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Judgment
Z.A. Haq, J—These two writ petitions are disposed of by the common judgment as the orders challenged in both the writ petitions are same and the parties are also same.
The petitioner in Writ Petition No. 1881/2011 is a Society registered under the provisions of the Maharashtra Co-operative Societies Act, 1960 (for short "Act of 1960"). The petitioners in Writ Petition No. 3395/2011 are purchasers of plot belonging to Society, having purchased it during the pendency of the proceedings. The respondents 2 to 8 in Writ Petition No. 1881/2011 are the legal heirs of original allottee of the plot. The respondent no.9 in Writ Petition No. 1881/2011 is the subsequent allottee in whose favour the suit plot came to be allotted after its allotment in favour of the respondents 2 to 8 was cancelled. The respondent no.10 had purchased the suit plot from the respondent no.9 during the pendency of the proceedings. The respondents 11 and 12 in Writ Petition No. 1881/2011 have purchased the suit plot from the respondent no.9 during the pendency of the proceedings and they are in possession of the suit plot, at present. In this judgment the parties are referred according to their status in Writ Petition No. 1881/2011.
It is undisputed that the suit plot belonged to the petitioner/Society. It is undisputed that Shri Jagannath Ramlalji Jugele/predecessor of the respondents 2 to 8 was the Member of the Society. It is undisputed that plot no.1 i.e. suit plot was allotted to Shri Jagannath.
The case of the petitioner/Society is that Shri Jagannath had deposited Rs. 5,000/- with the petitioner/Society towards part payment of plot no.1. Shri Ravindra s/o Jagannath Jugele/the respondent no.3 was also allotted plot no.29 by the Society and an amount of Rs. 5,000/- was also deposited by Shri Jagannath for this plot. The case of the petitioner/Society is that the development charges payable to the Nagpur Improvement Trust were to be paid in three instalments by the Members of the Society in whose favour allotment of plots were made, however, the Nagpur Improvement Trust demanded the development charges in lump-sum and, therefore, demand was made by the petitioner/Society from the allottees of the plots accordingly, requiring them to deposit the development charges in lump-sum. According to the petitioner/Society, Shri Jagannath had not deposited the balance amount towards costs of the plot and had not deposited the development charges in lump-sum in spite of notices and, therefore, the allotment of plot no.1 in favour of Shri Jagannath came to be cancelled on 20th September, 1981. Shri Jagannath filed the dispute before the Co-operative Court on or about 7th July, 1983.
During the pendency of the dispute, the Society allotted plot no.1 to Smt. Vijaya/the respondent no.9 and executed the sale-deed in respect of plot no.1 in her favour on 25th October, 1985. Smt. Vijaya/the respondent no.9 sold the plot no.1 to Smt. Taradevi/wife of respondent no.10 by the sale-deed dated 30th January, 1986. Smt. Taradevi constructed the house on plot no.1 after obtaining sanction to the plan of construction on 20th December, 1990. The construction of the house was undertaken by Smt. Taradevi in 1991 -1992.
According to the respondents 11 and 12, Smt. Taradevi had mortgaged the suit property with the State Bank of India, Industrial Finance Branch in 1992 -1993 while furnishing the guarantee for the amount of loan taken by M/s. SMS Wires Private Limited.
Smt. Vijaya/the respondent no.9 was impleaded as party to the dispute on 4th November, 1989. The respondent no.10/Kishorekumar is impleaded as party to the dispute on 31st October, 2003.
The respondents 11 and 12 purchased the suit plot from the legal heirs of Smt. Taradevi by the sale-deed registered on 20th March, 2006.
According to the respondents 11 and 12, the suit property is purchased by them with knowledge of the State Bank of India and the amount of purchase price was directly deposited with the State Bank of India to clear the amount of loan for which the property was mortgaged with the State Bank of India. The case of the respondents 11 and 12 is that they were not aware about the pendency of the dispute filed by Shri Jagannath.
The Co-operative Court allowed the dispute by the order dated 12th December, 2008. The appeal came to be filed by the Society before the Co-operative Appellate Court challenging the order passed by the Co-operative Court. The respondents 11 and 12 were not impleaded as party in the appeal. The appeal filed by the Society came to be dismissed on 30th June, 2010. The respondents 11 and 12 got knowledge about the order passed by the Co-operative Court and the dismissal of the appeal filed by the Society and as the above mentioned orders adversely affected the respondents 11 and 12, they filed Writ Petition No. 3395/2011. The Society has filed the Writ Petition No. 1181/2011 challenging the orders passed by the Co-operative Court and the Co-operative Appellate Court.
The learned advocates appearing for the respective parties have made elaborate submissions.
The respondents 11 and 12 have taken preliminary objection to the maintainability of Writ Petition No. 3395/2011. Shri Madkholkar, the learned advocate for the respondents 2 to 8 submitted that the Writ Petition No. 3395/2011 is not maintainable and the respondents 11 and 12 have no locus to maintain the petition as they have purchased the suit property during the pendency of the dispute. It is submitted that the respondents 11 and 12 are bound by the order passed by the Co-operative Court and they are not having independent right de hors their predecessor in title. The learned advocate for the respondents 2 to 8 relied on the following judgments :
(i) Judgment given in the case of A. Nawab John and Others Vs. V.N. Subramaniyam, (2012) 4 CTC 206 : (2012) 6 JT 450 : (2012) 168 PLR 634 : (2012) 3 RCR(Civil) 749 : (2012) 7 SCC 738 ,
(ii) Judgment given in the case of Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, AIR 1976 SC 578 : (1976) 1 SCC 671 : (1976) 3 SCR 58 ,
(iii) Judgment given in the case of Thomson Press (India) Ltd. Vs. Nanak Builders and Investors P. Ltd. and Others, (2013) 10 AD 57 : AIR 2013 SC 2389 : (2013) 2 CTC 104 : (2013) 3 JT 289 : (2013) 171 PLR 26 : (2013) 2 RCR(Civil) 875 : (2013) 3 SCALE 26 : (2013) 5 SCC 397 : (2013) AIRSCW 1617 ,
(iv) Judgment given in the case of Ravi Yashwant Bhoir Vs. District Collector, Raigad and Others, AIR 2012 SC 1339 : (2012) 3 SCALE 303 : (2012) 4 SCC 407 : (2012) 2 SLJ 353 : (2012) AIRSCW 1877 : (2012) 2 Supreme 506 ,
(v) Judgment given in the case of Ayaaubkhan Noorkhan Pathan Vs. The State of Maharashtra and Others, (2013) 1 ABR 454 : AIR 2013 SC 58 : (2013) 136 FLR 574 : (2012) 11 SCALE 39 : (2013) 4 SCC 465 ,
(vi) Judgment given in the case of A-1 Co-operative Housing Society Ltd. Vs. R. Jaikishan and Co. and Others, (2005) 1 BomCR 50 : (2005) 1 MhLj 118 , and
(vii) Judgment given in the case of Radhey Shyam and Others Vs. Chhabi Nath and Others(2015) 3 AD 73 : (2015) 2 RCR(Civil) 606 : (2015) 3 SCALE 88 : (2015) 5 SCC 423 : (2015) 3 SCJ 552 : (2015) 1 UPLBEC 646 .
Relying on the above referred judgments, it is submitted that the respondents 11 and 12 have no locus to maintain the Writ Petition No. 3395/2011 and the petition be dismissed.
The respondents 3 to 5 had filed Civil Application No. 389/2014 in Writ Petition No. 3395/2011 praying for dismissal of Writ Petition No. 3395/2011. The respondents 3 to 5 had filed Civil Application No. 388/2014 in Writ Petition No. 1881/2011 praying that the Writ Petition No. 1881/2011 be dismissed as the Society had not impleaded the necessary parties before the Co-operative Appellate Court.
This Court by the order dated 14th October, 2014 rejected the contentions of the respondents 3 to 5 that the respondents 11 and 12 cannot be said to be "persons aggrieved". This Court concluded that the Writ Petition No. 3395/2011 is maintainable and it will have to be decided on merits.
This Court passed an order dated 14th October, 2014 concluding that the failure on the part of the Society to implead the respondents 11 and 12 as party to the appeal before the Co-operative Appellate Court would not affect the maintainability of the appeal and it cannot be said that the appeal was liable to be dismissed for non-joinder of the respondents 11 and 12.
In view of the order passed by this Court on 14th October, 2014, the submissions made on behalf of the respondents 2 to 8 that the respondents 11 and 12 do not have locus to maintain the Writ Petition No. 3395/2011, cannot be considered again. The issue has been decided by this Court and it is established law that the decision on an issue during the pendency of the proceedings, operates as res judicata between the parties at the subsequent stages of the proceedings.
Shri Madkholkar, the learned advocate for the respondents 2 to 8 submitted that the dispute filed by Shri Jagannath was not properly verified as required by the provisions of the Code of Civil Procedure. It is submitted that the averments made in the petition are also not properly verified as required by Rule 6 in Chapter III of the Bombay High Court Appellate Side Rules, 1960.
Shri Dastane, the learned advocate for the respondents 11 and 12 has relied on the provisions of Section 94 of the Act of 1960 and has submitted that the provisions of the Code of Civil Procedure are not applicable to the proceedings before the Co-operative Court except to the extent of issuance of summons, enforcement of attendance and compelling the witnesses to give evidence on oath, affirmation or affidavit and to compel the production of documents. It is argued on behalf of the respondents 11 and 12 that the submissions made in the petition are supported by proper affidavit and the submissions made on behalf of the respondents 2 to 8 in that regards, are misconceived.
In my view, the hyper-technical objection regarding verification of the dispute raised on behalf of the respondents 2 to 8 at the time of arguments in the writ petition, cannot be accepted. There is nothing on the record to show that such objection was taken before the Court of first instance i.e. Co-operative Court or even before the Co-operative Appellate Court. In the facts of the present case, I refrain myself from considering the hyper-technical objections which are raised on behalf of the respondents 2 to 8 for the first time at the time of arguments before this Court.
Shri Madkholkar, the learned advocate has pointed out from the prayer clause of the Writ Petition No. 3395/2011 that the respondents 11 and 12 (who are petitioners in Writ Petition No. 3395/2011) have prayed for writ of mandamus which cannot be issued by the Single Judge of this Court according to the Rules contained in Chapter 17 of the Bombay High Court Appellate Side Rules, 1960. The submission is misconceived. After considering the prayers made in the writ petition it is clear that writ of certiorari is sought and the other reliefs sought in the petition are consequential.
Shri Ahirrao, the learned advocate for the Society (petitioner in Writ Petition No. 1181/2011) has submitted that the dispute filed by Shri Jagannath was barred by limitation. It is submitted on behalf of the Society that the sale-deed in favour of Smt. Taradevi was registered on 30th January, 1986 and challenge to the sale-deed was made by amending the dispute by filing the application on or about 9th July, 2004.
Shri Jagannath had filed the dispute on or about 7th July, 1983 challenging the cancellation of the allotment of the suit plot. It is undisputed that the suit plot was transferred in favour of Smt. Vijaya by the sale-deed executed on 25th October, 1985 i.e. during the pendency of the dispute. Smt. Vijaya sold the suit plot to Smt. Taradevi on 30th January, 1986. Thus, the sale-deeds in favour of Smt. Vijaya and Smt. Taradevi were executed during the pendency of the dispute and, therefore, they are hit by the doctrine of lis pendens. In view of these facts, it cannot be said that the challenge raised on behalf of Shri Jagannath to the sale-deed executed during the pendency of the dispute was barred by limitation.
Shri Dastane, the learned advocate for the respondents 11 and 12 (petitioners in Writ Petition No. 3395/2011) has submitted that the respondents 11 and 12 are entitled to raise the defence that could have been raised by Smt. Vijaya (the first allottee after the allotment of suit plot in favour of Shri Jagannath was cancelled). In support of this submission, he has relied on the judgment given in the case of Thomson Press (India) Ltd. Vs. Nanak Builders and Investors P. Ltd. and Others, (2013) 10 AD 57 : AIR 2013 SC 2389 : (2013) 2 CTC 104 : (2013) 3 JT 289 : (2013) 171 PLR 26 : (2013) 2 RCR(Civil) 875 : (2013) 3 SCALE 26 : (2013) 5 SCC 397 : (2013) AIRSCW 1617 , wherein in paragraph no.57 it is laid down as follows :
" 57. To sum up:
57.1. The appellant is not a bona fide purchaser and is, therefore, not protected against specific performance of the contract between the plaintiffs and the defendant owners in the suit.
57.2. The transfer in favour of the appellant pendente lite is effective in transferring title to the appellant but such title shall remain subservient to the rights of the plaintiff in the suit and subject to any direction which the Court may eventually pass therein.
57.3. Since the appellant has purchased the entire estate that forms the subject-matter of the suit, the appellant is entitled to be added as a party-defendant to the suit.
57.4. The appellant shall as a result of his addition raise and pursue only such defenses as were available and taken by the original defendants and none other."
It is submitted that Smt. Vijaya was the bona fide purchaser of the suit plot. Similarly, Smt. Taradevi who purchased the suit plot from Smt. Vijaya was also bona fide purchaser and then the respondents 11 and 12 are also bona fide purchasers. According to the respondents 11 and 12, Smt. Vijaya, Smt. Taradevi and the respondents 11 and 12 were not having information about the pendency of the dispute in respect of the suit plot. It is submitted that the Society has filed written statement on 15th April, 1985 still Shri Jagannath had not taken any steps to implead Smt. Vijaya as party to the dispute till 4th November, 1989. It is submitted that similarly, Shri Jagannath had not taken any steps to implead Taradevi as party to the dispute till 31st March, 2003 when her husband came to be impleaded as Taradevi had expired. The submission as made on behalf of the respondents 11 and 12 is not in consonance with the factual aspects. In the written statement filed on 15th April, 1985, the Society had not made any averment about the allotment of suit plot in favour of Smt. Vijaya. In fact, the sale-deed in favour of Smt. Vijaya is registered on 25th October, 1985 i.e. after the filing of the written statement. The learned advocates for the Society and the respondents 11 and 12 have not been able to point out that there is any delay on the part of Shri Jagannath in impleading Smt. Vijaya and Smt. Taradevi as party to the dispute after getting knowledge about the execution of the sale-deeds in their favour.
However, in the facts of the present case, the point as to whether Smt. Vijaya was a bona fide purchaser or not has not been properly adverted to by the subordinate Courts and a remand at this stage for adjudication on that point will not be proper specially when, in my view, the matter is required to be decided on considering the other relevant issues. In my view, the substantial point which requires consideration is whether the respondent nos. 2 to 8 are entitled for an order in the nature of decree for specific performance of resolution of the Society regarding allotment of plot. It is further to be considered as to whether the Co-operative Court and the Co-operative Appellate Court have committed an error by exercising the discretion in favour of the respondents 2 to 8 overlooking the conduct of the respondents 2 to 8 and giving a go-bye to the provisions of Section 20 of the Specific Relief Act, 1963.
Shri Jagannath (predecessor of the respondents 2 to 8) challenged the cancellation of the allotment and made the claim for plot no.1 of the Society by filing the dispute on 7th July, 1983. The sale-deed in respect of plot no.1 was executed by the Society in favour of Smt. Vijaya on 25th October, 1985. Smt. Vijaya executed sale-deed of plot no.1 in favour of Smt. Taradevi on 30th January, 1986. Smt. Taradevi obtained the building permit from the Competent Authority vide permit No.CR/175/21772 dated 28th December, 1990 and constructed the house on plot no.1. Even if the submission made on behalf of the respondents 2 to 8 that Shri Jagannath was not having the knowledge about the sale-deeds executed in favour of Smt. Vijaya and Smt. Taradevi is accepted, it goes unexplained as to why Shri Jagannath had not taken steps to obtain appropriate orders restraining Smt. Taradevi from constructing the house on plot no.1. Shri Jagannath has not given any explanation on the record for the lapses on his part. It goes unexplained as to why the pendency of the dispute before the Co-operative Court was not notified with the office of the Sub-Registrar and with other Authorities. The failure on the part of the subordinate Courts to consider these relevant aspects and to consider the provisions of Section 20 of the Specific Relief Act, 1963, vitiates the orders passed by them insofar as the directions given for execution of the sale-deed in respect of plot no.1 in favour of the disputant are issued.
In my view, the findings of fact recorded by the subordinate Courts about the willingness on the part of Shri Jagannath to perform his part and to pay the amount payable by him are based on proper appreciation of documents and the evidence on the record but taking into account the failure on the part of Shri Jagannath to take proper steps for seeking a restraint order regarding the transfer of plot no.1 and for undertaking the construction on plot no.1 and further considering that the dispute and the appeal had been pending for more than 32 years, in my view, the order passed by the subordinate Courts directing the Society to execute the sale-deed of plot no.1 of Hiwari Layout in favour of the disputant and for other consequential reliefs is required to be modified. Instead of execution of sale-deed in favour of the respondents 2 to 8, in my view, in the facts of the present case, it would be appropriate to direct the respondents 11 and 12 (petitioners in Writ Petition No. 3395/2011) to pay the compensation to the respondent nos. 2 to 8.
At the time of hearing, queries about the valuation of the suit plot at present were made. The learned advocates for the respective parties made submissions on the basis of which it could be assessed that the valuation of the suit plot may be around 1.2 Crores to 1.3 Crores. In my view, it would be appropriate to direct the respondents 11 and 12 (petitioners in Writ Petition No. 3395/2011) to pay an amount of Rs. 40,00,000/- (Rs. Forty Lakhs Only) to the respondents 2 to 8 towards compensation. The amount shall be deposited by the respondents 11 and 12 (petitioners in Writ Petition No. 3395/2011) till 15th January, 2016 before the Co-operative Court, Nagpur. If the amount is not deposited by the respondents 11 and 12 within the stipulated time, the directions given by the Co-operative Court and maintained by the Co-operative Appellate Court to the Society to execute the sale-deed of plot no.1 of Hiwari Layout shall stand revived. If the amount is deposited by the respondents 11 and 12 (petitioners in Writ Petition No. 3395/2011) within the stipulated time, the Co-operative Court shall disburse the amount to the respondents 2 to 8 in the proportion for which they are entitled, being the legal heirs of Shri Jagannath.
Hence, the following order :
(i) The impugned award passed by the Co-operative Court and maintained by the Co-operative Appellate Court are modified.
(ii) The Clauses 2, 3, 4 and 5 of the award passed by the Co-operative Court and maintained by the Co-operative Appellate Court are set aside.
(iii) The respondents 11 and 12 (petitioners in Writ Petition No. 3395/2011) are directed to deposit an amount of Rs. 40,00,000/- (Rs. Forty Lakhs Only) before the Co-operative Court till 15th January, 2016.
If the amount is not deposited within the stipulated time, the Clauses 2, 3, 4 and 5 of the award passed by the Co-operative Court and maintained by the Co-operative Appellate Court will stand revived.
(iv) If the amount is deposited as directed above within the stipulated time, the Co-operative Court shall disburse the amount to the respondents 2 to 8 in the proportion for which they are entitled being the legal heirs of Shri Jagannath Ramlalji Jugele.
(v) The writ petitions are partly allowed in the above terms.
In the circumstances, the parties to bear their own costs.