Sadbhawna Cooperative Group ... vs Arvind Kumar Sharma
2016 Latest Caselaw 7264 Del

$~29
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) 11453/2016

                                    Date of decision: 6th December, 2016


    SADBHAWNA COOPERATIVE GROUP HOUSING SOCIETY
    LTD                                       ..... Petitioner
               Through    Mr. Sudhir Nandrajog, Sr. Advocate
               with Mr. Ankur Arora, Ms. Srishti Sharma and
               Ms. Surya Rajappan, Advocates.

                          Versus

    ARVIND KUMAR SHARMA                                ..... Respondent
                Through

    CORAM:
    HON'BLE MR. JUSTICE SANJIV KHANNA
    HON'BLE MR. JUSTICE CHANDER SHEKHAR


    SANJIV KHANNA, J. (ORAL)

Sadbhawna Cooperative Group Housing Society Ltd. in this

writ petition has impugned statutory arbitration Award dated 29 th

February, 2012 made under Section 71 of the Delhi Cooperative

Societies Act, 2003 and the order dated 1st July, 2016, passed by the

Delhi Cooperative Tribunal affirming the said award.

2. The arbitration proceedings were invoked by Arvind Kumar

Sharma, the respondent before us, asserting that he was a member of

the petitioner Sadbhawna Cooperative Group Housing Society and

would be accordingly entitled to allotment of flat.

3. Learned senior counsel appearing for the petitioner submits that

the Cooperative Society was initially in control of some unscrupulous

persons, who were property dealers and they had made a number of

bogus enrolments. In 2003, the administrator appointed by the

Registrar of Cooperative Societies had sent the letter dated 4th

September, 2003, asking the respondent to pay Rs.5,00,000/- within

10 days towards construction fund. The said letter was received by

the respondent on 9th November, 2003, but the payment was not

made. Subsequently, the administrator had published an

advertisement dated 20th September, 2003, wherein a list of members,

who had not replied to the administrator's letter dated 28th August,

2003 was published, and they were asked as to why expulsion

proceedings against them should not be initiated. The administrator

on 27th September, 2003 published a list of members, who had not

responded to the letters on the ground of non-existence, disinterest in

membership or whose whereabouts were not known. This list of

illegal members was ultimately rectified in the Special Body Meeting

called by the administrator on 12th October, 2003 and the membership

of the persons enlisted had ceased to be operative from the said date.

4. In the present case, the respondent in the year 2002 had filed

proceedings before the consumer forum under the Consumer

Protection Act. These proceedings, it is obvious, were initiated well

before the administrator had issued the letters dated 28th August, 2003

and 4th September, 2003.

5. As far as the membership of the respondent is concerned, the

Cooperative Society cannot deny his membership as his and details of

the respondent were entered into the membership register in 1995 and

he was given membership No.196. The letters written by the

administrator in 2003 addressed to the respondent, would itself

indicate that the respondent was enlisted and shown as a member. In

these circumstances, the contention of the petitioner that the

respondent had filled up an application form, which was circulated by

Sterling City Development Company Pvt. Ltd., has to be rejected. The

respondent may have filled the said form, but what is important and

relevant is that the respondent was duly treated as enrolled member.

Even if there were lapses and faults in not passing a formal resolution,

etc., these were internal lapses, attributable to the petitioner society.

In fact, the assertion as made by the petitioner society would show

and highlight the gullibleness and naivety of the respondent, who was

unaware of the legal intricacies. The respondent was an innocent

layman, apparent from filing of proceeding under the Consumer

Protection Act. Rather than a legalistic approach, the award and the

appellate order take a holistic view so as to not deny and oust a person

waiting since 1995. The respondent had perceived and believed that

he had been cheated and duped. The respondent was at the receiving

end, and not one of those who had indulged in illegalities. This

precisely, what has weighed and has counted in the two pronouncements

i.e. the award and the appellate order under challenge.

6. The impugned Award specifically records that the membership

of the claimant had ceased on 27th September, 2003. The defence of

the petitioner-Cooperative Society before the Arbitrator was that the

respondent was enrolled as a member by illegal and fraudulent means

and he should not have been enrolled as a member. The petitioner's

statement that the respondent had ceased to be a member itself shows

that they accept that the respondent was enrolled as a member at the

first stage. For cancellation of membership, the petitioner has failed

to show that they have followed rules and regulations of expulsion as

envisage in Rule 36 of the Delhi Cooperative Societies Rules, 1973 as

well as the procedure as laid down by the RCS office vide its

directive dated F-47/GH/Directive/89-90 dated 26th March, 1990.

Similarly, the petitioner has also failed to follow the procedure laid

down under Section 40 of the Act, which stipulates that the expulsion

or cessation has to be approved by the Registrar, Cooperative

Societies. Unless, the said action was approved by the Registrar,

Cooperative Societies, it cannot be termed that cessation or expulsion

is legal. The petitioner Cooperative Society has nowhere pleaded nor

has placed on record any document that the cessation of the

respondent has been approved by the Registrar, Cooperative

Societies. It is also not pleaded by the petitioner Cooperative Society

that the respondent has at any time tendered resignation from

membership and that the society has refunded the amount deposited

by the respondent.

7. The petitioner before the Tribunal had submitted that the claim

of the respondent was barred by limitation. The said contention

obviously is not correct, for the respondent had earlier initiated

proceedings under the Consumer Protection Act and subsequently

initiated proceedings under the Delhi Cooperative Societies Act. The

arbitration application filed by the respondent was initially rejected by

the Registrar, Cooperative Societies, but the respondent has

succeeded before the Cooperative Tribunal. The Cooperative Society

had then filed W.P. (C) No. 1921/2011, which was disposed of vide

order dated 29th August, 2011 by a Division Bench of this Court. As

per the said order, the respondent had agreed to withdraw the

consumer complaint and the disputes between the Cooperative

Society and the respondent were referred to arbitration.

8. Another contention raised by the petitioner Cooperative Society

is that the respondent in the consumer complaint had sought refund of

the amount deposited by him, but had subsequently in the arbitration

proceedings raised the claim that his membership should continue.

We are not inclined, for this reason to issue notice in the writ petition,

for the respondent could have amended his claim. It is apparent that

the respondent did change his stand, on becoming aware of the legal

position. For the reasons and grounds indicated and referred to above,

the contention of the petitioner should be rejected.

9. We have referred to the contentions of the petitioner society

and the impugned orders, and have made observations in some detail

to satisfy ourselves that the orders under challenge do not suffer from

any perversity. We are not the appellate court and would not exercise

writ jurisdiction even if we feel a contrary view was possible. The

Arbitrator and Appellate Authority had the benefit of hearing the

parties and have taken a reasonable and plausible view, which is not

absurd or illogical.

10. Before the allotment of flats, the society and Registrar,

Cooperative Societies are required to examine the question of

eligibility, etc. which means that the authority would examine

whether the respondent was qualified to be a member and has not

incurred and disqualification. The impugned Award and order do not

bar or prohibit the said enquiries or examination. Question of

residence, if raised and relevant, could be examined then. Similarly,

the award/order under challenge does not quantify the amount

payable, or decide whether interest would be payable. These aspects

are open and we hope and trust that the petitioner society would take a

reasonable view.

8. In view of the aforesaid discussion, the writ petition is

dismissed.

SANJIV KHANNA, J.

CHANDER SHEKHAR, J.

DECEMBER 06, 2016 NA