Mr. Kirit P. Kapadia And ANR. v. Walkeshwar Triveni Co-Operative Housing Society Ltd.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION (STAMP) NO.6159 OF 2016 Mr. Kirit P. Kapadia and another .. Petitioners

Versus

Walkeshwar Triveni Co-operative Housing Society Ltd.

.. Respondent Mr. A. G. Damle, Senior Advocate i/by Mr. R. R. Lanjekar, for the Petitioners.

Mr. R. V. Sankpal, for the Respondent.

CORAM : R.M. SAVANT, J.

DATE : 13th APRIL 2016 P.C.

1.

The writ jurisdiction of this Court is invoked against the order dated 22.01.2016 passed by the Learned Member of the Maharashtra State Co-operative Appellate Court, Mumbai, by which order the Revision Application being R.A. No.39 of 2015 filed by the Petitioners came to be dismissed and resultantly, the order dated 19.10.2015 passed by the Learned Judge of the Co-operative Court, Mumbai, partly allowing the amendment application came to be confirmed.

2.

The Petitioners herein are the Disputants who have filed Dispute No.CC-II/349 of 2009. The substantive relief sought in the dispute is a declaration that the resolution in respect of the repairs to the building of the society and covering the cost of the said repairs being Resolution Nos.2, 3 and 4 passed in the Special General Meeting dated 31.03.2009 be declared as illegal etc. A further declaration is also sought that the increase in the cost of repairs by the Respondent society exceeding Rs.2.5 crores as agreed by the resolution dated 23.08.2004 and subsequent demand made thereafter are unjust, arbitrary, improper and illegal etc. 3.

Prior to the instant application for amendment, the Petitioners had filed an application for amendment which was allowed by the Cooperative Court in the year 2013 and the following two prayers were allowed to be incorporated in the dispute :- "(f)(1) That it be declared that the Resolutions passed by the S.G.M. Held on 14/03/2008 and/or thereafter any such like other resolution and/or decision which may be taken contrary to original letter of Intent dated 26/07/04 and the original terms of the repair contract dated 17/1/2005 be held to be illegal, bad in law and not binding upon the disputants.

(f)(2) Pending the hearing and final disposal of the present dispute the Opponent society and all its committee members agents, persons or person claiming through or on behalf of them be restrained from demanding, levying and/or recovering any other amount towards the share in

the major repairs from the Disputant's in any manner and in terms of the resolutions passed in S.G.M. Held on 14/3/08."

4.

The Petitioners thereafter have filed the instant application for amendment of the dispute which came to be partly allowed by the Trial Court i.e. Learned Judge of the Co-operative Court by his order dated 19.10.2015. By the amendment sought, the Petitioners i.e. the Disputants were seeking to amend the dispute so as to lay a challenge to the various resolutions which were passed in respect of the repairs, which were passed after the Resolution which is the subject matter of the dispute, a reference to which was made in the amendments sought. The Trial Court as indicated above has partly allowed the said amendment application.

The gist of the reasoning of the Trial Court was that since the Disputants have already claimed relief of declarations in respect of the repair work and the payments made to the contractors the subsequent resolutions in the Special General Meetings of the society as well as making payments of the repairs, their contentions as regards misappropriation of funds of the society are pleadings beyond the subject matter of the dispute. The Trial Court was therefore of the view that the Disputants cannot be allowed to amend the disputes which amendments are beyond the subject matter of the dispute.

5.

Aggrieved by the said order dated 19.10.2015, the Petitioners

filed Revision Application being No.39 of 2015 before the Co-operative Appellate Court, Mumbai. The Co-operative Appellate Court having regard to the scope of the dispute as originally filed as also having regard to the nature of the amendments sought, as also the extent of the amendment allowed by the Co-operative Court did not find fault with the order passed by the Co-operative Court and therefore did not deem it appropriate to interfere with the order of the Co-operative Court. The Co-operative Appellate Court accordingly dismissed the Revision Application by the impugned order dated 22.01.2016.

It is required to be noted that by the amendment sought in the year 2013, prayer clause (f)(1) has been allowed to be incorporated in the dispute which covers the subsequent resolutions or decisions that may be taken by the Respondent society. In spite of the said prayer being allowed to be incorporated, the present amendment was sought to be moved laying a challenge to the subsequent resolutions passed by the Respondent society. The dispute as originally filed seeks a declaration by which approval has been granted to the increase in the cost of repairs as also various other declarations. The Petitioners obviously therefore cannot be permitted to amend the dispute every time a resolution is passed by the Respondent society.

The Trial Court was therefore right in allowing the amendment application to the extent it has allowed by its order dated 19.10.2015.

no case for interference in the writ jurisdiction of this Court is made out. The Writ Petition is accordingly dismissed.

6.

However time to carry out amendment is extended by a period of three weeks from date.

[R.M. SAVANT, J]