Interim Order 20

Order Details: COPY OF ORDER
Pdf Text: Civ Suit 195/2023
Sushil Kumar Jain Vs. Kaymes Co-operative Group Housing Society Ltd.
pg. no. 1/11
IN THE COURT OF SH. GAURAV SHARMA
JSCC-CUM-ASCJ-CUM-GUARDIAN JUDGE, EAST
KARKARDOOMA COURTS/DELHI
CNR No. DLET030003682023
Civ Suit No. 195/2023
Sh. Sushil Kumar Jain
S/o Late Sh. Ajit Prasad Jain
......Plaintiff
Versus
1. Kaymes Co-operative Group Housing Society Ltd.
Through It’s President
2. Sh. Manoj Sharma
President
3. Sh. S.P. Singh
Secretary
......Defendants
ORDER
18.03.2025
1. Application under Order 7 Rule 11 CPC filed by
Defendants is hereby Dismissed.
2.
Pithily put, the case of the plaintiff is that he is the
absolute owner of Flat bearing no. 78, Geeta
Apartments, Geeta Colony, Delhi-110031. (Flat No. 78
having been originally allotted to one K Subramanyam
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from whom the plaintiff purchased it later) It is
categorically submitted that plaintiff is not the member
of the defendant no. 1 Society. As per the plaintiff, there
is no justification / need for continuance of defendant
no. 1 Society as its purpose of constructing the flats /
allotting them stands over. It is further claimed that
though defendant no. 1 Society has been collecting
money in the name of maintenance in return for
providing facilities, yet, despite being asked, has never
rendered a true, faithful and complete account of the
money so collected. Instead, as per the plaintiff, it has
been indulging in irresponsible behaviour. Acting as
such, it is the plaintiff’s case that without issuing any
notice / demand / intimation, all of a sudden on
27.09.2022, the defendant no. 1 Society on 27.09.2022
displayed a notice on the main entrance notice board
stating therein that an amount of Rs. 5,47,767/- was due
on part of the plaintiff. Upon getting to know of the
same, a notice was issued to the defendant no. 1 Society
to apprise the plaintiff of the details regarding the
demand raised, which was duly received by defendant
no. 2 as well but no reply was given. In fact, acting in a
vindictive manner, it is averred that on 11.02.2023, the
defendants stopped household goods of the plaintiff
from being taken to his flat and hindered his free
movement. Police had to be called and a written
complaint was also filed by the plaintiff. In such a
scenario, it is the plaintiff grievance vide the present
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suit that a true and faithful account of the dues raised
against Flat No. 78 belonging to the plaintiff must be
rendered and a decree of permanent injunction must be
passed in his favour restraining the defendants from
interfering in the plaintiffs’ peaceful enjoyment of his
property i.e. Flat bearing no. 78, Geeta Apartments,
Geeta Colony, Delhi-110031.
3. Upon summons of the suit having been issued to the
defendants, appearance was entered into. It is to be
noted that no WS has been filed by the defendants and
only the application in question under Order 7 Rule 11
CPC has been filed. As per the same, all the claims of
the plaintiff have been denied. Though it is admitted
that the plaintiff is not a member of the defendant no. 1
Society, but it is nevertheless claimed that he falls
under the category of “a person claiming through a
member”. It has been further stated that the present suit
is not maintainable as being barred by Section 132 r/w
Section 70 of Delhi Cooperative Society Act, 2003. In
fact, it is also averred that due to non issuance of
statutory notice U/s 129 of the aforesaid Act as well,
the present suit is not maintainable. On such grounds,
the defendants have sought rejection of the plaint under
O 7 R 11(d) CPC.
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4. Reply to the application as aforesaid was filed by the
plaintiff and all contentions of the defendants were
denied, reiterating the submissions made in the plaint.
5. Arguments heard. Record perused.
6. It is settled that for the purposes of deciding an
application under Order 7 Rule 11 CPC, only the plaint
and accompanying documents have to be looked into
and averments made by the defendant either in WS or
in application under Order 7 Rule 11 CPC cannot be
considered.
7. Before proceeding, it shall be in fitness of things to set
out the provisions of law with which we are concerned
with first. They are enumerated as below :
132. Bar of jurisdiction of civil or revenue 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 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.
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(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
cooperative 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.
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 cooperative 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
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(c) between the co-operative 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
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 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.
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(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 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.
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(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.
8. Having noted the legal provisions as aforesaid, we may
now proceed to the application in question. Looking at
the plaint filed in the present suit, it is seen first of all
that the factum of the plaintiff not being member of the
defendant no. 1 Society in itself appears to be a rather
peculiar assertion. This is so since generally in a
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pg. no. 9/11
Cooperative Society, upon transfer of a flat, the new
purchaser is allotted his share in the Cooperative
Society by virtue of which he does indeed become a
member thereof as well. Normally, the by-laws of the
Cooperative Society are attuned to this sort of
arrangement only and there does not exist a scenario
where a person, even after purchasing a flat, still
remains a non member. That also in fact curtails the
access to various kinds of services of such people to
various kinds of services offered by the Society as only
members are liable to exercise rights in that regard as
per the statutory stipulations contained in the Delhi
Cooperative Society Act, 2003 as well. In the plaint, at
paragraph no. 5, the plaintiff has mentioned that
defendant no. 1 has been collecting money in the name
of providing facilities / services, an account of which
however is not being provided. That obviously entails
that the plaintiff also has been paying such money in
return of such facilities / services. If that be so, dispute
in that regard, does fall within the meaning of
“management or business of a Cooperative Society” as
stated under Section 70 of Delhi Cooperative Society
Act, 2003 and consequently, ousting jurisdiction of this
Court to entertain a suit with regards the relief sought
of rendition of accounts vide clause (a) of the plaint as
provided in Section 132(1)(c) of Delhi Cooperative
Society Act, 2003. (notwithstanding the unique
arrangement of the plaintiff, despite being a non
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member and still availing services and the defendants
as well admitting to him being non member)
9. Despite the above, it is also seen that vide prayer clause
(b), the plaintiff has also sought the relief of permanent
injunction. With regards the same, it has been stated in
the plaint that due to the alleged demand raised by the
defendant Society and non payment thereof, the
household goods of the plaintiff were obstructed to be
taken to his flat on 11.02.2023. His free movement was
interrupted and the goods were stopped at the entry gate
of the complex. Such an act on part of the defendant
Society clearly does not fall within the meaning of
“management or business of a Cooperative Society” as
stated under Section 70 of Delhi Cooperative Society
Act, 2003 as it has no where been shown that such
power to restrict movement of goods etc of a non
paying member/non member was authorised by the by-
laws of the defendant no.1 Society. Consequently, with
respect to the said relief of injunction, it cannot be said
that the jurisdiction of this Court is ousted as provided
in Section 132(1)(c) of Delhi Cooperative Society Act,
2003.
10.The position that arises from the above discussion is
that qua prayer clause (a), the plaint may well be liable
to be rejected due to being barred by law, i.e. Section
132 r/w Section 70 of Delhi Cooperative Society Act,
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2003 but as for prayer clause (b), the suit is seen to be
maintainable qua the relief of injunction sought. It is
settled law that a plaint cannot be rejected in part. The
same has been laid down by superior courts from time
to time, as in Sejal Glass Ltd. Vs. Navilan Merchants
Pvt. Ltd. (2018) 11 SCC 780, Madhav Prasad Aggarwal
Vs. Axis Bank Ltd. (2019) 7 SCC 158 and recently in
Geetha Vs. Nanjundaswamy (2023) SCC OnLine SC
1407. In view of the same therefore, the application
filed by the defendant Society cannot be favourably
considered as part rejection of plaint qua one prayer is
not permissible by law. Accordingly, it stands
Dismissed.
11.No costs.
(Gaurav Sharma)
JSCC-cum-ASCJ-cum-Guardian Judge
East/KKD Courts/Delhi
18.03.2025
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