Majority Prevails in Housing Society and Condos : Bombay High Court

By Legal Bureau
Shri Suresh Govind Zantey Vs. Mr.Madhukar Bhau Pansare and others. Bhagirath Condominium in Goregaon (E) Aug 29, 2012

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (LODGING) NO.509 OF 2012
IN
NOTICE OF MOTION NO.3496 OF 2011
IN
SUIT NO.2753 OF 2011

Shri Suresh Govind Zantey and others. … Appellants

Versus

Mr.Madhukar Bhau Pansare and others. … Respondents

Mr. Gaurav Joshi with F. Jain and Mr.Dinesh Shah, Tejas Shah i/by M/s. Lilani Shah & Co. for the appellants.
Ms.Rajni Iyer, Senior Advocate with Mr.Ibrahim Merchant i/by M/s. K.V. Aiayar & Associates for respondent Nos.1 and 2.
Mr.Shailesh Shah, Senior Advocate i/by Mr. Dinkar Patil for respondent No.6.
Mr. P.Y. Ladekar, Court Receiver present.

CORAM : MOHIT S. SHAH, C.J. & N.M. JAMDAR, J.
Wednesday, August 29, 2012
P .C .
The appellants herein, original defendant Nos.1,2 and 3 have challenged the order dated 19 June 2012 of the learned trial Judge
of this Court in Notice of Motion No.3496 of 2011 in Suit No.2753 of 2011.

2. Respondent Nos.1 and 2 herein as President and Secretary of the Board of Managers of Bhagirath Condominium have filed the
above numbered suit.

3. The suit property is a building called “Bhagirath Condominium” in Goregaon (East), Mumbai which consists of 44 flats and
one garage. Therefore, there are 45 occupants in the suit building. The building is in a dilapidated condition. It was unanimously
decided by the occupants to redevelop the building after inviting tenders. The general body of the association resolved to enter into
an agreement with defendant No.7.
Accordingly, the redevelopment agreement has been entered into between the plaintiffs and other members of the Condominium
on the one hand and the defendant No.7 on the other hand, on 5 January 2010. Since defendant Nos.1 to 6 were not cooperating
with the other occupants and the developer for redevelopment work, the plaintiffs have filed the present suit for declaration that
defendant Nos.1 to 6 are bound by the decision taken by the association by majority.

4. During the pendency of the suit, the plaintiffs filed notice of motion seeking reliefs that Court Receiver be appointed with power
under Order 40 Rule 1 of the Civil Procedure Code to execute the development agreement in terms of Exhibit “F” to the notice of
motion and to physically remove defendant Nos.1 to 6 and their family members occupying the suit flats and hand over vacant and
peaceful possession thereof to defendant No.7 the developer. The learned trial Judge has granted the above prayer and also an
additional prayer in terms of prayer clause (e) which is not necessary to be set out in the order which is proposed to be passed.

5. The contention of the appellants herein is that the resolution passed by the other occupants of the building by a majority does not
bind the dissenting members and that all resolutions of the occupants regarding redevelopment project must be passed unanimously.
The learned trial Judge rejected the above contention and held that resolution / decision passed / taken by a simple majority binds all
members of the condominium and allowed the notice of motion in terms of the above directions.

6. At the hearing of the appeal, Mr. Gaurav Joshi, learned counsel for the appellants has submitted that the appellants will not
press the appeal if defendant No.7 offers to the appellants and other occupants total additional carpet area of 30% over and above
the carpet area presently in occupation of the appellants and other members, as in view of the amendment of the Development
Control Regulations, additional FSI including fungible FSI is available to the suit property. Mr. Joshi has invited our attention to
para 12 of the order of the learned trial Judge and also the appellants’ case in para 20 of the affidavit in reply indicating that the
appellants (defendant Nos.1 to 3) demanded an additional area of 30% carpet area instead of 15% additional carpet area offered by
defendant No.7.

7. Mr. Shailesh Shah, learned counsel for defendant No.7 developer states under instructions that defendant No.7 is ready to offer
total additional carpet area of 30% to all the members, over and above the existing carpet area, free of cost in lieu of all the claims of the
appellants and other members for additional carpet area. A letter dated 29 August 2012 signed by defendant No.7 is taken on record
and marked “X” for identification purposes. The learned counsel for defendant No.7 states that defendant No.7 is making the above
offer on condition that the appellants and all other occupants accept the decision of the occupants by a simple majority and that no special
majority is required for any resolution to be passed for the redevelopment project or any part thereof and on further condition that the
appellants execute the development agreement.

8. Mr.Joshi, learned counsel for the appellants states under instructions of all the three appellants who are present before the
Court, that in view of the offer of defendant No.7, appellants will accept any resolution which may be passed by the occupants by a
simple majority of those present and voting.

9. In view of the above consensus, we dismiss the appeal after recording the above statements made by the learned counsel for the
parties including the statement that defendant No.7 shall offer to all the occupants of the building Bhagirath Condominium 30% additional
carpet area over and above the existing carpet area, free of cost. We also direct that all the occupants of Bhagirath Condominium shall
execute the development agreement with defendant No.7 on the terms already incorporated in the development agreement executed
earlier, subject to the modification that the additional carpet area to be provided by defendant No.7 free of cost, shall be 30% instead of
15%.

10. The appeal accordingly stands disposed of in terms of the above arrangement and directions.

CHIEF JUSTICE

N.M. JAMDAR, J.