TMI Blog2021 (5) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... jority of the shop owners. It is trite that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred and the courts may in the larger interests of administration of justice may excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice to the parties and pass orders which will serve the interest of justice best - The materials available on record clearly indicate that the Petitioners, a motley group of shop-owners had come together to raise concerns regarding the running of the Mall to their detriment. The common cause had brought them in to unison itself is indicative of the fact that their sole intention was redressal of their grouses and they were themselves aware what they wanted to do by authorising Mr. Nitin to take up cudgels on their behalf. They were conscious of the import and intent of the authorization. Considering the facts of the case and the law thus settled it can be safely be held that the consent by the Petitioners given to Mr. Nitin Bangera to present the Petition would accordingly be not susceptible to any misgivings nor ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the minority shareholders. In case of transfer of shop(s), the shares held were also required to be transferred to the transferee(s). The Company despite being a Public Limited Company had not been acceding to any request of transfer of shares. Various such transfers are pending with the Company on flimsy grounds. Many letters of request for share transfer returned as the Company Office was closed. The Petitioners received notices from Municipal Corporation of Greater Mumbai (MCGM) for non-payment of outstanding property tax/dues. R1 and R8 had collected six months advance Common Area Maintenance (CAM) charges of around ₹. 4.82 crores @₹. 18/- for the 4.46 lakh sq. ft. of space occupied by the shop owners. Despite payment of such sum the Mall has not been properly maintained. The conditions of washrooms are deplorable and housekeeping leaves much to be desired. Basic amenities have been lacking putting the shop owners and the customers in great hardship and severe inconvenience. The maintenance of the Mall has been in complete disarray. d. The shop owners numbering 1093, had at the time of taking possession of their respective premises, 5 years back, paid approxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the report and by order dated 20.08.2018/31.08.2018 observed and directed as follows: 5. On looking at the report of the Commissioner it appears that the condition prevailing in the mall is not only creating problems to the Petitioners and other shop owners in respect to their business, but it is life threatening not only to the Petitioners but also to the public regularly visiting the mall. When we see the financial condition of R1 Company, it is apparent on record that it has been consistently in losses, therefore, if the maintenance of the mall is left in the hands of R1 Company, which has been admittedly continuing in losses, it may not be possible for this Company to clear all these dues and provide services to the shareholders in near future. In view of the same, we are of the view that for time being if an Administrator is appointed to run this Mall for providing common area maintenance on the contribution provided by the Petitioners and other shop owners of the Company, at least for the time being there would not be any problem for the shop owners and shareholders doing business in the Mall. 6. Accordingly, Mr. Rahul P. Sahasrabuddhe, Company Secretary, SPR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MA No. 489 of 2019 with the following prayers. a) The Hon ble Tribunal be pleased to direct the City Civil and Sessions Court, Mumbai or any other Appropriate Court, as the Hon ble Tribunal may deem fit, for execution of order dated 10th December, 2018 to direct and recover from the shareholders / shop owners / Office Owners / Unit Owners including the Anchor Shareholders of the Mall, the Common Area Maintenance / Contribution charges for the month(s) of September, October, November or December, 2018 and January, 2019. b) The Hon ble Tribunal be pleased to direct the Local Police Authority i.e. Bhandup Police Station for execution of order dated 10th December, 2019 to extend support and police protection for removal of illegal occupant(s) and Trespasser(s) of the Mall, removal of Car, Rickshaws, Vehicles parked unattended and in unauthorized manner and to help the Administrator in recovering the list of all the owners owning shops / offices / units in the mall and the updated list of shareholders from the Respondent(s). c) Any other order as the Hon ble Tribunal may deem fit and proper. 6. This Tribunal on consideration of the prayers made by the Administrator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 2856 of 2019 seeking immunity from Civil and Criminal actions arising out of his discharge of the duty as Administrator. This Tribunal by order dated 10.10.2019 while disposing of MA No. 2856 of 2019 passed the following order: In the circumstances, we are of the considered opinion that the Administrator should be provided with the protection against any illegal activities which are causing hindrances in discharging the official duties of the Administrator. The Administrator is an officer of the Court, and in the circumstances, he should be protected for the acts, which are being done in discharging his official duties assigned to him. In the above circumstances, we at this moment grant immunity to the Administrator from all the actions arising out of discharging duties as an Administrator of the Mall. MA 2856 of 2019 is disposed of accordingly 10. The shop owners have also not been complying with the directions of the Tribunal with regard to the payment of CAM charges. Some shop owners also contended that the charges fixed at ₹. 15 per sq. ft. was burdensome. The Tribunal taking into consideration the submissions passed the following order on 16.01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal effectively. 5) That this Hon ble Tribunal be pleased to pass an order directing Respondent No. 4 and Respondent No. 6 to immediately eradicate illegal construction made at entrance No. 2 of the Dreams Mall. 6) That this Hon ble Tribunal be pleased to pass an order directing the Respondent No. 4 and Respondent No. 6 to immediately to take coercive action with respect to heavy water leakage in shops of the Dreams Mall, caused due to repairs of fire safety equipment by Respondent No. 4 and Respondent No. 6. 7) This Hon ble Tribunal direct the M/s Car Shine (Respondent No. 7) to handover the parking space to the Administrator and Respondent No. 1 2 assist the Administrator in taking control of the parking premises. 8) That this Hon ble Tribunal be pleased to allow the Administrator to charge interest at the rate of 18% per annum w.e.f. 31st December, 2019 on the outstanding common area maintenance charges / contribution, if remained unpaid as on 30th July 2020 to implement the orders of this Hon ble Tribunal effectively. 9) Any other order as the Hon ble Tribunal may deem fit and proper. 12. Since the prayers essentially covered the prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exclusive arrangement for electricity, water supply, housekeeping, security, independent entrance and lift arrangement. These arrangements were part of the condition of acquisition of the premises. It does not avail or share the maintenance services from the pool of services provided by the Company to other shop owners. 16. It has an agreement with R3 for the payment of ₹. 1.50 per sq. ft. toward CAM charges as and when occupation certificate was granted to it. The agreement further provided that in the event a body is appointed by law for the maintenance of the Mall premises, the terms of the said agreement would prevail and continue to be binding upon the parties. 17. Upon the outbreak of the Covid-19 pandemic, the MCGM has taken over the Hospital for Covid treatment. Accordingly provisional occupation certification has been granted to R4 by the MCGM w.e.f. 06.05.2020. R4 is using a separate entrance of the Mall on the advice of the MCGM to prevent the spread of the virus and has also made separate provisions for security to ensure testing of incoming patients and to maintain social distancing norms. 18. The Applicant has failed to present these facts before the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat R5 is maintaining all the common areas of the Mall itself, which otherwise would have to be maintained by the Administrator. Almost all the obligations (including taxes, bills, etc.) in relation to the maintenance of the common area on 3rd floor, where the office of R5 is located are met by R5 itself. Therefore, any payment of CAM charges to the Administrator would mean paying the same charges twice. It pays the property tax and water charges directly to the authorities concerned. It has installed water tanks to meet the water requirement of its staff for which it has spent a sum of ₹. 8,77,584/- and also spends approximately ₹. 45,000/- per month towards the water tankers. It also bears the entire amount towards the electricity charges and has spent approximately ₹. 1 Crore for the installation of the Transformer and DG Unit in the basement and pays ₹. 13 lakhs approximately per month towards electricity bills for its premises in the Mall. Further, all the common amenities and the common lights on the 3rd Floor are maintained by it since the year 2010. That HDIL has allocated an elevator to R5 for exclusive use by its officials and customers for which R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Applicant deserves to be dismissed. In support of the contentions reference is made to Sudhir Shantilal Mehta vs. Central Bureau of Investigation: (2009) 8 SCC 1. The Hon ble Court held that the RBI issuing caution under Section 36(1) of the Banking Regulation Act, 1949 would be different from the RBI issuing directions under Section 35-A of the Act. The banking company would be statutorily bound to comply with the directions under Section 35-A of the Act. 24. R5 filed CA No. 688 of 2020 on the self-same grounds against the Applicant (in CA No. 1069/2020)/Administrator seeking the following reliefs: a) The Administrator be directed not to charge any Common Area Maintenance charges for the premises of the Applicant on the 3rd Floor and Basement parking area of the Dreams The Mall, as the Applicant is not using any common area facilities of the said Mall. b) The Hon ble Court pass directions that the Order dated 10th December 2018 and 16th January, 2020 are not applicable to the Applicant Bank; c) For interim and ad-interim reliefs in terms of prayers clause (a) (b); d) For costs of this Petition; e) For such other reliefs as this Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that the contents were explained to them and they put their hand understanding the import thereof. It is thus stated that the Petitioners were not made aware of the contents of the Authorisation before they put their hand thereon to. e. The authorisation on behalf of the companies, who are arrayed as Petitioners, is bereft of the authority under which authorisations were made nor there is any Board Resolution consenting to such Authority. Some of the signatures against the name of the shareholders are also missing. With regards to the importance of consent and its propriety reference is made to the following principle laid down in M. C. Duraiswamy v. Sakthi Sugars Ltd.: (1980) 2 MLJ 77. Before a member can be said to have consented to a particular action, the said member should have known what was the action to be taken, what was the relief to be prayed for and what was the ground to be urged in support of the relief claimed. It is one thing to say that the member who gives consent should have applied his mind to the question before him before giving consent; it is another thing to say that before a member gives his consent, the actual petition prepared to be filed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred decisions on the point may not be delineated here. 30. There is no dispute that the Company Petitioners are shareholders of R1 Company (Dreams The Mall). Section 244 of the Act mandates the eligibility of the members of a Company to apply under Section 241 thereof. It will be profitable to refer to the language of Section 244 as under: 244. Right to apply under section 241.- (1) The following members of a company shall have the right to apply under section 241, namely:- (a) in the case of a company having a share capital, not less than one hundred members of the company or not less than onetenth of the total number of its members, whichever is less, or any member or members holding not less than one-tenth of the issued share capital of the company, subject to the condition that the applicant or applicants has or have paid all calls and other sums due on his or their shares; (b) in the case of a company not having a share capital, not less than one-fifth of the total number of its members: Provided that the Tribunal may, on an application made to it in this behalf, waive all or any of the requirements specified in clause (a) or clause (b) so as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was initially heard, this Tribunal preliminary held that there was mismanagement and dislocation in the running of the Company. Most of the shop-owners were at a disadvantage and were not able to carry on their business in the Mall, for the purpose of which they had held shares in the Company. Satisfied that the Company was not being properly managed, the Tribunal had appointed an Administrator. But as the situation presently stands the appointment of the Administrator has also not been able to allay the sufferings of the majority of the shop owners and they continue to confront them. 34. The plea that the Directors of the Company have abdicated their responsibility in maintaining the Mall properly itself is sufficient to prima facie hold that all is not well and smooth in the Company. The fact that the Dreams Mall Commercial Premises Workers Association had written to the Hon ble Minister for Energy for electricity connection itself goes to show that the Company has abandoned its responsibility and has put a deaf ear to the plight of the majority of the shop owners. 35. The fact that the shop owners had authorised Mr. Suresh Dubey, Advocate to file vakalatnama on their behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. - Justice is the goal of jurisprudence - processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar (1975 (1) SCC 774). No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Applicant in CA No. 688 of 2020 (R5 in CA No. 1069 of 2020) is in occupation of an area of 3641.76 sq mtrs. on the 3rd floor of the Mall. It occupied such premises under an agreement to sell dated 27.12.2007 and an area of 118.70 sq. ft. under another agreement dated 29.09.2010. Para No. 15 (i) of the agreement dated 27.12.2007 covers the payment of CAM charges in the following terms: 15(i) The Purchaser/s agrees and binds himself / herself / itself to pay regularly every month, by the 5th of each month to Promoters / Promoters until the Co-Operative society / Condominium / limited company (hereinafter referred to as the said association ) is formed as herein stated and thereafter to the said association, the proportionate share that may be decided by the Promoters or the said association as the case may be for (a) insurance premium, (b) all municipal and other taxes that may from time to time to levied in respect of the said property described in the second schedule hereunder written and / or the said shopping Mall including water taxes and water charges and (c) outgoings for the maintenance and management of the said property and the said shopping Mall and the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an agreement with the concerned parties for Security, housekeeping services to which the first party shall not have any objection. During as well as after the fit-out period, the second party is entitled to install DG Sets/ separate electricity connection for its exclusive use and also have its own overhead and underground water tanks and arrangement for tanker water and water pumping arrangement for its exclusive use. 3. The Common area is not used by the second party except for the main entrance and maintenance expenses for the common area of the Mall shall be paid directly by the first party or by the society of the occupants of the Mall or by the company formed for the purpose or by any body entrusted by law for the purpose as the case may be, during fit out period as well as after the possession is given by the first party to the second party upon getting OC. 4. The second party further agrees to pay the common area maintenance at the rate of ₹ 1.50 per sq. ft. (carpet area) per month for the area occupied by the second party from the date the actual possession is delivered to the second party with OC and possession certificate and operation of the hospital c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities concerned are directed to provide necessary help/assistance to the Applicant to effectively carry out the orders dated 10.12.2018, 11.02.2019, 10.10.2019 and 16.01.2020 of the Tribunal. ii) The Constituent Members / Shareholders / Shop-owners of the Mall except R4 shall pay the CAM charges at the rate of ₹. 15 per sq. ft per month w.e.f. 01.09.2018 till 30.04.2021 within a period of one month and shall continue to pay the current monthly charges by the first week of every succeeding month until further orders. iii) R4 shall pay CAM charges at the rate of ₹.1.5 per sq. ft. from 06.05.2020 to the Administrator till 30.04.2021 within one month. Thence it shall pay the current CAM charges at the same rate in the first week of every succeeding month until further orders. iv) The Applicant (Administrator) shall submit status report of collection of the CAM charges with the Tribunal with regard to the arrears charges up to 30.04.2021, after the given period of one month, in the following format for information. Sr. No. Member / Name of Shareholders of Dreams The Mall Outstanding CAM charges as per order d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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