Delhi District Court
Vasudev vs . Parvinder Singh & Ors. Rca Dj No.01/21 ... on 10 March, 2023
IN THE COURT OF ADDITIONAL DISTRICT JUDGE03
EAST DISTRICT, KARKARDOOMA COURTS: DELHI.
Presided by :SH. Rajesh Kumar
RCA No. 01/2021
In the matter of: -
1. SHRI VASU DEV
S/O SHRI CHHUTTANLAL
R/O FLAT NO. 80,
NAV JAGRITI APPARTMENT
VASUNDRA ENCLAVE
DELHI-110096
2. DR. MAHENDER KUMAR
S/O SHRI BHIM SAIN
R/O FLAT NO.80,
NAV JAGRATI APARTMENT,
VASUNDRA ENCLAVE,
DELHI-110096
3. SHRI DHARAMVIR SINGH
S/O SHRI SOTI SINGH
R/O FLAT NO. 78,
NAV JAGRATI APARTMENT,
VASUNDRA ENCLAVE,
DELHI-110096.
4. SHRI RANVIR SINGH
S/O SHRI SOTI SINGH,
Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.1/30
R/O FLAT NO. 83
NAV JAGRATI APARTMENT,
VASUNDRA ENCLAVE,
DELHI-110096. ............. APPELLANTS
Versus
1. SHRI PARVINDER SINGH,
RETURNING OFFICER
NAV JAGRATI CGHS LTD.
VASUNDRA ENCLAVE,
DELHI-110096.
(C/O DIRECTORATE OF
GURDWARA ELECTION,
ROOM NO. 201-205,
2ND FLOOR, VIKAS BHAWAN,
I.P. ESTATE, NEW DELHI-110002)
2. THE REGISTRAR COOPERATIVE SOCIETIES,
GOVT. OF DELHI OLD COURTS BUILDING,
PARLIAMENT STREET NEW DELHI-110001
3. PRESIDENT/SECRETARY NAV JAGRITI
CGHS (LTD.)
PLOT NO. C-11,
VASUNDRA ENCLAVE,
DELHI-110095 ..............RESPONDENTS
Appeal filed on : 10.02.2021
Arguments heard on :07.03.2023
Judgment pronounced on :10.03.2023
JUDGMENT
Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.2/30
APPEAL UNDER SECTION 96 CPC AGAINST THE JUDGMENT ORDER DATED 11.12.2020 PASSED BY HON'BLE COURT OF MS. SAUMYA CHAUHAN, SCJ-CUM-RC, EAST, KARKARDOOMA COURT, DELHI IN CS NO.669/2020
1. Plaintiffs are in appeal against the impugned order dated 11.12.2020 passed by Ld. SCJ-CUM-RC, EAST, Karkardooma Courts, Delhi in Civil Suit No. 669/2020, titled as Vasudev & Ors. Vs. Parvinder Singh & Ors for setting aside the impugned order.
Brief Fact of case as per Appeal
2. It is submitted by the appellant/plaintiff that respondent no.1 had issued the Agenda Notice dated 11.11.2020 to the members of the Nav Jagriti CGHS Ltd. Plot No. C-11, Vasundara Enclave Delhi-110096 (the society) on the basis of the documents and the list submitted by the office bearers of the society to hold the election of the members of the managing committee and the three lists have been published on the notice board of the society without specifying the date of publication which is mandatory as per Delhi Co-operative Societies Act, 2003 and the Delhi Co-operative Societies Rules 2007. Copies of three lists, No.1 of members, no.2 of defaulters and no.3 of ceased members u/s 91 of the Act were supplied by the Society to the applicants after which they had gone through the lists as per the provisions of the act and the rules and found grave and serious lapses/ objections, illegalities and irregularities violations and contravention of the various provisions of the Act and the rules. The society had not passed the resolution under item no.1 of schedule II of the rules to determine the date, time and place for convening a general body meeting for conduct of the successor committee at least sixty clear days in advance Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.3/30 of the date of expiration of its term which expired on 15.10.2020 and copy of the same had not been supplied and published with the said lists and thereby contravened and violated the said provision of law. The respondent no.1 had not gone through the three lists submitted by the society to the Returning Officer, the respondent no.1 and issued the agenda notice dated 11.11.2020 to hold the election of the MC by publishing the election programme therein. Six members of the society had given objections and pointed out the illegalities and irregularities in those three lists of members, the defaulter members and ceased members to the respondent no.1 and respondent no.2 by their joint letter dated 23.11.2020 by handing over to the respondent no.1 on 24.11.2020 and to Registrar Cooperative Societies on 25.11.2020 respectively and those respondents had not paid any attention to those lapses, illegalities and irregularities pointed out by six members of the society.
3. The six members had pointed out the objections/illegalities/irregularities in the list of 97 members as on 30.09.2020:
Objections/illegality/irregularity of list of 97 members as on 30.09.2020.
a) The list is not in accordance with the provisions of the law provided by the society without specifying the date of publication of the same on the notice board of the society, the illegality of the members therein, and the dates of membership by succeeding members after the death of the members and the sale/purchase of the flats by the ceased members which is mandatory in view of the provision that a member can get the right to vote and contest the election only after expiry of at least one year of acquiring the membership from the date of publication of the list on the notice board Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.4/30 under rule 54 (h) of the rules.
b) The list of members is not containing the complete names of all the 110 members of the society with remarks requisite in the fact and circumstances of ceased on death or transfer of the flats on sale/ purchase by the person concerned with the dates of his / her acquiring membership to participate in the election.
c) The list of members is containing the name of Shri A.K. Kaushal and Shri G.P. Singh, Administrators and Shri Krishan Kumar, the then SDM for records as on 24.04.2015 and not on the basis of complete records available with the society after 24.04.2015 by enrolling the members in place of ceased members and the dates of acquiring membership rights so as to ascertain the eligibility of the succeeding members in place of the previous ceased members and these references made therein are illegal in violation of item 3 of schedule II of the rules.
4. The six members had pointed out the objections/illegalities/ irregularities in the list of defaulter members as under:
a) The present managing committee illegally constituted on 15.10.2017 on the basis of illegal and irregular list of members had again issued the letters dated 27.06.2020 to the members specified in that list without any justifications and grounds without any award made by any of the authorities under the Act and the rules; and without any decision in any AGBM held so far for any amount due and payable against any of the members and on the basis of a copy the list as on 31.12.2011 illegally prepared by the office bearers of the superseded MC which was not considered by Shri G.P. Singh, the then Administrator in the absence of the original record held by the said superseded MC and those members were allowed to contest and elect as Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.5/30 members of the MC constituted on election 09.03.2014. The list as on 31.12.2011 is absolutely illegal for violation of audit report dated 27.06.2017 and auditor's report dated 09.08.2020 as both are not containing names of the members with the amount allegedly due and payable to the socieity by those members specified therein and ledger accounts maintained by the society respectively. The list as on 31.12.2011 is absolutely illegal for violation of the provisions of the award dated 13.03.2012 passed by Shri G.K. Marwah, appointed by the RCS on the direction of the Hon'ble High Court of Delhi at New Delhi and the decision dated 27.10.2016 passed by the Hon'ble DCT in Appeal No. 98/2012 / DCT filed by the office bearers of the superseded MC and the present MC by which the said appeal was dismissed against the society and in favour of the claimants holding herein.
d) As per the direction made by the Arbitrator for Resolution No.6 & 7 in his award dated 13.03.2012, the Administrator held the AGBM on 29.04.2012 and decided afresh the extent of maintenance charges, the rates thereof according to the category of the flats, the parking rights and titles for parking the vehicles and liabilities of members concerned for the payment of Parking charges in fact and circumstances specified in the said AGBM and members specified in the list as on 31.12.2011 are making payments thereof as per the demands made by the society continuously w.e.f. 01.04.2012.
5. The six members had pointed out the objections/ illegalities/ irregularities in the list of ceased members as under:
Objections/ illegality/ irregularity of list of ceased members-
a) The list of ceased members under section 91 of the DCS Act is not Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.6/30 containing any dates against any of the 13 ceased members to ascertain the actual dates thereof and decide the dates of their successors of their eligibility to have their rights to vote and contest the election after expiry of atleast one year from the date of acquiring the membership of the successor members under rules 54 (h) of the rules.
b) References of the names of Shri A.K. Kaushal, Shri G.P. Singh, the then administrators and Shri Krishan Kumar, the then SDM are illegal for violations of the provisions under item no. 1 & 3 of the schedule II of the rules and the same can not be considered for deciding the eligibility of the successor members in the absence of dates of ceasing members and the dates of acquiring membership right of the society after expiry of at least one year from the dates of acquiring membership of the society under rule 54 (h) of the rules.
The names of the some members who had ceased to be the members of the society had not been specified in the list of ceased members alongwith thirteen members shown therein with the details of their successor member in the list of eligible members to be drawn separately for showing the eligibility thereof and other members have been deprived illegally from the correct, proper and material information for holding the election according to law.
6. The six members had pointed out the objections/illegalities/ irregularities in the list of Audit Report dated 27.06.2017 as under:
a) The Audit Report dated 27.06.2017 had not been conducted under the provisions of the Act and the Rules and the same were conducted under Rule 43 of the Delhi Cooperative Societies Rules 1973 had been repealed by Rule 170 of the Delhi Cooperative Society Rules 2007 w.e.f. 19.10.2007.Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.7/30
So both the Audit Report is not valid under the provisions of Act and the Rules and the same are not enforceable under the law for any election of the society.
b) the Audit Report dated 27.06.2017 and Auditors Report Dated 19.08.2020 are not showing any amount due and payable by any of the members specified in the illegal list dated 31.12.2011 forged and fabricated by the office bearers of the superseded MC without handing over the entire records of the society to the than Administrators and the MC constituted on 09.03.2014.
c) In the Ledger maintained by the society for the respective members under the provisions of the Act and the Rules had also not shown any amount due and payable from any of the members specified in the list as on 31.12.2011 forged and fabricated by the superseded MC having no authority to do so under the Act and the Rules.
d) The Audit Report in clause (vii) specifying other Assets includes the amount of Rs.5,72,626/- receivable from the members towards maintenance and other dues and the list of members as on 31.03.2017 enclosed with Audit Report is specifying the names of 26 members with specific amount of money against each totaling to Rs.5,72,626/- and there is no name of any member for any amount due and payable to the society as shown in the list as on 31.12.2011. The list of members as on 31.03.2017 was not circulated with the agenda of AGBM held in 2017 and the same were concealed and withheld by the office bearers of MC for their illegal and malafied mis-use of the power against the innocent members specified in the list on 31.12.2011.
e) The Audit Report in clause (m) specified, "However, we were Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.8/30 informed that any expenditure incurred by the society were approved in the managing committee meeting". The provision of section 31 of the Act are violated by the members of the MC for approval of the programme of the activities of the society prepared by the MC for the ensuing year for sanction of money to spend for such activities. Whereas MC has no power to prove the funds for such activities without the specific approval and sanction of funds by the AGBM.
7. The six members had pointed out the objections/ illegalities/ irregularities in the Auditors report dated 19.08.2020 as under:
a) The Auditors Report dated 19.08.2020 signed by Shri. Suni Maheshwari, prop. for SM & Associate chartered Accountants 4760, Roshnara Road, New Delhi-110007 is also invalid as the same has been audited under rule 84 (B) of the Delhi State Cooperative Society Rules 1973 which is not in existence and in force at present for that purpose as no such rules had been framed by the legislature. The Delhi Cooperative Societies Rules 2007 in force w.e.f. 19.10.2007, had been framed under the Delhi Cooperative Societies Act, 2003. So this report is not valid and enforceable under the Act and the Rules as the Audit has not been conducted thereunder.
b) The copies of the Auditors Report dated 19.08.2020 had not been supplied with all the annexures therewith to the members with the AGBM Agenda notice dated 07.09.2020 for holding the AGBM on 27.09.2020. the Auditors Report contained total 8 pages i.e. 4-9 and 21-22 only and the copies of all annexures filed before the RCS by the Auditors had not been supplied to the members.
c) The material information contained in the annexures of about 15 pages had been concealed and withheld by the MC illegally and Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.9/30 fraudulently from all the members of the society and thereby they had been deprived of the material information submitted to the RCS with the Audit report in those annexures and forged and fabricated the illegal decision in the AGBM without circulating the Audit Reports with all the annexures as submitted to the RCS.
d) It appears that the RCS or any other competent office in the office of the RCS had not gone through the contents of the Audit Reports for its validity and enforceability under the law.
e) Under item 6 of part B at page 6 of the Auditors Report, it is certified that there are no claim pending against the members and outside parties which had not been pursued properly and proceedings not launched within the period of limitation. It proves that no amount is due and recoverable from any of the members on the basis of list as on 31.12.2011 with interest @ 18 % upto May, 2020.
f) The Auditor had illegally certified that the office bearers of the society do not suffer from any disqualification contained in Section 31 of the Act read with rules 59 and 60 of the rules. It is absolutely false and baseless as the MC had incurred the expenditure for various activities which had not been approved and sanctioned by the AGBM /s 31 of the Act and thereby they had violated the provisions of Section 31 of the Act and the Rules made thereunder.
g) Rs.18,65,856/- had been spent during the period 2014 to 2019-2020 without any consideration, approval and sanction of the any AGBM held for consideration and sanction of the funds to be paid for any legal expenditure in any case of or against the society instituted in the court so far. So the violation of section 31 of the Act is apparent which constitute the Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.10/30 disqualification of the office bearers of the MC under the law and required action of the RCS accordingly, as the huge amount had been spent without any justification had ground available in that regard creating huge burden upon the members.
h) Item No. 3 of the Agenda Notice dated 07.09.2020 is to consider and approve the Budget Estimate amounting to Rs.30/- lakhs for the services mentioned there under are not specifying the item wise amounts of expenditure to be incurred for the year 2020-21, which is not in accordance with the provisions of section 31 of the Act for consideration of the all the members of the society, in the AGBM, according to the money actually required to be spent that regard, the money of Rs. 30 lakhs had already been spent without any sanction of the AGBM of the members for that ensuing year.
8. The list of the court cases at page 21 and 22 of the AGBM Agenda notice is also containing the false and incorrect information given in that regard for many cases to mislead the members of the society and to justify their illegal demands for the payment of legal expenditure in that regard. When the society is not the party in many cases how the said advocate has been appearing without any cognizance taken by the court in the complaint cases filed in the karkardooma courts.
9. Six members signing the said objections submitted before the respondents no. 1 & 2 for justifications and validity of the initiation of the election process on the basis of illegal, unfair, mischievous and and malafide lists and the invalid audit reports not circulated/ supplied to the members with the AGBM Agenda notice depriving all the members from the material information in the annexures of the Audit Report for holding Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.11/30 the election properly, fairly and legally under the provisions of law and in the interest of all the members of the society and take appropriate legal action in that regard.
10. The 13 members who had filed their claim against the illegal decision of the AGBM held on 28.10.2007 and notices dated 01.12.2007 issued to all the members was ultimately referred for Arbitration by the intervention of Hon'ble High Court in and a writ petition filed by them and ultimately the award dated 13.03.2012 was passed by the Ld. Arbitrator Shri G.K. Marwah, IAS (retd.) in favour of 110 members and against the superseded and the current managing committee. The appeal no. 98/2012/DCT filed by the office bearers of the superseded MC and joined by the then current MC was dismissed by order dated 27.10.2016.
11. The Findings, directions and orders passed in the said award dated 13.03.2012 had become final and unchallengeable under the provisions of law as no appeal or revision had been filed against the order dated 27.10.2016 before the Hon'ble High Court, Delhi so the same is binding and applicable to all the members of the society and managing committee of the society which had not been followed by the office bearers of the MC and violated the award and orders in appeal. The appellant filed the suit for mandatory and permanent injunction before the court on 28.11.2020. The respondent no. 3 filed the application u/o 7 rule 11 CPC r/w section 132 of Act and the appellant had filed the reply dated 09.12.2020 to that application and submitted the arguments on 11.12.2020. The ld. Trial Court vide order dated 11.12.2020 rejected the suit and the application u/o 39 rule 1 & 2 CPC holding that this court does not have the jurisdiction to try and decide the present suit being so barred by section 70 Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.12/30 r/w section 132 of DCS Act, 2003. The appellant being aggrieved from the impugned order dated 11.12.2020 passed by ld. Trial Court prefer the present appeal on the following grounds.
12. GROUNDS OF APPEAL.
A. The impugned order is liable to be set aside as the same is against facts, records and circumstances of the case. The impugned judgment is based upon conjectures and surmises.
B. The Ld. Trial Court had neglected to consider the facts specified in the suit and judgment titles as: (1) Dhula Bhai Vs. State of Madhya Pradesh, AIR 1969 SC 78; (2) Ashraf Kakur Vs. K.V. Abdul Khader & Ors. (2015) 1 SCC 129; (3) Central Provident Fund Commissioner & Ors. Vs. Lala J.R. Educational Society & Ors. (2016), 14 SCC 679' and (4) Marget Almedida & Ors. Vs. Bombay Catholic Cooperative Housing Society Ltd. (2012) 5 SCC 642.
C. The Agenda notice issued by the returning officer had been cancelled by the RO on the objections submitted by the members before holding the election four times on the grounds of illegalities in the lists filed by the MC before the Election Officer/ Returning Officer and the elections were postponed and held later on thereafter in 2004 by S.R. Goel, RO and held the election thereafter which was set aside by award passed in 2005, in 2006 by Sh. Prabhjot Singh, in 2013 by Shri Vinay Kaushik. D. The appellant had submitted their objections to the lists being illegal for violation of several provisions of Act, the rules and provision of the Schedule-II of the rules but they had not decided the same and violated their duties under Schedule-II under item 6 (I) & (ii). E. The Ld. Trial Court has failed to appreciate that the provisions Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.13/30 of section 70 r/w section 132 of Act are not applicable to the facts and circumstances specified in the plaint as objections had been submitted to the Returning Officer and the RCS by the Appellants for their decisions according to the provisions of the law but they failed and neglected to decide the same and the Ld. Trial Court had also not taken into consideration these facts before deciding the application under order 7 rule 11 CPC.
F. The audit report dated 27.06.2017 had not shown any amount due and payable by the appellants to the society for the year ending on 31.03.2017 and the same were illegally claimed by the respondent no.3 on the basis of illegal list dated 31.12.2011 prepared illegally by the office bearers of the superseded MC on 21.07.2011 and the affairs were managed by the Administrator appointed by the RCS who had discarded their objections by the order dated 12.10.2012.
G. The Auditor's report dated 19.08.2020 had also not shown any amount due and payable by any of the appellants to the society and if no amount is shown due and payable under the audit report by any of the members how the same is recoverable from those members later on under the provision of act and the rules.
H. The Audit Report dated 27.06.2017 and Auditor's report dated 19.08.2020 had not been prepared under the provisions of the Act and rules and the same were not circulated to the members with all the annexures filed therewith by the CA before RCS.
I. The office bearers of the society had not circulated 15 pages of the annexures of the Auditors report dated 19.08.2020 and thereby concealed and withheld the material facts specified in those annexures by Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.14/30 the CA in respect of audit prepared and submitted before the RCS for holding the General Body Meeting from all the members of the society and thereby committed the offence of cheating against all the members and the Ld. Trial Court failed to appreciate the same in the impugned order. J. The list of 97 members for 110 members had not shown any date of enrollment of membership for considering the expiry of 1 years after membership of the society for voting and contesting the election and thereby violated the provision of rules 54 (h) of the Act. K. The list of defaulter had been prepared in violations of provisions of the Award dated 13.03.2012, the provisions of decision dated 27.10.2016 passed by the Hon'ble DCT in appeal No. 98/2012 DCT rejecting their appeal filed by the society against 13 claimants and the provisions of audit report dated 27.06.2017 and auditors report dated 19.08.2020 and the provisions of the Act and rules.
L. The list of ceased members was also illegal and in violation of provisions of the Act and the rules as the names of ceased members and their successors under the law had not been specified in the list of ceased members and the list of 97 members.
M. The illegalities and the objections for the three list supplied by the society and the RO to the appellant are specified in their plaint in details but the same had not been considered by the Ld. Trial Court before passing the impugned order.
N. The appellant had prayed for the corrections of the lists in accordance with the provisions of the law and preparing the correct list of 110 members, the list of all ceased members, the list of defaulter members after considering the award dated 13.03.2020 passed by Sh. G.K. Marwah Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.15/30 and the order dated 27.10.2016 in appeal no. 98/2012/DCT filed by the society against 13 claimants dismissing the same by Hon'ble DCT. O. The contents of the suit and documentary evidence relied by the appellants will give exclusive conclusion and inference that the cause of action has ever arose in favour of the appellants and against the respondents, hence, the suit is maintainable in its present form for the relief claimed therein.
P. The principle of natural justice, equity and balance of convenience is in favour of the appellant.
Hence, the present appeal.
13. Reply to the present appeal has not been filed by respondent/defendants and ld. counsel has straightaway argued on the present appeal.
14. Arguments heard on either side and record perused. Issues in the appeal.
15. Having perused the grounds in the appeals and the trial court records in the context of written submissions made on either side, the following issues arise for consideration in the appeal:
"Whether the order passed by ld. Trial Court is suffering from the perversity, illegality and non application of mind in passing the impugned order dated 11.12.2020 "?
16. Having heard ld. Counsel for the appellants and looked into the facts and circumstances of the present case, it appears that the appellants have grievances against the co-operative society. Plaintiffs have made various allegations regarding the irregularities and illegalities against the defendant. According to the appellants/plaintiffs, the defendant no.1 who is Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.16/30 returning officer of Nav Jagrati CGHS Ltd. Vasundhara Enclave, Delhi-96, issued the Agenda Notice dated 11.11.2020 to the members of Nav Jagarati CGHS Ltd., on the basis of lists submitted by the office bearers of the society to hold election of members of managing committee. The appellants claim that these three lists were allegedly published on the notice board of the society without any date. Appellants also claims that no resolution was passed to determine the date and time for convening a General Body Meeting. Appellants further claim that after going through these lists, it was found that there were grave and serious lapses, illegalities and irregularities in the conduct of the defendants and defendants have violated provisions of Delhi Cooperative Societies Act, 2003 (hereinafter referred to as 'DCS Act') and Delhi Cooperative Societies rules 2007 (hereinafter referred to as 'rules'). The appellants have also mentioned a detailed list of objections and illegalities in the plaint as well as in the present appeal. Appellants further claimed that the said illegalities were pointed out by the appellant/splaintiffs but respondents/defendants did not pay attention to the same. Appellants/plaintiffs further alleged that these lists do not specify the date of publication, eligibility of members and dates of membership by succeeding members. These lists do not contain complete names of all 110 members of society. The appellants further alleged that the present management committee has been illegally constituted on 15.10.2017 on the basis of illegal / irregular lists of members. The said managing committee issued a letter dated 27.06.2020 without any justification and allowed the members to contest and be elected as members of managing committee vide election conducted on 09.03.2014. Appellants also alleged that the Agenda notice dated 31.12.2011 and the same is absolutely illegal and is in Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.17/30 contravention of audit report dated 27.06.2017 and 09.08.2020 and is also in violation of Arbitration Award dated 13.03.2012 passed by Shri G.K. Marwah. Appellants also claim that section 70 r/w section 132 of the Act are not applicable to the facts and circumstances specified in the plaint as objections have been submitted to returning officer and the Registrar Co- operative Society for their decision but they failed and neglected to decide the same.
17. The respondent no.3 has opposed the allegations of the appellants and submitted that the present suit is not maintainable and liable to be rejected. The respondents contended that in view of section 132 of the Act the jurisdiction of this court is specifically barred.
18. At this stage, it would be important to consider the provisions of Delhi Co-operative Societies Act, 2003. The relevant statutory provisions are reproduced herein:
"Section 2 Definitions.......
...... (c) "bye-laws" means the registered bye-laws for the time being in force and includes registered or deemed amendments of such bye-laws;...... .......(e) "committee' means the governing body of a co-operative society by whatever name called, to which the management of the affairs of the co- operative society is entrusted;.......
......(h) "co-operative society" means a society registered or deemed to be registered under this Act;......
......(r) "member" means a person joining in the application for the registration of a co-operative society and a person admitted to membership after such registration in accordance with this Act, the rules and the bye- laws, and includes a nominal or associate or joint member and the Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.18/30 Government when it subscribes to the share capital of a co-operative society'.......
........(w) "Registrar" means a person appointed to perform the functions of the Registrar of co-operative societies under this Act and includes any person appointed to assist the Registrar when exercising all or any of the powers of the Registrar........
.........Section 31. Annual general body meeting-
(1) Every co-operative society shall within a period of 180 days next after the date fixed for making-up its accounts for the year under the rules for the time being in force, call a general body meeting of its members for the purpose of- (a) approval of the programme of the activities of the co- operative society prepared by the committee for the ensuing year;
(b) election, if any, of the members of the committee other than the nominated members subject to the provisions of section 35;
(c) consideration of the audit report along with audited accounts and the annual report;
(d) disposal of the net profits; and
(e) consideration of any other matter which may be brought forward in accordance with the bye-laws.......
.........Section 32. Returns to be filed to the Registrar after annual genera body meeting-Every year within thirty days of holding of annual general body meeting, the committee shall file returns relating to its constitution, business and allied matters to the Registrar as prescribed and if the returns are not filed, it shall be an offence under this Act and the persons responsible shall be penalised in accordance with the provisions of this Act......
Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.19/30.......Section 34. Constitution of committee-The general body meeting of a co-operative society shall constitute a committee as prescribed and in accordance with the bye-laws and entrust the management of affairs of the co-operative society to such committee......
......Section 36. Removal of committee or its officer- (1) A motion for expressing lack of confidence in the committee or any of its officer may be made in a special general body meeting convened for the purpose.
.....Section 40. Expulsion of members-Any member of a co-operative society (other than a co-operative housing society) may be expelled by a resolution passed by the committee of the co-operative society subject to the approval of such resolution by the Registrar if-
(I) the member has wilfully deceived the co-operative society by false document to obtain the membership of such co-operative society; or
(ii) the member incurs any of the disqualifications for being a member of the co-operative society; or
(iii) the member has brought disrepute to the co-operative society or has done any other act detrimental to the interest and proper working of the co- operative society:
.........Section 60. Audit-
(1) A co-operative society shall get its accounts audited annually by an auditor selected from the panel prepared by the Registrar in the prescribed manner within the period of one hundred twenty days from the prescribed date for making up its account for the year.......
.......Section 62. Inquiry by Registrar -
(1) The Registrar may on the basis of findings of audit or inspection under Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.20/30 section 61 or request from any creditor, or not less than one-thirds of the total members of the co-operative society, by general or special order in writing in this behalf, hold an inquiry or direct any of the subordinate officials authorised by general or special order in this behalf to hold an inquiry in respect of such matters and such period as may be specified in this order, into the constitution, business, management and financial affairs of a co-operative society and such enquiry shall be completed within such period as may be specified in the order but not exceeding ninety days...... .......Section 70. Disputes which may be referred for 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 co- operative society or its committee against a paid employee of the co-operative society arises-
(a) among members, past members and persons claiming through members, past members and deceased members; or
(b) between a member, past member or person claiming through a member, past member or deceased member and the co-operative society, its committee or any officer, agent or employee of the co-operative society or liquidator, past or present; or
(c) between the co-operative society or its committee and any past committee, any officer, agent or employee, or any legal representatives of any deceased officer, deceased agent, or deceased employee of the co- operative society; or
(d) between the co-operative society and any other co-operative society, between a co-operative society and liquidator of another co-operative Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.21/30 society or between the liquidator of one co-operative society and the liquidator of another co-operative 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 disputes. (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 a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court. (3) The Registrar shall decide the aforesaid question within a period of ninety days and in case the aforesaid question, as enumerated under sub-
section (2) is not decided within the stipulated period of ninety days, the dispute shall be deemed to have been admitted under section 70 of this Act and the same shall be referred for decision under section 71. (4) (a) Notwithstanding anything contained in the Limitation Act, 1963 (36 of 1963), but subject to the specific provisions made in this Act, the period of limitation in the case of a dispute referred to the Registrar under sub- section (1) shall-
(I) when the dispute relates to the recovery of any sum including interest thereon due to a co-operative society by a member thereof, be computed from the date on which such member dies or ceases to be member of the co- operative society, be three years;
(ii) save as otherwise provided in sub-clause (iii), when the dispute relates to any act or omission on the part of any of the parties referred to in clause
(b) or clause (c) of sub-section (1), be six years from the date on which the act or omission with reference to which the dispute arose or took place;
(iii) when the disputes relates to a co-operative society which has been Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.22/30 ordered to be wound up under section 95 or section 96 or section 97 or in respect of which an administrator has been appointed under section 37, be six years from the date of the order issued under section 95 or section 96 or section 97 or section 37, as the case may be; and
(iv) when the dispute is in respect of an election of an officer of a co- operative society be thirty days from the date of the declaration of the result of the election.
(b) The period of limitation in the case of any other dispute except those mentioned in the foregoing clause which are required to be referred to the Registrar shall be regulated by the provisions of the Limitation Act, 1963 (36 of 1963), as if the dispute was a suit and the Registrar a civil court.
(c) Notwithstanding anything contained in clauses (a) and (b), the Registrar may admit a dispute after the expiry of the period of limitation, if the applicant satisfies the Registrar that he had sufficient cause for not referring the dispute within such period and the dispute so admitted shall be a dispute which shall not be barred on the ground that the period of limitation has expired.
(5) Save as otherwise provided under this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to all arbitrations under this Act, as if proceedings for arbitration were referred for settlement or decision under the provisions of the Arbitration and Conciliation Act, 1996......
........Section 105. Execution of orders, etc. - Every decision award or order duly passed by the Registrar or the arbitrator or the Tribunal, or the Government under section 31, section 32, section 33, section 66, section 71, section 104, section 110, section 112, section 114, section 115, section 116 Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.23/30 or any other provisions of this Act shall, if not carried out-
(a) where the decision, award or order provides for the recovery of money, be executed according to the law for the time being in force relating to the recovery of land revenue:
Provided that an application for the recovery of anysum in the manner aforesaid shall be made to the Collector and shall be accompanied by a certificate signed by the Registrar or by any person subordinate to him and empowered by the Registrar in this behalf;
(b) in any other case be executed by the Registrar or any person subordinate to him and empowered by the Registrar in this behalf, in the same manner as is provided in the case of a civil court by the Code of Civil Procedure, 1908 (5 of 1908).......
........Section 112. Appeals - (1) Subject to the provisions of section 113, an appeal shall lie under this section against -
(i) any decision made under section 70;
(3) No appeal shall lie under this section from any decision or order by the Registrar in appeal.......
......Section 129. Notice necessary in suits - No suit shall be instituted against a co-operative society or any of its officer in respect of any act touching the business of the co-operative 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. Bar of jurisdiction of civil or revenue courts - (1) Save as Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.24/30 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;
(b) the removal of the 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.
(2) While a co-operative society is being wound up, no suit or other legal proceedings relating to the business of such co- operative society shall be proceeded with or instituted against the liquidator as such or against the co- operative society or any member thereof, except by leave of the Registrar and subject to such terms as he may impose.
(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."
19. On reading of above provisions, it is evident that DCS Act is a self-contained Act and if any dispute arises between the members and member and co-operative society, the same shall be referred under section 70 of DCS Act to the Registrar of Co-operative Societies for adjudication and same cannot be adjudicated in Civil Courts and as per the section 132 of DCS Act, Civil Courts have no jurisdiction to adjudicate the matter between members and co-operative society. On reading of the above provisions what comes out is that legislature sought to regulate the co- operative group housing societies which are registered under DCS Act, and for that purpose, there are detailed provisions of formation of committee, Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.25/30 holding of meetings, holding of elections and expulsion of members. There are also detailed provisions regarding the audit of societies accounts and enquiry made by the registrar. The Legislature has barred the jurisdiction of Civil Courts as per section 70 of the DCS Act, with respect to dispute touching the constitution and business of management society. Hence, for a suit to be barred u/s 70 of DCS Act it needs to satisfy twin requirements namely (i) dispute should be between members of registered society and
(ii) the dispute must touch upon the management, constitution and business of the society.
20. In the present case, appellants prayed that the defendants/respondents be directed to rectify the list in accordance with the provisions of DCS Act and rules and as per arbitration award of Shri J. K. Marwah. Appellants also prayed that defendants / respondents be directed to withdraw the Agenda notice dated 11.11.2020 and defendant no.2- The Registrar of Co-operative Society be directed to appoint an administrator to manage the affairs of the society and hold election, and also defendants be restrained from conducting election till the proper and correct list have been drawn. Appellants/ plaintiffs are admittedly members of the society and respondent no.3/ defendant no.3 is the society which is being represented through its president/ secretary. The appellants had filed the Civil Suit for permanent and mandatory injunction seeking the direction from the court restraining the defendants/ respondents from holding elections of the management committee of the society and have also sought that the directions be issued to rectify the list and withdraw the Agenda notice dated 11.11.2020. This dispute touches upon the the constitution, management or Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.26/30 the business of the co-operative society. Ld. Trial Court has rightly relied upon the judgment titled as Narender Kumar Jain Vs. Govt. of NCT of Delhi WP (C) 6955/2007: date of decision 21.10.2008, wherein it was held by Hon'ble High Court of Delhi that the election dispute under Delhi Co- operative Societies must be decided through Arbitration as per section 70 of the act. The Hon'ble High court observed that "Having given the controversy careful cogitation, our conclusion is that matters relating to the elections would stand covered by Section 70 of the DCS Act. Disputes of this category must,therefore, be decided through arbitration. On a perusal of the entire gamut of Section 35 disputes arising therefrom would relate to secret ballots, term of office of the elected members, holding or failure to hold elections, eligibility or disqualification for sending for elections and representation on behalf of the Government if it has subscribed to the share capital of cooperative society. This confusion could have been avoided if care had been taken in drafting of Sections 35 and 70. Since it has not been the case of the Petitioners before us at any stage that the Appeal decided by the Tribunal was not maintainable, we think it inexpedient to set aside the impugned Order on this technical ground. It is obvious that all the parties proceeded on the assumption that the Appeal before the Tribunal was maintainable. There can be no gainsaying that it is only in an exceptional case that evidence is recorded by the Appellate Forum. Disputes pertaining to elections invariably raise disputed questions of fact which cannot conveniently be decided in appellate proceedings. This is another reason which has persuaded us to hold that election disputes, under the DCS Act, must be decided through arbitration, as per Section 70 of the DCS Act and against the decision or Award published thereon, an appeal would lie under Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.27/30 Section 112. We are fortified in this view by the decision in New Friends Cooperative House Building Society Ltd. -vs- Rajesh Chawla, (2004) 5 SCC795 where it has been observed that "separate forums are available in the statutory governing and functioning of cooperative society.....Assuming without accepting that the stand taken for the alleged defaulters can be entertained and gone into in the course of conduct of election, it could, if at all, be only for the limited purpose of election and the right of the Society or the member for having their rights and liabilities finally and effectively get adjudicated by arbitration proceedings statutorily provided for under the statute in lieu of proceedings before the civil court, and the conclusions arrived at or recorded in the course of election proceedings shall be only without prejudice to and ultimately subject to all or any such proceedings and decisions by such statutory forums".
21. In view of the above judgment, it is evident that the dispute relating to election is a dispute which touches upon the constitution, management or business of co-operative society among members which can be referred to Registrar appointed under the provisions of DCS Act and Rules and no Civil Court can exercise jurisdiction over such matters. The present suit also relates to election of members of managing committee and other connected matters, which primarily touches the constitution, management or the business of co-operative society among members, hence, as per the provisions of DCS Act and its rules Civil Court cannot exercise jurisdiction over such matters. The plaintiffs/ appellants had tried to circumvent the provisions of DCS Act and its rules by filing the suit Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.28/30 which is barred by virtue of section 70 of DCS Act and rules. The claim of the appellants/ plaintiffs regarding illegalities and irregularities in preparation of three lists of members, issuance of Agenda notice dated 11.11.2020 to the members of the society by respondent no.1/ defendant no.1 to hold the election and also prayer of the plaintiffs to restrain the defendants from holding elections till correct list of members is prepared, cannot be said to be anything but touching upon the management and business of the society. The activities of holding General Body Meeting, expenditure of society funds, audit reports, cannot be said to anything but touching upon the management and business of society. The DCS Act has detailed provisions for audit of society accounts and expulsion of members. All the allegations of the appellants/ plaintiffs deal with matter covered by section 70 of DCS Act and rules. The documents filed by plaintiffs/ appellants with the plaint also touches upon the business of the society. As per law, the court cannot give a pass to clever drafting which tries to circumvent the mandatory provision of a law which excludes jurisdiction of civil court. Even the plaintiffs/ appellants have admitted that objections regarding the dispute have been submitted to returning officer and registrar of co-operative societies for their decision according to provisions of law, but the appellant/ plaintiff further claims that they failed and neglected to decide the same. This court is of the view that issue regarding the present dispute, is already pending before Registrar of Co-operative Society, this court or ld. Trial Court cannot given any finding regarding the dispute, in order to avoid multiplicity of proceedings and conflicting judgment, more so when the civil court lacks jurisdiction to decide the same.
Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.29/3022. In view of the above discussion, this court is of the view that there is no infirmity or illegality in the order passed by Ld. Trial Court. There is no merit in the present appeal. The impugned order dated 11.12.2020 is hereby affirmed. Present appeal is dismissed.
Appeal file be consigned to record room.
Digitally signed RAJESH by RAJESH KUMAR KUMAR Date: 2023.03.10 17:02:53 +0530 Typed to the dictation directly, (Rajesh Kumar) corrected and pronounced in Additional District Judge03, open court on 10.03.2023 East/KKD Courts, Delhi. Vasudev Vs. Parvinder Singh & Ors. RCA DJ No.01/21 Page No.30/30