Delhi District Court
M/S. Arya Udyog vs Union Of India on 24 March, 2007
1
IN THE COURT OF SHRI SANATAN PRASAD,
SR. CIVIL JUDGE: DELHI
Suit No.570/06/02/83
In the matter of:-
M/s. Arya Udyog,
2-F, Kamla Nagar,
Delhi
...Plaintiff
Versus
1. Union of India,
Service to be effected on the Secretary,
Ministry of Home Affairs,
Govt. of India,
New Delhi.
2. The Delhi Development Authority,
Vikas Minar, Indraprastha Estate,
New Delhi.
3. The Registrar,
Co-Operative Societies,
Delhi Administration, Parliament Street
New Delhi.
2
4. The Small Scale Co-Operative Industrial Estate
Ltd.,
488, Bartan Market, Sadar Bazar,
Delhi.
5. M/s. Adreena Woolen Industries (P) Ltd.,
4939-47, Kumar House, Paras Nath Marg,
Sadar Bazar, Delhi.
6. M/s. Adreena Industries,
4988/89, Rui Mandi, Sadar Bazar,
Delhi.
...Defendants
Date of Institution : 27.07.1983
Date of Decision : 24.3.2007
SUIT FOR DECLARATION AND MANDATORY
INJUNCTION
Present: Counsels for the parties
JUDGMENT
1. The plaintiff namely, M/s Arya Udyog, has filed the 3 present suit for declaration and injunction. Briefly stated, the case of the plaintiff is that the plaintiff is a partnership firm, and is also a member of defendant no.4 Society, namely, the Small Scale Co-operative Industrial Estate Ltd. The society was allotted a piece of land, by the Delhi Administration to develop and to subdivide the same into industrial plots for the purposes of allotment of the same to its members. Although, the plaintiff was entitled to the allotment of plot of land, measuring about 3,000Sq.Yds. but ultimately they were given the plot no.43, measuring 2000Sq.Yds. The plaintiff paid a sum of Rs.82,260/- as cost of land and other charges and complied with all other formalities. The plaintiff called upon the society to execute the sub lease in respect of this plot but they avoided on one pretext or the other. Later on, the plaintiff came to 4 know that the society is trying to manipulate the records and is making efforts to somehow, deprive the plaintiff of the plot. Faced with this situation, the plaintiff filed a writ petition bearing No.CWP.1866/82, titled Ms.Arya Udyog and another vs. UOI, in The Hon'ble High Court for enforcement of their rights. In reply, the respondents took up the stand that this very plot had already been allotted to one M/s. Adreena Industries i.e. defendant no.5, in the draw of lots, held on 18.09.1976 and that the said M/s. Adreena Industries had, later on, been converted into M/s. Adreena Woolen Industries (P) Ltd., which stand of the society is contrary to its rules and regulations. In view of the stand taken by the society the writ petition was dismissed as the matter in dispute related to question of facts. The plaintiff has, now, filed the present suit seeking 5 the declaration that defendants no.5 & 6 are not the members of the society and are not entitled to the allotment of any plot of Industrial Estate, developed by the society. The plaintiff has also prayed for the grant of decree for mandatory injunction directing defendants no.1, 2 & 4 to execute and register a perpetual sub-lease in favour of the plaintiff, in respect of the plot no.43 and in case the defendants fail to comply with the directions, this court may execute or cause to be executed the said sub- lease, for and on behalf of the defendants. The case set up, in brief, is that the plaintiff has come to know that defendant no.3, Registrar of Co-operative Societies, Delhi, in collusion with defendants no.4 & 5 have either approved the membership of the M/s. Adreena Woolen Industries (P) Ltd., or is taking steps to approve the same 6 and deprive the plaintiff of their use and occupation of the plot allotted to them. In fact, no industrial plot could have been allotted to defendants no.5 & 6, nor they are entitled to take precedence over the plaintiff in the matter of allotment of plot. Before filing of the suit, the plaintiff also served the defendants with a statutory notice under section 80, CPC, and section 90, of the Delhi Co-operative Societies Act, as well as under section 53-B, of the Delhi Development Act, but, with no effect, hence the present suit praying for decree of declaration to the effect that defendants No.5 & 6 are not the members of the Society and are not entitled to the allotment of any plot in the Industrial estate, developed by the Society; decree for mandatory injunction is also sought accordingly. 7
2. The defendants no.1 and 3, in their written statement, raised a number of preliminary objections, alleging that the suit as framed was not maintainable under the law; that the suit has not been correctly valued for purposes of court fees and jurisdiction and that the suit is not maintainable in view of the provisions of section 60, of the Delhi Co-operative Societies Act, 1972. On merits, they took up the stand, that the approval granted by the Delhi Administration for allotment of plot No. 43, to the plaintiff was based on false information furnished by the erstwhile Secretary of the Society, such that the plot was lying vacant, whereas, in fact, the plot had already been allotted to defendants no. 5 and 6, further, the sale deed cannot be executed in favour of the plaintiff, till the disputes between the plaintiff and defendants no. 5 & 6 8 are decided by the Competent Authority, as per the directions of the court in the writ petition. It is also their case that initially, M/s. Adreena Industries was enrolled as a member of the society but in the Board of Director's meeting, dated 22.8.70, and subsequently its name was changed to M/s. Adreena Woollen Industries (P) Ltd, Plot No. 43 was alloted to this very firm in the general body meeting, dated 18.9.76. They also denied the allegations of their, any collusion with the defendants no. 5 & 6. The plaintiff not being, the bona fide claimant of this very plot, is not entitled to its allotment and as such their suit merits dismissal. Defendant No. 4, Society also took up the stand as that of defendants 1 and 3 and similar is the stand taken up by the defendant no.2 in its written statement. As per their averments, even though, the plaintiff had been 9 denied the membership of the Society but the Assistant Registrar, Co-operative Societies, without any material, cleared the membership but at that time there was no plot available for allotment and in the draw of lots held on 18.9.76, plot No. 43 was allotted to defendant No. 5, which fact, was in the knowledge of the plaintiff. The plaintiff, later on, failed to comply with the requisite formalities, and he was held not entitled to any plot. On the other hand, defendant No. 5 have made a payment of Rs. 54,000/- against plot No. 43. Lastly, defendant No. 4 further alleged that the disputes, in fact, should have been decided by the Registrar of Co-operative Societies, under Section 60, of the Co-operative societies Act, and this court has no jurisdiction to entertain the present suit. Almost similar objections were taken by the other defendants. 10
3. The defendant no.5 filed written statement cum counter claim,wherein para 1 of the plaint regarding the plaintiff, being a registered partnership firm, having Sh. Yashpal, as one of its partners has been denied. The membership of the plaintiff with the deft.no.4/Society has also been denied and it has been submitted that the claim of membership put forward by the plaintiff was a result of fraudulent acts by the pltf. and some official of the Society. It has been further submitted that the suit was without merits, being time barred, and that there was no allotment of land to the plaintiff. The entire contents of the plaint have been denied by deft.no.5 and in the additional pleas raised by deft.no.5 for the purposes of counter claim, are that M/s. Adreena Industries (deft.no.6) applied for 11 membership of the deft.no.4/society and its application was approved by the Board of directors of the society on 22.8.70 and accordingly a sum of Rs.1100/- by way of a cheque, i.e. Rs.100/- towards membership and admission fee and Rs.1000/- as share money was deposited by it, with the society on the same day and as per the requirement of the society, M/s. Adreena Industries had paid a sum of Rs.20400/-on 26.8.70 and a sum of Rs.13600/- on 2.9.70 by way of two cheques respectively, towards part payment of cost of land and share certificate no.99, was issued by the society in favour of M/s. Adreeena Industries on 21.11.70. Thereafter, a letter dt.9.10.71 was sent by society to M/s. Adreena Industries, asking them to pay money @ Rs.21/- per sq.yd. i.e. a total sum of Rs.42000/- for 2000 sq.yds. plot and accordingly, 12 further amount of Rs.4000/- was deposited by it, on 8.12.72, by way of a cheque, thereby totalling to Rs.42000/- towards the cost of land. It has been, further, submitted that in December, 1973, the business of M/s. Adreena Industries, which was previously being run as a partnership concern, was converted into a corporate entity by the name of M/s. Adreena Wollen Industries Pvt. Ltd. (defendant no.5, herein) and the society was accordingly informed, vide letter dt.22.1.74. On 11.8.76, in compliance with the demand of society, the deft.no.5 paid further sum of Rs.4000/- to the society by way of a cheque dated 10.8.76, and again a sum of Rs.8000/- on 13.9.76, by way of a cheque. It has been submitted that in all a sum of Rs.54000/- was paid to the society, by the deft.no.5, for plot of land measuring 2000 sq.yds. The draw of lots was 13 held on 18.9.76, in Ranjit Hotel, New Delhi and plot no.43 measuring 2000 sq.yds.was allotted to deft.no.5. The necessary affidavits etc. were furnished by the deft.no.5, with the society, as required and on 2.8.82, the Asstt. Registrar (Industrial) Co-op. Societies cleared the membership of M/s. Adreena as a private limited company in respect of the said plot and asked DDA, to complete other formalities. According to defendant no.5, the final completion of the formalities by them, in respect of the said plot, was prevented due to filing of the present suit by the pltf. It has been further submitted that there was one Amrit Lal Sachdeva, for quite sometime as, Secretary of deft.no.4/Society, who was hand in glove with the plaintiff and for this reason, there was falsification and interpolation of the records etc. and it was never clear as 14 to how the plaintiff came on the scene and who was the plaintiff in fact. It has been submitted that some money was deposited with the bankers of the society, by someone under the name of plaintiff i.e. M/s Arya Udyog, without there being any corresponding demand from the society and all this mischief was done by the plaintiff in collusion with said Shri Amrit Lal Sachdeva, due to which, the defendant, M/s. Adreena Woolen Industries have not been able to shift their dyeing and bleaching unit and install sophisticated/imported hosiery machinery worth Rs.10 lac, thereby causing them huge losses and delaying the derivation of fructose of the suit property and by doing so, the plaintiff had rendered themselves liable for damages in the past to defendant no.5, to the tune of Rs.2 lac and further damages @ Rs.10000/- p.m. The defendant no.5, 15 by way of its counter claim has, thus, prayed that suit filed by the plaintiff be dismissed and a decree for recovery of Rs.2 lakh, and a decree for recovery of damages, from the date of filing of the counter claim till the obstacle created by plaintiff ceases, be passed in favour of the defendant no.5 with costs and future and pendentelite interest @ 12% p.a.
4. The plaintiff in its replication, to the written statements of the defendants, reiterated and reaffirmed its pleadings and controverted the submissions made by the defendants. In reply, to the counter claim of defendant no.5, the plaintiff in its replication filed thereto, vehemently denied the submissions, made therein, and pleaded that M/s. Adreena Industries, was never validly 16 enrolled as a member of the society and was never its member. The payment of Rs.1100/-, as membership fee, and share money stated to have been deposited by Adreena Industries, has also been denied and the pltf. has submitted that the alleged approval of the application of M/s. Adreena Industries, if any was illegal, invalid and without jurisdiction. The alleged conversion of M/s. Adreena Industries into M/s. Adreena Woolen Industries P. Ltd., has also been denied by the pltf. It has also been vehemently denied that plot no.43, measuring 2000 sq.yds., was allotted to M/s. Adreena Industries and it has been submitted that plot no.43 was allotted to the plaintiff, who had exclusive rights over it. Rather, it has been alleged that it was because of the malafide attempts on the part of the defendants 4 & 5, who in collusion, with 17 defts. nos.3 & 6, were causing hurdles in the way of execution of lease deed in respect of plot.no.43, in favour of the plaintiff. The plaintiff has, vehemently, denied the allegations made by deft.no.5 as regards the said Amrit Lal Sachdeva and it has been submitted that false allegations are being levelled to lay undue hands on the plot in question, which stood allotted to the plaintiff, and the fact that the society was in league with the defendants to deprive the plaintiff of plot no.43, and transferring the same to the defendant, was clear from an undated letter, sent by society to the Registrar of Co-op. Societies, copy of which was delivered to the plaintiff on 16.4.85 and thus, there arose apprehension in the mind of plaintiff, that society was trying to manipulate the records and deprive the pltf. of the plot in question and to put some third 18 person clandestinely, in possession of the same and that plaintiff would be able to point out the clear picture, only when the records of the society are produced in court. It has been submitted that defendant has no right, to the suit plot. The plaintiff, having, paid all the amount in respect of suit plot and completed all necessary formalities, has acquired property rights and symbolic possession over it, and the pltfs. required the said plot for establishing an industry and defts. nos. 5 & 6, in collusion with defts. nos.3 & 4 were causing hurdles in the way of execution of sub lease and it were the plaintiff, who were suffering huge losses. It is submitted that counter claim of the defendant be dismissed with costs.
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5. On the pleadings of parties, following issues were framed in the Hon'ble High Court on 11.05.1989:-
1.Whether the plaint has not been signed and verified according to law and whether the suit has not been filed by a duly authorised person?
2.Whether the suit as framed, is legally not maintainable?
3.Whether the plaintiff has no cause of action?
4.Whether the suit is not correctly valued for purposes of court fee? If so, its effect?
5.Whether the notices dt.3.4.83 u/s 80, CPC, and sec.90, of Delhi Co-op.Societies Act, 1972 and sec.53-B, of Delhi Development Act, are illegal and invalid?
6.Whether any draw of lots was held on 18.9.1976, as alleged in the written statement?
7.Whether the said draw of lots alleged to have been held on 18.9.1976 , was in accordance with law?
8.Whether plot No. 43 was allotted to the defendant No. 6 in the draw of plots held on 18.9.1976?20
9.If answer of the above issue is in the affirmative, whether such allotment was valid?
10.Whether Messrs, Adreena Industries was in existence on 18.9.1976, the alleged date of draw of Lots?
11.Whether Messrs, Adreena Industries could be validly enrolled as a Member of the Society?
12.Whether Messrs, Adreena Industries were converted into M/s Adreena Woollen Industries pvt.
Limited, as alleged in the written statement?
13.If answer of the above issue is in the affirmative whether the defendant no. 5 was entitled to the allotment of the plot in dispute?
14.Whether the plot No. 43 has not been validly allotted to the Plaintiff by Defendant no. 4?
15.Whether there are valid and sufficient grounds for the defendants, 1 to 4 to resile from executing the sub-lease deed in favour of the Plaintiff?
16.Whether defendant no. 5 has suffered any damages and if so how much?
17.If issue no. 16 is proved, whether defendant no. 5 is entitled to recover any amount as damages set up 21 by way of counter-claim from the plaintiff?
18.Whether the defendant no. 6 is entitled to any future claim for damages from the Plaintiff?
19.If issue no. 17 and 18 are proved, whether defendant no. 5 is entitled to any interest on the alleged damages"? If so at what rate and for what period?
20.To what relief is the plaintiff entitled?
21.To what reliefs are any of the defendants 5 and 6 entitled?
22.Relief.
6. An additional issue to the following effect was framed by the Hon'ble High Court vide order dated 06.2.91:-
''Whether M/s. Adreena Woollen Industries (Pvt.) Limited could validly be a member of the Small Scale Co-operative Industrial Estate Ltd., defendant No.4?'' It will be pertinent to mention here that this suit was originally, instituted in the Hon'ble High Court of Delhi, and when the case was at the stage of recording of 22 evidence of parties, and as per order dated 24.2.98, passed during trial of this case before the Hon'ble High Court, the evidence of defendants was to be recorded first and evidence, was ordered to be recorded by Sh. R.C. Chopra, Ld. Addl. District Judge, Delhi, (as his Honour then was, now retired Justice R.C. Chopra, of our own Hon'ble High Court), who was appointed as Local Commissioner, vide order passed in High Court on 27.10.98, and thereafter, this case stood transferred to District Courts, Delhi, for trial, its jurisdictional value being less than Rs.5 lakh. The case then proceeded in the District Courts, and again vide order dated 29.5.02 of the ld. District Judge, Delhi, this case stood transferred to the court of Civil Judge, because of jurisdictional value of this suit being only upto Rs.3 lakh.23
The parties led their evidence. As the onus of proof of most of the issues was on the defendants, they were directed by Hon'ble High Court to lead their evidence first. The witnesses examined by different contesting defendants are D-4/W-1 Sh.Shanti Lal Jain, Hony.Secy.of defendant no.4, D-4/W-2 Sh.R.S.Verma Advocate, D-4/W-3 Nathu Singh Assistant, - Land Sale Branch (Industry.)DDA, D.4/W-4 Sh.Jaffar Iqbal, UDC, from the office of Registrar, Co-op. Societies, New Delhi, D.5-6/W.1, Sh.DK Jain, partner of deft.no.6 and director of deft.no.5 and Sh. Shanti Lal Jain Hony. Secy.of defendant no.4 was again examined by defendants no. 5 & 6 as D5-6/W.2, the documents proved by these witnesses are Ex. D4/W-1/1, to Ex. D4/W-1/45, the description of which is respectively 24 as under:-
1.Proceedings of the General Body Meeting of Defendant No. 4, where at Draw of Lots was held on 18-9-1976.
2.Minutes of the Meeting of the Board of Directors held on 13-5-1972, containing Resolution No. 3, vide which the plaintiff was admitted as Member for a Plot of 1200 sq. yds, in place of M/s. Brij Bhushan & Co., which had resigned on that day and its resignation was accepted and it was decided to refund their deposits.
3.Receipt No. 91, dated 26-8-1970, for Rs. 1000/- paid by Defendant No. 6, as Share Money to Defendant No. 4.
4.Receipt No. 92, dated 26-8-1970, for Rs. 100/- paid by Defendant No. 6, as Admission Fee to Defendant No. 4.
5.Receipt No. 573, dated 26-8-1970, for Rs. 20,400/- paid by Defendant No. 6, as Land Money to Defendant No. 4. 25
6.Share Certificate No. 99 dated 21-11-1970 issued by Defendant No. 4, in the name of Defendant No. 6.
7.Minutes of the meeting of the Board of Directors of Defendant No. 4, held on 2-1-1975, containing Resolution No. 4, whereby it was decided to return the deposits of the Plaintiff as they had not paid admission fee and they were not member.
8.Ledger A/C, showing an entry dated 12-3-1976, regarding transfer of Rs. 63,000/- deposited by the Plaintiff to the Non-Members A/c.
9.Ledger A/c, showing an entry dated 17-6-1980, for Rs.
100/- on account of admission fee paid by the plaintiff.
10.Ledger A/C, showing an entry dated 30-6-1980, regarding transfer of Rs. 63,000/- from the Non- Members A/c to name/Account of the Plaintiff. 26
11.Receipt No. 824, dated 20-6-1972, for Rs. 2,000/- paid by the Defendant No. 6, to Defendant No. 4.
12.Receipt No. 664, dated 21-2-1972, for Rs. 2,000/- paid by the Defendant No. 6, to Defendant No. 4.
13.Receipt No. 713, dated 8-12-1972, for Rs. 4,000/- paid by the Defendant No. 6, to Defendant No. 4.
14.Receipt No. 934, dated 11-8-1976, for Rs. 4,000/- paid by the Defendant No. 6, to Defendant No. 4.
15.Receipt No. 963, dated 16-9-1976, for Rs. 8,000/- paid by the Defendant No. 6, to Defendant No. 4.
16.Receipt No. 1353, dated 1-7-1982, for Rs. 15,000/- paid by the Defendant No. 6, to Defendant No. 4.
17.History at a glance, prepared by Shri R.C Khatri, Office 27 Secretary of Defendant No. 4, showing comparative position of Defendant No. 6, vis-a-vis the Plaintiff in regard to membership, payments, allotment of Plot No. 43, to Defendant No. 6, through Draw of Lots held on 18-9-1976.
18.Minutes of a meeting of the Board of Directors of Defendant No. 4, whereat, vide Resolution No. 6, it was decided to demand land money @ Rs. 27/- per sq. yd. From the members.
19.Letter dated 13-2-1979, from Defendant No. 4 to the Assistant Registrar, R.C.S Office, enclosing, therewith list of 16 members, wherein the name of Defendant No.6, appeared at Sr. No. 5, in Ex. D-4/W-1/19-A. In the same Exhibit, the name of the Plaintiff appeared at Sr. No. 10 with the remarks "Membership not accepted as admission fee not paid".
20.Letter dated 22-7-1979, from Defendant No. 4 to the 28 R.C.S enclosing, therewith, Ex. D-4/W-1/20-A, and Ex. D-4/W-1/20-B, rendering clarification of certain points. In Ex. D-4/W-1/20-A, the status of Defendant no.6, vis- a-vis the Plaintiff was the same.
21.Minutes of a meeting of the Board of Directors of Defendant No. 4, held on 26-6-1982, containing Resolution No. 6, whereby it was decided that Plot No. 43, stood already allotted to Defendant No. 6, by the General Body, through Draw of Lots and the Board of Directors could not go against the decision of the General Body. So, request of the Plaintiff for Plot No. 43, could not be entertained.
22.Letter dated 28-8-1982, from Defendant No. 4, to the Registrar, Cooperative Societies, Delhi, forwarding, therewith, the above Resolution of the Board of Directors regarding Plot NO. 43.
23.Letter dated 26-8-1982, from Defendant No. 4, to the 29 D.D.A, in reply to the letter dated 13-8-1982, from the D.D.A, regarding Plot No. 43.
24.Letter dated 13-8-1982, from the D.D.A, to which the reply, dated 26-8-1982 (Ex. D-4/W-1/43, was sent by Defendant No. 4.
25.Letter dated 2-8-1982, from the Assistant Registrar (Industrial), Cooperative Societies, Delhi, addressed to the Deputy Director (CS), D.D.A, with copies endorsed to Defendant No. 4, and Defendant No. 5, with regard to clearance of membership of M/s. Adreena Woollen Industries Pvt. Ltd. (Defendant No. 5) of Small Scale Cooperative Industrial Estate Ltd., (Defendant No.4), for allotment of an industrial plot.
26.Letter from Defendant No. 4, to the Registrar, Cooperative Societies, Delhi (delivered by hand on 8-6- 82, as per receipt), regarding legitimate eligibility of Defendants No. 6 and 5 to Plot No. 43, allotted through 30 Draw of Lots held on 18-9-1976, to Defendant No. 6, which was converted into Defendant No. 5.
27.Letter dated 16-8-75, from Defendant No. 4, to the Plaintiff, intimating that the Plaintiff had been taken as member of the Society in place of M/s. Brij Bhushan & Co. through oversight, as according to the Register of waiting List, the Plaintiff was junior by six members, therefore, the Plaintiff was still a member of the Waiting List and the land deposit amount of the Plaintiff had been kept under Non-members' Deposits Account till the turn of the Plaintiff came. The plaintiff was also given the option of receiving back the deposits, which could be refunded to the plaintiff on request.
28.Letter dated 15-6-79, from Defendant No. 4, to Defendant No.6, regarding clarification about membership of the Society.
29.Letter/circular dated 10-9-1976, from Defendant No. 4, 31 to Defendant No.6, regarding General Body Meeting scheduled for 18-9-1976, to hold Draw of Lots.
30.Circular letter dated 10-9-1976, issued from Defendant No. 4, to Defendant No. 6, regarding, Agenda for Special General Meeting scheduled for 18-9-1976, inter alia, for holding Draw of Lots.
31.Acceptance of Plot No. 43, allotted through Draw of Lots, held on 18.9.1976, by Defendant No. 6.
32.Letter dated 20.4.1977, from Defendant No. 4 to Defendant No. 6, regarding sub-lease of the individual members and asking for payment of dues @ Rs. 5/-per sq. yd. within 20 days.
33.Letter from Defendant No. 4, to Defendant No. 6, which was reminder to letter dated 20-4-1977, for payment of dues of Defendant No. 4, before the execution of sub-leases of individual members. 32
34.Letter dated 17-7-1979, from Defendant No. 4, to Defendant No. 6, regarding approval of membership and furnishing of revised affidavit.
35.Letter (delivered on 8-3-79) from Defendant No. 4, to the R.C.S, regarding clearance of membership of 16 new members of Defendant No. 4 - Submission of 15 members. Mrs. Naresh Mehra's affidavit would follow. No affidavit had been filed by the plaintiff( Ex. D-4/W- 1/35)
36.Letter dated 22-3-1979, from Defendant No. 4, to the Assistant Registrar, Cooperative Societies, regarding registration of 16 new members for the execution of sub- leases, within the time-limit specified for the purpose.
37.Letter dated 4-8-82 from Defendant No. 4, to the Deputy Director (CS), D.D.A, regarding allotment of Plot No.43, and execution of sub-Lease in favour of 33 Defendant No. 5.
38.Letter dated 9-4-82, from Defendant No. 5, to Defendant No. 4, regarding execution of sub-lease in respect of Plot No. 43, allotted thorugh Draw of lots, held on 18-9-1976.
39.Letter dated 2-4-83, from Defendant No. 5 to Defendant No. 4, regarding sub-lease of plot.
40. Letter dated 16-4-77 from Shri A.L Sachdeva, Hony, Secretary, of Defendant No. 4, to the Deputy Registrar, Old Secretariat, Delhi, regarding complaint against/of Smt. Balmati Devi, of M/s. Arya Udyog, Delhi. True position was explained and fraudulent acts committed by M/s. Arya Udyog, in procuring membership on 13-5- 1972, in collusion with Shri Walaiti Lal bajaj, Chairman, direct purchase of share from M/s. Brij Bhushan & Co., from Shri Brij Bhushan s/o Shri Walaiti Lal Bajaj by paying him Rs. 1000/- No share Money of Rs. 1000/- 34 was paid to Defendant No. 4/Society. Shri Walaiti Lal Bajaj (Ex-Chairman) of the Society transferred the Share of M/s Brij Bhushan & Co, to M/s. Arya Udyog, himself without the knowledge of the Board of Directors of the Society, which was contrary to bye law No. 19. Admision Fee of Rs. 100/- was also not paid as required under Byelaw No. 7. The Society never demanded either Rs. 30,000/- or Rs. 33,000/- from M/s. Arya Udyog. However, Smt. Balmati Devi directly deposited the same in the Bank Account of the Society, which were transferred by Shri Walaiti Lal Bajaj, Ex. Chairman, in the account of M/s. Arya udyog without consulting the Board of Directors of the Society. M/s. Brij Bhushan & Co, had paid a sum of Rs, 21,700/- for a plot of 1200 sq. yds. evidently, M/s. Arya Udyog were admitted as a member on 13-5-72, in to the vacancy caused by the resignation of M/s. Brij Bhushan & Co, and were thus, admitted as a member for a plot of 1200 Sq. yds., M/s. Arya Udyog remained a Non-member, till Admission Fee of Rs. 100/- was paid by them on 17-6-1980.
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41. Letter dated 13-8-82, from D.D.A to Defendant No.4, regarding execution of sub-lease in respect of Plot No. 43, in the name of M/s. Arya Udyog.
42.Letter dated 26-8-82, from Defendant No. 4, to the Assistant Director, D.D.A, in reply to the above letter enclosing, therewith, Resolution dated 26-6-82, in respect of Plot No. 43, having already been allotted to M/s. Adreena Industries, by the General Body and explaining that the request of M/s. Arya Udyog could not be entertained.
43.Letter dated 18.8.82, from Shri B.M Sethi. Assistant Registrar ( Industrial) to Defendant No. 4, asking for comments/reasons for non-execution of Sub-Lease, in respect of Plot No. 43, (already replied vide Ex. D-4/W- 1/43).
44.Notice dated 24-5-75, served by the Plaintiff, through 36 Shri Raj Singh Verma, Advocate of Defendant No. 4, regarding allotment of Plot measuring 3000 sq. yds, and the purchase of one share No. 74, dated 9.9.63 of the value of Rs. 1000/- standing in the name of Shri Brij Bhushan Lal & Co. Sh. R S Verma, Advocate, through whom this notice was sent by the plaintiff has been examined as D-4/W-2, and he has supported the version of D-4/W-1 in this regard.
Sh Nathu Singh, Assistant, from Land Sale Branch, (Industrial), D.D.A, has proved the list of plots allotted through Draw of Lots, by the General Body of Defendant No. 4, at its Meeting held on 18-9-1976, along with covering Letter dated 28-1-77, from Defendant No. 4 to the Assistant Housing Commissioner, Delhi Administration, I.P. Estate, New-Delhi regarding approval of Draw of Lots in respect of 78 plots as Ex. D-4/W-3/1 to 37
4. D-4/W-4 Shri Jaffar Iqbal, U.D.C, from the office of Registrar Cooperative Society, Delhi, has proved the copy of registered Bye-laws of Defendant No.4/Society, governing the admission of members and prescribing the payment of Share Money of Rs. 1000/- Bye-law No. 15, and Admission Fee of Rs. 100, vide Bye-law No. 7, as Ex. D-4/W-4/R3. Minutes of the meeting of the Board of Directors of defendant No. 4, held on 22.8.70, containing resolution No. 8, admitting M/s. Adreena Industries defendant No. 6, as a member for a Plot of 2000 sq. yds. has been proved by D5-6W-2, as Ex. D 5-6W-2/A. The plaintiff, on the other hand, examined its general 38 attorney Shri Dharampal, as PW.1, and one Ashok Kumar,Asstt. Land Sale Branch (Indl),DDA, PW1 Sh. Dharampal proved the original GPA, executed in his favour by the plaintiff firm, as Ex. PW1/1, certified copies of form A,B and C, pertaining to the plaintiff firm as Ex. PW1/2 to PW1/4. He stated that the plaintiff was the member of the defendant no. 4, and had been issued a share certificate dated 09.9.63, by the defendant no. 4, which has been exhibited during the cross examination of D4/W-1, as D4/W-1/P1 and P2. It is further stated by him that allotment of industrial plots to the members is made by the society after getting approval of membership from the Registrar of Co-operative Societies and D.D.A, and that the plaintiff had applied for industrial plot of 3000 sq. yds., by paying Rs. 63,000/- to the society, and in this regard, he 39 proved the certified copies of receipts as Ex. PW1/5 to Ex.PW1/7, issued on the letter head of the society, and further stated that plaintiff had issued a notice dated 29.4.77, to the society asking for allotment of the plot and when it was not done by the society, the plaintiff filed a suit bearing No. 18/78, in the High Court of Delhi, and during pendency of the said suit, the membership of the plaintiff had been approved by the Registrar Co-operative Societies, vide letter dated 29.1.80, thereafter, plaintiff served a notice u/o 12, rule 8, CPC, copy of which has been proved, as Ex. PW1/9, asking the society to produce the original of letter dated 29.1.80 and copies thereof were sent to the Registrar Coop. Societies. Copies of the said notice have been proved as Ex. PW1/12, and Ex.PW1/13, and postal receipt three in numbers, have 40 been, collectively, proved as Ex. PW1/10 and UPC, as Ex. PW1/11. It has further come in the statement of this witness that along with letter dated 29.1.80, the list of approved members was also sent by the Registrar, showing the name of plaintiff firm at Sr. No. 8. It is further stated that after the approval of the membership, the society, vide letter dated 03.6.80, (the original has been proved on record, as Ex. PW1/14) had demanded from the plaintiff the cost of the plot of land of 2000 sq. yds., to the tune of Rs. 64,000/-, ground rent up to 14.1.79, to the tune of Rs.3160/- and Rs. 15000/- as share of electrification expenses which the plaintiff paid, vide their letter dated 06.06.80, copy of which is Ex. PW1/15 and the original receipt issued by the Society has been proved as Ex.PW1/16. He further stated that on receiving the 41 payment the Society issued a letter, which has been placed on record as Ex.PW1/17, to the plaintiff in respect of allotment of plot No. 43, measuring, 2000 sq. yards. On the asking of the Society, the plaintiff withdrew suit No. 18/78, pending before the Hon'ble High Court of Delhi, in the presence of counsel for defendant no. 4/society, the certified copies of the statement and order of the Hon'ble High Court have been proved, as Ex.PW1/18, and Ex. PW1/19. He has further stated that society had given symbolic possession of the plot to the plaintiff, informing them that lease deed would be executed after getting exemption certificate/order under Urban Land (Ceiling and Regulation) Act (ULCR Act). He also tendered his evidentariy affidavit dated 15.1.03, incorporating therein the entire testimony of PW Sh. Dharampal, in evidence, 42 which has been placed on record a Ex.P.1. This witness was cross-examined at length, on behalf of the defendants. It was put to him that a resolution dated 13.05.1972, was passed by the defendant no.4, for admitting the plaintiff as its member. This witness denied that plaintiff was informed, by writing, by defendant no.4, to deposit the share money of Rs. One thousand(Rs.1,000/-), admission fee of Rs. 100/- besides, the cost of land of area measuring 1200, sq. yards, within 14 days . He further stated in answer to a question that at the time of filing of application for allotment of the plot, it was not told to the plaintiff, if, M/s. Brij Bhushan & Co. had resigned from the membership of the society, thereby creating a vacancy. He, categorically, denied that plaintiff was enrolled as a member for allotment of plot of 1200 Sq. yards, or that the 43 plaintiff was required to pay the cost towards plot of 1200 Sq. yards. He denied that membership of the plaintiff was cancelled, it being illegal and that plaintiff was, accordingly, informed vide their letter dated 16.08.1975. He further stated in the cross-examination in reply to a suggestion that for the purposes of becoming a member, a person / firm has to deposit share money of Rs. 1,000/- and admission fee of Rs 100/- and plaintiff had deposited Rs. 1,000/- towards share money alongwith the membership application on 12.04.1972., for which no cash receipt was given to them and it was told that share certificate would be transferred to their name, thereby treating as a proof of deposit of Rs.1,000/-. He also admitted that share certificates were, initially, issued in the name of M/s Brij Bhushan & Co. He admitted that the 44 endorsement marked as Ex.D4W1/P.2, on the share certificate Ex. D4W1/P-1, bears the signature of shri Vilayati Lal, the Chairman of the defendant no. 4 . He also admitted that receipt of Rs. 30,000/- Ex. PW1/5, was also signed by Shri Vilayati Lal . He categorically denied that plot of land measuring 1200, Sq yards, was alotted to the plaintiff, who was asked to deposit the amount towards land money in respect of this very plot. He denied the suggestion as wrong that plaintiff was granted the membership in lieu of the membership of Brij Bhushan & Co., on their resignation. He volunteered to say that membership of the plaintiff was fresh in respect of plot of land measuring, 3000 Sq. Yards, despite the fact that share certificate was in the name of M/S. Brij Bhushan & Co. and resolution dated 13.05.1972, was passed by defendant 45 no.4, deciding therein to allot the plot of 3000Sq.Yds. to plaintiff and that the plot no. 43, was allotted to plaintiff in June 1980.
PW2, Sh. Ashok Kumar, Dealing Assistant, was a summoned witness from the office of Land Sale, Branch, D.D.A., with documents, which have been placed on record as Ex. PW2/1 to Ex.PW2/20, the description of which is as under :-
The document, Ex.PW.2/1, is the copy of application for the membership of society, filed by the defendant M/s Adreena woolen Industries, with the defendant no. 4/Society, Ex.PW2/2 and 2/3 are some explanation in respect of membership etc. of the society , Ex.PW2/4 is the 46 copy of letter written by M/s. Adreena Woolen Industries, to DDA informing them about the formation of a Private Limited Company, by them, under the name and style of M/S Ankur Cable, Limited, thereby requesting DDA to transfer of plot no.44, in the name of M/S Ankur Cable, Ex.PW2/5 is a copy of memorandum and articles of the association of the M/s Ankur Cable, similarly the documents Ex.PW2/6 to Ex. PW2/8, also pertain to M/s Ankur Cable, which have no bearing to the present case. During cross-examination, this witness stated that in the forwarding letter dated 25.05.1977, which is Ex.PW2/DX1 in respect of list of 62 members, the name of M/s Adreema Industry was not mentioned therein and volunteered to say the name of M/s Adreena Industry was mentioned in the list of new members from the waiting list. 47
I have carefully gone through the entire oral, as well as, documentary evidence adduced by the plaintiff and the contesting defendants, considered the exhaustive oral arguments advanced by ld. counsel for the parties and thoroughly perused the written arguments submitted by them and it appears that there are certain objections raised by the parties, at the time of recording of evidence of witnesses in the case, and in the light of clarifications, furnished by the Ld. Counsel for the plaintiff, as well as, the contesting defendants, I proceed to decide those objections, first, before dealingwith the specific issues framed in the case to decide the matter on merits, and the first objection has been raised by and on behalf of the plaintiff to the portion of the testimony of Sh. Shanti Lal 48 Jain, D4W-1, recorded on 27.2.1998, on the point of resolution no.3, whereby a complaint of one Sh. Achal Chandana, was taken up and it was found that he was at sl. no. 10, in the waiting list and was senior to M/s Arya Udyog, and as such he should have been considered for membership of the society first and the same was found to be correct as per the witness, and accordingly in the same meeting dated 2.1.75, resolution no.4 was also passed, holding that the plaintiff had not paid admission fees and as such he was not a member of the society on that day and it was ordered that the deposit made by him be refunded to him. Copy of the resolution collectively is Ex. D4W-1/17.
The objection as raised also in para no. 014/12, of 49 the written arguments submitted by the plaintiff is on the ground that such plea was not taken in the written statement of the defendants, on the other hand, Sh. Jagdish Singh Ld. Counsel, for the contesting defendants, has submitted that the case/defence of the defendants nos.4 to 6, was that the plaintiff was never a member of the society, before he paid the admission fees on 17.6.1980 and therefore, there was an obvious plea that the membership of the plaintiff was not valid and accordingly the evidence could have been brought on these aspects. I have, carefully, considered the defence of all the defendants and it appears, that in view of the plea already taken to the effect that the membership of the plaintiff was not a valid one, whatever evidence necessary to show such effect was required was admissible, if 50 brought on record, by the defendants and if admissibility of the plaintiff was not allowable for the reason of the fact that another applicant Sh. Achal Chandna, was senior to the plaintiff, then evidence to show this fact was admissible/allowable, therefore, this objection is decided in favour of the defendants and against the plaintiff and accordingly, it appears, that the entire testimony of DWs is readable in evidence. The second objection has been raised by the defendants, as regards to the mode of proof of certain photocopies, particularly, Ex. D4W-1/P-4, which was a photocopy and on 1.10.2001, when the document was sought to be tendered in evidence, the original thereof was not brought before the court, however, it is on record that the original of the document was brought before the court on 14.1.1999, which has been deposed by D4W1 in 51 his cross-examination, recorded on 14.1.1999, and as such it appears that the objection raised by the defendants is hyper-technical and the court cannot allow this objection, when the original of the document has been brought by a witness in the court and there is no doubt about the existence of such original document and accordingly the document appears to have been duly proved in accordance with law.
The next objection is with regard to the cross- examination of D4W3, Sh. Nathu Singh, recorded on 19.4.02, and it appears that certain documents were tendered in evidence, in the cross-examination of this DW, to contradict the statement made by the witness, in his examination-in-chief, and these documents were available 52 on the file brought by this DW and the objection is on the ground, that this DW, was a witness of the defendants and defendants never wanted these documents to be placed on record and therefore, these documents were unauthorizedly placed on record. However, this objection has no merit, as any document can be brought /tendered in cross-examination of a witness to confront /contradict, him on the basis of any document, having relevance to the examination-in-chief of a witness. Therefore, it appears that the documents were rightly placed on record and they can be read in evidence accordingly and in this scenario of the case, I decide the above issues as under:- Issues No.1 & 2
The onus to prove these issues was on the plaintiff 53 and in this context, Sh. Dharampal has appeared as PW1, who deposed on oath that Mr. Yashpal, was one of the registered partner of the plaintiff firm, and is his real younger brother, and the plaintiff firm has authorised him to appear and depose in this case as witness, on behalf of the plaintiff by way of a GPA, issued in his favour, as one of the partners of the plaintiff-firm, which has been proved as Ex.PW.1/1. He also deposed that he identified the signatures of Sh.Yashpal on the plaint and affidavit. He also proved on record the certified copies of form A, B, C, pertaining to the plaintiff - firm, as Ex.PW.1/2 to Ex.PW.1/4, thereby proving the registration of the plaintiff, as a partnership firm, consisting of its registered partners namely Smt.Balmati Devi, Sh.Ram Avtar Aggarwal, Sh.Yashpal and Sh.Rishi Pal (minor). He further 54 deposed that he recognized the signatures of Sh.Yashpal, who was one of the registered partners of the plaintiff firm, and also his younger brother, on the plaint at points A & A1, who has filed and verified the present suit on behalf of the plaintiff. He was cross examined on behalf of the defendants but nothing helpful to the defts. could be elicited, and thus it stands established that the present suit has been signed and verified as per law and has been filed by a duly authorized person and is thus maintainable accordingly and the objections raised by the Ld. Counsel for the defendants that the GPA in question is neither notorized nor registered is highly misplaced, as a GPA executed for appearing and deposing as a witness in a court case does not require registration under section 17, of the Registration Act. These issues are decided in favour 55 of the plaintiffs and against the defendants. Issue No.3 The controversy between the parties, as per their respective cases, is over allotment of a plot of land bearing no.43, measuring, 2000 sq.yds.,over which, both the parties have laid their respective claims. According to the plaintiff, the said plot was allegedly allotted to it, by the deft.no.4 (hereinafter to be referred as Society), vide allotment letter dt.6.6.80, and even after completion of necessary formalities, for execution of perpetual sub lease, the defendants no.1,2,& 4 did not execute the sub lease in favour of the plaintiff, and the plaintiff, smelling some manipulation, likely to be done by defts., after serving legal notice dt.29.4.77, (which has been proved as 56 Ex.PW.1/8 by PW.1 Dharampal and was not replied to by the defts.) filed civil suit, bearing no.18 of 1978, in Hon'ble High Court of Delhi, against the defendants and during its pendency, the Society in its meeting dated 19.2.80, presented a detailed proposal, which has been proved by the witness of defts.,as Ex.D4/W1/P3, thereby referring the matter to DDA, and DDA, vide its letter dt.20.3.80, (copy proved as Ex.PW.2/20), gave its nod for allotment of plot no.43, to the plaintiff, upon which the society in the meeting of its Board of Directors on 28.3.80, (minutes proved as Ex.D4/W1/P5), decided to allot the said plot to the plaintiff and vide letter dt.6.6.80 (copy of which has been proved on record a Ex.PW.1/17), the plaintiff was alloted the abovesaid plot and thereafter in consequent thereto, the plaintiff, through, its counsel 57 Sh.Ramesh Chandra made statement, in the said suit before the Hon'ble High Court, in the presence of defendants' counsel Sh.Alakh Kumar Adv., that "plaintiff does not want to pursue the said suit and withdraws the same on the ground that a plot has already been allotted to the plaintiff by the defendant. The suit as such is dismissed as withdrawn." (Copy of this order has been placed on record by the plaintiff, as Ex.PW.1/18-19). The defendants have admitted the factum regarding filing and withdrawal of the abovesaid suit by the pltf., in Hon'ble High Court, but submitted that it was withdrawn by the pltf. on its own volition and not on account of the fact that plot no.43 had been allotted. The fact regarding passing of order by Division Bench, of the Hon'ble High Court, in CWP No.1866/82, restraining the allotment/possession of 58 plot no.43, till the decision of competent authority is also an admitted, one as per the submissions made by the defts.in their respective written statements and even the deft.no.2, in its written statement, in the corresponding para in reply to para 32, of the plaint has admitted the receipt of notice sent by the pltf., calling upon them to execute the perpetual lease deed and has further submitted that in view of the order made by Hon'ble Division Bench, in Civil WP No.1866/82, the lease deed could not be executed unless the entitlement of the claimants to the plot is finally resolved, first. So, in view of this situation, I hold that there is cause of action for the plaintiff to file this suit as there was a controversy between the parties over the allotment of plot in question. Issue No. 3, thus, stands decided in favour of the Plaintiff, and 59 against the defendants accordingly.
Issue no. 4 The onus to prove this issue was on the defendants but they have not discharged the same and their main stress was regarding the allotment of plot in question, allegedly, in their favour in the draw of lots, held on 18.9.76, for which they were allegedly called upon to pay the share money of Rs.1000/-, admission fee of Rs.100/- and proportionate cost of land to the tune of Rs.20,400/-, whereas, on the contrary, the claim of the plaintiff was that the plot in question was allotted to them and pltf. had paid a sum of Rs.82,260/- as cost of land and other charges and therefore, for the purposes of mandatory injunction, the suit has been valued by them at this figure 60 and court fee of Rs.3173.60, has been affixed and in respect of other relief of declaration, regarding membership of defendants nos. 5 & 6, the suit has been valued at Rs.20,000/-, on which fixed court fees of Rs.19.50, has been affixed. There is no evidence or any averment from the side of defendants in this court, except, merely, raising a preliminary objection that the suit was not properly valued for the purposes of court fee and jurisdiction, therefore, this issue, thus, stands decided against the defendants and in favour of the plaintiff. Issue no.5 During the course of admission, denial of documents, the Defendant no. 4, has not denied the serving of notices, u/s 80, CPC, also Section 90, of Delhi Co-operative 61 Societies Act, and Section 53-B of DD Act, nor the Defendant no. 1 and 3, in their written statement have elaborated, as to how, the above said notices were not legal and valid except submitting that the same were not legal and valid. So, it appears, that this objection has been raised only for the sake of raising an objection, without there being any substance or merit in this objection. Similarly, Defendant no. 2, in para 32 of its written statement has not denied the service of these notices, therefore, this issue also stands decided in favour of the Plaintiff and against the Defendants.
Issues nos. 6 to 10 & 14 &15 All these issues are being decided together, because of their having connectivity and consonance with each 62 others, as they are interlinked with each other and for the sake of convenience and brevity I have taken them up together, but before deciding the issues regarding holding of draw of lots on 18.9.76, and also that it was in accordance with law, or not, it will be pertinent to first decide the issues, involving the question of membership, with the society, of M/s. Adreena Industries, although, separate issues involving these questions have been framed and same would be decided later and most certainly with the impact of decision on these issues. As per defendant no.6, M/s. Adreena Industries, it was on the waiting list of defendant no.4/society, since 15.8.69, and was admitted as its member on 22.8.70, by the Board of Directors, vide resolution no.8 (Ex.D5-6/W2/A), dt. 22.8.70, and they were admitted as a member, for allotment of plot of 63 2000sq.yds., and were called upon to pay the share money of Rs.1000/-, admission fee of Rs.100/- and proportionate cost of land to the tune of Rs.20,400/-. It has been deposed by the D4W1, Sh. Shanti Lal Jain, Honorary Secretary of defendant no.4, that the above said amount was duly paid by defendant no.6, and he has proved receipts in this regard i.e. of share money as Ex.D4W1/3 dt. 26.8.70, admission fee receipt as Ex.D4W1/4, and land money receipt as Ex.D4W1/5. According to this witness, share certificate dt. 21.11.70 ( which has been proved as Ex.D4W1/6 ) was issued by defendant no.4., in favour of defendant no.6, M/s. Adreena Industries. In this regard, it has been contended by the Ld. counsel for defendants that under bylaw no.5(b) of the defendant no.4, (copy of which is placed on record as Ex.D4/W4/R3), the body 64 corporates, and/or the partnership firms would be enrolled as members of defendant no.4. It has been, further, contended on behalf of the defendants that defendant no.6, M/s. Adreena Industries, was a partnership firm on the date of its admission, as a member of defendant no.4, on 22.8.70, and continued to be as such and was very much in existence on the date of draw of lots i.e. 18.9.1976, and thus, defendant no.6 was entitled for allotment of plot of 2000 sq.yds., on the basis of draw of lots on that very date. As regards, the conversion of M/s. Adreena Industries, into M/s. Adreena Woollen Industries Pvt. Ltd., reference has been made to the evidence of PW2, Sh. Ashok Kumar, dealing assistant, in Land Sale Branch, DDA, who, in his cross-examination, stated that as per the summoned record, brought by him and exhibited as 65 Ex.PW2/1 to Ex.PW2/20, the plot no.43, Small Scale Co- operative Industrial Estate Ltd., G.T. Karnal Road, was alloted to M/s. Adreena Industries by draw of lots. He further stated that as per the rules, membership of the society, in favour of a partnership firm, could be converted into a Private Ltd. Company. So, in view of this, stress has been laid down by the Ld. Counsel for defendant no.4/society, that conversion of membership from partnership to that of a Private Ltd. Co. was very much permissible and this conversion, which took place in 1974, was finally approved by the Office of Registrar, Cooperative Societies, vide letter dt. 2.8.82, copy of which has been proved on record, by witness of defendant, as Ex.D4W1/25, and it has been contended that in this regard for all intents and purposes, the membership of 66 M/s. Adreena Woollen Industries Pvt. Ltd., i.e. defendant no.5, in place of defendant no.6, M/s. Adreena Industries, with defendant no.4/society, stood cleared by the Registrar of Cooperative Societies, and thus, the same rights and privileges of defendant no.6, validly vested with defendant no.5 w.e.f. 22.8.70. It has been contended that upon its conversion from partnership firm to Private Ltd. Co., M/s. Adreena Woolen Industries Pvt. Ltd., became the body corporate under bylaw no.5(b) as already mentioned above. Ld. Counsel for the defendants has vehemently, contended that membership of M/s. Adreena Woolen Industries Pvt. Ltd., with defendant no.4/society became effective from 22.8.70, which was legal, valid and constitutional and by no strech of imagination, it can be termed as invalid or unconstitutional and as such, 67 defendant no.5, was entitled for allotment of plot in dispute i.e. plot no.43. As regards the plaintiff M/s. Arya Udyog, it has been contended that as per resolution no.3 dt. 13.5.1972, passed in the meeting of Board of Directors of defendant no.4, which has been placed on record as Ex.D4W1/2 and also as Ex.PW1/DX1, the plaintiff was admitted, as a member for allotment of a plot measuring, 1200 sq.yds., in place of a company M/s. Brij Bhushan & Co., who had resigned from the membership of the defendant no.4/society, vide resolution no.3 dt. 13.5.1972, and against that vacancy, M/s. Arya Udyog (plaintiff) was admitted as a member and accordingly, they were required to pay the share money of Rs.1000/-, admission fee of Rs.100/- and land money for 1200 sq.yds. As per the defendants, they did not pay either the share money, or 68 the admission fee nor paid the land money, and instead fraudulently deposited a sum of Rs.63000/- as land money for a plot of 3000 sq.yds., directly in the bank account of defendant no.4/society, with a view to cover up their failure to pay the share money, admission fee etc. in connivance with the then Chairman namely Sh.Vilaiti Lal of the defendant no.4/Society and directly purchased the share certificate of M/s. Brij Bhushan & Co. and got the transfer of the same endorsed in their favour, without there being any resolution of the Board of Directors of defendant no.4, in this regard. Stress has, again, been laid that plaintiff was admitted as a member for allotment of plot of 1200 sq.yds., only on 13.5.1972, against the vacancy of M/s. Brij Bhushan & Co. and the share certificate in respect of the plot in dispute could have 69 never been transferred in the name of plaintiff as there was no blood relation between these two company/firm and thus, this transfer was absolutely illegal, invalid and void ab-initio. In this regard, it has been deposed by D4/W1, that in letter dt. 16.4.77, which was sent by the then Honorary Secretary of defendant no.4, to the Dy. Registrar, which was in the form of a complaint of against Smt. Balmati Devi, of M/s. Arya Udyog/plaintiff, in which the facts regarding procurement of membership on 13.5.1972, in collusion with Sh. Walaiti Lal Bajaj, Chairman of defendant no. 4; Direct purchase of share of M/s. Brij Bhushan & Co., from Sh. Brij Bhushan S/o Sh. Walaiti Lal Bajaj, by paying him Rs.1000/-; Non-payment of share money of Rs.1000/- and Admission Fees of Rs.100/- to defendant no. 4, by the plaintiff and 70 transferring of the certificate of M/s. Brij Bhushan & Co., by the said Sh.Walaiti Lal Bajaj, to the plaintiff without the knowledge of the Board of Directors, and also contrary to bylaw no.19, of the Society and also regarding deposit of Rs.63000/- by the plaintiff in the bank account of the Society, although M/s. Brij Bhushan & Co. had paid a sum of Rs.21700/- for a plot of 1200 sq.yds., against whose vacancy, the plaintiff was given the membership of the Society on 13.5.1972, and also regarding plaintiff's remaining a non-member till the admission fee of Rs.100/- was paid by them on 17.6.1980; Vide resolution no.4 dt. 2.1.1975, it was resolved by the Board of Directors of the Society i.e. defendant no.4 that land and share money of the plaintiff be returned because of their failure to pay admission fees, disqualifying them to be the member and 71 also on this count, for refund of the deposited amount of Rs.63000/- and since the plaintiff did not opt for taking this refund, the said amount was transferred to the non- member's account as is revealed from the document Ex.D4W1/10. It has been, vehemently, argued on behalf of the defendants that the plaintiff continued manipulating the things in collusion, with the said Sh.Walaili Lal and other office bearers and ultimately, got the admission fees of Rs.100/- deposited, vide receipt dt.17.6.80, which is exhibited as Ex.PW1/16, resulting in revival of their membership which was cancelled long back i.e. on 2.1.75, as is apparent from the documents Ex.D4W1/14 and Ex. D4W1/16. It has been, further, argued that the plaintiff had very cleverly duped the government authorities also i.e. Registrar of Cooperative Societies and DDA etc., for the 72 purposes of getting the plaintiff admitted as a member of defendant no.4/society, despite the fact that two of its partners namely Yashpal and Rishipal were minors, on the alleged date of enrollment of the plaintiff, as member of the defendant no. 4, and this fact was kept concealed with ulterior motives.
The Ld. Counsel for defendants has pointed out a document, Ex.D4/W-1/17, which pertains to the state of affairs as regards the enrollment of defendant no. 6, M/s. Adreena Industries and plaintiff as members of the society. This document is stated to have been prepared by Sh.R.C. Khatri, Office Secretary of defendant no. 4, on the basis of relevant record, clarifying the true position as regards the allotment of plot no.43, to defendant no. 6, in the draw of 73 lots, held on 18.9.1976, at the General Body Meeting of defendant no. 4/society, when the plaintiff was not a member for not having paid the admission fee of Rs.100/-. It has been stressed that since the plaintiff was not a member on 18.9.1976, when the draw of lots was held, there was no question of allotment of any plot or plot no.43, to the plaintiff, as it was not eligible for any allotment on that very date, whereas, the defendant no. 6 was the valid member as on 18.9.1976, and was eligible for plot of 2000 sq.yards and plot no.43, was rightly and validly allotted to defendant no. 6, along with allotment of other plots to the eligible members of the society and this fact finds support from the document Ex.D4W1/4 and also this facts stands proved from the testimony of D4W1. Ld. Counsel for the defendants has argued that it has been 74 proved beyond doubt that draw of lots was held on 18.9.1976, at the Special General Body Meeting (GBM) of defendant no.4, from the documents proved by D4W/1, vis-a-vis, the Circular dated 10.9.76 (Ex.D4W1/29), regarding draw of lots scheduled for 18.9.1976 and another Circular of the same very date, Ex.D4W1/30, containing the agenda for Special GBM, Ex.D4W1/31, acceptance by defendant no.6, in respect of allotment of plot no.43 through the draw of lots, Ex.D4W1/17 ;- The comparative statement, showing the respective status, as regards the membership of plaintiff and defendant no. 6 , payments, allotment of plot no.43 etc., Ex.D4W1/1, proceedings of the said GBM and Ex.D4W3/1/4, statement/list of plots allotted to different parties in the said draw. The draw of lots was held in respect of 78 75 members out of which 62 were out of freezed list and 16 were new members and on that very day, the plaintiff was not at all the member, as its name was nowhere mentioned amongst 78 members. The draw of lots in respect of 62 members was, duly, approved by the Land & Building Department, of Delhi Administration, vide their letter dt. 12.4.77, which has been proved on record as Ex.PW/PX7, thereby establishing that this draw was legal and valid in respect of 62 members, but illegal and invalid in respect of remaining 16 members. However, the fact remains that name of the plaintiff was nowhere either in the freezed list or in the list of new members as the plaintiff had not paid the admission fee of Rs.100/- till then. It has been submitted that the names of 62 new members were also approved from time to time, and 76 allotment of plots through the draw of lots was also validated accordingly and this facts finds support and corroboration from the document Ex.D4/W1/25. The perpetual sub leases in respect of all the members, except M/s. Adreena Industries/Adreena Woolen Industries Pvt. Ltd., in respect of plot no.43 had been executed and it was not executed in favour of M/s. Adreena Industries due to litigation. In this regard, reliance has been placed on the testimony of Ex.D4/W3, and also the statement of PW2 Sh.Ashok Kumar, whereby it has come on record that as per the procedure, perpetual lease deed is executed after conducting of draw of lots and thus, it is obvious that the draw of lots held on 18.9.1976, was legal and valid and was adhered to accordingly.
77
It has been argued by the Ld. Counsel for the defendants that plaintiff was not at all a member of defendant no. 4/society, on 18.9.1976 and this fact is self explanatory from the documents i.e. Ex.D4W1/8 to Ex.D4W1/10, and Ex.D4W1/17, 1/19, 1/19A, 1/19B and 1/20, 20A & 20B, as the plaintiff had paid the admission fee of Rs.100/- and it was paid only on 17.6.80, by playing fraud and in collusion with the then Chairman Sh.Walaiti Lal Bajaj of the defendant no. 4/Society. So, there was no question of allotment of plot in question to the plaintiff, through the draw held, on 18.9.1976, and the claim of plaintiff is based on false and frivolous documents. The case as set up by the defendants, is that draw of lots was held on 18.9.76, at the Special General Body Meeting of defendant no.4/society and in this regard reliance has 78 been placed by them on documents which are Ex.D4/W1/29 &Ex.D4/W1/30, the circular dt.10.9.76, regarding this draw and containing the agenda for special General Body Meeting to be held on 18.9.76, in respect of draw of lots and these documents also finds support from the document Ex.D4W1/1.
On the contrary, it has been argued on behalf of the plaintiff that for the purposes of holding of draw of lots, it is a general practice and rather a mandatory instruction that necessary permission, in this regard must be obtained from the concerned departments, namely, DDA, Registrar of Co-operative Societies (RCS), and there must be the presence of their authorized official representatives at the time of draw of lots and both these ingredients were 79 missing, while holding the draw of lots in this case and, therefore, by no stretch of imagination it can be believed that a valid draw of lots was held on 18.09.1976, and it can at the most be termed as the proceedings for earmarking the plots to be allotted and not the final allotment of the plots, by the defendant no.4/society. Learned counsel for the plaintiff has drawn my attention to the testimony of D4W1, in his cross-examination, conducted on, 16.04.1998, to the effect that he could not tell as to who were the official representatives, present at the time of draw of lots on 18.09.1976, and as to who was the editor and signatory of the proceedings of this draw. He has, further, pointed out that in this regard, documents Ex.D4/W3/PX1 to 8, put to witness of defendants are relevant, which clearly prove that no prior approval of the 80 departments, as regards the members for the draw of lots was obtained and that only a freezed list of 61 members was sanctioned, wherein, both defendants no.5 & 6 were not the members and hence, it is clear that there was no draw of lots as on 18.09.1976, and there was no question of allotment of plot no.43, to either defendant no.5 or defendant no.6. Learned counsel for the plaintiff has referred to a letter, i.e. Ex.D4/W-1/25, which shows that membership of defendant no.5, which stood converted as such from defendant no.6, was approved only on 02.08.1982, whereas, the draw of lots was held on 18.09.1976, and it is contended to be strange enough to see that a person or a firm who was not at all a member of the society, on the date of draw of lots, which in this case is 18.09.1976 and a person/body, which was approved a 81 member, only on 02.08.1982, could be allotted a plot about six years back, despite its name not being in the list of members. My attention has been drawn to the cross- examination of D4W1, which was recorded on 07.01.2000, wherein, this witness has stated that a letter dated 03.07.1976, copy of which is Ex.D4/W3/PX.1-3, was written by DDA to the society, to the effect that only 61 members were eligible for draw and the DDA, vide its letter dated 20.12.1976, (put to the above said witness during cross-examination as Ex.D4/W3/PX.4), raised quarries as to how there was draw of lots in respect of the unapproved members and why there was no presence of departmental representative, at the time of draw. Ld. counsel for the pltf. has drawn my attention to the various correspondence, between DDA and deft.no.4, which was 82 put to the witness D4W3, during his cross-examination, on behalf of the plaintiff as, Ex.D4W3/PX5 to PX8, regarding approval of only 61 members with the deft.no.4 and has further argued on behalf of the plaintiff that draw of lots is always held amongst the members of the society, and the non-members are never joined but herein, in the draw of lots, this rule was violated and the plaintiff who was the member was not included for the purposes of draw of lots, while defendants no. 5 & 6, who were not at all the members were joined in the draw of lots. In this context, he has referred to the cross examination of defendants' witness no. D4W1, wherein this witness has admitted that the membership has to be verified from the Registrar of Societies (ROS), and he further admitted that the membership in respect of defendants no.5 & 6 was 83 approved on 2.8.82, so, in this context, the argument of the ld. Counsel for plaintiff is that it was quite astonishing that defendants no. 5 & 6 were included as members for the draw of lots held on 18.9.76, i.e. six years before the approval of their membership, which according to this witness was done on 2.8.82. It has been, further, argued that at the time of draw of lots, the presence of representatives from DDA, or ROS, is not only necessary but prior approval for holding the draw is utmost essential but that has not been followed by the defendants, despite repeated requests made by the plaintiff and this fact is apparent from the cross examination of defendants' witness no. D4W1, and this fact got highlighted, when the defendants' witness no. D4W3, was cross examined and the relevant facts emerged to the effect that a letter dated 84 3.7.76, which is Ex.D4W3/PX1 to 3 , stating that only 61 members were eligible for draw and further letter dated 20.12.76, sent by DDA, to defendant no.4(society), which is Ex.D4W3/PX4, asking the society as to why draw was held including the members, whose membership was not approved and why the authorized representatives of the concerned departments were not present at the time of draw. Ld. Counsel for the plaintiff has also referred to letter Ex.D4W3/PX5, which was written by DDA, to defendant no.4, regarding non-approval of the list of 78 members and only the approval of 61 members, by ROS, and Ex.D4W3/PX6, which is dated 5.3.77, sent by defendant no.4, to DDA, stating therein that permission was accorded to 61 members only and on the strength of this letter, another letter dated 12.4.77, which is 85 Ex.D4W3/PX7, was sent by DDA, to defendant no.4, thereby approving the list of 61 members. So, according to the counsel for the plaintiff, the crux of the matter is that the draw, dated 18.9.76, was illegal and the allotment of plot no.43, in favour of defendant no.6, was totally wrong, violative and against the rules and regulations of DDA, and ROS. Plaintiff's counsel has further contended that what to say of the membership of defendant no.6 as on 18.9.76, the same has till date not been approved.
I have, carefully, considered the arguments raised by the parties' counsel and perused the entire relevant documents and evidence of witnesses. As per the document, i.e. Ex.D4W1/P-3, which contains the minutes of the executive meeting of the society held, on 19.2.80 86 and speaks that the number and area of the plot already earmarked by the society for allotment to members, as per draw of lots held on 18.9.76, may be accepted subject to confirmation of Land and Building Department, no such confirmation, from L&B Department was obtained for the purpose of holding of the draw of lots and thus the proceedings carried on 18.9.76 can only be termed as 'earmarking' and no allotment of plot was made on that date. Moreover, no representative on behalf of DDA, or ROS, was present at the time of said proceedings, on 18.9.76, as is clear from the documents Ex.D4W3/PX-1 to
8. These documents further prove that defendant no.4 (society), had neither obtained prior approval from the department, in respect of the members nor any such approval was given and only a freezed list of 61 members 87 was issued by Delhi Administration, for the purposes of draw of lots and there was no mention of the names of defendants no. 5 & 6 in this list. So, it can safely be said that no draw of lots was held on 18.9.76, and the proceedings held on that date were defective because of not following the due norms and regulation, i.e. no prior approval was obtained to hold the draw of lots in respect of 78 members, no departmental representative was called or present at that time and the more important aspect is that the freezed list, dated 3.7.76 did not contain the name of defendants no. 5 & 6. The draw is always held amongst the approved members of the society and no non-member is included. The plaintiff was the approved member of the society and instead of including him for the purpose of draw of lots, the defendants no. 5 & 6, who were not at all 88 the members, were included for the purposes of draw of lots, which otherwise cannot be said to have been held legally. Defendants have not proved on record any document, in this context, rather, the quaries were raised by DDA, from defendant no.4 society, calling their explanation as to why the draw was held in respect of the unapproved members and especially, when the names of defts. no.5 & 6, were not there in the freezed list dated 3.7.76, and why no departmental representative was present at the time of proceedings, held on 18.9.76. Further, for the purposes of draw of lots, approval of membership with the ROS is necessary and in this context, reference has been made to the testimony of defendants' witness no. D4W1, who, during his cross examination on behalf of the pltf., admitted that membership of defts. no.5 89 & 6 was approved only on 2.8.82. So, it is a matter of great concern that the draw of lots was, allegedly, held on 18.9.76, including the defts. no.5 & 6 as members and their membership was approved only on 2.8.82. It is quite strange that draw of lots is held in respect of a member, about 6 years before the date of approval of its membership with ROS, thereby violating the prescribed norms and rules that draw of lots was to be held only amongst the approved members and no non-member could be included for the purposes of draw and moreover, the freezed list dt.3.7.76 did not even contain the names of defts.no.5 or deft.no.6. As per the defendant's case, that plaintiff was not a member of defendant no.4/society, on the date of draw of lots held on 18.09.1976 and was not eligible for allotment of any plot and it was only 90 defendant no.6, who was a valid member on that very date and quite eligible for allotment of plot of 2000sq.yds. and thus, plot no.43, was rightly allotted to defendant no.6, alongwith allotment of plots to other members and in this regard reliance being placed, on documents Ex.D4W-1/1 to 4, to the effect that defendant no.6 was a valid member of the society as on 18.09.76, much stress has been laid on the aspect that plaintiff was never a member of the defendant no.4, when the draw of lots was held on 18.09.76, and this draw was held in respect of 78 members of defendant no.4, 62 members out of freezed list and 16 were new members, and defendant no.6 was one of the new members. It has been argued on behalf of defendants that plaintiff was nowhere, amongst, the 78 members, as is clear from document Ex.D4W-3/1 to 4, and 91 it was crystal clear that plaintiff was not at all the member of defendant no.4, on the relevant date i.e. 18.09.76 and my attention has been drawn to a letter dated 12.04.77, which has been placed on record, as Ex.PX7, written by Asstt. Housing Commissioner, Land & Bldg. Department, Delhi to the Hony. Secretary of defendant no.4, in respect of approval of draw of lots, held on 18.09.76, in respect of 62 members only. It has been contended that this letter nowhere ruled that draw of lots was valid only in respect of 62 members and the remaining 16 members were not eligible and valid members and this fact is corroborated and substantiated by Ex.D4W-1/25. It has come in the evidence of D4W3, Shri Nathu Singh, Asstt., Land Sale Branch, DDA, that the name of the plaintiff was not mentioned as an allottee in the list Ex.D4W3/1 to 4, which 92 was of the members, who participated in the draw of lots held on 18.09.76 and as per this list M/s. Adreena Industries, was allotted plot no.43, measuring 2000sq.yds., as an allottee. In the same breath, this witness has uttered that plot no.43, has not so far been leased out. So, as per the counsel for defendants, in view of testimony of this witness, it is proved that draw, held on 18.09.76, was legal and valid, having been duly approved by the concerned authorities and the perpetual sub leases in respect of the members who were allotted plots in this very draw has already been executed, except that of the plot in question due to this litigation.
The overall view, gathered from the entire oral and documentary evidence of the parties, discussed above, is 93 that the draw of lots stated to have been held on 18.9.76, was not at all a legal draw as the defendant no.4/society has failed to rebut the contention of the plaintiff that no prior permission from the Registrar and/or competent authority was obtained and thus, in the absence of any such prior approval to hold the draw of lots, the such draw, could not be validily held. Moreover, no competent authority/representative on behalf of the Registrar and/or DDA, were present at that very time and the freezed list dated 03.07.76, was only in respect of 61 members, which did not contain the name of defendants no.5 or defendant no. 6 and it is quite astonishing that the defendants no.5 & 6, despite not being in the list, nor their membership having been confirmed on that very date, i.e. 18.09.1976, they participated in the proceedings, held on 18.09.76, 94 which in view of above discussion cannot be termed as draw of lots and at the most can be said to be proceedings having been held for the purposes of earmarking the plots to be allotted to the members. It can, thus, safely be held that no draw of lots was held on 18.09.76, in accordance with law and plot no. 43, could not be allotted to defendant no.6, in the said proceedings and the allotment in respect of plot no.43, in favour of defendant no.6 as claimed by the defendants was quite invalid. It has been, specifically, stated by D4W1 that membership of defendant no.5, was approved only on 02.08.82 and that as on the fateful date i.e. 18.09.76, defendant no.6 M/s. Adreena Industries was very much in existence and defendant no.5, now M/s Adreena Woolen Industries Pvt. Ltd. had not stepped into the shoes of M/s Adreena Industries by way 95 of conversion. The fact remains that membership of defendant no.6 was approved only on 02.08.1982 and their name was not at all included in the freezed list of 61 members as on 18.09.76.
The next contention, raised by learned counsel for defendants that defendant no.4 never allotted plot no.43, to the plaintiff. In this context, my attention has been drawn to document Ex.D4W1/P3, which is Resolution dated 19.02.80, of defendant no.4 /society, according to which approval from DDA was sought for the purposes of allotment of this plot to the plaintiff and DDA, vide its letter, dated 20.03.1980, had given approval to defendant no.4, for allotment of this plot to the plaintiff, but not of 3000 sq.yds., but of 1200 sq.yds., to which the objection of 96 the plaintiff was that since he had been paying the amount for 3000 sq.yds. plot, he was entitled for that and in this regard reference has been made to a document Ex.D4W1/1, which reads as under:-
''Shri Suresh Mohan Taneja objected to the allotment of the plot 2000 sq.yds. he demanded that he had been paying the amount for 3000 sq.yds. and therefore, a plot of the same size may be allotted to me. After some discussion, in the house he agreed for the allotment of the plot of 2000 sq.yds.'' So, according to counsel for the plaintiff, the stand taken by the defendants no.5 & 6 that the plaintiff got allotment of the said plot fraudulently, was totally false and baseless, being unsubstantiated by way of any documentary proof and rather, it stands proved from the contents of document Ex.D4W1/P3, that it was duly discussed in the meeting held on 19.02.80. Contents of the above said documents are that letter dated 29.01.80, 97 received from the Registrar Co-op. Society, giving clearance to 13 persons on the waiting list was placed before the Board of Directors for their perusal and to consider further action and it was unanimously resolved by Board of Directors (BOD), that permission for sub- lease-execution, for the 13 members, cleared by ROS, vide their office letter no.F-75/2230/IND/Co-OP/292, dated 29.01.80, be sought from the L&B Deptt. and it was further unanimously resolved that some members and area of the plots already earmarked by the society for allotment to the 12, out of above 13 members, as per draw of lots, held on 18.09.76, may be allotted subject to confirmation of L&B Deptt., which Office Secy. of the Society may refer to the authority of L&B Deptt. In respect of M/s Arya Udyog, it was stated that as no plot for allotment was 98 earmarked for it on 18.09.76, it being not eligible at that time, it was unanimously resolved that position of the case may be explained to the department stating that the defendant no.4 /society, has four plots i.e. plot no.43, measuring 2000 sq.yds., plot not 37, measuring 1956.25 sq.yds., plot no.58, measuring 1212.50 sq.yds. and plot no.10, measuring 1360sq.yds., for allotment to the remaining members on the waiting list and that M/s. Arya Udyog, i.e. the plaintiff had paid cost of land and development charges to the society for a plot of more than 2000 sq.yds. and therefore, the L&B Deptt. may consider for allotment of a plot out of the above said four plots, to M/s Arya Udyog. In this regard, the letter dated 20.03.1980, (Ex.PW2/20), sent by L&B Deptt. of Delhi Administration, to the Hony. Secy. of defendant no.4 is 99 very important as it speaks regarding the approval of L&B Deptt. for allotment of plots to 12 members as per draw of lots held on 18.09.76, and allotment of plot no.43 to M/s.
Arya Udyog/plaintiff. So, it is apparently clear that in this meeting plaintiff's membership was cleared by ROS, and there was suggestion/decision to allot the suit plot to the plaintiff and in this meeting Mr. A.L. Jain, Secretary of defendant no.4 was also present in the capacity of Vice- Chairman/Director and he was aware of all what had been suggested and decided in the meeting. Moreover, there was no dispute regarding the membership of the plaintiff and even the defendant no.4/society, in para no.2 of its WS, has not denied the membership of the plaintiff with defendant no.4, and even this fact has been admitted by defendant's witness no. D4W1, who, during his cross- 100 examination had admitted issuance of share certificate to the plaintiff. The share money and admission fee amounting to Rs.1100/- had already been paid by the plaintiff on 13.05.72, for which no receipt was issued to the plaintiff at that time and by obtaining the signatures of plaintiff on the membership register and by transferring the share certificate in its name, it was accepted as a member of the society and its name was put in the list of share holders. I find force in the contention raised on behalf of the plaintiff that no person/firm can be allotted any land without its becoming the member, on payment of the share money. The plaintiff had already paid Rs.63,000/- to the society for the purposes of allotment of plot, and there was no question of plaintiff's not paying the admission fee of Rs.100/-, which is the plea taken by the 101 defendants no.5 & 6, that plaintiff was not approved as member of the society for want of deposit of admission fees and share money to the tune of Rs.100/- and Rs.1000/- respectively. Moreover, the membership of plaintiff was never challenged by any defendant at any time. The case as set up by the plaintiff that he was a registered member of the society and was thus, legally entitled for the allotment of the plot and even this fact has been substantiated by the defendant no.4's letter dated 29.01.80, copy of which has been placed on record as Ex.D4W1/17, wherein it has been mentioned that plaintiff was admitted by the registrar as member on 29.01.80. On that very date plot no.43, was available to defendant for allotment to the registered members. The stand taken by the defendants no.5 & 6 that the plot in question was 102 already allotted to M/s. Adreena Woolens Industries, in the draw of lots held on 18.09.76, in itself, is falsified in view of the fact that there was no allotment letter or allotment order in favour of M/s. Adreena Woolens Industries, as regards the plot in question and thus, issues no.6 to 10, 14 and 15 are decided accordingly in favour of the plaintiff and against the defendants Issues nos.11, 12, 12A and 13 :-
All these issues relate to the question, regarding existence of M/s. Adreena Industries, on 18.9.76 and whether M/s. Adreena Industries was converted into M/s. Adreena Woolen Industries Pvt. Ltd. and if it could validly be enrolled as member of the society. Defendant no.5 M/s Adreena Woolen Industries P. Ltd. has laid its claim on the 103 plot in question, by averring that defendant no.6, M/s Adreena Industries was converted into defendant no.5, somewhere in 1974, and on the fateful date i.e.18.9.76, on which the alleged draw of lots is stated to have been effected, M/s Adreena Industries was no more in existence but the claim of the plaintiff, is on the contrary, who has argued that defendant no.6 M/s Adreena Industries was very much in existence as is revealed from the testimony of witnesses of defendants no.5 & 6, more specifically, my attention has been drawn to the cross examination of D5- 6/W1, Sh. D.K.Jain, wherein, he stated that he was the director of the deft.no.5, and was partner of deft.no.6, when it was a partnership concern and that now it was no more in existence, as having been converted into a private limited company which was defendant no.5. He further 104 stated that necessary formalities in this regard must have been taken care of, by the CA of defendant no.5, and he did not know if any list of assets and liabilities of defendant no.6, was prepared or not for the purposes of its conversion into a private limited company. As per this witness, the conversion had taken place in the year 1973, and on the date of draw of lots, i.e. 18.9.76, deft.no.6 was the member of the society/deft.no.4, and plot no.43, was allotted to it. He further admitted that on the date of allotment of suit plot, i.e. 18.9.76, defendant no.6 M/s Adreena Industries was in existence and was member of defendant no.4. He further stated that membership of defendant no.6 was already approved by defendant no.4, on the date of allotment on 18.9.76. He further stated that he was not aware of account and balance sheet of 105 defendant no.5 M/s Adreena Woolen Industries Pvt .Ltd., or as to whether any entry was made in the accounts of defendant no.5, regarding payment of Rs. 55,100/- made to defendant no.4 in respect of the plot in question. He admitted that in the resolution of Ex.D5-6W1/X3, the words " '(P) Ltd'"" had been cut off. So, according to this witness on the date of allotment of plot on 18.9.76, defendant no.6 ( M/s Adreena Industries) was in existence and was member of defendant no.4 society and the plot in question was allotted to defendant no.6. This version of this witness belies the case of the defendants that M/s Adreena Industries (defendant no.6) had been converted into defendant no.5 i.e. M/s Adreena Woolen Industries P.Ltd. in the year 1973, and it cannot be belived that defendant no.6 was in existence on 18.9.76. Ld. Counsel 106 for the plaintiff has also drawn my attention to section 575 of Companies Act, 1956, which speaks about vesting of property on registrsation and lays down that 'all properties, movable, immovable (including actionable claims), belonging to or vested in a company at the date of its registration in pursuance of this part, shall, on such registration, pass to and vest in the company as incorporated under this act for all the estate and interest of the company therein.' and the Ld. Counsel for the plaintiff has further contended that there is no resolution regarding take over , passed by the alleged incorporated company and if according to this witness the defendant no.6 was in existence on 18.9.76 then how the conversion could take place either in 1973 /1974 as alleged and admittedly, M/s Adreena Woolen Industries was not the 107 member of defendant no.4 on 18.9.76, and was not eligible for allotment of any plot. Ld. Counsel for plaintiff has argued that even defendant no.4/society had written a letter dt. 15.6.79, to defendant no.6, which has been placed on record, as Ex.D4W1/28, which speaks that membership of defendant no.6 had become invalid and since its other firm M/s A.D.Raj Kumar & Co. had already been allotted a plot, no further allotment could be made in their favour. However, option was given to them to represent their case in meeting of Board of Directors to be held on 20.6.79, but no representation was ever made by defendant no.6. In the meeting dt. 5.12.79, resolution no.12 was passed to the effect that if any plot henceforth, becomes vacant due to non-approval of membership under consideration of the Registrar Cooperative Society, and/or 108 due to resignation/default of a member or due to increase in the number of plots , reduction in area of big plots, i.e. about 200 sq.yds., by order of Delhi Administration, u/s 23 of ULCR Act, 1976, then these plots be allotted to new persons, on the waiting list of the Registrar of the Society, strictly, in accordance with their seniority and those persons be asked to comply with the formalities, required under bye laws of the society and to deposit admission fee, share money and cost of land etc. It has also come in the testimony of D4W1, that as per document Ex. D4W1/17, M/s Adreena Industries had paid a sum of Rs.54,000/- on 13.9.76 in respect of plot of land of 2000 sq.yds., vide letter dt.13.2.79. It has been contended by the counsel for plaintiff that testimony of DW no. D5- 6/W1 clearly indicates that on the date of allotment of 109 plot, i.e. 18.9.76, the defendant no.6 was in existence and member of defendant no.4 society, therefore, it can be safely said that it was only a case of change of name and not the enrollment of a new or different member and there was no conversion at all, because for the purpose of conversion of a company there must be mention of the main object for conversion in the Memorandum and Articles of Association but there is no such position, here in this case. Moreover, as per the defendants , the defendant no.6 was in existence as on 18.9.76, and thus the stand taken by them regarding take over of defendant no.6, by defendant no.5 cannot be believed. The DW no. D. 5-6/W1, was not in a position to specify as to when the handing over/taking over entry was made in the accounts of defendant no.6 and when any such resolution was 110 passed and when admission fee was filed by the defendant no.5, with defendant no.4, before becoming a member. As per defendant no. D4/W-1, there was one entry dt. 29.1.62, in the name of one Sh.Rghunath Sahai Bhrgava, at page 9 of the register of defendant no.4, and against this name it was mentioned with pencil '"transfer to Adreena Industries'. " This entry was not having any initial or signature of the office bearer of defendant no.4. The witness of defendant no. 5 and 6, Sh. D.K.Jain even could not tell as to when the defendant no.6, actually ceased to exist and when it had surrendered its sale tax license after 1976. All this, goes to pove that defendant no.5, was a separate entity which was bound to meet with necessary formalities like depositing of share money etc. and it is admitted case of the defendants that no admission fee was 111 deposited in the name of M/s Adreena woolen Industries Pvt. Ltd for the purposes of its becoming member of society. In view of the oral as well as documentary evidence put forth in the case , it stands proved that M/s Adreena Industries (defendantno.6), was very much in existence on 18.9.76, and it was not a valid member of the society. There was no conversion of M/s. Adreena Industries into M/s. Adreena Woolen Industries (P.)Ltd.
nor it could a valid member of the defendant no.4 , there having been no resolution passed in this regard and no admission fee was ever paid to the Society, as regards defendant no.5, which at all was not entitled to the allotment of plot in dispute. All the above mentioned issues are accordingly answered against the defendants and in favour of the plaintiff.
112Issues Nos. 16 to 19 and 21
Consequent upon my discussions on all the above issues defendant no.5 cannot be said to have suffered any damages as it was not in existence as on 18.9.76, nor was it a member of the defendant no.4/ society on that day. The counter claim filed by defendant no.5 is, thus, also without any substance and is liable to be dismissed. With these observations, the issues no.16 to 19 and 21 also go against the defendants no. 5 and 6 and in favaour of the plaintiff. They are not at all entitled to claim any damages from the plaintiff.
Issue no.20 This is an issue as to what relief, the plaintiff ia 113 entitled and as already held above, that it was the plaintiff who was the approved member of the defendant no.4/ society and was the legitimate/valid allottee of plot no.43, is entitled for the relief claimed in the present suit to the effect that it was entitled for execution of conveyance deed / sub lease in respect of plot no. 43, measuring 2000 sq.yds. in the industrial estate developed by defendant no.4 .
Relief In view of my above discussion and findings on the above issues, the present suit is hereby decreed with cost in favour of the plaintiff and against the defendants and a decree of declaration to the effect that the defendants no.5 and 6 are not members of the society, i.e. defendant no.4, 114 and are not entitled to the allotment of any plot in the industrial estate developed by the society, is hereby passed in favaour of the plaintiff and against the defendants, alongwith a decree for mandatory injunction, directing defendants no. 1,2 and 4 to execute and register a perpetual sub-lease in favour of the plaintiff, in respect of plot no.43, measuring 2000 sq. yards in the industrial estate, developed by the society, is also passed in favour of the plaintiff and against the above defendants within 90 days from the date of this order and in case the above defendants failed to execute the required sub-lease, as above then the plaintiff shall be at liberty to get the sub- lease executed by this court/officer of this court, on completion of other required formalities under the rules/law. The defendants are also restrained from 115 alloting or handing over possession of or executing any convenyance deed in respect of the above said plot, in favaour of any one other than the plaintiff. The counter claim put forward by the defendant no.5 and 6 is also dismissed with cost. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in open court, (SANATAN PRASAD)
th
on this 24 day of March, 2007 Sr. Civil Judge, Delhi (Spare three copies attached)