Jijau Chs Ltd Throu.Its Chairman /Secretary v. Subhash Maruti Thorat Prop. Of M/S Manas Developers And ORS
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3418 OF 2024 Jijau CHS Ltd.
....Petitioner V/S Subhash Maruti Thorat & Ors.
....Respondents _________ Mr. Ashutosh M. Kulkarni i/b Mr. Sachin Hande for the Petitioner.
Mr. Vagish Mishra with Mr. Rajuram Kuleriya, Mr. Varad Dubey i/b Mr. Rajuram Kuleriya for Respondent No.1. Mr. Suraj B. Jadhav with Ms. Deepa S. Punde i/b Mr. Sachin S. Punde for Respondent Nos.2 to 4.
Ms. Dhruti Kapadia, AGP for Respondent Nos.5 and 6/State. __________ CORAM: SANDEEP V. MARNE, J.
DATE : 29 APRIL 2025.
P.C.:
1.
The Petition challenges order dated 6 November 2023 passed by the Minister (Co-operation) allowing Revision Application No.505 of 2022 filed by Respondent No.1 and setting aside the order dated 12 October 2022 passed by the Divisional Joint Registrar. By order dated 12 October 2022, the Divisional Joint Registrar had granted permission for prosecution of the Respondent No.1 under provisions of Section 148(3) of the Maharashtra Co-operative Societies Act, 1960 (the Act) for offences punishable under Section 146 (h), (j) and (p) of the Act. 1 of
k 2/7 3 wp 3418.24 as.doc 2.
When the Petition came up for hearing on 17 March 2025 this Court passed following order:
"Perusal of the submissions made by Respondent No.1 before the Hon'ble Minister (Co-operation) in Revision filed under provisions of Section 154 of the Maharashtra Co-operative Societies Act, 1960 would clearly indicate that Respondent No.1 possesses several records relating to the building. He submitted before the Hon'ble Minister that after completion of the project he is willing to handover entire records to the Society. It appears that the Society has been registered in the year 2003 by which time construction of the building was apparently complete. After completion of the building and formation of the Society it appears that Respondent No.1, in addition to his role as a Developer also assumed the position of Chairman of the Society. In his twin capacities as Developer and Chairman apparently Respondent No.
1 withheld several documents relating to the building, possibly with a view to exploit the alleged balance FSI potential of the plot. Despite passage of 23 long years from formation of the Society, Respondent No.1 is apparently withholding several documents relating to the building under a sanguine hope that he can continue exploiting development potential in respect of the plot. Respondent No.1 has clearly admitted possession of records relating to the building during the course of submissions made before the Hon'ble Minister. It is therefore appropriate that the Respondent No.1 forthwith hands over the entire records relating to the building of the Society to show his bonafides. Accordingly within two weeks from today, Respondent No.1 shall handover the entire records relating to the building of the Society to the Petitioner-Society.
List the Petition for further consideration 'high on board' on 15 April 2025. 3.
It appears that in pursuance of order passed by this Court on 17 March 2025, Respondent No.1 has handed over some of the documents to the Petitioner-Society. It appears that the Petitioner-Society was insisting for handing over of total 29 documents. It appears that out of the said 29 documents, 14 2 of
k 3/7 3 wp 3418.24 as.doc documents are already handed over to the Petitioner-Society. In respect of six documents, Respondent No.1 is willing to indemnify the Society in the event of any action being initiated on account of non-production of the said documents by the Petitioner-Society. Respondent No.1 claims that eight documents are not available with him. The status of the 29 documents demanded by the Petitioner-Society is as under: Sr. Nos.
The following documents required original Status Plot Allotment letter Handed over Agreement to lease Handed over Trip-arty agreement Handed over C.C.
Handed over Final O.C. & O.C. Plan Handed over Water connection file Handed over Society Register file Handed over MS.E.D. file with underground wire map Indemnified Lift File Handed over Fire N.O.C.
Handed over Lease Deed Indemnified CIDCO NOC FOR SOCIETY REGISTRATION Handed over Architect Certificate with per unit Carpet Area Indemnified Plumbing map file Indemnified Conveyance Deed/Deed of Assignment Handed over Final order of plot transfer in favour of Society Handed over Various deposits receipts with CIDCO & other authority.
Indemnified संस्थानोंदणीदिदनांकापासून२३/०४/ २०१५अखेरचेरोकड नोंदवही, रोजकीद Not available with Respondent No.1.
संस्थानोंदणीदिदनांकापासून२३@०४@ २०१५अखेर ची सव साधारण खतावणी Not available with Respondent No.1.
संस्थानोंदणीदिदनांकापासून२३@०४@ २०१५अखेर ची वैयदि%कखतावणी Not available with Respondent No.1.
संस्थानोंदणीदिदनांकापासूनमाच २०१५अखेर ची वैधादिनकलेखापरिरक्षणअहवालNot available with Respondent No.1.
3 of
k 4/7 3 wp 3418.24 as.doc संस्थानोंदणीदिदनांकापासूनमाच २०१४ अखेरचेम.स.सं.
अधिधदिनयम१९६०चेकलम८२नुसारनोंदणीअधिधकाऱ्यास सादरकेलेलेदोषदुरुस्तीअहवाल.
Handed over संस्थानोंदणीदिदनांकापासून२३@०४@ अखेरचे जमावनांवे( खच पावत्या) व्हावचर Not available with Respondent No.1.
संस्थानोंदणीदिदनांकापासून१५@०४@ अखेरचे सदिमती/ संचालकसभावृत्तांतनोंदवही Not available with Respondent No.1.
संस्थानोंदणीदिदनांकापासून१५@०४@ अखेरचे सव साधारण( वार्षिषकवदिवशेष) सभावृत्तांतनोंदवही.
Not available with Respondent No.1.
संस्थाइमारतीमधीलसददिनका, दुकानगाळेहस्तांतरणासाठी आलेलेअज वत्याअजा वरआपणदिदलेलाना- हरकत दाखले, सिसडकोसिल.
सभासदहस्तांतरणासदिदलेलीपरवानगी पत्रे.
Not available with Respondent No.1.
संस्थाजागा, इमारतवइतरबाबतीतवेगवेगळ्या प्राधिधकरणाकडेदाखलकेलेलेदावेवइतरांनीसंस्थेवरदाखल केलेलेदवे, त्यासंबंधीचेन्यायालयीनदिनवाडे.
Indemnified इमारतदिवकासकाबरोबरझालेलाइमारतदिवकासनामा ( डेव्हलपमेन्टअग्रीमेंट) Handed over इमारतबांधकामकरतानासिसडकोसिल.
वअन्य संबंधिधत प्राधिधकरणाकडेसादरकेलेल्याअजा च्यास्थळप्रती, व संबंधिधतप्राधिधकरणानेत्याबाबतकळदिवलेलेअभिभप्राय/उत्तरे. Indemnified 4.
While the Petitioner-Society is prepared to accept indemnity in respect of the few documents, it is not willing to give up the claim for prosecution of the first Respondent on account of failure to handover eight documents as indicated above. Perusal of the said eight documents, which are claimed to be not in possession of the first Respondent, would show that the same are essentially with regard to the documents of account, minutes books of various meetings held and documents relating to transfer of flats. Here also Mr. Kulkarni has fairly pointed out that though documents relating to accounts were sought in respect of period upto April 2015, the Respondent No.1 was in management and control of the Building only till the year 2009 and therefore the documents relating to accounts, minute books, 4 of
k 5/7 3 wp 3418.24 as.doc transfer of flats are being sought from him upto the year 2009. The Society was registered in the year 2003 and it is the insistence of Petitioner-Society that it must be handed over all the documents relating to accounts, etc. for the period from 2003 to 2009. It is the case of the first Respondent that some other persons functioned as committee members post the year 2009 and that the details relating to accounts were handed over to the said persons in the year 2009. The Society however claims that the said documents are not available in the records of the Society.
5.
In the light of specific stand taken by the first Respondent that the eight documents are no longer available with him, the issue is whether he can be prosecuted for offences under Section 146 (h), (j) and (p) of the MCS Act? Clauses (h) (j) and (p) of Section 146 of the Act use the word 'willful' and 'without reasonable excuse'. Therefore, commission of offences cannot be inferred only on account of failure on the part of a person to handover the relevant records to the Society. What must also be proved is that refusal to handover the document is willful and without reasonable excuse. Considering the facts and circumstances of the present case, it is difficult to hold that the first Respondent is deliberately not handing over documents relating to accounts of the Society for the period 2003 to 2009. The Society admittedly possesses all the documents relating to accounts as well as minutes books after the year 2009 and has possibly maintained the records for the last 16 long years. In my 5 of
k 6/7 3 wp 3418.24 as.doc view therefore, no case is made for subjecting Respondent No.1 to prosecution only on account of his inability to handover documents of accounts and minute books during the period from 2003 to 2009. So far as NOCs issued for transfer of flats are concerned, the members of the Society can produce the said documents with the Society.
6.
The first Respondent has already handed over substantial documents to the Petitioner-Society and has agreed to indemnify the Petitioner-Society in respect of some of the documents, which he is unable to produce. The issue is only with regard to eight documents, which mostly relate to accounts of the Society and minute books during 2003 to 2009. In my view non-production of said records cannot be termed as 'willful' or 'without reasonable excuse' with a view to warrant grant of permission under Section 146(3) of the Act for prosecution of the first Respondent. Filing of the present Petition has already assisted the Petitioner in recovery majority of the documents as well as securing an indemnity from the first Respondent in respect of some of the records.
I am therefore, not inclined to keep the present Petition pending any further as the possibility of the first Respondent producing any further documents is not in the offing. The first Respondent has taken an emphatic stand that he does not possess the eight documents. In my view therefore, it would be appropriate to close the present proceedings. Respondent No.
k 7/7 3 wp 3418.24 as.doc respect of documents at serial Nos.8, 11, 13, 14, 17, 27 and 29 within a period of four weeks. With the above directions, the Petition is disposed of.
(SANDEEP V. MARNE, J.) by SUDARSHAN RAJALINGAM KATKAM Date:
2025.05.02 15:10:38 +0530 SUDARSHAN RAJALINGAM KATKAM 7 of