Mahinder Kumar Jain vs Guru Coop.G.H.Socy. & Ors.
2010 Latest Caselaw 1123 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) No.3291/1999

%              Date of Decision: 26th February, 2010


      MAHINDER KUMAR JAIN                    ..... Petitioner
                   Through:        Mr. Rajiv Bahl and Mr. S.P.
                                   Srivastava, Advocates

                   versus


      GURU COOP.G.H.SOCY. & ORS.               ..... Respondents
                     Through:  NEMO.


      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MR. JUSTICE VIPIN SANGHI

      1. Whether the Reporters of local papers may
         be allowed to see the judgment?           :       No
      2. To be referred to Reporter or not?            :   No
      3. Whether the judgment should be reported
         in the Digest?                                :   No

%                           JUDGMENT (Oral)

VIPIN SANGHI, J.

1. The petitioner has preferred the present writ petition to

challenge the order dated 14th September, 1998 passed by Sh. T.P.

Joseph, Arbitrator/Deputy Registrar, Cooperative Societies under

Section 60 of the Delhi Cooperative Societies Act, 1972 ("the Act")

and the revisional order dated 1st February, 1999 passed by Delhi

Cooperative Tribunal under Section 78(6) of the Act.

2. Late Sh. Beni Prasad Jain, the father of the petitioner was the

original member of the respondent No.1 society. It appears that he

died on 27th July, 1982 leaving behind a Will dated 06th July, 1982

bequeathing his estate amongst his legal heirs. The petitioner as one

of the sons, it appears, was also a beneficiary under the Will. So far as

the membership with the respondent society of late Shri Beni Prasad

Jain and the interest arising therefrom is concerned, the same was

bequeathed by Sh. Beni Prasad Jain in favour of his widow Smt. Ram

Pyari Jain.

3. The petitioner applied for transfer of the share of the society in

his name on the basis of a nomination claimed to have been made in

his favour by his father in the records of the society. It appears that

the society called the petitioner for a hearing on 09th December,

1984. However, the share of his father was not transferred in favour

of the petitioner by the respondent society. Even according to the

petitioner, despite his application, the society did not accede to his

request and in the list of members circulated to the Registrar of

Cooperative Societies in the year 1997 the name of Sh. Beni

Prasad/Ram Pyari Jain/Pratibha Jain was mentioned and crossed. The

name of the petitioner was conspicuous by its absence. Smt. Ram

Pyari Jain the mother of the petitioner contested his claim before the

respondent no.1 society.

4. It appears that a memorandum of understanding dated 31st

March, 1987 executed by the petitioner, his brother and his mother

was placed before the respondent society by his mother, as per which

the petitioner forego/relinquish his right in the membership and the

resultant interest in the flat. It also appears that Smt. Ram Pyari Jain,

who was substituted in place of her husband in the records of the

society interacted with the society and made several payments

towards the construction of the flat pursuant to the memorandum of

understanding.

5. The petitioner sought to invoke arbitration under Section 60 of

the Delhi Cooperative Societies Act, sometime in the year 1998, to

stake his claim, as aforesaid. The Arbitrator passed the order dated

14th September, 1998 thereby dismissing the claim petition on the

ground of the same being time-barred, noticing the aforesaid facts.

6. The submission of the petitioner was that since he was the

nominee in the records of the society, he ought to have been

substituted in place of his father. Moreover, he also questioned the

validity of the Will and the MOU. The Arbitrator, however, declined

the application under Section 60 on the ground of the same being

barred by limitation as it had been preferred after 16 long years of

the dispute first arising in this case.

7. The petitioner challenged the order dated 14th September, 1998

of the Deputy Registrar by way of a revision petition under Section

78(6) of the Act. The Delhi Cooperative Tribunal rejected the revision

petition by its order dated 01st February, 1999 on the ground of locus

standi since the petitioner failed to even produce the so called

nomination in his favour and as he had taken no steps to question the

Will or the MoU before a competent court of jurisdiction.

8. We have heard learned counsel for the petitioner. The record

shows that even according to the petitioner, he had made the

application to seek substitution of membership in his name in the

year 1984. The petitioner, admittedly, did not take any steps even

though the society did not favourably respond to his request. It also

appears that in the interregnum i.e. in the year 1989 Smt. Ram Prayi,

while relying upon the MoU dated 31st March, 1987, exchanged

correspondences with the respondent society between 1987 and 27 th

November, 1987 and 25th October, 1990. She also made various

payments in this period through pay orders for which she also

produced the certificates issued by PNB, Model Town, Delhi dated 24th

July, 1989, 28th July, 1989 and 29th July, 1989. On 03rd March, 1990

Smt. Ram Pyari Jain also issued a public notice in "The Statesman"

debarring the petitioner and another of her son from inheriting the

property in question. All these documents were filed by the

Respondent Society before the Registrar of Cooperative Societies,

Delhi.

9. Undoubtedly, the cause of action to initiate appropriate legal

proceedings arose in favour of the petitioner in 1984, on account of

the omission of the respondent society in mutating his name in place

of his father's after his death on 27th July 1982; when Smt. Ram Pyari

Jain interacted with the respondent society, made payments for the

flat and debarred the petitioner from any rights in respect of the flat

in question through a public notice. However, the petitioner did not

take any steps either to challenge the Will or the Memorandum of

Understanding which were relied upon by the respondent society to

mutate the membership in favour of Smt. Ram Pyari Jain and

thereafter in favour of Smt. Pratibha Jain. He also did not seek to

invoke Section 60 of the Act within the statutory period of limitation

prescribed in Section 60(4)(ii) of the Act.

10. We may note that even though the rights claimed by the

petitioner were adverse to the interest of Smt. Ram Pyari Jain and her

legatee, the petitioner did not implead either Smt. Ram Pyari Jain or

her legatee Smt. Pratibha Jain in the proceeding under Section 60.

We may also note the conduct of the petitioner in that he has neither

made any offer to make payment nor actually paid even a single

penny in respect of the flat over the years.

11. In view of the aforesaid facts and circumstances, in our view,

there is no infirmity in the orders passed by the Arbitrator on 14th

September, 1998 or by the order dated 01st February, 1999 by the

Delhi Cooperative Tribunal. The writ petition is, accordingly,

dismissed.

12. The status quo order passed on 25th May, 1999 stands vacated.

The respondent society shall, accordingly, inform Smt. Pratibha Jain of

her rights arising out of membership No.7 and proceed in the matter

in accordance with law.

VIPIN SANGHI, J.

GITA MITTAL, J.

FEBRUARY 26, 2010 rsk