PATEL,J. - (1.) THIS is an appeal against an order made by Mr. Justice Tuhzapurkar on March 7, 1969, in a notice of motion. Defendant No. 17 is a Co -operative Housing Society and is registered under the Co -operative Societies Act. It is a building Society and it has got eighty two flats. The plaintiffs are the purchasers of three flats. The suit arises under the following circumstances: Defendant No. 1 is a private limited Company of which defendants Nos. 2, 1 and 10 and other members of their family are the shareholders and/or directors. Defendant No. 16 is a partnership firm of which defendants Nos. 2, 7 and 10 are partners. Defendants Nos. 2, 3, 5, 7, 10 and 11 are closely related and defendants Nos. 4, 6, 8, 9 and 12 are employees and/or nominees of defendant No. 2.
(2.) DEFENDANT No. 1 was the owner of two pieces of lands. On these lands! there were structures and an old bungalow. In September 1963 defendants Nos. 1 and 2 thought of building ownership flats and in order to attract purchasers on September 24, 1963 it appears that defendants Nos. 2 to 12 represented to the various purchasers of the flats, that, after the new buildings were completed, the occupiers of the bungalow and the structures would be given accommodation in the buildings to be built, and thereafter the bungalow and the structures would be demolished. The purchasers of the flats acted on this representation. Later, accordingly when the Society was formed, the property was conveyed to the Society by conveyance which included the term that the main bungalow and the other constructions would be demolished. Defendants Nos. 2 to 12 are also members of the Society and from the record it appears that they have been in substantial management throughout, defendant No. 2 being its chairman. Being in management of the Society it is understandable that they were not prepared to take effective steps to have the constructions demolished which under the conveyance ought to be demolished. It appears that defendant No. 18 the Municipal Corporation has issued notice for demolishing these constructions, but it is being resisted and nothing further is being done. There can be no doubt that the majority of the owners of the flats want that those constructions should be demolished as per the representations made at the time of selling of the flats and as contained in the conveyance. The reason is obvious. They may probably have paid a high price for the flats for the comfortable living promised to them. Open spaces for a large building are essential. The allegations show that calling of meetings is being avoided and defendants Nos. 2 to 12 want to keep the control of the Society in their hands so that the day of demolition of the structure, could be avoided or delayed. It seems, the members of the Society convened a meeting and decided to compel the enforcement of the covenants on defendant No. 1 -vendors and also against the Society, which, acting through defendants Nos. 2 to 12, who were in majority in the Committee, refused to enforce the covenants. Accordingly, the three plaintiffs filed the present suit for enforcing the said covenants, on behalf of themselves and as representatives of all other purchasers of flats except defendants Nos. 1 to 16.
(3.) DEFENDANT No. 17, the Society, is one of the defendants. As the defendants are in a majority in the managing committee, they employed solicitors acting under their directions to defend the suit. In accordance with their wishes the Society resisted the suit. The plaintiffs thereupon took out a notice of motion for various reliefs stating all the facts, and, praying that the appearance of the attorneys of defendant No. 17 should be struck off. In any event, the view of the majority of the members of the Society should be ascertained and consequential directions should be made. On January 11, 1969, the matter was heard by Mr. Justice Tulzapurkar and after hearing all the parties, the learned Judge appointed an officer of this Court, Mr. Dhanboora, to convene a meeting and ascertain the wishes of the members of the Society by taking votes on the two questions as directed by the learned Judge. The appellants filed an appeal being Appeal No. 7 of 1969 under Clause 15 of the Letters Patent. This appeal was heard by the learned Chief Justice and Kantawala J, After hearing the arguments fully, the learned Judges dismissed the said appeal on February 7, 1969. Thereafter, Mr. Dhanboora held a meeting and ascertained the wishes of the majority of the members present. Though there are eighty two flats the defendants appear to have managed to show one hundred and two members in the Society which under the law of Co -operative Societies is not possible as also under by -law No. 6(2) of the By -laws of the Society. Out of one hundred and two members notices could be effectively served upon eighty six members. Out of these eighty six members, fifty eight were present and they unanimously voted that the construction should be demolished and that J.B. Shah, Laxminarayan Goel, Bagulal S. Jajodiya, E. B. Makharia and S. T. Tijoriwala should be allowed to represent the Society in its name. Accordingly, Mr. Dhanboora made his report. Thereafter, the matter came again before Mr. Justice Tulzapurkar who made the consequential order taking the appearance of the said members on behalf of the Society on file. This appeal is directed against that order.;