Delhi District Court
Dr. Naipal Singh vs Navjagriti Cooperative Group on 27 September, 2007
IN THE COURT OF SH. S.P.S.LALER : CIVIL JUDGE :
KARKARDOOMA COURTS : DELHI
SUIT NO.1069/07
IN THE MATTER OF:-
DR. NAIPAL SINGH .....................Plaintiff
Vs.
NAVJAGRITI COOPERATIVE GROUP
HOUSING SOCIETY LTD. & ORS. ....................Defendants
ORDER
1. Vide this order the court shall consciously adjudicate upon an application filed by the defendant no.1/ applicant under order 7 rule 11 read with section 151 of the Code of Civil Procedure 1908 on 31-8-2007.
2. In brief in his application the defendant no. 1/ applicant has stated that the plaintiff is a member of the Nav Jagriti Coop. Group Housing Society Ltd. and being a member of the society he has been alloted a flat no. 31 in the Nav Jagriti Apartment plot no. 11-C Vasundhara Enclave Delhi-110096. That the plaintiff in his plaint is mainly claiming a relief for permanent injunction without any declaration and has raised a dispute whether defendant no. 1 or its office bearers are disqualified to convene and hold Annual General Body Meeting of the society. The dispute regarding of Annual General Body Meeting is a dispute touching a constitution , management and business of the society. The alleged dispute has been raised by the plaintiff who is a member of the society, defendant no. 1 against the society and its managing committee and office bearers. That as the Delhi Cooperative Societies Act, 2003 [herein after called the Act] Page 1 of Pages 11 provides a mechanism for deciding the disputes between a member and society or disputes between a member and a member u/s 70 of the Act hence, the present suit is not maintainable.
3. That defendant no. 1 in his application has further stated that no suit against the cooperative society can be filed without issuing a notice to a registrar u/s 129 of the Act which provided for a notice for a period of 90 days to be given to the registrar regarding the cause of action and the relief claimed by the claimant. That as no notice as required u/s 129 of the Act has ever been served by the plaintiff nor it has been mentioned in the plaint, hence. the suit is liable to be dismissed.
4. Defendant no. 1 has further stated that the jurisdiction of this Court in regards to disputes mentioned in section 70 sub section 1(a,b,c and d) of the Act has been specifically barred by section 132 of the Act which deals with bar of jurisdiction of civil or revenue courts.
5. The defendant no. 1 has further stated that plaintiff has been a persistent defaulter in payment of electricity charges and other dues and hence the society had to file an arbitration case u/s 70 of the Act before the Dy. Registrar/ Registrar, Delhi who passed an award against the plaintiff. That the present suit has been filed against defendant no. 1 with revengeful attitude and hence the same is liable to be dismissed
6. The defendant no. 1 has also stated that as per the provisions of the Act every cooperative has to hold Annual General Body Meeting within a prescribed period and that in view of this the holding of the Annual General Body Meeting cannot be challenged by a suit for permanent injunction. Thus the plaintiff has no cause of action and hence the suit is liable to be dismissed.
7. Defendant no. 1 has further stated that the order passed by joint registrar setting aside the election held by Sh. S.R. Goel is a matter of record and the Page 2 of Pages 11 managing committee has to continue till the next successor is elected. That as no elections has been held as yet hence the managing committee is continuing legally and has all the powers to call the Annual General Body Meeting that there has been no restriction on the working of the managing committee or for calling the Annual General Body Meeting, hence the managing committee has to work till the next elections are held as the management of the cooperative society cannot be in vacuum.
8. The defendant no. 1 in his application has finally prayed that the suit may kindly be dismissed being without jurisdiction.
9. Plaintiff has in his reply to the application has stated that the present application is not maintainable under law as the provisions relied upon by defendant no.1 are not applicable to the facts and circumstances of the case because Sh. Satya Gopal IAS registrar of cooperative societies is also made party to the present suit for illegally helping defendant no.1 for illegal considerations.
10. I have bestowed my thoughtful consideration to the contentions raised at BAR by Sh. R.N. Bharadwaj, Ld. Counsel of the defendant no. 1 and Sh. Ashok Kumar Gautam, Ld. Counsel of the plaintiff and have meticulously glanced through the record of the case.
11. After going through the record the court found that for the purpose of deciding the present application the main issue to be decided by the court is that whether the dispute involved in the present suit is a dispute touching the constitution, management or the business of the co-operative society or not ?
12. After going through the entire plaint and the present application as well as the reply, the court found that the main dispute between the parties in the present suit is whether the defendant can hold Annual General Body Meeting for taking major policy and financial decisions as regards the Page 3 of Pages 11 defendant society in-spite of the award passed by the Court of Joint Registrar wherein he has expressed the opinion that the election of defendant no. 1 held on 20-6-2004 were not held in accordance with the procedure laid down in Delhi Cooperative Societies Act 1972, and Delhi Cooperative Societies Act 1973 and has set aside the said elections. The prayer of the plaintiff in the amended plaint is:-
"(a) This Hon'ble Court may be pleased to pass a decree of permanent injunction in favour of the plaintiff and against defendant restraining the defendants, and their office bearers from convening and holding the Annual General Body Meeting of the society on 3.12.2006 at the site of the society and from taking the decisions on the matters specified under item 1 to 10 relating to the major policy and financial matters of the society.
(b) This Hon'ble Court may also be pleased to pass a decree of permanent injunction in favour of plaintiff and against the defendants restraining the defendants and their office bearers from taking any major decision on policy, finance and other matters against the plaintiff or any other member or in favour of any other members of the society, in any meeting of the Managing Committee or of the General Body of the members of the society or otherwise in violation of any provisions of the law after 3.12.2006."
14.That from the above reproduced prayer of the plaintiff it is quite clear that the dispute is as regards the holding of the Annual General Body Meeting, for taking decision on major policy and financial matters of the society and as regards holding any meeting of the managing committee for taking decisions on major policies and financial matters of the society. It is quite clear that the dispute regarding Annual General Body Meeting or holding of the meeting of the Managing Committee is a dispute touching Page 4 of Pages 11 constitution, management and business of the defendant society.
15.Thus the finding of the court on the first issue is that, the dispute in the present suit is a dispute touching constitution, management and business of the defendant society.
16.Once the main issue is decided the second issue which is necessary for adjudication of the present application is whether this dispute touching the constitution, management and business of the society is a dispute between a member, past member or person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society or liquidator, past or present ?
17. The main ground taken by the plaintiff in his reply to the application of the defendant is that section 70 of the Act is not applicable to the present suit because Sh. Satya Gopal IAS, Registrar of the cooperative Societies is also a party to the present suit for illegally helping defendant no. 1 for illegal consideration.
18.In view of the above reply of the defendant the question that have arisen before the court is: "Whether by making Registrar of the Cooperative societies as a party to the suit the plaintiff can circumvent the provisions of Delhi Co-operative Societies Act, 2003 ?
19. At this stage it becomes necessary to quote the relevant provisions of Delhi Cooperative Societies Act 2003 which are as follows:-
"Section 70-(1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a Cooperative society other than a dispute regarding disciplinary action taken by the society or its committee against a paid employee of the society arises-
(a) among members, past members and persons claiming though members, past members and deceased members or Page 5 of Pages 11
(b) between a member, past member or person claiming though a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society or liquidator, past or present or
(c) between the society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent, or deceased employee of the society such disputes shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute (2) If any question arises whether a dispute referred to the Registrar under this section is or is not a dispute touching the constitution, management or the business of the co-operative society, the decision thereon of the registrar shall be final and shall not be called in question in any court." (emphasis supplied) " Section 129. No Suit shall be instituted against a cooperative society or any of its officer in respect of any act touching the business of the cooperative society until the expiration of ninety days next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims and the plaint shall contain a statement that such notice has been so delivered or left.
"Section 132: (1) Save as provided in this Act, no civil or revenue court shall have any jurisdiction in respect of-
(a) the registration of a co-operative society or its bye-laws or of an amendment of a bye-law;
Page 6 of Pages 11
(b) the removal of a committee;
(c) any dispute required under section 70 to be referred to the Registrar; and
(d) any matter concerning the winding up and the dissolution of a co-operative society." (emphasis supplied) From the above reproduced provisions of the Act it becomes quite clear that if any dispute touching the constitution, management or the business of a Cooperative society arises among members, past members and persons claiming though members, past members and deceased members or between a member, past member or person claiming though a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society or liquidator, past or present, such dispute shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute.
It is further clear from the above said provisions that no civil or revenue court shall have any jurisdiction in respect of any dispute required under section 70 to be referred to the Registrar i.e. any dispute touching the constitution, management or the business of a Cooperative society among members, past members and persons claiming though members, past members and deceased members or between a member, past member or person claiming though a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society or liquidator, past or present.
One more thing is clear after going through other provisions of the Act that the Act provides a complete mechanism for resolution of disputes touching the constitution, management or the business of a Cooperative society as the Act (in section 112) provides an appellate forum i.e. Delhi Co-operative Tribunal before which an appeal can be filled, if the party is aggrieved by Page 7 of Pages 11 the decision made by Registrar under section 70 of the Act. At this stage sub-section (7) of section 114 of the Act would be worth quoting:
"(7) An order passed in appeal under section 112 or in revision under subsection (6) of this section or in review under section 115 by the Tribunal shall be final and conclusive, and shall not be called in question in any civil or revenue court." (emphasis supplied) Thus it is quite clear that the Act provides complete mechanism for proper adjudication of all the disputes touching the constitution, management or the business of a Cooperative society. Moreover the Act (in section 132) expressly bars the jurisdiction of the court in regards to disputes touching the constitution, management or the business of a Cooperative society.
Here it would be very relevant to refer to the classic decision of Dhulabhai Vs. State of M.P. AIR 1969 SC 78 , where after considering a number of cases, Hidayatullah, C.J. summarized the following principles relating to the exclusion of jurisdiction of civil courts:
(a)Where a statute gives finality to orders of special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such a provision, however, does not exclude those cases where the provisions of a particular Act have not been complied with or the statutory tribunal has not acted in conformity with fundamental principles of judicial procedure.
(b)Where there is an express bar of jurisdiction of a court, an examination of the scheme of a particular Act to find the adequacy or sufficiency of the remedies provided may be relevant but this is not decisive for sustaining the jurisdiction of a civil court. Where there is no express exclusion, the examination of the remedies and the scheme of a particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if a statute creates a special Page 8 of Pages 11 right or liability and further lays down that all questions about the said right and liability shall be determined by tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
(c)Challenge to the provisions of a particular Act as ultra vires cannot be brought before tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from decisions of tribunals.
(d)When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(e)Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or is illegally collected, a suit lies.
(f) Question of the correctness of an assessment, apart from its constitutionality, are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in a particular Act. In either case, the scheme of a particular Act must be examined because it is a relevant inquiry.
(g)An exclusion of jurisdiction of a civil court is not readily to be inferred unless the conditions above set down apply. (emphasis supplied) As in the present case the Act (in section 114) gives finality to orders of special tribunals i.e. Delhi Cooperative Tribunal and the Act provides for adequate remedy to do what the civil courts would normally do in a suit involving dispute touching the constitution, management or the business of a Cooperative society, hence the jurisdiction of the civil court is excluded. Moreover the Act (in section 132) expressly bars the Page 9 of Pages 11 jurisdiction of the court in regards to disputes touching the constitution, management or the business of a Cooperative society and an examination of the scheme of a Act shows that the Act provides for adequate and sufficient remedies to the person aggrieved, hence the jurisdiction of the civil court as regards disputes touching the constitution, management or the business of a Cooperative society is barred.
The opinion of this court is fortified by the judgment of the Delhi High Court in case titled Smt. Manju Jain Vs. Registrar Cooperative Societies decided on 16/12/1991. Para 5 of the said judgment is worth quoting:
"The civil courts must realise that certain statutes bar the jurisdiction of civil courts. Under the Delhi Cooperative Societies Act, 1972, section 93 contains such a provision. Any matter which comes within the purview of Section 93 read with section 60 has to be determined in accordance with the provisions of the Act and not by Civil Court. It is most unfortunate that ex parte injunctions are granted without keeping this in view."
(The corresponding sections to Sections 60 and 93 of the old Act are Sections 70 and 132 respectively of the new Act of 2003) The observation of this court is further supported by the judgment of the Delhi High Court in case titled Prakash Narain Sharma Vs. Burmah Shell Cooperative Housing Society Ltd. 2001(59)DRJ(DB). Now the only question that remains to be answered is whether by making Registrar of the Cooperative societies as a party to the suit the plaintiff can circumvent the provisions of Delhi Co-operative Societies Act, 2003 ? The court is of the considered opinion that the answer to this question is in the negative i.e. the the plaintiff cannot circumvent the provisions of Delhi Co- operative Societies Act, 2003 by making registrar a party to the suit. The dispute does not become a dispute between member and the society and a third Page 10 of Pages 11 person merely by making registrar a party to the suit. If the plaintiff is aggrieved of the orders of the registrar then the proper course is to approach the Delhi Cooperative Tribunal and not this court. The plaintiff cannot be allowed to circumvent the provisions of the Act, which expressly bars the jurisdiction of the civil courts, merely by making registrar a party to the suit when the dispute and the relief claimed is the one touching the constitution, management or the business of a Cooperative society.
20. In view of the above discussion the court is of the considered opinion that the present suit is not maintainable as the provisions of Delhi Co-operative Societies Act, 2003 specifically bars the jurisdiction of civil courts as regards such suits. Therefore the present suit is returned to be filed before appropriate forum.
21.Nothing stated here shall be construed as an opinion of this court on the merits of the case.
Announced in open court on 27/9/07.
(SAURABH PARTAP SINGH LALER) CIVIL JUDGE, DELHI Page 11 of Pages 11