Delhi District Court
M/S Unique Co-Operative Labour vs M/S Cmc Ltd on 17 April, 2007
1
IN THE COURT OF SHRI VIMAL KUMAR YADAV
ADDITIONAL DISTRICT JUDGE:DELHI
Suit No. 160/03
In the matter of :
M/s Unique Co-operative Labour
and Construction Society Ltd.
through its President having
its registered office at 1569/4
Bajaj Gali, Kotla Mubarakpur
New Delhi - 110003 .....Plaintiff
Versus
M/s CMC Ltd.
Through its Managing Director
having its registered office
at 5th Floor, P.T.I. Building
Parliamentary Street
Cannaught Place
New Delhi. ....Defendant
Date of Institution:- 31.10.2003
Date of Judgment :- 17.04.2007
JUDGMENT:-
1 The suit filed on behalf of the plaintiff society for specific performance of an agreement dated 27.09.1997 and in the alternative relief of damages to the tune of Rs. 3,88,818/- is hereby disposed off through this judgment.
2 The precise facts giving rise to the present suit are that the plaintiff is a registered society under the Delhi Cooperative Society Act 2 1972, having 33 persons as its member engaged in the business of providing services like maintenance, cleanliness, couriers etc. at different offices of the defendant since 1978. In the year 1987, suit for declaration was filed on behalf of the plaintiff society in respect of revision of their monthly bill paid by the defendant for the labour charges, cost of the material and for providing cafeteria services. The suit was finally compromised in the court and as per the settlement arrived at, the defendants were to grant increase of 15% on contract charges on year to year basis. As the same was sounded agreeable thus plaintiff agreed. The plaintiff society gave its consent to the said compromise.
3 In another incident the defendant, however pressurised/pressed the plaintiff to withdraw its name from the writ petition filed against the defendant by its workers for regularization of their service. The members of the plaintiff society withdrew their names on being persuaded, pressurised and pressed by the defendant despite the fact that the fellow-workmen were against the same. The understanding between the plaintiff and the defendant subsisted till 1997 as the defendant continued of increasing 15% of labour charges year after year, but thereafter for a period of three years a new contract came into being since similar increase in charges was offered, thus, despite reservation on behalf of the plaintiff society inasmuch as the new 3 contract was in contravention of the old agreement, the parties went ahead and a new contract for a period of three years in one go came into being. Thus, the contract from 01.01.1999 to 01.01.2001 was entered into on behalf of the plaintiff with utmost hope and promise from the defendant that the same shall be continued after expiry of the period. The defendant, however, did not stuck to their words and the contractual amount which was to be increased by 15% was not adhered to. In the year 2003, the defendant organization which was a Government company was taken over by TATA Group of Companies and new contract with new terms and conditions was formulated. The net result was in the shape of stopping the annual increase @ 15% giving rise to the instant suit for the repeated requests and reminders could not move the defendant, hence the instant suit wherein the plaintiff has sought for declaration of specific performance of the agreement dated 27.09.1997 and for alternative relief of damages to the plaintiff to the tune of Rs. 3,88,818/- along with the interest @ 24% per annum. 4 The defendant contested the suit and submitted that the suit has not been properly signed and verified by duly authorised person on behalf of the plaintiff society. The minimum membership required for registration of a cooperative society is 50 whereas the member of the plaintiff society is only 33, therefore, the plaintiff society does not fall into the definition of a 4 Registered Society under Delhi Cooperative society Act, 1972. There is no resolution on record authorising the present office bearers of the plaintiff society to institute the suit. The factum of compromise in the suit bearing no. 243/87 has been denied by the defendant. It is submitted that the suit was withdrawn by the plaintiff without there being any understanding to the effect that the defendant would pay to the plaintiff society an annual increase of 15% on Contract charges, therefore, the defendant is not bound in any manner to increase the contract charges @ 15% per annum. Similarly, the defendant never pressurised the members of the plaintiff society to withdraw their names from the writ petition. It is submitted that the new agreement was verily, entered into parties, therefore, plaintiff cannot question the said agreement nor can be permitted to fall back upon the earlier agreement for it is they, who have not only agreed to enter into the revised/fresh agreement but implemented it as well. It is further submitted that in the contract dated 27.09.1999 it has no where mentioned that increase would be 15% per annum. Rather the parties merely agreed for a certain sum of money and same was done, therefore, the defendant cannot be faulted on this count. The fresh agreement dated 01.01.2001 was entered into between the parties after long discussions/deliberations and was approved by Executive Body of plaintiff, therefore, the suit is not maintainable. The defendant, in any case is 5 paying more than minimum wages fixed by the Government of Delhi for a comparable job. As such, it is sought that the suit may be dismissed. 5 On the basis of the pleadings of the parties, following issues were framed :
1 Whether Unique Co-operative Labour Construction Society is competent to file the present suit?
2 Whether the suit is properly signed and verified?
3 Whether the plaintiff has any cause of action to file the suit?
4 Whether their exists any agreement dated 01.12.1990 between the plaintiff and defendant extendable beyond 31.12.1992?
5 Whether the members of the plaintiff are entitled to get 15% annual increase on their service charges qua the services provided to the defendant?
6 Whether the plaintiff is entitled to obtain decree of specific performance of contract dated 27.09.97 have been enforce till 31.12.1992 7 Whether the plaintiff is entitled to damages to the tune of Rs. 3,88,818/- along with interest @ 24% per annum?
8 Relief.
6 The plaintiff has examined Mr. Surinder Singh and as no other witness was examined on behalf of the plaintiff, therefore, plaintiff's 6 evidence was closed and thereafter the defendant has examined its company Secretary Mr. Vivek Aggarwal and closed its evidence. 7 I have heard the contentions raised by Ld. Counsels for the parties and have gone through the record as well. My issue-wise findings are as follows :
ISSUE NO. 1 & 2:-
1 Whether Unique Co-operative Labour Construction Society is competent to file the present suit?
2 Whether the suit is properly signed and verified?
8 The plaintiff has not led any evidence to establish this fact that the plaintiff society is competent to institute the suit, except the averments to that effect. The objection on behalf of the defendant is with regard to the number of members which admittedly in terms of para no.1 were 33 at the time of the institution of the suit. Apparently, there appears no flaw so far as number of members is concerned inasmuch as Section 5 of the Delhi Co- operative Act provides that a society can be registered by 15 persons and apparently the number of persons are more than 15 with the plaintiff society. 9 However, the plaintiff being a society is bound to act in terms of the by-laws framed under the Delhi Co-operative Societies Act and approved 7 by the Registrar of the Societies at the time of registration of the society. The plaintiff society has not made any attempt to show that the plaintiff is a registered society, nor the copies of its by-laws nor any resolution has been placed on record to show that the plaintiff society is a registered society having rules and regulations and by-laws through which it is being governed and the person through whom the suit was filed was duly authorised by way of resolution passed by executive members of the society in this regard or the bye-laws of the society permits the person/office bearer concerned to file the suit. These aspects being very basic thus goes to the root of the matter. Therefore, it is apparent that suit has not been filed by the plaintiff society in a proper manner.
10 In the absence of any resolution the authority of the persons signing and verifying the claim also becomes questionable. Verily, there is no assertion in the plaint that such a resolution was passed to authorise Darshan Lal President of the society to institute the instant suit, and to sign and verifying the plaint. Thus, the action taken by Darshan Lal is not supported by the proper authority, thus, the plaintiff society fails on both these counts. Accordingly, issue no. 1 and 2 are decided in favour of the defendant and against the plaintiff.
ISSUE NO. 3, 4 & 5:-
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3 Whether the plaintiff has any cause of action to file the suit?
4 Whether their exists any agreement dated 01.12.1990 between the plaintiff and defendant extendable beyond 31.12.1992?
5 Whether the members of the plaintiff are entitled to get 15% annual increase on their service charges qua the services provided to the defendant?
11 The plaintiff society has failed on these count as well, for the grudge of the plaintiff society is that the defendant has not adhered to the terms of the agreement under which the contract charges were to be increased by 15% p.a. The genesis of this increase lies in the out of court settlement between the parties. However, there is no evidence to the effect that any such specific understanding was there. The documents on record reflect that the suit was filed on behalf of the plaintiff society which was compromised rather on the basis of some understanding, it was withdrawn by the plaintiff society through its application U/o 23 read with Section 151 CPC dated 18/01/91. The statements were recorded pursuant to that on 22/01/91 which too are incidentally silent on this aspect. However, both the applications and the statements record do not reflect any specific understanding of the nature asserted by the plaintiff between the parties. The reflection, at the most, is to the effect that some sort of understanding was 9 there. In the absence of any specific condition being agreed upon to the effect that the defendant shall increase the contract charges by 15% p.a., it is difficult to conclude that the plaintiff society has a cause of action to demand such a relief.
12 In any case, the subsequent agreement was entered into between the parties and the same being voluntary for it is signed on behalf of both sides and not objected by any of them at any point of time, therefore, the previous agreement if any stands merged in the new agreement. Even according to the plaintiff the new agreement came into being in the year 2001, therefore, there is no question of specific performance of the agreement dated 27.09.99. Whatever was agreed upon between the parties was done and once a agreement is there which is free from undue influence, coercion or fraud etc., same is binding. It is not the case of the plaintiff for the agreement was not arrived at or was not acted upon by the parties. In these circumstances, it appears that the plaintiff has neither any cause of action nor it is entitled to have 15% annually increase in the service charges qua the services provided to the defendant, especially when the so called of element coming in the shadows of fraud has not been proved. 13 In view of the foregoing discussion Issue no. 3, 4 and 5 are decided against the plaintiff and in favour of the defendant. 10
ISSUE NO 6 & 7:-
6 Whether the plaintiff is entitled to obtain decree of specific performance of contract dated 27.09.97 have been enforce till 31.12.1992 7 Whether the plaintiff is entitled to damages to the tune of Rs. 3,88,818/- along with interest @ 24% per annum?
14 In view of the findings recorded qua the issues herein-before it is apparent that the plaintiff society can't, as a matter of right, either on the basis of any agreement or otherwise claim the annual increase of 15% in the contractual charges qua the services provided by it to the defendant. There is no question of specific performance of the agreement dated 27.09.97 or 99 in view of the fact that a new agreement from 21.01.01 came into existence duly signed and acted upon by both the sides. Apparently, there is no question of either specific performance of the earlier agreement or grant of a decree of damages as claimed by the plaintiff, simply because the plaintiff is unable to show that any legal right was violated by the defendant. When no violation of legal right is there, there is no question of damages/compensation. Accordingly issue no. 6 and 7 are decided in favour of the defendant and against the plaintiff.
RELIEF:-
15 In view of the findings recorded qua the issues herein before it is 11 apparent that the plaintiff society is not entitled to any relief as sought. Accordingly, the suit stands dismissed. Decree be drawn. File be consigned to Record Room.
Announced in the open court on 17.04.2007 (VIMAL KUMAR YADAV) ADDITIONAL DISTRICT JUDGE:
DELHI KM 12 Suit No. 160/03 17.04.07 Present:- Counsels for the parties.
Vide separate Judgment announced in the open court the suit filed on behalf of the plaintiff society stands dismissed. Decree be drawn. File be consigned to Record Room.
(V.K. Yadav) ADJ/Delhi.
17.04.07