*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 14th February, 2013
+ CS(OS) No.630/2006
&
IA No.7269/2011 (of Green Estate & HRE Plot Holders
Association (Regd.) under Order 1 Rule 10 CPC)
GREEN ESTATE & HRE PLOT HOLDERS
ASSOCIATION (REGD.) ..... Plaintiff
Through: Mr. Jayanth Nath, Sr. Adv. with Mr.
K.C. Dubey & Mr. T.K. Tiwari, Advs.
Versus
SH. INDERJIT SINGH BEDI & ORS. ..... Respondents
Through: Mr. O.P. Sharma, Adv. for applicant / intervener.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J
1. The plaintiff has instituted this suit claiming the following reliefs:
"(a) pass a decree for declaration in favour of the plaintiff and against the defendants, thereby declaring that the plaintiffs are the duly elected office bearers of the plaintiff society for the term 21.11.2005 to 21.11.2006 and the Executive Committee elected on 21.11.2005 is the Governing Body being the Executive Committee of the Plaintiff Society for the said period, as per the list dated 27.11.2005 filed with the Registrar; CS(OS) No.630/2006 Page 1 of 16
(b) pass a decree for declaration against the Defendants No.1 to 5, their associates and representatives and assigns thereby declaring that the defendants No.1 to 5 are not the members of the elected Governing Body of the plaintiff Society and are also not the elected office bearers of the plaintiff Society;
(c) pass a decree for declaration against the Defendants No.1 to 5 thereby declaring that the Defendants No.1 to 5 are not the primary members of the plaintiff Society consequently all the acts and deeds committed by the Defendants No.1 to 5 by representing themselves as the Members and the part of the Governing Body of the plaintiff Society, are null and void;
(d) pass a decree for permanent injunction against the Defendants No.1 to 5, their associates, representatives and assigns etc. thereby permanently restraining them from representing themselves or acting as the members of the Executive Committee and office bearers of the plaintiff Society, in any manner;"
2. It is the case in the plaint:
(i) that the plaintiff is a Society having its head office at 5-A, 1st Floor, Main Market, Madanpur Khadar, Sarita Vihar, New Delhi with its main objective to organize all the plot holders for the purpose of getting the Estates developed;
(ii) that the defendants No.1 to 5 viz. Sh. Inderjit Singh Bedi, Sh. Kishan Lal Sharma, Sh. Govind Ram Awana, Sh. Rishi CS(OS) No.630/2006 Page 2 of 16 Pal Lohia and Sh. Satpal Sethi are not the members of the plaintiff Society but the defendants No.1 and 2 were elected President and Secretary respectively of the plaintiff Society for the period 21.11.2004 to 21.11.2005;
(iii) that the defendants No.3 and 4 are also representing themselves to be the President and Secretary of the Society for a period of three years from 01.11.2004;
(iv) that the Executive Committee of the Society has a tenure of one year only and thus after the lapse of the tenure on 21.11.2005 of the alleged Executive Committee of which the defendants No.1 and 2 were the office bearers, a fresh Executive Committee was elected of which "plaintiff is the office bearer";
(v) that the defendants No.1 to 5 have no capacity to act or represent the plaintiff Society;
(vi) that the plaintiff Society had purchased land in the Revenue Estate of Village Ismilepur and Agwanpur, Tehsil and CS(OS) No.630/2006 Page 3 of 16 District Faridabad and the total land owned by the plaintiff Society is approximately 168 acres;
(vii) that however the said land has not been developed for want of appropriate permission from the Haryana Government;
(viii) that fresh election to elect the Executive Committee comprising of thirty members were held on 21.11.2005 "of which the plaintiffs are the office bearers" and a list dated 27.11.2005 of the elected members was duly filed with the Registrar of Societies;
(ix) that the said Executive Committee has been elected for a period of one year;
(x) that the defendants, by representing themselves to be the members of the Governing Body of the plaintiff Society, have sold the land of the Society and misappropriated the sale consideration;
(xi) that the plaintiff Society has initiated appropriate civil and criminal proceedings against the defendants No.1 to 4; CS(OS) No.630/2006 Page 4 of 16
(xii) that though the General Body of the Society in the meeting held on 24.04.2005 had authorized the defendant No.2 to sell the land of the Society but during August, 2005 it transpired that the defendant No.2 had taken away the Minute Book of the plaintiff Society from the office of the Society and / was in the process of disposing of the entire land.
(xiii) that thus an emergent meeting of the Executive Committee was held on 21.08.2005;
(xiv) that subsequently on 14.09.2005 it transpired that the defendant No.2 in collusion with defendant No.1 had disposed of around 90 acres of land of the Society at a paltry sum of Rs.1.5 crores;
(xv) that in an emergency meeting of the Executive Committee called on 30.10.2005, it was resolved to remove the defendant No.2 from the post of Secretary and the "plaintiff No.2 was appointed as the Secretary of the Society" (xvi) That though the term of the Executive Committee of which the defendants No.1 and 2 were the President and the CS(OS) No.630/2006 Page 5 of 16 Secretary has come to an end but it has now transpired that the defendants No.1 &2 are not even the primary members of the Society and thus their earlier election is of no consequence;
(xvii) that the same is the case of the defendants No.3 to 5; and (xviii) that the plaintiff Society has filed appropriate litigation against the defendants No.1 to 4 for unauthorizedly disposing of the land of the Society and which is still pending.
3. This suit came up first before this Court on 18.04.2006 when it was informed that the defendants have filed CS(OS) No.142/2006 and there is a dispute as to who are the genuine office bearers of the plaintiff Society. Summons of the suit were issued. On 02.05.2006, it was reported that CS(OS) No.332/2006 also related to the management of the plaintiff Society. On 13.02.2007, it was reported that the defendant No.1 had expired on 01.02.2007. Vide order dated 13.11.2007, the name of the defendant No.1 was deleted from the array of defendants. No written statement was filed by the defendants No.2 and 4. Though a written CS(OS) No.630/2006 Page 6 of 16 statement was filed by the defendants No.3 and 5 but they were also proceeded against ex parte on 04.05.2009. Vide order dated 28.04.2011, the plaintiff was directed to file affidavit by way of ex parte evidence within four weeks. The plaintiff filed the affidavit of one Sh. M.L. Gupta and which has been tendered in evidence.
4. IA No.7269/2011 has been filed by Green Estate & HRE Plot Holders Association (Regd.) , i.e. the same Society as the plaintiff, albeit acting through different persons, for impleadment in the present suit pleading that Sh. M.L. Gupta who, as Secretary of the plaintiff Society has filed the present suit is not even a primary member of the plaintiff Society and has never been connected or associated with the Executive Committee of the plaintiff Society; that in fact the said Sh. M.L. Gupta in collusion with the defendants in the suit cheated the plaintiff and illegally sold the property belonging to the plaintiff Society and the applicant has filed criminal complaints against Sh. M.L. Gupta and the defendants; that the Conveyance Deeds, Power of Attorney etc. executed by the said Sh. M.L. Gupta and the defendants are also challenged in Civil Court; that the said Sh. M.L. Gupta, by filing the present suit, is trying to get himself declared as the office bearer of the plaintiff Society. CS(OS) No.630/2006 Page 7 of 16
5. In the reply filed by the plaintiff through Sh. M.L. Gupta to the said application, it is denied that Sh. Sanjay Punj who as Secretary of the applicant / plaintiff has filed the application is the Secretary of the plaintiff. It is further pleaded that the entire record and control and command of the plaintiff is with Sh. M.L. Gupta who is still the Secretary. The other allegations in the application are denied.
6. The applicant has filed a detailed rejoinder controverting the denial in the reply.
7. Though the plaint, as aforesaid, refers to the plaintiff/s being the office bearer of the Society but only the Society is the plaintiff. The applicant seeking impleadment is the same Society. In the circumstances, when the matter came up for hearing on 01.02.2013, it was enquired from the counsel for the plaintiff as to how the declaration as sought in prayer paragraph (a), of the plaintiffs being duly elected office bearers of the plaintiff Society could be granted when none of the so-called office bearers are before this Court and it is the Society, which alone is before the Court. It was further enquired on that date from the counsel for the plaintiff as to how the cause of action even if any at the time of institution CS(OS) No.630/2006 Page 8 of 16 of the suit of declaration that the defendants No.1 to 5 were in the year 2004-07 not the elected members of the Governing Body of the plaintiff Society is relevant today in the year 2013 when there must be a fresh Governing Body. The counsel for the plaintiff on that date sought adjournment.
8. The senior counsel for the plaintiff during the hearing on 04.02.2013 and today, though agrees that the relief claimed in prayer paragraph (a) is misconceived since no office bearer in whose favour a declaration is sought is before this Court, contends that the Society is entitled to claim the declaration as sought in the prayer paragraph (c), of the defendants No.1 to 5 being not primary members of the Society and injunction restraining the defendants No.1 to 5 from acting as office bearers of the Society and further declaration as sought in prayer paragraph (b) that the defendants No.1 to 5 were not the members of the elected Governing Body of the plaintiff Society.
9. The defendants No.1 to 5 against whom declaration / injunction is sought have as aforesaid been proceeded against ex parte. The defendant No.1 already stands deleted and the defendants No.2 and 4 did not even CS(OS) No.630/2006 Page 9 of 16 bother to file the written statement. The defendants No.3 and 5 though filed the written statement also chose not to contest the suit further. They, in their written statement however denied that Sh. M.L. Gupta was the Secretary of the plaintiff Society or was authorized to institute the suit and asserted that they are the primary members of the plaintiff Society.
10. As would be evident from the aforesaid chronology, there is a serious dispute as to the membership and the management of the Society. The counsel for the applicant who is none other than the plaintiff Society but acting through different office bearers has argued that since according to the applicant also the defendants No.1 to 5 are not the members of the Society, the applicant, to the said extent has no objection to the declaration and injunction being granted. He has however expressed apprehension that if the declaration and injunction against the defendants No.1 to 5 is granted by this Court at the behest of Sh. M.L. Gupta as Secretary of the Society, the same will be used by Sh. M.L. Gupta in other suits which are pending before the District Courts of Faridabad where the land of the plaintiff Society is situated to contend that he has been recognized by this High Court as the Secretary of the Society and CS(OS) No.630/2006 Page 10 of 16 the District Courts may feel themselves bound by the said finding of this Court.
11. In the aforesaid perspective, I have examined the affidavit by way of examination-in-chief of Sh. M.L. Gupta in ex parte evidence of the plaintiff. The said affidavit is nothing but a repetition of the contents of the plaint. However, towards the end thereof, the copy of the Resolution dated 04.12.2005 authorizing Mr. M.L. Gupta to file the suit, copy of the two subscription receipts of the members of the Society, copy of Statement of Account of the Bank since 1999 to 2006, copy of Memorandum of Association and Rules and Regulations of the Society, copy of advertisement dated 15.11.2005 calling for elections of the Society, copy of the Form of elected office bearers of the plaintiff Society from 21.11.2005 to 21.11.2006, copy of list of members of the Executive Committee from 21.11.2005to 21.11.2006 as submitted to Registrar of Societies and copies of certain other Minutes of the Meetings and Resolutions of the Society have been given exhibit marks.
12. It is thus evident that in the ex parte evidence led, there is nothing to establish or to render a finding of Sh. M.L. Gupta being the Secretary CS(OS) No.630/2006 Page 11 of 16 or being in the management of the Society. The senior counsel for the plaintiff when confronted therewith has argued that since the same was not controverted, it was not required to be proved.
13. Though it is true that the defendants were proceeded against ex parte, but it cannot be said that the plea in the plaint of Mr. M.L. Gupta being the Secretary was not controverted in the written statement of the defendants No.3 and 5. They have in para 6 of the Preliminary Objections of their written statement stated that the said Mr. M.L. Gupta is the self-proclaimed Secretary and there is no Resolution authorizing him to institute the suit.
14. The question which thus arises at this juncture is whether this Court should allow the applicant to be impleaded as party to this suit and the necessary corollary whereto would be a dispute as to the management.
15. I have however decided against the aforesaid option for the following reasons; firstly, in the plaint as filed, no declaration is claimed by Mr. M.L. Gupta about his status. Secondly, as aforesaid, Sh. M.L. Gupta is not even a plaintiff and has filed the suit on behalf of the plaintiff; and, thirdly the claim in prayer paragraph (a) being not CS(OS) No.630/2006 Page 12 of 16 maintainable has also been conceded as aforesaid. It is not deemed appropriate to allow the impleadment of the applicant for adjudication of a dispute not raised in the suit.
16. As far as the other reliefs claimed in the plaint are concerned, even the applicant has no objection to the grant thereof.
17. The senior counsel for the plaintiff has argued that as far as the reliefs against the defendants No.2 to 5 are concerned, the ex parte evidence which has not been rebutted, is sufficient.
18. I have also requisitioned the files of CS(OS) No.142/2006 and CS(OS) No.332/2006 referred to in para 3 above. CS(OS) No.142/2006 was filed by Sh. Inderjit Singh Bedi, Sh. Kishan Lal Sharma, i.e. the defendants No.1 and 2 in that suit, and the plaintiff Society against Sh. M.L. Gupta (whose has instituted this suit on behalf of the plaintiff), Sh. Ram Murti Duggal, Sh. Hiffzur Rehman, Sh. J.L. Dhingra, Naveen Co- operative House Building Society Ltd., Sh. Hari Chand Sharma, The Registrar of Societies, Sh. Satish Katryan @ Satish Kadyan and the Delhi Police for recovery of Rs.50,50,000/-, rendition of accounts, declaration that the defendants had no authority, right or title to act as office bearers CS(OS) No.630/2006 Page 13 of 16 or authorized representatives of the Society and injunction to restrain them from doing so and operating Bank Accounts etc. and dealing on behalf of the Society. It was the case of the plaintiffs Sh. INderjit Singh Bedi and Sh. Kishan Lal Sharma in that suit and who are defendants No.1 & 2 in this suit that in fact they are the President and the Secretary of the plaintiff Society. The said suit was dismissed for non-prosecution on 4th May, 2009 and no steps for revival thereof have been taken. CS(OS) No.332/2006 was also filed by the same parties i.e. Sh. Inderjit Singh Bedi, Sh. Kishan Lal Sharma and the plaintiff Society against Sh. M.L. Gupta and 46 others, also for the same reliefs as claimed in CS(OS) No.142/2006 and for further declaration that the elections purportedly held on 21st August, 2005 and 27th November, 2005 of the Society were null and void. The cause of action of CS(OS) No.332/2006 was stated to have accrued after the cause of action for CS(OS) No.142/2006. The said suit was also dismissed for non prosecution on 4th May, 2009 and no steps for revival thereof have also been taken till now. It is thus obvious that the defendants No.1 &2 herein have abandoned the rights, asserting which CS(OS) No.142/2006 and CS(OS) No.332/2006 were filed. The said rights only are in issue in this suit also. From the dismissal of CS(OS) No.630/2006 Page 14 of 16 CS(OS) Nos.142/2006 & 332/2006 also it follows that injunctions sought in this suit against defendants No.2 to 5 can be granted.
19. This suit is thus decreed, declaring that the defendants No.1 to 5 were / are not members of the plaintiffs Society and were not the elected office bearers of the plaintiff Society and a decree of permanent injunction is also passed against the defendants No.2 to 5 restraining them from representing themselves as members of the Executive Committee and office bearers of the plaintiff Society but with a caveat that this Court has not gone into the question whether Mr. M.L. Gupta who has filed the suit on behalf of the plaintiff Society was authorized to do so or was the elected office bearer of the plaintiff Society or was / is the Secretary of the plaintiff Society and nothing in this judgment should be deemed to be returning any finding in favour of Sh. M.L. Gupta or of any other pleas in the plaint, particularly of the plaintiff Society having even authorized the defendant No.2. Resultantly, the application for impleadment is infructuous.
CS(OS) No.630/2006 Page 15 of 16
20. Decree sheet be drawn up.
No costs.
RAJIV SAHAI ENDLAW, J FEBRUARY 14, 2013 „gsr‟ CS(OS) No.630/2006 Page 16 of 16