RANA CASE: SLP FILED IN THE SUPREME COURT

SYNOPSIS & LIST OF DATES

The petition raises the question of law as to whether arbitrator could overlook the provisions of the contract which clearly provided for the payment of liquidated damages in the event of the contractor failing to complete the project within a stipulated period of 24 months. Further, whether the Division Bench of the High Court was justified in refusing to look into the aspect of liquidated damages simply because the Single Judge had not dealt with the issue despite the fact that the written submissions filed before the Single Judge clearly indicate that the issue in regard to the payment of liquidated damages by the contractor in case of delay was actually raised before the Single Judge.

25.02.1996 – An agreement was entered into between the petitioner – Society and the respondent for the construction of 166 dwelling units. Clause 16 of the agreement provided that work shall be completed within 24 months from the date of commencement. It is submitted that the work having commenced on 25.02.1996, the date of completion was 24.02.1998. Further, clause 18 of the agreement stipulates that contractor shall give a written notice of the cause of delay to the Society and the contractor shall be deemed to have waived his right if the written notice is not given within a period of 14 days from the cause of delay. Further, clause 47 clearly provides for compensation in case of delay @ one percent per week of the tendered cost. The relevant clauses are reproduced below –
“16. Commencement and completion
(1) From the date of commencement of work as stated in the appendix, The contractor shall thereupon bring the works and regularly and diligently proceed with the same, and shall complete the same on or before the date for completion stated in the said appendix subject nevertheless to the provisions for extensions of time contained in clause 18 of these conditions.

(2) The time and date for completion stated in the appendix to these conditions shall be calculated from date for start stated in the appendix to these conditions and the period for completion of the works stated in the appendix-I shall be deemed to be inclusive of Sundays and all public holidays. Time shall be essence of this contract.

(3) The society may issue instructions in regard to the postponement of any work or part of work to be executed under the provisions of this contract.”

“18. Extension of time
Upon it becoming reasonably apparent that the progress of the works is delayed, the contractor shall forthwith give written notice of the cause of the delay to the engineer/society, and if in the opinion of the engineer/society the completion of the works is likely to be or has been delayed beyond the date for completion stated in the appendix to these conditions or beyond any extended time previously fixed under this clause-

(A) By force majeure, which means Wars or Revolutions, Fires, Flood Epidemics only. No other event shall be covered under this contract works.
(B) By reason of engineer/society instructions regarding variation to or postponement of the contract works, then the contractor shall inform the engineer within 14 days of such event happening which the contractor considers that he is entitled to extension of time. The engineer shall estimate the length of the delay and make in writing a fair and reasonable extension of time for completion of the works in consultation with the society. Provided always that the contractor shall use constantly his best endeavours to prevent delay and shall do all that may reasonable be required to the satisfaction of the engineer to proceed with the works. The contractor is deemed to have waived his right if such notification is not given to the engineer/society within 14 days of such event happening.”

“47. The time allowed for carrying out the work as entered in the tender shall be strictly observed by the contractor and shall be deemed to be of the essence of the contract on the part of the contractor and shall be reckoned from the tenth day after the date on which the order to commence the work is issued to the contractor. The work shall throughout the stipulated period of the contract be proceeded with all due diligence and the contractor shall pay as compensation an amount equal to one percent of tendered cost per week subject to Rs.1,00,000 (Rupees One Lac Only) per week that the work remains uncommenced or unfinished after the proper dates and further to ensure good progress during the execution of the work the contractor shall be bound to complete one fourth of the whole of the work before one-fourth of the whole time allowed under the contract has elapsed: three-fourth of the work before three –fourth of such time has elapsed. However for special jobs if a time-schedule has been submitted by the contractor and the same has been accepted by the society the contractor shall comply with the said time-schedule. In the event of the contractor failing to comply with this condition he shall be liable to pay as compensation an amount equal to one per cent of tendered cost per week subject to a maximum or Rs.1,00,000/-(Rupees One Lac Only) for every week that the due quantity of work remains incomplete.”

It is submitted that the respondent themselves have taken the stand that the work was completed on 24.12.2002 i.e. 4½ years after the due date for completion. It is pertinent to point out that admittedly the contractor never issued any notice to the Society regarding the cause of delay. In view of the same, Clause 47 of the agreement ought to have full play. In fact, the arbitrator went wrong in disallowing the counter-claim of the petitioner on the ground that the petitioner-society failed to point out the delay to the contractor which finding is clearly contrary to provisions of the contract specifically providing that it was for the contractor to issue necessary notice to the society in case of delay on account of force meajure, deviations or hindrances on the part of the society. A copy of the Agreement dt. 25.02.1996 is annexed as Annexure P-1.

01.11.1999 – The respondent submitted the 18th and pre-final bill to the Society. It was clearly mentioned in the bill that the balance work worth Rs.38.52 Lacs remained to be executed.

22.11.1999 – The architect certifies the work done by the contractor to the tune of Rs.10.95 Crores and indicates that the balance of work of Rs.38.52 Lacs remained to be done. In fact, the Architect certified that total work of Rs.10.95 Crores was executed by the respondent which included escalation of Rs.84,19,938/- upto March 1999. A copy of certificate dt. 22.11.1999 issued by the architect is annexed as Annexure P-2 (p. 164).

17.04.2000 – The Society disputed the certificate issued by the architect and pointed out that escalation should not have been allowed beyond October 1998 as no work was executed since Oct 1998. A copy of the letter dt. 17.04.2000 is annexed as Annexure P-3 (p. 165).

24.12.2002 – The contractor produced a certificate purportedly issued by the architect on 24.12.2002 indicating that the work was completed by the respondent on 24.12.2002. It is interesting to note that the said completion certificate was not produced by the respondent - claimant at the time of filing of the claim before the Arbitrator. It was only after the Society in its reply / counter-statement had raised the issue that work was not completed and that neither the Society nor its architect issued any completion certificate, the claimant filed the aforesaid certificate as additional documents. Significantly, clause 42 requires the contractor to give 10 days notice on completion of work. It is submitted that no such notice was given to the Society and the architect issued the purported completion certificate on 24.12.2002 indicating date of completion as 24.12.2002. Notably, Clause 42 contemplates defect liability period of one year from issuance of completion certificate by the architect and on completion of the defect liability period the society issues the actual completion certificate. Clause 42 is reproduced as under –

“42. Certificate of Completion

Within ten days of the completion of the work the contractor shall give notice of such completion to the society/architect and the works shall not be considered as completed until the society have been satisfied that they have been completed and the defects liability period shall commence from the date of issue of a certificate by them through the architect or otherwise.”

A copy of the Completion Certificate dt. 24.12.2002 is annexed as Annexure P-4.

02.09.2004 – The respondent filed the statement of claim before the arbitrator wherein balance payment of Rs.91.68 Lacs was claimed as the amount due and further prayer was made for release of the security amount. A copy of the statement of claim dt. 02.09.2004 filed by the respondent before the Arbitrator is annexed as Annexure P-5 (p. 173).

19.11.2004 – The Society filed the written statement-cum-counter claim wherein it was denied that any amount was due from the Society and a counter claim was put forward claiming liquidated damages from the respondent - contractor in terms of clause 47 of the Agreement for the delay in completing the project. A copy of the written statement-cum-counter claim dt. 19.11.2004 is annexed as Annexure P-6 (p. 182-210).

14.12.2004 – In rejoinder, the respondent denied before the Arbitrator the counter-claim preferred by the petitioner Society. A copy of rejoinder dt.

14.12.2004 is annexed as Annexure P-7 (p. 211-224).

24.10.2005 – The Arbitrator allowed the following claims of the respondents:
(a) return of security deposit of Rs.10..00 Lacs as it was held by the arbitrator that the work stood completed on 24.12.2002.
(b) award of Rs.75,19,230/- on account of the work done for which payment had not been released by the society.
(c) interest @12% per annum on the sum of Rs.75,19,230/-.
(d) Rs.50,000/- as costs.
The counter-claim of the petitioner – Society was rejected on the ground that time was not essence of the contract, compensations for the delayed period were not payable.
A copy of Award dt. 24.10.2005 made by the Arbitrator is annexed as Annexure P-8 (p. 233-246).

19.01.2006 – The award was challenged by way of a petition under section 34 of the Arbitration & Conciliation Act 1996. A copy of the petition dt. 19.01.2006 is annexed as Annexure P-9 (p.249-278).

06.01.2007 – Written submissions were filed on behalf of the petitioner – Society wherein denial of liquidated damages in favour of the society was challenged specifically on the ground that the award goes against the express provisions of the contract viz. Clause 47, 17 & 18 of the Agreement. A copy of the written submission dt. 06.01.2007 filed before the Ld. Single Judge is annexed as Annexure P-10 (p.331-361).

19.02.2007 – The Ld. Single Judge dismissed the petition without adverting to the submission of the petitioner – society to the effect that the arbitrator had wrongly rejected the counter-claim of the Society for liquidated damages on the basis of clause 47 of the agreement. A copy of order and judgement dt. 19.02.2007 of the Single Judge of the High Court is annexed as Annexure P-11. (p. 363-372).

16.04.2007 – An appeal was preferred by the petitioner – Society before the Division Bench of the High Court. A copy of memo of appeal dt. 16.04.2007 is annexed as Annexure P-12 (p. 1-28). It was specifically pleaded that Ld. Single Judge had ignored the written submissions filed by the Society before the Single Judge. A copy of memo of appeal dt. 16.04.2007 is annexed as Annexure P-12 (p. 1-28).

– The Division Bench refused to go into the question of liquidated damages on the ground that a plea to this effect had not been dealt with by the Ld. Single Judge in his judgement presumably because such a plea was not raised before the Single Judge. The Division Bench declined to take cognizance of the written submissions filed before the Single Judge wherein a specific plea based on clause 47 of the Agreement was raised.

– Hence the SLP.
IN THE SUPREME COURT OF INDIA
(ORDER XVI RULE 4 (1)(A)
CIVIL APPELLATE JURISDICTION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (C ) No OF 2009
(WITH PRAYER FOR INTERIM RELIEF)
Position of the Parties
In High Court In this Court
BETWEEN
1. DIN Coop. Group Housing
Society Ltd. Appellant Petitioner

Versus
Shri A.S. Rana Respondent contesting respondent

To,
The Hon’ble Chief Justice of India and
His Companion Judges of the Supreme
Court of India.

The Humble petition of the petitioner
abovenamed.

MOST RESPECTFULLY SHOWETH.
1. This petition is being filed against the final order and judgment dated 03.11.2009 passed by the Division Bench of the High Court of Delhi at New Delhi in F.A.O. (OS) No.154/2007 whereby the High Court dismissed the appeal.



2. QUESTIONS OF LAW.

(1) Whether Division Bench was justified in not considering the plea based on clause 47 of the agreement in regard to the liquidated damages payable by the contractor in case of delay?

(2) Whether the Division Bench was correct in drawing the inference to the effect that the plea on liquidated damages was not raised before the Single Judge, even though such a plea clearly finds mention in the written submissions filed before the Single Judge?

(3) Whether it was necessary to specifically plead before the Division Bench by way of an affidavit of the counsel to the effect that the plea actually raised by the counsel was not considered by the court especially when written submissions filed before the Single Judge clearly indicate that the said plea had actually been raised before the court below?

(4) Whether the High Court fell in error in overlooking the specific provisions of the agreement stipulating levy of compensation for each week the work got delayed beyond the stipulated date for completion?

(5) Whether High Court failed to appreciate that the Arbitrator had overlooked clause 18 and clause 45 of the agreement which makes it mandatory on the contractor to give notice to the Society in case of delay and that in the absence of any notice from the contractor, it shall be deemed that the contractor has waived his right to have extension in the period of completion, the consequence of which would be that the contractor would become liable to pay compensation under clause 47 of the agreement?

1. DECLARATION IN TERMS OF RULE 4(2)
That the petitioner states that no other petition seeking leave to appeal has been filed by him against the final order and judgment dated 03.11.2009 passed by the Division Bench of the High Court of Delhi at New Delhi in F.A.O. (OS) no.154/2007.

2. DECLARATION IN TERMS OF RULE -6
The Annexures P-1 to P- produced along with the Special Leave Petition are true copies of the proceedings/documents which formed part of the records of the case in the court below against whose order the leave to appeal is sought for in this petition.

5. GROUNDS.

(1) Because the Division Bench was not justified in rejecting the plea based on clause 47 of the agreement in regard to the liquidated damages payable by the contractor in case of delay, simply because the Ld. Single Judge did not deal with the said plea.

(2) Because the Division Bench was not correct in drawing the inference to the effect that the plea on liquidated damages was not raised before the Single Judge,

even though such a plea clearly finds mention in the written submission filed before the Single Judge.

(3) Because it was not necessary to specifically plead before the Division Bench by way of an affidavit of the counsel that the plea actually raised by the counsel was not considered by the court especially when written submission filed before the Single Judge clearly indicate that the said plea had actually been raised before the court below.

(4) Because the High Court fell in error in overlooking the specific provisions of the agreement stipulating levy of compensation for each week the work got delayed beyond the stipulated date for completion.

(5) Because High Court failed to appreciate that the arbitrator had overlooked clause 18 and clause 45 of the agreement which make it mandatory on the contractor to give notice to the Society in case of delay and that in the absence of any notice from the contractor, it shall be deemed that the contractor had waived his right to have the extension in the period of completion, the consequence of which would be that the contractor would become liable to pay compensation under clause 47 of the agreement.

6. GROUNDS FOR INTERIM RELIEF.
In case the impugned order is not stayed, the respondent is likely to initiate execution proceedings against the petitioner – society which will cause irreparable damage to the member of the society who will not be in a position to recover the amount from the contractor even in the event of succeeding in the instant SLP.

MAIN PRAYER.

It is, therefore, prayed that your lordships may graciously be pleased to –

a) grant special leave to appeal against the final order and judgment dated 03.11.2009 passed by the High Court of Delhi at New Delhi in F.A.O. (OS) No. 154/2007.

b) Pass any other order/orders as this Hon’ble Court may deem fit and proper in the facts and the circumstances of the case.

7. PRAYER FOR INTERIM RELIEF.

It is, therefore, prayed that your Lordships may graciously be pleased to –

a) ex-parte stay may kindly be granted against the execution proceedings likely to be initiated by the respondent pursuant to the final order & judgement dt. 03.11.2009 of the Division Bench of the High Court of Delhi at New Delhi passed in F.A.O. (OS) no.154/2007.

b) pass any other order/orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER HAS IN DUTY BOUND SHALL EVER PRAY.
Drawn and Filed by
New Delhi (ANIL NAG).
Drawn on ADVOCATE FOR THE PETITIONER
Filed on IN THE SUPREME COURT OF INDIA
(ORDER XVI RULE 4 (1)(A)
CIVIL APPELLATE JURISDICTION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (C ) No OF 2009
In the matter of
Din Coop. Group Housing Society …… Petitioner
Versus
Shri A.S. Rana ………. Respondent

CERTIFICATE

Certified that the Special Leave Petition is confined only to the pleading before the court shoes order is challenged and the other documents relied upon in those proceedings. No additional facts, documents or grounds have been taken therein or relied upon in the Special Leave Petition. It is further certified that the copies of documents/Annexures attached to the special leave petition are necessary to answer the question of law raised in the petition or to make out grounds urged in the Special Leave Petition for consideration of this Hon’ble Court. This certificate is given on the basis of the instructions given by the petitioner/person authorized by the petitioner whose affidavit is filed in support of the Special Leave Petition. Filed by
(ANIL NAG)
New Delhi ADVOCATE FOR THE PETITIONER
Dated; ………


IN THE SUPREME COURT OF INDIA
(ORDER XVI RUL;E 4 (1)(A)
CIVIL APPELLATE JURISDICTION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (C ) No OF 2009
WITH PRAYER FOR INTERIM RELIEF.
(Arising out of the final order and judgment dated 03.11.2009 passed by the High Court of Delhi at New Delhi in F.A.O. (OS) No.154/2007.

IN THE MATTER OF :
Din Coop. Group Housing Society …… Petitioner
Versus
Shri A.S. Rana ………. Respondent

WITH

I.A. No………. of 2009

Application for Exemption






PAPER BOOK
(FOR INDEX KINDLY SEE INSIDE)






ADVOCATE FOR THE PETITIONER : MR. ANIL NAG.
INDEX


1. Office Report on Limitation A

!A. Listing Proforma

2. Check list

3. Synopsis and List of Dates

4. Copy of the final order and judgment
dated
APPEAL AGAINST.

5. Special Leave Petition
6. Annexure P-1 .

7. Annexure P-2.
.

LOHRI CELEBRATION

When the Earth starts moving towards the Sun, marking the auspicious period of Uttarayan, prayers are offered to the bonfire seeking abundance & prosperity. Lohri marks the end of winter on the last day of Paush, and beginning of Magha (around January 12 and 13), and is the time when people from all castes and social strata come together forgetting all past differences and grievances. The fundamental theory behind the festival of Lohri is the sense of togetherness and the culturally rich legacy of the people. At night, people gather around the bonfire and throw puffed rice & popcorns into the flames of the bonfire seeking divine benevolence for family and the community.

At DIN, we celebrated The LOHRI in our humble way at 7 PM on 13th January 2010. Most residents joined in the festivities. A bon fire waslit and a Stall was established where “South Indian” dishes were available on payment.

DRAW OF LOT FOR PARKING SPACE No 10

Parking Space No 10 has become available for allotment. Members interested in getting the Parking Space may submit their applications on plain paper along with a Cheque for Rs 5, 000/- payable to DIN CGHS Ltd, to the Secretary by 23rd January 2010. A draw of lot will be held on 24th January 2010 and the successful member will be given possession of Parking Space on payment of balance amount of Rs.95, 000/- within fifteen days from the draw of lot. The allottee will also be required to submit an affidavit on Rs 10/- non-judicial stamp paper declaring that he / she will not sell the Space / transfer parking rights and use the Space only for parking his / her vehicle and not for any other purpose. In case of any violation, the Society will be free to allocate the Parking Space to any other member through a draw of lot. Members are at liberty to witness the draw of lot and lend credence to transparency of the exercise.

The amount of Rs.5,000/- will be refunded to those who are unsuccessful applicants in draw of lots.

Please note that applications of members with pending dues will be rejected.

NEW YEAR GREETINGS

EXPENDITURE FOR THE MONTH OF DECEMBER 2009

1. Expenditure / Cash Outgo from 1st to 31st December 2009.


(a) Smt. Kamlesh Sethi’s case :
“Out of Court” settlement for refund of Rs.5, 50,000/- in
four installments without interest.
Final Installment paid on 31.12.2009 Rs.1,25,000/-


(b) Electricity expenses for common area during Nov 09 Rs. 35,841/-*


(c) Part payment of cost of new DG Set Rs. 30,000/-@


(d) Part payment of CST @ 6% on DG Set Rs. 20,000/-


(e) Return of SB of Indore Loan amount Rs. 35,000/-


(f) Diesel for generator Rs. 2,000/-


(g) Security Bill for November 2009 Rs. 43,238/-


(h) Ground Rent paid to DDA by Bank Draft Rs.2,45,318/-


(i) Draft making charges Rs. 350/-


(j) Gas for Guard Room Rs. 200/-


(k) MTNL/Airtel telephone bill Rs. 843/-


(l) Salary for Society’s employees Rs. 21,700/-


(m)Overtime paid @ Rs 400/- each Rs. 1,600/-

(i) Shri Narayan
(ii) Shri Gauri Shankar
(iii) Shri Sharad
(vi) Shri Ram Kishan


(n) Repair of Bathroom of Flat No.110 Rs. 955/-


(o) Magazines for Library for Nov. & Dec. 09 Rs. 1,425/-


(p) Threading of Pipes for re-activating fountain Rs. 90/-


(q) Repair & Cartage for Water Pump Rs. 540/-


(r) Electrical spares for the Society. Rs. 5,410/-


(s) Cleaning material for the Society. Rs. 900/-


(t) Conveyance to staff Rs. 235/-


(u) Trash Removal charges (MCD) Rs. 500/-


(v) Cell for Torches Rs. 90/-


(w) Postage Rs. 1,341/-


(x) Photocopy charges Rs. 616/-


(y) Stationery for office Rs. 255/-


(z) Lunch for Auditor Rs. 350/- ------------------
Total Expenditure: Rs. 5, 73,797/-
------------------


2. Amount Received:

(1) Maintenance/BMF (including recoveries) Rs 1,86,800/-

(2) Water Charges Rs 8,775/-

(3) Ground Rent Rs 54,297/-

(4) DDA Architect’s fee (Completion Certificate) Rs. 92,000/-

(5) Generator Fund Rs. 27,600/-

(6) Power Back up Rs. 36,000/-

(7) Other recoveries Rs. 5,620/-

(8) Late Fee Rs 2,640/-

(9) Transfer of Membership Money Rs. 1,000/-

(10) Admission Fee & Share Money Rs. 220/-
-----------------
Total Receipt: Rs. 4,14,952/-
-----------------


* Total electricity bill for the month Rs. 1,46,438/-

@ Total cost of DG paid so far Rs.10, 90, 000/-.

3. Members desirous of checking details are welcome to the Society’s office and check accounts on any working day between 10 AM to 5 PM. The right of the Members to demand inspection of all Society’s accounts maintained by the MC will be respected at all cost.

4. Suggestions / recommendations to improve accounting procedures and introduce transparency are welcome and shall be taken in the right spirit.

PAYMENT OF GROUND RENT FOR 2009

No.DIN/I-A/2009/ 24th December 2009

The Joint Director (G/H),
Delhi Development Authority,
Vikas Sadan, INA,
New Delhi-110023.



Sub: GROUND RENT FROM JANUARY TO DECEMBER 2009 IN RESPECT OF DIN CO-OPERATIVE GROUP HOUSING SOCIETY LTD, PLOT NO. 7, SECTOR 4, DWARKA PHASE I, NEW DELHI-110078.

Ref: FILE NO. F (7) /132 / GH / 92, DDA

Dear Sir,

1. Enclosed please find third copy of Challan No. 7154 dated 24th December, 2009 for Rs.2,45,318/- issued by Central Bank of India. Vikas Sadan Branch, INA, New Delhi towards Ground Rent from 1st January 2009 to 31st December 2009 together with the detailed statement in respect of Din Co-operative Group Housing Society Ltd., Plot No.7, Sector 4, Dwarka, Phase I, New Delhi. Details of status of flats in the Society are appended below:

(a) Freehold flats - 82
(b) Leasehold flats - 54
( c) Un-allotted flats - 5
(d) Applied for freehold flats - 25

2. The above amount also includes the Ground Rent Arrears in respect of flats, whose applications (to convert from leasehold rights to freehold rights) have been rejected by DDA.

3. Please acknowledge receipt.

SECURITY: ADVISORY

Of late there has been a spate of robberies in Dwarka with cooperative group housing societies emerging as a major target for thieves. Although a host of measures have been introduced to tighten the security of the Society, no amount of precautions can produce the desired results without cooperation of the members / residents. The following grey areas have been identified that merit a concerted effort by the MC and residents in order to improve the overall security of the Society:-

(a) Rear area of the Society needs lighting up.

(b) Antecedents of all maids and living-in servants to be verified by the police.

(c) No maids, servants and labour to be allowed to enter the Society premises without a valid pass issued by the Society or without the written consent of the member / resident concerned.

(d) Antecedents of security guards deployed within the Society premises to be verified by the police. Guards whose police verification has not been done, not to be allowed into the Society.

(e) Copy of ID Cards of the guards to be available in the Society office.

(f) No cahnge of guards to be permitted without clearance from the Society office.

(g) No entry of out side vehicles into the Society premises to be permitted.

(h) Pick up vehicles not to be permitted into the Society premises.

(i) No visitors to be allowed into the Society without specific permission of the resident concerned.

(j) Trucks / commercial vehicles ferying household goods to/from the flats should only be permitted to do so with the prior sanction of the Secretary and between 9 AM and 6 PM.

EXPENDITURE FOR THE MONTH OF NOVEMBER 2009

1. Expenditure / Cash Outgo from 1st to 30th November 2009.


(a) Smt. Kamlesh Sethi’s case :
“Out of Court” settlement for refund of Rs.5,50,000/- in four installments without interest. Third Installment paid on 30.11.2009 Rs. 1,25,000/-


(b) Electricity expenses for common area during Oct. 09 Rs. 34,517/-*


(c) Part payment of cost of new DG Set Rs.7,20,000/-@


(d) Part payment of CST @ 6% on DG Set Rs. 30,000/-


(e) Five Locks for DG & HT Room Rs. 300/-


(f) Puja for DG Rs. 120/-


(g) Return of SB of Indore Loan amount Rs. 55,000/-


(h) Diesel for generator Rs. 5,740/-


(i) Security Bill for October 2009 Rs. 41,914/-


(j) Gas for Guard Room Rs. 200/-

(k) MTNL/Airtel telephone bill Rs. 903/-


(l) Salary for Society’s employees Rs. 22,200/-


(m) Overtime paid @ Rs 400/- each Rs. 1,600/-
(i) Shri Narayan
(ii) Shri Gauri Shankar
(iii) Shri Sharad
(vi) Shri Ram Kishan




(n) Seeds, Plants & repair of fountain Rs. 1,836/-


(o) Electrical spares for the Society. Rs. 50/-


(p) Two Torches for Security Rs. 460/-


(q) Cleaning material for the Society. Rs. 659/-


(r) Conveyance to staff Rs. 686/-


(s) Trash Removal charges (MCD) Rs. 500/-


(t) Postage Rs. 439/-


(u) Photocopy charges Rs. 739/-


(v) Advocate Professional fee Rs. 45,000/-

Total Expenditure: Rs.10,87,863/-



2. Amount Received:


(1) Maintenance/BMF (including recoveries) Rs 1,59,800/-


(2) Water Charges Rs 7,225/-


(3) Ground Rent Rs 32,285/-


(4) DDA Architect’s fee (Completion Certificate) Rs. 36,000/-


(5) Generator Fund Rs. 28,800/-


(6) Power Back up Rs. 54,000/-


(7) Shifting Charge Rs. 2,000/-


(8) Other recoveries. Rs 5,000/-

Total Receipt: Rs. 3,25,110/-


* Total electricity bill for the month Rs. 1,97,733.80/-


@ Total cost of DG paid so far Rs.9,00,000/-.

3. Members desirous of checking details are welcome to the Society’s office and check accounts on any working day between 10 AM to 5 PM. The right of the Members to demand inspection of all Society’s accounts maintained by the MC will be respected at all cost.

4. Suggestions / recommendations to improve accounting procedures and introduce transparency are welcome and shall be taken in the right spirit.

IMPORTANT INFORMATION FOR MEMBERS

No. DIN/Rana/2009 4th Dec 2009



Dear Member,

1. Please refer to Part V of Secretary’s Report forwarded along with Minutes of the SGBM held on 30 Aug 2009.

2. This is to inform you that the ‘Rana Case’ judgment was announced by Hon’ble High Court of Delhi on 03 Nov 2009, published on the High Court’s website on 17th Nov 2009 and a copy of the same received in this office on 03rd Dec 2009. A copy of the same is enclosed for your information. The MC has decided to file an SLP (Special Leave Petition) against the verdict in the Supreme Court. Accordingly, Mr Anil Nag, Advocate has been hired for the purpose.

3. The case had been decided against the Society in Arbitration and by a single judge of the Delhi High Court prior to the present verdict. A copy of the order of the High Court appointing an Arbitrator to adjudicate on the dispute is also enclosed for your information. It is pertinent to note that MC at that time failed to respond to request of appointment of Arbitrator by Contractor and also to file a response in the Court, as given in the judgment. In case the MC had acted at that time this case, which was time barred, may not have seen the light of the day.

4. As regards the completion certificate, S.S. & Associates, Architects & Engineers, hired by the Society for the purpose, has submitted ‘as built’ and ‘revised’ building plans to the DDA for approval on 28 Oct 2009. The salient features are:

a) Existing balconies of two bed rooms (except master bed room) and living room will be extended. A balcony of size 10’ x 9’ with the living room and a small balcony in corner bed room will be added. This will meet the requirement of FAR of 167.

b) With compounding charges, we are allowed to get additional 5% FAR. In this we propose to get another balcony of size 5.5’ x 6.5’ with master bedroom.

5. The expenditure incurred on this account so far is as follows:-

(a) Paid to E & AO Survey (AIR & DGDC) for six digit
Coordinates and site elevation of the Society Rs. 10, 000/-

(b) Paid to DDA for layout fee and building plan fee. Rs. 40, 385/-

6. Expenditure to be incurred for Completion Certificate:-

(a) To be paid to Architect Rs. 6,40,000/-

(b) Service Tax @ 10.3 % Rs. 65,920/-

---------------------
Total : Rs. 7,55,770/-
---------------------

7. Progress on approvals from DDA is being monitored and will be intimated to members periodically through the Blog “dinopeninfo.blogspot.com” and/or e-mail addresses available with Society.

8. The Society has procured and installed a new DG Set of 200 KVA of Cummins Sudhir Make. The work on provision of back-up power to individual flats, who have paid Rs. 2000/-, is under completion. It may be noted that back up will be provided to members who have not defaulted on payment of Society’s dues. The details of payment arrangements have already been intimated to members and can be seen on the Blog.

RANA CASE: ARBITRATOR'S AWARD

RANA CASE: APPOINTMENT OF ARBITRATOR

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT: ARBITRATION AND CONCILIATION ACT


ARB. PET.No.22/2004


Date of Decision : 11th August, 2004



SHRI A.S. RANA, PROPRIETOR,
M/S RANA CONSTRUCTION CO.


Through


Mr. B.K. Dewan, Advocate ...Petitioner


versus


DIN COOP GROUP HOUSING SOCIETY LTD


Through


NEMO ...Respondent


MUKUL MUDGAL, J.(ORAL)

1. This is a petition under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of an independent arbitrator.

2. The parties entered into a Contract dated 25th February, 1996 for construction of 166 Dwelling Units at Plot No.7, Sector 4, Phase 1, Dwarka, New Delhi-110075. The petitioner is the contractor of M/s Rana Construction Company. Clause 22 of the Agreement between the parties providing for settlement of disputes by way of arbitration reads as follows:-
"Clause 22. ARBITRATION:

(A) If any dispute arises and persists between the contractor and society the same shall be referred to the sole arbitrator to be appointed by the President, Din Coop. Group Housing Society Ltd., whose award shall be final and binding on both parties. The arbitrator shall submit his award within six months of his entering on the reference. This period may be extended by the arbitrator with the consent of both the parties.

(B) Only that Court within whose jurisdiction the administrative office of the society is located will have jurisdiction on any matter requiring reference to Court ."

3. There is no dispute about the existence of the agreement and the arbitration clause. The petitioner has sent a legal notice dated 9th December, 2002, as well as letter dated 24th November, 2003, requesting the respondent Society to appoint the arbitrator to adjudicate the disputes between the parties. However, no response has been received. Accordingly, the petitioner has approached this Court on 19th January, 2004 by filing this petition under Section 11(6) of the Act. On 23rd January, 2004, notice was issued to the respondent. On 8th April, Shri Sanjiv Gupta, Advocate has entered appearance on behalf of the respondent Society and sought time to file reply. On 9th August, 2004, the matter was again adjourned on the respondent counsel's request. However, no reply is filed upto date.

4. Learned counsel for the petitioner has relied upon a judgment of the learned Single Judge of this Court in A.A.No.235/2003 entitled as "M/s Associated Builders Vs Delhi Development Authority & Others", delivered on 17th December, 2003 to contend that this case warrants appointment of an independent arbitrator in view of the recalcitrant attitude of the respondent. The relevant portion of the aforesaid judgment reads as follows:-
"Mr. K.K. Bhhuchar who appears on behalf of the respondent-DDA persuasively seeks adjournment by saying that he has just been appointed and is awaiting instructions by the Department. Normally, I may have been persuaded to grant such a request, but in this case, where the petitioner has been kept at bay since 1997, no further indulgence should be shown. Petitioner had to file a petition for appointment of an arbitrator and thereafter two arbitrators have relinquished their charge. In my view this case warrants appointment of an independent arbitrator following the judgment in Datar Switchgears Ltd. Vs TATA Finance Ltd. & Anr. (2000) 8 SCC 151."

5. Accordingly, following the above position of law, the petition is allowed and Shri V.D. Tewari, IES, Chief Engineer, CPWD (Retd.) is appointed as an Arbitrator to adjudicate upon the disputes between the parties sought to be raised in this petition. Arbitrator to fix his fees in consultation with the parties. Parties to appear before the Arbitrator on 2nd September, 2004. Arbitrator to give his award within 6 months from the date of entering upon reference.

6. This petition stands allowed and disposed of accordingly in the above terms.

August 11, 2004 (MUKUL MUDGAL)
Judge

RANA CASE VERDICT

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ FAO(OS) NO. 154/2007

Date of Decision : November 03, 2009

DIN Cooperative G/H Society Ltd. .....Appellant

Through : Mr. Anil Nag, Advocate.

versus

Sh. A.S. Rana .....Respondent

Through : Mr. B.K. Dewan, Advocate.


CORAM:

HON'BLE MR. JUSTICE MUKUL MUDGAL

HON'BLE MS. JUSTICE REVA KHETRAPAL


1. Whether the Reporters of local papers may be allowed to see the judgment? NO

2. To be referred to the Reporter or not? YES

3. Whether the judgment should be reported in the Digest? YES

% JUDGMENT (ORAL)
MUKUL MUDGAL,J.

1. This appeal challenges the judgment of the learned Single Judge dated 19th February, 2007 by which the learned Single Judge was pleased to dismiss the objections preferred by the appellant to the award dated 24th October, 2005 given by Sh. V.D. Tiwari, the Sole Arbitrator, who was appointed by this Court, as the appellant had failed to act on the request of the respondent to appoint an Arbitrator.

2. The appellant is a Cooperative Group Housing Society. The admitted case of the parties is that the Society had invited offers from contractors to construct 156 residential flats on the land allotted to the Society. The offer of the respondent was accepted and a formal contract was executed between the parties on 25th February, 1996. The work was to commence on 1st March, 1996 and was to be completed within 24 months. However, disputes arose between the parties and the work remained suspended for a long period of time. Eventually, after negotiations, the respondent was allowed to continue with the work and the work was completed somewhere in the year 2002. The claim of completion of work by the contractor was disputed by the Society and Sh. V.D.Tiwari was appointed by the Court as the sole arbitrator to adjudicate upon the disputes between the parties. The learned Arbitrator vide his award dated 24th October, 2005 awarded a sum of Rs.75,19,230/- to the respondent.

3. The main plea urged by Sh.Nag, the learned counsel for the appellant is that as per Clause 17 of the contract, the appellant was entitled to liquidated damages @ Rs.1 lakh per week for the delay caused in the completion of the work. A perusal of the judgment of the learned Single
Judge shows that this plea has not been dealt with by the learned Single Judge in the judgment. We have asked the learned counsel for the appellant whether this plea was urged before the learned Single Judge, who submitted that this plea was not dealt with by the learned Single Judge. He was then asked to show us the pleading in the memo of appeal and also show that such a plea though urged was not dealt with by the learned Single Judge. Apart from showing the general pleading that the learned Single Judge erred in not appreciating the issue of liquidated damages, the learned counsel for the appellant was unable to demonstrate to us from the memo of appeal that such a plea was raised. Instead, the learned counsel for the appellant submitted that the appellant had filed a 30 page written submission before the learned Single Judge and the issue was contained therein.

4. In our view, if a plea is not addressed before the learned Single Judge, the learned Single Judge is not bound to deal with each and every plea taken in the written submissions before the learned Single Judge. The mere fact that it is taken in the written submissions is of no avail to the appellant, particularly in view of the fact that no specific averment is made on oath before us that the plea urged was raised before the learned Single Judge. Accordingly, we decline to permit the appellant to raise such a plea before us.

5. We have also perused the prolix objections preferred by the appellant before the learned Single Judge as well as equally prolix written submissions. A perusal of the objections and the written submissions shows that the main thrust of the appellant was on the issue of limitation, which issue has not been addressed before us, and the objections pertaining to the rejection of the counter claim though raised in the objection petition were obviously not pressed before the learned Single Judge. Even the objections raised before the learned Single Judge are as follows: - “5.6 BECAUSE the learned Arbitrator erred in law in over-looking the fact that out of 166 flats, the Respondent completed only 53 flats and 113 flats were left unfinished. Out of the 113 flats the Respondent, under a separate Agreement/Understanding completed 70 flats in 2001 and 43 flats still remained unfinished and the balance work was got done either by the Petitioner Society or the individual flat owner at its/his own cost.”

6. The above averments made before the learned Single Judge itself show that for the completion of the contract, a separate agreement/understanding was required to be entered into. Such an understanding or agreement has not been shown to us and accordingly, reliance by the appellant on the erstwhile Clause 47 of the earlier agreement, even if permitted to be raised is of no avail to the appellant.

7. Accordingly, we find no merit in this appeal and the same stands disposed of. All the pending applications also stand disposed of. (MUKUL MUDGAL) JUDGE (REVA KHETRAPAL) JUDGE November 03, 2009 sk

EXPENDITURE FOR THE MONTH OF OCT 2009

1. Expenditure / Cash Outgo from 1st to 31st October 2009:

(a) Smt. Kamlesh Sethi’s case :
“Out of Court” settlement for refund of Rs.5,50,000/- in four installments without interest. Second Installment paid on 26.10.2009 Rs.1,00,000/-

(b) Electricity expenses for common area during Sep 09 - Rs. 38,970/-*

(c) Repair & Servicing of generator Rs. 18,289/-

(d) Purchase of new Generator of 200 KVA Rs. 9,00,000/-@

(e) PVC Pipe 4” dia for the cables of generator Rs. 700/-

(f) Diesel for generator Rs. 1,000/-

(g) Security Bill for September 2009 for 13 days. Rs. 18,831/-

(h) Advance to Security Agency to be adjusted next month Rs. 1,000/-

(i) Gas for Guard Room Rs. 200/-

(j) MTNL/Airtel telephone bill Rs. 971/-

(k) Salary for Society’s employees Rs. 21,200/-

(l) Overtime paid @ Rs 400/- each Rs. 1,600/-

(i) Shri Narayan
(ii) Shri Gauri Shankar
(iii) Shri Sharad
(vi) Shri Ram Kishan

(m) Dewali Bonus to Staff @ 75% of salary Rs. 15,900/-

(n) Advance to Shri Ram Kishan, Electrician against salary Rs. 1,000/-

(o) Magazines for Library Rs. 650/-

(p) AMC - Quarterly payment (Oct. to Dec.2009) for Lifts Rs. 57,674/-

(q) E & AO Svy. (Air & DGDC) for coordinates & site elevation
of the Society for completion certificate Rs. 10,000/-

( r) Paid to DDA for approval of ‘as built’ & ‘revised’ building
plans for completion certificate Rs. 40,488/-

(s) Repair of garden benches Rs. 2,900/-

(t) Dewali expenditure (Sweet distribution to staff) Rs. 2,090/-

(u) Electrical spares for the Society. Rs. 2,013/-

(v) Purchase of 8’ aluminum ladder with cartage Rs. 2,310/-

(w) Replacement of battery for UPS of office Rs. 700/-

(x) Battery Cells for Electrician Rs. 65/-

(y) Cleaning material for the Society. Rs. 1,586/-

(z) Making of 15 perforated drain covers Rs. 4,000/-

(aa)Advance paid to Ramesh against making of drain covers Rs. 1,000/-

(ab)Repair of walls and replacement of two glass panes of Water
Pumping station Rs. 750/-

(ac)Conveyance to staff Rs. 355/-

(ad)Trash Removal charges (MCD) Rs. 500/-


(ae) Postage Rs. 12/-

(af) Photocopy charges Rs. 74/-

(ag) Stationery for office. Rs. 560/-

(ah)One padlock Rs. 60/-

------------------
Total Expenditure: Rs.12,45,138/-
------------------

2. Amount Received:

(a) Maintenance/BMF (including recoveries) Rs 98,800/-

(b) Water Charges Rs 10,575/-

(c) Ground Rent Rs 2,935/-

(d) DDA Architect’s fee (Complete Certificate) Rs. 96,000/-

(e) Generator Fund Rs. 26,400/-

(f) Power Back up Rs. 82,000/-

(g) Shifting Charge Rs. 3,000/-

(h) Other recoveries. Rs 1,749/-
-----------------
Total Receipt: Rs. 3,21,459/-
- ----------------

* Total electricity bill for the month Rs. 2,62,755/-

@ Loan of Rs. 9,00,000/- from SB of Indore @ 8.25% p.a.

3. Members desirous of checking details are welcome to the Society’s office and check accounts on any working day between 10 AM to 5 PM. The right of the Members to demand inspection of all Society’s accounts maintained by the MC will be respected at all cost.

4. Suggestions / recommendations to improve accounting procedures and introduce transparency are welcome and shall be taken in the right spirit.

OBITUARY: SHRI MADAN SHARMA

Shri Madan Sharma, the first Honrary Secretary and one of the founding fathers of DIN Cooperative Group Housing Society, passed away on the morning of 16th Nov 2009. A serene and grand old man, Shri Madan Sharma always spoke softly and worked tirelessly to build the Society. The unfortunate subsequent developments and the lenghty legal hassels being faced by the Society at present notwithstanding, we all offer our sincere prayers for the eternal peace of the departed soul. May God grant him what he sought in his life on this planet !

POWER BACKUP CAPACITY FOR FLATS

1. The existing 63 KVA Generator is of 1998 vintage and recently faced far too frequent break downs and expensive repairs. Continuance with the same equipment is likely to prove prohibitive in terms of repair costs and the resultant inconvenience to members. Since the Society’s security, lifts and water supply system depend upon this generator during power cuts / failures, the SGBM held on 30 Aug 2009 approved replacement of the generator by a new one. Creation of a ‘Generator Fund’ to be built up with members contributing Rs 200/- p.m. was also approved.

2. Considering the need for provision of power backup to members and upgrading the facilities in the Society, the MC decided to buy a new 200 KVA DG, instead of a 63 KVA DG set. Accordingly, it was decided to buy a 200 KVA Silent DG set manufactured by Cummins India Limited and bids were invited from two suppliers. Upon receipt of the letters of offer from M/s Sudhir and M/s Trishul Enterprises, the same were got technically evaluated by experts for suitability to the Society’s requirements.

3. Having confirmed that the technical parameters of the same equipment offered by M/s Sudhir and M/s Trishul Enterprises matched perfectly, the MC negotiated terms of payment to the potential suppliers. The costs negotiated with M/s Trishul Enterprises and the payment of last Rs 1, 35, 000/- in three monthly installments offered a more advantageous deal for the Society and was concluded after making an open offer to anyone who could get the Society a better deal. The offer letters from the dealers and relevant documents / records are available in the Society office for anyone wishing to examine the same.

4. The installation of the new 200 KVA DG was completed on 10 Nov 2009 and work to provide connections to individual homes is scheduled between 12th Nov to 15th Nov 2009. Since central procurement of equipment in bulk makes better economic sense, members / residents were offered the connection from the Electric Sub Station (ESS) to their respective flats @ Rs 2000/- per flat. Thus far 58 members have applied for the same and are being given the power backup at the rates quoted above.

5. It may please be noted that although power backup to flats will remain open even after 15th Nov 2009, the rates are likely to vary substantially. Members, who are yet to apply for power backup, may like to avail of the opportunity now rather than having to pay much more for the facility at a later stage.

6. Last date for accepting the request for power backup facility for individual flats at the current rates is 14th Nov 2009.

Ref.No.DIN / Car Space / 2009 Date.29th Oct.2009


ALLOTMENT OF CAR PARKING SPACE


1. Please refer to Section 89 of Delhi Cooperative Societies Rules 2007, this office Notices No DIN/53/2009 dated 24th May 2009 and Notice No DIN / Vote / 2009 dated 13 Oct 2009.

2. Consequent to sale of Flat No 152, Garage No 91 has become available for allotment to eligible members. Members interested in getting the Garage may submit their applications on plain paper along with a cheque of Rs 5, 000/- payable to DIN CGHS Ltd, to the Secretary by 05 Nov 2009. A draw of lot will be held on 8th Nov 2009 and the successful member will be given possession of the Garage on payment of balance amount of Rs 95, 000/- within seven days from the date of draw of lot.

3. Please note that the allottee will be required to submit an affidavit on Rs 10/- non-judicial stamp paper declaring that:-

(a) He / she will use the Garage only for parking his / her vehicle(s) and not for any other purpose.

(b) The Car parking will not be transferred to any third party.

(c) Upon sale of the Flat, the Car parking space will be surrendered to the Society for allocation to any other member. In that event, the amount paid by the member will be refunded to him / her without any interest.

4. In case of any violation of the declared intent of the affidavit, the Society will be free to allocate the Garage to any other member through a draw of lot. Members are at liberty to witness the draw of lot and lend credence to transparency of the exercise.

5. The amount of Rs 5, 000- will be refunded to members who are unsuccessful in the draw of lot.

PRASHEEL BHARDWAJ CASE

PRASHEEL BHARDWAJ Vs DIN CGHS LTD
CASE No RCS/005/09/SW/1670



Membership Issues

Shri Prasheel Bhardwaj became a member of DIN CGHS Ltd vide his application dated 07 Feb 1995. Flaws in the Application:-

(a) His age reflected in the Application as on 07 Feb 1995 is 18 years.

(b) His US Passport mentions his date of birth as 25 May 1978; thus he was not even 17 years old on the date of application.

(c) As per By Laws of the Society, only a person 18 or above could be eligible to be a member of the Society.

(d) Shri Prasheel Bhardwaj even filed an Affidavit on 03 Mar 1995 to say that he was 18 years of age as on that date.

(e) As reflected in his Passport, his place of birth is New York, USA. As per Bye Laws of the Society, only an Indian citizen domicile of Delhi can become a member of the Society.

(f) His signatures on the Passport, Power of Attorney, Indemnity Bond and Application vary vastly.

Note: Thus the membership of Shri Prasheel Bhardwaj has been granted illegally on the basis of forged documents / suppression of facts by the then Secretary Mr. Madan Sharma.

Payments Made

Ser Receipt No Date Amount Mode of Payment

1. 1811 13.2.1995 Rs 110.00 Cash
2. 1819 23.2.1995 Rs 10, 000.00 Cash
3. 1820 23.2.1995 Rs 60, 000.00 Cheque
4. 1883 10.5.1995 Rs 1, 05, 000.00 Cheque
5. 1961 07.8.1995 Rs 75, 000.00 Cash
6. 2474 31.1.1997 Rs 50, 000.00 Cash
7. 2729 17.5.1997 Rs 1, 00, 000.00 Cheque
8. 2962 18.8.1997 Rs 1, 00, 000.00 Cheque
9. 3598 07.7.1998 Rs 4, 25, 000.00 Cheque
--------------------
Total Amount Paid Rs 9, 25, 110.00

As per records available, no other payments to the Society have been made by Shri Prasheel Bhardwaj. However, SBI Bank statement submitted by Shri Prasheel Bhardwaj shows Rs 4, 25, 000/- having been debited twice on the same day against two different cheques where as the Society had received only one cheque. This needs clarification!

It may be noted that Society does not have Bank Statements/ authentic records/ ledger of that period, Since Mr. Madan Sharma, the then secretary had not handed over these documents and an FIR was lodged against him.


Draw of Lot & Possession

The draw of lot for DIN CGHS Ltd was held on 04 Oct 1998 and Shri Prasheel Bhardwaj was allotted Flat No 19.

On 07 Jul, the Society forwarded letter No DIN / 99 of the same date to all members intimating levy of Rs 25, 000/- as one time maintenance money to cover up the amount already spent, payment of interest and instructing the members to obtain a ‘No Dues Certificate’ from the Society in order to get possession of the flat(s).

On 28 Aug 1999, the Society again sent a letter to Shri Prasheel Bhardwaj advising him to submit all documents for conversion of the flat from lease hold to free hold and to obtain a ‘No Dues Certificate’ from the Society after clearing all dues which included Rs 25, 000/- maintenance money and interest as applicable.

On 22 Jan 2000, The Society sent another letter to Shri Prasheel Bhardwaj to pay Rs 5, 000/- as security deposit for electric meter and maintenance charges without which electricity connection will not be provided to individual flats.

On 02 May 2000, the Society forwarded to Shri Prasheel Bhardwaj a letter along with ‘Clearance Form’ with request to fill up the required information and submit to the Society, pay his dues and apply for the ‘No Dues Certificate’ before taking possession of the flat.

Neither Shri Prasheel Bhardwaj nor any of his authorised representatives appear to have responded to the letters mentioned in preceding Paragraphs. Therefore, the question of handing over possession of Flat No 19 to Shri Prasheel Bhardwaj does not arise.

Grey Areas

There after, in all probability, Shri Prasheel Bhardwaj resigned from the Society and discontinued to be a member of the Society. It can not be ascertained, if the amount paid by him has been refunded/ or transferred elsewhere as ledger and other accounts details of that period have not been handed over by then Secretary Mr. Madan Sharma. This is evident from the fact that DDA vide letter No F.7(132)92/GH/DDA dated 01 May 2003 has intimated that Membership No 411, Flat No 19 did not appear in the list forwarded by the Society to the DDA on 08 Nov 2002 and asked for status of the flat along with other such flats. No other records of the period were handed over by Shri Madan Sharma, the erstwhile Secretary of the Society. Cases against Shri Madan Sharma are still pending with EOW / courts to retrieve various documents / files.



Contention of Shri Prasheel Bhardwaj

Shri Amit Ojha, Advocate with Power of Attorney (The POA appears to have been executed by some other Prasheel Bhardwaj as the signature of executant is entirely different - in case of American Citizen, the fact should have been clearly spelt out in affidavit or this should have been executed in America?) from Shri Prasheel Bhardwaj approached the Society vide letter dated 26 Aug 2003 to say that Shri Prasheel Bhardwaj had paid Rs 9, 25, 000/- and was allotted Flat No 19 as per draw of lot. Shri Prasheel Bhardwaj came to India and stayed in Delhi from 06 Mar 2000 to 16 Mar 2000 but the Society could not give possession of the Flats as they were not ready. He further contended that the Society vide its letter dated 02 May 2000 informed Shri Prasheel Bhardwaj to take physical possession of the flat. As Shri Prasheel Bhardwaj was in the US, he authorised his uncle (No such authority letter is available in his file neither a copy of authority letter received by Society has been submitted by him?) to take possession of the Flat No 19 and the Society handed over the possession of the Flat to him. The said uncle then rented out the flat to Shri Raman Dixit from 20 Jan 2001 to 24 Feb 2002. There after he handed over the keys of the flat to Shri JP Sharma, uncle of Shri Prasheel Bhardwaj.

Shri Ojha has incorrectly stated that the Society vide letter dated 02 May 2000 had informed Shri Prasheel Bhardwaj to take possession of the flat. This letter clearly instructs members to fill up the ‘clearance form’, pay all dues and obtain the ‘No Dues Certificate’ from the Society before taking possession of the flat. This procedure does not appear to have been completed by Shri Prasheel Bhardwaj or his authorised representatives.

Contradictions

As far as renting out the flat to Shri Raman Dixit and non availability of Shri Prasheel Bhardwaj in India is concerned, Shri Prasheel Bhardwaj has made a different and contradictory statement in a letter dated 07 Feb 2007 addressed to the Registrar Cooperative Societies where-in he has stated that he and his cousin moved into Flat No 19.

Shri Prasheel Bhardwaj in his letter dated 07 Feb 2007 gives the impression that he did not know the location of the Society office. This seems implausible if he had stayed in the flat.

Shri Prasheel Bhardwaj vide his letter dated 15 Mar 2007 has provided copies of Society letters dated 04 and 05 Oct 1998 (issued immediately after the draw of lot) instead of the original Share Certificate and Possession Letter which does not meet the requirement. In the same letter dated 15 Mar 2007, he states that his nephew, Shri Raman Dixit, lived in the flat after allotment, as the latter was working in Delhi. But after some time he got a job in Saharanpur. This is another contradiction to his statement made to the RCS where-in he stated that he himself moved in along with his cousin.

Shri Amit Ojha submitted on 20 May 2009 in his application dated 11 Dec 2008 to the RCS that after the allotment of Flat No 19, his cousin stayed in the flat during the year 2000 and 2001 and vacated. He adds that the Secretary of the Society forcibly took over the flat and Shri Prasheel Bhardwaj being an NRI came to India in 2005. This is contrary to statements made by Shri Amit Ojha on 26 Mar 2003, his petition in the Court of the RCS and application of Shri Prasheel Bhardwaj dated 07 Feb 2007 to the RCS.

Thus it is a case of acquiring membership of DIN CGHS Ltd illegally based on forged application, suppressing / concealing facts in the Affidavit and subsequently submitting contradictory statements to the Society, the RCS and the Court of the RCS - in collusion with then Secretary Mr. Madan Sharma? Or else present MC will have to bear it.

Conclusion

Shri Prasheel Bhardwaj and / or his Attorney do not have any of the following documents to prove that he had taken possession of Flat No 19:-

(a) Original Share Certificate - – copy not available with Society.

(b) ‘No Dues Certificate’ from the Society - has not been issued as per Society records.

(c) Receipt of payment of Rs 5, 000/- as security deposit for electricity meter before connecting electricity to the Flat.

(d) Receipt for payment of Rs 25, 000/- as one time maintenance money.

(e) Receipt for payment of monthly maintenance till the date of taking possession of Flat No 19.

(f) Receipts for payment of electricity and water charges for the period Feb 2001 to Feb 2002; the period he claims that the flat was rented out.

(g) Any rent receipt given to the so called tenant.

(h) No rent agreement was submitted to the Society, as is the norm.

It may be appropriate to file an FIR against Shri Prasheel Bhardwaj for acquiring membership of the Society illegally and investigation by an appropriate agency for his date of birth, place of birth, NRI status, source of funding, different signatures on Application, passport, affidavit, Power of Attorney, authenticity of the so called tenant and the numerous inconsistencies in his statements.

CLOSING OF JEET RAJ SETHI CASE

Col RC Kapoor attended the hearing in State Consumer Disputes Redressal Commission on 26 Oct 2009 and delivered the balance amount to be paid to Shri Jeet Raj Sethi in accordance with the 'Agreement' dated 22 Jul 2009 in three cheques as under:

(a) Stae Bank of Indore Cheque No 653 dated 26 Oct 2009 for Rs 1, 00, 000/-.

(b) SB of Indore Cheque No 653068 Dated 30 Nov 2009 for Rs 1, 25, 000/-.

(c) SB of Indore Cheque No 653069 dated 31 Dec 2009 for Rs 1, 25, 000/-.


SB of Indore Cheque No 653065 dated 31 Jul 2009 for Rs 2, 00, 000/- had already been issued to Shri Jeet Raj Sethi and the amount has been debited from the Society's account. With the fresh cheques issued, the Society has honoured its committment made in the 'Agreement' and paid back complete amount of Rs 5, 50, 000/- to Shri Jeet Raj Sethi. The Presiding Officer at the State Commission confirmed that an order closing the case will be passed within this week i.e. by 31 Oct 2009.


The Society has to apply to the State Commission for the FD Instrument No 102878 dated 26 May 2008 of Rs 25, 000/- along with a copy of the order of the State Commission. The FD has already matured on 25 Jul 2009.

AGREEMENT WITH S.S. & ASSOCIATES FOR OBTAINING COMPLETION CERTIFICATE FROM DDA

Whereas DIN CGHS Ltd (Regn No. 852), Plot No. 7, Sector-4, Dwarka, New Delhi – 110 078 (hereinafter called Society) is interested in getting the services of Architect for getting ‘Completion Certificate’ from Delhi Development Authority (DDA) with extensions allowed in present rules and whereas M/s S.S. & Associates, Plot No. 155, Pocket-C-8, Sector-17, Dwarka, New Delhi - 110075 (hereinafter called Architect) have agreed to provide the said services, it is agreed that scope of Architectural services and the fees shall be as follows:-

1. Architect shall prepare architectural drawings for submission & approval of DDA after review and acceptance by the Society.

2. Architect shall prepare model with architectural features to the required size as per practice for seeking approval from DUAC.

3. Architect shall prepare Architectural & Structural working drawings and do other related works. Architect shall submit copies for Society record and construction.

4. Architect shall provide periodic supervision services at the site to ensure the progress of work as per the working drawings and to resolve problems, if any.

5. Architect shall attend co-ordination meetings with the Owner / Contractors for monitoring the progress of construction.

6. Architect shall prepare and submit final drawings for obtaining completion certificates.

7. Architects will provide to society two hard copies and one soft copy of all drawings, plans (in AutoCAD and PDF formats) and documents being submitted to various civic agencies including the Delhi Development Authority without any additional cost i.e. cost is included in fee.

8. The Society shall pay Rs. 6, 40,000/- (Rupees six lakhs Forty Thousand only) as total remuneration for the above services for 166 Dwelling Units excluding service tax. The following charges shall be reimbursed at actual:-

(a) Building Plan Fees Payable to DDA @ Rs 1/- per sq m.

(b) Layout Fees payable to DDA @ Rs 10, 000/- per acre.

(c) Compounding Charges @ Rs 450/- per sq. m. per flat payable to DDA. (Approx Rs 2, 200/- per Flat – to be paid on completion of building and submission of revised plans).

(d) Completion Fees payable to DDA @ Rs 1/- per sq. m.

(e) Charges for Provisional Occupancy Certificate (POC) - Rs 200/-.

9. The Fee shall be payable as per the following stages:

(a) 20% on submission of drawings, approved by the Society, to the appropriate authorities for sanction.

(b) 20% on receipt of approval of plans from DDA.

(c) 20% on preparation of Tender Documents, inviting, receiving, analyzing tenders and advising Society on appointment of contractors.

(d) 20% of fee during construction on prorata basis (Monthly Basis).

(e) 10% on preparation & submission of completion plans to the authority for Completion Certificate.

(f) 10 % on receipt of Completion Certificate from the DDA.

10. Service tax shall be paid extra as applicable.

11. TDS shall be deducted as per present rules.


Sd/xxx Sd/xxx
( Anil Kumar Shekhar ) Col Jagdish Madan, Retd)
For S. S. & Associates Secretary
25 Oct 2009 25 Oct 2009
PAN : BBTPS5354N
Service Tax Regd. No. BBTPS5354NST001

VOTING: CAR PARKING ISSUE

1. Reference Agenda Item No 6 of Minutes of the Special General Body Meeting (SGBM) held on 30 August 2009. The members were offered the following two options and requested to indicate the option that according to them is correct:-

(a) Option One. Members allotted car parking space should have the right to sell the space / transfer car parking rights while selling their respective flats.

(b) Option Two. The right to transfer parking rights / allot car parking space is the prerogative of the Society and members selling their flats should surrender the space to the Society in return for the amount paid by them.

2. The members were also requested to ensure that their vote reaches the Secretary by 30th September 2009. By that date, however, only 45 votes had been received. The tally of votes and the option exercised by the members is appended below:-

(a) Total Votes received - 45

(b) Votes rejected - 6

(c) Option 1 - 17

(d) Option 2 - 22

3. Members desirous of viewing details of the votes received are welcome to contact the Secretary at any time convenient to them. The details of the issue and votes cast have been conveyed to the Registrar Cooperative Societies. Members selling their flats are advised not to sell the garage / transfer parking rights to the buyer as it amounts to violation of Section 89 of the Delhi Cooperative Societies Rules 2007 and will invite litigation against them.

EXPENDITURE FOR THE MONTH OF SEP 2009

1. Expenditure / Cash Outgo from 1st to 30th September 2009:

(a) Electricity expenses for common area during August 09. Rs. 43,126/-*

(b) Repair & Servicing of generator including AMC from July to
September 2009 Rs. 18,289/-

(c )Diesel for generator Rs. 3,000/-

(d) Security Bill for August & 17 days of Sept. 2009 as the
Services of the agency was terminated. Rs. 60,208/-

(e) Gas for Guard Room Rs. 200/-

(f) MTNL/Airtel telephone bill Rs. 1,298/-

(g) Salary for Society’s employees Rs. *25,460/-

(h) Advance paid to Shri Gauri Shankar Rs. 5,000/-

(i) Overtime paid @ Rs 400/- each Rs. 1,600/-

(i) Shri Narayan
(ii) Shri Gauri Shankar
(iii) Shri Sharad
(vi) Shri Ram Kishan

(j) Magazine for Library Rs. 682/-

(k) LCC Card for intercom eight connections (2nd Installment) Rs. 5,000/-

(l) CVT 150 VA for intercom system Rs. 2,200/-

(m) Repair/replacement of damaged pipe in pumping station Rs. 13,000/-

(n) Repair of water pumps & submersible pump Rs. 10,510/-

(o) Repair of floor of TT Room Rs. 1,150/-

(p) Water Bill for the period 07.05.09 to 01.09.09 & one tanker Rs. 35,549/-

(q) Conveyance to staff Rs. 159/-

(r) Trash Removal charges (MCD) Rs. 500/-

(s) Postage Rs. 1,098/-

(t) Photocopy charges Rs. 3,246/-

(u) Stationery for office Rs. 253/-

(v) Cartridge for printer Rs. 2,922/-

(w) One pen drive for office use Rs. 400/-

(x) Professional fee to Advocate in case of Shri Prasheel Bhardwaj
and Shri Anil Sharma Rs. 16,500/-

(y)Insecticides for the lawn Rs. 355/-
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Total Expenditure: Rs. 2,51,705/-
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2. Amount Received:

(a) Maintenance/BMF (including recoveries) Rs 1,21,600/-

(b) Water Charges Rs 7,350/-

(c) Ground Rent Rs 36,932/-

(d) DDA Architect’s fee (Complete Certificate) Rs. 2,88,000/-


(e) Generator Fund Rs. 2,400/-

(f) Shifting Charges Rs. 1,000/-

(g) Other recoveries. Rs 7,051/-

(h) Transfer Money Rs. 1,000/-

(i) Admission Fee & Share Money Rs. 220/-
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Total Receipt: Rs. 4,65,553/-
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* Total electricity bill for the month Rs. 3,51,882/-

3. Members desirous of checking details are welcome to the Society’s office and check accounts on any working day between 10 AM to 5 PM. The right of the Members to demand inspection of all Society’s accounts maintained by the MC will be respected at all cost.

4. Suggestions / recommendations to improve accounting procedures and introduce transparency are welcome and shall be taken in the right spirit.