# /HJ Mtg II 964 SUPREME COURT REPORTS [1964] VOL. \ V ASUDEV GOPALKRISHNA TAMWEKAR v. THE BOARD OF LlQJJIDATORS HAPPY HOME CO-OPERATIVE HOUSING SOCIETY

- **Citation:** [1964] 3 S.C.R. 964
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** B. P. Sinha C. J, J. C. Shah, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hj-mtg-ii-964-supreme-court-reports-1964-vol-v-asudev-gopalkrishna-tamwekar-v-3027
- **Pages:** 16

## Headnote

Oo-operation-Arbitrati-On-Hou.e buiUing society-Noncompliance with term• of the Agreement-Agreement whether
eucutory contract or one creating Landlord and Tenant relationship-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 monthly instalments. Through the agency of the society, the appellant 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 appellant 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 instahnent, 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 revisional application was also dismissed by the Tribunal. The
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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 jurisdiction 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 fulfilling 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 between the parties.
As the appellant failed to fulfil his part of
the agreement, the law laid down in the Act, in order to realise 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, appointed 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

## Text

/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-Noncompliance with term• of the Agreement-Agreement whether
eucutory contract or one creating Landlord and Tenant relationship-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 monthly instalments. Through the agency of the society, the appellant 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 appellant 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 instahnent, 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 revisional application was also dismissed by the Tribunal. The
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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 jurisdiction 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 fulfilling 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 between the parties.
As the appellant failed to fulfil his part of
the agreement, the law laid down in the Act, in order to realise 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, appointed 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 that wes referred to in that section.
Babula! Bhuramal v. Nandram Shivram A.LR. 1958 S. C.
677, held inapplicable.
CIVIL APPELLATE JuRISDlCTION : Civil Appeal
No. 578 ofl96L
Appeal from the judgment and decree dated
March 12, 1959. of the Bombay High Court in First
Appeal No. 685of1956.
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966
SUPREME COURT REPORTS (1964] VOL.
1'11
W. S. Barlingay and A. G. Ratnaparkhi, for
,.,.i;. G¥ollwiJ!toa the appellant.
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SWuiC J.
B. R. Naik, M. R. Krishna Pillai and K. R.
Chaudhuri, for the respondent.
1963.
May 10.
The judgment of the Court
was delivered by
SINHA C. ].-This appeal on a certificate
granted by the High Court of Judicature at Bombay
is directed against the Judgment and order of a
Division Bench of that Court, dated March 12, 1959,
reversing those of the Judge of the Bombay Civil
Court, passed in Chamber Summons, in Arbitration case No. A.B.N./C.H.0.-2310/88 of 1954-55.
It is necessary to state the following facts in
order to bring out the points in controversy between
the parties. The Happy Home Cooperative Housing
Society Ltd.-hereinafter referred to as the Societywas registered in February 1949. It obtained a
lease of a piece of land measuring about 12 thousand
sq. yards situate at Nehru Road, Vile Parle (East)
Bombay. The Society divided this land into 17
plots to be allotted to each one of its members for
building purposes.
A member was under the obligation of payment of premium, annual rent of
Re. 1/-, and other incidental charges and to construct
a house on the plot. The Society advanced loans to
the members to enable them to construct their houses.
The premium in respect of the land and the loan
advanced, as aforesaid, together with interest, was
repayable in monthly instalments. Accordingly,
Plot. No. 10, ·measuring about 076 sq. yds. was
allotted to the appellant, and other plots were
similarly allotted to other members for constructing
their respective houses.
Through the agency of the
Society, the appellant constructed a house on his plot.
· The construction was completed and the appelll\Ilf
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3 S.C.R.
SUPREME COURT REPORTS
!167
occupied the building on or about May l, 1951.
The sum of Rs. 25,922/-odd was advanced by way of
loan, to the
appellant.
An agreement dated
March 26, 1952 was entered into between the
appellant and the Society in respect of the loan
afore1aid, and the document was duly registered on
May 27, 1952. The agreement between the appellant and the Society provided that the amount of
loan aforesaid advanced to the appellant should be
repaid 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
Plot No. 10 in favour of the appellant. It was
further stipulated that in the event of default in the
payment of an instalment, fixed in the agreement,
the Society had the right to determine the agreement;
and thereupon any amounts 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. It appears that no
instalment was paid by the appellant with the
result that on August 26, 1954; the Society gave
notice to him, calling upon him to give vacant
possession of the premises, but the appellant did not
comply with the notice. In view of the persistent
refusal of the appellant to comply with the terms of
the agreement, the Society referred to dispute with the
appellant, under s. 54 of the Bombay Co-operative
Societies Act (Bombay Act VII of 1925) ~which
hereinafter will be referred to as the Act, to the
Registrar for decision by himself or his nominee.
The said dispute was heard and decided by a
Committee of Arbitrators, appointed by the Registrar,
Co·operative Societies, consisting of three gentlemen,
(1) a nominee of the Society as plaintiff, (2) a
nominee of the Appellant, as defendant, and (3) a
nominee of the Registrar, who was to be the Chairman. The said Committee of Arbitration, by
majority, gave an award in favour of the Society to
the effect that the appellant do deliver
vacan~
1963
YmlD Gololt.rislaui
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H.ppy Jf(JftU <;t-
.Ptr•li•• H..is;a,
s°'t.f1
Sinh• c. I.
1963
V .,.tJev Gopdkrishna
T.mwtkar
y.
H.ppy Home Cooper•tive Housitig
Society
Siu• C. J.
1
968
SUPREME COURT REPORTS [1964] VOL.
;.
possession of Plot, No. I@, alongwith the house, to
the Society and pay Rs. 150/- per month as compensation for unauthorised use and ocrnpation of the
premises from October 1, 1954, to the date of the
delivery of vacant possession. The appellant was
also made liable for payment of costs of the arbitration proceedings.
Thereupon the appellant made a
revisional application to the Bombay Co-operative
Tribunal, contending that the dispute between the
Society and himself was essentially a dispute between
landlord and tenant regarding the possession of the
premises and the recovery of rent and that the only
Court that had jurisdiction to decide such a con·
troversy was the Small Causes Court in Greater
Bombay, in view of s. 28 of the Bombay Rents,
Hotel and Lodging House Rents Control Act (Bombay
Act 57 of 194 7). After hearing the parties, the Tribunal negatived the contention raised on behalf of the
appellant and dismissed the revisional application.
After the Award was certified under s. 59 of the
Act, the Award was filed in the Bombay City Civil
Court for execution.
Thereupon the
appellant
took out a Chamber Summons against the Society
for stay of the execution proceedings. The learned
Judge who heard the Chamber Summons held that
the Award made by the Arbitrators was without
jurisdiction, in view of the provisions of s. 28 of the
Rent Control Aet. Accordingly, the summons was
made absolute on October 16, 1956. From that
order the Society came up in appeal to the High
Court. The High Court, on a consideration of the
terms of the agreement aforesaid, of March 26, 1952,
and after elaborate arguments raised by the parties
as to the legal effect of that document came to the
conclusion that it was only an agreement to lease,
binding the Society to grant a sub-lease only after
the appellant had fully paid all the instalments due,
andfulfilled other conditions of the agreement, as
stipulated between the parties. In that view of the'
matter, the High Court held that there was no
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3 S.C.R.
SUPREME COURT REPORTS
969
-
relationship of landlord and tenant between the parties. In the result, the learned Judges set aside the order
under appeal before them, and directed that the execution of the Award be proceeded with in accordance
with law, with costs to the Society in both the Courts.
It is from this judgment and order that this appeal
has been brought to this Court, on a certificate being
granted by the High Court.
V•SU<k• G.p.11rW.
•
The main question in controversy in this case
is whether the Award made under the Act, which
became a decree of the Civil Court, under the certificate of the Registrar; under s. 59, was without
jurisdiction, and, therefore, incapable of execution.
The answer to this question depends upon the answer
to the other question whether the appellant was a
'tenant' under the Society, by virtue of the agreement aforesaid of March 26, 1952. If it is held
that the agreement aforesaid did not create the
relationship of landlord and tenant, but that the
appellant continued to be the debtor of the Society
until all the outstanding amount advanced to him
in respect of the plot and the structure had been
liquidated, the Rent Control Act, and s. 28 thereof,
will be out of the way of the parties. In that case,
the proceedings before the Registrar, the Award of
the Arbitrators and the execution proceedings taken
out by the Society would all be adjudged to be
valid and binding upon the parties.
It is noteworthy that though the determination of the appeal depends upon the terms of the
agreement of March 26, 1952, it has not been included in the pri11ted paper-book. We have, therefore, to depend upon the extensive quotations of the
terms of the document as contained in the judgment
under appeal. It is common ground that all the
relevant terms of the document, beginning from the
preamble to almost the end of it, have been quoted in
_..
different parts in the jud~mcnt of the Jiigh Court,
T•wlk'ar
••
H</1P7H-<Aop1r<liV1 Hoiuitv
!fflll,
Sin/ta C. I.
s;,,;,,, c. 1.
I';•-
I
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970 ·SUPREME COURT REPORTS [1964] VOL.
i
and that these are sufficient to give us a complete
idea of the terms of the agreement.
The agreement
has been described by the Society in the plaint filed
before the Arbitrators as 'a lease' and the appellant
has been described as a 'tenant', and if the case were
to be decided on the so-called ad missions in the
plaint, the conclusion could easily be arrived at that
the relationship between the parties was that of
landlord and tenant. But as pointed out by the
High Court, if we refer to the terms of the agreement itself, it will be abundantly clear that on a
proper construction of those terms, there was no executed lease between the parties, but that it was only
an executory contract entitling the appellant to a
sub-lease by the Society, which was itself a lessee,
upon payment of all the dues of the Society in respect of premium, principal and interest, advanced
towards the cost of construction of the premises and
fulfilment of all other conditions contained in the
agreement. It consists of 14 clauses, as the judgment
of the High Court says. It further appears from the
said judgment that the agreement starts by saying
that it has been entered into between the Society of
the one part, and the appellant, hereinafter called
the 'tenant', of the other part. In Part II of the
preamble it is stated that the 'tenant' has applied to
the Society for Plot No. 10 and for permission to
erect a dwelling house thereon and for a loan
from the Society. The preamble also mentions the
fact that the Society itself had taken a lease of the
entire open piece of land, of which plot No. IO was
a part, for a term of 999 years from March 17, 1950,
at the annual rent of 'Rs. 6,264/-. . Part JII of the
preamble proceeds to say that the Society has already
spent money on development of the land and laying
out roads, etc., and that it had been agreed between
the Society and the 'tenant' that the letter will pay
a sum of Rs. 10,020/ · in instalments for transfer of
Plot No. 10, and that the society shall grant a loan
io the 'ten.ant', not :exceedins Rs. 16,980/- for erecting
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3 S.C.R.
SUPRE?\IE COURT REPORTS
971
•
the structure on that
plot, to be advanced in
instalments and repayable in instalments, as hereinafter provided. Part V of the preamble is important
in so far as it has stated, in clear terms, that when·
ever the 'tenant' shall have repaid to the Society all
the outstanding dues. either in equated monthly instalments or in one lumpsum, at the option of the
'tenant', the Society, with the consent of the Govern·
ment as mortgagee, shall grant to the 'tenant', a sub·
lease of the said Plot No. 10. free from all encumbrances for a term of 998 years commencing from
Match 17, 1950. Then follow the clauses of the
agreement. The first clause grants permission to the
'tenant' to enter upon the said plot for erecting a
dwelling house in accordance with the plan, elevation
and estimates, previously approved in writing by
the Society. Then clause 3 follows, which is sub·
stantially in the same terms as Part V of the pre·
amble. It makes it absolutely clear that only upon
payment of all the outstanding dues of the Society,
in respect of premium for the plot and advance
made for building the residential house, alongwith
interest accrued thereon, the Society shall grant and
the 'tenant' shall accept a sub-lease of the said Plot
No. 10. It may be mentioned here that the mort·
gage in favour of the Government has reference
to the advance by the Government of a large sum
of money to the Society with a view to financing its
building activities. For securing the payment of
that lumpsum, the entire area of land was mortga·
ged to the Government. Hence, it was necessary
to obtain the previous consent of the Government as
mortgagee to the execution of the sub-lease, con·
templated by Part V of the preamble and clause 3
of the agreement. And then follow details of how
the instalments have to be paid. Clause 8 of the
agreement provides that the proposed sub-lease shall
be in the form now approved and signed by and on
behalf of the parties, and when the said principal
m.oney and interest have been fully paid, the necessary
. /96$
--
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Soei•t.1
SiwC.J.
972 SUPREME COURT REPORTS [1964) VOL.
document shall be
executed by the
Society.
Further, clause 9 of the agreement provides that as
from the date of the agreement, the 'tenant' shall
punctually and regularly pay to the Society, without
any deductions, firstly, a rent of one rupee per an·
num, if demanded, secondly, a proportionate amount
of rent payable to the superior landlord in respect
of Plot No. 10, thirdly a proportionate amount of
assessment rates and taxes paid by the Society
in respect of Plot No. 10, fourthly,
a sum
equal to the amount spent by the Society
for
insuring the building with reference to Plot No. 10,
and, lastly, such further sum as may from time to
time be certified by the Society as the contribution
by the occupier of Plot No. 10 towards the general expenses of management, maintenance and development
costs, including expenses incurred on roads, sewers,
drains and other amenities. Clause 10 provides for
the penalty in the event of a default made by the
'tenant' in respect of any sums payable as afore·
said. It says that in the event of a default by
the 'tenant' the Society shall be entitled to
serve
notice in writing determining the agreement and
thereupon all instalments and other moneys paid by
the 'tenant' under the agreement shall be forfeited
to the Society and shall become the absolute pro·
perty of the Society.
And what
follow~ is
most
important. It says that upon the determination of the
agreement, the 'tenant' shall forthwith surrender and
give to the Society vacant possession of the said
premises. Clause 11 makes reference to the fact
that premises were mortgaged to the Governor of
Bombay to secure the loan advanced to the Society
by the Government of Bombay, and so long as the
mortgage remains
subsisting, the
Governor of
Bombay shall be a necessary party to any such sub·
lease, to be hereinafter executed as aforesaid, and no
such sub-lease shall be valid unless and until the
same shall be executed by the Registrar of Cooperative Societies on behalf of the Governor of
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3 S.C.R.
SUPREME COURT REPORTS
973
Bombay.
And.' lastly, clause 12 says that the
'tenant' shall accept the title of the Society to grant
the said sub·lease without any questions or making
any requisitions or objections with regard to the
title.
It was argued in the High Court though not
in the Trial Court, that on the terms aforesaid of
the agreement, a present demise of the land had been
executed in favour of the appellant. This argument
was thought of in the High Court. In the lower
Court, the Appellant's counsel relied on s. 27-A of
the Specific Relief Act, and it was submitted that
the defendant was entitled to defend his possession
even though no lease had been executed and regis·
tered, as required by law. The argument that the
appellant had become the 'tenant' of the land in
question under the Society was thought of because,
in the agreement, he was referred to as the 'tenant'.
In our opinion, the High Court is entirely correct in
taking the view that that was a mere description, or
misdescription, of the appellant and that, in law, the
appellant could not claim that relationship of landlord and tenant had been created by virtue of the
agreement, the terms of which have been referred to
in some detail in order to bring out the weakness of
the argument based upon the description of the
appellant as 'tenant'.
It is well-settled that the real nature of a
transaction has to be determined on a proper
construction of the document as a whole and not upon
any particular words used in the document.
The
agreement construed as a whole leaves no manner
of doubt that it was an agreement between the
appellant and the Society to grant a sub-lease of
Plot No. 10 only after the appellant had fulfilled his
part of the agreement, namely, had paid all the
outstanding amounts due to the Society in respect of
the premium on the plot, the amounts advanced for
1'63
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o/NT•tU• Horuilv
SocidJ
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I96J.
•V a.tl/lllv fhPalkrish1a ·
Ta6twkar·
v:
Happy Home CoaJm"li>i Housing
SD<ill.1
974 SU}>RENfE COURT REPORTS [1964] VOL.
construction of the house and the interest accrued
due until the entire amount had been liquidated.
The sub-lease would have to be executed by the
Registrar of the Co-operative Societies in token of the
consent of the Government of Bombay, which was a
condition precedent to the validity of the sub-lease.
The agreement m question, therefore, evidences
nothing more than an executory contract that on the
appellant fulfilling his obligations to the Society,
including the payment of the entire dues aforesaid,
the Society would exec11te the sub-lease in his favour
subject to the consent of Government of Bombay,
who held the first mortgage on the entire land, including Plot No. 10.
It would thus appear that the entire transaction
was that practically a permanent lease had been
taken by the Society in respect of the open area,
which was sub-divided into a number of plots for
building purposes. Those plots were to be allotted
to the members of the Society in order to enable
them to erect their own residential houses, on the
terms that the Society would grant to the members
such amounts by way of loan as would cover the
premium on the plot allotted to them and further sum
for building a house at a certain rate of interest. On
the completion of the house, the members would
occupy the premises and start paying in monthly instalments the dues of the Society towards principal
and interest until the last instalment will have been
paid and all the outstanding dues of the Society
liquidated. Upon the happening of that event, the
Society undertook to execute in favour of the
members sub-leases in respect of their respective plots
on which they had built their residential houses.
As
the whole scheme of the Society was financed by the
Government of Bombay, the Government was naturally a necessary party to the transaction. In the
first instance, the whole plot was mortgaged to the
Government and that mortgage was to subsist until
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3 S.C.R. SUPREl.\lE COURT REPORTS
975
l
J91J
'~··).-,
the Government dues had been entirely liquidated.
Therefore, it became necessary that the Registrar,
as the agent of the Government, should be a necessary
party to the execution of the sub-leases in favour of the
members to whom the several plots had been allotted
and the houses built on advance made by the Society
out of the funds made
available to it by the
Government.
YllJ!Jitrl~
Tamrnt•
I I has not been contested on behalf of the
appellant that he did not pay any instalment in
respect of the transaction in his favour.
He had,
therefore, not qualified for being granted a lease of
Plot No. 10, which had been allotted to him, under
the building scheme of the Society. Upon his de·
fault, there was no option left to the Society but to
determine the agreement and to call upon him to
surrender vacant possession of the property. Hence,
though he was characterised as a 'tenant' under the
agreement, it really meant the 'proposed tenant'. It
was merely descriptive of the appellant for the sake
of convenience of expression.
He would have be·
come a tenant only if he had paid all the dues, as
aforesaid, of the Society and had taken a sub·lease
duly executed and registered in acMrdance with the
terms of the agreement, referred to above in detail.
As he failed to do that, the laws laid down in the
Act, in order to realise the dues of the Society, had
to be put into operation. The Award was, therefore,
a perfectly valid Award and there was absolutely no
justification for the plea taken by the appellant that
he was a tenant who was governed by the provisions
of the Rent Control Act (Bombay Act 57 of 1947).
But the appellant contended that whatever
view we may take of the relation created by the
document, by virtue of s. 28 of Bombay Act 57 of
1947 the Committee of arbitrators appointed under
the Bombay Cooperative Societies Act 7of1925 had
no jurisdiction to adjudicate upon the question
... -._ '; ..
Ha/>b H..,,Jh.,
op.r.t1w,H,,,,;,r,
s..w,
Sittha C. J.
1969
audto Gopallcrishna
. nmwlkai
v.
H•PPJ Hom1 Co.·
opnatiw HoUl/•1
SHit9'
&iwC. /,
976
SUPREME COURT REPORTS (1964] VOL.
whether the appellant was a tenant of the premises
of the society, and reliance in that behalf was placed
upon the judgment of this Court in Babulal Bhuramal v. Nandram Shivram (1). In considering that
argument attention must first be invited to Section 28
of Bombay Act 57 of 1947, which in so far as it is
material, provides :
"(l) Notwithstanding anything contained in
any law and notwithstanding that by reason of
the amount of the claim or for any other reason,
the suit or proceeding would not, but for this
provision, be within its jurisdiction,
(a) in Greater Bombay, the Court of
Small Causes, Bombay;
(aa)
(b)
x
x
x
x
x
x
x
x
shall have jurisdiction to entertain and try any
suit or proceeding between a landlord and a
tenant relating to the recovery of rent or
possession of any premises to which any of the
provisions of this Part apply and to decide any
application made under this Act and' to deal
with any claim or question arising out of this
Act or any of its provisions and subject to the
provisions of sub-section (2), no other court shall
have jurisdiCtion to entertain any such suit,
proceeding or application or to deal with such
claim or question."
It was urged that as before the Committee of
arbitrators the Society had claimed that the appellant was a tenant of the Society, and relief for possession of the premises was claimed on that footing,
the arbitrators had no jurisdiction to grant relief for
possession. But there is no warrant for the submission
that the Society claimed before the arbitrators that
(!) A.I.R. (1908) S.C. 677.
'
'
I.
-
~
•
3 S.C.R.
SUPRENIE COURT REPORTS
977
the appellant was a tenant and on that basis claimed
relief for possession.
The pleadings before the arbitrators are not included in the record, and on a reasonable reading of the award also no such inference
can be raised. Before the Committee of arbitrators
the Society had alleged that the appellant had made
persistent defaults in repayment of the loan due by
him and had claimed .a declaration that the appellant
had ceased to be a member of the Society, and an
Order for delivery of vacant possession of the premises belonging to the Society. It was, it appears,
not alleged that any relation of landlord and tenant
had ever subsisted between the Society and the appellant, and the plea of the appellant that he was a
tenant in respect of the premises in dispute could not
affect the jurisdiction of the committee of arbitrators.
No useful purpose will therefore be served by enter·
ing upon a discussion whether the provisions of s. 28
of Bombay Act 57 of 194 7 override the provisions of
the Bombay Co-operative Societies Act 7 of 1925, as
was suggested at the Bar.
Alternatively, it was contended that even if
the Society claimed to obtain an order for possession
on some footing other than the relationship of landlord and tenant, when the appellant raised the con-
- .
tention that he was a tenant and the relationship of
landlord and tenant was put into issue, the Court of
Small Causes, Bombay, alone was competent to
decide that question. Section 28 of Bombay Act
57 of 1947 excludes the jurisdiction of all courts other
than the Court of Small Causes to try any suit, proceeding or application between a landlord and a
tenant and to deal with any claims or questions as
are referred to in the section. Even if it be granted
that an arbitrator appointed under the Bombay Cooprative Secieties Act is a Court,- on this question
we do not deem it necessary to express any opinion-
. :. in order that his jurisdiction be excluded the_ proceeding before him must be between landlord and
'
V asud" Gopalfil"""
Tamt1J11'tir
v:
Happy• Home C6op1rali111·Hdfimtg
Sotiel)I
s;n1u 0.1 ..
IJ63
.r.1otler1 Gop.IKrishn•
Tomwel:o:ir
••
H•P# Ham• C.·
tlt'•titt Hrnuia1
S1ei1l,1
.&i.UC./,
978 SUPREME COURT REPORTS [1964] VOL.
tenant, and relating to the recovery of rent or possession of any premises to which the provisions of Part
II of the Act apply. The exclusive jurisdiction of
the Court of Small Causes arises only if the person
invoking the jurisdiction of the Court alleges that the
other party is a tenant or a landlord and the question
is one which is referred to ins. 28.
Where the person so invoking does not set up the claim that the
other party is a tenant or a landlord the defendant
is not entitled to displace the jurisdiction of the
ordinary court by an allegation that he stands in that
relation qua the other and on that ground the Court
has no jurisdiction to try the suit or proceeding or
an application. There is nothing in the judgment
of this Court in Babulal Bhuramal's Case('), which
supports the view that by merely setting up a plea
that he is a tenant in respect of the premises in dispute, the jurisdiction of the ordinary Courts· to decide
a suit, proceeding or application would be displaced.
The facts which gave rise to the appeal decided by
this Court in Babulal' s case ('), may be noticed.
The landlord filed in· the Court of Small Causes a
suit in ejectment against the tenant, after terminating
the tenancy, and to that suit implcaded two persons
who the landlord alleged had no right to be on the
premises. The Court held that those two persons
were not lawful sub-tenants and had no right to remain in the premises and passed a decree in ejectment against the three defendants. The three defendants then commenced an action in the Bombay City
Court for a declaration that the first of them was a
tenant of the landlord, and the other two were lawful sub-tenants and were entitiled to the protection
of Bombay Act 57 of 1947.
The City C(lurt held
that it had jurisdiction to try the suit, but dismissed it
on the merits. The High Court of Bombay confirmed
the decree holding that . the City Court had no jurisdiction to entertain the suit, but expressed no opinion
on the merits. This Court affirmed the view of the "'-
High Court. The Court in that case was considering
{I)
A.I.R. (19!Xl) (!.C. ~77.
L
•
•
•
- .
,
'
3 s.c.R.
SUPREME COURT REPORTS
979
the true effect ofs. 28 of Bombay Act 57 of 1947 in
the light of the averments made by the plaintiffs who
alleged that they were tenants and the denial by the
defendant landlord of the tenancy set up.
The
Court observed on p. 681 :
"The suit did not cease to be a suit between a
landlord and a tenant merely because the defendants denied the claim of the plaintiffs.
Whether the plaintiffs were the tenants would
be a claim or question arising out of the Act
or any of its provisions which had to be dealt
with by the Court trying the suit. On a proper interpretation of the provisions of s. 28 one
suit contemplated in that section is not only a
suit between a landlord and a tenant in which
that relationship is admitted but also a suit
in which it is claimed that the relationship of
a landlord and a tenant within the meaning of
die Act subsists between the parties."
There is nothing in these observations to support the
plea that the jurisdiction of the ordinary courts to try
a suit or proceeding relating to recovery of possession
of any premises ti> which Part II of the Act applies
is displaced as soon as the conttsting party raises a
plea about the relationship of a landlord and a
tenant.
In the result the appeal fails and is hereby dismissed with costs.
Appeal dismissed .
. .
Vasu'dtD ·0o~. A:r~
Tomwekar
v.
H•ftlyHome (
eperatioe Houri
Soci1ry
~inha c .. /.