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TMI Blog2018 (9) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... ay an amount of Rs. 4,75,000/- with interest is challenged. 2. Respondent nos. 1 and 2 have filed Dispute No. 398 of 2005 before the Cooperative Court, Pune for recovery of amount of Rs. 6,98,740/- alongwith interest, which the disputants have paid to the petitioner-Housing Society. The Cooperative Court has passed an order dated 1st October, 2007 directing the petitioner-Society to pay the disputant amount of Rs. 5,00,000/- along with interest @ 11% from 29th December, 2005 till the realization of claim. The petitioner- Society challenged the said order by filing Appeal No. 02 of 2008 before the Maharashtra State Cooperative Appellate Court, Mumbai Bench at Pune, which was partly allowed and the Society was directed to pay Rs. 4,75,000/-, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut that besides this admission, the respondents have admitted that they sent a letter to the Society on 9th December, 2004 where they offered to pay transfer charges @Rs.25/- per sq.ft. (D-14). The learned counsel has submitted that the respondents have admitted that they could not produce any evidence that the Society made demand of Rs. 5,00,000/- towards the transfer charges. The learned counsel has submitted that if at all the member of the Housing Society voluntarily agrees to pay money to the Society, then it is not to be covered as a restriction under the byelaws. In support of his submissions, the learned counsel relied on the judgment of Single Judge of Bombay High Court in Writ Petition No. 1094 of 2004 in the case of Bharatiya Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er it is voluntary or not would make no difference to the principle of mutuality. Secondly, payments are made under the bye-laws which constitute a contract between the society and its members which is voluntarily entered into and voluntarily conducted as a matter of convenience and discipline for running of the society. If it is the case that the amounts more than permissible under the notification had been received under pressure or coercion or contrary to the Government directions, then considering section 72 of the Contract Act, that amount will have to be refunded. At any rate if the society retains the amount in excess of the binding Government notification or the byelaws that amount will be exigible to tax as it has an element of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipulated period of three years but the parties compromised the matter wherein the respondents agreed to deposit Rs. 50,000/- by way of security. After its construction, the respondents were in need of money and therefore they decided to sell their bungalow. On the background of these facts, the issue of donation of Rs. 5,00,000/- is required to be appreciated. A person facing financial crises will not donate amount of Rs. 5,00,000/- to the Housing Society. There is a ceiling of Rs. 25,000/- for transfer fees. Therefore, different ways are invented by the Society to earn more money other than legally permissible like the maintenance charges or transfer fees under the bye-laws. The incoming and outgoing member both are having a subordinate po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have admitted the letter sent to Society on 9th December, 2004 where they have offered to pay transfer charges Rs. 25/- per sq.ft. , still it hardly comes upto Rs. 85,000/- to 90,000/- and the donation amount of Rs. 5,00,000/- is much higher. It is necessary to see the time factor and the sequence of the payment of so called donation and the challenge given to the said payment by the respondent by filing Dispute No. 398 of 2005 before the Cooperative Court. The respondents sent letter to Society on 9th December, 2004 wherein the respondents have expressed that they are ready to pay Rs. 25,000/-. They expressed their willingness to pay Rs. 25/- per sq.ft. after adjusting the deposit amount of Rs. 50,000/- which was paid to the Society earli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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