Delhi District Court
M/S Burmah Shell Co-Operative Hosing ... vs Aradhana Apartments Owner Association on 24 July, 2024
DLND010006822020
IN THE COURT OF DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
RCA No. 7/2020
M/s Burmah Shell Co-operative
Housing Society Ltd.
Aradhana Colony, Sector 13,
R.K. Puram, New Delhi - 110066
Through its President
Mr. K. Subramanian
......... Appellant
Versus
1. Aradhana Apartments Owner Association
Through its President
Mr. P. Jindal,
Sector XIII, R.K. Puram,
New Delhi - 110066
2. Indus Towers Limited
Through its CEO,
Mr. Bimal Dayal,
9th Floor, Building No. 10,
Tower B, DLF Cyber City
Gurgaon, Haryana
........ Respondents
Appeal presented On : 20.01.2020
Arguments Concluded On : 10.07.2024
Judgment Pronounced On : 24.07.2024
RCA No. 7-20 Page no. 1 of 12
M/s Burmah Shell Co-Operative Housing Society Ltd. Vs. Aradhana Apartments Owner Association
JUDGMENT
1. By way of this judgment, this Court proposes to decide this appeal which has been filed against judgment and decree dated 09.12.2019 passed by Ld. ARC/ACJ/CCJ, New Delhi in CS SCJ no.528/17 titled M/s Burmah Shell Cooperative Housing Society Ltd. Vs. Aradhana Apartments Owner Association & Anr for dismissing the plaint.
FACTUAL MATRIX
2. Briefly stated the facts as narrated in the appeal are as under :
(a) That in 1951, the appellant society (registered as a Co-
operative Housing Society formed in 1950) purchased 7.5 acres of land in Village Mohammadpur, Munirka, Tehsil Mehrauli, New Delhi.
(b) That pursuant to resolution dated 02.12.1979 passed by the managing committee of the appellant society and on approval of offer by M/s C.P.Kukreja International on 25.05.1980, it was decided to develop the 7.5 acres of land in two parts. The first part involved development of 49 plots for its "founder members"
with necessary infrastructure facilities.
(c) That the second part involved construction of 35 apartments flat for allotment to "associate members" with necessary infrastructure facilities.
(d) That pursuant to necessary municipal compliances, the development was done and occupation certificate from NDMC was also obtained on 18.05.1987.
RCA No. 7-20 Page no. 2 of 12 M/s Burmah Shell Co-Operative Housing Society Ltd. Vs. Aradhana Apartments Owner Association
(e) That on completion of the development, the original owners purchased their respective apartments from the appellant society by executing sale deeds. However, the sale deed in respect of the apartments only conveyed right of the ownership of the apartments without any ownership right of the land underneath the building or terrace above M/s Apartment Building.
(f) That the present President of respondent no.1, Sh. P. Jindal has held important official positions of the appellant society since 1991 till 2015 (except for 2003). He was also the President of the society from 2012-2015.
(g) That during the presidency of Sh. P. Jindal, in 2014 in the General Body Meeting dated 16.11.2014 of the appellant society, two drafts of amended rectification deed for granting undivided, indivisible, impartible and proportionate ownership right on the land beneath the building was approved but except for 4 apartment owners, no other apartment owner got executed the rectification deed and thus do not have ownership right in the land underneath the building.
(h) That the appellant society is the owner of the land underneath M/s Apartments, Aradhana Enclave and has been levying service charges upon the flat owners as well as plot owners. Higher service charge is levied upon apartment owners as more money is spent in providing additional facilities like light, lifts, security guard, telephone etc.
(i) That on 27.11.2015 the appellant society received an email from respondent no.2 which contains a draft licence deed to be executed between respondent no.1 and 2.
(j) That on receiving the email dated 27.11.2015, it was RCA No. 7-20 Page no. 3 of 12
M/s Burmah Shell Co-Operative Housing Society Ltd. Vs. Aradhana Apartments Owner Association observed by the appellant society that on 01.03.2007, respondent no.1 had entered into a lease and licence agreement with Bharti Airtel (now respondent no.2) to install a telecom tower for a period of 10 years w.e.f. 01.02.2006. However, unlike the previous lease and licence agreement, it was represented by respondent no.1 that it was the owner of the land and common areas of the colony. It is stated that as per the previous arrangement the licence fees received by respondent no.1 had been used to reconcile the accounts of the appellant society on account of shortage of receipts from M/s. Apartments owners towards the expenditure incurred by the appellant society for maintenance of M/s. Apartments. Vide letter dated 26.12.2016, the permission was denied.
(k) That on 13.09.2015, new management committee of appellant society was elected which de-recognized respondent no.1 in terms of Rule 106(1) of the Delhi Co-operative Societies Rules 2007 and issued legal notice to respondent no.1 and 2 that they were not entitled to enter into the licence deed with respect to the common areas which specifically belong to the appellant society.
(l) That on 14.10.2016, respondent no.1 replied by claiming ownership under Delhi Apartment Ownership (of terrace and common Areas) Act. The same was refuted by way of rejoinder.
(m) That on 05.12.2016, respondent no.1 through its president wrote a letter stating that respondent no.1 would manage the administrative work of M/s. Apartment w.e.f. 01.01.2017. A meeting was held on 04.12.2016 with the apartment owners without intimating the appellant society and pursuant to these developments w.e.f. 01.01.2017, the owners of the M/s RCA No. 7-20 Page no. 4 of 12 M/s Burmah Shell Co-Operative Housing Society Ltd. Vs. Aradhana Apartments Owner Association Apartments have stopped paying the maintenance charges.
(n) It is additionally stated that Sh. P. Jindal who was the president of respondent no.1 at the relevant time had also misused the position as office bearer of appellant society by fraudulent execution of rectification deeds pursuant to which civil suits were filed and mutually settled on execution of fresh rectification deeds as per draft approved in Special General Body Meeting held on 16.11.2014.
(o) It is stated that except for 4 owners, none of the other apartment owners have executed the rectification deed and so ha no right of ownership of common areas.
3. The appellant is aggrieved that by the impugned order, the suit has been dismissed while adjudicating upon the interim application under Order XXXIX Rule 1 & 2 due to following broad reasons:
(a) That the Ld. Trial court failed to appreciate that the sale deeds executed in favour of the apartment owners only conveyed ownership of apartments and the appellant continues to be the owner of land underneath the building and of the common areas.
(b) That the Ld. Trial Court failed to appreciate that as per Section 88 of DCSA, the management of the co-operative society remained with it's 'committee'; that Rule 89(6) of The Rules authorises the committee of the society to remove unauthorized construction and encroachment in the 'common areas' defined under Rule 89(7) of The Rules.
(c) That the Ld. Trial Court ignored that as per Rule 106(10) of The Rules, 2007, Resident Welfare Association as well as Apartment Owner Association cannot interfere with the RCA No. 7-20 Page no. 5 of 12 M/s Burmah Shell Co-Operative Housing Society Ltd. Vs. Aradhana Apartments Owner Association Management of Co-operative Housing Complex and has also failed to acknowledge Section 140 of the DSCA which has an overriding effect on all other laws. It has been stated that the Ld. Trial Court has erred in appreciating Section 34 of DAO which only had an overriding effect upon 'any other law for the time being in force' and so, the subsequent statute will prevail over the previous enactment. Reliance has been placed upon Maharashtra Tubes Ltd. Vs. State Industrial and Investment Corpn. of Maharashtra Ltd.1, Sarwan Singh Vs. Kasturi Law2, Allahabad Bank Vs. Canara Bank3 and Ram Narain Vs. Simla Banking & Industrial Co. Ltd.4 Additionally, it is also stated that the Ld. Trial Court should have taken notice of Chapter IX of DCSA alongwith Section 5 of DAO as per which, in case the promoter is a co-operative society, the transferability of an apartment and all other matter shall be regulated by the DCSA.
(d) That the Ld. Trial Court has erred in holding that the suit is barred by limitation and no trial is warranted on it.
(e) That the Ld. Trial Court wrongly concluded that minutes of meeting placed on record by respondent no.1 demonstrated acknowledge or acquiescence on the part of the appellant qua the licencing agreement.
(f) That the Ld. Trial Court has erred in concluding that the parties did not approach the Court with clean hands.
(g) That the Ld. Trial Court has ignored that the appellant is a composite co-operative group housing society with plots, common areas and apartments.
1 (1993) 2 SCC 144 2 (1977) 1 SCC 750 3 (2000) 4 SCC 406 4 AIR 1956 SC 614 RCA No. 7-20 Page no. 6 of 12 M/s Burmah Shell Co-Operative Housing Society Ltd. Vs. Aradhana Apartments Owner Association ARGUMENTS
4. Arguments have been led on behalf of the appellant by Sh. Jai Sahai Endlaw, Ld. Counsel for the appellant and Sh. Ankit Ragarhia and Sh. Ajay, Ld. Counsel on behalf of respondent no.1 and respondent no.2, respectively.
5. Ld. Counsel for the appellant has urged that the appeal is necessitated as it involves substantive, procedural and constitutional law question. With respect to failure of the Ld. Trial Court to follow the due process of law, it has been argued that the appellant was not been heard on the grounds on which the suit has been dismissed and as opposed to rejection the Ld Trial Court proceeded to the matter on merits at a preliminary stage and dismissed the same giving finding on the merits of the matter. With respect to the constitutional law issue, it has been argued that both DCSA as well as DAO have an non-obstante clause and therefore it has to be answered as to which of the two acts would apply to the facts and circumstances of the case. Reference has also been made to Article 43B of the Constitution and the aspect of special legislation being given precedence over the general legislation. Leading the Court through records and in specific minutes of meetings (280 dated 03.04.1988, 306 dated 17.12.1989 and 307 dated 07.01.1990) it has been argued that Deed of Apartment had not been executed and therefore, it excludes the application of DAO to the Aradhana Apartments. As regards the substantive law involving the aspect of limitation, it has been argued that it is a mixed question of law and fact which could not have been decided in limine. Similarly, on the RCA No. 7-20 Page no. 7 of 12 M/s Burmah Shell Co-Operative Housing Society Ltd. Vs. Aradhana Apartments Owner Association observations of Ld Trial Court qua suppression of facts, it has been argued that once again, whether or not the facts not disclosed were relevant and its implication on the relief sought are a matter of trial.
6. Per contra, Ld. Senior Advocate for respondent no.1 stated that the present litigation is a deadwood which will head nowhere. It has been argued that Ld Trial Court has rightly appreciated that the suit is barred by limitation as the appellant was in know of the first lease deed since its execution i.e. 01.03.2007 yet, did not take any action within the stipulated period of three years. It has been submitted that an illusionary cause of action was sought to created by the appellant which was rightly nipped in the bud. Thereafter, it has been submitted that even though the plaintiff opted to sue defendant no.1, it has also challenged its existence. It has therefore, been submitted that if defendant no.1 is taken not to be created as per the Act, the present suit against it would also no lie. The Court has been led through minutes of meetings i.e. Meeting Nos. 280 dated 03.04.1988, 306 dated 17.12.1989, 307 dated 07.01.1990, 361 dated 27.02.1994, 382 dated 10.09.1995, 404 dated 18.05.1997, 455 dated 13.02.2001, 493 dated 22.02.2004 and 554 dated 18.01.2009, it has been argued that the member of defendant no.1 has all throughout being asserting their rights. Finally referring to Minutes of 554th meeting dated 18.01.2009 it has been submitted that the resolution recoded therein and not disputed by the appellant clinches the issue and establishes that plaintiff had already recognized the rights and interest of member of defendant no. 1 in the common area and land underneath the RCA No. 7-20 Page no. 8 of 12 M/s Burmah Shell Co-Operative Housing Society Ltd. Vs. Aradhana Apartments Owner Association building.
7. Pursuant to some arguments by the parties, this Court sought certain clarification from them qua ownership of common areas, bye laws of defendant no.1, object of the plaintiff society and relevance of it's continuance and reconciliation of accounts between plaintiff and defendant no.1.
8. The Court has considered the submissions and perused the material on record.
9. In Wander Ltd. And Anr. vs Antox India P. Ltd. 5, the Apex Court has explained the scope of power of an Appellate Court while adjudicating an appeal against exercise of discretion by the court of first instance. It has been held as under :
"9. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph :
... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion 5 1990 (2) ARBLR 399 (SC) RCA No. 7-20 Page no. 9 of 12 M/s Burmah Shell Co-Operative Housing Society Ltd. Vs. Aradhana Apartments Owner Association is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.
The appellate judgment does not seem to defer to this principle."
emphasis applied.
10. As this Court sets out to analyze the impugned order, it would here be relevant to reproduce the findings of the Ld. Trial Court :
"14. The defendant no.1 stated that the defendant no.1 is in existence since 1997 and the defendant no.1 being Association of the Apartment Owners of Aradhna Enclave, manages the common areas of the said Enclave and defendant no.1 Association was formed at the instance of the plaintiff which had duly recognized the formation of the same by passing Resolutions which have been recorded in the Minutes of Meeting i.e. Meeting Nos. 280, 306, 307, 361, 382, 404, 455, 493, 554 of the Society. The defendant no.1 further stated that it had entered into agreement / lease agreements with defendant no. 2/ predecessor in interest of defendant no.2 since 1997 and plaintiff had not taken any objection regarding the same. The plaintiff had not disputed the veracity of the Minutes of Meeting detailed by the defendant no.1, however, took the stand that the said minutes are being misinterpreted by the defendant no.1 and plaintiff's knowledge regarding the license agreements/tower is irrelevant in the present suit. This stand of the plaintiff that plaintiffs knowledge regarding license agreement/ tower since long in the present in the present is unacceptable because the limitation to file the suit for declaration / injunctions is 3 years from the date of cause of action. If the defendant no. 1 and the defendant no.2 / predecessor in interest of defendant no.2 are entering into license agreement/ agreements since 1997, then why the plaintiff did not take any action since then and filed the present suit only in the year 2017. In para no. 14 of the plaint, the plaintiff has itself mentioned that the defendant no.1 had entered into a similar contract like the contract / licence agreement which is the subject matter of the present suit even prior to 2006. If the plaintiff was aware regarding the contract /licence agreements between defendant no.1 & defendant no.2 / Predecessor in interest of defendant no.2, and when there was no authority / legal competency of defendant no.1 for entering into such agreements for management o common areas of Aradhna Enclave, then why the plaintiff did not initiate action at that time/ within the period of limitation. In view of these reasons, this court is of the opinion that the present suit is hopelessly barred by law of limitation even on the basis of averments made in the plaint only.
15. On the basis of material on record, it can be said that plaintiff has approached the court with clean hands as it has suppressed material facts this court. The plaintiff has not mentioned in its plaint about the minutes of the plaintiff society, the details of which were given by the defendant no.1 in its written statement. In the replication to the written statement of defendant no.1 the plaintiff did not dispute the veracity of said Minutes of Meeting, however stated that the same are misinterpreted. A perusal of the Minutes of Meetings dated RCA No. 7-20 Page no. 10 of 12 M/s Burmah Shell Co-Operative Housing Society Ltd. Vs. Aradhana Apartments Owner Association 03.04.1988, 08.05.1988, 07.01.1990, 27.02.1994, 18.05.1997, 13.02.2001, 18.01.2009 would reveal that the plaintiff society has recognized the existence of defendant no.1 association and its various rights and therefore now at this stage i.e. in the year 2017 / filing of the present suit, the plaintiff society cannot take the stand that the defendant no.1 has no legal status / no legal right over the management of common areas of Aradhna Enclave. The plaintiff society should have disclosed about the said Minutes of Meeting in its plaint and non disclosure of the same tantamount to suppression of material facts as well as approaching the court with unclean hands. The reliefs sought by the plaintiff in the present suit are discretionary reliefs and the relief of injunctions are equitable in nature. In view of these facts & reasons, this court is of the opinion that the plaintiff is not entitled to any relief as it has not approached the court with clean hands and has suppressed material facts from the court.
16. In view of the given facts & reasons, it can be said that the present suit is an abuse of process of the court, continuation of which will waste the precious time of the court. Consequently, the present suit is dismissed being not maintainable. Interim application filed by the plaintiff U/o 39 Rule 1 & 2 CPC and other pending application, if any, are dismissed having become infructuous."
11. Thus, primarily the dismissal has been premised on suit being barred by limitation and the plaintiff having concealed material facts.
12. It has been canvassed on behalf of the appellant that no opportunity was afforded to argue on limitation and on concealment of material facts.
13. The trigger for present cause of action as per the plaint is receipt of draft of license deed dated 24.11.2015 vide email dated 27.11.2015 from defendant no.2 in which defendant no. 1 projected to be the "absolute and bonafide owner" with clear and marketable title of the premises admeasuring 150 sq. ft constructed on the roof of the apartment building. The plaintiff has specifically pleaded that the earlier lease deed dated 01.03.2007 no such representation had been made. Therefore, it is a matter of trial and the issue of limitation cannot be decided RCA No. 7-20 Page no. 11 of 12 M/s Burmah Shell Co-Operative Housing Society Ltd. Vs. Aradhana Apartments Owner Association in limine but only after leading of evidence.
14. As regards concealment of material facts, in the considered view of this Court, once again, even though the minutes of meeting referred to by the Ld. Trial Court may suggest some intention of making defendant no.1 the custodian of the common areas of the apartment as per DAO however, there were certain formalities to be conducted like rectification of the sale deeds, payment of transfer duties etc which whether achieved or not is a matter of trial. Also, aspersions are being cast on the role of Sh. P. Jindal, President of defendant no.1 being instrumental in conducting meetings, minutes of which are relied upon by defendant no.1 A myopic view of the complexities of applicability of DAO should have been avoided by the Ld. Trial Court.
15. Thus, in view of the above discussion, this court is of the view that the discretion exercised by the Ld. Trial Court is arbitrary and unreasonable. Hence, the appeal stands allowed.
16. Let the matter be remanded to the Ld. Trial Court to proceed as per law.
VIJETA Digitally by VIJETA signed SINGH RAWAT
17. File be consigned to records. SINGH Date:
RAWAT 2024.07.29 13:27:39 +0530 Pronounced in open Court (Vijeta Singh Rawat) on 24.07.2024 District Judge-01, New Delhi District, Patiala House Courts, New Delhi RCA No. 7-20 Page no. 12 of 12 M/s Burmah Shell Co-Operative Housing Society Ltd. Vs. Aradhana Apartments Owner Association