LexVASUDEV GOPALKRISHNA TAMWEKAR versus THE BOARD OF LIQUIDATORS HAPPY HOME CO-OPERATIVE HOUSING SOCIETY
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/HJ Mtg II 964 SUPREME COURT REPORTS [1964] VOL. \ V ASUDEV GOPALKRISHNA TAMWEKAR v. THE BOARD OF LlQJJIDATORS HAPPY HOME CO-OPERATIVE HOUSING SOCIETY (B. P. SINHA C. J., J. C. SHAH and N. RAJAGOPALA AYYANGAR JJ.) Oo-operation-Arbitrati-On-Hou.e buiUing society-Non- compliance with term• of the Agreement-Agreement whether eucutory contract or one creating Landlord and Tenant relation- ship-Jurisdiction of Arbitrators under Bombay Oo·operative SocietieB Act (Bom. 7 of 1925), s. 54-Bombay Rent•, Hotel and Lodging House RateB Oontrol Act, (Bom. 57 of 1947), •· 28. The respondent obtained a lease of land to be allotted to its members for building purposes ar,d advanced loans for construction. The premium in respect of the land and the loan advanced, together with interest, were repayable in month- ly instalments. Through the agency of the society, the appel- lant completed the construction and occupied the building. An agreement between the appellant and the society was duly registered which provided that the loan advanced to the appel- lant should be paid in 366 or smaller monthly instalments, and after the entire amount of the loan had been repaid, the society would execute a sub-lease in respect of the plot in favour of the appellant. In the event of default in the payment of an ins- tahnent, fixed in the agreement, the society hand the right to determine the agreement, and thereupon any amount already paid would be forfeited to the society, and the member was to surrender the property and give vacant possession of the premises to the society. In view of the default in payment and persistent refusal of the appellant to comply with the terms of thr agreement the society referred the dispute to the Registrar, Co-operative Societies, for decision by himself or his nominee. The Committee of Arbitrators, appointed by the Registrar, gave an award in favour of the society asking the appellant to deliver vacant possession of the plot and the house to the society and to pay compensation for unauthorised use and occupation of the premises and to P"i' costs of the arbitration proceedings. Against the aforesaid order, the appellant's revi- sional application was also dismissed by the Tribunal. The - - ' S S.C.R. SUPREME COURT REPORTS 965 award was certified and filed In the Bombay City Civil Court for execution. The appellant, thereupon, took out chamber summons for stay of the execution proceedings on the ground that the Award made by the Arbitrators was without jurisdic- tion for the reason that under the agreement between the society and the appellant a relationship of landlord and tenant was created and that under the Bombay Rent Control Act 57/4:7 the Court of Small Causes wa1 vested with exclusive jurbdiction to decide claim for recovery of rent or posllCS!lion. The learned Judge made the summons absolute. On appeal by the society, the High Court set aoide the order and directed the execution of the Award to proceed. On appeal by certificate this C-ourt. He'ld, (i) on a proper construction of the agreement as a whole, it was an executory contract and on the appellant fulfil- ling his obligations to the society, including the payment of the entire dues, the society would execute the sub-lease in his favour subject to the consent of the Government who held the first mortgage on the entire land. Until the the sub-lease was executed no relationship of landlord and tenant subsisted bet- ween the parties. As the appellant failed to fulfil his part of the agreement, the law laid down in the Act, in order to rea- lise the dues of the society, had to be put into operation. The Award was, therefore, a valid Award and there was absolutely no justification for _the plea that the appellant was a tenant governed by the provisions of the Rent Control Act. (Ii} In order that the jurisdiction of an arbitrator, appoin- ted under the Bombay Co-operative Societies Act, be excluded, the proceedings before him must be between landlord and tenant, and relate to the recovery of rent or posse.,ion of any premises to which the provisions of Part II of the Act applied. The exclusion of the jurisdiction of courts other than those named ins. 28 of the Bombay Act 1947 arose only if the claim of the applicant or plaintiff was based on the allegation that between him and the respondent or the defendant there was a relationship of landlord and tenant and the relief sought was one tha
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