JUDGMENT
Ravi R. Tripathi, J.
1. The present Appeal From Order is filed under section 104 read with Order XLIII, Rule 1(r) of the Code of Civil Procedure,1908 against the order dated 30.3.1995 whereby the Notice of Motion, exh.5 was rejected. The relief as prayed for in the Notice of Motion reads as under:
“17(A) that pending the hearing and final disposal of this suit the Honourable Court be pleased to restrain the defendant no.1 Corporation from sanctioning any revised plan submitted to it with respect to ‘C’ portion of subplot no.2 of final plot no.941 of T.P. Scheme No.3, Ellis Bridge, Ahmedabad, owned by the plaintiff unless such revised plan is signed by the plaintiff and in particular from sanctioning the revised plan submitted vide No.B & D/ WZ/ 77/ 7 or B&D/ WZ/ 99/ 9 or any other revised plan submitted under the signature of defendants no.2 or 3 or Rajnikant Mashruwala;
(B) that pending the hearing and final disposal of this suit, the Honourable Court be pleased to restrain defendants no.2 & 3 from making any construction on ‘C’ portion of subplot no.2 of final plot no.941 of T.P. Scheme No.3, Ellis Bridge, Ahmedabad owned by the plaintiff, in variance to the plan sanctioned under the signature of Rajnikant Mashruwala and the plaintiff society and to direct defendant no.1 Corporation to strictly prohibit the defendants no.2 & 3 from making any construction which in any way is in variance with the sanctioned plans;”
2. The learned Judge after considering the submissions of both the sides was pleased to pass order rejecting that application and vacating ad interim injunction. The facts of the case are that the appellant-original plaintiff is a registered cooperative housing society and it consists of only 13 members. Subplot no.2 admeasuring 2420 sq. yards was allotted to Chimanlal Karsandas Mashruwala. In the year 1952 on an application being made by said Shri Chimanlal Karsandas Mashruwala, names of his wife and six sons were added as joint members of the society in respect of subplot no.2. In the year 1960 the name of wife of Chimanlal was deleted. When Chimanlal Mashruwala expired in the year 1967, his sons, Bhanuprasad, Rajnikant, Sharadkumar, Navinkumar, Arunbhai and Dilipkumar became joint members and made an application dated 16.3.1973. A construction was proposed by five brothers other than Rajnikant in Part ‘C’ of the subplot. The society in its General Meeting held on 10.11.1974 passed Resolution No.3 to the effect that said subplot no.2 was not to be subdivided and was to be continued as jointly held and the name of late Shri Chimanbhai Mashruwala be deleted. Thereafter, on 27.12.1975 the Managing Committee of the society passed a unanimous resolution which is reproduced herein for ready reference:
“Resolved that in respect of the application dated 15.3.1973 received over the signatures of all the joint members of the society subplot no.2 that the society did not desire to create new membership, the society accepts that there is only one unit or entity of the joint members of the said subplot no.2, but in order that there may be administrative facility to the members in making construction, etc. in the said plot, the society accepts their arrangement in accordance with the boundaries shown in the plan produced with the said application and takes notes thereof and the society should accept hereafter plan application etc. produced by Shri Bhanuprasad ‘C’. Mashruwala and other four brothers (other than Rajnikant) over their joint signatures for making construction, changes or addition in the parts A & B and for part ‘C’ over the signature of Shri Rajnikant C. Mashruwala alone and the Secretary should make the necessary signatures and not.”
3. It is also stated that when the aforesaid resolution was passed, Shri Bhanuprasad C. Mashruwala and Arunbhai C. Mashruwala for other four brothers was present and did not raise any objection to the said Resolution. The Secretary of the society by letter dated 1.1.1976 informed Shri Rajnikant of the said Resolution. By the said Resolution, the society did not recognise Shri Rajnikant as the holder of any subdivided plot no.2-C or a member of the society as such holder. By applications dated 3.6.1978, 17.8.1978 the society was informed that Messrs Bhanuprasad, Nalinkumar and Dilipkumar wanted to release their share from the joint property, their right as well as right of their guardians, heirs and assignees and affidavit dated 6.1.1979 sworn before the Magistrate was sent to the society. The other three brothers also concurred with the same. Therefore, the Managing Committee of the society by its Resolution dated 12.1.1979 resolved that the names of three brothers, Bhanuprasad, Nalinkumar and Dilipkumar be deleted from the property register, shares and all other records of the society and the said subplot no.2 and constructions thereon shall be in the joint names of Messrs Rajnikant, Sharadkumar and Arunbhai. It is stated that the claim of Mashruwala brothers is that there was a partition of Hindu Undivided Family on 31.12.1980. But then no information of any such partition with any partition deed was given to the society and no such partition was registered in the records of the society. Later on as dispute arose between the joint members of plot no.2 and the society in view of the Resolution of the Managing Committee of the society dated 12.1.1979, the society by its Resolution No.4 passed at its Annual General Meeting held on 7.9.1985 resolved to cancel the facility provided under the Resolution dated 12.1.1979.
4. Under bye-law no.6 of the society, a member is prohibited from assigning or parting with possession of the property or any part thereof without previous consent in writing of the society. For ready reference bye-law no.6(A) is reproduced hereunder:
“6(A) On every permitted disposition or devolution of or dealing with the said plots and buildings or any part thereof under or by virtue of these resolutions, the member shall pay to the society, half the premium received by him from the purchaser member in respect of he said plot and shall also pay to the society in case of the sale of plot or buildings, half of the amount received by him over and above the capital cost with interest at 4.5% per annum upto a limit of 1/3rd of the capital cost and such payment received by the society shall belong to the society absolutely and carry to Reserve Fund.”
5. The society in its general meeting held on 27.2.1990 passed resolutions, inter alia, amending bye-law no.6(A), as under:
“It is resolved that the existing rule (bye law) 6-A of Form ‘B’ of leaflet (U) of the bye-laws of the society is hereby deleted and read in its place as under:
6A. On every permitted disposition or devolution or dealing with the said plots and/ or buildings or any part thereof and/ or any interest therein, under or by virtue of these resolutions and a member, on communicating the sale price of the society and the society accepting the same, the member shall pay to the society 10% (ten per cent) of the sale price receivable by him in respect of the said plot and/ or buildings or any part thereof, and/ or any interest therein and such payment received by the society shall belong to the society absolutely and carry to Reserve Fund.”
There is also a resolution not to accept a limited company as a member of the society. The society made an application dated 17.3.1990 to the District Registrar under sec. 13 of the Act read with Rule 6 of the Gujarat Cooperative Societies Rules, 1962 for sanction of the said amendments.
6. As dispute arose between Shri Rajnikant Mashruwala and others on the point of letting out the constructions made in the society’s plot to tenants for residential and/ or non residential/ commercial use, the society has to file suit under sec. 96 of the Act before the Board of Nominees, Ahmedabad. The Board of Nominees made certain interim orders dated 8.11.1985 below application, exh.6 therein. Against that Shri Rajnikant and others preferred revision application being Revision Application No.125 of 1985 to the Gujarat State Cooperative Tribunal, Ahmedabad. The same was disposed of by order dated 13.1.1986 by the Tribunal. Against which Shri Rajnikant and others filed Special Civil Application No.1056 of 1986 before this Court challenging the order dated 13.1.1986. However, during the pendency of the said Special Civil Application the parties arrived at a compromise dated 20.4.1987 and the petition was withdrawn with the permission of the Court by order dated 20.4.1987.
7. On 20.1.1990 Shri Rajnikant Mashruwala applied to the society for calling a general meeting of the society for taking decision for premium/ transfer fee to be charged on the proposed transfer of the alleged plot no.2-C by him to Ace Auto Private Limited alleging that the subplot no.2 in the society was of the ownership of the Hindu Undivided Family of his father; that on the death of his father the plot devolved upon the three brothers; that in the family partition, Rajnikant became owner of subplot no.2-C; that a decision had been taken by the society in that behalf; that he proposed to sell the plot to the company and was willing to pay upto 3% of the net sale price as premium/ transfer fee to the society. The society filed a Lavad Suit NO.477 of 1990 and obtained interim injunction restraining said Rajnitkant from transferring the plot. On 27.2.1990 the society at its Special General Meeting passed three resolutions. Shri Rajnikant addressed a letter dated 19.3.1990 to the Chairman of the society stating that he had interest in subplot no.2 of the society, which he is selling off to one Shri Bharatkumar Yogendra Makwana for Rs.22 lakhs and forwarded therewith his cheque for Rs.2.5 lakhs with instructions to keep the same as deposit in his name. He also requested the society to take 10% of the sale price for transfer fee and Rs.30,000/-, for the use of the society and to withdraw all the suits. The society responded to the same by letter dated 21.3.1990 stating that the society had no objection in Rajnikant’s disposition/ devolution of his 1/3rd undivided share and interest in plot no.2 of the society jointly held by him with his two brothers to Shri Bharatkumar Yogendra Makwana for a consideration of Rs.22 lakhs subject to Shri Rajnikant fulfilling all the conditions as laid down in the bye-laws of the society as amended from time to time and approved by the Registrar and abiding by the resolutions and procedures laid down for such transfer and usage by the society. The society withdrew Lavad Suit no.477 of 1990.
8. On 13.5.1993 the Society was informed that on 24.4.1990, four sale deeds came to be executed in respect of parts of subplot no.2C in favour of Shri Bharatkumar Yogendra Makwana as Chairman and Managing Director of Messrs. Ace Auto Private Limited, one each by said Shri Rajnikant, his wife and two by HUF of his two sons each conveying 1/4th undivided share in subplot no.2C admeasuring 800 sq. yards with undivided 1/4th share in the bungalow admeasuring 347.19 sq. yards for a consideration of Rs.5,50,000/- each. The three vendors other than that of Shri Rajnikant were/ are not members of the society or holders jointly or severally, of plot no.2 or 2-C or any part thereof. It was clarified that the No Objection Certificate issued by the society vide its letter dated 21.3.1990 was (i) for sale by Shri Rajnikant, a registered member of the society and not by his wife or HUF of his sons, (ii) for sale to Shri Bharatkumar Y. Makwana and not to any Chairman or Managing Director of a company and (iii) for a sale for Rs.22 lakhs and not for 4 sales of Rs.5.5 lakhs each.
21st November 2002
9. Shri Bharatkumar Y. Makwana with forwarding letter dated 13.5.1990 had forwarded to the society share transfer forms, indemnity bond executed by Shri Rajnikant Mashruwala, share certificates and a copy of four sale deeds. On 17.5.1990 copy of index was also sent to the society. The society did not transfer shares in favour of defendant no.2– Shri Bharatkumar Y. Makwana as Chairman-cum-Managing Director of defendant no.3 Ace Auto Private Ltd. as the society had resolved on 27.2.1990 not to accept a limited company as a member of the society.
10. Shri Rajnikant Mashruwala had also made an application to the District Registrar. The District Registrar by letter dated 20.8.1990 directed the society to transfer plot no.2 of Shri Rajnikant to Shri Bharatkumar Y. Makwana. The society had pointed out to the District Registrar by its letters dated 18.9.1990 & 17.11.1990 that Shri Rajnikant was not competent to sell plot no.2 in the society, that said Shri Rajnikant has cancelled the indemnity bond and that an amount of Rs.2.5 lakhs was deposited with the society only as a deposit and not paid to the society. It was also pointed out that there was no sub-division of plot no.2 and that the purported sale transactions were separate sales by said Shri Rajnikant, his wife and the Hindu Undivided Family of his two sons. Said Shri Bharatkumar Y. Makwana also made an application dated 10.2.1992 to the District Registrar under sections 24 & 82 of the Act seeking an order against the society to transfer subplot no.2-C and share certificate held by said Shri Rajnikant in the society to the company. The District Registrar issued a notice dated 15.2.1992 to the society requiring the society to show cause on 27.2.1992. The society contested the said application and on 5.4.1993 the District Registrar granted the application made by Shri Bharatkumar Y. Makwana and ordered the society to process the application for granting membership of the society to Shri Bharatkumar Y.Makwana as Chairman-cum-Managing Director of the company and ordered that he should be admitted as a member of the society. Being aggrieved of the said order dated 5.4.1993 of the District Registrar, the plaintiff society has filed a writ petition in this Court under Articles 226 & 227 of the Constitution of India being Special Civil Application No.5538 of 1993. Mr.Vakil, the learned advocate appearing for the appellant stated that the said Special Civil Application is still pending.
11. Mr.Vakil, the learned advocate submitted that till date the interim orders are operating and therefore, no construction has taken place on the plot, the subject matter of controversy. He further submitted that if construction is allowed, it will frustrate the application of the society. Therefore, the prayer as sought for is required to be granted. The order dated 30.3.1995 is erroneous and it is required to be quashed and set aside by this Court. Mr.Vakil, the learned advocate invited attention of this Court to the relevant documents and also to the reasoning of the learned Judge for passing order dated 30.3.1995. He submitted that no prejudice is going to be caused if interim injunction as prayed for is granted and continued till final disposal of the suit. Mr.Vakil submitted that pendency of Special Civil Application No.5538 of 1993 may not hold back the learned Judge from deciding the suit. He further submitted that if that Special Civil Application is decided before the disposal of the suit, the decision may be placed before the learned Judge for his consideration at the time of final disposal of the suit.
12. Taking into consideration the facts of the case and the submissions of Mr.Vakil it is deemed fit that the present Appeal From Order be allowed and order dated 30.3.1995 be quashed and set aside and interim injunction granted earlier be directed to operate till final disposal of the suit. Order accordingly.
13. It will be open for the opponents herein to pray for expeditious hearing of the suit.
14. In view of the final orders passed in the Appeal From Order, no further orders are required to be passed in the Civil Application. The same is disposed of accordingly.