M.L. Sharma vs Adarsh P.V. Cooperative Group ...
2002 Latest Caselaw 1550 Del

JUDGMENT

R.C. Chopra, J.

1. This order shall dispose of the plaintiff's application under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure for appointment of a Local Commissioner for making inventory of articles fixed/material used by the plaintiff along with articles/material lying at the site and for taking measurements of electrical work done at the defendant's plot No. 33, Section 6, Dwarka, Phase-I, New Delhi.

2. I have heard learned counsel for the plaintiff and learned counsel for the defendant and have gone through the records.

3. The facts relevant for disposal of the application, briefly stated, are that the plaintiff has filed a suit for perpetual and mandatory injunction against the defendant Society alleging that the plaintiff was awarded the work of external electrification at the aforesaid plot of the defendant Society. The plaintiff raised certain bills, payment of which was made by the defendant. However, the fourth bill dated 28.8.2001 was for a sum of Rs. 75,07,955/-, but without any justification and with malafide intention the defendant raised disputes and reduced the amount of bill to Rs. 54,50,049.60p. only. Challenging the deductions in the bill as illegal and unwarranted, the plaintiff averred that the defendant was threatening to engaged some other contractor for doing the remaining work and as such, prayed for a decree of permanent injunction restraining the defendant from cancelling the work order/tender in favor of the plaintiff and allotting the remaining work of electrification to some other contractor. A mandatory injunction was also claimed directing the defendant to take the measurements of the work done by the plaintiff at the site in the presence of the plaintiff/parties with the help of a Local Commissioner to be appointed by the Court or in any other manner as the Court may deem fit and proper.

4. The defendant filed a written statement as well as reply to the application. One of the contentions raised by the defendant is that the suit filed by the plaintiff is barred by Section 90 of Delhi Cooperative Societies Act, 1972, (hereinafter referred to as the "Act" only) which requires that a notice should be served upon the Registrar at least three months prior to filing of a suit against the Society. Learned counsel for the defendant has opposed the application for appointment of a Local Commissioner mainly on the ground that the suit filed by the plaintiff is not maintainable and is liable to be rejected in view of non-compliance of Section 90 of the Act which lays down that no suit against a Cooperative Society or any of its officers in respect of any Act touching the business of the society can be instituted before the expiry of three months 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. In support of his submissions he relies upon the judgments "All India Handloom Fabric Marketing Co-op. Society Ltd. v. Phelps & Co. P. Ltd." reported in 2000 III AD (Delhi) 484, "Sri Pal and Anr. v. U.P. Rajya Sahkari Vikas Bank and Ors." , "The Krishi Mattu Ksheera Utpadaka Vividhoddesha Sahkari Sangh Niyamit Bakkal and Anr. v. Sohanlal" , "Thakkar Liladhar Vaghjibhai v. Jamnagar Jilla Sahakari Kharid Vechan Sangh Ltd." reported in (1983) 24 Gujarat Law Reporter 722, "Rambhai Mathurbhai Patel and Ors. v. Ramanlal Keshavlal Shah and Ors." AIR 1981 NOC 50 (GUJ.).

5. Learned counsel for the plaintiff controverts the aforesaid plea of the defendant on the ground that the present suit filed by the plaintiff is not in respect of any Act touching the business of the Society and as such, no notice was required to be served upon the Registrar in terms of Section 90 of the Act. In support of his submission, he relies upon a judgment of this Court Chander Nagar Co-operative Society v. Ashok Ohri, in which the provisions of the Act were examined and it was held that Section 60(2) of the Act was exhaustive and not illustrative in defining the acts touching the business of a Society.

6. Before considering the rival contentions of the parties on the question of the maintainability of the suit in view of Section 90 of the Act, this Court must state at the outset that the question of the maintainability of the suit shall be considered by this Court at the appropriate stage only. While disposing of an application under Order 26 Rule 9 CPC the Court is not enjoined upon to examine threadbare such controversies. If prima facie, the suit does not appear to be barred, the Court may proceed with the disposal of an application in as much as an interim relief to a plaintiff cannot be kept in abeyance till all the legal and factual issues raised in the suit are finally adjudicated upon by the Court. For identifying the "acts" touching the business of the Society, recourse can be taken to Section 60(2) of the Act which describes acts which are deemed to be disputes touching the constitution, management or the business of a Cooperative Society. The electrification work done by the plaintiff for the defendant Society does not prima facie appear to be an act touching the business of the Society as the Society is not engaged in the construction and sale of the flats and it is merely a Cooperative Society constructing flats for its members. The Division Bench judgment of this Court in "All India Handloom Fabric Marketing Co-op. Society Ltd. v. Phelps & Co. P. Ltd." reported in 2000 III AD (Delhi) 484, dealt with a similar question and in para 11, while examining Section 101 of the Multi State Cooperative Societies Act, 1984, which is para materia similar to Section 90 of the present Act, the Court held that impugned act therein was touching the business of the Society for the reason that one of the functions of the Society was to make showrooms and emporiums for sale of its handloom goods. However, in the present case prima facie, the suit does not appear to be hit by Section 90 of the Act as getting electrification work done for the members was not an act touching the business of the Society and the Society was getting this work done on one time basis for the benefit of its members. Construction was not at all its business. Without dwelling further on this issue at this stage, this Court, therefore, is of the considered view that prima facie the suit filed by the plaintiff does not appear to be barred by Section 90 of the Act.

7. The prayer made by the plaintiff in his application is neither unreasonable nor unjust for the reason that the plaintiff is trying to safeguard and protect not only his own interests but the interests of the defendant Society also in the matter of a dispute relating to the payment for the work already done in as much as at a later stage, the parties may take various stands and the Court may not be in a position to properly adjudge as to how much work was done by the plaintiff at the site. The plaintiff is willing to bear the expenses of the Local Commissioner who will carry out the inspection and measurements in the presence of representatives of both the parties. The report prepared by the Local Commissioner will enable this Court to properly adjudicate the disputes raised in the suit.

8. In the result, this Court is of the considered view that it is in the interests of justice that a Local Commissioner is appointed for visiting Plot No. 33, Sector-6, Dwarka, Phase-I, New Delhi for taking measurements at the site in regard to the external electrification work and prepare an inventory in regard to the articles fixed and material used at the site for the completion of the said work.

9. The application is, therefore, allowed and Shri Ashok Kumar Aggarwal, Assistant Engineer (Electrical), C.P.W.D. is appointed a Local Commissioner with the directions to go to the aforesaid plot of the defendant and execute the commission in terms of this order. The fee of the Local Commissioner is fixed at Rs. 15,000/- to be paid by the plaintiff. The Local Commissioner shall execute the commission after issuing notice to the counsel for both the parties so that the representatives of the parties may remain present at the site for assisting the Local Commissioner. Compliance and report within two weeks.