New Delhi Hotels Ltd & Anr vs Association Of Apartment Owners ...
2016 Latest Caselaw 6624 Del

$~A-
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              Date of decision: 20.10.2016
+      CM(M) 1308/2013
       NEW DELHI HOTELS LTD & ANR                    ..... Petitioners
                       Through Mr. Mohit Gupta and Mr.Rohit Gupta,
                               Advocates
                versus
       ASSOCIATION OF APARTMENT OWNERS
       OF MERCANTILE HOUSE (REGD)               ..... Respondent
                       Through Ms. Sunita Bhardwaj, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. The present petition is filed under Article 227 of the Constitution of India with a prayer that this court may order/direct striking of plaints in Suit No. 92/2013 title as "Association of Apartment Owners Ltd. vs. New Delhi Hotels Ltd." and Suit No. 94/2013 titled as "Association of Apartment Owners Ltd. vs. New Delhi Hotels Ltd."

2. Some of the relevant facts are that the controversy revolves around the Mercantile House, 15 KG Marg, New Delhi. The details of the dispute have already been stated in a connected matter being CM(M) 634/2013 which has also been disposed of along with the present petition.

3. The relevant portion of the disputes read as follows:-

"There is an intense dispute going on between the petitioner namely the builder and the respondent namely Association of Apartment Owners of Mercantile House who claim to be the majority Association of Apartment Owners and another association namely the Mercantile Flat Owners Association. On

17.04.2016, on an application filed by the said Mercantile Flat Owners Association (hereinafter referred to as the 'Applicant), they were impleaded as a party to the present petition. This court in its said order dated 17.04.2016 noted the averments of the applicant that a majority of the members of the flat owners are on the side of the applicant. Affidavits of the members supporting the applicants were also filed whereby it was revealed that 93 members are on the side of the applicant. This court also noted that the dispute is actually between the respondent and the applicant and it would be necessary to decide which is the legal and valid association i.e. as to whether the respondent association or the applicant association. It was also noted that an application under Order I Rule 10 has already been filed before the trial court which is pending adjudication. In this background the application of the applicant was allowed and it was impleaded as a party."

4. Hence, essentially the dispute is between the builder, namely, the petitioners and the respondent i.e. Association of Apartment Owners of Mercantile House and the other Association, namely, Mercantile House Flat Owners Association. The petitioner is siding with the Mercantile Flat Owners Association. The stand of the petitioner is that in October 2011 the flat owners decided to register an association by the name of "Mercantile House Flat Owners Association". Mercantile House Flat Owners Association applied to the Deputy Commissioner for registration. The Association was registered on 21.11.2011. However, it is the contention of the petitioners that two advocates engaged by petitioner No. 2, namely, Smt. Sunita Bhardwaj and Sh. Umesh Sharma also tried to register the Association but they did not succeed. They have attempted to register two associations, namely, "Mercantile House Flat Occupiers Association" and "Mercantile House Apartment Owners Association". When this fact came to the notice of the

Association, an application is said to have been addressed to the Registrar of Societies on 20.12.2011. The applications made by Smt. Sunita Bhardwaj were rejected. Various other allegations are made against Smt. Sunita Bhardwaj and her husband. It is further stated that Smt. Sunita Bhardwaj and Mr. Umesh Sharma purchased a flat in the Mercantile House on 19.12.2011. Thereafter, Smt. Sunita Bhardwaj impersonated herself as the Secretary of Mercantile House Flat Owners Association and proceeded to file two suits i.e. Suit No. 14/2012 titled as "Mercantile House Flat Owners Association vs. New Delhi Hotels & Ors." and Suit No. 15/2012 titled as "Mercantile House Flat Owners Association vs. Charan Jive Pratab Ahluwalia & Ors.". Similarly there was a dispute regarding bills which were said to have been raised by Smt. Sunita Bhardwaj in the guise of maintenance of the Association. It is further stated that Smt.Sunita Bhardwaj has filed various suits including CS(OS) 28/2012 titled as "Associaiton of Apartment Owners of Mercantile House vs. New Delhi Hotels Ltd." in the court of Civil Judge at Patiala House, Suit No. 5/2012 titled as "Association of Apartment Owners of Mercantile House vs. New Delhi Hotels", Suit No. 112/2012 titled as "Association of Apartment Owners of Mercantile House vs. New Delhi Hotels Ltd." and Suit No. 4926/2012 titled as "Association of Apartment Owners of Mercantile House vs. New Delhi Hotels Ltd."

5. Further two more suits have now been filed being Suit No. 92/2013 titled as "Association of Apartment Owners Ltd. vs. New Delhi Hotels Ltd." and Suit No. 94/2013 titled as "Association of Apartment Owners Ltd. vs. New Delhi Hotels Ltd." Based on that the present petition is filed stating that in view of Order 2 Rule 2 CPC, both the suits are not maintainable.

6. It is obvious from the reading of the petition that instead of approaching the concerned trial court with an appropriate application for rejection of the plaint on the plea that it is hit by Order 2 Rule 2 CPC, the petitioners have decided to straightway approach this court in exercise of powers under Article 227 of Constitution of India. This would, in my opinion, not be the correct approach.

7. Article 227 of the Constitution of India reads as follows:-

"227. Power of superintendence over all courts by the High Court (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction (2) Without prejudice to the generality of the foregoing provisions, the High Court may

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts

8. Accordingly, it is for the petitioners to approach the concerned trial court with an appropriate application to deal with any such submission. Granting the said leave and liberty to the petitioners to approach the trial court, the present petition is disposed of.

9. All pending applications also stand disposed of.

JAYANT NATH, J.

OCTOBER 20, 2016/rb