Delhi District Court
Sh. M.S. Yadav vs Manocha Bandhu CoOperative Group ... on 30 March, 2011
IN THE COURT OF SH. LALIT KUMAR, CCJCUMARC, CENTRAL,
DELHI.
Suit No.82/09/2004
Sh. M.S. Yadav,
s/o. Late Shri Siri Kishan,
r/o. Flat no.130, Manocha Apartments,
Vikaspuri, New Delhi18.
...... Plaintiff
Versus
1. Manocha Bandhu Cooperative Group Housing
Society Ltd.
Through its Secretary,
2. Sh.B.L. Madan,
Flat no.116, the then President.
3. Sh.R.S. Manocha,
Flat no.13, the then Vice President.
4. Sh.O.P. Sethi,
Flat no.57, the then Secretary,
5. Mrs. Reeta Katiyal
Flat no.125, the then Joint Secretary,
6. Sh. O.P. Sharma
Flat no.37, the then Treasurer.
7. Mrs. H. Hundal,
Flat no.119, the then Executive Member.
8. Sh.Jagdish Lal,
Flat no.29, the then Executive Member.
All residents of Manocha Apartments,
Plot No.14, PhaseII, Vikaspuri,
New Delhi18. .......Defendants
Suit No.82/09/2004 1/11
Date of institution of suit: 23.07.2003
Date on which judgment was reserved: 30.03.2011
Date on which judgment was announced: 30.03.2011
JUDGMENT
30.03.2011
1. Vide this judgment, I shall dispose of the suit for damages filed by the plaintiff against the defendants.
2. Brief facts which are relevant for the disposal of present suit are that plaintiff has purchased a flat bearing no.130, at Manocha Apartments, Vikas Puri, New Delhi on 20.09.1996 from Sh.Inderjeet Kalia who was the actual allotee in the said society. The plaintiff is residing in the above said flat with his family members. The defendant no.1 is the society where the plaintiff is residing after purchasing the flat no.130 and defendants no.2 to 8 were the Executive Members. After purchasing the said flat, the defendants have started raising demands of a sum of Rs.25,000/ as entrance fee in the society. The plaintiff has flatly refused to pay the said amount as the same was illegal and unjustified. The plaintiff was agreed to pay and has paid valid amount to the society but the Executive Members of the defendant society were adamant to teach a lesson to plaintiff and with this ulterior motive, the defendants have lodged a false complained against him on 04.07.2000 Suit No.82/09/2004 2/11 before the Chairman of the Bar Council of Delhi. Ultimately, the said complaint came to an end and the Bar Council rejected the complaint filed by the defendants on 17.07.2002. Due to said complaint, plaintiff has suffered physical and mental agonies throughout two years alongwith physical and mental suffering, financial losses, humiliation, wastage of time, ill reputation among the colleagues and loss of reputation for no fault on his part. Thus, a legal notice dated 06.08.2002 was duly served upon the defendants claiming a token amount from the them as damages for the harassments caused by the defendants. Since, no other efficacious remedy is available to the plaintiff, hence he has filed the present suit with a prayer that a decree for damages to the tune of Rs.1 lacs with interest @ 18% per annum from the date of filing of the present suit till its realization be passed against the defendants.
3. Notices of the suit have been duly served upon defendants no.1,2,3,4,6 & 7 and in pursuant to that they filed the WS wherein they took the preliminary objection that the jurisdiction of Civil Courts is specifically barred under sections 60, 90 & 93 of the Delhi Cooperative Societies Act, 1972.
On merits, it is admitted that Sh.Inderjeet Kalia was the original allottee of flat in question and that plaintiff is in possession of flat in question, however, it has been submitted that defendant no.1 society Suit No.82/09/2004 3/11 is neither aware of any transfer/sale of the flat in question in favour of plaintiff. Till date, plaintiff has not shown to defendant no.1 any documents of sale/transfer of flat in question in his favour. It is submitted that at no point of time defendant no.1 ever demanded any entry fee from the plaintiff. It is also admitted that defendant no.1 has been governed under the provisions of the Delhi Cooperative Societies Act but it is denied that defendants no.2 to 8 were the Executive Members of the Society at the time of filing of the complaint and were complainants before the Chairman Bar Council of Delhi. It is submitted that defendant no.1 vide General Body Meeting held on 26.01.2000 condemned the acts of plaintiff perpetuated upon the society while filing false case against defendant no.1 and its Managing Committee and consequently, a Negotiating Committee was formed which was to meet the Executive Committee members of the society on 04.02.2000 and it was decided to file a complaint against plaintiff before the Bar Council of Delhi. Accordingly, a complaint was lodged by the defendant no.1 against the plaintiff. It further submitted that plaintiff had filed a suit bearing no.580/1997 for permanent injunction against the defendant no. 1 and vide order dated 25.08.1997, the plaint was rejected by the court of Sh.G.P. Singh, the then Civil Judge, Delhi u/o. 7 rule 11 (d). The said order was never challenged by the plaintiff. It is further submitted that defendant no.1 was constrained to approach the Registrar of the Co Suit No.82/09/2004 4/11 operative Societies, which authority passed an award under section 61 of the Act in favour of the Society and against the plaintiff for the payment of a total sum of Rs.9,053/ being maintenance charges, electricity charges w.e.f. November, 1996 to May, 1999 inclusive of improvement and ground rent charges. It is further submitted that complaint before Bar Council of Delhi was not decided on merits. The matter was being adjourned from time to time for amicable settlement, however, after change of quorum the defendant no.1 was in receipt of order passed by Bar Council of Delhi whereby complaint was prima facie rejected. It is denied that plaintiff suffered any mental agony, physical pain, suffering wastage of time and humiliation, however, it is the defendant no.1 which is being run by its Executive Members has suffered and is suffering mental agony, torture, humiliation by the acts of the plaintiff. Hence, it is prayed the suit of the plaintiff be dismissed.
4. In replication, plaintiff has denied the allegation made in the WS and reaffirmed the averments made in the plaint.
5. Vide order dated 12.10.2004, the defendants no.5 and 8 have been deleted from the array of parties on the statement of the counsel for plaintiff.
Suit No.82/09/2004 5/11
6. On the basis of pleadings, following issues were framed by Ld. Predecessor of this Court on 01.03.2005:
1. Whether the plaintiff is entitled for the decree of the damage, alongwith interest as claimed?OPP
2. Whether the suit is barred by the provisions of Sec.60, 90 & 93 of Delhi Coooperative Societies Act?OPD.
3. Relief.
7. In evidence, plaintiff has filed his affidavit as PW1 and the matter was adjourned for cross examination of PW1. Vide order 20.07.2005 since no one has appeared from the side plaintiff, the P.E. was ordered to be closed and examination of chief filed by way of affidavit was also ordered to be expunged from the record and the matter was adjourned for DE. However, vide order 11.08.2005, the order dated 20.07.2005 was recalled and matter was fixed for PE. Thereafter, again plaintiff had failed to appear before the Court and PE was closed vide order dated 23.01.2006 and matter was fixed for PE. The plaintiff has moved an application for recalling the said order but the said application has been dismissed by the Ld. Predecessor of this Court vide order dated 09.03.2006 and the matter was fixed for DE. On 29.08.2006, counsel for defendant had closed the DE in the absence of PE and the matter was adjourned for final arguments for 08.09.2006. On Suit No.82/09/2004 6/11 08.09.2006, again the plaintiff had moved second application for recalled the order dated 23.01.2006 and same was ultimately dismissed by the Ld. Predecessor of this Court vide order dated 30.04.2008 and matter was fixed for final arguments.
8. I have heard the final arguments.
9. Since, issue no.2 is a legal issue, hence I take this issue first and my findings with respect to this issue are as follows: Regarding issue no.2 "Whether the suit is barred by the provisions of Sec.60, 90 & 93 of Delhi Coooperative Societies Act?OPD."
Counsel for defendant has argued that as per Section 90 of Delhi Cooperative Societies Act, 1972, the present suit is not maintainable as mandatory notice has been served. It is further argued that as per Section 60 of the said Act, any dispute touches the constitution or management or business of the society then such types of disputes shall have to be referred to the Registrar of Cooperative Societies for decision. He further argued that in view of the specific bar under section 93 of the Delhi Cooperative Societies Act, no suit is maintainable before a civil court which is referable to the Registrar Suit No.82/09/2004 7/11 under section 60 of the said Act.
On the otherhand, counsel for plaintiff has admitted as per Delhi Cooperative Societies Act no suit will lie in respect of any act, touching the business of the society but he submitted that plaintiff has filed the present suit seeking damages against the defendants as defendant no.1 filed a personal complaint against the plaintiff before the Bar Council of Delhi and not before the Registrar of Delhi Cooperative Societies.
Before proceeding further, it is relevant to reproduce the Sections 60, 90 and 93 of Delhi Cooperative Societies Act here and same are reproduced as under: Section 60: Disputes which may be referred to arbitration. (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 co operative society other than a dispute regarding disciplinary action taken by the society or its committee against a paid employee of the society arises
(a)........
(b)......
(c)......
(d) between the society and any other cooperative society, between a society and liquidator of another society or between the liquidator of another society, 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.
Suit No.82/09/2004 8/11
Section 90: Notice necessary in suits. No suit shall be instituted against a cooperative society or any of its officers in respect of any act touching the business of the society until the expiration of three months next after the notice in writing has been delivered to the Registrar or left at his office stating the cause of action, name, description and place of residence of the plaintiff and the relief which he claims and the plaint shall contain a statement that such office has been so delivered or left.
Section 93: Bar of jurisdiction of courts.(1) Save as provided in this Act, no civil or revenue court shall have any jurisdiction in respect of
(a) the registration of a cooperative society or its bye laws or of an amendment of a byelaw;
(b) the removal of a committee;
(c) any dispute required under section 60 to be referred to the Registrar; and
(d) any matter concerning the winding up and the dissolution of a cooperative society.
(2) .............
(3) Save as provided in this Act, no order, decision or award made under this Act shall be questioned in any court on any ground whatsoever.
From the above mentioned Sections it is clear that jurisdiction of Civil Court under Delhi Cooperative Societies Act; that as per section 60 of Delhi Cooperative Societies Act any dispute touching the constitution or management or business of the society shall be referred to the Registrar of Cooperative Societies for decision and no suit is maintainable before the civil court which is referable to the Registrar under section 60 of the said Act, in view of specific bar under Suit No.82/09/2004 9/11 section 93 of Delhi Cooperative Societies Act.
The plaintiff has filed the present suit for damages to the tune of Rs.1 lacs on the averments that he has suffered physical and mental sufferings, financial losses, humiliation, wastage of time, ill reputation among the colleagues and loss of reputation due to false complaint filed by defendant no.1 society before the Bar Council of India dated 04.07.2000 which was ultimately rejected on 17.07.2002.
I have seen the copy of complaint filed by defendant no.1 before the Chairman, Bar Council of Delhi. In the application, it has been stated that the complainants are deeply aggrieved by the gross misconduct and blackmailing of the Managing Committee Members of the society by respondent(plaintiff herein) who is a member of the Bar Council of Delhi by institution of false and frivolous cases, taking undue advantage of his professional position as an advocate. Hence, it is clear that it was a personal complaint filed by the defendants before the Chairman, Bar Council of Delhi, hence, present suit is maintainable under section 90 of Act and no notice as mentioned in the said Act was required to be served upon the Registrar of the Society. Even if it has been assumed that it is not a personal complaint then it was for the defendants to file the complaint against the plaintiff before the Registrar of Cooperative Societies and not before the Bar Council of Delhi. Hence, it is proved that matter in dispute has nothing to do with the Suit No.82/09/2004 10/11 society but a personal one. It is also clear that present dispute is not touching the constitution or management or business of the society, therefore, present suit is not liable to be referred to Registrar of Co operative Societies for decision as per section 60 of Delhi Cooperative Societies Act.
In view of above, the issue no.2 is decided against the defendants and in favour of plaintiff and it is held that suit is not barred by the provisions of Sections 60, 90 and 93 of Delhi Cooperative Societies Act.
11. Regarding issue no.1 "Whether the plaintiff is entitled for the decree of the damage, alongwith interest as claimed?OPP"
The onus to prove this issue was on the plaintiff. Plaintiff has failed to lead any evidence to prove this issue. Therefore, this issue is decided in negative.
12. In view of findings given on issue no.1, the suit of the plaintiff is dismissed. No costs. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced in open court LALIT KUMAR
st
on 30 March, 2011 CCJcumARC(Central)
THC: DELHI
Suit No.82/09/2004 11/11