Parwana Cghs Ltd vs The Registrar Delhi Cooperative ...
2010 Latest Caselaw 810 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                       Date of decision: 11th February, 2010

+           W.P.(C) 11095/2009 & CM No.10402/2009

      PARWANA CGHS LTD                    ..... Petitioner
                   Through Mr. Jitender Mehta, Adv.

                  versus


      THE REGISTRAR DELHI COOPERATIVE
      TRIBUNAL & ORS.                       ..... Respondents

Through Mr. V.K. Tandon, Adv. with Ms. Parul Sharma, Adv. for Registrar of Co-operative Societies.

Mrs. Raj Ahuja, Respondent No.4 along with her daughter in person.

CORAM:

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

1. Whether reporters of local papers may be allowed to see the Judgment? No

2. To be referred to the Reporter or not? No

3. Whether the judgment should be reported in the Digest? No

GITA MITTAL, J (Oral)

1. The petitioner has filed this writ petition to challenge the award

dated 9th January, 2009 passed by Shri Dhirender Kumar, the

arbitrator appointed under Section 70 of the Delhi Cooperative

Societies Act, 2003.

2. Shri Rana Pratap Bindra, respondent no.3 had sought the

appointment of an arbitrator in respect of his claims and disputes

against the petitioner society and respondent no.4 herein on the

ground that there was seepage coming into his flat from the terrace of

the building and/or the flat located above his flat belonging to Mrs. Raj

Ahuja, Respondent No.4 i.e. Flat No.A-28, Parwana Apartments, by

moving a petition under Section 70 of the Delhi Cooperative Societies

Act, 2003. This petition was disposed of apparently on 29th

September, 2008 as it was the admitted position that disputes, which

were referable to arbitration, existed between the parties.

3. The learned arbitrator appointed/nominated by the Registrar of

Cooperative Societies has passed the award dated 9th January, 2009

whereby the following directions have been issued:-

"The claim is allowed. The society is directed to get the terrace of above the flat no.A-26 repaired well before the onset of the monsoons and the cost shall be borne by defendant no.1 society alone. Thereafter the claimant's flat shall be jointly inspected during monsoon by the parties to ensure that there is no recurrence of the seepage. If the problem is rectified there shall be no need to carry out any repairs in the flat of defendant no.2. However, in case the seepage re-occurs, the repairs shall be carried out in the flat no.2 of the defendant at her cost. The defendants are directed to pay, jointly and severally, a sum of Rs.20,000/- to the claimant on account of the expenses incurred by him so far. The defendants are also directed to pay cost @ 10% of the awarded amount and shall also be liable to pay further interest @18% p.a. on the total amount from the date of the award till final payment."

4. The petitioner has preferred this petition on the ground that the

Delhi Cooperative Tribunal is presently not constituted and therefore,

the petitioner's application to seek interim stay of the impugned

award cannot be entertained.

5. We have heard learned counsel for the petitioner as well as the

representative/daughter of respondent no.4 Smt. Raj Ahuja, who is

present with respondent no.4.

6. It is the submission of respondent no.4 that she has already

carried out the repair in her flat by changing the internal fittings and

pipes. She also submits that she is also a victim of the same problem

and there is a lot of seepage coming into her flat as well on account of

the terrace and the common drainage pipelines not being repaired by

the society. She further states that in case after the repair is carried

out by the petitioner society, the problem of seepage in the flat of Mr.

Bindra still persists, she would be willing to carry out any further

repair in her flat which may be required.

7. Having heard the arguments, we are satisfied that the petitioner

has not made out a prima facie case for grant of any interim order till

the appeal of the petitioner before the Delhi Cooperative Tribunal is

taken up for hearing. We are also of the view that there is no balance

of convenience in favour of the petitioner inasmuch as the grievance

of respondent no.3 was that there was seepage coming into his flat

from the terrace above his flat as well as from the flat of Smt. Raj

Ahuja, respondent no.4.

8. The directions issued by the arbitrator are primarily that the

society should repair the terrace and in case the seepage in the flat of

Shri Bindra still persists, a direction has been issued to the respondent

no.4 to carry out repairs in her flat so as to deal with the seepage

problem being faced by Shri Bindra.

9. It is not the obligation of any individual member to maintain the

common areas such as the common terrace or the common drainage

pipelines or rain water drains installed in the cooperative society. The

said obligation squarely falls on the shoulder of the petitioner society.

It is the obligation of the society to maintain the same and to repair

them, to ensure that no seepage results on account of any defect in

the terrace or the drainage system.

10. Our attention has been drawn to Section 93 of the Delhi

Cooperative Societies Act, 2003. The said provision empowers the

society to direct the members to carry out the repairs within their own

flats and if the same is not so carried out, the society is obliged to

carry out the repairs and to recover the expenses incurred as arrears

of land revenue from the concerned member. For this reason, we see

no justification in the stand of the society that the obligation to carry

out the repairs, even in respect of common area and services, is not

that of the society.

11. Another submission of learned counsel for the petitioner is that

the award was made beyond the period of limitation. He submits that

the same ought to have been made within a period of three months

from the date of the passing of the order under Section 70 of the Delhi

Cooperative Societies Act, 2003. Reliance is placed on Rule 89 of the

Delhi Cooperative Societies Rule 2007 in this regard.

12. We do not find any merits in this submission of the petitioner.

Perusal of Rule 89 shows that the date on which the reference is made

is not prescribed as the starting point of limitation. Reference of

disputes is made by the Registrar to the arbitrator. The Arbitrator has

no control as to when the communication appointing him the

Arbitrator is issued by the office of the Registrar or received by him.

Therefore, the time taken by the Registrar in communicating his order

cannot be included within the period granted to the arbitrator to make

the award. Similarly, the Arbitrator cannot proceed unless the parties

are put to notice. Therefore, the time consumed in putting the parties

to notice would also have to be excluded for the purpose of computing

the time available to the arbitrator to make his award. A perusal of

the award shows that the arbitrator had issued a notice to the parties

to appear before him on 4th November, 2008. Therefore, the date on

which the arbitrator entered reference would be 4th November, 2008.

The award has been made on 9th January, 2009 i.e. well within the

period of three months from the date on which he entered upon the

reference. Therefore, this submission of the petitioner is rejected as

being without any merit.

13. Respondent no.4 states that no notice of the arbitration

proceedings had been served upon her. Since the entire record of the

Arbitrator has not been placed before us, it is not for us at this stage

to comment with regard to the service of the respondent no.2 in

the Arbitration proceedings. However, it shall be open to her to

agitate the said submission as well as all other submissions she may

have, by preferring an appeal before the tribunal or in any other legal

proceedings available to her without prejudice to the rights and

contentions of the other parties.

We may make it clear that nothing herein contained is an

expression of opinion on the merits of the contentions of the petitioner

so far as the other aspects of the award are concerned.

The writ petition and application are disposed of in the above

terms.

GITA MITTAL, J

VIPIN SANGHI, J FEBRUARY 11, 2010 aa