Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1231-2020 in S.C.Suit no.3783-2020
1 Date :15.10.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1231 OF 2020
IN
S.C. SUIT (STAMP) NO. 3783 OF 2020
(CNR MHCC01 0035252020 )
Dr. Madhuri Ajit Sawant .. Plaintiff
Versus
Great Eastern Gardens & Anr. .. Defendants
Appearances :
Adv. Mr. Udayan Shah i/b. Yogini Abhay Ugale for plaintiff.
Adv. Usha Rahi for Defendant no. 1 to 4.
Adv. Kantilal Hiralal Kanojia for defendant no. 5.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 15.10.2020
ORDER
1. The plaintiff has filed instant Notice of Motion seeking
following reliefs :
a) The said Dr. Mary Francis (Defendant no. 4) the
present secretary may be restrained by an order of
injunction of this Hon’ble Court to act as the Secretary
of the Defendant No. 1 till the hearing and final
disposal of this Notice of Motion.
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b) The operation of the said resolution dated 04.04.2020
may be stayed till the hearing and final disposal of this
Notice of Motion.
c) The plaintiff be permitted to continue as the Secretary
of defendant no. 1 till hearing and final disposal of the
above Notice of Motion.
c1) The operation of the said resolution dated 04.04.2020
may be stayed till the hearing and final disposal of Suit
(Stamp) No. 3783 of 2020.
c2) The plaintiff be permitted to continue as the Secretary
of defendant no. 1 till hearing and final disposal of the
suit.
2. It is the case of plaintiff that, she has been appointed as
Secretary of defendant no. 1, Great Eastern Gardens, AB
Condominium and also Secretary of Apex Body. It is submitted by
her that due to Covid19 pandemic and lock down since
24.03.2020, she was trying to implement, guidelines issued by the
Government in their society. However, her steps taken for
preventing the Covid19 being spread, was not liked by some of
the resident and they started harassing and making derogatory
remarks in the WhatsApp Group of members of AB Condominium.
Therefore, on 30.03.2020 she lodged Police Complaint against two
females Mrs. Bansod and Mrs. D’Souza and others. The Parkside
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Police Station registered NC Complaint No. 882 on 31.03.2020.
3. In order to take revenge of the aforesaid conduct of the
plaintiff, President of AB Condominium, Mr. S.R. Bala i.e.
Defendant no. 2 illegally arranged one secrete meeting without
intimating her to discuss her removal from the post of Secretary of
AB Condominium. She has further alleged that several Board
Members were against her as she was pursuing the case of miss
appropriation of society’s funds and other projects. Therefore, she
was targeted by several board members. On 03.04.2020 one Capt.
Sameer Bansode has issued communication for convening Board
Meeting on 04.04.2020 and on 04.04.2020 the President
conducted Special Board Meeting via Zoom meeting, in order to
remove her from the post of Secretary.
4. It is the case of plaintiff that, President illegally arranged the
said meeting with three agendas which does not specifically
include agenda of her removal. Inspite of that, she was removed
without passing any Resolution. It is specific case of the plaintiff
that the alleged special meeting on 04.04.2020 was held illegally
in breach of bye laws of the defendant no. 1 (AB Condominium)
and thus, appointment of defendant no. 4 as Secretary in place of
her is not legal and proper. As there was no legal meeting
conducted by following the bye laws, therefore, resolution passed
in the said meeting is null and void. Therefore, the plaintiff filed
present suit seeking declaration that the resolution dated
04.04.2020 may be declared as null and void with interim relief to
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stay the effect and operation of resolution dated 04.04.2020 till
disposal of the suit.
5. Defendant no. 1 to 4 opposed the Notice of Motion by filing
their reply. It is contended by the defendants that the plaintiff was
provoking and invoking members of AB Condominium against the
defendants and thereby disturbing peace and harmony of society.
The plaintiff sending emails, WhatsApp messages through Video
Conferencing, thereby, using derogatory words and damage the
reputation of the AB Condominium and its members. It is
submitted by the defendants that the plaintiff without consent and
knowledge of members, taking decisions on her own and creating
discomfort and disturbance within the AB Condominium and its
members. The plaintiff by misusing Letter Head of defendant no.
1 filed police complaint on 31.03.2020 and also filed complaint
with M.C.G.M. (S) Ward.
6. It is further contended that as per bye laws of defendant no.
1 framed under “Maharashtra Apartment Ownership Act, 1970”,
functions of Secretary are limited and the Secretary is not only
responsible or decision making authority. The various members
have objected to the functioning of the plaintiff and decision
taking towards pandemic. One of the Board Member of defendant
had sent written communication to the plaintiff and other board
members, conveying special board meeting to be held on
04.04.2020. The plaintiff was personally communicated about the
special meeting. Inspite of that she chose to remain absent during
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meeting held on 04.04.2020. Thus, the defendant denied of
conducting any meeting secretly.
7. It is further submitted that, due to the conduct of the
plaintiff, special meeting was arranged with agenda of review of
office bearers and relocation and reconfirmation of their roles.
Due to the pandemic situation, the said meeting was held on Zoom
meeting and in the said meeting, it was resolved to appoint
defendant no. 4 as Secretary in place of plaintiff. The defendants
have complied with bye laws of the society and there is no
illegality committed by defendant no. 1 to 4. Hence, defendants
prayed for dismissal of the Notice of Motion.
8. The defendant no. 5 who is the Chairman of the Apex
Committee also opposed the Notice of Motion by filing reply. It is
contended by the defendant no. 5 that passing of resolution dated
04.04.2020 by the defendant no. 1 to remove the plaintiff from the
post of Secretary is an internal matter between the defendant no. 1
and plaintiff and defendant no. 5 has nothing to do with the inter
say disputes. As the plaintiff is not seeking any specific relief
against the defendant no. 5, they will accept the decision of the
Court.
9. The plaintiff filed rejoinder to the reply of defendants. Heard
Ld. Advocate Mr. Udayan Shah for the plaintiff. He has pointed
out bye laws of defendant no. 1, more particularly, Clause 4(2) of
bye laws of which read as “the association shall not act beyond the
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scope of its objects without duly amending the provisions of these
bye laws. As per Clause 13 of bye laws, “the place of meeting of
association shall be held on the suitable place convenient to the
owners as may be from time to time decided by the Association”.
However, the defendants allegedly conducted Zoom meeting
without amending bye laws of the society.
10. It is argued that during pandemic situation, when everything
was prohibited, there was no necessity to call such meeting. The
notice dated 03.04.2020 by Mr. Samir Bansod is without any
authority. The special meeting of seven days is required to be
issued by the Secretary. The removal of Board Manager are
governed by the clause 25 of the bye laws which prescribed for
giving opportunity of being heard at the meeting. The special
meeting of the Board can be called by the President by giving three
days notice to each Manager, upon written request, at least by
three Board Managers. Thus, it has been argued that, the alleged
special board meeting was called without following the aforesaid
mandatory rules of the AB Condominium.
11. He has argued that, there is no evidence that such meeting
was really held. Hence, he has submitted that bogus resolution
was passed by the defendant no. 1 for appointing defendant no. 4
in place of the plaintiff.
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12. Per contra Ld. Advocate Mrs. Usha Rahi for the defendant
no. 1 to 4 argued that Mr. Samir Bansod is one of the Board
Member and in his capacity as board member, , he has issued
communication dated 03.04.2020 inviting meeting on Zoom link.
The aforesaid letter was ratified by the President by its subsequent
email dated 04.04.2020. In the said notice, agenda was to review
and reconstruction of office bearers of defendant no. 1.
Accordingly, meeting was held on 04.04.2020. All the issues were
discussed and unanimously, it was resolved to appoint defendant
no. 4 as Secretary in place of the plaintiff.
13. During course of hearing upon the query made by the Court
to place resolution for removal of plaintiff from the post of
Secretary of defendant no. 1 and placing the notice by at least
three Board Managers for removal of plaintiff, the Advocate for
defendant no. 1 to 4 tendered further Affidavit with two letters
dated 31.03.2020 issued by Mr. Samir Bansod, Mr. Kevin D’silva,
Mr. Satishchandra and Mr. Sachin Salgarkar.
14. She further argued that, for removal of plaintiff, Board
resolution is not required as she is still member of the Board. It is
the internal arrangement between the Board and whereby the
roles and posts were interchanged. In order to butterest her
arguments, she pointed out the Minutes of Board Meeting held on
19.09.2019 whereby, the Board was constituted and Board
Managers were assigned with the various posts. She has argued
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that, during the aforesaid meeting dated 19.09.2019, there was no
separate resolution passed. Hence, there is no necessity of passing
any separate resolution for removal of plaintiff.
15. Ld. Advocate for the plaintiff strongly objected for placing
those letters and Affidavit on record by defendant no. 1 to 4 on the
ground that those letters are subsequently created documents and
after thought, the defendant could have placed those documents
prior in time, but they failed to do so, which clearly shows that the
said letters are subsequently prepared.
16. I have heard extensively to both the sides. It is not in dispute
that the plaintiff was acting as a Secretary of the defendant no. 1
and also of Apex Body. The AB Condominium is governed by the
bye laws framed by the defendant no. 1 as per “Maharashtra
Apartment Ownership Act, 1970”.
17. As per Clause 15 of the bye laws, President can called special
meeting of the unit owners as may be directed by resolution of
Board or upon a petition signed by a majority (percentage wise) of
the unit owners having been presented to the Secretary, at least 21
days before the date of the proposed meeting. Notice of any
special meeting shall state the date, time and place of such
meeting and the purpose thereof and such notice has to be given at
least 7 days prior to such meeting.
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18. As per Clause 25 of the bye laws, “any special meeting duly
called by one or more managers may be removed with or without
cause by a majority of the apartment owners and a successor may
then and there be elected to fillup the vacancy thus, created. Any
manager whose removal has been proposed by the owners shall be
given an opportunity to be heard at the meeting”.
19. As per Clause 28 of bye laws, “the special meeting of the
Board may be called by the President of three days notice to each
manager given personally or by mail, stating the purpose of special
meeting and on the notice on the written request of at least thee
managers”.
20. In the present case, the first notice of schedule, Zoom
meeting was issued by one Mr. Samir Bansod on 03.04.2020 and
on 04.04.2020 the said meeting was convened with agenda of
review and reconstruction of office bearers of defendant no. 1. The
aforesaid intimation was also appears to be given to the plaintiff
but she chosen not to attend the meeting. In the said meeting, it
was unanimously agreed and decided that, the defendant no. 4
will be assigned the post of Secretary with immediate effect and
Captain Samir Bansod was appointed as Joint Secretary. In my
view, before conveying the Special Board Meeting, the President or
Secretary ought to have been issued three days clear notice.
Moreover, such special meeting has to be convened at the instance
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of at least three Board Managers with intimation to all Board
Managers. In the present case, such intimation ought to have been
given to nine managers.
21. It is the specific allegation of the plaintiff that the defendant
no. 1 removed her in violation of mandatory provisions of bye
laws. The defendant no. 1 was having sufficient opportunities to
file those notices which she has filed by way of additional affidavit.
Moreover, it does not speak that those letters were communicated
to all nine members of the Board.
22. Further, as per Clause 25 of bye laws, it is mandatory to give
opportunity of hearing which was not given to the plaintiff. Thus,
primafacie, I am of the view that the plaintiff was removed
without compliance o Clause No. 15, 16, 25, 28 of bye laws of the
defendant no. 1. Moreover, it appears to me that the plaintiff is
removed without passing any resolution which was mandatory.
Hence, in my view, the plaintiff has made out primafacie case in
her favour and balance of conveyance lies in her favour. In the
event, the impugned resolution / Minutes of Special Meeting of
defendant no. 1 dated 04.04.2020 is not stayed, the plaintiff
would cause irreparable loss which can not be compensated in
terms of money. Thus, I proceed to pass the following order.
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ORDER
1. Notice of Motion No. 1231 of 2020 is hereby allowed in
terms of prayer clause “c1”.
2. Parties to bear their own cost.
3. Notice of Motion No. 1231 of 2020 is dispose of accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 15.10.2020 Greater Bombay.
Dictated on : 15.10.2020
Typed on : 16.10.2020
Draft Submitted on : 16.10.2020
Checked on : 17.10.2020
Signed on : 17.10.2020
Uploaded on : 17.10.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
18/10/2020 at 11.00 a.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
15/10/2020
JUDGMENT/ORDER signed by P.O.
on
17/10/2020
JUDGMENT/ORDER uploaded on 17/10/2020
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