Usha Aggarwal v. The Punjabi Bagh Co-Operative Housing and Anr

RAJIV SAHAI ENDLAW, J.

MAY 09, 2018 "pp/gsr"..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 9th May, 2018 + CS(OS) No.634/2004 USHA AGGARWAL ..... Plaintiff Through: Ms. Babita, Adv. Versus THE PUNJABI BAGH CO-OPERATIVE HOUSING SOCIETY LTD. AND ANR. ..... Defendants Through: Mr. P.D. Gupta, Sr. Adv. with Mr. Atul Gupta, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff instituted this suit, on 26th May, 2004, for specific performance of an agreement of sale of plot no.50, Road No.78 ad measuring 1733 sq. mtrs., East Punjabi Bagh, New Delhi and in the alternative to recover damages for breach of contract in the sum of Rs.4.50 crores, pleading (i) that the defendant no.1, on 14th June, 1950 was registered in the name of Refugee Cooperative Housing Society Ltd. under the provisions of the Bombay Act VII of 1925 as then extended to Delhi; (ii) that at the time of registration of the defendant no.1, very few people were enrolled as its members and majority of the present members of the defendant no.1 were enrolled subsequently; (iii) that the bye-laws adopted by the defendant no.1 under the Delhi Co-operative Societies Act, 1972 are contrary to the bye-laws framed at the time of registration of defendant no.1 and are not applicable to the defendant no.1 which was formed in 1950 and thus the bye-laws adopted by defendant no.1 under the Delhi Co- operative Societies Act are not enforceable; (iv) that however the bye- laws adopted by the defendant no.1 in the year 1950 are not available to the plaintiff and must be available with the defendant no.1 and the defendant no.2 who is the Secretary of the defendant no.1; (v) that the defendant no.1, after coming into existence in the year 1950, acquired freehold land and developed it into plots and transferred the said plots to its members, by executing sale deeds of freehold rights in the said plots; (vi) that as distinct from aforesaid, under the Delhi Co-operative Societies Act, 1972, land is allotted by the land owing agency by executing leasehold rights in favour of the society and subsequently the society executing sub-lease hold rights in favour of its members; (vii) that the defendant no.1, by way of inviting proposals, either by way of publication in newspaper or issuing circulars or affixing upon notice boards of the defendant no.1, has sold various plots of land to its members and outsiders also who were subsequently enrolled as members of the defendant no.1; (viii) that various persons including the office bearers of the defendant no.1 have purchased more than one plot and are in occupation of the same; (ix) that plot no.50, Road No.78 ad-measuring 1733 sq. mtrs., East Punjabi Bagh, was a "spare plot"; (x) in April / May, 2003, the defendant no.1 invited offers from the public at large for purchase of the said plot; (xi) the plaintiff, vide her letter dated 16th June, 2003, made an offer for purchase of the said plot for a consideration of Rs.4.50 crores and paid a sum of Rs.10,00,000/- by way of earnest money; (xii) the defendant no.1, vide its letter dated 22nd July, 2003, communicated to the plaintiff the acceptance by the members of the Managing Committee of the defendant no.1, in the meeting held on 22nd July, 2003, of the offer of the plaintiff and of "little hitch for getting clearance from the office of the Registrar Co-operative Societies" and further informed the plaintiff that "in case there is some reservation from the Registrar"s office" the defendant no. 1 will "not be able to enter into this deal" and will return the amount of Rs.10,00,000/- to the plaintiff; (xiii) that thus, there has been a concluded contract for sale of plot in question and the clearance from the office of Registrar, Co-operative Societies "is more here as stipulated in the terms of the contract"; (xiv) that the plaintiff performed all her obligations by depositing Rs.10,00,000/- and the defendant no.1 had to obtain necessary clearance from the Registrar, Co-operative Societies and the plaintiff was to be