IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (CIVIL) NO.____________ of 2010
IN
SPECIAL LEAVE PETITION (C) NO.1391 OF 2010
In the Matter of:
Din Cooperative Group Housing Society ……. Petitioner
Plot No.7, Sector– 4, Phase–1, Dwarka
New Delhi
Versus
Shri A.S. Rana …… Respondent
M/S Rana Construction Co.,
343, Tarun Enclave, Pitampura, New Delhi
REVIEW PETITION UNDER ORDER XL RULE 1 OF SUPREME COURT RULE 1966, SEEKING REVIEW OF ORDER DT. 25.01.2010 OF THIS HON’BLE COURT IN SLP(C) NO.1391 OF 2010 BY A BENCH OF THIS HON’BLE COURT COMPRISING HON’BLE JUSTICE MR. MARKANDEY KATJU AND HON’BLE JUSTICE MR. R.M. LODHA
To,
The Hon’ble Chief Justice of India and
His Companion Judges of the Supreme
Court of India.
The Humble petition of the petitioner
above named.
MOST RESPECTFULLY SHOWETH:
1. That the instant review petition is being filed against the final order and judgment dated 25.01.2010 passed by this Hon’ble Court in Special Leave Petition (C) No.1391 of 2010 whereby this hon’ble Court was pleased to dismiss the petition. The said Special Leave Petition had been preferred by the review petitioner against the final order & judgment dated 03.11.2009 passed by the High Court of Delhi at New Delhi in FAO (OS) No.154/2007.
2. That the petitioner has not filed any other review petition in this Hon’ble Court earlier seeking for the same or similar relief.
3. The instant petition is being filed under the following circumstances -
A) That the instant litigation was prosecuted before the Arbitrator and the ld. Single Judge of the High Court by the previous Managing Committee which was in collusion with the respondent – contractor. In fact, the previous Managing Committee headed by Mr. Subramanium had perpetuated itself in the office for three and half years after the expiry of its tenure by resorting to illegal tactics. It may be stated here that the previous Managing Committee was compelled to leave the office only after writ petition filed in the High Court by members of the society for convening general body meeting of the society with a view to elect a new executive committee. It is, therefore, apparent that the earlier Managing Committee had developed some vested interest and did not prosecute the matter diligently either before the Arbitrator or the ld. Single Judge. In fact the present Managing Committee of the petitioner- society came at the helm of the affairs of the society only at the stage of addressing the arguments before the Division Bench of the High Court. It is, therefore, not surprising that the simple averment in regard to the plea of liquidated damages having been raised before the Single Judge, was not even made in the Memo of Appeal filed before the Division Bench. What comes as more surprising is that during the arbitration proceedings, very vital documents in the form of letters address by the society to the contractor reminding the contractor about the delay in completion of the flats, were not produced by the then Managing Committee for reasons best known to them. A photocopy along with the typed copies of the letters dated 24.04.1999 and 03.01.2000 addressed to the contractor by the petitioners society are annexed herewith as Annexure-A.
It may not be out of place to point out that then Managing Committee did not exercise its power under the Arbitration Clause to appoint an Arbitrator when the notice was received from the respondent. Even when the respondent preferred a petition under section 11 of the Act for the appointment of an Arbitrator, no reply was filed on behalf of the society as a result of which the ld. Judge proceeded to appoint an Arbitrator vide order dated 11.08.2004. A copy of the order dated 11.08.2004 passed by the Delhi High Court is annexed as Annexure-B.
Similarly a copy of the order dated 12.05.2008 passed by the High Court of Delhi in CWP No.9406/2007 quashing the stay order of the civil court and directing holding of elections of the society is annexed as Annexure-C.
B) That it will be pertinent to point out that the present Managing Committee which assumed charge on 14.09.2008 was not prosecuting the case diligently before the Arbitrator, the Single Judge as also at the time the Memo of Appeal was filed before the Division Bench on 16.04.2007. The said fact has a vital bearing on the case inasmuch as the previous Managing Committee appeared to be in collusion with the respondent contractor. In fact, the previous Managing Committee was elected on 01.06.2002 and completed its mandate of three years on 31.05.2005. Despite the expiry of its tenure, the previous Managing Committee lead by Mr. K. Subramanium kept on postponing the elections on one pretext or the other. The members of the petitioner’s society approached the Registrar Cooperative Societies (RCS) with a request to hold elections but the previous Managing Committee went to the Civil Court and obtained a stay order in March 2007 even though the Civil Court did not have any jurisdiction. The Managing Committee concealed the vital facts before the Civil Court that it had completed its tenure of three years in office. The members of the society approached the High Court against the stay order granted by the Civil Court and the High Court taking note of the fact that the RCS had vide order dated 01.05.2008 had order fresh elections, set aside the order passed by the Civil Judge staying the elections to the society.
C) That even after the election results were officially notified by the Returning Officer, the previous Managing Committee delayed handing over the charge beyond the limit of fifteen days laid down in the Act, the present Managing Committee was forced to approach the RCS and get all the bank account of the society frozen. Finally the charge of the society was reluctantly handed over to the present Managing Committee on 14.09.2008. All these facts demonstrate that the previous Managing Committee had vested interest in perpetuating itself in office for more than three years after the expiry of its term on 31.05.2005. It therefore does not come as a surprise that the previous Managing Committee exhibited a casual and callous approach in contesting the matter before the Arbitrator and the Single Judge. The casual approach is evident from the fact that at the time of filing of Memo of Appeal, the previous Managing Committee failed to raise the issue of liquidated damages to which the society was entitled to on account of delayed completion of work by the contractor. The failure of the then Managing Committee to specifically plead before the Division Bench in its Memo of Appeal that the issue in regard to liquidated damages was actually raised before the Single Judge during arguments has cost the members of the society very dear. Most of the members of the society being senior citizens, it will be very hard on them if they are compelled to make payments to the contractor on account of the award of the Arbitrator. In fact, it was only at the stage of addressing the arguments before the Division Bench, the present Managing Committee which has taken over in the meanwhile, instructed its newly appointed counsel to raise the issue of liquidated damages under clause 47 of the agreement since even by his own showing, the respondent – contractor had completed the work in 2002 whereas it should have been completed in 1998.
D) That the aforesaid facts in regard to the apparent collusion between the previous Managing Committee and the contractor, was not brought to the notice of the Division Bench of the High Court at the time of arguments since the present Managing Committee was convinced about its position that the plea in regard to liquidated damages had in any case been pleaded in the written submissions filed before the Single Judge even though the said written submissions were prolix and contained number of other issues apart from the plea of liquidated damages.
E) That the previous Managing Committee had purposely withheld certain relevant documents before the Arbitrator such as letter dated 24.04.1999, 31.01.2000 & Minutes of Special General Body Meeting 05.03.2001 which clearly indicate that the contractor was reminded by the society time and again to complete the flats. The said documents came into possession of the present Managing Committee after it took over and the same have already been annexed as Annexure-A to this petition.
It may be pointed out that the said documents are being produced without prejudice to the plea of the petitioners that clause 18 and 45 of the Agreement obliged the contractor to give notice in case of delay on the part of the society and in the absence of any notice from the contractor, it was deemed that the contractor had waived his right. It is therefore submitted that the Agreement made it incumbent on the contractor to issue notice and since admittedly no notice was ever issued by the contractor, the society becomes entitled to liquidated damages under clause of 47 of the Agreement.
F) The petitioner had raised a specific plea before the Single Judge and the Division Bench of the High Court to the effect that the Arbitrator had gone against the express provisions of the contract in rejecting the counter claim of the petitioner for liquidated damages in terms of clause 47 of the Agreement specially when the work was admittedly completed by the contractor four & a half years after the expiry of the due date of completion. The said plea was duly raised in the arguments as also was reflected in the written submissions filed before the learned Single Judge who gave a completely overlooked the said plea while dismissing the objection petition of the petitioner herein. Even the Division Bench refused to deal with the said plea on the ground that even in the Memo of Appeal it was not specifically pleaded that the aforesaid plea was actually raised before the Single Judge.
G) It will be profitable to briefly recapitulate the sequence of facts -
i. Agreement was entered into for construction of 166 dwelling unit. Clause 16 of the Agreement obliged the contractor to complete the work within twenty four months from the date of commencement. The work having commenced on 25.02.1996, the date of completion was 24.02.1998 but by his own showing, the contractor completed the work 24.12.2002. It is pertinent to point out that clause 47 stipulated that the society will be entitled for liquidated damages in case of delay in completing the work.
ii. That the contractor produced a completion certificate dated 24.12.2002 issued by the architect. The said completion certificate was disputed by the society but with a view to narrow down the controversy, the petitioner society would proceed on the premise that work was completed on 24.12.2002.
iii. That the dispute has arisen the matter went for Arbitration wherein the contractor claimed balance payment of Rs.91.68 Lacs while the petitioner – society filed a counter claim for liquidated damages in terms of clause 47 of the Agreement.
iv. That the Arbitrator allowed the claim of the contractor by awarding Rs.75.19 Lacs on account of work done by the contractor, release of Rs.10.00 Lacs security and interest @10% per annum on Rs.75.19 Lacs. However, the Arbitrator rejected the counter claim of the petitioner – society on the ground that the delay of three and a half year was not unreasonable.
v. That the award was challenged before the Single Judge of the High Court who dismissed the objections of the petitioner – society vide order dated 19.02.2007. The learned Single Judge did not consider the challenge to that part of the award of the Arbitrator which rejected the counter claim of the petitioner even though said plea was raised in written submissions.
vi. The Division Bench vide order dated 03.11.2009 dismissed the Appeal of the petitioner – society against the order of Single Judge. The Division Bench refused to go into the plea of liquidated damages on the ground that even in the Memo of Appeal it was not specifically stated that said plea was raised before the Single Judge.
vii. That this hon’ble Court vide order dated 25.01.2010 dismissed the Special Leave Petition against the order of Division Bench of High Court. The review petitioner is impugning the order dated 25.01.2010 passed by this hon’ble court in SLP (C) 1391 of 2010 on the following grounds -
GROUNDS
I. The Division Bench of the High Court did not appreciate that the ld. Single Judge had actually refused to consider the plea of the liquidated damages even when the said plea found mention in the written submissions because the ld. Single Judge was of the view that the matter could be disposed of on a preliminary point. In view of the order of the ld. Single Judge having proceeded to dismiss the objection petition on preliminary point, the other pleas including that liquidated damages was not even considered by the ld. Single Judge. To quote from the order of the ld. Single Judge –
“I do not intend to refer to the verbose submissions made by learned counsel for the society and as reproduced in the written submissions running into 30 pages. My reason thereof is that a preliminary, and in my opinion, a most fundamental point remains unanswered.”
II. That the previous Managing Committee had perpetuated itself in office for more than three years over and above its permissible tenure by adopting illegal means and it was only when writ petition was filed in the High Court, the previous Managing Committee agreed to hold elections before the RCS. The vested interest of the previous Managing Committee become apparent from the fact that it did not present the case of the society before ld. Arbitrator as well as before the ld. Single Judge of the High Court in an effective manner inasmuch as it withheld certain relevant documents from the point of view the society before the ld. Arbitrator.
III. That the previous Managing Committee which was elected on 01.06.2002 and completed its tenure on 31.05.2005 actually demitted its office only on 14.09.2008 and that too after the writ petition was filed in the High Court. It is therefore not surprising that the previous managing committee developed certain vested interest and started colluding with the respondent – contractor rather than looking after the interest of the society. In fact, failure to raise a specific plea before the Division Bench in the Memo of Appeal in regard to liquidated damages is a clear pointer towards the fact that previous Managing Committee was either casual in its approach or was under the influence of the contractor in failing to project the case of society in an effective manner.
IV. That the Division Bench of High Court failed to notice that the Single Judge had taken note of the written submissions but refused to deal with the plea of liquidated damages on the ground that the written submissions were verbose. To quote from the order of the ld. Single Judge–
“12. I had called upon the parties to file written submissions. The same have been filed.
13. Unfortunately, both parties have given to me their respective versions, without dealing with the submissions of the rival parties.
14. Therefore written submissions do not guide me any better.”
PRAYER
In the facts and circumstances stated above, it is respectfully prayed that this Hon’ble Court may pleased to –
I. Review the order dated 25.01.2010 passed by this Hon’ble Court in Special Leave Petition (C) No.1391 of 2010.
II. Pass such other further order / orders, which this Hon’ble court deems fit and proper in the facts and circumstances of the case.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.
Filed by:
( ANIL NAG )
New Delhi Advocate for the Petitioners
Filed on: __________
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (CIVIL) NO.____________ of 2010
IN
SPECIAL LEAVE PETITION (C) NO.1391 OF 2010
In the Matter of:
Din Cooperative Group Housing Society ……. Petitioner
Versus
Shri A.S. Rana …… Respondent
AFFIDAVIT
I, ___________________________________, Secretary Din Coop. Group Housing Society, Plot No.7, Sector– 4, Phase–1, Dwarka, New Delhi, do hereby solemnly affirm as under:
1. That I am the petitioner in the above-mentioned matter and as such I am fully conversant with the facts and circumstances of the case and have been authorized by other petitioners and hence competent to swear this affidavit.
2. That the contents of the accompanying Review Petition and I.As., are true and correct to my knowledge and based on the record of the case and advise given by counsel. The contents of the review petition have been read over to me and have been explained to me, and I believe the same to be true and correct.
3. That the Annexures are true copies of their respective originals.
Verified at New Delhi on this ____ day of February, 2010
DEPONENT
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (CIVIL) NO.____________ of 2010
IN
SPECIAL LEAVE PETITION (C) NO.1391 OF 2010
(Arising out of final order and judgment dated 03.11.2009 passed by the High Court of Delhi at New Delhi in FAO (OS) No.154/2007)
IN THE MATTER OF:
Din Cooperative Group Housing Society ……. Petitioner
Versus
Shri A.S. Rana …… Respondent
PAPER – BOOK
(FOR INDEX: KINDLY SEE INSIDE)
ADVOCATE FOR THE PETITIONER: ANIL NAG
INDEX
S. No. Particulars Pages
1. Office Report on Limitation ‘A’
2. Copy of the Judgment and Order dated
25.01.2010 passed by this Hon’ble Court
In SPL (C) No. 1391 of 2010
3. Review Petition with Affidavit
4. Annexure-A: A photocopy of the letters with
typed copies dated 24.04.1999 and 03.01.2000
from the Society to Contractor regarding delay
in completion of work
5. Annexure-B: A copy of the order dated
11.08.2004 of the Delhi High Court in
Arbitration Petition No.22/2004
6. Annexure-C: A copy of the order dated
12.05.2008 of Delhi High Court in CWP
No.9406/2007
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-I, 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 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 Data 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
Ref.No.DIN/GENL/99 Dated: 24.04.99
M/s Rana Construction Company Ltd.
Contractor of Din CGHS Ltd.
New Delhi-110045
Subject: Completion of Flats
Dear Sir,
Following Flats allotted to members of Din Coop Group Housing Society Ltd. may please be completed in all respect for handing over the same to the member (allottee) by date shown against each:-
Flat No. Allotted To M.No. Date by which to be Completed
1. 67 Sh. Prasanna Sri Khande 366 4.5.999
2. 131 Smt. Savita Gaur 441 4.5.99
3.
4.
5.
6.
7.
8.
9.
10.
Thanking you. Yours faithfully
(Madan Sharma)
Hony Secretary
Copy to:
Sh. Ashok Kumar Singh – Please ensure that the flat(s) is Site Engineer of DIN ready/complete in all respect for Coop Gp. Hsg Society Ltd. handing over the possession of the flat to the above allottee(s).
Ref.No.DIN/GENL/2000 Dated: 3.1.2000
M/s Rana Construction Company Ltd.
Contractor of Din CGHS Ltd.
New Delhi-110045
Subject: Completion of Flats
Dear Sir,
Following Flats allotted to members of Din Coop Group Housing Society Ltd. may please be completed in all respect for handing over the same to the member (allottee) by date shown against each:-
Flat No. Allotted To M.No. Date by which to be Completed
1. 57 Sh. K. Mahesh
2. 74 Smt. Aruna Vijay
3.
4.
5.
6.
7.
8.
9.
10.
Thanking you. Yours faithfully
(Madan Sharma)
Hony Secretary
Copy to:
Sh. Ashok Kumar Singh – Please ensure that the flat(s) is Site Engineer of DIN ready/complete in all respect for Coop Gp. Hsg Society Ltd. handing over the possession of the flat to the above allottee(s).
.jpg)