Delhi High Court
The Media Cooperative Group ... vs Ms. Noor Jahan Sarwat on 10 August, 2016
$~11.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) NO. 4268/2015
Date of decision: 10th August, 2016
THE MEDIA COOPERATIVE GROUP HOUSING SOCIETY
LIMITED ..... Petitioner
Through Ms. Namita Roy, Advocate.
versus
MS. NOOR JAHAN SARWAT ..... Respondent
Through Mr. Anil Kumar, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MS. JUSTICE SUNITA GUPTA
SANJIV KHANNA, J. (ORAL):
The Media Cooperative Group Housing Society Limited, by way of
the present writ petition, impugns order dated 16 th February, 2015 passed
by the Delhi Cooperative Tribunal (Tribunal, for short) whereby two
applications filed by Akmal Shah dated 4th February, 2014 have been
allowed condoning the delay and recalling the order dismissing the appeal
filed by Noor Jahan Sarwat for default on 25th November, 2010. For the
sake of convenience and clarity, the reasoning given in the order passed by
the Tribunal, is reproduce below:-
"17. In view of the above facts, instead of
dismissing this application on the ground of
limitation or on the ground of the applicant
having no locus standi, we deem it proper to
take the appeal to its logical conclusion. We
repeat that passing of an order in favour of the
applicant does not ipso-facto establish the
genuineness of the will. A prima facie view is
being taken by us in favour of the applicant to
decide the appeal on merits.
18. The delay in filing the application is
therefore, condoned subject to cost of
Rs.5,000/-.
19. Since the delay in filing this appeal has
now been condoned and we find from the
record that on these very grounds the applicant
is seeking restoration of the appeal, therefore,
there is no need to reiterate the facts and the
contentions as to whether there is justification
to restore the appeal or not. The appeal is
ordered to be restored subject to payment of
cost of Rs.2,500/-. The payment shall be
precondition for proceeding further.
20. For payment of cost, the matter shall be
taken up on 23/03/2015."
A reading of the aforesaid reasons elucidates that the Cooperative
Tribunal has observed that the order would not establish genuineness of the
Will propounded by Akmal Shah and a prima facie view has been taken.
2. Noor Jahan Sarwat was a member of the petitioner-cooperative
society. The cooperative society had acquired land from the Delhi
Development Authority and constructed a residential complex on plot No.
18A, Sector-7, Dwarka during years 1989-2008.
3. As Noor Jahan Sarwat was a defaulter and had failed to make
payments, she was issued notice under Section 86 of the Delhi Cooperative
Societies Act, 2003. By order dated 19th September, 2008, the Registrar
Cooperative Societies had directed that all defaulting members including
Noor Jahan Sarwat, should clear dues along with interest and penal interest
by within a month. In case of non-payment, the defaulters would lose their
right to membership. Noor Jahan Sarwat was personally served with a
demand notice of Rs.23,54,008/-. Noor Jahan Sarwat did not make the
payment within the period stipulated. Noor Jahan Sarwat had filed Writ
Petition (C) No. 472/2009 in the High Court, which was not entertained
and she was advised to approach the office of the Registrar of Cooperative
Societies. Noor Jahan Sarwat thereupon approached the office of the
Registrar of Cooperative Societies with a request for extension of time and
that the payment should be accepted, but the said request was disallowed
and rejected vide order dated 21st July, 2009. Against the rejection order,
Noor Jahan Sarwat preferred the appeal in question before the Cooperative
Tribunal. The said appeal was dismissed in default on 25 th November,
2010 as none was present and had appeared for Noor Jahan Sarwat.
4. In the meanwhile, the petitioner cooperative society had sought and
were granted approval by the Registrar of Cooperative Societies to enrol
new members in the place of the defaulting members, including Noor
Jahan Sarwat. Assistant Registrar (South) by his communication dated 2 nd
June, 2010 had approved filling up of the vacancies as per the procedure
prescribed in Rules 19 and 20 of the Delhi Cooperative Societies Rules,
2007. On 7th January, 2011 the petitioner cooperative society had written a
letter to the Registrar of Cooperative Societies for filling up of the said
vacancies, 13 in number. The Assistant Registrar (South) vide letter dated
10th March, 2011 conveyed their approval for filling up of the vacancies.
New members have been enrolled, who have made payments and flats have
been allotted to them.
5. Akmal Shah son of Ashgar Shah states that he is the nephew of Noor
Jahan Sarwat, who had expired on 7th April, 2010. He proclaims that in
December 2011, i.e. nearly 17-18 months after the death of Noor Jahan
Sarwat, he had come across an unregistered Will written by Noor Jahan
Sarwat, as per which she had bequeathed her rights in the flat/membership
to him. Accordingly, Akmal Shah had written the letter dated 17th
December, 2011 to the petitioner cooperative society staking his claim. On
4th February, 2014 upon ascertaining full facts, Akmal Shah filed the two
applications for condonation of delay and restoration of the appeal. Earlier
Akmal Shah had filed an application under Section 28 of the Delhi
Cooperative Societies Act, 2003 before the Registrar of Cooperative
Societies and had then learnt on 17th December, 2011 that late Noor Jahan
Sarwat had filed an appeal, which was dismissed in default on 25 th
November, 2010.
6. It will be noted here that no application for setting aside abatement
of the appeal and substitution were filed.
7. We have quoted the reasoning recorded by the Tribunal allowing the
two applications. The Tribunal in the earlier paragraphs had specifically
noted that the membership of Noor Jahan Sarwat had been cancelled and
the flat had been already allotted to a third party as per law and the
procedure. The said aspect has not been dealt with and considered while
allowing the application for condonation of delay. Condonation of delay
would affect third party rights, which have been created in the meanwhile.
Enrolment of new members was after following the proper procedure. This
aspect was never challenged and questioned. Substantial and long delay
when the situation has changed with creation of third party rights was an
important facet, which has been ignored and completely discounted.
8. We have noted the facts of the present case and have recorded that
Noor Jahan Sarwat was in default and had to make payment of
Rs.23,54,008/- as on 21st September, 2008. The default and failure and the
quantum of the demand are undisputed. Noor Jahan Sarwat had not made
the said payment in spite of time granted to her by the Joint Registrar. The
appeal filed by her was dismissed in default on 25th November, 2010. For
more than a year thereafter, Akmal Shah had not taken any steps. In the
meanwhile, the petitioner cooperative society had inducted new members,
who have paid money and taken possession. It is stated by the counsel for
the petitioner cooperative society that late Noor Jahan Sarwat had paid
about Rs.3.5 lacs approximately. Counsel for the respondent-Akmal Shah
states that late Noor Jahan Sarwat had paid about Rs.4 lacs. It would be
unjust and unfair to allow the belated and after time applications without
reflecting on the payment made, unpaid amount and the quantum of
payment made by the third parties.
9. The Tribunal was not justified in condoning the delay without even
dealing with the issue and question whether the story put up by Akmal
Shah that he had suddenly and fortuitously discovered the unregistered
Will 17-18 months after death of Noor Jahan Sarwat, is probable and
believable. The assertion was creative but pigeon-holed and fishy. The
Will has not been probated. Under the applicable personal laws, Akmal
Shah's claim of inheritance by way of a Will would be debatable. To
accept Akmal Shah's assertion would be unjust and unfair to the third
person.
10. The writ petition is accordingly allowed and the impugned order
dated 16th February, 2015 is set aside. The application for condonation of
delay will be treated as dismissed. We clarify that the observations made
above would not in any way affect any claim by Akmal Shah to seek
recovery of the amounts stated to have been paid by late Noor Jahan
Sarwat. We do not comment on the same.
(SANJIV KHANNA)
JUDGE
(SUNITA GUPTA)
JUDGE
AUGUST 10, 2016
VKR
