Civil Court has no jurisdiction in case between Member & Society

In some of the cases of un-authorized construction in a co-operative society, the Managing Committee files civil suit against the member to remove un-authorized construction and forbid further un-authorized construction.

In one of such case M/S Khosla Compressors Co-operative Group Housing Society Ltd, New Delhi filed a case against Mr. Barun Kumar Yadav under Order XXXIX Rule 1 and 2 in civil district court at Dwarka, New Delhi on 15-09-2015.

In total there were 25 hearings of this case and finally on 01.11.2017, the civil suit was dismissed after hearing final arguments by Advocate Raminder Singh Sahota (http://rsahota.com).

In this case CS SCJ No.188/2015 New number.26287/16, the court ordered as follows:

Present : None for the Plaintiff. Sh. Raminder Singh Sahota, Ld Counsel for the Defendants.

Ld. Counsel for the defendant has filed written arguments regarding the application u/s 9 as well as section 11 and 12 CPC. Same are taken on record. Ld Counsel has also advanced arguments on the said application.

No one has appeared on behalf of plaintiff despite several calls. Moreover, no one has appeared on behalf of the Plaintiff for the last three dates of hearing. It appears that plaintiff is not interested in pursuing the suit.

The suit is dismissed for non-prosecution

File be consigned to Record Room after due compliance

(Mohit Sharma)

Ld. Civil Judge(SW)/Dwarka Courts

New Delhi/01.11.2017

 following were the final arguments

IN THE COURT OF CIVIL JUDGE CUM RC SOUTH WEST DWARKA

CS-SCJ/426287/2016

In the matter of

M/S Khosla Compressors Staff CGHS Ltd         Petitioner

Versus

Mr. BK Yadav &Ors                           Defendant

WRITTEN ARGUMENTS BY DEFENDANT

Most respectfully submitted that, the Hon’ble Court is requested its orders on following 2 Applications filed by the Defendant and the same are being explained:

 

  1. That, complete application filed on 16/02/2017 U/Sec 9 read with Sec 151 of the Code of Civil Procedures, read out and stress laid on Prayer.
  2. That, complete application filed on 02/06/2017 U/Sec 11 and 12 read with Sec 151 of Code of Civil Procedures, read out and stress laid on Prayer. As advised by Hon’ble Court, copies of judgments along with above 2 applications were sent to the Petitioner on 07/06/2017 by Speed Post and have been delivered on 08/06/2017to the Petitioner.
  3. That, part submissions & verbal arguments have been heard by the Hon’ble Court and last was on 23/102017. It is noteworthy the Petitioner had been imposed Cost Rs.3,000/-, Rs.5,000/- & Rs.2,000/- for not attending the Court on fixed dates but the Petitioner never paid the Cost to Defendants.
  4. That, Hon’ble Court may please peruse the AWARD dated 26/07/2016, on Para 3 that the Defendant herein had stressed by application to Society, theRCS and DCP for repair to COMMON SPACE & SECURITY ARRANGEMENTS on 26/05/2015. While this matter was being heard U/Sec 70 by the Dy. Registrar, the Society made a counterblast by a Legal Notice dated 08/07/2015.That, the Defendant herein was one of the 4 Petitioners in the Case before RCS on the same Cause of Action& the Petitioner herein was Respondent; for which the case has been lodged by the Petitioner herein on 15/09/2015. That, the case status is already filed.
  5. That, the present case is liable to be dismissed as this Hon’ble Court do not have jurisdiction as per provisions of the DCS Act and the DCS Rules read with relevant provision of Code of Civil Procedures. Following are the judgments relevant to this case.

 

  • Mona Shrivastava versus AK Yadav & Or: wherein a case U/Sec 34 of Arbitration & Conciliation filed was dismissed because the DCS Act provides remedy of Appeal against AWARD U/Sec 112 of the DCS Act and jurisdiction is barred in Civil Court U/Sec 132 of the DCS Act, 2003. THEREFORE, THE SOCIETY SHOULD HAVE GONE FOR APPEAL INSTEAD OF FILIING &CONTINUING THE CASE BEFORE THIS HON’BLE COURT.
  • DR Roy versus Smt Umesh Yadav: In page 4/5 the District Judge has clearly accepted that U/Sec 9 CPC, Civil Courts have no jurisdiction
  • Prakash Narain Sharma versus Burmah Shell CGHS: Delhi High Court decided that even if the Arbitrator has died, the case has to be heard by RCS by appointing another Arbitrator and Civil Courts have no jurisdiction.
  • Prakash Narain Sharma versus Burmah Shell CGHS: Even appeal against the single judge of High Court was dismissed and said at page 2/3 that “Civil Court was a nullity”. So the Civil Courts have no jurisdiction.
  • Smt Meenakshi Kumar versus MS Chawla: this was a similar case to this case and was argued by the undersigned Advocate, wherein the case was dismissed due to provisions of Section 9 r/w Sec 151 of CPC.
  • Ramesh Chand Ardavatiya versus Anil Panjwanit: A part of Para 10 of this judgment was quoted by the Petitioner here in and an Order was passed by this Hon’ble Court without reading full Para 10 of the judgment, wherein the Respondent herein the judgment says that an objection of jurisdiction should be taken before the Trial Court.
  • GB Bhardwaj versus Asst Registrar: Wherein Karnataka High Court in Para 4 has set aside the judgment and decree of Trial Court on the grounds such suit is not maintainable in Civil Courts.
  • Prakash Narain Sharma versus Burmah Shell CGHS Ltd: Delhi High Court in Para 11 said that “since the principle that an order passed by a court which has no jurisdiction is a nullity is very well settled, it is not necessary to refer to various other decisions on the point.”

 

In view of my above 2 applications and 8 judgments (in full) provided herein, it is requested that the case of the Petitioner is liable to be dismissed and it be dismissed with high cost for harassing Naval Officer.

Raminder Singh Sahota

Advocate

Counsel for the Defendant

 

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3 Comments

  • Ramanathan Rajgopal says:

    Whether administrator cum Returning officer appointed by RCS under section 35(5) of DCS act continue to function as administrator without holding elections even after lapse of 3 months. Can he undertake major civil work in the society incurring huge expenses and function as full fledged Mananging committee. Can he call for GBM to take policy decisions even after the lapse of 3 months without holding elections as per RCS appointment. Please clarify.

  • PK Das says:

    In CGHS at Delhi flats are allotment to some of the bonafied members on execution of indemnity bonds. This arrangement was made because some of the resigned members claimed for flats and which is under District court of RCS. Court Case is progressing in snails space. I wish to ask Advocate ji what is the periodicity of indemnity bond? Whats is the time frame of closure/Liquidation/Void of such bonds. Because of indemnity bonds members are debarred by President of CGHS for applying to make the flat “Free Hold”

  • Advocateji says:

    Dear PK Das, You are advised to get in touch with co-operative societies any legal expert or our legal expert along with documentary proof for proper advice. The advice cannot be complete and useful without reading and analysing the documents and reading it along with court cases already decided by high court and supreme court.

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