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2009 Supreme(Del) 798
IN THE HIGH COURT OF DELHI
S.MURALIDHAR
SAGAR APARTMENT FLAT OWNERS SOCIETY - Appellant
Versus
SEQUOIA CONST P.LTD. - Respondent
IA Nos. 9293 & 9294 of 2007 in CS(OS) 3967/1992 & IA No.6780 of 2007 in CS (OS) 2883 of 1996
Decided On : 23-07-2009
Mr. J.C. Mahindroo, Advocate.
Mr. Rakesh Tiku, Advocate for D-1. Mr. Ashutosh Lohia, Additional Standing counsel for NDMC. Ms. Priyam Bhatnagar, Advocate for NDMC. Mr. Atul Nanda and Ms. Rameeza Kaheem, Advocates for Applicant in IA No. 9293/2007. Mr. Rajesh Aggarwal, Advocate for Applicant in IA No. 9294/2007
The main legal point established in the judgment is that the withdrawal of a suit must be valid and signed by all parties whose interests would be affected, and the resolution passed by the Executive Committee of the Society must consult all the members of the Society.
Headnote:
Withdrawal of Suit - Restoration - Order I Rule 8(4), Order XXIII Rule 1(5), Section 151 CPC - CS(OS) 3967/1992 - Summary of Acts and Sections: The court discussed the withdrawal of the suit and restoration under Order I Rule 8(4), Order XXIII Rule 1(5), and Section 151 CPC. The key legal provisions were interpreted to determine the validity of the withdrawal and restoration of the suit.
Fact of the Case:
The suit CS(OS) No. 3967 of 1992 was filed by Sagar Apartments Flat Owners Society against the builder M/s. Sequoia Constructions (P) Ltd. and 9 other Defendants seeking various reliefs related to the management and maintenance of common areas and facilities in the building complex.
Finding of the Court:
The court found that the withdrawal of the suit was not valid as it was not signed by all parties whose interests would be affected, and the resolution passed by the Executive Committee of the Society did not consult all the members of the Society. The court recalled the order allowing the withdrawal and restored the suit.
Issues: The issues involved whether the withdrawal of the suit was valid and whether all parties whose interests would be affected were consulted before the withdrawal.
Ratio Decidendi: The court held that the suit could not have been withdrawn without consulting all the members of the Society and the parties whose interests were affected. The withdrawal was not valid, and the suit was restored.
Final Decision: IA Nos. 9293, 9294 and 6780 of 2007 were allowed, IA No. 5397 of 2007 was dismissed, and CS (OS) 3967 of 1992 was revived. The suit will be listed before the Joint Registrar for admission/denial of documents on 11th September 2009.
IA No. 9293 & 9294/2007 in CS(OS) 3967/1992 & IA No. 6780/2007 in CS(OS) 2883/1996
1. These applications seek the restoration of CS(OS) No.3967 of 1992 which
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by an order dated 9May 2007 was dismissed as withdrawn pursuant to an
application being IA No. 5397 of 2007 filed by Plaintiff No.1.
2. IA No. 9293/2009 under Order I Rule 8(4), Order XXIII Rule 1(5) and
Section 151 CPC is by seven persons viz., Mr. G.P. Barooah (resident of Flat No. 1C), Mrs. Reena Sehgal (resident of Flat 6D), Mr. Ashok Arora (resident of Flat 4C), Mr. R.K. Singal (resident of Flat 7C), Mr. B.P.S. Puri (resident of Flat 8C), Mrs. Asha Chandra (resident of Flat 9B) and Mr. K.K. Gupta (resident of Flat 10C) of Sagar Apartments, Tilak Marg, New Delhi. It may be mentioned that IA No. 9294 of 2007 by Mr. Rajender Jaina who is owner of Flat-P, Sagar Apartments, seeks the same relief. IA No. 6780 of 2007 seeking similar relief is by the New India Assurance Company Ltd. 1Rs. 12A and 13C of Sagar Apartments. By an
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order dated 6 March 2007 NIACL was imple CS(OS) No. 3967 of 1992 [earlier NIACL had filed CS (OS) No. 2883& 2884 of 1996].
3. The background to the filing of the present applications is that CS (OS) No. 3967 of 1992 was filed by Sagar Apartments Flat Owners Society (Regd.) hereafter either an owner or a resident of a flat in the Society. The suit was filed against the builder M/s. Sequoia Constructions (P) Ltd. and 9 other Defendants seeking the following reliefs:
³(1) Decree for declaration that the areas and amenities listed in schedule A to the plaint in multi-storeyed building called Sagar Apartements, situate at 6, Tilak appurtenant to Apartments owners viz. Class of above-mentioned persons and by way of consequential relief to above direct/order that defendant no.1 its agents, employees or any other person in the name of said defendant, is not entitled to claim any right, title or interest therein of whatsoever nature, in any manner detrimental to interest of above-mentioned class of persons.
.(2) Decree for declaration that any transaction entered/claimed to be entered by defendant no.1 in respect to any structure/area comprised as common areas and facilities in above-mentioned building complex with any person as null and void as a consequential relief to above, to restrain defendant no.1 and all other such persons from claiming any right or interest of whatsoever nature in the above-mentioned building including the management of said building, or otherwise in any manner, through any means.
.(3) Decree for declaration that defendant no.1 company by itself or through any contractor, sub-contractor, agents, employees or any person called by whatever name, has no right to make any construction or demolition of whatsoever nature, either by way of addition, alteration or modification or any other means, in building called Sagar Apartments situate at 6, Tilak Marg, New Delhi and by way of consequential relief to above, restrain above said persons from making or engaging in any constructional activity in the aforesaid building.
.(4) To require defendant no.2- NDMC by issue of perpetual/mandatory injunction, to demolish all the illegal and un-authorised constructions more particularly ones described in colour red in plan annexed as Schedule-C to the plaint, in pursuance to steps already taken by said committee in respect to property called Sagar Apartments, 6 Tilak Marg, New Delhi.
.(5) To require defendant no.2 by issue of perpetual/ mandatory injunction, to stop misuse of electricity/ connection sanctioned in the building for running of common facilities and laying up of common areas in above mentioned building.
.(6) To require defendant no.3 by issue of perpetual/ mandatory injunction requiring the said defendant to initiate action against defendant no.1 under the terms of perpetual lease deed executed by their office in favour of defendant no.1 in respect to land underneath above mentioned building for the non-payment of/with holding o
