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Delhi District Court

Smt. Suman Satyarthy vs Sh. R.B. Sharma on 16 December, 2013

           IN THE COURT OF SH. VISHAL SINGH, CIVIL JUDGE­9
                          CENTRAL: DELHI


SUIT NO. 453/13/09
UNIQUE ID NO. 02401C0364302009


IN THE MATTER OF:
SMT. SUMAN SATYARTHY
W/O. SH. HOM KARAN
R/O. 1360, BAGICHI TANSUKH RAI,
AJMERI GATE, DELHI.                             . . . PLAINTIFF 

VERSUS

1. SH. R.B. SHARMA
SECRETARY, 
JAN VIHAR COOP. HOUSING SOCIETY LTD.,
LIAISON OFFICE : A­12,
3rd FLOOR, PRIYADARSHINI VIHAR,
DELHI - 100 092.

ALSO AT :
C­91, DLF COLONY, 
BHOPURA CHOWK, GHAZIABAD, U.P.

2. JAN VIHAR COOP. HOUSING SOCIETY LTD.,
THROUGH ITS SECRETARY,
LIAISON OFFICE : A­12,
3rd FLOOR, PRIYADARSHINI VIHAR,
DELHI - 110 092.                                . . . DEFENDANTS

Date of Instt: 13/08/2009
Date of Reservation of Judgment: 03/12/2013
Date of Judgment: 16/12/2013



Smt. Suman Satyarthy Vs. R.B. Sharma & Anr.
Suit No. 453/13/09                                                 1
   SUIT FOR DECLARATION, MANDATORY INJUNCTION, SPECIFIC 
              PERFORMANCE AND POSSESSION

JUDGMENT

1. Plaintiff was the member of defendant No. 2 Housing Society which has its registered office in Lucknow, U.P., and an operative office in Priyadarshini Vihar, Delhi. Plaintiff applied for membership in defendant society for allotment of a plot and deposited Rs.2,535/­ on 10/01/1990 vide Challan Form No. 834. The application of plaintiff was accepted by defendant through letter dated 18/02/1998. The plaintiff was allotted one reference no. F­5/79/347 and was asked to deposit the installments. Plaintiff adhered to the schedule of payment of installments and paid the entire amount of Rs.12,000/­ against the allotment of a plot. The defendant acknowledged the same against receipts.

Defendant society sent letter dated 19/05/2006 having reference no. Jan Vihar/2006­07/12­68 and asked the plaintiff to appear in a meeting to be held by the Managing Committee on 04/06/2006 for making her submissions in connection with the outstanding dues. Plaintiff's father, who was also a member of the defendant society, participated in the meeting dated 04/06/2006 on behalf of the plaintiff. Plaintiff was told through her father to either pay all the outstanding dues within three weeks or her membership would be terminated without further notice. However, no amount against the outstanding dues was intimated to the plaintiff. The membership of plaintiff was terminated Smt. Suman Satyarthy Vs. R.B. Sharma & Anr.

by the defendant through letter dated 24/06/2006 without giving her any opportunity to make the payment of outstanding dues or to clarify her status. Alongwith the letter of termination of membership, the defendant sent the copy of minutes of meeting dated 04/06/2006 and a cheque bearing No. 223554 dated 24/06/2006 for a sum of Rs.6,850/­ to the plaintiff.

Plaintiff wrote a letter dated 24/07/2006 to request the defendant to reconsider the termination, to restore the membership and to allow her to deposit the outstanding amount. In reply, the defendant society sent the letter dated 25/08/2006 to inform the plaintiff that her membership has already been cancelled and there was no question of reconsideration of termination. The legal notice dated 30/04/2009 was also not heeded by the defendant.

As per plaint, the defendant had wrongfully cancelled her membership. Plaintiff seeks the following reliefs:­

a) decree of declaration thereby declaring the letter dated 24/06/2006 and a subsequent letter dated 25/08/2006 through which the membership of the plaintiff was terminated illegally and unlawfully as null and void and unenforceable in the eyes of law;

b) decree of specific performance thereby getting the entire transfer deeds executed on part of the defendant in favour of the plaintiff;

c) decree of mandatory injunction thereby directing the defendant to intimate the plaintiff as how much money, if any, is due against her;

d) decree of possession thereby handing over the possession of the plot Smt. Suman Satyarthy Vs. R.B. Sharma & Anr.

admeasuring 50 sq. ys. in A­5 category in Jan Vihar Coop. Housing Society Ltd., as assured by the defendant while accepting the cost of the plot.

2. Defendants filed written statement in answer to the suit and took preliminary objection to the jurisdiction of this court U/s. 70 of U.P. Co­operative Societies Act, 1965, which bars the jurisdiction of the civil court. Defendant also objected to the pecuniary and territorial jurisdiction of this court. Defendants asserted that the suit is barred U/s. 41 (h) of Specific Relief Act.

On merits, defendants asserted that plaintiff defaulted in the payments of installments and other charges to the society despite several letters and reminders. In addition, the installments were not timely paid by the plaintiff. Plaintiff never attended the meetings of the society. Defendant denied all the allegations of the plaintiff and asserted that membership of plaintiff was validly terminated by the Society.

3. Plaintiff filed replication to the written statement of defendants in which she denied all the assertions of the defendants and reaffirmed the contents of the plaint.

4. Upon completion of pleadings, the following issues were framed on 21/11/2011:­

i) Whether the plaintiff is entitled to the decree of declaration, as prayed for? (OPP).

ii) Whether the plaintiff is entitled to the decree of specific performance, as prayed for? (OPP).

Smt. Suman Satyarthy Vs. R.B. Sharma & Anr.

iii) Whether the plaintiff is entitled to the decree of mandatory injunction and decree of possession as prayed for? (OPP).

iv) Whether the suit of the plaintiff is not maintainable? (OPD).

v) Whether this court has no jurisdiction to try the present suit? (OPD).

vi) Whether the suit is not properly valued for the purpose of court fees and jurisdiction? (OPD).

vii) Relief.

Plaintiff Ms. Suman Satyarthy deposed as PW1. Plaintiff's father Mr. Amar Singh deposed as PW2. Defendant No.1 R.B. Sharma, who is the secretary of defendant No. 2 Society, deposed as DW1.

5. I have heard the final arguments from Ld. counsels for both the parties.

6. Now my findings upon the issues are as under:­ Issue No. iv):

Whether the suit of the plaintiff is not maintainable? (OPD). Issue No. v):

Whether this court has no jurisdiction to try the present suit? (OPD). Defendant took the objection in written statement that the suit is barred by Section 70 of U.P. Co­Operative Societies Act, 1965, as per which Civil Court has no jurisdiction to try and entertain the disputes related to co­operative societies.

However, upon careful reading, Section 70 (supra) is not found applicable to the issues related to the termination of membership by the co­operative Smt. Suman Satyarthy Vs. R.B. Sharma & Anr.

societies. Section 70 (supra) has no applicability to this suit and the suit is maintainable.

Defendant had also taken objection to the territorial jurisdiction of this court on the ground that defendant no. 2 Society has been registered in Lucknow, U.P., where its head office is situated. However, defendant proved demand letters dated 24/01/1993 and 28/07/1993, Ex. DW1/1 and Ex. DW1/2, vide which monetary demands were raised upon the plaintiff. These letters were issued by defendant no. 1 from the liaison office of defendant no. 2 Society situated at 58­A, MIG Flats, Pocket­A, Nand Nagari, Delhi­93. Similarly, other demand letters dated 05/04/1996 and 20/07/1996 were issued by defendant no. 1 from the liaison office of defendant no. 2 Society situated at E­82, MIG Flats, GB Enclave, Nand Nagari, Delhi­93. Other letters and notices Ex. DW1/9 to Ex. DW1/22 were issued by defendant no. 1 from the liaison office of defendant no. 2 Society situated at A­12, Priyadarshini Vihar, Delhi­92.

Defendant No. 1 is a resident of Delhi, whereas, defendant No. 2 Society has its liaison office in Delhi, from where it raised demands of outstanding dues from the plaintiff and issued notices to her from time to time. The cause of action occurred, at least in part, in Delhi. The courts at Delhi have territorial jurisdiction to entertain the suit.

Issues No. (iv) and (v) are decided against the defendants. Smt. Suman Satyarthy Vs. R.B. Sharma & Anr.

Issue No. i):

Whether the plaintiff is entitled to the decree of declaration, as prayed for? (OPP).

Plaintiff seeks the declaration that the termination of her membership through letters dated 24/06/2006 and 25/08/2006 was null and void. The court has to examine if any illegality or irregularity was committed by the defendants in termination of membership of the plaintiff.

In her cross examination, plaintiff / PW1 Smt. Suman Satyarthy admitted that her membership from the Society was terminated on the ground of non payment of arrears of Society, and, before that, she had received a show cause notice Ex. PW1/D1 from the Society. She admitted that after paying the first installment, she had not deposited the rest of the three installments upto 10/01/1991, in compliance of letter of defendant dated 18/02/1990. She admitted that she had not paid the office expenses as well as interest upon the defaulted installments. She admitted that the rates of the plot was escalated @ Rs.100/­ per sqr. yard in the meeting of the Society, held on 30/05/1992. She admitted that she had not paid the escalation charges to the Society. She further admitted that she had received certain letters sent by the defendant Society between year 1993 and 2004 to ask her to pay installments and deposit the arrears. She admitted that she had received the show cause notice dated 19/05/2006, Ex. PW1/D1 to explain in the meeting to be held on 04/06/2006 why her membership not be terminated due to default in payment. She Smt. Suman Satyarthy Vs. R.B. Sharma & Anr.

admitted that even after receipt of show cause notice, she did not personally visit the office of defendant Society to explain her stand. She admitted that she had received the order Ex. PW1/D2 of the defendant Society, passed in the meeting held on 04/06/2006. PW1 also admitted that she had received a cheque of Rs.6,850/­ alongwith the letter dated 24/06/2006 (Ex. PW1/F), through which she was intimated about the termination of her membership.

DW1 R.B. Sharma admitted in his cross examination that whenever there was demand from the defendant Society, the amount was deposited by the plaintiff. He voluntarily deposed that except for first two installments, almost all the payments were received late from the plaintiff. DW1 explained in his deposition that, although, father of the plaintiff had attended the meeting of Society on 04/06/2006, he had not attended it on behalf of the plaintiff. DW1 deposed that father of plaintiff was himself an independent member of defendant Society and he had appeared for his own.

I find no illegality or irregularity on the part of defendant Society. The membership of the plaintiff was not terminated in violation of any contract or applicable law. Plaintiff had herself admitted in cross examination that she had received the demand letters and notices from the defendant Society from time to time. She ignored them and suffered the natural consequences of non payment of dues and arrears against her membership. Plaintiff is not entitled to the declaration sought by her.

Issue No. (i) is decided in favour of the defendants and against the Smt. Suman Satyarthy Vs. R.B. Sharma & Anr.

plaintiff.

Issue No. ii):

Whether the plaintiff is entitled to the decree of specific performance, as prayed for? (OPP).

It has not been pleaded by the plaintiff that any specific piece of land was purchased by the defendant Society from the installments / funds contributed by its members. In fact, DW1 had specifically deposed in cross examination that no land could be purchased by the Society because of the defaults committed by the plaintiff in the payment of installments.

Thus, there is no specific or identified land to be transferred or allotted by the defendant Society in favour of the plaintiff. No case is made out for specific performance of any contract by the defendant.

Issue No. (ii) is decided in favour of the defendants and against the plaintiff.

Issue No. iii):

Whether the plaintiff is entitled to the decree of mandatory injunction and decree of possession as prayed for? (OPP).

Plaintiff seeks the directions to the defendant, through decree of mandatory injunction, to disclose how much money is due and payable by her. As observed above, plaintiff already had the knowledge of all the payable dues through the demand letters and notices sent by the defendant Society from time to time. Plaintiff cannot feign ignorance about the same. Plaintiff had admitted Smt. Suman Satyarthy Vs. R.B. Sharma & Anr.

in cross examination that she received the demand letters and show cause notice Ex. PW1/D1 from the defendant Society. No case is made out for issuance of mandatory injunction.

Issue No. (iii) is against the plaintiff and in favour of the defendant. Issue No. vi):

Whether the suit is not properly valued for the purpose of court fees and jurisdiction? (OPD).

The onus to prove this issue was upon the defendant. Defendant led no evidence to prove this issue in his favour. The plaintiff has prima facie valued the suit properly for the purpose of court fees and jurisdiction.

Hence, issue No. (vi) is decided in favour of plaintiff. Whether the suit is barred by time:

Although, no specific issue has been framed in this regard and no plea or objection has been raised by the defendant regarding lapse of limitation period, it is incumbent upon the court to determine if the suit has been filed within the limitation period.

Plaintiff was intimated through the letter dated 24/06/2006 Ex. DW1/21 (also Ex. PW1/F) about the termination of her membership w.e.f. 04/06/2006. Plaintiff requested the defendant to restore her membership through letter dated 24/07/2006 (Mark B). In reply, the defendant sent letter dated 25/08/2006, Ex.PW1/L and refused to reconsider the termination of membership. The plaintiff instituted the suit on 13/08/2009. Smt. Suman Satyarthy Vs. R.B. Sharma & Anr.

Plaintiff wants the limitation period to be reckoned from 25/08/2006, when the defendant Society refused to reconsider the termination of membership of plaintiff. However, the limitation period started to run when the plaintiff received the letter dated 24/06/2006, through which her membership was terminated. Plaintiff cannot deny the knowledge about the letter dated 24/06/2006 because she had replied to the same through her letter dated 24/07/2006.

When counted from 24/06/2006, the suit is clearly barred by limitation.

7. Relief:

The suit is dismissed as not proved as well as barred by limitation period. Plaintiff shall bear the cost of the suit. Decree sheet be prepared accordingly.

File be consigned to record room, after due completion.

Announced in open court                                (VISHAL SINGH)
on 16/12/2013                                          CIVIL JUDGE­9/CENTRAL
(Judgment contains 11 printed pages)                   DELHI: 16/12/2013




Smt. Suman Satyarthy Vs. R.B. Sharma & Anr.
Suit No. 453/13/09                                                                           11