Kamla Realty (Bombay) Vs New Gopal Premises Co-op. Society Ltd.

S.J. Kathawalla, J.—The above suit is filed by the Plaintiff - Kamla Realty (Bombay) against New Gopal Premises Co-operative Society Limited (Defendant No.1) and its five non-cooperative members, inter alia, seeking a declaration that the terms and conditions of the Development Agreement dated 28th September, 2011, executed between Defendant No.1 and the Plaintiff with respect to the piece or parcel of land at Lokmanya Tilak Road, Borivali (West), admeasuring 1047.38 sq.mtrs., more particularly described in the Schedule at Exhibit-A to the Plaint ("the said property"), is valid, subsisting and binding upon Defendant Nos. 2 to 6; for a mandatory order and injunction directing Defendant Nos. 2 to 6 or any person or persons claiming through or under them to comply with the said Development Agreement dated 28th September, 2011 and to vacate their respective flats/shops and to hand over the same to Defendant No. 1 or the Plaintiff for the purpose of demolition; and for a permanent order and injunction restraining the Defendants or any person or persons claiming through or under them from in any manner interfering with, obstructing, creating any impediment of any nature whatsoever in the fulfilment or performance of any obligations under the said Development Agreement dated 28th September, 2011 executed between Defendant No. 1 and the Plaintiff in respect of the said property in any manner whatsoever.

2. The Plaintiff has also taken out the above Notice of Motion seeking interim reliefs i.e. for an order and injunction against Defendant Nos. 2 to 6 to vacate the flats/shops in their possession and to hand over the same to Defendant No. 1 or the Plaintiff for the purpose of demolition and for appointment of Court Receiver, High Court, Bombay, as Receiver of the flats and shops in possession of Defendant Nos. 2 to 6 with all powers under Order 40 Rule 1 of the Code of Civil Procedure, 1908 including power to take possession thereof by breaking open the lock and/or if necessary with the help of police and hand over quite vacant and peaceful possession thereof to the Plaintiff for the purpose of demolition thereof or any other purpose as per the said Development Agreement dated 28th September, 2011 executed between Defendant No. 1 and Plaintiff.

3. As stated hereinabove, the Plaintiff - Kamla Realty (Bombay) is a registered partnership firm carrying on business as developers and builders. Defendant No. 1- New Gopal Premises Co-operative Society Ltd. is a Co-operative Society registered under the provisions of the Maharashtra Co-operative Societies Act, 1960 under Registration No. BOM./GEN.1178 of 1978 dated 24th November, 1978. The Society is the owner of the said property, on which a building constituting ground + four floors is constructed since 1973-74 ("the said building"). The said property along with the said building are hereinafter referred to as "the suit property". The Society has 27 members of which 19 are in possession of residential flats and 8 are in possession of commercial premises/shops. The Plaintiff is granted development rights by Defendant No. 1 Society in respect of the suit property.

4. Defendant No. 2 - Anila Hasmukhrai Panchamia owns residential flat No. 01 (admeasuring about 407 sq.ft. carpet area) on the ground floor and is presently not residing in the said flat No. 1 but is residing at Veena Santoor CHSL, Sai Baba Nagar Extension Road, Opp. Sachin Tendulkar Gymkhana, Kandivli (West), Mumbai-400 067.

5. Defendant No. 3 - Vimlaben Ramjibhai Kanojia owns residential Flat No. 9 (admeasuring about 489 sq.ft. carpet) on second floor of the said building. Her flat is kept closed since July, 2016.

6. Defendant No. 4 - Jaswant Chimanlal Shah owns residential Flat No. 14 (admeasuring about 481 sq.ft. carpet area) on the third floor. He is presently not residing in his flat in the said building but is residing at Flat No. B-102, Blue Bell CHSL, Royal Complex, Eksar Road, Borivali (West), Mumbai-400 092.

7. Defendant No. 5 - Kasturben Dhirajlal Shah owns shop No. 4 (admeasuring about 300 sq.ft. carpet area ) on the ground floor. However, at present he has given the said shop on leave and license to "Bangalore Iyengar Bakery".

8. Defendant No. 6 - Hasmukhrai Panchamia owns shop No. 8 admeasuring 174 sq.ft. on the ground floor. At present the son of defendant No. 6 is occupying the said shop No. 8 and is using it as an office in respect of his Motor Training School.

9. It will not be out of place to mention here that Defendant Nos. 6 and 2 are husband and wife having separate membership in respect of their premises, being shop No. 8 (commercial) and flat No. 1 (residential) respectively.

10. Briefly set out are the facts which according to the Plaintiff have led to the filing of the present suit.

10.1 The Society building which was constructed in or about 1973-74 was in a dilapidated condition and required extensive and heavy repairs and as the Defendant No. 1 society was unable to redevelop the suit property on its own, the Society in the year 2007 decided to carry out redevelopment of the suit property through a developer.

10.2 In a Special General Meeting of the Society held on 13th October, 2007, which was inter alia attended by Defendant Nos. 2, 3 and 6, the members of the Society unanimously decided to redevelop the property of the Society on condition that the Conveyance Deed in respect of the suit property should be executed in favour of the Society before commencing redevelopment of the said property. In the said meeting the name of only one developer figured i.e. the Plaintiff and from the minutes of the said meeting it is clear that there was no opposition whatsoever from any member qua the Plaintiff developer. The members were informed at the said meeting that the Plaintiff has given a revised proposal to the Society on 4th September, 2007 and thereafter the proposal was read out to the members present at the meeting. In the said meeting it was also discussed that the members would ask for additional area, corpus fund, etc,. than that was offered by the Plaintiff developer by his revised offer.

10.3 In the Special General Meeting of the Society held on 1st December, 2007, which was attended by Defendant Nos. 2, 3,4 and 6, the Chairman informed the members about the MOU reached between the Committee Members and the Plaintiff. In the said meeting, the members were informed that the Managing Committee members met the Plaintiff from time to time and sought improvement of its offer and the extent to which the Plaintiff agreed to improve its offer. The members were also informed that the Managing Committee may again approach the Plaintiff for further negotiations on two points i.e. the additional area and rebate on additional area.

10.4 In the Special General Meeting held on 8th December, 2007, which was attended by Defendant Nos. 2, 3, 4 and 6, it was unanimously resolved to authorise the Managing Committee of the Society to negotiate with the Plaintiff developer and take decisions on behalf of the Society as regards the issues pertaining to execution of a deed of conveyance in favour of the Society and redevelopment of the suit property.

10.5 On 22nd January, 2008, an MoU was executed between Defendant No. 1 Society and the Plaintiff. Defendant No. 2 was the signatory to the said MoU on behalf of Defendant No.1.

10.6 In the Special General Meeting of the members held on 5th April, 2008, which was attended by Defendant Nos. 2, 3, 4 and 6, the Secretary of the Society informed the members that the Developers had provided three documents namely draft copy of the conveyance deed, draft copy of the redevelopment agreement and a copy of the measurement of flats and shops, but have yet to give other documents i.e. proof of their authority to execute conveyance deed, Power of Attorney from the original builders and draft copy of plan/plans of the proposed new building mentioned in the said minutes. At this meeting, some members expressed their concern qua the delay in the implementation of the project which was recorded in the minutes because of which it was decided that the Managing Committee should vigorously follow up with the Plaintiff and obtain the required documents and also ensure that all the members should get sufficient time to vacate the flats prior to commencement of demolition of the building.

10.7 In the Annual General Meeting held on 9th August, 2008, when Defendant Nos. 2 and 3 were present, the Chairman explained to the members the progress made in respect of the conveyance deed and redevelopment of the Society building. The members were informed that the Plaintiff has agreed that the draft conveyance deed shall be prepared/approved by an Advocate or a Solicitor as recommended by the Advocate for the Society.

10.8 In the Annual General Meeting held on 24th July, 2010, when Defendant Nos. 2, 3, 4 and 6, were present, the members were again apprised of the developments qua the execution of the conveyance deed and the development agreement. The members were informed that in a joint meeting between the Plaintiff developer and the Managing Committee of the Society and their Advocate held on 7th July, 2010, it was decided that the developer would first execute the conveyance deed and get it registered and that soon thereafter the Society shall execute the redevelopment agreement. It was also decided to scrutinize the draft redevelopment agreement and the draft proposed building plan and to hand over the draft redevelopment agreement to the Advocate for the Society for finalization.

10.9 In the urgent Special General Meeting held on 5th January, 2011, in which Defendant Nos. 2, 3, 4, 5 and 6 were present, the Secretary of the Society explained to the members that after the draft conveyance deed was finalised and approved by both the parties in July, 2010, the Committee was waiting for the Advocate''s approval in respect of the draft copy of the redevelopment agreement and power of attorney. He further explained that on 7th December, 2010, the developers submitted the proposed tentative typical floor plan with a copy of the carpet area statement and allotment of proposed flat/unit proposed for Society''s approval. In the Committee meeting held on 30th December, 2010, it was scrutinised by the Committee and decided to present it to the general members for their opinion/approval and therefore the urgent Special General Meeting of the Society members was called on that day to take a decision in the matter. Photo copies of the plan with details were also distributed amongst the members. It is recorded in the minutes that the Chairman explained to the members their respective existing carpet area, additional carpet area and the placement of the respective flats/units in the proposed tentative building plan and the members were requested to give their opinion. Some of the members expressed their opinion viz. that the plan was not as per Vastu Sastra, kitchen should not be facing the road side, the present flats located in eastern and western side be placed at the same location in the proposed new building. Clarifications were sought as to flats with different areas upto 4th floor and the height of the flats in each floor. It was thereafter decided to refer the plans back to the developers for improvement on the above points.

10.10 An urgent Special General Meeting of the members of the Society was again held on 23rd April, 2011. The agenda of the said meeting, inter alia, showed the following items:

(i) To finalise the tentative building plan;

(ii) To read and approve the draft conveyance deed already approved by the Developer and the Advocate for the Society; and

(iii) To read and approve the draft redevelopment agreement already approved by the developer and the Advocate for the Society.

The said meeting was attended by Defendant Nos. 3 and 4. As can be seen from the minutes, at the said meeting the draft of the conveyance deed was read out and unanimously approved. Since the meeting went on upto midnight, it was decided to take up the remaining issues in the subsequent meeting.

10.11 In the Special General Meeting held on 29th May, 2011, which was attended by Defendant Nos. 2, 3, 4, 5 and 6 the Developer clarified all the points raised by the members. The entire draft redevelopment agreement was also read out at the said meeting and the draft redevelopment agreement was approved unanimously subject to certain points in the agreement to be clarified by the Developer/Advocate wherever necessary. The General Body authorised the Managing Committee to pass the required resolutions necessary for executing the redevelopment agreement.

10.12 In the Special General Meeting held on 11th June, 2011, which was attended by Defendant Nos. 3,4 and 6, the draft building plan submitted by the developers on 28th May, 2011 was taken up for final approval. At the said meeting, the Chairman requested the members to approve the plan subject to ratification of certain observations/views of the members and the same was approved by the members unanimously. The General Body also authorised the Managing Committee to pass necessary resolutions required for executing the conveyance deed as well as the redevelopment agreement and the Power of Attorney.

10.13 In the Annual General Meeting held on 23rd July, 2011, which was attended by Defendant Nos. 2, 3 and 6, the Chairman explained the developments that have taken place qua the draft building plan which was approved in the Special General Meeting of the Society held on 11th June, 2011 subject to ratification of the views/observations made by some members in the said meeting. It was pointed out that on 14th June, 2011, all the Committee Members met the developer and discussed the matter wherein the developer had agreed to make necessary changes in the draft building plan. On 22nd June, 2011, the Chairman and the Secretary were called by the developer and given a revised draft copy of the plan for approval. Vide Society''s letter dated 4th July, 2011, all the members of the Society were supplied with photo copies of plans against their acknowledgement.

10.14 In the Special General Meeting held on 15th October, 2011, where Defendant Nos. 3 and 4 were present, the Secretary informed the members that all the three agreements i.e. the conveyance deed, the redevelopment agreement and the power of attorney were executed on Tuesday 11th September, 2011 since the day was an auspicious day being Anant Chaturthi. Apart from three authorised signatories of the Society, Shri Maganbhai Shah and Smt. Laxmibai Jain had also attended and given their signatures on the documents as witnesses. The Secretary also informed the members that the documents were stamped on 27th September, 2011, and the same were registered at the office of the Sub-Registrar at Borivali on 28th September, 2011. Subsequently, on 3rd October, 2011, the developer handed over the original stamped conveyance deed along with the photo copies of the redevelopment agreement and power of attorney to the Society''s authorised signatory. The members of the Society were requested to prepare for vacating their respective premise by March/April, 2012. The members demanded for copies of all the three agreements. A copy of each of the documents were made available to one of the members Mr. Pandya in the meeting itself. The members were also informed that the developer has given a cheque to the Society for Rs. 27 lakhs being 50 per cent towards hardship compensation (corpus) payable to the members of the Society. The Secretary also read out a list of amenities to be provided by the developers. Since members along with their families were given an opportunity on 9th October to visit Ratnakunj Society Building at Eksar Road developed by the Plaintiff and after inspecting the amenities provided in the said building to make their suggestions, the members gave their suggestions.

10.15 On 30th July, 2012, in furtherance of the Development Agreement, the Plaintiff obtained NOC from Fire Brigade, approval of parking lay out, Town Planning Remark, etc. and made various payments towards deposits, premium, etc.

10.16 On 30th July, 2012, the Plaintiff by an Agreement for transfer utilization of FSI acquired and purchased TDR ( Exh. F to the Plaint).

10.17 On 15th January, 2014, the Plaintiff by its letter forwarded to Defendant No. 1 the format of undertaking/consent letter to be obtained from members of Defendant No.1.

10.18 On 18th January, 2014, Defendant No. 1 along with their letter forwarded to the Plaintiff consent letters, duly signed by 22 members (Exhibit-H Pg. 101 of the Plaint).

10.19 On 5th February, 2014, the Plaintiff by its letter confirmed the receipt of consent letter and further informed Defendant No. 1 that the proposal of redevelopment is on the final verge of sanction of MCGM, subject to submission of consent letters of all the existing members.

10.20 Defendant No. 1 Society by its letter dated 7th February, 2014, addressed to Defendant Nos. 2 to 6 informed them about the fact of submission of the consent letters by most of its members and reminded them that they are required to submit their consent letters to Defendant No.1.

10.21 On 8th May, 2014, Deputy Registrar, Co-operative Societies by his letter/order granted his no objection/consent for redevelopment of the suit building of defendant No. 1 in accordance with the redevelopment agreement.

10.22 On 9th July, 2014, MCGM issued notice under Section 354 of the MMC Act to the Society.

10.23 On 17th July, 2014, Defendant No. 1 by its letter informed Defendant No. 2 about the receipt of Section 354 notice from the MCGM and further requested Defendant No. 2 to submit their consent letters.

10.24 On 4th September, 2014, Defendant Nos. 2 to 6 by their Advocates letter refused to give their consent and informed that they are under the process of challenging the agreement.

10.25 The Plaintiff by its letter dated 18th October, 2014, informed Defendant No. 1 that they are about to get the IOD.

10.26 Defendant No. 1 by its letter dated 22nd October, 2014, informed the Plaintiff about the summons issued by Metropolitan Magistrate''s Court.

10.27 On 31st December, 2014, the Plaintiff received the IOD and informed about the same to the Defendant No.1 by its letter dated 3rd January, 2015.

10.28 Defendant Nos. 2 to 6 by their Advocate''s letter dated 14th February, 2015, made various allegations against the office-bearers of Defendant No. 1 and the partner of Plaintiff.

10.29 Defendant No. 1 by its Advocate''s letter dated 5th March, 2015, addressed a letter to the Advocate for Defendant Nos. 2 to 6 recording the facts which according to them were true and correct.

10.30 The Plaintiff by its letter dated 9th February, 2016, addressed to Defendant No.1 called upon all the members of Defendant No. 1 to collect the post dated cheques for acquiring temporary alternate accommodation.

10.31 The Defendant No. 1 Society also addressed a letter dated 2nd April, 2016 to Defendant Nos. 2 to 6 requesting them to collect their cheques.

10.32 Defendant Nos. 2 to 6 by their Advocates letter dated 4th April, 2016, persisted with the false, baseless and vexatious allegations against the Committee members of Defendant No.1.

10.33 Defendant No. 1 by its letter dated 14th April, 2016, addressed to the Plaintiff informed the Plaintiff that Defendant Nos. 2 to 6 have not accepted their rental cheques.

10.34 On 16th May, 2016, Defendant Nos. 2 to 6 filed a Suit being Civil Suit No. 1440 of 2016 before the Bombay City Civil Court at Dindoshi challenging the conveyance in favour of the Society and also the development agreement between the Society and the Plaintiff.

10.35 Defendant No. 1 by its letter dated 19th May, 2016, informed the Plaintiff about the dissenting members and further authorised the Plaintiff to initiate legal proceedings against the dissenting members,

10.36 The Plaintiff by their letter dated 21st May, 2016, informed Defendant No. 1 about the steps taken towards redevelopment and requested Defendant No. 1 to cause Defendant Nos. 2 to 6 to vacate the suit premises and hand over possession for demolition.

10.37 Defendant No. 1 by its letter dated 23rd May, 2016, addressed to the Plaintiff informed the Plaintiff that save and except Defendant Nos. 2 to 6 all other members have vacated their respective premises and handed over possession for demolition.

10.38 By an order dated 9th June, 2016, the Bombay City Civil Court at Dindoshi refused to grant any ad-interim relief to the Defendant Nos. 2 to 6 in the draft Notice of Motion taken out by Defendant Nos. 2 to 6 in Suit No. 1440 of 2016 filed on 16th May, 2016.

10.39 Being aggrieved by the order dated 9th June, 2016, Defendant Nos. 2 to 6 have preferred an Appeal from Order before this Court. However, till date they have not moved the same for any interim relief.

10.40 On 11th June, 2016, the MCGM issued further notice to the Society, directing evacuation of the suit building.

10.41 On 27th June, 2016, the Plaintiff filed the above Suit.

10.42 Defendant Nos. 2 to 6 through their Advocates letter dated 20th June, 2016, alleged that the said building is not falling under C-1 category and made allegations against the Officers of MCGM and Police Authorities.

10.43 On 5th July, 2016, MCGM issued notice to Defendant Nos. 2 to 6 , inter alia, directing them to evacuate the premises immediately otherwise MCGM will vacate the premises with the help of police authorities on or before 18th July, 2016 and also water and electricity connection will be disconnected without further intimation.

10.44 On 11th July, 2016, Defendant Nos. 2 to 6 by their letter requested MCGM not to take any action till judgment of the Court in the above suit.

10.45 On 18th July, 2016, MCGM disconnected water and electric supply of the building.

10.46 On 21st July, 2016, Defendant Nos. 2 to 6 filed Writ Petition (St.) No. 1979 of 2016 in this Court which Writ Petition was disposed of by orders dated 27th July, 2016 and 1st August, 2016 by referring the matter to Technical Advisory Committee (TAC) in view of the structural report dated 25th July, 2016, obtained by Defendant Nos. 2 to 6 from N.M. Consultants. However, in the order passed in the Writ Petition, this Court has inter alia observed that the order passed in the Writ Petition or the TAC report will not come in the way of the Civil Court in deciding the controversy raised in the suit.

11. The Learned Advocate appearing for the Plaintiff has taken me through the above facts and the documents in support thereto and has submitted that majority of the members of the Society i.e. 22 out of 27 members have after due deliberations and passing resolutions agreed to have the suit property redeveloped through the Plaintiff. There is no provision in the Co-operative Societies Act or the Rules or any other law which would curtail the right of the Society to redevelop the property when the General Body of the Society intends to do so, which is the commercial wisdom of the General Body of the Society. It is settled law that it is not open to the Court to sit over the said wisdom of the General Body of a Society, as an appellate authority. In support of this contention, the Plaintiff has relied on the decision of the Court in Girish Mulchand Mehta and another v. Mahesh S. Mehta and another, 2010 (1) ALL MR 719.

12. It is submitted that Defendant Nos. 2 to 6 have till date not challenged any of the Resolutions passed by the Society pertaining to the redevelopment of the suit property. Even in the suit filed before the City Civil Court, by Defendant Nos. 2 to 6, the resolutions passed by the Society are not challenged. Most of the allegations now made by Defendant Nos. 2 to 6 are nowhere to be found in the said City Civil Court Suit. Defendant Nos. 2 to 6 are therefore bound by the Resolutions and the decisions taken by Defendant No. 1 which is in the general interest of its members. The non- co-operating 5 members being an admitted minority therefore cannot stall/obstruct the redevelopment project as held by this Court in several of its decisions including the decision in the case of Disha Construction v. Jaysen S. Mastakar & Ors., 2013 (5) ALL MR 696 (Para no. 63).

13. It is further submitted that the Plaintiff is willing to provide to Defendant Nos. 2 to 6 all the benefits which are provided to the other members of the Society as follows:

14. It is also submitted on behalf of the Plaintiff that the balance of convenience is completely in favour of the Plaintiff and the majority members and against Defendant Nos. 2 to 6 for the following reasons:

14.1 The Defendant Nos. 2 to 6 are bound by the Resolution and decision taken by Defendant No.1 which is in the general interest of all of its members.

14.2 That Defendant Nos. 2 to 6 are clearly defying the Resolutions and decisions of Defendant No.1 with a mala fide and dishonest intention to extract an unfair and inequitable advantage from the Plaintiff, the Defendant No.1''s Society and its members.

14.3 The Defendant Nos. 2 to 6 are the only members who are refusing to vacate their respective premises and are indulging in arm twisting tactics and holding the entire project to ransom with the object of extracting monetary gains and other benefits from the Plaintiff.

14.4 The decision of majority is binding on the non-co-operative members. Save and except the non-co-operating members, none of the members have made any complaint against the Society or the Plaintiff on any count whatsoever.

14.5 The majority of the members have no quarrel in having the redevelopment project executed through the Plaintiff as per the terms contained in the development agreement.

14.6 The majority of the members also have no grievance qua the conduct of the meetings and the Resolutions passed thereat.

15. The learned Advocate appearing for Defendant Nos. 2 to 6 has submitted as follows:

15.1 That the redevelopment agreement and the deed of conveyance were executed on the same day that is on 28th September, 2011 and therefore collusion between the Plaintiff builder and some of the Managing Committee members of the Defendant No. 1 Society particularly Chairman, Secretary and Treasurer is evident.

15.2 It is not provided in the redevelopment agreement that the Permanent Alternate Accommodation (PAA) shall be registered prior to seeking the possession nor any plan approved by the Corporation is annexed.

15.3 That the signatures on the development agreement of Shri S.P. Vishwasrao, Chairman, Mr. N.J. Rao, Secretary and Mr. Ritesh C. Shah, Treasurer are without any reference to a particular resolution of the Society.

15.4 The Resolutions of the Society have been fabricated.

15.5 That till date TDR is not shown to be loaded nor any agreement pertaining to the TDR is executed in the name of the Society.

15.6 That the Plaintiff cannot insist on the shifting of the occupants from the existing flats/shops until the loading of TDR and approval of entire plan by the MCGM.

15.7 Defendant Nos. 2 to 6 are not made aware of the location of the shops/residential premises that will be allotted to them in the new construction.

15.8 That no details of the amenities is provided even in the development agreement.

15.9 Since 2007-2008 till 28th September, 2011, neither the meeting was called for nor was the conveyance executed in favour of the Society.

15.10 That no procedure as specified under the D.C. Regulations, 1991 and also under Section 79-A of the MCS Act to call for tender and appointment of Project Management Consultants (PMC) has been followed by Defendant No. 1.

15.11 Without furnishing approved plan/proposed plan for the new building, the Plaintiff and Defendant No. 1 on their own without verifying the usable area (carpet and the additional area) calculated the area and unilaterally decided the floor and premises to be allotted.

15.12 That the Defendant No. 2 at present is occupying ground floor premises which was long back permitted by MCGM to be used for commercial purpose and both the electricity bill (LT-2) and the Municipal Assessment taxes are levied accordingly and even Defendant No. 1 Society has given NOC after having Rs. 1,50,000/- as donation.

15.13 That the partner of the Plaintiff Mr. Pravin C. Jain is uncle of one Mr. Jitu Jain of Vile Parle who is also running the business in the similar name of Kamala Landmark and whose misdeeds are known in the market.

15.14 Again out of 5 projects of the Plaintiff developer, in none of the Project, the Building Completion Certificate has been issued and Occupation Certificate is not issued in three projects.

15.15 The Plaintiff has also altered and amended the plans without consent of the members in a building known as Neminath situated at Borivali (West).

15.16 That the Bank Guarantee of Rs. 81 lakhs offered by the Plaintiff is not adequate.

15.17 That the width of the shops is smaller than before.

15.18 That the corpus payable by the developer is not distributed amongst the members.

15.19 The offer made as regards keeping some flats vacant in addition to the Bank Guarantee serves no purpose since the value of the same is hardly Rs. 24 lakhs.

15.20 That the decisions relied upon by the Developer/Society are not applicable to the facts of the preset case.

15.21 The developer be therefore directed to comply with the various conditions as enumerated by Defendant Nos. 2 to 6 in paragraph 10 of the affidavit in reply.

16. I have considered the submissions advanced on behalf of the Plaintiff- Developer, Defendant No. 1- Society and the non-co-operating members i.e. Defendant Nos. 2 to 6.

17. The non-co-operating members have first contended that the deed of conveyance is bad and illegal and since the Redevelopment Agreement and the Deed of Conveyance are executed on the same day, there appears to be collusion between the Plaintiff builder and the Defendant No. 1 Society more particularly its office bearers.

17.1. The Society building was constructed in or about 1973-74 and is therefore admittedly about 43 years old. The decision to redevelop the property of the Society, which has 27 members, of which 19 are in possession of residential flats and 8 are in possession of commercial premises/shops, was taken in the year 2006/2007. The minutes of the meeting show that from day one the members of the Society decided to get redevelopment carried out through the Plaintiff Developer and none of the members objected to the said work being assigned to/carried out by the Plaintiff developer until the non-co-operating members started raising objections only in the year 2014.

17.2. However, there was no conveyance deed executed in favour of the Society qua the suit property even after three decades from the date of the formation of the Society. Though the members unanimously decided to get the property of the Society redeveloped, they had correctly insisted that the conveyance deed in respect of the suit property should be obtained in favour of the Society before commencing redevelopment of the suit property. The developer was saddled with the responsibility of taking steps to obtain the conveyance deed qua the property of the Society in favour of the Society without the society being burdened with any costs/expenses.

17.3. It cannot be disputed that to get the property conveyed in favour of the Society after more than three decades would not be an easy task for any developer and would involve substantial time as well as expenditure. However, the Plaintiffdeveloper agreed to the condition of the Society to first obtain a conveyance deed in respect of the suit property in favour of the Society and thereafter commence redevelopment of the suit property.

17.4. In the Special General Meeting held on 8th December, 2007, which was attended by Defendant Nos. 2, 3, 4 and 6, it was unanimously resolved by the members of the Society to authorise the Managing Committee of the Society to negotiate with the Plaintiff developer and take decisions on behalf of the Society as regards the issues pertaining to execution of a deed of conveyance in favour of the Society. Again, in the Special General Meeting of the members held on 5th April, 2008, which was attended by Defendant Nos. 2, 3, 4 and 6, the Secretary of the Society informed the members that the Developers had inter alia provided a draft conveyance deed. In the Annual General Meeting held on 9th August, 2008, when Defendant Nos. 2 and 3 were present, the Chairman explained to the members the progress made in respect of the conveyance deed and also informed the members that the Plaintiff had agreed that the draft conveyance deed shall be prepared/approved by an Advocate or a Solicitor as recommended by the Advocate for the Society. Again in the Annual General Meeting held on 24th July, 2010, when Defendant Nos. 2, 3, 4 and 6, were present, the members were again apprised of the developments qua the execution of the conveyance deed and the members were informed that it was decided in the meeting between the Plaintiff developer and the Managing Committee of the Society and their Advocate held on 7th July, 2010, that the developer would first execute the conveyance deed and get it registered and thereafter the Society shall execute the redevelopment agreement. The draft conveyance deed which was approved by the developer and the Advocate for the Society was placed before the General Body Meeting of the Society in the SGM meeting of the Society held on 23rd April, 2011, where Defendant Nos. 3 and 4 were present and unanimously approved. In the Special General Meeting held on 11th June, 2011, the General Body of the Society authorised the Managing Committee to pass necessary Resolutions required for executing the Conveyance Deed. In the Special General Meeting held on 15th October, 2011, where Defendant Nos. 3 and 4 were present, the Secretary also informed the members that all the three agreements i.e. the conveyance deed, the redevelopment agreement and the power of attorney were executed on Tuesday 11th September, 2011 since the day was an auspicious day being Anant Chaturthi. Apart from three authorised signatories of the Society, Shri Maganbhai Shah and Smt. Laxmibai Jain had also attended and given their signatures on the documents as witnesses. The Secretary also informed the members that the documents were stamped on 27th September, 2011 and the same were registered at the office of the Sub- Registrar at Borivali on 28th September, 2011, and subsequently, on 3rd October, 2011, the developer handed over the original stamped conveyance deed along with the photo copies of the redevelopment agreement and power of attorney to the Society''s authorised signatory. None of the members including th non-co-operating members i.e. Defendant Nos. 3 and 4 who were present at the meeting registered any protest/opposition. In fact, at the said meeting the members had asked for copies of the same and one of the members was given a copy at the meeting itself.

17.5. Therefore, the Managing Committee of the Society had since the year 2007, until the deed of conveyance was executed and registered in the year 2011, at every stage provided all the particulars qua the deed of conveyance to its members including the non-co-operating members i.e. defendant Nos. 2 to 6 herein, who never raised any objections at that stage but only when they were asked to hand over possession of the respective premises they started taking objections three years thereafter i.e. in the year 2014 and filed a suit in May, 2016 that is five years after the conveyance deed was executed and registered. In fact the name of the Defendant No. 1 Society has been duly recorded, mutated and entered as owners of the property in the Property Register Card, and no objection has been raised by anyone in all these years. The non-co-operating members have in the suit filed by them before the City Civil Court at Mumbai inter alia contended that the Khambhayata family did not have ownership rights in the property. As pointed out by the Plaintiff developer as well as by the Defendant No. 1 Society that whilst purchasing their premises in or about 1974, Defendant Nos. 2 to 6 did not challenge the rights of Khambhayata family in respect of the suit property and after several decades thereafter are now seeking to challenge the ownership rights of Khambhayata family on the grounds alleged. It is also pointed out by the Society as well as the Plaintiff that Shri Pravin C. Jain, Partner of the Plaintiff had obtained registered Power of Attorneys from the original owners in favour of Defendant No.1. The City Civil Court at Bombay has also rejected the Application filed by the non-co-operating members seeking ad-interim reliefs as far back as on 9th June, 2016. Since it was a precondition that the Plaintiff developer before starting the redevelopment process shall arrange execution of the conveyance deed in respect of the suit property in favour of the Society, there is nothing irregular in the conveyance deed and the redevelopment agreement being executed on the same day and thereafter also registered on the same day. Therefore, no motives can be attributed to the same. In fact, this is what the members of the Society wanted and had insisted upon. Therefore the allegations made by the non-co-operating members that the conveyance deed obtained by the Society in respect of the suit property is bad and illegal and that the conveyance deed is executed by the Managing Committee of the Society in collusion with the Plaintiff developer are totally frivolous, are made with the sole intention of delaying the handing over of possession of their present premises to the developer, and are rejected.

18. The non-co-operating members i.e. Defendant Nos. 2 to 6 have next contended that the development agreement is bad and illegal since the same is signed without any Resolution; the Resolutions of the Society are fabricated; the Society has not obtained consent of each member for redevelopment; the conditions of MoU of the year 2008 have not been complied with nor incorporated in the development agreement; the procedure specified in the DC Regulations 1991 and also under Section 79-A of the MCS Act to call for tender and appointment of Project Management Consultants (PMC) has not been followed by Defendant No.1; the plans were not placed before the members of the Society; the list of amenities is not found in the development agreement; and the non-co-operating members are not conveyed the particulars of their new flats.

18.1. As stated earlier, the decision of the Defendant No. 1 Society to undertake the job of redevelopment of the property and the unanimous decision taken by the members of the General Body of Defendant No. 1 Society was taken in the year 2007 when the provisions of Section 79-A of the MCS Act was not in existence. Again, as set out earlier, in the Special General Meeting of the Society held on 13th October, 2007, the members of the Society unanimously decided to redevelop the property of the Society. In the said meeting, the name of only one developer figured i.e. the Plaintiff. Though the meeting was attended by Defendant Nos. 2, 3 and 6, there was no objection to the same. In the Special General Meeting of the Society held on 1st December, 2007, the Chairman informed the members about the MoU reached between the Managing Committee members and the Plaintiff developer and also informed the Members qua the negotiations between the Managing Committee of the Society and the Plaintiff developer. Again in the Special General Meeting held on 8th December, 2007 which was attended by Defendant Nos. 2, 3, 4 and 6, it was unanimously resolved to authorize the Managing Committee of the Society to negotiate with the Plaintiff developer and take decision on behalf of the Society, inter alia, as regards the issue pertaining to the redevelopment of the suit property. On 22nd January, 2008, an MoU was executed between Defendant No. 1 Society and the Plaintiff to which Defendant No. 2 was a signatory on behalf of the Society.

18.2. In the Special General Meeting of the members held on 5th April, 2008, which was attended by Defendant Nos. 2, 3, 4 and 6, the Secretary of the Society informed the members that the Developers had provided draft copy of the redevelopment agreement and the measurement of flats and shops and also informed the members that the developer has yet to give some other documents like proof of their authority to execute conveyance deed and Power of Attorney from the original builders and draft copy of plan/plans of the proposed new building. In the Annual General Meeting held on 9th August, 2008, when Defendant Nos. 2 and 3 were present, the Chairman explained to the members the progress made in respect of the redevelopment of the Society building. In the Annual General Meeting held on 24th July, 2010, when Defendant Nos. 2, 3, 4 and 6, were present, it was decided to scrutinize the draft redevelopment agreement and the draft proposed building plan and to hand over the draft redevelopment agreement to the Advocate for the Society for finalization.

18.3. In the urgent Special General Meeting held on 5th January, 2011, in which Defendant Nos. 2, 3, 4, 5 and 6 were present, the Secretary of the Society explained to the members that the Committee was waiting for the Advocate''s approval in respect of the draft copy of the redevelopment agreement and power of attorney. He also informed the members that on 7th December, 2010, the developers submitted the proposed tentative typical floor plan with a copy of the carpet area statement and allotment of proposed flat/unit proposed for Society''s approval. The members were informed that in the Committee Meeting held on 30th December, 2010, the tentative building plan was scrutinized by the Committee and it was decided to present it to the members for their opinion/approval and therefore the said meeting was called on that day to take a decision in the matter. Photo copies of the plan with details were also distributed amongst the members. As recorded in the minutes of the meeting, the Chairman explained to the members their respective existing carpet area, additional carpet area and the placement of the respective flats/units in the proposed tentative building plan and the members were requested to give their opinion. Some of the members expressed their opinion viz. that the plan was not as per Vastu Sastra, kitchen should not be facing the road side, the present flats located in eastern and western side be placed at the same location in the proposed new building. It was therefore decided to refer the plans back to the Developer for improvement on the above points. In the Special General Meeting of the members of the Society held on 23rd April, 2011, where Defendant Nos. 3 and 4 were present and on 29th May, 2011 which was attended by all the non-co-operating members, the developer clarified all the points raised by the members. The entire draft redevelopment agreement was also read out at the said meeting and the draft redevelopment agreement was approved unanimously subject to certain points in the agreement to be clarified by the Developer/Advocate wherever necessary. The General Body authorised the Managing Committee to pass the required resolutions necessary for executing the redevelopment agreement.

18.4. In the Special General Meeting held on 11th June, 2011, which was attended by Defendant Nos. 3,4 and 6, the draft building plan submitted by the developers on 28th May, 2011 was taken up for final approval. At the said meeting, the Chairman requested the members to approve the plan subject to ratification of certain observations/views of the members and the same was approved by the members unanimously. The General Body also authorised the Managing Committee to pass necessary resolutions required for executing the conveyance deed as well as the redevelopment agreement and the Power of Attorney.

18.5. In the Annual General Meeting held on 23rd July, 2011, the members were informed that on 22nd June, 2011, the Chairman and the Secretary were called by the developer and given a revised draft copy of the plan for approval. Vide Society''s letter dated 4th July, 2011, all the members of the Society were supplied with photo copies of plans against their acknowledgement.

18.6. In the Special General Meeting held on 15th October, 2011, where Defendant Nos. 3 and 4 were present,

the Secretary informed the members that all the three agreements i.e. the conveyance deed, the redevelopment agreement and the power of attorney were executed on Tuesday 11th September, 2011, the documents were stamped on 27th September and the same were registered at the office of the Sub-Registrar at Borivali on 20th September, 2011 and on 3rd October, 2011, the developer handed over the original stamped conveyance deed along with the photo copies of the redevelopment agreement and power of attorney to the Society''s authorised signatory.

The members were also informed that the developer has given a cheque to the Society for Rs. 27 lakhs being 50 per cent towards hardship compensation (corpus) payable to the members of the Society. The Secretary also read out a list of amenities to be provided by the developers. The members were also given an opportunity on 9th October to visit Ratnakunj Society Building at Eksar Road developed by the Plaintiff developer and after inspecting the amenities provided in the said building to make their suggestions. The members had therefore visited the said Ratnakunj Society, and therefore gave their suggestions qua the amenities at the Meeting held on 15th October, 2011.

18.7. It is therefore, clear that the Managing Committee of the Defendant No.1 Society has throughout i.e. since the year 2006/2009 maintained complete transparency qua the steps taken for the redevelopment of the suit property. All the meetings are attended by Members including all or some of the non-co-operating members. Attendance sheets are signed by the members and non-co-operating members who have attended the meetings. The redevelopment agreement was read out in the General Meetings, discussed and approved by the Advocates for the Society as well as the members. After negotiations with the developer the building plans were placed before the General Body, suggestions were noted, photo copies of the plans were given to all the members, the members were explained their respective existing carpet area, additional carpet area and the placement of the respective flats/units in the proposed tentative building plans and suggestions were approved thereon. The plans were thereafter approved, the members were informed about the amenities that would be provided to them in their new premises and the Managing Committee was authorised to take further steps in the matter. The non-cooperating members did not take any objection during all these years i.e. from 2006- 2007 upto 2011 when the redevelopment agreement was executed and registered and the building plans were approved. They started taking objections only in the year 2014 when they were required to give possession of their flats/shops to the Plaintiff developer. Five years after the redevelopment agreement was executed and registered they challenged the same before the City Civil Court wherein most of the allegations now made are not to be found. Not a single resolution is challenged by the non-cooperating members in their suit or before any authority/forum till date. In any event, the Resolutions passed by the Society cannot be challenged in the present suit. Again, except for the non-co-operating members, none of the members of the Society have contended that the minutes compiled by the Defendant No.1 Society are fabricated. Since there were certain errors in the manner in which the photo copying of the minutes were compiled by the Defendant No. 1 Society, the same did not make proper reading. Defendant Nos. 2 to 6 tried to take advantage of the same and alleged that the minutes are fabricated. Defendant No. 1 Society has produced the original minute books and have also filed an affidavit clarifying the position, which makes it absolutely clear that the allegations made by Defendant Nos. 2 to 6 that the minutes are fabricated is incorrect. More than ten years after the members unanimously decided to have the property developed through the Plaintiff developer, the non-cooperating members now contend that tenders were not invited and the development is in violation of Section 79A of the MCS Act. In any event, this Court has in the case of Harsha Co-op. Housing Society Ltd. and others v. Kishandas S. Rajpal and others, Unreported judgment dated 8th March, 2010 in Civil Writ Petition No. 10285 of 2010 observed /held as under:

10. It is argued on his behalf that by Government Notification issued under Section 79A of the Maharashtra Cooperative Societies Act (the Act), a registered architect on the panel of the Government was to be selected and the procedure as shown therein required to be complied which is not done and which vitiated decision of the society.

11. The reliance upon the Government Notification is itself misplaced. When the members of the cooperative housing society which, under law of cooperation, decides by a majority of 11:1 members that the society premises be developed in a particular fashion by a particular developer, it would be contrary to principles of democracy by which the society is governed, for the sole dissenting member to interfere and require a procedure, not required by the majority of the members to be followed which would only consume time and be counterproductive. The Government Resolution would be required to be followed by the society where the members are unable to come to any decision by a resolution of their own."

In fact, the Deputy Registrar, Co-operative Societies by his letter dated 8th May, 2014 has also granted his No Objection/Consent for redevelopment of the suit building of Defendant No. 1 in accordance with the redevelopment agreement dated 28th September, 2011. In view thereof, the contentions of the non-co-operating members i.e. Defendant Nos. 2 to 6 recorded in paragraph 23 above cannot be accepted and are hereby rejected.

19. Defendant No. 1 has next contended that the Plaintiff has not loaded the TDR and there is no plan approved by the Corporation. According to the Plaintiff, they are ready to load the TDR. However they submit that the non-co-operating members are only raising some excuse or the other to delay giving vacant possession of their premises. They have submitted that the non-co-operating members are well aware that since all the flats in the new construction agreed to be handed over to the members of the Society are from ground upto the seventh floor, no TDR is required to be loaded for that purpose. To ascertain the correctness of the statement, the Executive Engineer of the Corporation was directed to attend the Court which he did. The Executive Engineer has confirmed that the statement made by the Plaintiff is correct and for construction upto the 7th floor no TDR is required to be loaded. The submission that there is no plan approved by the Corporation is also incorrect and the IOD is already obtained by the Plaintiff. In fact, the Advocate for the Plaintiff by letter dated 28th February, 2017 addressed to the Advocate for Defendant Nos. 2 to 6, has inter alia forwarded a letter dated 2nd December, 2016 issued by the Mumbai Municipal Corporation in respect of deduction of TDR admeasuring 710 sq.mtrs. for utilization of the same on the Society''s plot bearing FP No. 212 TPS III of village Borivali, L.T. Road, and also photo copy of the sanctioned plan wherein the premises to be provided to Defendant Nos. 2 to 6 are highlighted with red colour boundary line.

20. The non-co-operating members have contended that the Bank Guarantee given by the Plaintiff developer is only of Rs. 81 lakhs. The members of the Society have by majority agreed that the Bank Guarantee required to be provided by the Plaintiff should be of Rs. 81 lakhs. The decision taken by the majority of the members is binding on the non-co-operating members and they are not entitled to insist on changing the conditions which are accepted by the majority members. However, in response to a query raised by the Court whether the Plaintiff developer would agree to keep at least three flats vacant under the free sale category until possession of the premises in the new building is handed over to all the members of the Society, they have readily agreed not to encumber three premises available to them for free sale being flat No. 203 admeasuring 555 sq.ft. (carpet area), Flat No. 301/A admeasuring 258 sq.ft. (carpet area) and Flat No. 301/B admeasuring 489 sq.ft. (carpet area) till the Plaintiff offers possession of the premises in the new building to the members for fit out works to Defendant No.1. There is therefore no substance in the grievance raised by the non-co-operating members qua the quantum of bank guarantee agreed to be provided by the Plaintiff developer and their objection is therefore rejected.

21. Defendant Nos. 2 to 6 have next contended that the Plaintiff has not executed the Permanent Alternate Accommodation (PAA) and have not annexed plans to the PAA Agreement showing the premises that would be allotted to the non-co-operating members. This contention of the non-co-operating members is belied by a letter dated 28th February, 2017, addressed to the Advocates for Defendant Nos. 2 to 6, inter alia, referring to their earlier letter dated 1st September, 2016 by which they had forwarded 5 ledger print outs of Alternate Accommodation Agreements with all annexures thereto in respect of the new premises (including list of amenities) to be provided to Defendant Nos. 2 to 6 which letter along with the enclosure was received by the Advocate on 1st September, 2016 at 6.30 p.m. By the said letter dated 28th February, 2017, the Advocate for the Plaintiff once again forwarded 5 Alternate Accommodation Agreements in respect of the new premises to be provided to Defendant Nos. 2 to 6 and also forwarded a letter dated 2nd December, 2016 issued by the Mumbai Municipal Corporation in respect of deduction of TDR admeasuring 710 sq.mtrs. for utilization of the same on the Society''s plot bearing FP No. 212 TPS III of village Borivali, L.T. Road, and also photo copy of the sanctioned plan wherein the premises to be provided to Defendant Nos. 2 to 6 are highlighted with red colour boundary line.

22. The Defendant Nos. 2 to 6 next contended that they are entitled to the corpus amount payable by the Plaintiff under the Agreement. The Plaintiff has already deposited 50 per cent of the agreed corpus amount with the Society and undertakes to deposit the balance corpus amount within a period of two weeks from the date of uploading of this order. The Society undertakes to hand over the entire corpus to its members upon the non-co-operating members handing over possession of their respective premises to the Society. The undertaking is accepted.

23. The Defendant Nos. 2 to 6 next contended that they do not trust the Plaintiff developer since he is the uncle of Shri Jitendra Jain and Jinendra Jain who are also carrying on the business in the name of ''Kamla'' and have cheated several flat purchasers. They have submitted that till date the Plaintiff developer has not obtained occupation certificate qua any of its projects and has purported to amend the plans without consent of the members in respect of redevelopment of the building known as Neminath situated at Shimpoli Road, Borivali (West) where the front side occupiers of the commercial area have been made to go on the rear side after having the plan amended. In response the Plaintiff has denied all the above allegations. It is submitted on behalf of the Plaintiff that they are carrying on their business which is independent of the business carried out by Mr. Jitendra Jain who is in no way connected with their business. If that be so, the uncle of Jitendra Jain and Jinendra Jain and others cannot be punished for the misdeeds of his nephews. It is further submitted by the Plaintiff that the allegations made by Defendant Nos. 2 to 6 that the Plaintiff has not got the occupation certificate for other projects is incorrect. The Plaintiff is in the process of obtaining Occupation Certificate. In respect of the list relied upon by Defendant Nos. 2 to 6, Occupation Certificates in respect of three projects are already received and rest are in the process of being issued, which the Plaintiff is expecting within couple of months. Again in respect of the project viz. SBI Staff Shree CHS Ltd., Sonawala Road, Goregaon (East), which is not in the list produced by the Defendant Nos. 2 to 6, the Plaintiff has obtained the Occupation Certificate dated 26th September, 2016. There is no case against the Plaintiff filed by any Co-operative Society in respect of any redevelopment project work undertaken by the Plaintiff. The Plaintiff undertakes to complete the construction and hand over the flats to the members of the Defendant No. 1 Society for fit out works within a maximum period of 24 months from the date of the Plaintiff receiving vacant possession of all the flats including the flats/shops of Defendant Nos. 2 to 6 from Defendant No.1. The Plaintiff also undertakes not to get the sanctioned plans amended which would in any way affect all that is promised to be given and shown in the sanctioned plans to the Society and its members. The undertaking is accepted.

24. The learned Advocate appearing for the non-cooperating members has submitted that there is no clarity qua allotment of parking space to the members. He has submitted that Defendant No. 6 was in the year 1998 granted permission to park two vehicles and his wife who is in possession of flat No. 01 was also allotted one parking space. Therefore between Defendant Nos. 6 and 2 (husband and wife) the Society should allot three car parking spaces. The Learned Advocate appearing for the Society has informed the Court that it has been agreed that 60 per cent of the parking shall be handed over by the developer to the society and 40 per cent parking shall be retained by the Plaintiff which parking shall be allotted to the flat purchasers under the free sale category. It is submitted that the Society will attempt to give one parking to each of its members. It is pointed out that in the year 1998 since all the members were not having vehicles and since Defendant No. 6 was carrying on business of a Motor Training School he was allowed to park two vehicles in the compound of the Society. Subsequently this was not possible and therefore by a letter dated 10th January, 2013, Defendant No. 6 was informed that he is entitled to park only one vehicle in the compound of the Society. This letter has been acknowledged by Defendant No. 6 and not disputed. Though the issue pertaining to providing of parking space by the Society to its members cannot be the subject matter of the present suit filed by the Plaintiff developer for the reliefs claimed therein, the Society undertakes to allot one car parking space to Defendant No.2 and one parking space to Defendant No. 6. The statement made by the Society is accepted.

25. Again a grievance is made on behalf of Defendant No. 6 who is in possession of shop No.8, and his wife the Defendant No. 2 who is in possession of residential flat No. 01 on the ground floor, that since the Society had allowed Defendant Nos. 2 and 6 to use the residential flat on the ground floor as commercial premises, they should be given commercial premises in lieu of the residential flat on the ground floor and that the Society should not give the residential flat to Defendant No.2 on the first floor. Admittedly there is no permission from the Municipal Corporation of Greater Mumbai allowing change of user of the residential flat in possession of Defendant No. 2 to be used as commercial premises. Just because the Corporation has assessed the residential premises by charging commercial rates it cannot be construed that the Corporation had granted permission to Defendant No.2 to change the user of the flat from residential to commercial. Even if the Society has in the past allowed Defendant No. 2 to use her residential flat for commercial activity, the same does not entitle the Defendant No. 2 to contend that she is entitled to commercial premises in lieu of her residential flat or that her residential flat ought to be on the ground floor to enable her and her husband to use the same for commercial activities. The statements therefore advanced on behalf of Defendant Nos. 2 to 6 qua the user of the flat of Defendant No. 2 on the ground floor of the Society building also cannot be accepted and is rejected.

26. Left with no grievance, two of the non-co-operating members have sought to make a grievance that the width of their shops are reduced. The Advocates for the Developer as well as the Society have explained that in view of the new D.C. Regulations, the plinth of the building is required to be narrowed. However, admittedly the area of the newly constructed shops to be handed over to the two shop owners would be larger than the area presently in their occupation. During the last several years, the building plans were tabled at the General Meetings of the Society. The same were discussed and approved by the members of the Society and no such objection was raised. In any event, in one of the shops the business pertaining to stationery is carried out and the other is used as an office by a Motor Training School. The said reduction shall in no way prejudice the shop owners.

27. As decided by the Division Bench of this Court in Girish Mulchand Mehta and another v. Mahesh S. Mehta and another (supra), it is not open to the Court to sit over the wisdom of the General Body of a Society as an Appellate Authority. In my view, members of the Society by majority can also decide to include or give up certain terms/conditions set out/agreed under a development agreement, if the circumstances so demand. It will not be out of place to mention here that the tenants/ members of any premises/Society should always bear in mind that in any redevelopment project the developer provides several benefits, including providing new larger premises to the tenants/members with several amenities, completely free of charge. The developer is not a social worker but a businessman. Like in all business deals, the members/tenants of the premises try to extract maximum benefits from the developer and the developer tries to reap maximum profits from the project that he undertakes. However though the members are entitled to expect maximum benefits under a redevelopment project, when faced with certain circumstances which are difficult to resolve, they are also expected to make some sacrifices. However, in the instant case, there is not a single justifiable ground advanced by the non-co-operating members viz. Defendant Nos. 2 to 6 for not handing over their present premises for redevelopment. Defendant Nos. 2 to 6 are therefore clearly guilty of obstructing the redevelopment of the property of the Society. By their unreasonable, selfish and obstinate conduct they are putting the remaining 22 members and their family members who have already handed over possession of their respective premises to the Society and are residing in temporary alternate accommodation and waiting to shift in their newly constructed flats of larger area, to grave inconvenience. The non-cooperating members are in fact not even in occupation of their respective premises. Defendant No. 2 is not residing in her residential flat No. 1 but is residing at Veena Santoor CHSL, Sai Baba Nagar Extension Road, Opp. Sachin Tendulkar Gymkhana, Kandivli (West), Mumbai-400 067. Defendant No. 3 is also not residing in her residential flat No. 9 and has kept the premises closed since July, 2016. Defendant No. 4 is not residing in his residential Flat No. 14 but is residing at Flat No. B-102, Blue Bell CHSL, Royal Complex, Eksar Road, Borivali (West), Mumbai-400 092. Defendant No. 5 who is a member in respect of shop No. 4 has given the said shop on leave and license to "Bangalore Iyengar Bakery". Defendant No. 6 who is a member in respect of shop No. 8 is also not occupying the said shop and the same is used as an office by his son. The Defendant developer has till date spent substantial amounts towards obtaining the conveyance deed in favour of the Society, obtaining several permissions, towards purchase of TDR, making monthly payments to the members who have vacated their respective premises, etc. The balance of convenience is totally in favour of the Plaintiff and the members of the Society and against the non-co-operating members.

28. For all the above reasons, I pass the following order:

(i) Defendant Nos. 2 to 6 are ordered and directed to hand over quite, vacant and peaceful possession of their respective premises to Defendant No. 1 Society within a period of four weeks from the date of uploading of this order i.e. before 3rd May, 2017 and the Society shall in turn hand over the said premises to the Plaintiff Developer.

(ii) In the event of Defendant Nos. 2 to 6 failing to hand over possession of their premises to the Society as directed in clause (i) above, the Court Receiver, High Court, Bombay, will stand appointed as Receiver in respect of the premises. The Court Receiver shall take forcible possession of the said premises from the non-co-operating members who fail to comply with the order and/or any person found therein, if necessary with the assistance of the police and hand over the same to the Society for being handed over to the Plaintiff developer.

(iii) The non-co-operating members shall, at the time of handing over of their premises to the Society, execute the agreements for permanent alternate accommodation, drafts of which are already sent to them along with the annexures/enclosures, and the Plaintiff shall simultaneously pay to them all payments that they are entitled to under the development agreement and the subsequent agreement/s /arrangement/s, if any.

(iv) The Plaintiff developer shall, within 24 months from the date of receipt of vacant possession of flats/shops from all the 27 members, construct and hand over ownership flats along with the amenities as agreed under the Agreements for Permanent Alternate Accommodation to all the members of the Defendant No.1 Society.

(v) Liberty is granted to the parties to move this Court for further reliefs, in case of breach of any directions, statement/s undertaking/s recorded in this order.

(vi) The Plaintiff-developer shall, within two weeks from the date of this order being uploaded, pay the balance amount of Rs. 27 lakhs towards corpus to the Society which amount along with the amount of Rs. 27 lakhs earlier received from the developer distribute among the members, upon receiving vacant possession of all the residential flats/shops from its members.

29. Notice of Motion is disposed off with no order as to costs.

30. Defendant Nos. 2 to 6 to pay costs of the Motion to the Plaintiff.