Sh sarvesh chopra vs the registrar on 18 october, 2010

Sh. Sarvesh Chopra vs The Registrar on 18 October, 2010

Delhi District Court Sh. Sarvesh Chopra vs The Registrar on 18 October, 2010 Author: Sh. Ajay Goel IN THE COURT OF SH. AJAY GOEL, LD. SCJ CUM RC (CENTRAL)DELHI S−1078/06/81 In the Matter of : Dewan Suraj Prakash Chopra (Since Deceased represented through LRs) 1. Sh. Sarvesh Chopra, S/o Late Dewan Suraj Prakash Chopra, R/o M−140, Greater Kailash Part−II, New Delhi.

2. Smt. Sunila Chopra, W/o Late Sh. Subhash Chopra, R/o M−127, Greater Kailash, Part−II New Delhi (Widow of predeceased son, Sh. Subhash Chopra, of plaintiff) 3. Sh. Shivi Chopra, S/o Late Sh. Subhash Chopra, R/o M−127, Greater Kailash Part−II, New Delhi.

(Son of predecease son, Sh. Subhash Chopra, of the plaintiff).

4. Mrs. Sushma Malhotra, W/o Sh. Kanwal Nain Malhotra, R/o 74, Nehru Nagar, Agra.

5. Mrs. Kavita Mehra, W/o Sh. Kuldip Mehra, R/o 15/3, Madan Mohan Malviya Marg, Lucknow.

.......

Suit No. 1078/06/81 VERSUS 1. The Registrar, Delhi Cooperative Societies, Delhi Administration, Courts Building, Parliament Street, New Delhi.

2. The Lt. Governor, Raj Niwas, Delhi.

3. The Secretary, Land & Building Departments, Delhi Administration, Vikas Bhawan, I.P. Estate, New Delhi.

Indian Kanoon - http://indiankanoon.org/doc/173974768/

1

Sh. Sarvesh Chopra vs The Registrar on 18 October, 2010

4. Sarai Jullaina cooperative House Building Society Ltd. 2/1, Sarai Jullaina, Okhla Road, Post Office Jamia Nagar, New Delhi−110025.

5. Delhi Development Authority Vikas Minar, New Delhi, Through its Secretary.

Date Date Date Date

of of of of

................Def

Institution: 29.10.1981 Assignment to this court: 11.12.2008 Arguments: 18.10.2010 Decision: 18.10.2010

JUDGMENT

1. Vide this judgment, I shall dispose off suit filed by the plaintiffs against defendants. The Suit No. 1078/06/81 Page. 2/13 facts of the case are that late Smt. Krishna Chopra Wife of the plaintiff Dewan Suraj Prakash Chopra was a member of the Sarai Jullaina Cooperative house Building Society Ltd. 2/1, Sarai Jullaina Okhla Road, Post office Jamia Nagar, New Delhi− 110025 and she was allotted in her life time in April 1973 by the said society a plot of land bearing No. 124, measuring 297.7 sq.yrds situated in Sukhdev Vihar, Jamia Nagar, New Delhi. As stated Smt. Krishna Chopra died on 10.4.1981 survived by the plaintiff, her husband two sons sh. Subhash Chopra and Sh. Sarvesh Chopra, and two daughters, Smt. Sushma Malhotra and Smt. Kavita Mehra. As stated in her life time she had executed her last will and testment dated 24.1.1978 by which she had bequeathed all her movable and immovable properties in favour of the plaintiff. As stated by operation of law, the plaintiff having inherited the estate of late Smt. Krishna Chopra absolutely is entitled to all her rights and interests in the allotment of the plot of her membership of the society and other heirs of late Sm.t Krishna Chopra have accepted her said will. It was stated that way back in nineteen fifty, the society was registered under provisions of the Bombay Cooperative Societies Act, 1925 as extended to the Union Territory of Delhi and the Delhi Cooperative Societies Rule 1950 framed under the said act and Smt. Krishna Chopra was enrolled as a member of the society in 1961 and at that time she fulfilled all the necessary qualification for becoming Suit No. 1078/06/81 Page.

3/13 a member of the society including that she was not owning in her name or in the name of any of her family member whether dependent or otherwise any plot of land or building in Delhi or even elsewhere. As stated in April 1973, Smt. Krishna Chopra was alloted the plot by the society and was called upon to clear the dues and also to file an affidavit to the effect that she or her husband or her children do not own any house or plot of land in the Union Territory of Delhi and she paid all the dues of the society. As stated in the meantime in the year 1970, immovable property bearing No. 7−A/27, W.E.A. Karol Bagh, New Delhi was acquired by Smt. Krishna Chopra from her mother− in−law Smt. Guran Devi, the letter being very old and in a delicate state of health. As stated the transfer had taken place on account of its own peculiar family circumstances and Smt. Krishna Chopra therefore approached the society for getting the allotment transferred in the name of her elder son Sh. Subhash Chopra who was sui−juris self− supporting and not dependent upon her. As stated she wrote numerous letters to the society in this behalf but the society always insisted that she must furnish the affidavit. It was stated that prior to the letter dated 30.11.1977, the society had Indian Kanoon - http://indiankanoon.org/doc/173974768/

2

Sh. Sarvesh Chopra vs The Registrar on 18 October, 2010

passed a Resolution bearing No.575 in its annual general body meeting held on 29.8.1976 as communicated to Smt. Krishna Chopra vide the society's registered A.D.letter bearing No. 3000, dated 17.7.1977 to the effect that she was declared defaulter on account of Suit No. 1078/06/81 Page.

4/13 her non−submission of the requisite affidavit due to which she had not been able to execute the sub−lease of the allotment plot in her favour. As stated by this letter, she was called upon and given an opportunity to represent her case before the General body and a special general body meeting was proposed to be held on 28.8.1977 at 3.p.m. and Smt. Krishna Chopra got her representation dated 25.8.1977 forwarded to the Society through her counsel Sh. Pramod K. Seth, advocate. It was stated that by letter dated 15.9.1977 received from the Society, Sh. Pramod K. Seth was informed that the General Body took unanimous decision of declaring Smt. Krishna Chopra as defaulter on account of non−submission of the requisite affidavit to the fact that she, her husband or her dependent children do not own any house or plot of land in the Union Territory of Delhi. As stated the show− cause notice dated 19.12.1977 and 11.1.1978 purporting to be issued under rule 36(1) of the Delhi Cooperative Societies Rules 1973 were also received by Smt. Krishna Chopra from the Deputy Registrar Cooperative Societies, Delhi calling upon her to explain her position with regard to the resolution of the society to expel her from the membership. As stated Smt. Krishna Chopra had not received any communication form either the Registrar, Delhi Cooperative Societies or the Land & Building Department of the Delhi Administration though letter dated 19.3.1980 of the society contained references to their letters, she made personal Suit No. 1078/06/81 Page. 5/13 approaches to the society for obtaining copies of the said letters of the Registrar, Delhi cooperative societies and the Land & Building Department. It was further submitted that cheque received by Smt. Krishna Chopra under cover of the Society's letter dated 19.3.1980 was not encashed by her and is still lying with the plaintiff. As stated under rule 36(3) of the Delhi Cooperative Societies Rules 1973 the resolution of the society expelling a member becomes effective from the date of approval of the Registrar, Delhi cooperative societies thus, the membership of Smt. Krishna Chopra stands cancelled w.e.f. 11.3.1980. It was stated that Bombay Cooperative Societies act 1925 in its application to Delhi was replaced by the Delhi Cooperative Societies Act 1972 on 2.4.1973 framed under the said act were also promulgated and came into force on the same day. As stated plaintiff sent the defendants a registered notice U/s 90 of the Delhi Cooperative Societies act 1972 dated 22.6.1981 which was served upon all the defendants on 23 /24.6.1981. Hence plaintiff prayed for granting the relief as mentioned in the plaint.

2. Written Statement was filed by the defendant No. 1 to the plaint filed by the plaintiff in which preliminary objections were raised stating that no notice U/s 90 of the Delhi State Cooperative Societies act 1972 has been served by the plaintiff which is statutory before filing this present suit and hence deserves dismissal. On merits, it was stated Suit No. 1078/06/81 Page. 6/13 that ruling cited of the Division Bench of Delhi High Court is not applicable in the present case. As stated the territorial jurisdiction of this hon'ble Court was admitted but since the matter of dispute under section 61(b) of the Delhi Cooperative Societies Act 1972 it is beyond the jurisdiction of this hon'ble court to adjudicate upon.

3. Separate written statement was filed on behalf of the defendant No. 2 and 3 to the plaint in which preliminary objections were raised and it was stated that suit is bad for misjoinder and non−joinder Indian Kanoon - http://indiankanoon.org/doc/173974768/

3

Sh. Sarvesh Chopra vs The Registrar on 18 October, 2010

of necessary parties. On merits, it was stated that letter dated 17.3.1980 was written by the O.S.D. Lit. (Delhi Administration) to the secretary of Society concerned. It was further submitted that Bombay Cooperative Societies Act 1925 was applicable to Delhi and the same had been replaced by Delhi Cooperative Societies Act 1972. The other contents of the plaint were denied.

4. Separate written statement was filed on behalf of the defendant No. 4 to the plaint in which preliminary objections were raised and it was stated that suit is barred for the reliefs claimed and the jurisdiction of the civil court for the relief claimed is barred by the provisions of Delhi Cooperative Societies Act and the rules framed thereunder. On merits, it was stated that Smt. Krishna Chopra was a member of the Sarai Jullaina Cooperative House Building Society Ltd. and was alloted in her life time in April 1973 a plot of land bearing No. 124 measuring 291.7 sq. yrds situated in the colony known as Suit No. 1078/06/81 Page. 7/13 Sukhdev Vihar, New Delhi. As stated this allotment was made by draw of lots and the perpetual lease in respect of the plot had to be granted subject to the fulfilment by Smt. Krishna Chopra of the conditions laid in the bye−laws of the society and the provisions of the act and the rules. It was stated that an affidavit was called from her by numerous letters and reminders addressed to her but she did not comply with the requisitions and as a last resort the allotment was cancelled. It was admitted that the society was registered in 1960 and it was under the provisions of the Bombay Cooperative Societies Act 1925 as extended to Delhi and the Delhi cooperative Societies Rules 1950 under the said act. It was further submitted that Smt. Krishna Chopra ceased to be a member as soon as she acquired property in Karol Bagh by inheritance and forfeited her right to the allotment of the plot in her favour. The other contents of the plaint were denied.

5. Separate replication were filed by the plaintiffs to the written statements filed by the defendants No. 1,2 ,3 and 4 and contents of plaint were reiterated and reaffirmed and those of WSs were denied.

6. During proceedings defendant No. 1 did not appear in the matter. Accordingly, defendant No. 1 was proceeded ex−parte vide order dated 23.2.2001.

7. Vide order dated 16.5.1983, on the pleadings of parties the following issues were Suit No. 1078/06/81 Page. 8/13 framed:− 1) Whether this court has no jurisdiction to try the present suit in view of provisions of Delhi Cooperative societies Act, 1972?OPD 2) Relief.

8. Vide order dated 28.9.1983, on the pleadings of parties the following issues were framed again including of issues framed vide order dated 16.5.1983:− 1) Whether suit is bad for want of Notice U/s 90 of Delhi State Cooperative Societies Act 1972?OPD 2) Whether the plaintiff has an equally efficacious remedy U/s 80 of Delhi Cooperative Societies Act, 1972? If so, to what effect?OPD Indian Kanoon - http://indiankanoon.org/doc/173974768/

4

Sh. Sarvesh Chopra vs The Registrar on 18 October, 2010

3) Whether this court has got no jurisdiction to try the present suit?OPD 4) Whether the plaintiff is entitled to relief of declaration as prayed for?OPP 5) Whether the plaintiff is entitled to relief of injunction as prayed for?OPP 6) Relief.

9. In evidence, plaintiff examined one witness namely Sh. Sarvesh Chopra in support of his case.

10.In defence the defendant examined one witness namely Sh. Anil Verma as DW−1 in support of his case.

Suit No. 1078/06/81 Page. 9/13 11. I have gone through the record and have heard the counsels for both parties. My issue−wise finding is given below:− 12. Issue No. 1. Whether suit is bad for want of Notice U/s 90 of Delhi State Cooperative Societies Act, 1972?OPD:− Under this issue, the plaintiffs were required to prove the issuance of notice U/s 90 of Delhi State Cooperative Societies Act, 1972. Ex− P−7 is the notice issued U/s 90 of the Delhi State Cooperative Societies Act, 1972. PW−1 has proved the same. The postal receipts are also available on the record. In view of the same, the defendants did not press his contentions though the onus was upon him. Thus, the issue No.1 is decided in favour of the plaintiffs and against the defendants.

13. Issue No. 2. Whether the plaintiff has an equally efficacious remedy U/s 80 of Delhi Cooperative Societies Act, 1972? If so, to what effect?OPD and Issue No. 3. Whether this court has got no jurisdiction to try the present suit?OPD:− Both these issues are taken up together. The plaintiffs were required to prove that they were having no other alternative efficacious remedy. In the present case, the membership was cancelled and as per section 80 of the Act, the concerned aggrieved party can move to appropriate authority U/s 61(b) on the reference made U/s 60 of Delhi State Cooperative Society Act, 1972, for adjudication of the case. The jurisdiction of the court Suit No. 1078/06/81 Page. 10/13 is exclusively barred if the dispute is touching the management and business of the cooperative society. The act has given full remedy which could have been availed. As per section 80, the Lt. governor can intervene. The plaintiff has stated that it is not clear as to whether expulsion order was ratified or not by the Registrar. The pleadings in this aspects are very much clear. The plaintiff has approached the court for declaring the expulsion order as null and void and in the WS filed by defendant No. 4, it was mentioned that expulsion has become final in view of the order of relevant authority. In the evidence also Ex. P−4 was produced by plaintiff on the record which talks about the letter dated 11.3.80 and 17.3.80. Ex. P−5 is a cheque returned to the plaintiff.

Thus in these circumstances, it is ample clear that the plaintiff should have availed the remedy available in the act for redressal instead of approaching the court. New plea has been raised during the course of arguments that order of Registrar is not available on the record. The defendants have Indian Kanoon - http://indiankanoon.org/doc/173974768/

5

Sh. Sarvesh Chopra vs The Registrar on 18 October, 2010

not also placed on record the order of Registrar then it can be ordered that Registrar will look into the matter first and decide the show cause notice issued to the plaintiffs and will consider the reply of the plaintiffs which is available on the record, if already not considered and if the order of the expulsion of the deceased Krishna Chopra is already confirmed by the Registrar vide letters dated F/46/2025/79/Housing/Cooperative/3278 dated 11.3.80 confirmed by Land & Building Suit No. 1078/06/81 Page. 11/13 Department then the plaintiffs are at liberty to avail the other remedy which is available in the act against the order of Registrar. Thus, it is held that in view of the provisions contained in the act, this court has no jurisdiction to try the present suit. Thus, issues no. 2 and 3 are decided in favour of the defendants and against the plaintiffs.

14. Issue No. 4. Whether the plaintiffs are entitled to relief of declaration as prayed for?OPP and Issue No. 5. Whether the plaintiffs are entitled to relief of injunction as prayed for?OPP:− As issues No. 2 and 3 has been decided in favour of the defendants and against the plaintiffs hence plaintiff is not entitled for any declaration. Hence issue No. 4 is decided in favour of the defendants and against the plaintiffs. However, in issue No. 5 the relief sought can be of three types. Firstly, the plaintiffs have sought the relief for enrolling the plaintiff as member of defendant No. 4 in place of Krishna Chopra which is dependent on finding of issue of declaration. Hence, it cannot be considered by this court as only Registrar or other authorities mentioned in the act can decide the same. The other relief is restoration of the allotment which is also dealt in the same fashion but in the facts and circumstances of the case, it can be made out that till remedies are availed, it will be in the interest of justice that Status quo regarding the allotment of the plot No. 124 be maintained as on today and if the same has already been alloted to some other person, there should not be any further Suit No. 1078/06/81 Page. 12/13 creation of third party right and interest. One month time is granted to the plaintiff to approach the concerned authority from today. Till then the status quo qua plot will be maintained. Issue No. 5 is decided accordingly.

15. Relief:− In view of the above observation, the suit of the plaintiffs stand dismissed with liberty to appear before concerned authority mentioned in Delhi State Cooperative Society Act, 1972 as observed above. Decree sheet be prepared. File be consigned to record room.

Announced in the open court on 18.10.2010

AJAY GOE SCJ CUM R

Suit No. 1078/06/81

Indian Kanoon - http://indiankanoon.org/doc/173974768/

6