Delhi High Court
The Farmers Cooperative Group ... vs Govt. Of Nct Of Delhi & Ors on 3 August, 2016
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7084/2015
Date of decision: 3rd August, 2016
THE FARMERS COOPERATIVE GROUP HOUSING SOCIETY LTD.
..... Petitioner
Through Mr. Anil Kumar, Advocate.
versus
GOVT. OF NCT OF DELHI & ORS ..... Respondent
Through Mr. Shatrajit Banerji, Advocate
for R-1 and R-2.
Mr. N. S. Bhullar, respondent No.3 in person.
Mr. Jitendra Kumar Singh, Assistant Registrar
from the office of Registrar Cooperative
Societies.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MS. JUSTICE SUNITA GUPTA
SANJIV KHANNA, J. (ORAL)
The Farmers Cooperative Group Housing Society Limited in this
writ petition under Article 226 of the Constitution has impugned and
challenged a common order dated 25th February, 2015 passed by the
Delhi Cooperative Tribunal disposing of Appeal Nos.62/2010 and
25/2011, filed by Nishant Singh Bhullar, the respondent No.3 before us.
2. Appeal No.62/2010 was directed against the order dated 26th
April, 2010 passed by the Registrar, Cooperative Societies under Section
70 of the Delhi Cooperative Societies Act, 2003 read with Rule 84(4) of
the Delhi Cooperative Societies Rules, 2007. Paragraph 23 of the
impugned order records that Appeal No.62/2010 filed by the respondent
No.3 fails and is accordingly dismissed. Paragraph 24 and 25 of the
impugned order records that Appeal No.25/2011 filed by respondent
No.3, Nishant Singh Bhullar is accepted and the Award dated 13th
December, 2010 stands set aside with an order of remand to the
Arbitrator, who shall decide the claim again without taking into account
claim of Rs.1,12,277/-.
3. Learned counsel for the petitioner submits that there is a
contradiction in the impugned order, for it records that Appeal
No.62/2010 challenging the order of the Registrar, Cooperative Societies
referring to the Arbitrator has been dismissed, yet in paragraphs 13 and
25 of the impugned order, it is recorded that the claim amount of
Rs.1,12,277/- cannot be made subject matter of reference. Paragraph 13
of the impugned order for the sake of convenience is reproduced below:-
"The contention of the appellant that the claim petition
bearing no.115/JR/GH/94/2014 filed by the society to
recover Rs.1,12,277/- will go against the society is
acceptable. The order dt. 15.2.95 passed by the then
Joint Registrar (Arb.), a copy of which is available on
the record, goes against the society, so far as the
recovery of that amount in the claim petition is
concerned. The society cannot be permitted now to say
that it did not hear from the office of RCS or from the
arbitrator as to what had happened to the arbitration
case no.115/JR/GH/94/2014. The society cannot be
permitted to include the amount of Rs.1,12,277/- in the
present claim petition."
4. The contention of the petitioner is that they were never informed
of the order dated 15th February, 1995 passed by the then Joint Registrar
(Arbitration). It is submitted that there is no material or evidence to
show that this order, dated 15th February, 1995, was communicated to
the petitioner-Cooperative Society and if there was no communication, it
cannot be assumed that the order was known to the cooperative society.
Awareness and knowledge cannot be presumed. The impugned order
without recording a firm and affirmative finding that the order dated 15th
February, 1995 was communicated, directs that the claim of
Rs.1,12,277/- should be deleted. Our attention has been drawn to the
findings recorded in paragraph 15 on the question of limitation and it has
been observed by the Cooperative Tribunal that this aspect, question of
limitation, was a referable dispute and could only be raised and decided
in the arbitration proceedings and not at the time of reference.
5. Mr. Bhullar, respondent No.3, who appears in person, submits that
he had filed a civil suit against the petitioner Cooperative Society before
Additional District Judge, Delhi, being Suit No.16 of 1995. In the said
suit, the Cooperative Society had filed an application under Order VII
Rule 11 of the Code of Civil Procedure, 1908 and had pleaded that an
arbitration case was pending before Mr. Atar Singh,
Arbitrator/Registrar's nominee and was fixed for hearing on 17 th
October, 1995. The reference for arbitration was made vide order dated
14th February, 1994, passed by Mr. G.P. Tripathi, Joint Registrar
(Arbitration) admitting the case to arbitration under Section 60 of the
Delhi Cooperative Societies Act, 1972.
6. We fail to understand how the aforesaid assertion in the
application under Order VII Rule 11 filed by the Cooperative Society
would show that the petitioner Cooperative Society was aware of the
order dated 15th February, 1995 passed by the Joint Registrar
(Arbitration). The dispute/claim pending before Mr. Atar Singh,
Arbitrator related to a different claim referred to him vide the order dated
14th February, 1994. The submissions and contentions raised by the
petitioner-Cooperative Society cannot be rejected without elucidation
and examination. The impugned order does not address the question and
submission. The issue is not whether the order dated 15th February, 1995
was available on the file, but whether the order was communicated, and
whether there was a lapse and failure to pay the fee.
7. In view of the aforesaid discussion, we feel that the matter
requires remand and a fresh decision by the Cooperative Tribunal, who
shall examine and go into the question whether or not the order dated
15th February, 1995 was ever communicated to the Cooperative Society
and if such order was communicated, what would be the effect of non-
payment of the fee thereafter? The issue of limitation will also be
examined afresh.
8. The reason given by the Cooperative Tribunal to allow the Appeal
No. 25/2011, laying challenge to the Arbitrator's Award dated 13th
December, 2010 is to be found in paragraphs 21 and 22, of the impugned
order which read:-
"21. A perusal of the record reveals that vide order
dt. 6.8.2010 passed by the earlier bench the ld.
Arbitrator (R5 in appeal no.25/2011) had been directed
not to pass the final award till the next date of hearing.
The earlier bench had adjourned the matter to
14.9.2010, 19.10.2010 and 17.1.2011. Thereafter also
this appeal had been adjourned from time to time.
However, we need not mention the order dates as
suffice it to say that the order dt. 6.8.2010 had not been
specifically modified or varied or vacated.
22. The record also show that the ld. Arbitrator was
informed about the passing of the order dt. 6.8.2010.
Vide a letter addressed to the Asstt. Registrar, the ld.
Arbitrator had sought extension of time from 14.9.2010
to 14.10.2010 or as per direction of the court. Copy of
the order dt. 6.8.2010 passed by the then tribunal had
been attached by the ld. Arbitrator without seeking any
clarification from the tribunal as to whether the appeal
bearing no. 62/2010 filed by the appellant has been
disposed off by the tribunal or the order dt. 6.8.10 has
been vacated or not by the tribunal, passed the
impugned award dt. 13.12.2010. This award is
therefore, liable to set aside."
9. Confronting and questioning the reasoning, the Counsel for the
Cooperative Society submits that the assertion and facts noted are
factually incorrect. The arbitration proceedings were stayed vide interim
order dated 6th August, 2010, but the stay was not extended on the next
date by the Cooperative Tribunal after the hearing held on 14th
September, 2010. The impugned order erroneously records that the
order dated 6th August, 2010 staying the arbitration proceedings was not
modified or varied or vacated. In fact, the interim stay granted on 6th
August, 2010 was till the next date of hearing fixed on 14th September,
2010 and was not extended.
10. To decide, we would like to reproduce the two orders. The order
dated 6th August, 2010, granting stay reads as under:-
"06.08.2010
Present: Appellant in person. Advocate Sh. Anil
Kumar for society and respondent no.4. Sh. Mohan
Chand Gaur on behalf of Arbitrator with record.
Sh. Anil Kumar Advocate for respondent society has
requested time to submit the reply. Advance copy be
handed over to the appellant.
Proceedings may continue before Arbitrator but no
final award shall be passed by the Arbitrator till the
next date of hearing.
Case is adjourned to 14.09.2010 at 12.00 Noon.
-sd-
DCT"
Order dated 14th September, 2010, passed after the Cooperative
Society had entered appearance as a respondent therein, reads as under:-
"14-9-2010
Appellant in person. Adv. Sh. Anil Kumar present for
Resp. no.1 & 4. Reply not filed. It is submitted that
there are chances of compromise between the parties,
so the case adjourned for compromise & reply for 19-
10-2010 at 3 00 p.m.
-sd-
DCT"
11. Order dated 6th August, 2010 had directed that the arbitration
proceedings may continue before the Arbitrator, but no final order shall
be passed till the next date of hearing. The said order was operative till
the next date of hearing, i.e. 14th September, 2010. The order dated 14th
September, 2010 did not extend the said stay. It is possible to urge that
the Cooperative Tribunal had erroneously or inadvertently failed to
record or note extension of stay. However, hearings were held thereafter
on 19th October, 2014. Mr. Bhullar did not ask for extension of stay or
file an application that by mistake stay was not extended. We have also
examined the ground of appeal filed by Mr. Bhullar before the
Cooperative Tribunal. He had stated that the Cooperative Tribunal did
admit the Appeal No.62/2010, but had declined to grant stay of
arbitration proceedings till disposal. It was not asserted and contended
that the stay order granted on 6th August, 2010 directing that the final
Award shall not be passed, was extended and had continued to remain in
operation even after 14th September, 2010. This being the factual
position, we do not think that the Cooperative Tribunal was justified in
setting aside the Award on the aforesaid ground and reason.
12. As a result, we set aside the Cooperative Tribunal's order dated
25th February, 2015 whereby Appeal No.25/2011 preferred by Mr.
Bhullar has been allowed. However, this would mean that Appeal
No.25/2011 filed by Mr. Bhullar challenging the Award dated 13th
December, 2010 would be heard and decided afresh on merits. In other
words, Appeal No.25/2011 has been wrongly allowed on the ground that
the Arbitrator could not have passed the final Award in view of the stay
order passed on 6th August, 2010. The appeal will be examined on
merits. We further clarify that we have not examined merits of the
Appeal No.25/2011 or commented on the same. We would also clarify
that we have not decided Appeal No. 62/2010, nor finally adjudicated
whether or not the order dated 15th February, 1995 passed by the then
Joint Registrar (Arbitration) was ever communicated to the petitioner
Cooperative Society and if such order was communicated, what would
be the effect of non-payment of the fee?
13. To cut short the delay, the parties are directed to appear before
the Cooperative Tribunal on 9th September, 2016, when a date for further
proceedings would be fixed.
The writ petition is disposed of without any order as to costs.
SANJIV KHANNA, J.
SUNITA GUPTA, J.
AUGUST 03, 2016
NA
