Delhi High Court
Shri R.S. Batra vs Burmah-Shell Coop. Societies on 28 March, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.768/2005
% 28th March, 2012
SHRI R.S. BATRA ...... Appellant
Through: Mr. Rajat Aneja with Ms. Sumati Jumarani,
Advs.
VERSUS
BURMAH-SHELL COOP. SOCIETIES ...... Respondent
Through: Mr. Rohit Kumar Modi, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal filed under
Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment
of the Trial Court dated 15.3.2005 dismissing the suit for declaration,
possession and mesne profits filed by the appellant/plaintiff on the ground that
the disputes which were subject matter of the suit have to be decided in
arbitration under Section 60 of the Delhi Co-operative Societies Act, 1972.
2. Learned counsel for the appellant/plaintiff relies upon a
Division Bench judgment of this Court in the case of Delhi Dayalbagh
Cooperative House building Society Vs. Dy, Registrar, Registrar of
Cooperative Societies & Ors., 166 (2010) DLT 139 in which judgment the
Division Bench of this Court has held that when the issue is of validity of the
documents, i.e. issue was to devolution/transfer of ownership, then, issue as to
ownership on the basis of the documents can only be decided by the Civil
Court and not under the provisions of the Delhi Cooperative Societies Act,
1972.
3. In the present case, the issue pertains to who owns the subject flat
No. 505, Aradhana Apartments, Burmah Shell Cooperative Housing Society,
R.K. Puram, New Delhi which belongs to the original member, Sh.J.S.Premi.
Whereas the appellant claimed to be the nominee of the original member,
Sh.J.S. Premi, the defendants no. 2 and 3 are the children and therefore the
legal heirs of late Sh. J.S. Premi and who accordingly claimed entitlement to
ownership of the subject flat. It was also pleaded by the defendants no. 2 and
3 that the appellant/plaintiff in fact had given an affidavit/indemnity bond that
the appellant would surrender/relinquish his membership of the society in
the event of the existing of bonafide successors of the original member,
Sh. J.S. Premi claiming an interest in the share/property.
4. In view of the above, the disputes in the subject suit pertain to the
claim of ownership of the property/flat, and there is no classical dispute
between the members of the society or between persons who claim through
the members or between the society and the members etc. as per Section 60 of
the Delhi Cooperative Societies Act, 1972. The disputes in the suit are to the
rival claims of ownership to the flat.
5. Accordingly, the impugned judgment and decree dated 15.3.2005
is set aside. It is held that the Civil Courts have jurisdiction to decide the
disputes which are subject matter of the suit. Nothing contained in today's
judgment is a reflection on merits of the case of either of the parties and the
Trial Court will hear and dispose of the suit in accordance with law
6. Parties to appear before the District and Sessions Judge, Delhi on
7.5.2012, and on which date, the District and Sessions Judge, Delhi will mark
the suit for disposal to a competent Court in accordance with law. The
concerned Court before whom the suit comes up, will issue notice to the
respondents/defendants and their counsel before proceeding ahead with the
suit. Trial Court record be sent back so as to be available to the District and
Sessions Judge, Delhi on 7.5.2012.
7. Parties are left to bear their own costs. Appeal is disposed of
accordingly.
8. After the judgment was dictated counsel appears for the
respondent no.1 and states that he has no objection for allowing of the appeal
in terms of the aforesaid judgment.
VALMIKI J. MEHTA, J
MARCH 28, 2012
ak
