Equivalent citations: AIRONLINE 2021 BOM 509
Author: Amit B. Borkar
Bench: Z. A. Haq, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
LETTERS PATENT APPEAL NO. 102 OF 2009
IN
WRIT PETITION NO. 2429 OF 2007 (D)
Smt. Usha Pandurang Dhabekar,
Aged Major, R/o. 85, Snehnagar, Nagpur
through Power of Attorney
Mr. Pandurang Dhabekar
(Dead through L.Rs.)
1. Pandurang Sadashiv Dhabekar (Husband)
Aged about 78 years, Occ. Business,
2. Sushil Pandurang Dhabekar (Son),
Aged about 50 years, Occ. Business,
3. Prashant Pandurang Dhabekar (Son),
Aged about 48 years, Occ. Business,
4. Kamlesh Pandurang Dhabekar (Son),
Aged about 46 years, Occ. Business,
5. Rachana D/o. Pandurang Dhabekar
(Daughter)(before marriage)
Rachana W/o. Prasad Pathak
(after marriage)
All R/o. Plot No. 64, Central Excise Colony,
Telecom Nagar, Nagpur. . . . APPELLANTS
...V E R S U S..
1. Shree Prakash Gruha Nirman Sahakari
Sanstha Limited, Sahakarnagar,
Khamla Road, Nagpur through its President
and Secretary.
2. Vijay Vitthalrao Joshi,
Aged Major, R/o. Pawansoot Apartments,
Ramdaspeth, Nagpur.
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3. Smt. Kalpana Vikas Kawade,
Plot No. 104, Chhatrapati Nagar,
Wardha Road, Nagpur. . . . RESPONDENTS
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Mr. R. L. Khapre, Senior Advocate a/w. Mr. R. G. Kavinandan,
Advocate for appellant/s.
Mr. R. R. Vyas, Advocate for respondent no. 1.
Mr. R. S. Parsodkar, Advocate for respondent nos. 2 and 3.
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CORAM :- Z. A. HAQ AND
AMIT B. BORKAR, JJ.
RESERVED ON :- 09.12.2020
PRONOUNCED ON :- 24.02.2021
JUDGMENT (PER : AMIT B. BORKAR, J.) :-
1. Invoking Clause 15 of the Letters Patent, the appellant has taken exception to the judgment passed by the learned Single Judge on 08.10.2008 in Writ Petition No. 2429/2007, thereby confirming the judgments passed by the Courts below refusing to grant declaration of the sale deed executed by the respondent no. 1-Society in favour of the respondent no. 2 be declared as void and also refusing to direct the respondent no. 1-Society to execute sale deed in respect of Plot No. 1 in favour of the appellant.
2. In order to appreciate the grievance of appellant, it will be necessary to have a glance at a few introductory facts:- ::: Uploaded on - 25/02/2021 ::: Downloaded on - 25/02/2021 22:53:55 :::
3 lpa-102-09j.odt The appellant, who is original disputant, had filed Dispute bearing no. 612/1996 before the Co-operative Court, Nagpur under Section 91 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as "the said Act") seeking reliefs of declaration of sale deed executed by the respondent no. 1-Society in favour of the respondent no. 2 as null and void and without authority; direction to the respondent no. 1-Society to execute sale deed in respect of Plot No. 1, admeasuring 50 feet x 100 feet at Somalwada, Layout No. 3, Khasra No. 152/2, Nagpur in favour of the appellant; to deliver the possession of the said plot to the appellant. The appellant based his claim on four material facts viz.
(i) The Co-operative Court in earlier dispute declared that the appellant was entitled to plot admeasuring 50 feet x 100 feet belonging to the respondent no. 1-Society.
(ii) Sale deed executed by the respondent no. 1-Society in favour of the respondent no. 2 was without authority as it was executed by a person, who had no authority to execute the said sale deed on behalf of the respondent no. 1-Society.
(iii) The respondent no. 2 was not a member of the Society and there was no reference in the sale deed that the respondent no. 2 was member of the Society.
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(iv) The sale deed executed in favour of the respondent no. 2 was affected by doctrine of lis pendens .
3. The Co-operative Court, Nagpur by judgment and order dated 07.06.2003 dismissed the dispute of the appellant holding that it was barred by the provisions of the Order II, Rule 2 of the Code of Civil Procedure; by the provisions of the Limitation Act; being barred by the principle of res judicata. The Co-operative Court further held that the appellant failed to prove that Mr. Sathe, Administrator, who executed the sale deed in favour of the respondent no. 2, had no authority to execute the sale deed on 29.08.1991.
4. The appellant had challenged the judgment passed by the Co-Operative Appellant Court in appeal. The Co-operative Appellate Court dismissed the appeal of the present appellant by judgment and order dated 24.11.2005 confirming the finding recorded by the Co- operative Court as regards authority to execute the sale deed but, reversed the finding on the issues under Order II, Rule 2 of the Code of Civil Procedure, limitation and res judicata. The appellant therefore filed Writ Petition No. 2429/2007 before this Court and the learned Single Judge by impugned judgment dismissed the Writ Petition of the appellant holding that Administrator Mr. Sathe had authority to execute the sale deed; principle of lis pendence is not applicable as the ::: Uploaded on - 25/02/2021 ::: Downloaded on - 25/02/2021 22:53:55 ::: 5 lpa-102-09j.odt proceedings before the learned Single Judge were not original proceeding, the decree passed by the Co-operative Court in earlier Dispute no. 479/1991 granting declaration in favour of the appellant could not be executed in such manner.
5. The appellant has therefore, filed the present appeal challenging the judgment and order passed by the learned Single Judge. The present Letters Patent Appeal was admitted by this Court on 26.07.2010.
6. We have heard Mr. R. L. Khapre, learned Senior Advocate a/w. Mr. R. G. Kavinandan, Advocate for the appellant, Mr. R. R. Vyas, learned Advocate for the respondent no. 1-Society and Mr. R. S. Parsodkar, learned Advocate for the respondent nos. 2 and 3.
7. Mr. R. L. Khapre, learned Senior Advocate a/w. Mr. R. G. Kavinandan, Advocate for the appellant submitted that once declaration was granted by the Co-operative Court in Dispute no. 479/1991 ,the appellant is entitled to plot admeasuring 50 feet x 100 feet in the respondent no. 1-Society. The Courts below had no discretion but, to issue the directions to execute sale deed and delivery of possession of the said plot in favour of the appellant, in compliance of declaration in earlier dispute. It is further submitted that there was ::: Uploaded on - 25/02/2021 ::: Downloaded on - 25/02/2021 22:53:55 ::: 6 lpa-102-09j.odt serious dispute regarding authority of Mr. Sathe, Administrator, who was amongst one of the three Administrators on the Board of Administrators appointed under the provisions of Section 77A of the said Act. It is submitted that the sale deed in favour of the respondent no. 2 was executed on 29.08.1991. Before the execution of the said sale deed, the Chief Administrator Mr. D. D. Chavhan had informed the members and intimated Mr. Sathe that he had unauthorizedly removed the papers of layout and receipt books. It is further submitted that copy of the said communication dated 26.05.1991 was also sent to the Registrar to declare the said act of Mr. Sathe as unauthorized. He submitted that on 09.08.1991, the Chief Administrator informed co- Administrators that Mr. Sathe and Mr. Rode are acting in illegal manner and asked Mr. Sathe to hand over entire records as well as keys of the office of the Society to him. Learned Advocate invited our attention to the Circular dated 16.08.1991 by which Mr. Chavhan, Chief Administrator communicated to all the members of the Society that acts done by Mr. Sathe will not be binding on the Society and he will not be responsible for the acts of Mr. Sathe. He further submitted that Mr. Sathe alone could not have executed the sale deed in favour of the respondent no. 2 in absence of specific resolution by the Board of Administrators to execute the sale deed in favour of the respondent no. 2. He further submitted that the Dispute bearing no. 479/1991 ::: Uploaded on - 25/02/2021 ::: Downloaded on - 25/02/2021 22:53:55 ::: 7 lpa-102-09j.odt was filed by the appellant on 08.08.1991 and Mr. Sathe executed the sale deed in favour of the respondent no. 2 of Plot No. 1 on 29.08.1991. Therefore, the sale deed was subject to decision of dispute in view of the doctrine of lis pendence.
8. Mr. R. R. Vyas, learned Advocate for the respondent no. 1- Society submitted that execution of the sale deed in favour of the respondent no. 2 by the Administrator was valid and proper. He further submitted that principle of lis pendence will not apply to the sale deed of the respondent no. 2. He further submitted that the learned Single Judge and both the Courts below have not committed any error in dismissing the dispute of the appellant.
9. Mr. R. S. Parsodkar, learned Advocate for the respondent nos. 2 and 3 submitted that the judgment and order of the learned Single Judge is based on correct appreciation of law and facts. According to him, the appellant was declared defaulter for non- payment of deposit before the due date. He further submitted that the respondent no. 2 was enrolled as member of Layout no. 3 on 18.07.1982. He further submitted that the allotment of Plot No. 1 in favour of the respondent no. 2 was made on 12.02.1987. He further submitted the respondent no. 1-Society through Administrator had executed the sale deed of Plot No. 1 in favour of the respondent no. 2 ::: Uploaded on - 25/02/2021 ::: Downloaded on - 25/02/2021 22:53:55 ::: 8 lpa-102-09j.odt after the respondent no.2 deposited an amount of ₹ 72,630/-. He 72,630/-. He invited our attention to the judgment of the learned Single Judge of this Court in Revision Application No. 15/1995, which according to Mr. Parsodkar holds that the appellant is not entitled to Plot No. 1. It is submitted that the appellant has not challenged the allotment of Plot No. 1 in favour of the respondent no. 2. The respondent no. 2 has already constructed house on Plot No. 1 and has incurred huge expenses for construction of house in the year 1996 itself. He further submitted that the Letters Patent Appeal is devoid of merit.
10. We have carefully gone through the impugned judgment of the learned Single Judge and both the Courts below along with other material produced on record by the parties. After carefully scrutinizing the material on record, we find following points needs consideration in the present appeal.
(i) Whether Mr. Sathe, who had executed the sale deed in favour of the respondent no. 2, was duly authorized by respondent no. 1-Society to execute the sale deed in favour of the respondent no. 2.
(ii) Whether the relief of execution of sale deed could have been denied by the Courts below in view of the award in Dispute bearing no. 479/1991 declaring the appellant entitled to allotment of plot admeasuring 50 feet x 100 feet in Layout no. 3. ::: Uploaded on - 25/02/2021 ::: Downloaded on - 25/02/2021 22:53:55 :::
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(iii) How equities can be balanced, if it is held that the sale deed in favour of the respondent no. 2 was without authority but, the respondent no. 2 continues to be member of the respondent no. 1- Society and there is subsisting allotment in his favour by the respondent no. 1-Society.
11. In the backdrop of the aforesaid points, we have scrutinized the entire record of the case and we find that undisputedly award is passed in favour of the appellant declaring the appellant to be entitled to plot in the respondent no. 1-Society, which reads as under :-
"It is hereby declared that disputant is entitled for allotment of plot admeasuring 50 feet x 100 feet in Somalwada, Layout No. 3, Khasra No. 152/2 belonging to the opponent Society."
Once the award dated 15.05.1993 in favour of the appellant has attained finality, the award is binding on the respondent no. 1- Society. It is therefore, incumbent on the respondent no. 1-Society to allot plot admeasuring 50 feet x 100 feet from Somalwada, Layout No. 3 in favour of the appellant. The learned Single Judge has brushed aside the declaration granted by the Competent Court in favour of the appellant by observing that the proceeding before the learned Single Judge is not the original proceeding and the decree by the Co- operative Court in Dispute no. 479/1991 could not be executed in such manner. In our view, the learned Single Judge has misconstrued the ::: Uploaded on - 25/02/2021 ::: Downloaded on - 25/02/2021 22:53:55 ::: 10 lpa-102-09j.odt effect of decree in favour of the appellant as an executable decree. From the language in the said decree, it is clear that the said decree was declaratory decree. The learned Single Judge has not held that the present dispute of the appellant is not maintainable. The respondent no. 1-Society, who is bound by the declaratory decree has failed to perform its obligation under the said decree to give effect to declaratory decree. There is no other manner, except dispute under Section 91 of the said Act, which entitles the appellant to seek redressal of his legal rights created by the declaratory decree dated 15.05.1993. The appellant being member of Co-operative Society had no other option but to file dispute under Section 91 of the said Act to ventilate her grievance. The respondent no. 1-Society failed to execute sale deed in compliance of declaratory decree, which is touching the business of the Co-operative Housing Society. We are therefore of the opinion that respondent no. 1-Society is under obligation to execute sale deed of plot admeasuring 50 feet x 100 feet from Layout No. 3, Somalwada, as per the terms of the declaratory decree.
12. We do not find merit in the submission of Mr. R. S. Parsodkar, learned Advocate for the respondent nos. 2 and 3 that the appellant being defaulter of respondent no.1-Society, was not entitled to plot in the respondent no. 1-Society. The submission of Mr. R. S. Parsodkar, learned Advocate is contrary to the provisions of the said ::: Uploaded on - 25/02/2021 ::: Downloaded on - 25/02/2021 22:53:55 ::: 11 lpa-102-09j.odt Act. The member of a Co-operative Society, if declared as defaulter, has to suffer consequences as provided under the provisions of the said Act. The consequence of a member being defaulter is not extinguishment of his membership right. Separate procedure for extinguishment of the membership is provided under Section 35 of the said Act read with Rules 28 and 29 of the said Rules. The member, who is defaulter of Co-operative society is not entitled to exercise certain rights as a member, which includes right to vote or right to contest election of the Society. Even otherwise, once the Competent Court had granted declaration, the appellant is entitled to plot admeasuring 50 feet x 100 feet and the Courts below could not have gone beyond the terms of the said award by holding that the appellant was not entitled to the said plot.
13. The record shows that initially the sole Administrator was appointed on respondent no. 1-Society, who was substituted by Mr. S. N. Pandhare as sole Administrator. Thereafter, two more Administrators were appointed on 16.01.1990 as Co-Administrators. On 25.06.1990, Mr. D. D. Chavhan was appointed as Chief Administrator in place of Mr. M. N. Pandhare. The record shows that Mr. D. D. Chavhan addressed a letter to Mr. Sathe on 26.07.1991 indicating that Mr. Chavhan being Chief Administrator, he was in- charge of the affairs of the Society and the act of Mr. Sathe collecting ::: Uploaded on - 25/02/2021 ::: Downloaded on - 25/02/2021 22:53:55 ::: 12 lpa-102-09j.odt various amounts in respect of layout from the members was unauthorized and he shall not be responsible for such illegal acts committed by Mr. Sathe. Thereafter, on 09.08.1991 Mr. Chavhan had written a letter to Mr. Sathe and Mr. Rode, members of Board of Administrators, that they were misusing their powers as Administrators and they shall be responsible for any illegality committed by them. Mr. Chavhan called upon Mr. Sathe to hand over keys of the office of the Society to him. The record shows that Mr. Chavhan had issued a Circular on 16.08.1991 informing all the members of the Society that Mr. Sathe was illegally recovering huge amount from the members of the Society for allotment of plot and for development of the layout. He had specifically stated in the said Circular that he had not consented for the illegal acts of Mr. Sathe, and Mr. Sathe was acting in his own right. Mr. Chavhan by the said Circular made it clear that he shall not be responsible for any acts done by Mr. Sathe. Copy of the said Circular was addressed to the appellant.
14. In the background of the aforesaid communication, when the Chief Administrator had distanced himself from the acts of Mr. Sathe as one of the Administrator of Board of Administrators, it was necessary for the respondent no. 1-Society to place on record the specific resolution signed by all three members of the Board of ::: Uploaded on - 25/02/2021 ::: Downloaded on - 25/02/2021 22:53:55 ::: 13 lpa-102-09j.odt Administrators thereby authorizing Mr. Sathe to execute sale deed in favour of the respondent no. 2.
15. Having carefully scrutinized entire material on record, we do not find specific authorization by the Board of Administrators in favour of Mr. Sathe to execute the sale deed in favour of the respondent no. 2. The learned Single Judge was not right in holding that it is not necessary that each and every Administrator must execute sale deed in favour of the party. The Board of Administrators having stepped into shoes of the Managing Committee of the Co- operative Society must act and speak through their resolution. One of the members of the Board of Administrators individually could not have executed the sale deed in respect of plot of the Housing Society, particularly when the Chief Administrator had questioned the authority of Administrator Mr. Sathe by issuing specific letters. We are, therefore, satisfied that Mr. Sathe individually, as one of the member of Board of Administrators, had no authority to execute sale deed in favour of the respondent no. 2 in absence of the specific resolution of the Board of Administrators authorizing him to execute the sale deed in favour of the respondent no. 2.
16. The respondent no. 1-Society has come out with the case that now it is not possible for the Society to allot plot admeasuring 50 ::: Uploaded on - 25/02/2021 ::: Downloaded on - 25/02/2021 22:53:55 ::: 14 lpa-102-09j.odt feet x 100 feet in favour of the appellant, as no plot is available. We have also carefully reflected over the said contention. But, fact remains that the sale deed executed in favour of the respondent no. 2 was without authority but, it is equally true that the respondent no. 2 remains a member of the respondent no.1- Society and there is subsisting allotment of plot in favour of the respondent no. 2 on 12.02.1997, which is not challenged in the present dispute. We must also take into consideration the fact that in the year 1996 itself the respondent no. 2 had constructed house and had incurred huge expenses. On the one hand there is declaratory decree, which entitles the appellant to plot admeasuring 50 feet x 100 feet and on the other hand the respondent no. 2 is a member and allotment in his favour is subsisting and had incurred huge expenses in the year 1996 for construction of house on the plot. We are of the opinion that to balance the equities between the parties to the dispute, in case the Society is not in a position to execute sale deed of plot as per decree in favour of the appellant, the Society must compensate the appellant in terms of money for the loss caused to the appellant due to failure on the part of respondent no. 1-Society to honour the declaratory decree.
17. 'Compensation' is a return for a loss or damages sustained. Justice requires that it should be equal in value, although not alike in kind. The term 'compensation' as stated in the Oxford Dictionary, ::: Uploaded on - 25/02/2021 ::: Downloaded on - 25/02/2021 22:53:55 ::: 15 lpa-102-09j.odt signifies that which is given in recompense, an equivalent rendered. The term 'compensation' suggests the image of balancing one thing against another; its primary signification is equivalence, and the secondary and more common meaning is something given or obtained as an equivalent. Pecuniary damages are to be valued on the basis of 'full compensation'. The word 'compensation' is derived from Latin word "compensare" meaning "weigh together" or "balance".
18. Mr. R. R. Vyas, learned Advocate for the respondent no. 1- Society has placed on record a chart of Ready Reckoner in respect of land, which forms Layout No. 3 of the respondent no. 1-Society. The said chart of Ready Reckoner is for the year 2020-21, which shows that the rate of open plot of the lands of the respondent no. 1-Society is ₹ 72,630/-. He 40,700/- per sq. mtr. The area of plot as per the award in Dispute bearing no. 479/1991 is 5000 sq. mtrs. The Ready Reckoner value of plot admeasuring 50 feet x 100 feet comes to ₹ 72,630/-. He 1,89,05,557/-. We, therefore, feel that interests of justice would be served if the respondent no.1-Society is directed to pay an amount of ₹ 72,630/-. He 50 lakhs as compensation to the appellant, if the respondent no. 1-Society is not able to execute sale deed of plot admeasuring 50 feet x 100 feet as per the decree.
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19. Taking into consideration the reasons stated above, we pass the following order :-
(i) The Letters Patent Appeal No. 102/2009 is partly allowed.
(ii) The judgment and order passed by the learned Single Judge in Writ Petition No. 2429/2007 is quashed and set aside.
(iii) The respondent no. 1-Society is directed to execute sale deed of the plot admeasuring 50 feet x 100 feet from Somalwada, Layout No. 3, Khasra No. 152/2, Nagpur in favour of the appellant and deliver vacant possession of the plot to the appellant, within three months from today.
(iv) If the respondent no. 1-Society fails to execute sale deed and deliver possession as directed in Clause (iii), then the respondent no. 1-Society shall pay an amount of ₹ 72,630/-. He 50 lakhs to the appellant as compensation, within a period of six months from today.
CIVIL APPLICATION (CAZ) Nos. 4/2019 AND 16/2019 In view of the disposal of the present Letters Patent Appeal, the Civil Applications praying for grant of early hearing by giving fixed date do not survive. They are disposed accordingly.
JUDGE JUDGE
RR Jaiswal
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