Model Form of Special Leave Petition

Model Form of Special Leave Petition

In the Supreme Court of India

Civil Appellate Jurisdiction

Special Leave Petition (Civil) No. ………………….. of 1999

(From the Judgment and Final Order dated ……………. passed by the Hon’ble Calcutta High Court consisting of the Hon’ble Mr. Justice …………… and the Hon’ble Mr. Justice ……………. in FMA No. …….. of 1999).

In the matter of Sri ……………… son of ………… Petitioner

versus

Co-operative Housing Society Ltd. and Ors.     Respondents

Office Report on Limitation

The above-mentioned matter is in time/time barred.

Dated …………………..                                                                                        Section Officer

Synopsis

AB, owner of a rent-free land at ………… (hereinafter referred to as the vendor), entered into an agreement with the CD Housing Society Ltd. for sale thereof on which land the Society intended to construct apartment building. An Indenture was entered into between the said owner and the Society. The price was fixed and Earnest Money was paid by way of part payment of the total price.

Clause 5 of the said agreement provided that the Society will construct multistoried building on the said land and the vendor will have the right to purchase 8 flats in the said building in the name of himself or his nominees each flat containing a floor-area of not less than 1200 sq. ft. The purchase price will be at the same rate as might be payable by other purchasers of similar flat in the said building. The society shall not sell those 8 flats without first offering to the vendor by giving at least sixty days’ notice in writing. On failure of the vendor to signify his willingness to purchase within the said period of sixty days the Society will be entitled to dispose of the flat to any other person.

By a letter the Society informed the vendor that the vendor’s application for membership was accepted and a three bedroomed flat No. 2 has been allotted to him at Rs. …………………. and for a garage space another Rs. ………………. . In default of making payment on due dates, the allotment of the flat would be liable to be cancelled, and that the right of the vendor in the Society will be governed by West Bengal Co-operative Societies Act, Rules and its Bye-laws.

The Society issued two Share Certificates for Rs. 100 each in favour of the vendor and flat No. 2 in the said building allotted to him and demanded payment of the consideration money. The vendor had paid a lump sum amount against six flats out of eight flats and intimated that the balance amount would be paid within two months.

The vendor surrendered two flats out of the three allotted to him in the first instance and requested the Society to adjust the amount paid on account of those two flats against the flats booked by his two daughters. The shortfall would be paid within a specified date.

Due to certain litigations involving the Society the Hon’ble High Court at Calcutta appointed Special Officer in which the vendor was not a party.

The vendor being the allottee of flat No. 2 and the two Share Certificates of the Society died. During his lifetime the Society did not make any demand in regard to any liability of the vendor in respect of the said flat No. 2. The vendor’s son wrote to the Special Officer that he was taking steps under the West Bengal Co-operative Societies Act to get his father’s flat and two shares of the Society transferred to one of the heirs of the vendor.

The Special Officer replied that the claim for transfer of interest was not made within the stipulated period and as such the flat had been allotted to somebody else.

Vendor’s son filed a case under sections 95 and 96 of the West Bengal Co-operative Societies Act 1983 before the Registrar of Co-operative Societies praying for possession of flat No. 2, a declaration as null and void the allotment made by Special Officer and for other reliefs.

The son also filed a writ petition under Art. 226 of the Constitution of India praying for a writ of mandamus commanding the Special Officer to cancel the allotment of flat No. 2, delivery of possession of flat No. 2 to the petitioner and for other reliefs. The son stated in the writ petition that he was ready and willing to pay the balance amount, if any, in respect of the said flat.

Ultimately the matter came before the Division Bench which gave directions in respect of other flats and in respect of the flat No. 2 the Division Bench did decide the issue but observed that this was the subject-matter of a pending writ petition.

The said writ petition was disposed of by a Single Judge directing the transfer of flat No. 2 to the writ petitioner, the son of the vendor, on payment of arrears. Against this order of the Single Judge the Society preferred an appeal. This appeal was heard and disposed of by the Division Bench which allowed the appeal and held against the son, the writ-petitioner.

Being aggrieved by and dissatisfied with the Judgement and order passed by the Hon’ble Division Bench of the Hon’ble High Court at Calcutta on ………………. in First Miscellaneous Appeal No. …………. of ……… your petitioner begs to move the instant Special Leave Petition.

List of Dates

…………………………          Agreement between the vendor and CD Housing Society Ltd. for the sale of land at ……………, Calcutta. A copy of the agreement is annexed hereto marked ‘P-1’.

…………………………     The Deputy Registrar, Co-operative Societies (Housing) Calcutta Metropolitan Area granted permission to the CD Housing Society to admit eight persons as members. The society mentioned the names of the vendor and his five daughters in the list of members.

…………………………     The society applied to the Registrar, Co-operative Societies (Housing), Calcutta Metropolitan Area seeking permission to admit eight persons as members which permission was granted by letter a copy whereof is annexed hereto marked ‘P-2’.

…………………………     The vendor executed conveyance in favour of the society, and advance payment was made for three flats to be given by the society to the vendor. A copy of the Sale Deed is annexed hereto marked ‘P-3’.

…………………………     The Society allotted flat No. 2 and two shares to the vendor (owner).

…………………………     The Share Certificates and allotment of flat was communicated to the owner and the owner was informed that the specified sum was outstanding in respect of allotment of the said flat.

…………………………     The owner retained one flat in his own name and surrendered two flats which the Society accepted. A copy of the letter is annexed hereto marked ‘P-4’.

…………………………     Special Officer was appointed by the Hon’ble High Court at Calcutta in FMA No. ……….. of ……………………. to complete the construction and to consider allotment of available flats. A copy of the order is annexed hereto marked ‘P-5’.

…………………………     Vendor died leaving behind five married daughters and a married son.

…………………………     The Deputy Registrar of the Co-operative Societies was informed of death of the vendor and that the legal heirs were considering about the allotment of his interest. A copy of the letter is annexed hereto marked ‘P-6’.

…………………………     Son of the vendor informed the society that they could not decide in whose favour the flat will be transferred and wanted some more time. A copy of the letter is annexed hereto marked ‘P-7’.

…………………………     Society informed the son that as no information as to transfer of interest was given within the stipulated period the flat was re-allotted to an outsider. A copy of the said letter is annexed hereto marked ‘P-8’.

…………………………     The moneys lying with the society was not refunded. The legal heirs finally decided to transfer the interest of the vendor in flat No. 2 to his son.

…………………………     The son filed a dispute case under sections 95 and 96 of the West Bengal Co-ooperative Societies Act, 1983 against the Society and Special Officer before the Registrar, Co-operative Society, West Bengal.

…………………………     The son filed a writ petition against the society and Special Officer.

…………………………     The writ petition was allowed and the allotment of flat No. 2 to some other person was cancelled and it was directed that the flat be transferred in the name of the son and to hand over the possession on payment of the balance amount. A copy of the Judgement is annexed hereto marked ‘P-9’.

…………………………     The society preferred an appeal before the Division Bench of the Hon’ble High Court at Calcutta against the said Judgement and Order of the Single Judge.

…………………………     The said appeal from the Order of the Single Judge was heard by the Hon’ble Division Bench and by a Judgment and Order the Hon’ble Division Bench has been pleased to hold that the writ petition was not maintainable and directed the society to refund the moneys lying with it to the legal heirs of the vendor with 12% interest from the date of filing of the writ application till payment.

…………………………     Special Leave Petition is filed today.

In the High Court at Calcutta

Appellate/Revisional Civil Jurisdiction

Present:

The Hon’ble Mr. Justice ……………………..

And

The Hon’ble Mr. Justice ……………………….

FMA No. ……………… of 1999

Co-operative Housing Society Ltd.

versus

The son and others

For Appellant/Petitioner

For Respondent/Opposite Party

Heard on …………………………..

Judgment on ……………………..

………………… , J

……………………………………………………………………………..

Sd/- ………………. J

Sd/- ………………. J