Bombay High Court
Chetna Enterprises Through Partners ... vs Rbi Bhagwati Co-Operative Hsg. Society ... on 27 January, 2020
Author: G. S. Patel
Bench: G.S. Patel
6-IA1-19IN CARBP-643-18.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION NO.1 OF 2019
IN
COMM ARBITRATION PETITION NO. 643 OF 2018
1. Maya Madhusudan Pitkar
2. Suhas Bindurao Huli
3. MT Chavan
4. PP More ...Applicants
In the matter between
Chetna Enterprises ...Petitioner
Versus
RBI Bhagwati Co-operative Housing Society Ltd ...Respondents
& Ors
Mr Piyush M Shah, for the Petitioner.
Mr GS Hegde, i/b Shweta Singh for the Applicant/Respondent No.2.
Mr AM Khandekar, for Respondent No.1.
CORAM: G.S. PATEL, J.
DATED: 27th January 2020 PC:-
1. The Interim Application seeks (a) the intervention of this Court under Section 195 of the Code of Criminal Procedure ("CrPC"); (b) to set aside order of 6th March 2019 of the learned Page 1 of 7 27th January 2020 ::: Uploaded on - 28/01/2020 ::: Downloaded on - 29/01/2020 00:31:33 ::: 6-IA1-19IN CARBP-643-18.DOC Single Judge (GS Kulkarni, J), a copy of which is at Exhibit "A" from page 9, and a relief in damages as compensation; and (c) for a direction that the Petitioner Developer do pay hardship compensation, monthly rent, shifting charges, brokerage, security deposit etc as per the Development Agreement.
2. There are very many problems with this application. To begin with it is an admitted position that the parties are already in arbitration before Mr Minoo Siodia, the sole arbitrator. The present Applicants, four of the six original objectors to the redevelopment were also before the sole arbitrator. If that be so, then while I can understand prayer clause (a) and perhaps even prayer clause (b), prayer clause (c) is entirely barred by Section 9(3) of the Arbitration and Conciliation Act 1996.
3. This is the more so since, before the sole arbitrator on 5th December 2019, these objectors were in fact ofered cheques in payment of their demand. They refused to accept those cheques and instead fled this application.
4. Prayer clause (b) also seeks a decree in damages. That relief more or less rejects itself.
5. The reason for this application is that according to the Applicants, the Petitioner-developer and the society materially misled the learned Single Judge in saying that of the 45 original members, 39 had agreed to vacate and that 28 had already vacated. It is on this statement, say the Applicants, that the learned Single Page 2 of 7 27th January 2020 ::: Uploaded on - 28/01/2020 ::: Downloaded on - 29/01/2020 00:31:33 ::: 6-IA1-19IN CARBP-643-18.DOC Judge made the order in question. He, inter alia, directed the six objectors to vacate the premises. This has been done. He also made directions for payment to them as provisioned in the development agreement.
6. What the Interim Application does not annex, to my very great surprise, is the order of the Appeal Court of 24th June 2019 where these very facts are noted in paragraph 2. The present Applicants were the appellants. In other words, aggrieved by the order of the learned single Judge, they went in appeal. They were represented before the learned Single Judge. They were the Appellants before the Division Bench. To say now that the statement made to the Single Judge was false and constituted perjury is as good as saying that the statement made to the Appeal Court was equally false, and that both orders are materially wrong on facts.
7. Neither order seems to note any disagreement by the present Applicants of the facts placed before those courts.
8. It appears that the only real reason for this is an assertion that in fact 39 members are still technically in possession and none have vacated. The building itself is so dilapidated that expect for nine members (and I am excluding six original objectors who have since delivered possession) all the others have actually left the building. But their belongings are still in the building. This is the sole basis for the allegation that the developer and the society perjured themselves.
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9. None of this is going to achieve anything at all for these objectors. I cannot sit in appeal over either of these orders.
10. In any case, the law is settled. Individual members cannot in such proceedings object to a redevelopment approved by the society. They are bound by the collective decision of a cooperative society. That is the essence of cooperative law. If they have a quarrel with the society's decisions, their remedies lie elsewhere. No member can claim preferential treatment. He/she is certainly not to be discriminated against, but there can be no favours or special privileges simply because a handful of members choose to oppose the redevelopment. These members must realise that the opposition not only harms their own interest, but perhaps more signifcantly harms the interest of their neighbours and fellow members of the society.
11. There is absolutely no cause to grant any relief in terms of prayers clauses (a) or (b). But this does not mean that the Applicants are not entitled to their dues in terms of the Agreement. Mr Shah for the developer readily agrees. At my instance, between the morning session and the afternoon session he has brought to Court cheques covering four separate heads of payment for each of the Applicants, namely: transit rent from August 2019, one month's additional transit rent as brokerage, a refundable security deposit payable to the licensors of the alternative accommodation to be taken by the Applicants, and an agreed shifting charge.
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12. There is a complaint made by Mr Hedge in regard to the so called hardship compensation provided in clause 20 of the Development Agreement. It is clarifed that this is actually the corpus payment and it is payable in instalments.
13. The earlier IOD obtained lapsed because of this legal dispute. A fresh IOD or a revalidated IOD under the changed Development Control Regulation DP 2034 is expected shortly.
14. The contractual provision says that transit rent is actually payable from the date when the last member vacates and delivers possession. There is also a similar trigger point for the payment of the frst instalment of the hardship compensation/corpus. Despite this, Mr Shah says that transit rent has already been paid to those who have vacated without the developer insisting on a strict application of this clause. He agrees and undertakes on instructions that the Applicants will receive exactly the same benefts and entitlements as other members of the society, neither more nor less. Nothing more can be expected.
15. There is a submission that the payment tendered today should be allowed to be taken on a without prejudice basis. There can be no such thing. I will not leave it open to these objectors to both take the compensation and their entitlements under the Agreement and at the same time use every available opportunity to oppose the redevelopment itself. The two are inconsistent and cannot possibly co-exist.
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16. There is some concern expressed regarding time for revalidation of the IOD, compensation agreement to vacate and other matters. I do not seek what issuance of IOD has to do with vacating of the premises.
17. Mr Shah has four sets of cheques ready for each of the four Applicants. I note that two of the original six disputants have since withdrawn their opposition. All four of the continuing disputants refused the same ofer in Arbitration. Today Applicants Nos. 3 and 4 are not in Court. I do not know how Applicants Nos. 1 and 2 can purport to speak on behalf of Applicants Nos. 3 and 4. Applicant No.1 herself is not in Court. The Application is afrmed by her husband, Madhusudan, who is present in Court. He claims to be her constituted attorney. I can fnd no Power of Attorney and I do not know why the Registry has not demanded it.
18. On instructions from Madhusudan Pitkar and Applicant No.2, a statement is made by Mr Hegde that they are unwilling to accept these cheques that are even now being tendered by Mr Shah. The statement is noted. This is the second refusal.
19. I note this rejection on behalf of Applicants Nos. 1 and 2. However, I leave it open to Applicants Nos. 3 and 4 to approach this Court to indicate clearly whether they are accepting the cheques or rejecting them. I do not recognize the authority of Applicants Nos. 1 and 2 to speak for and on behalf of, or bind Applicants Nos. 3 and 4.
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20. I expect Applicant No.1 to fle by the end of the day tomorrow the Power of Attorney authorising her husband to act.
21. The matter is for ad-interim reliefs today. In these circumstances, there can be no question of any ad-interim reliefs.
22. Afdavits in Reply to be fled and served on or before 7th February 2020. Afdavits in Rejoinder, if any, to be fled and served on or before 17th February 2020.
23. List the Interim Application for hearing and fnal disposal on 26th February 2020.
24. For the record, Mr Shah will include with his Afdavit photocopies of the cheques that he has brought to Court today.
25. At this stage, Mr Shah seeks the intervention of the court in expediting the revalidated or fresh IOD from the MCGM. For that limited purpose, but not for hearing, list the matter on Monday, 3rd February 2020.
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