Judgment 1. The Notice of Motion is heard finally. 2(A). The plaintiff seeks a declaration that a development agreement dated 3rd November, 2010, entered into between defendant No.1 and itself is valid and binding, for a mandatory order and injunction directing defendant Nos.2, 3 and 4 to comply with the agreement, including by vacating and handing over possession of their respective flats to the plaintiff to enable it to demolish the existing building and to construct a new building thereon and a permanent order and injunction restraining defendant Nos.2, 3 and 4 from obstructing or interfering with the plaintiff carrying out the said work. (B) The plaintiff seeks interim reliefs directing defendant Nos.2, 3 and 4 to vacate their flats and to hand over possession thereof to the plaintiff to enable it to implement the development agreement. Defendant No.1 supports the plaintiff. Only defendant Nos.2, 3 and 4 have opposed this application. 3. Defendant No.1 is a housing society in which defendant Nos.2, 3 and 4 are members. The plaintiff is a developer appointed by defendant No.1 for the redevelopment of its building. Defendant No.1 is the owner of a piece of land together with two buildings standing thereon, referred to as A wing and B wing. Each wing has 25 flats. An extension to A wing has four flats. There are, accordingly, 54 members in the first defendant society, occupying their respective flats. 4. Defendant No.1 desired exploring the possibility of having the buildings redeveloped as they were constructed about 27 years ago and even otherwise, the structural engineers advised the first defendant against structural repairs stating that the same was not economically viable. Be that as it may, defendant No.1 ultimately decided to go in for the redevelopment of the building by appointing a developer. Defendant No.1 contacted the plaintiff as it had constructed a building on the adjoining plot. Detailed negotiations ensued between the plaintiff and the first defendant. It is not necessary to set the same out in detail. Suffice it to note that one of the major factors for defendant No.1 deciding to appoint the plaintiff as a developer was that 50 out of 54 members could be accommodated in the defendant No.1's building on the adjoining plot, thereby minimizing any dislocation on account of the members having to move far from their existing homes. Suffice it to note that one of the major factors for defendant No.1 deciding to appoint the plaintiff as a developer was that 50 out of 54 members could be accommodated in the defendant No.1's building on the adjoining plot, thereby minimizing any dislocation on account of the members having to move far from their existing homes. The advantage of this is far too obvious to require any elaboration. Added to this is the fact that the apartments to be handed over as temporary alternate accommodation in the adjoining building are bigger than those occupied by the members in the existing building. Four persons from A wing were to be provided with the rent as they could not be accommodated in the adjoining building. These four members, however, have not objected to the redevelopment. Defendant Nos.2, 3 and 4 who have objected to the redevelopment will be accommodated in the building on the adjoining plot. It was proposed that only one wing would be demolished and in its place, the new building could be constructed for all 54 members. Thus, the members of the other wing could continue to occupy their existing flats. This way, none of the 54 members would be inconvenienced by having to move far from their existing homes. 5(A). On 14th August, 2010, a special general body meeting of the first defendant was held. 46 members attended the meeting. Defendant Nos.2, 3 and 4 did not attend the meeting. The resolution to appoint the plaintiff on the terms and conditions of a revised offer dated 7th August, 2010, was passed unanimously. Five members who could not attend that meeting had submitted their consent letters. Thus, 51 members have agreed to the redevelopment of the building by the plaintiff. Only defendant Nos.2, 3 and 4, who did not attend the meeting, have objected to the same. (B) A development agreement was thereafter executed on 3rd November, 2010. The usual power of attorney was executed by the first defendant in favour of the plaintiff on 12th November, 2010. 6. Defendant Nos.2, 3 and 4 started raising objections to the redevelopment of the building. 7. Defendant No.1, therefore, convened another special general body meeting to ratify the earlier actions taken by the general body. The meeting was held in the presence of an officer appointed by the Deputy Registrar, Co-operative Societies. 6. Defendant Nos.2, 3 and 4 started raising objections to the redevelopment of the building. 7. Defendant No.1, therefore, convened another special general body meeting to ratify the earlier actions taken by the general body. The meeting was held in the presence of an officer appointed by the Deputy Registrar, Co-operative Societies. The 46 members, who attended the meeting, voted in favour of ratifying all the actions of defendant No.1 and its managing committee for the redevelopment of the property by the plaintiff. The meeting was recorded on video. The same was confirmed by a letter dated 26th June, 2011, addressed by the District Deputy Registrar, Co-operative Societies, to defendant No.1. 8. I am bound by a series of judgments of this Court in such matters. In view of the objections raised by defendant Nos.2, 3 and 4, it is necessary to note that the judgments hold that the developer in such circumstances can maintain an action for obtaining possession of the property from the society; that in such an action, reliefs, including interim reliefs can be granted requiring the dissenting members to hand over possession of their flats to the developer through the society and that the minuscule dissenting minority are bound to comply with the resolutions duly passed by the society for the redevelopment of the work. 9. It is necessary to note at the outset, a few admitted facts. The first defendant society's decision to redevelop the property has been confirmed and ratified by all the members, including defendant Nos.2, 3 and 4. The same has not been challenged by defendant Nos.2, 3 and 4 before the appropriate forum. The principal objection raised by defendant Nos.2, 3 and 4 is that the plaintiff ought not to be appointed as the developer. Thus, 51 out of 54 members have not only agreed to the redevelopment of the property, but have agreed to the same being done by the plaintiff. Only defendant Nos.2, 3 and 4 have objected to the plaintiff being appointed as the developer. 25 members in B wing will continue to reside in the existing flats while the redevelopment work is going on. 25 members, including defendant Nos.2, 3 and 4 will be given temporary alternate accommodation in the flats in the adjoining building which are, in fact, bigger than the existing flats. Four members have agreed to accept rent in lieu of temporary alternate accommodation. 25 members, including defendant Nos.2, 3 and 4 will be given temporary alternate accommodation in the flats in the adjoining building which are, in fact, bigger than the existing flats. Four members have agreed to accept rent in lieu of temporary alternate accommodation. Thus, the inconvenience on account of relocation is minimal. 10. Mr. Rathod submitted that defendant Nos.2, 3 and 4 have no confidence in the plaintiff's ability to redevelop the property. He stated that the plaintiff took several years to construct another building. Mr. Rathod further stated that the plaintiff is involved in “some litigation”. 11. 51 out of 54 members have expressed their confidence in the plaintiff. They have weighed the pros and cons and have come to an informed decision that it is in their interest to appoint the plaintiff as a developer. At the cost of repetition, one of the factors was that they would be accommodated in a building on the adjoining plot. The court ought not to substitute its views on such aspects, especially when all the details regarding the litigation and the cause for the delay in construction are not specified. The members are entitled to the view that in any event they would not be greatly prejudiced by some delay on account of the fact that they would, in any event, be in possession of alternate accommodation on the adjoining plot which is of a higher value than their own flats. 12. Mr. Rathod then submitted that the plaintiff ought to give a bank guarantee of Rs.2,50,00,000/-instead of Rs.1,00,00,000/-. Here again, this is a decision for the first defendant to take. The submission of the society that the best guarantee is its members possession of the alternate accommodation on the adjoining plot is not without force. Moreover, in the event of there being any undue delay, it is always open to the defendants to adopt appropriate proceedings to remedy the situation. 13. Mr. Rathod expressed an apprehension that the plaintiff would ask for a higher rent on account of the alternate accommodation being larger. The plaintiff has confirmed that it will not make any such demand. The statement is accepted and it is so ordered. This shall continue till the first defendant's members are put in possession of the redeveloped flats. 14. The IOD was issued on 27th April, 2011. The plaintiff has confirmed that it will not make any such demand. The statement is accepted and it is so ordered. This shall continue till the first defendant's members are put in possession of the redeveloped flats. 14. The IOD was issued on 27th April, 2011. Defendant Nos.2, 3 and 4 were bound to vacate the premises within sixty days thereof i.e. on or before 26th June, 2011. Whether they would be liable or responsible for any damages or compensation on account of refusing to do so is another matter altogether with which I am not concerned in the present Notice of Motion. The parties are always at liberty to adopt proceedings in respect thereof. 15. Mr. Rathod then submitted that the corpus fund and bank guarantee had not been furnished as yet. 16. Clause 11 of the development agreement requires the plaintiff to provide a bank guarantee in the sum of Rs.1,00,00,000/-as and by way of security for the due performance of the contract “at the time of all the 54 existing members vacating their existing flats”. Defendant Nos.2, 3 and 4 have admittedly not vacated their existing flats. They cannot take advantage of their own wrong. In fact, in view thereof, the time for furnishing the bank guarantee has not even arrived. 17. Mr. Rathod then relied upon clause 26 of the development agreement which required the plaintiff to pay an amount of Rs.80,00,000/-to the first defendant by way of corpus fund at the time of signing the agreement. Clause 26 reads as under:- “That the Developers shall pay an amount of Rs.80,00,000/-(Rupees Eighty Lakhs Only) to the Society comprising of A & B wing of 50 members by way of corpus fund and the said amount shall be paid by the Developers to the Society at the time of signing these presents;” 18. The submission is not well founded. Firstly, the first defendant has not issued a notice as required by clause 26. More important, however, is the fact that the first defendant has not done so not only for good reason, but for its own benefit. It appears that the first defendant society was advised by its Chartered Accountant that in the event of receiving the corpus fund there would be tax implications adverse to the interest of the society. More important, however, is the fact that the first defendant has not done so not only for good reason, but for its own benefit. It appears that the first defendant society was advised by its Chartered Accountant that in the event of receiving the corpus fund there would be tax implications adverse to the interest of the society. This was communicated to the society by its Chartered Accountant's letter dated 5th November, 2010, which was in response to the society's query contained in its letter dated 25th October, 2010. Accordingly, the society, by its letter dated 10th November, 2010, addressed to the plaintiff, recorded what transpired at a meeting between them. The society, therefore, requested the plaintiff to take necessary steps by dividing the amount of the corpus fund amongst the members on a pro rata basis. The society informed the plaintiff that its members were agreeable to take the corpus directly from the plaintiff at the time of signing the individual tripartite agreements in respect of the flats to be provided by the plaintiff in the new building. The letter recorded that, in fact, such payments had been made to four members. A compilation of the correspondence in this regard was tendered in Court. 19. Mr. Rathod lastly submitted that the plaintiff, being only a developer, has no cause of action against defendant Nos.2, 3 and 4. The submission is not well founded and is covered against defendant Nos.2, 3 and 4 by several judgments of this Court. 20. Writ Petition (Lodg) No.28 of 2009 was filed by the developer M/s.Whiz Enterprises Private Limited against the State of Maharashtra, the Bombay Municipal Corporation, the society and its dissenting members in a similar situation. The petitioner sought similar reliefs. The only difference between that case and the present one is that in that case, the BMC had also issued a notice under section 354 of the BMC Act. The Division Bench by its judgment dated 30th July, 2009, directed the BMC to take necessary steps to ensure compliance with its notice under section 354 of the Act so that the same was taken to its logical end. Paragraphs 7 and 8 of the judgment read as under:- “7. Be that as it may, it is not in dispute that the General Body of the Respondent No.3 Society has unanimously resolved to take forward redevelopment of the building. Paragraphs 7 and 8 of the judgment read as under:- “7. Be that as it may, it is not in dispute that the General Body of the Respondent No.3 Society has unanimously resolved to take forward redevelopment of the building. That resolution was passed as back as on 3rd February 2008. Consequent to the said Resolution, the Respondent No.3 Society entered into Development Agreement with the Petitioners on 18th April 2008. Moreover, overwhelming majority of members of the Respondent No.3 Society have acted upon the said arrangement agreed between Petitioners and Respondent No.3 and are looking forward to the re-development of the building. It is only Respondent Nos. 4 and 5 are opposing re-development of the building. Significantly, they did not participate in the General Body Meeting to oppose the proposal of the redevelopment. Nor have they chosen to question the wisdom of the General Body reflected in the Resolution dated 3rd February 2008 before appropriate forum. The Agreements entered between the Respondent No.3 and the Petitioners herein have not been challenged by the Respondents 4 and 5 before Court of competent jurisdiction. Suffice it to observe that the decision of the General body will bind the Respondents 4 and 5 and they are obliged to vacate the existing premises and hand over the same to the Petitioners to enable the Petitioners to redevelop the building as per the Agreement reached between the parties. Assuming that this Court were to take the view that demolition of the building was not essential, even then, in view of the decision of the General Body of the Society that the building should be redeveloped, the Respondents 4 and 5 would be bound by the said decision. In the case of Sanjali Sanjay Kadu vs. State of Maharashtra reported in AIR 2008 (6) Bom. R. 841 = 2008 (5) Bom. C.R. 306, the Division Bench has taken the view that the minority occupants cannot oppose redevelopment when the same is in the interest of all the occupants and the larger public interest requires that such redevelopment should take place. In that case, the building was not in a dilapidated condition. Even then since 90% of the tenants agreed for redevelopment, the objection of the minority occupants for such redevelopment was negatived by the Court. In that case, the building was not in a dilapidated condition. Even then since 90% of the tenants agreed for redevelopment, the objection of the minority occupants for such redevelopment was negatived by the Court. The Respondents 4 and 5, however, would rely on the decision of another Division Bench of our High Court in the case of Gajanan Ramraoji Ambagovind & Ors. vs. Corporation of the City of Nagpur & Ors. Reported in 2006(6) Bom.C.R. 413 which has taken the view that the Commissioner can act if danger to building appears imminent. However, only because the building appears to be in dilapidated condition, cannot be sufficient to order its demolition. The Court went on to observe that necessary material in support has to be furnished by Officers of Engineering Department to form an opinion in that behalf. There can be no two opinions with regard to the above exposition in this decision. In the present case, however, we have no hesitation in taking the view that there was ample material before the competent officer of the Corporation to arrive at subjective satisfaction about the condition of the building for directing demolition. That position can be discerned from the material on record. As aforesaid, it is not open to this Court to overturn the subjective satisfaction so reached by the Competent Officers who are experts in their field. This Court cannot substitute its own opinion on the basis of the stand taken by the Respondents 4 and 5 that repairs of the building would subserve the present situation. 8. Be that as it may, in the present Petition, the relief is sought by the Petitioners who are incidentally the Developers/Builders. The fact that the Petitioners are Developers/Builders, will not preclude them from pursuing the limited remedy before this Court for a mandamus against the Corporation to take the notice regarding demolition of the existing building issued under Section 354 of the Act to its logical end in accordance with law. The Respondent No.3 Society is supporting the cause of the Petitioners though has been named as Respondents in the Petition. The Respondents 4 and 5 cannot be heard on the justness of the proposed action of the Corporation on account of dangerous condition of the building; in absence of challenge thereto by way of appropriate proceedings.” 21. The Respondent No.3 Society is supporting the cause of the Petitioners though has been named as Respondents in the Petition. The Respondents 4 and 5 cannot be heard on the justness of the proposed action of the Corporation on account of dangerous condition of the building; in absence of challenge thereto by way of appropriate proceedings.” 21. Thus, the Division Bench held that the developer was entitled to file a writ petition. It was not a PIL. In other words, the Division Bench did not hold that merely because the petitioner was the developer in a similar situation, it had no cause of action in respect of the reliefs sought. 22. Most of the contentions raised by Mr. Rathod are answered against him by the judgment of the Division Bench of this Court in Girish Mulchand Mehta v. Mahesh S. Mehta & anr. 2010 (1) Bom. C.R., 31. It is interesting to note that the judgment was in an application under section 9 of the Arbitration & Conciliation Act, 1996. The appellant was one of the dissenting members. The petition had been filed by respondent No.1 under section 9 for similar reliefs against the dissenting members. In that case, a development agreement for development/redevelopment was entered into between respondent No.1/petitioner, who was the developer, and the second respondent society. 10 out of 12 members had confirmed the agreement. Only 10 out of 12 members had signed the usual undertaking-cum-affidavit confirming the development agreement and the obligation to perform the same. After obtaining the IOD, the first respondent called upon the society to hand over possession of the building. The society expressed its inability to do so on account of two out of the twelve members refusing to vacate their flats despite the fact that the society had expelled them from the primary membership of the society. The Division Bench held as under:- “14. Reliance was placed on another decision of the Delhi High Court in the case of Impex Trading GMBH vs. Anunay Fab. Ltd. & ors. reported in 2008 (1) Arb. LR 50 Delhi. In this case relief was sought against the bankers of the Respondent No.1 and Petitioner respectively. The Court found as of fact that the Bankers (Respondents 2 to 4) were regulated in their working by various articles of the UCP500. Ltd. & ors. reported in 2008 (1) Arb. LR 50 Delhi. In this case relief was sought against the bankers of the Respondent No.1 and Petitioner respectively. The Court found as of fact that the Bankers (Respondents 2 to 4) were regulated in their working by various articles of the UCP500. The liability of the Bank under the document was independent of any dispute as to breach of contract between the seller and the buyer. On this finding, the Court went on to hold that Petition under Section 9 of the Act against the Bankers who are not even party to the Consignment Agreement and the Arbitration Clause is not maintainable and deserves dismissal qua them. Once again that was not a case of person claiming under the party to the Arbitration Agreement, unlike in the present case where the Appellants were members of the Respondent No.2 Society and would be therefore bound by the Award against the Society. The fact that the Appellants have proprietary rights in the flats occupied by them does not mean that they were claiming such right dehors the rights of the Society in the said flats. For, the Society is the owner of the land and structure standing thereon. The flats occupied by the Appellants are part thereof and in fact, allotted to the Appellants in the capacity of members of the Society. In that sense, the Appellants are persons claiming rights in the flats situated in the property which is the subject matter of the Arbitration Agreement, under the Respondent No.2 Society who is party to the said Arbitration Agreement. Accordingly, even this decision will be of no avail to the Appellants. 16. In the present case, it is not in dispute that the General Body of the Society which is supreme, has taken a conscious decision to redevelop the suit building. The General Body of the Society has also resolved to appoint the Respondent No.1 as the Developer. Those decisions have not been challenged at all. The Appellants who were members of the Society at the relevant time, are bound by the said decisions. The Appellants in the dispute filed before the Cooperative Court have only challenged the Resolution dated 27/4/2008, which challenge would merely revolve around the terms and conditions of the Development Agreement. Those decisions have not been challenged at all. The Appellants who were members of the Society at the relevant time, are bound by the said decisions. The Appellants in the dispute filed before the Cooperative Court have only challenged the Resolution dated 27/4/2008, which challenge would merely revolve around the terms and conditions of the Development Agreement. As a matter of fact, the General Body of the Society has approved the terms and conditions of the Development Agreement by overwhelming majority. Merely because the terms and conditions of the Development Agreement are not acceptable to the Appellants, who are in minuscule minority (only two out of twelve members), cannot be the basis not to abide by the decision of the overwhelming majority of the General Body of the Society. By now it is well established position that once a person becomes a member of the Cooperative Society, he looses his individuality with the Society and he has no independent rights except those given to him by the statute and Bye-laws. The member has to speak through the Society or rather the Society alone can act and speaks for him qua the rights and duties of the Society as a body (see Daman Singh & ors. vs. State of Punjab reported in AIR 1985 SC 973 ). This view has been followed in the subsequent decision of the Apex Court in the case of State of U.P. vs. Chheoki Employees Cooperative Society Ltd. reported in AIR 1997 SC 1413 . In this decision the Apex Court further observed that the member of Society has no independent right qua the Society and it is the Society that is entitled to represent as the corporate aggregate. The Court also observed that the stream cannot rise higher than the source. Suffice it to observe that so long as the Resolutions passed by the General Body of the Respondent No.2 Society are in force and not overturned by a forum of competent jurisdiction, the said decisions would bind the Appellants. They cannot take a stand alone position but are bound by the majority decision of the General Body. Notably, the Appellants have not challenged the Resolutions passed by the General Body of the Society to redevelop the property and more so, to appoint the Respondent No.1 as the Developer to give him all the redevelopment rights. They cannot take a stand alone position but are bound by the majority decision of the General Body. Notably, the Appellants have not challenged the Resolutions passed by the General Body of the Society to redevelop the property and more so, to appoint the Respondent No.1 as the Developer to give him all the redevelopment rights. The propriety rights of the Appellants herein in the portion (in respective flats) of the property of the Society cannot defeat the rights accrued to the Developer and/or absolve the Society of its obligations in relation to the subject matter of the Arbitration Agreement. The fact that the relief prayed by the Respondent No.1 in Section-9 Petition and as granted by the Learned Single Judge would affect the propriety rights of the Appellants does not take the matter any further. For, the propriety rights of the Appellants in the flats in their possession would be subservient to the authority of the General Body of the Society. Moreso, such rights cannot be invoked against the Developer (Respondent No.1) and in any case, cannot extricate the Society of its obligations under the Development Agreement. Since the relief prayed by the Respondent No.1 would affect the Appellants, they were impleaded as party to the proceedings under Section 9 of the Act, which was also necessitated by virtue of Rule 803E of the Bombay High Court (Original Side) Rules. The said Rule reads thus:- "R. 803E. Notice of Filling Application to persons likely to be affected.-Upon any application by petition under the Act, the Judge in chambers shall, if he accepts the petition, direct notice thereof to be given to all persons mentioned in the petition and to such other persons as may seem to him to be likely to be affected by the proceedings, requiring all or any of such persons to show cause, within the time specified in the notice, why the relief sought in the petition should not be granted." 18. We have no hesitation in taking the view that since the Appellants were members of the Society and were allotted flats in question in that capacity at the relevant time are bound by the decision of the General Body of the Society, as long as the decision of the General Body is in force. We have no hesitation in taking the view that since the Appellants were members of the Society and were allotted flats in question in that capacity at the relevant time are bound by the decision of the General Body of the Society, as long as the decision of the General Body is in force. As observed earlier, the Appellants have not challenged the decisions of the General Body of the Society which is supreme, in so far as redevelopment of the property in question or of appointment of the Respondent No.1 conferring on him the development rights. The Appellants have merely challenged the Resolution which at best would raise issues regarding the stipulations in the Development Agreement. The General Body of the Society has taken a conscious decision which in this case was after due deliberation of almost over 5 years from August 2002 till the Respondent No.1 came to be finally appointed as Developer in terms of Resolution dated 2nd March, 2008. Moreover, the General Body of the Society by overwhelming majority not only approved the appointment of Respondent No.1 as developer but also by subsequent Resolution dated 27th April, 2008 approved the draft Development Agreement. Those terms and conditions have been finally incorporated in the registered Development Agreement executed by the Society in favour of Respondent No.1. That decision and act of the Society would bind the Appellants unless the said Resolutions were to be quashed and set aside by a forum of competent jurisdiction.” 23. It is necessary to note that this was not a case where all the members had initially executed the affidavit confirming the development agreement. Mr. Rathod's contention that the judgments would apply only in cases where all the members had unconditionally agreed to the agreement right from the beginning is, therefore, not well founded. Mr. Rathod's attempt to distinguish on this basis an unreported judgment of a learned single Judge of this Court in Vardhaman Developers Ltd. vs. Thailambal Co-op. Hsg. Socy. Ltd. & Ors. in Notice of Motion No.3274 of 2010 in Suit No.2725 of 2010 is, therefore, not well founded. The facts of this case are similar to the facts in that case. 24. In the circumstances, the contention that the plaintiff has no cause of action to file the suit is not well founded. Hsg. Socy. Ltd. & Ors. in Notice of Motion No.3274 of 2010 in Suit No.2725 of 2010 is, therefore, not well founded. The facts of this case are similar to the facts in that case. 24. In the circumstances, the contention that the plaintiff has no cause of action to file the suit is not well founded. If the petition under section 9 was maintainable, all the more reason a suit would be maintainable. 25. The question of balance of convenience is obviously in favour of the plaintiff, the first defendant society and the 51 members who are waiting for their new flats. If the reliefs sought are not granted, they would, for reasons too obvious to enumerate, suffer grave and irreparable harm and injury. On the other hand, defendant Nos.2, 3 and 4 will not suffer any harm or prejudice, but, in fact, would be benefitted by the development agreement. Their interests are safeguarded in every possible manner, especially by their being put in possession of flats which are of greater value than their own flats. 26. In the circumstances, the Notice of Motion is made absolute in terms of prayers (a) and (c). If the defendant Nos.2, 3 and 4 do not comply with prayer (a) by 30th April, 2012, order in terms of prayer (b).