Case Note & Summary
The dispute arose over property at City Survey No.112-A (1 to 5), Plot No.5, Mouza Panchpakadi, Thane, admeasuring 648.85 sq. meters, where a building named 'Shivneri' comprising 20 flats was constructed. The original respondent, Suman Eknath Gaike, claimed ownership of the property purchased with her predeceased husband. In 1989, tenants formed Raigad Co-operative Housing Society Limited. The building became dilapidated, and Suman Gaike instituted eviction suits under the Bombay Rent Control Act. The Society applied to the Competent Authority for deemed conveyance under Section 11 of the Maharashtra Ownership Flats Act, 1963, alleging that Suman Gaike had entered into sale agreements under Section 4 of MOFA but failed to convey title. The first application, No.150 of 2016, was rejected on 27/07/2017 on grounds that sale agreements were not under MOFA and rent control proceedings were pending. The Society filed a fresh application, No.728 of 2017, on 01/09/2017, and the Competent Authority granted deemed conveyance on 22/07/2017 (as per text; conveyance dated 22/12/2017). Suman Gaike challenged the deemed conveyance through a writ petition but withdrew it on 16/07/2018; on 24/07/2018, the High Court clarified withdrawal with liberty to file a civil suit after issuing notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960. Accordingly, Suman Gaike filed Special Civil Suit No.502 of 2018 seeking declaration that the conveyance and sale deeds were illegal and injunction restraining construction and third-party interest. The trial court granted temporary injunction on 21/11/2018, and the Society's appeal, Misc. Civil Application No.13 of 2019, was dismissed on 19/09/2019. The Society then filed Writ Petition No.11115 of 2019 challenging the appellate order. Separately, the Society had filed an application under Order 7 Rule 11 CPC for rejection of plaint on the ground of bar under Section 164 MCS Act; this was rejected on 29/11/2018, leading to CRA No.173 of 2020. Also, the trial court allowed the original plaintiff's application for leave to institute suit before expiry of the Section 164 notice period on 21/09/2018, leading to CRA No.174 of 2020. The High Court heard all three matters together. The extracted text does not include the final decision of the High Court, the reasoning, or operative directions. The available text only provides the factual background, procedural history, and identification of the legal issues.
Headnote
A) Civil Procedure - Interim Injunction - Prima facie case, balance of convenience, irreparable loss - Code of Civil Procedure, 1908 - The appellate court confirmed temporary injunction restraining construction and third-party interest on suit property in favour of original owner, finding prima facie case and balance of convenience. The High Court was called upon to examine this order in Writ Petition No.11115 of 2019, but final decision is not available in the extracted text (Paras 8-9).
B) Civil Procedure - Rejection of Plaint - Bar of Suit under Section 164 MCS Act - Code of Civil Procedure, 1908, Order 7 Rule 11; Maharashtra Co-operative Societies Act, 1960, Section 164 - The Society sought rejection of plaint on ground that no notice was served on Registrar and two-month period had not expired before suit. The trial court rejected this application on 29/11/2018, and CRA No.173 of 2020 challenged that order. Final decision of High Court not included in text (Paras 10-11).
C) Maharashtra Co-operative Societies Act - Leave to Institute Suit - Relaxation of Section 164 notice period - Maharashtra Co-operative Societies Act, 1960, Section 164 - The trial court allowed the respondents' application for leave to institute suit before expiry of the statutory notice period. CRA No.174 of 2020 assailed that order. The High Court's ruling on this issue is not present in the extracted text (Para 11).
D) Maharashtra Ownership Flats Act - Deemed Conveyance - Unilateral conveyance under Section 11 and Rule 9 - Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, Sections 4 and 11; Maharashtra Ownership Flats Rules, 1964, Rule 9 - The Society sought deemed conveyance on ground that owner failed to convey despite agreements under MOFA and Rule 9 timelines. The Competent Authority initially rejected then granted deemed conveyance. The validity of that grant was in issue in the underlying suit, but final High Court determination not available in text (Paras 3-5, 8).
Issue of Consideration
Whether the appellate court erred in affirming temporary injunction in favour of the original owner; whether the suit was barred by Section 164 of the Maharashtra Co-operative Societies Act, 1960 for want of notice and expiry of two months; whether leave to institute suit before expiry of the Section 164 notice period was correctly granted; whether the plaint was liable to be rejected under Order 7 Rule 11 of the Code of Civil Procedure, 1908
Final Decision
Not mentioned in the provided text.
Law Points
- Interim injunction requires prima facie case
- balance of convenience
- and irreparable loss
- suit against co-operative society may require notice under Section 164 of Maharashtra Co-operative Societies Act
- 1960
- unilateral deemed conveyance under Section 11 of Maharashtra Ownership Flats Act
- 1963
- rejection of plaint under Order 7 Rule 11 of Code of Civil Procedure
- 1908
Case Details
2021 LawText (BOM) (09) 51
Writ Petition No.11115 of 2019 along with Civil Revision Application No.173 of 2020 and Civil Revision Application No.174 of 2020
Mr. S.M. Gorwadkar, senior counsel with Mr. Sandeep Mishra for petitioner/applicant; Mr. Harshad Inamdar for respondent Nos.1A and 18
Raigad Co-operative Housing Society Limited through its Chairman/Secretary
Suman Eknath Gaike (deceased through legal heirs Rekha Ashok Rayte, Nanda Eknath Gaike, Shivaji Eknath Gayke); Competent Authority & Deputy Registrar of Co-operative Housing Societies S.M. Patil; Sachin Bua; Jatin Shah
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Nature of Litigation
Writ petition and civil revisions concerning dispute over deemed conveyance and interim injunction in relation to property at City Survey No.112-A (1 to 5), Plot No.5, Mouza Panchpakadi, Thane; involving co-operative housing society and original owner's legal heirs.
Remedy Sought
Petitioner Society sought to quash appellate order affirming injunction; in CRA 173 sought reversal of rejection of its application to reject plaint; in CRA 174 sought reversal of order granting leave to institute suit before expiry of Section 164 MCS Act notice period.
Filing Reason
Society challenged lower court orders after deemed conveyance was granted to it and owner filed suit seeking declaration and injunction against construction and third-party interests.
Previous Decisions
Competent Authority rejected earlier application No.150 of 2016 on 27/07/2017; granted deemed conveyance in Application No.728 of 2017; High Court allowed withdrawal of earlier writ petition with liberty to file suit by order 24/07/2018; trial court granted temporary injunction on 21/11/2018; appellate court dismissed Society's appeal on 19/09/2019; trial court rejected Order 7 Rule 11 application on 29/11/2018; trial court allowed leave under Section 164 on 21/09/2018.
Issues
Whether the appellate court erred in affirming temporary injunction granted in favor of original plaintiff in suit challenging deemed conveyance and sale deeds.
Whether suit is barred by Section 164 of Maharashtra Co-operative Societies Act, 1960 for non-compliance with notice requirement and whether plaint should be rejected under Order 7 Rule 11 CPC.
Whether leave to institute suit before expiry of Section 164 notice period was correctly granted.
Whether Competent Authority properly granted deemed conveyance under Section 11 of MOFA and Rule 9 of Rules 1964.
Submissions/Arguments
Society argued that suit filed without notice under Section 164 MCS Act and before expiration of two months is barred by law, hence plaint should be rejected.
Society argued that sale agreements were not under MOFA and there was no propriety in conferring rights (earlier Competent Authority reason).
Original owner argued she is owner of property, husband predeceased, tenants formed society, building dilapidated; she sought eviction under Rent Act; challenged deemed conveyance and sale deeds as illegal; sought injunction.
Society asserted members purchased flats under MOFA and society in possession, entitled to deemed conveyance.
Ratio Decidendi
Not mentioned in extracted text.
Judgment Excerpts
The three proceedings involve property located at City Survey No.112-A (1 to 5), Plot No.5, in Mouza Panchpakadi Taluka and Sub Division Thane, admeasuring 648.85 sq. meters.
The Competent Authority on 22/07/2017 deemed it expedient to grant the deemed conveyance by recording that the Society has complied with the deficiencies pointed out in the earlier order.
Writ Petition No.11115 of 2019 is instituted by the Society through its Chairman/Secretary, being aggrieved by the judgment dated 19/09/2019 passed by the Additional District Judge-2, Thane in Misc. Civil Appeal No.13 of 2019, wherein it was held that the plaintiff is entitled for grant of injunction.
CRA No.174 of 2020 assails the order dated 21/09/2018 passed by the Civil Judge, Senior Division, Thane, allowing the application filed by the respondents, seeking leave to institute the suit before expiry of the period specified in Section 164 of the MCS Act.
Procedural History
Society formed on 07/09/1989. Owner filed eviction suits under Bombay Rent Control Act. Society filed Application No.150 of 2016 for deemed conveyance, rejected on 27/07/2017. Society filed Application No.728 of 2017 on 01/09/2017; Competent Authority granted deemed conveyance on 22/07/2017 (conveyance dated 22/12/2017). Owner filed writ petition challenging deemed conveyance, withdrawn on 16/07/2018 with liberty to file suit clarified by order dated 24/07/2018. Owner filed Special Civil Suit No.502 of 2018. Trial court granted temporary injunction on 21/11/2018. Society's appeal Misc. Civil Application No.13 of 2019 dismissed on 19/09/2019. Society filed Writ Petition No.11115 of 2019 challenging appellate order. CRA No.173 of 2020 challenged order dated 29/11/2018 rejecting Society's Order 7 Rule 11 application. CRA No.174 of 2020 challenged order dated 21/09/2018 allowing leave under Section 164 MCS Act.
Acts & Sections
- Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963: Section 4, Section 11
- Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Rules, 1964: Rule 9
- Maharashtra Co-operative Societies Act, 1960: Section 164
- Code of Civil Procedure, 1908: Order 7 Rule 11
