Delhi District Court
Smt. Rajni Gupta vs The Delhi Union Of Journalists on 12 October, 2018
Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 286/2017
UNIQUE CASE ID NO.: 610482/16
IN THE MATTER OF :
Smt. Rajni Gupta
Wife of Shri Sanjay Gupta
37/71, Punjabi Bagh,
New Delhi26. ....Plaintiff
VERSUS
1. The Delhi Union of Journalists
Cooperative Group Housing Society Ltd.,
B5, Sector 14, Extension,
Rohini, Delhi.
Through its Secretary
2. Shri K.B. Vishwkarma,
President,
B83, Pandara Road,
New Delhi.
3. Dr. Mrs. Swati Arora,
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Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
Vice President,
18/9 W.E.A. Karol Bagh,
New Delhi.
4. Sh. Rameshwar Dass,
Son of Sh. Ram Chander,
R/o A738, Shastri Nagar,
Delhi.
5. Sh. Sumer Chand Jain (Since deceased)
Through his LRs
A) Smt. Santosh Jain,
W/o Late Sh. Sumer Chand Jain,
Ramji Nikunj, Flat No.A22,
B5, Sector 14 Extension,
Rohini, Delhi85.
B) Sh. Arun Kumar Jain
S/o Late Sh. Sumer Chand Jain,
Ramji Nikunj, Flat No.A22,
B5, Sector 14 Extension,
Rohini, Delhi85.
C) Ms. Usha Jain,
D/o Late Sh. Sumer Chand Jain,
Ramji Nikunj, Flat No.A24,
B5, Sector 14 Extension,
Rohini, Delhi85.
6. Dr. Mrs. Vimla Dhiman,
Treasurer,
Flat No. A19, Ramji Nikunj,
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Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
B5, Sector 14 Extension,
Rohini, Delhi85.
7. Dr. Ms. Rama Mehta,
H189, Vikas Puri,
New Delhi. ....Defendants
SUIT FOR RECOVERY OF RS. 10 LAKH
INCLUDING INTEREST
Date of institution of the Suit : 04/06/2004
Date on which Judgment was reserved : 06/09/2018
Date of Judgment : 12/10/2018
JUDGMENT
By way of present judgment, this court shall adjudicate suit for recovery of Rs.10,00,000/(Rs. Ten Lakhs Only) alongwith interest filed by the plaintiff against the defendants.
CASE OF THE PLAINTIFF AS PER PLAINT Succinctly the necessary facts for just adjudication of the present suit, as stated in the plaint, are as under: (1) The defendant no.1 is a cooperative society having been incorporated under the Societies Act w.e.f. 28.5.1971. The business of defendant no.1 was to construct houses for their Suit No. 286/2017 Page 3 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
members after acquiring business of the society they were accepting fixed deposits from members as well as public.
(2) On 18.4.96, the plaintiff gave cheque no. 279290 for Rs.50,000/ drawn on Union Bank of India, Punjabi Bagh, New Delhi to defendant no.1, to be kept in fixed deposit in the name of plaintiff. Another Cheque no. 279291 dated 4.9.96 for Rs.50,000/ drawn on Union Bank of India, Punjabi Bagh, New Delhi was also given later on. A receipt no. 101 dated 21.5.96 was given to the plaintiff after receiving the cheques. The receipt was signed by Smt. Vimla Dhiman, defendant no.6, who was treasurer of defendant no.1 at the relevant time. The amount kept under fixed deposit was to become due on demand.
(3) Later on, the plaintiff deposited a sum of Rs.4,00,000/ with the defendant as detailed below: Sr. No. Date Cheque No. Amount
1. 1.8.96 279296 60,000/
2. 22.8.96 279298 20,000/
3. 5.11.96 279299 25,000/
4. 19.11.96 279300 20,000/
5. 16.1.97 316623 30,000/
6. 31.1.97 316624 50,000/
7. 6.2.97 316625 45,000/
8. 8.2.97 316626 5,000/
9. 5.3.97 316627 50,000/
10. 15.3.97 316628 45,000/
11. 25.3.97 316629 40,000/
12. 1.4.97 316630 10,000/ Total 4,00,000/ Suit No. 286/2017 Page 4 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
All cheques were drawn on Union Bank of India, Punjabi Bagh, New Delhi. As such, the plaintiff deposited a total amount of Rs. Five lac with defendant no.1 which was to remain as deposit with defendant no.1 till demand. On deposit, defendant no.1 was to pay interest at the rate of 18% per annum which rate is much below the lending rate by scheduled banks on loan given for the business purposes to businessmen.
(4) The plaintiff demanded the amount vide letter dated 22.3.2003 but the defendants gave a wrong reply alleging therein that defendant no.1 could not accept the fixed deposit from public as per rules of the society and no amount is there with respect to the plaintiff in books of defendant no.1 which plea is false to the knowledge of office bearers of defendant no.1 and also stands falsified from FDR dated 21.5.96.
(5) The defendants no. 2 to 7 have been arrayed in the present suit as they are either present office bearers or were office bearers at the time when the amount was deposited. These persons in collusion with each other appears to have manipulated the account of the society i.e. defendant no.1 to show that no amount has been deposited by the plaintiff and the amount given by the plaintiff has either been embezzled by them or is shown to have been paid by them to the society in their personal accounts. All these persons having manipulated the account so as to deprive the plaintiff or his Suit No. 286/2017 Page 5 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
rightful claim so they have been arrayed as a party in the present suit.
(6) The amount due is Rs. Five lakh on account of principal and interest at the rate of 18% per annum which is much more than Rs. Five lakh, but the plaintiff claims only Rs. Five lakh as interest in the present suit. So, in all the suit is being filed to recover Rs. 10 lakh. As the amount was given to the defendants as deposit, so limitation will start from the date of demand i.e. 22.3.03 when notice of demand was given and as such the suit is within time.
A legal notice dated 25.8.03 was also got served through counsel Sh. M.K. Bansal on all the defendants to which the defendants gave a wrong reply that there is no amount lying to the credit of the plaintiff in the account books of the defendants. Hence, the present suit.
CASE OF THE DEFENDANTS NO. 1, 3, 4, 5 AND 6 AS PER WRITTEN STATEMENT Summons were issued to defendants no. 1, 3, 4, 5 and 6 and they have filed their joint written statement in the present case. Succinctly, the case of the aforesaid defendants is as under:
(i) The suit of the plaintiff is based on absolutely false and fabricated story. The plaintiff has concealed the material facts from this Court.
(ii) The plaintiff has claimed to have deposited a sum of Rs. 5 Lakhs with the defendant no.1 as "fixed deposit" and Suit No. 286/2017 Page 6 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
claiming Rs.5 Lakhs as interest but nowhere in the entire plaint, it has been disclosed that what was the period of deposit and what was the rate of interest. The attention of this Court is drawn to the letter dated 22.3.2003 in which the plaintiff has referred to her letter dated 22.1.03 and required the defendant no.1 to reply "Whether the amount in question is lying in the society as a deposit or against the membership." Similar are the averments in the letter dated 22.1.2003, therefore intentionally and deliberately, the plaintiff has not filed the said letter before this Court. The plaintiff is liable to be prosecuted under Section 340 Cr.P.C.
(iii) The suit of the plaintiff is hopelessly barred by limitation.
The present suit has been filed to harass the defendants, otherwise, knowingly, there is no cause of action for filing the present suit.
(iv) The suit of the plaintiff is based upon self contradictory pleas. The deposits, if any, made by the plaintiff, as alleged, are against the law. Defendant no.1 is a cooperative society, works through a duly elected managing committee and is government by Delhi Cooperative Societies Act, 1972 and Rules framed thereunder, therefore, the present suit of the plaintiff for recovery is liable to be dismissed. Earlier, defendant no.2 was the President of the defendant no.1 and was managing the affairs of the defendant no.1 in utter disregard of the rules, regulations and byelaws of the society Suit No. 286/2017 Page 7 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
and the provisions of Delhi Cooperative Societies Act, 1972 and Rules 1973. Therefore, the special general body meeting of defendant no.1 was held on 07.07.2002, the defendant no.2 was removed from the post of President of defendant no.1 alongwith Mr. Suresh Sharma, who was the Secretary of the society at that time and after the elections, the present managing committee was elected and taken the charge of the affairs of the defendant no.1. Defendant no.2 challenged his removal before the Financial Commissioner, Delhi and his appeal against the orders of the Asstt. Registrar was rejected vide orders dated 16.12.2003.
(v) The appearance before this Court by defendant no.2 and filing vakalatnama as President of defendant no.1 leads to committing an act of impersonation and this court may initiate action for this act of impersonation. However, the defendant no.2 intentionally and deliberately, did not hand over the record of the society to the new managing committee. Therefore, an enquiry was held under Section 55 of the Delhi Cooperative Societies Act, 1972. In his report, Enquiry Officer Sh. J.S. Sharma AR (Arbitration) has found defendant no.2 guilty of not handing over the record of the society to the present elected managing committee and held him responsible. However, presently no amount is lying deposited with defendant no.1 in the name of the plaintiff. The Defendant no.1 has already initiated the action against Suit No. 286/2017 Page 8 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
the defendant no.2 alongwith other office bearers under Rule 36 of DCS Rules 1973 for committing the acts detrimental to the interest and proper working of the society and were pre judicial to the interest of the society and its members.
(vi) The present suit of the plaintiff is bad for nonjoinder and misjoinder of necessary parties. The defendants no. 3 to 6 are neither necessary nor proforma parties. The suit of the plaintiffs is liable to be dismissed as the same is barred under Section 90 of Delhi Coop. Societies Act, 1972. The suit of the plaintiff has not been verified properly as per law. As per amended CPC, very plaint just be supported by an affidavit but in the present case, no affidavit in support of the plaintiff has been filed by the plaintiff.
(vii) On merits, it is stated that defendant no.1 is not a business organization and does no business. Defendant no.1 is the group of people, who have come together for constructing dwelling units for themselves and got themselves registered as Cooperative Society with the Registrar of Cooperative Societies. The said flats are constructed out of members contribution and the defendant no.1 is not authorized to accept money from public in the form of fixed deposit. The falsity of the claim of the plaintiff is apparent on the face of record as the plaintiff neither speaks of the rate of interest nor about the terms of deposit. Further, there is no term of "Fixed Deposit due on Demands" under the banking laws Suit No. 286/2017 Page 9 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
and no such document has been placed on record. The plaintiff has impleaded the defendants no. 3, 4, 5 and 6 unnecessarily with a sole object to cause harassment to them so that they may succumb to her illegal demand and pay money. The Defendants no. 3 to 5 is the office bearers of defendant no.1 and they were not holding the office of defendant no.1 at the relevant time. Therefore, question of manipulating the records of the society i.e. defendant no.1 by them does not arise at all. It has been denied that limitation will start from the date of demand and it has been submitted that contents are illegal and the suit of the plaintiff is barred by limitation and therefore, merits dismissal. Defendant no.2 had been the custodial of the records and after his removal, the records have not been handedover to the present managing committee. It has been prayed that the suit of the plaintiff may be dismissed with heavy and exemplary cost.
CASE OF THE DEFENDANTS NO. 1, 2 AND 7 AS PER WRITTEN STATEMENT Summons were issued to the defendants no. 1, 2 and 7 and they have filed their joint written statement in the present case. Succinctly, the case of the aforesaid defendants is as under:
(i) As per Sec. 93 (I) read with Section 60 of Delhi Cooperative Societies Act, 1972, Civil Courts have no jurisdiction to entertain the present suit. The appropriate forum for redressal of the grievances of the plaintiff is Registrar, Co Suit No. 286/2017 Page 10 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
operative Societies, Delhi. Neither the General Body Meeting nor the Managing Committee of the defendant no.1 society has authorized Mrs. Vimla Dhiman, defendant no.6 to treat any money received as fixed deposit. Therefore, the action of defendant no. 6 to treat the cheque received on 21.05.1996 from a nonmember like plaintiff as fixed deposit without the knowledge and approval of the Managing Committee and the General Body of the defendant no.1 Society amounts to violation of Section 51 and 52 of the Delhi Cooperative Society Act, 1972.
(ii) As per provisions laiddown in byelaw no. 31, it was obligatory on the part of defendant no. 6, who had signed as Treasurer on receipt no. 101, to make disbursement in accordance with the direction of the Managing Committee of defendant no.1 Society, which was not followed by her and she has acted against the provisions of byelaws of the defendant no.1 society. Receipt no. 101 dated 21.05.1996 for Rs.1.00 Lakh is purely a transaction between two individuals i.e. plaintiff and defendant no. 6 due to the reason best known to them.
(iii) As per provisions provided in byelaw no. 31, it was also obligatory on the part of defendant no.1, who has signed as Treasurer on receipt no. 101 to sign the cash book on the date of receipt of the money on the same day i.e. 21.05.1996.
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By not signing such entry on 21.05.1996 in the cash book, defendant no. 6 has further violated byelaw no. 31.
(iv) The present suit is not maintainable against defendants no.
1, 2 and 7 because they cannot be held responsible for the individual act of defendant no. 6, which is against the provisions of byelaws of the society. In fact, the name of defendants no. 1, 2 and 7 should be deleted from the memo of parties as they have been kept in dark by both plaintiff and defendant no. 6 from the date of issue of the first cheque to the date of issue of the last cheque. The defendant no.1 society cannot be held responsible for refund of any money received by an individual member from an unauthorized person due to the following provisions of its registered bye laws:
(a) Bye law no. 30 provided that "The powers and duties of the Secretary shall be as follows: "30 (3) To prepare all receipts, vouchers, and documents by the rules or the byelaws of the "Committee;
Which shows that by preparing receipt No.101 Defendant no. 6 (Mrs. Vimla Dhiman) has also violated byelaw No. 30 (3).
30 (4) To sign on behalf of the society and conduct its correspondence.
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Which also shows that by signing receipt No. 101, Defendant no. 6, Mrs. Vimla Dhiman has further violated Byelaw No. 30 (4)."
(b) Bye law No. 45 states that "All documents creating a charge or obligation on the society shall be signed by the President or Secretary and Treasurer of the society......"
Which shows that receipt No. 101 does not create any charge or obligation on the Defendant society as it has not been prepared, sign and issued as per above mentioned byelaws of the Defendant (No.1) Society.
(c) Byelaw No. 45 further lays down that .......
"All important documents of the society shall be Sealed with the society's Seal."
(d) As the receipt No. 101 dated 21.05.1996 do not conform to the above provisions of the Registered byelaws of the Respondent (No. 1) society, it cannot be held responsible for any money illegally and unauthorizedly paid by plaintiff to a member of the defendant society who has prepared and signed a receipt without any legal authority.
(v) The defendant no. 6 is further guilty of misusing the receipt book of the respondent (no.1) society for individual and illegal transaction.
(vi) In the parawise reply, defendants no. 1, 2 and 7 have stated that actually defendant no.1 has been registered under Suit No. 286/2017 Page 13 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
Bombay Cooperative Societies Act (later on Delhi Co operative Societies Act, 1972). Nomination papers filed by defendants no. 3 to 6 had been rejected for being incomplete and due to other infirmities. As per Section 31(5)(a) of the Delhi Cooperative Societies Act, 1972, defendant no. 6 was disqualified for election as she had already held the office of treasurership continuously during two consecutive terms before 02/02/2002. Defendant no. 6 and plaintiff had kept defendants no. 1, 2 and 7 in dark about the transactions held between them from 01.08.1996 to 01.04.1997 and about the issue of receipt no. 101 dated 21.05.1996. The respondent (No. 6) Mrs. Vimla Dhiman is in a position to comment on the table given in para no.3 of the plaint, because she may have received and deposited the cheques issued by the plaintiff and only she knows in whose name she has credited amounts of such cheques in the cashbook and from whose written sanction and under which provisions of the Delhi Cooperative Societies Act, 1972, Delhi Co operative Societies Rules, 1973 and registered Byelaws of the respondent (no.1) society.
(vii) The receipt no.101, dated 21.05.1996 does not mention anything about the rate of interest. As the transaction took place between defendant no. 6 and the plaintiff on individual basis and in violation of the provisions of the byelaws no. 51 and 52 mentioned above, defendant no. 1 is not obliged to Suit No. 286/2017 Page 14 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
pay the principal amount as well as interest.
(viii) Defendants no. 2 and 7 do not know about the alleged wrong reply sent to the plaintiff by an unauthorized person because Managing Committee and General Body Meetings of the defendant no.1 (Society) had never authorized anybody to send reply to the letter dated 22.03.2003 of the plaintiff. However, defendant no.2 sent a letter dated 27.06.2002 to defendant no. 6 and asked for records to verify the allegation made earlier to letter dated 22.03.2003.
(ix) An application under Order 1 Rule 10 (2) CPC has been filed on 16.08.2004 for adding three more defendants as they are proper and necessary party. Only the defendants No. 3 to 6 and three more persons mentioned in the application dated 16.08.2004 can throw light on the disbursement of the money given by the plaintiff to the defendant no. 6 through cheques from 01.08.1996 to 01.04.1997. Defendant no. 6 is solely responsible for accepting for Rs.5,00,000/ from the plaintiff in violation of the DCS Act, DCS Rules and byelaws of the defendant no.1 society. Therefore, defendant no. 6 alone is liable to pay the amount deposited by the plaintiff and interest, as decided by the Court and not defendants no. 1, 2 and 7. As per Section 31 of the Registered byelaws of the respondent (No. 1) Society the treasurer shall take charge of all moneys received by the society.
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(x) The plaintiff is said to have given 12 cheques from 01.08.1996 to 01.04.1997, she has sent letter dated 22.03.2003 which seems to have been replied by an unauthorised person. She further sent legal notice dated 25.08.2003 which also seems to have been replied by an unauthorized person. The legally elected managing committee and validly called General Body meeting had not authorized anybody to send the reply to both the above mentioned communications. As per Rule 48 of Delhi Cooperative Societies Rules 1973,the treasurer shall keep or cause to be kept all the books of accounts and vouchers and shall prepare or caused to be prepared annual profit and loss account, receipt and disbursement account and the balance sheet.
REPLICATION AND ISSUES Plaintiff has filed the replication to the Written Statement of defendants no. 1, 3, 4, 5 & 6 and Written Statement of defendants no. 1, 2 & 7 controverting the allegations/ contentions in the written statements of the abovesaid defendants and contents of the plaint have been reiterated and reaffirmed.
From the pleadings of the parties, following issues were framed vide order dated 30/03/2005:
1) Whether the suit is barred by limitation? OPD1, 3, 4, 5 & 6
2) Whether the suit is barred under section 90 of the Delhi Cooperative Societies Act, 1972.
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3) Whether the plaint has not been properly verified as per law? OPD1, 3, 4, 5 & 6
4) Whether the suit is bad for nonjoinder and misjoinder of necessary parties? OPD1, 3, 4, 5 & 6
5) Whether the suit is barred under section 93(i) read with sec.60 of the Delhi Cooperative Societies Act, 1972? OPD1, 2 & 7
6) Whether the plaintiff is entitled to a decree for sum of Rs.10 Lakhs against the defendants? OPP
7) Whether the plaintiff is entitled for any interest if yes at what rate and for which period? OPP
8) Relief.
Initially, issues no. 1, 2 and 5 were treated as preliminary issues but vide order dated 17/01/2007 passed by the Ld. Predecessor of this Court, the Court has held that the said issues are mixed questions of facts and law and can only be decided after adducing of the evidence by the parties at the final stages. EVIDENCE OF THE PLAINTIFF AND DOCUMENTS RELIED UPON BY THE PLAINTIFF Plaintiff has led her evidence and examined herself as PW1, who has filed her evidence by way of affidavit wherein she reiterated and reaffirmed the contents of the plaint and relied upon the following documents : Suit No. 286/2017 Page 17 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
1. Photocopies of two cheques bearing no. 279290 and 279291 as MarkA and MarkB.
2. Original receipt no. 101, dated 21/05/19969 qua FDR issued by defendant no.1 as Ex.PW1/1.
3. Photocopies of 12 cheques bearing no. 279296, 279298, 279299, 279300, 316623, 316624, 316625, 316626, 316627, 316628, 316629 and 316630 as MarkC to MarkN.
4. Original certificate issued by Union Bank of India, Punjabi Bagh Branch, dated 22/01/2003 as Ex.PW1/2.
5. Letter dated 22/03/2003 issued by the plaintiff as Ex.PW1/3.
6. Reply to notice dated 28/03/2003 as Ex.PW1/4.
7. Rejoinder dated 30/04/2003 as Ex.PW1/5.
8. Legal notice dated 25/08/2003 as Ex.PW1/6.
9. Original courier receipts as Ex.PW1/7 (Colly.).
10. Reply dated 01/09/2003 filed by defendant to notice as Ex.PW1/8.
11. Statement of account and income tax return duly certified by CA as Ex.PW1/9 (Colly.).
12. Copy of complaint lodged with EOW, Delhi Police dated 22/03/2006 as MarkO.
13. Photocopies of three receipts as well as ledger account of Savitri Baluni and Lakshmi Kant as MarkP to MarkR and
14. Photocopies of Bye laws of the Society as MarkS. Suit No. 286/2017 Page 18 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
Plaintiff has also examined Sh. Sanjay Gupta as PW2, who has filed his evidence by way of affidavit and relied upon the same documents as relied upon by the plaintiff.
Plaintiff has also examined the summoned witness Sh. Bhupender Singh, Special Assistant, Union Bank of India, Punjabi Bagh, Central Market, New Delhi as PW3, who proved on record account opening form of the plaintiff and a letter issued by AGM dated 28/03/2016 as Ex.PW3/A (Colly.).
Plaintiff has also examined the summoned witness Sh. Ganga Prasad, Head Peon, Oriental Bank of Commerce, East Patel Nagar Branch, New Delhi as PW4, who proved on record copy of ledger/ statement of account of defendant no.1 as Ex.PW4/A (Colly. running into 13 pages).
EVIDENCE OF THE DEFENDANTS AND DOCUMENTS RELIED UPON BY THE DEFENDANTS On the other hand, the defendant no.1 examined Sh. Ramesh Saini, President of defendant no.1, who has filed his evidence by way of affidavit wherein he reiterated and reaffirmed the contents of the written statement filed by the defendant no.1. (The witness was crossexamined by Ld. Counsel for the plaintiff on several dates i.e. 16/12/2017, 03/01/2018, 20/01/2018, 07/02/2018 and 24/03/2018. Thereafter, the matter was listed on 28/04/2018. On 28/04/2018, adjournment was sought on behalf of defendants No. 1, 3, 4, 6 and LRs of defendant no.5 on the ground that D1W1 is admitted in the hospital. Thereafter, matter was listed on 24/05/2018. On 24/05/2018, adjournment was Suit No. 286/2017 Page 19 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
sought again on behalf of defendants no. 1, 3, 4, 6 and LRs of defendant no.5 on the ground that D1W1 is operated upon and still not well. Thereafter, matter was listed on 07/07/2018. No one appeared on 07/07/2018 on behalf of defendants no. 1, 3, 4, LRs of defendant no.5, defendant no. 6 and consequently, DE was closed on that date).
It is also relevant to mention here that the defendants no. 2 and 7 have also not led any evidence.
ISSUE WISE FINDINGS:
ISSUES NO.2 AND 52) Whether the suit is barred under section 90 of the Delhi Cooperative Societies Act, 1972.
5) Whether the suit is barred under section 93(i) read with sec.60 of the Delhi Cooperative Societies Act, 1972?
OPD1, 2 & 7 Issues No.2 and 5 are interrelated and inter connected to each other and accordingly they are decided together.
In order to decided the present issues it is apt to reproduce Sections 90, 93 and 60 of the Delhi Cooperative Societies Act, 1972: "Section 90 Notice necessary in suits No suit shall be instituted against a co operative society or any of its officers in respect of any act touching the business of the society until the expiration of three months Suit No. 286/2017 Page 20 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the, name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left."
"Section 93 Bar of Jurisdiction of court (1) Save as provided in this Act, no civil or revenue court shall have any jurisdiction in respect of
(a) the registration of a cooperative society or its bylaws or of an amendment of a bylaw;
(b) the removal of a committee;
(c) any dispute required under section 60 to be referred to the Registrar; and
(d) any matter concerning the winding up and the dissolution of a co operative society. (2) While a cooperative society is being wound up, no suit or other legal proceedings relating to the business of such society shall be proceeded with or instituted against, the liquidator as such or against the society or any member thereof except by leave of the Registrar and subject to such terms as he may (3) Save as provided in this Act, no order, decision or award made under this shall be questioned in any court on any ground whatsoever"
"60. Disputes which may be referred to arbitration.
1. Notwithstanding anything contained in any law for the time being in force, if any dispute touching the Suit No. 286/2017 Page 21 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
constitution, management or the business of a co operative society other than a dispute regarding disciplinary action taken by the society or its committee against a paid employee of the society arises a. Among members, past members and persons claiming through members, past members and deceased members or b. Between a member, past member or person claiming through a member, past member or deceased member and the society, its committee or any officer or any officer, agent or employee of the society or liquidator, past or present, or c. Between the society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent, or deceased employee of the society, or d. Between the society and any other cooperative society, between a society and liquidator of another society or between the liquidator of one society and the liquidator of another society.
Such disputes shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute.
1. For the purposes of subsection (1), the following shall be deemed to be disputes touching the constitution: management or the business of co operative society, namely Suit No. 286/2017 Page 22 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
2. A claim by the society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not.
3. A claim by surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand is admitted or not.
4. Any dispute arising in connection with the election of any officer of a society other than a society mentioned in subsection (1) of section 31.
5. If any question arises whether a dispute referred to the Registrar under this section is or is not a dispute touching the constitution, management or the business of a cooperative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court.
6. Notwithstanding anything contained in the Limitation Act, 1963, but subject to the specific provisions made in this Act, the period of limitation in the case of a dispute referred to the Registrar under subsection (1) shall a. When the dispute relates to the recover of any sum including interest thereon due to a co operative society by a member thereof, be computed from the date on which such member dies or ceases to be member or the society.
b. Save as otherwise provided in sub clause (iii), when the dispute relates to any act or omission on the part of any of the parties referred to in Suit No. 286/2017 Page 23 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
clause (b) or clause (c) of subsection (1), be six years from the date on which the act or omission with reference to which the dispute arose, took place.
c. When the disputes relates to a cooperative society which has been ordered to be wound up under section 63 or in respect of which an administrator has been appointed under section 32, be six years from the date of the order issued under section 63 or section 32, as the case may be.
d. When the dispute is in respect of an election of an officer of a cooperative society other than a society referred to in subsection (1) of section 31, be one month from the date of the declaration of the result of the election.
e. The period of limitation in the case of any other dispute except those mentioned in the forgoing clause which are required to be referred to the Registrar under the last preceding section shall be regulated by the provisions of Limitation Act, 1963, as if the dispute was a suit and the Registrar a civil court.
f. Notwithstanding any thing contained in clause
(a) and (b), the Registrar may admit a dispute after the expiry of the period of limitation, if the applicant satisfies the Registrar that he had sufficient cause for not referring the dispute within such period and the dispute so admitted shall be a dispute which shall not be barred on the ground that the period of limitation has expired.Suit No. 286/2017 Page 24 of 45
Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
The Ld. Counsel for the Plaintiff has argued that the suit of the Plaintiff is not barred under the provisions as has been cited by the Defendants in their respective written statements as the provisions of Section 93 (1) read with Section 60 of The Delhi Co Operative Societies Act, 1972 do not prohibit the Plaintiff from filing the suit against the Defendants and the suit of the Plaintiff does not fall into any of clause of Section 93 of The Delhi CoOperative Societies Act, 1972. The provision of Section 90 of The Delhi Co Operative Societies Act, 1972 is not applicable or puts any embargo on the Plaintiff. The Plaintiff had already issued the legal notice dated 25/08/2003 prior to institution of the present suit against the Defendants and the present suit has been filed on 04/06/2004 and as such, the provision, as cited, does not apply in the present case and likewise, Section 60 of the said Act is also not applicable in the present suit as the present dispute is not covered under any of clauses of Section 60 of the said Act.
The contesting defendants have filed written submissions and submitted that notice was admittedly not sent to the existing President of the defendant no.1 and therefore, there was noncompliance of the Section 90 of the Delhi Cooperative Societies Act, 1972.
The perusal of the Exhibit PW1/3, it reveals that the Notice was given to The President/Secretary/Treasurer of defendant No.1 Society at the address of the Society and the same was not given to any individual but the same was given to defendant No.1.
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In the said Notice, the Plaintiff submitted that the Society even fails to reply whether the amount was kept as deposit or against the membership. The said Notice was also duly replied by the Secretary of defendant No.1 vide Exhibit PW1/4 and he has taken the stand that the record of the Society was available with unauthorized possession of defendant No.2 and there is not even a single paisa outstanding with defendant no.1 and there is no provision of keeping members on waiting list for enrollment or to accept loan or fixed deposits from nonmembers. The Plaintiff has also relied upon the following communications:
1. ExPW1/5 Rejoinder dated 30/04/2003 to said reply sent by plaintiff.
2. ExPW1/6 Legal notice dated 25/08/2003 sent by plaintiff through counsel.
3. EXPW1/8Reply to legal notice sent by defendants.
The basic purpose of giving notice to defendant No.1 or to the Society was to give intimation and information that the Plaintiff would knock the doors of the court of law, if the defendant No.1/cooperative Society would not address to the grievance of the litigant/Plaintiff in this case. The Plaintiff has taken considerable measures before approaching the Court and sufficient intimation and information was given to defendant No.1. Considered from any view point, the plaintiff has sufficiently made compliance of Section 90 of the said Act.
Suit No. 286/2017 Page 26 of 45Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
Admittedly, the defendant No.1 through Secretary contended that the Plaintiff is not the member of defendant no.1 and the Plaintiff has also contended that Plaintiff is not the member of defendant No.1 Society. The onus was upon the defendants to prove that suit is barred under Section 90 and 93 of the Delhi Co operative Societies Act, 1972 but defendants have failed to discharge the said onus. The contention/submission of the Plaintiff is correct that none of the clauses of Section 93 or Section 60 debars/prohibits the Plaintiff from filing the present suit.
Considering the facts and circumstances of the present case the suit is neither hit by Section 90 or 93 of the said Act and the present suit is very much maintainable in the eyes of law.
Accordingly, from the discussions made hereinabove, the issues no.2 and 5 are decided against the defendants and in favour of the Plaintiff.
ISSUE NO.1
1) Whether the suit is barred by limitation? OPD1, 3, 4, 5 & 6 ARGUMENTS OF PLAINTIFF (1) The Ld. Counsel has argued and filed written submission and submitted that the Hon'ble Court, vide its order dated 17/01/2007, while deferring the decision on the preliminary issues has held that in the bye laws there is the provision to borrow loans for running the business of the society and to Suit No. 286/2017 Page 27 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
arrange its repayment. It is further held that Smt. Vimla Dhiman was treasurer of Defendant No. 1 when the receipt of Rs. 1,00,000/ was issued by her on behalf of the Defendant No. 1. It was further held that the point of limitation which in given circumstances of the case has become a mixed question of law and facts and therefore cannot be decided without inviting evidence from the parties and as such the preliminary issues in that regard cannot be disposed off as a preliminary issues.
(2) The suit of the Plaintiff is well within the limitation and has to be governed by Article 22 of the Limitation Act as the Plaintiff has raised the demand for the first time on 22/03/2003 through EXPW1/3 and again on 25/08/2003 through legal notice EXPW1/6 and the cause of action to file the suit arose on 22/03/2003. As per provision of Article 22 of The Limitation Act, the limitation for filing the suit for money deposited under an agreement, that shall be payable on demand, is 3 (three) years and will start from the day when the demand is made and as such the suit of the Plaintiff is well within limitation as the Plaintiff has made the demand on 22/03/2003 and the present suit was filed on 04/06/2004. Moreover, the issue of limitation was held to be a mixed question of law and facts and the Defendants were directed to lead the evidence to prove that the suit of the Plaintiff is barred by the limitation but the Defendants had failed to Suit No. 286/2017 Page 28 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
discharge the onus on the said issue rather the Plaintiff has proved that the present suit is well within the limitation.
(3) Mr. Ramesh Saini, Advocate who is representing Defendants no. 1, 3, 4, 6 and LRs of Defendant no. 5 have produced himself as a witness on behalf of the Defendant No. 1 society, being its President and deposed as D1W1. However, no evidence has been led by other defendants. The onus to prove the issue No. 1 was put upon the Defendants but the Defendants did not lead any evidence to discharge the said onus nor the Defendants rebutted the presumptions and evidence as led by the Plaintiff and the entire evidence of the Plaintiff is unimpeachable. On 01/07/2016 the Defendant was directed to lead their evidence on 30/08/2016. On 20/01/2017 the Defendant No. 1 filed the evidence of DW1 by way of Affidavit. That after seeking various dates by the Defendants No. 1, 3, 4, 5 & 6, DW1 was cross examined on 16/12/2017, 03/01/2018, 20/01/2018, 07/02/2018 and on 24/03/2018 and thereafter DW1 did not appear for his further cross examination and hence, this Hon'ble Court vide its order dated 07/07/2018 has closed the Defendant evidence. The Defendant No. 7 has closed her evidence on 01/07/2016.
(4) That apart from the submission made hereinabove, the Plaintiff is relying upon the following judicial pronouncents Suit No. 286/2017 Page 29 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
which have been delivered on the aspects the Limitation by Hon'ble High Court of Delhi:
1. Shri Satish Kumar V/s Smt. Reena Bhoumik, RFA No. 684/2006, Decided on 18/04/2012 (Para No. 5 and 6)
2. Ravi Sahni V/s Pomesh Sahni CM(M) 683/2016, Decided on 20/07/2016 (Para No. 9) ARGUMENTS OF DEFENDANTS NO.1 AND 3 TO 6 The plaintiff as well as her husband both are highly educated persons and both have stated in their cross examination that the amount was paid to the society i.e. defendant no.1 not to the individual defendants in the year 1997 and the demand was raised in the year 2003 i.e. after 5 years to Sh. R.B. Vishwkarma defendant no.2 at his residential address. Hence, the plaintiff has taken the starting point of Limitation from the date of the notice i.e. from 2003 not from the date of last payment i.e. 1997 and never produced any kind of evidence before the Hon'ble Court in trial that the suit of the plaintiff is not time barred hence, the suit of the plaintiff is time barred and deserved to be dismissed with heavy cost.
FINDINGS OF THE COURT The case of the Plaintiff in the Plaint is that the amount was given to defendant No.1 through Cheques for Fixed Deposit. For the purpose of proving her case the Plaintiff has examined herself and other witnesses. The documentary evidence specifically Exhibit PW1/3, it reflects that Plaintiff herself was not aware Suit No. 286/2017 Page 30 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
whether the defendant No.1 had kept her amount as deposit or against the membership. The Secretary has replied vide Exhibit PW 1/4 and had denied both the claims of Plaintiff including the receipt of the amount. The Plaintiff has relied upon Exhibit PW1/1 in order to substantiate the claim that the amount was paid for Fixed Deposit and the said Fixed Deposit was not for any fixed period thus the same can be considered as simple deposit. It is not disputed that Defendant No.6 was the treasurer of defendant No.1 at the time of issuance of PW1/1. The onus to prove the issue was upon the defendant No.1, 3 to 6 but they were not able to show that under which Article of the Schedule of the Limitation Act the suit of the Plaintiff falls and the same is time barred. Even if the Plaintiff was confused whether the amount was kept by defendant No.1 as Fixed Deposit or against membership but in both the cases it can be considered that the same was deposit with defendant No.1 and even if it is considered as Loan to defendant then also there is no fixed period of repayment of Loan. It is apposite to reproduce Article 22 of the Schedule of The Limitation Act: THE SCHEDULE (PERIODS OF LIMITATION) [See sections 2(j) and 3] FIRST DIVISION--SUITS Description of suit Period of limitation Time from which period begins to run Suit No. 286/2017 Page 31 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
22. For money Three years. When the deposited demand is under an made.
agreement that it shall be payable on demand, including money of a customer in the hands of his banker so payable.
If the suit of the Plaintiff is considered as deposit before defendant No.1 then the time would run to begin from demand is made in view of the aforesaid Article. The defendant No.1 has not been able to bring any document that prior to Legal Notice dated 22/03/2003Exhibit PW1/3, the Plaintiff has demanded the amount from defendant No.1. Even if the amount paid by the Plaintiff is considered as Loan and when there is no fixed period then also the Limitation period would start to begin from the date of demand and not from the date of Loan.
It is apposite to mention here the ratio of the judgment dated 10/04/2012 passed by Hon'ble High Court of Delhi, in the matter of Shri Satish Kumar versus Smt. Reena Bhoumik (RFA No.684/2006) and the judgment dated 02/03/2012 passed in the Hon'ble High Court of Delhi, in the matter of Sh. Virender Kumar Jain versus M/s. Alumate (India) Pvt. Ltd. (RFA No. 153/2004). In terms of the second judgment, the Hon'ble High Court in para no. 5 Suit No. 286/2017 Page 32 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
has held that once the loan which would be repayable on demand, the limitation period will be three years from the date of demand and not from the date of loan. Similarly, in the first judgment, the Hon'ble High Court has held that if the loan has been advanced for one year or two years or three years, the limitation period would start from the elapse of the said years and not from the date of loan.
Considered from any view point, the suit of the Plaintiff is well within period of Limitation. Accordingly, from the discussions made hereinabove, the issue no.1 is also decided against the defendants and in favour of the Plaintiff. ISSUE NO.3
3) Whether the plaint has not been properly verified as per law? OPD1, 3, 4, 5 & 6 The defendants no.1 and 3 to 6 have taken the stand that the suit of the plaintiff has not been verified properly as per law and further as per amended CPC, very plaint just be supported by an affidavit but in the present case, no affidavit in support of the plaint has been filed by the plaintiff.
The onus to prove this issue was upon defendants no.1 and 3 to 6 but they have failed to point out how the verification is not in accordance with law. The perusal of the record reveals that the Plaintiff has filed the detailed Affidavit alongwith the Plaint. Otherwise also it is settled law that it is mere irregularity and the same is not fatal to the case. The Suit No. 286/2017 Page 33 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
provision of Section 99 of CPC also caters such an argument. Accordingly, from the discussions made hereinabove, the issue no.3 is also decided against the defendants and in favour of the Plaintiff.
ISSUES NO.4, 5, 6 AND 74) Whether the suit is bad for nonjoinder and misjoinder of necessary parties? OPD1, 3, 4, 5 & 6
5) Whether the suit is barred under section 93(i) read with sec.60 of the Delhi Cooperative Societies Act, 1972? OPD1, 2 & 7
6) Whether the plaintiff is entitled to a decree for sum of Rs.10 Lakhs against the defendants? OPP
7) Whether the plaintiff is entitled for any interest if yes at what rate and for which period? OPP Issues no.4, 6 and 7 are interrelated and inter connected to each other and accordingly they are decided together.
ARGUMENTS OF DEFENDANTS NO.1 AND 3 TO 6(1) The plaintiff stated in para no.1 of the affidavit that business of the defendant no.1 was to construct the houses for their members after acquiring the business of the society. Further, they were accepting fixed deposit from the members as well as public but in her cross examination she stated that she had made the last payment in the year 1997 and she had raised the demand by way of legal for refund of the deposits in the year 2003 but she does not remember the exact date and Suit No. 286/2017 Page 34 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
month on which she raised demand she again stated that her husband was looking after the matter. Again stated that she had not paid any payment except two cheques and the same had been paid towards fixed deposit and the defendant assured her as and when the same would be demanded by her the same will be refunded on her demand with interest at the rate of 18% per annum to her. Again said that the defendant had only issued a receipt which is Ex.PW1/1 except this they never issued any receipt against the payment but the same was paid through cheques again stated that she has not filed any document except Ex.PW1/1 to show that the amount has been invested in FDR @ 18% per annum. It is also stated that she does not remember as to who had prepared the receipt Ex. PW1/1 and no FDR agreement was executed between her and the defendant. It was also stated that she demanded her money back from the defendant in 2003 i.e. after 5 years from the last deposit.
In cross examination by the counsel for the defendant no. 7, she stated that the amount was paid by Plaintiff in the name of the society and not in the name of individual office bearers of the society and again stated that Rs. 2,50,000/ were received by her at the time of granting the conditional bail to Smt. Vimla Dhiman.
(2) Sh. Sanjay Gupta PW 2 stated that he is a chartered Accountant and again stated that the payment was made in Suit No. 286/2017 Page 35 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
1997 and the demand was raised in the year 2003 and also stated that the notice was not sent to the existing president of the society. It was sent to R.B. Vishwkarma/ defendant no.2 at his residential address and also stated that they had not issued the notice to Smt. Vimla Dhiman at the address of the society and also stated that who told him about the Fixed Deposit scheme of the society but he had met Vimla Dhiman 23 more persons sitting in the office but he does not remember the names.
(3) Both the witnesses stated in their statement that no agreement for FDR executed between them and the defendant no.1 society. Hence the defendant no. 1 never done the business of constructing the houses after having any FDR from any of the member or the public person. Even the plaintiff statement is still contradictory some where she stated that the amount was given as FDR and some where she stated that the amount was paid to be a member of the society. (4) The suit of the plaintiff is deserved to be dismissed being bad for nonjoinder and misjoinder of the necessary parties as neither the defendant no.1 was made party through it existing president nor any of the defendant were made party being the office bearers of the defendant no.1. It is admitted by the plaintiff and her husband i.e. PW1 and PW 2 that they made the party as individual not being the office bearers of the defendant no.1.
Suit No. 286/2017 Page 36 of 45Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
(5) That there is no evidence on record that the amount was given to the defendant no.1 as FDR or for be a member of the society defendant no.1and the suit of the plaintiff is completely time barred hence the same is deserved to be dismissed.
ARGUMENTS OF PLAINTIFF That the Plaintiff in her evidence categorically deposed that the Defendant No. 1 Society had received the amount from the Plaintiff towards the FDR and also issued a receipt EXPW 1/1.
It has been further deposed that the Plaintiff was assured that the amount kept under fixed deposit was to become due on demand or will be refunded on her demand as and when raised for the same.
It has further been proved that the amount of Rs. 5,00,000/ (Rupees Five Lakh) which had been paid to the Defendant No. 1 Society through cheques, had duly been debited in the Account of the Plaintiff and the same was proved by placing the reliance of a certificate issued by Union Bank of India which is EXPW1/2 and the amount of the said cheques had been credited in the Account of Defendant No. 1 Society and the same is also corroborated with the record EXPW4/A as produced by PW4 and hence it is proved that the amount was received by the Defendant No. 6 being the treasurer of the Suit No. 286/2017 Page 37 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
Defendant No. 1 Society and the same had duly been deposited in the Account of the Defendant No. 1 Society.
The Plaintiff further deposed that the amounts were paid to Defendant No. 6 who received the said amounts on behalf of the Defendant No. 1 Society.
It has been also deposed by the Plaintiff that the Defendant No. 1 had to pay the interest @ 18% per annum on her deposits.
The Plaintiff has proved that she had raised the demand for refund of the amount as deposited by her vide her letter dated 22/03/2003 which is EXPW1/3 but no amount was refunded by the Defendants and she further proved that before institution of present suit she got a legal notice dated 25/08/2003 issued through her Counsel to be served upon the Defendants which is EXPW1/6.
The Plaintiff had further proved that the amount which was deposited with the Defendants had duly been accounted for in her income tax return which is EXPW1/9.
The Plaintiff has further deposed that she had lodged the complaint dated 22/06/2006 against the Defendants with the EOW cell Delhi Police, the copy of the same was marked as Mark O. Suit No. 286/2017 Page 38 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
It is further deposed by the Plaintiff that not only the Defendant accepted the fixed deposit from her but also from some other person namely Smt. Savitri Baluni and Sh. Laxmikant and produced the photocopy of the receipts issued to them which is a Mark PR. It is further deposed that the Defendant No. 1 society was authorized to accept loans in any form such as deposits etc. and was responsible for its repayment. The Managing Committee of the society had the power to decide the terms on period for and rate of interest at which deposits were to be received and to arrange for the payment of such deposits and to support the said deposition the plaintiff has relied upon the document MarkS, being a copy of the Bye Laws of the Society. The said documents were also filed by the Defendants.
It is further deposed by the Plaintiff that she had received a sum of Rs. 2,50,000/ through banker cheque bearing No. 567376 dated 14/05/2007 drawn upon State Bank Of Indore, Rohini Branch, Delhi from Defendant No. 6, as she has lodged a complaint MarkO and an FIR was registered against the Defendant No. 6 and others.
The Plaintiff was crossexamined at length by the Counsel for the Defendants but nothing substantial has been brought out in crossexamination of the Plaintiff rather the Suit No. 286/2017 Page 39 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
Plaintiff firmly reiterated her examination in chief. The Defendant even did not give any suggestion regarding their defence as raised in their written statement nor they have given any suggestion that the Defendant No. 1 Society did not receive any amount from the Plaintiff in its Account nor any suggestion has been given to PW1 and PW2 that the suit of the Plaintiff is barred by limitation or barred by the provisions of Delhi CoOperative Housing Societies Act, 1972. There is no denial on the part of the Defendants that the Plaintiff did not pay or deposit the amount with the Defendant No. 1 Society.
PW2, the husband of the Plaintiff, has also deposed on the same line as deposed by the Plaintiff and corroborated the plaintiff and he has also been cross examined at length on behalf of the Defendants but nothing substantial has been brought out in crossexamination of the PW2 rather the PW2 firmly stood on his examination in chief.
PW3 also proved that the amount has been debited from the account of the Plaintiff and PW4 also proved that the amount which has been debited from the account of the Plaintiff had duly been credited in the Account of Defendant No. 1 Society.
That in view of the above said testimonies of the said PWs and the documents as relied by them, the Plaintiff has discharged her onus to prove the issues no. 6 & 7 and hence the Suit No. 286/2017 Page 40 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
Plaintiff has proved that she is entitled to refund of the amount, as prayed for.
That the Hon'ble Court, vide its order dated 17/01/2007, while deferring the decision on the preliminary issues, has held that in the bye laws, there is the provision to borrow loans for running the business of the society and to arrange its repayment. It is further held that Smt. Vimla Dhiman was treasurer of Defendant No. 1 when the receipt of Rs. 1,00,000/ was issued by her on behalf of the Defendant No. 1.
FINDINGS OF THE COURT I am fully in agreement with the arguments of Plaintiff. The Plaintiff has proved on record with cogent evidence that amount of Rs.5,00,000/ was paid to defendant No.1 through cheques. No doubt there is contradiction whether the amount was given as deposit or against the membership but the Plaintiff has proved on record the said amount was paid to defendant No.1. The categorical case of the Plaintiff is that the Plaintiff is not member of defendant No.1 and similarly the defendant No.1 had categorically stated that Plaintiff is not the member of the defendant No.1. The amount has been credited to the account of defendant No.1 and the same has been proved on record by the Plaintiff through cogent evidence. The defendant No.1 cannot be allowed to retain the money of the Plaintiff. The manner and mode of use of the said amount by the then officials is not the concern of the Plaintiff and the same was also not in the domain and control of the Plaintiff. The Suit No. 286/2017 Page 41 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
defendant No.1 cannot enrich themselves with the riches of others i.e. there cannot be unjust enrichment. The defendants No.1 and 3 to 6 are not able to prove on record that the amount given by the Plaintiff was returned by defendant No.1 to the Plaintiff. However, during the cross examination of defendant No.7, it has been admitted that an amount of Rs.2,50,000/ was received by the Plaintiff from defendant No.6 in the bail proceedings of defendant No.6. No doubt the defendant No.1 cannot retain the amount of the Plaintiff but since the Plaintiff has already received an amount of Rs.2,50,000/, the adjustment of the said amount is required to be given. The Plaintiff also cannot be allowed to enrich herself by claiming the double amount. As per own admission of Plaintiff that an amount of Rs.2,50,000/ was received by her from defendant No.6 through banker's cheque dated 14.5.2007. Accordingly, the amount of Rs.2,50,000/ received by the Plaintiff would be first of all adjusted towards the interest amount and, if any amount remains from the said amount then towards Principal amount from the final decreetal amount.
QUESTION OF MISJOINDER AND NONJOINDER I am fully in agreement with the contention of defendants No.1 and 3 to 6 that the office bearers of defendant No.1 cannot be fastened with personal liability for any acts which are purported to be done for defendant No.1 by the then officials of defendant No.1. The Plaintiff has not been able to lead any cogent evidence to show how the office bearers are vicariously liable. The Suit No. 286/2017 Page 42 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
Plaintiff has not been able to bring out any cogent and documentary evidence which could reflect the liability of office bearers of defendant No.1 and the liability could be fastened upon the office bearers of defendant No.1. The defendant No.1 is an individual entity in the eyes of law. There is not even iota or scintilla of documentary evidence on record to show that defendants No.2 to 7 had personally bind themselves for the liability of defendant No.1. The Plaintiff has not been able to demonstrate the liability of defendant No.1 either from oral or documentary evidence. The contention of defendants No.1 and 3 to 6 is correct that the suit is bad for misjoinder of parties but in terms of provision of Order 1 Rule 9 CPC, the same is not fatal to the case of Plaintiff. The provision of Order 1 Rule 9 is reproduced herein for apt understanding: "9. Misjoinder and nonjoinder.--No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to nonjoinder of a necessary party."
The bare perusal of the aforesaid provision it is manifest that no suit shall be defeated only on account of misjoinder of party(s) and the suit can be defeated only on the ground of non joinder of necessary party. The defendant No.1 society is an independent entity in the eyes of law and in the array of parties Suit No. 286/2017 Page 43 of 45 Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
against defendant No.1, it is categorically written through Secretary. Thus the defendant was required to be served through Secretary, whoever it may be at the time of receipt of the summons issued by the Court.
However, the defendants have failed to point any non joinder of necessary party. The present case at maximum falls under the category of misjoinder but by no stretch of imagination it falls in the category of nonjoinder of necessary party and accordingly it cannot be dismissed on this ground in view of the discussions made hereinabove.
QUESTION OF INTEREST So far as the issue of interest is concerned, the Plaintiff has not been able to prove on record that there was contract of 18% of interest between the Plaintiff and defendant No.1. Furthermore, the record reveals that the payment was made by the Plaintiff of different amounts from 18.4.1996 to 1.04.1997. Section 34 CPC postulates and envisages the pendentelite interest at any rate not exceeding 6% and future interest at any rate not exceeding the rate at which nationalized banks advanced loan. Keeping in mind the mandate of the said proposition, interest of justice would be served if plaintiff is granted simple interest @ 6% per annum from 01.11.1996 (approximately middle period is picked up between 18.4.1996 to 01.04.1997) till the passing of the decree and future simple interest at the rate of 9% per annum till its realization.Suit No. 286/2017 Page 44 of 45
Rajni Gupta V. The Delhi Union of Journalists Cooperative Group Housing Society Ltd. & Ors.
Accordingly, from the discussions made hereinabove, the issues no.4, 6 and 7 is decided in the aforesaid terms. RELIEF In view of the findings, as adumbrated above, I hereby pass the following :: FINAL ORDER ::
(i) The suit of the plaintiff is decreed in favour of the plaintiff and against defendant No.1 for a sum of Rs.5,00,000/ (Rupees Five Lakhs only) along with simple interest @ 6% per annum from 01.11.1996 till the decision of this case and future simple interest at the rate of 9% per annum till its realization. The amount of Rs.2,50,000/ received by the Plaintiff from defendant No.6 would be first of all adjusted towards the interest amount and, if any amount remains from the said amount then towards Principal amount from the final decreetal amount.
(ii) The cost of the suit is also awarded in favour of the plaintiff and against the defendant No.1.
Decreesheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court (ARUN SUKHIJA)
on 12/10/2018 ADJ07 (Central)
Tis Hazari Courts, Delhi
Suit No. 286/2017 Page 45 of 45