Sh. Dhanraj Prasad vs Hil Co−Operative Gr. Housing ...

on 1 August, 2012

Delhi District Court

Sh. Dhanraj Prasad vs Hil Co−Operative Gr. Housing ... on 1 August, 2012
Author: Sh. Jitendra Singh
IN THE COURT OF SH. JITENDRA PRATAP SINGH, CIVIL JUDGE,
TIS HAZARI COURTS, DELHI

Suit No. 170/07

Case ID No. C0300442008

Sh. Dhanraj Prasad,

Proprietor of Sharp Security &
Detective Services (Regd.),
Shop No. 5 & 6, Opp. Income Tax Colony,
Pitampura, Delhi - 110088,
Through its Attorney,
Sh. Deepak Prasad,
S/o Sh. Dhanraj Prasad,
R/o A−1/69, Sector−3, Rohini,
Delhi - 110085. .... Plaintiff.

Versus

1. HIL Co−operative Gr. Housing Society,

Sector−13, Plot No. 17, Rohini,
Delhi - 110085,
Through its President / Secretary & Administrator.

2. Sh. B.B. Garg,

President of Residents Welfare Association,
HIL Co−operative Gr. Housing Society,
Sector−13, Rohini, Delhi - 110085.

Also at :
Flat No. A−66, HIL Apartments,
Sector−13, Rohini, Delhi - 110085.

Suit No. 170/07 Page No. 1 of 13

3. Sh. S.K. Puri,
Secretary, RWA,
HIL Co−operative Gr. Housing Society,
Sector−13, Rohini, Delhi - 110085.

Also at :
A−96, HIL Apartments,
Sector−13, Plot No. 17,

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 Sh. Dhanraj Prasad vs Hil Co−Operative Gr. Housing ... on 1 August, 2012

Rohini, Delhi - 110085.

4. Sh. L.N. Jindal,

Administrator,
C−02, Yamuna Vihar, Delhi.

Also at :
311, Block C−06, Yamuna Vihar,
Delhi. .... Defendants.

SUMMARY SUIT UNDER ORDER XXXVII CPC FOR RECOVERY OF

RS. 32,522.70 WITH INTEREST @ 24%.

Date of Institution : 23.03.2007

Date of reserving Judgment : 19.07.2012
Date of pronouncement : 01.08.2012

JUDGMENT

This Judgment shall dispose off the suit of the plaintiff initially filed under Order 37 CPC for
recovery of Rs. 32,522.70 with interest @ 24% from the date of amount due till its realization. Vide
order dated 21.4.2008, Ld. Predecessor had directed the present suit to be treated as ordinary suit.

2. Brief facts necessary for the decision of the case are as follows : − It is stated in the plaint that the
plaintiff is the sole proprietor of Sharp Security & Detective Services engaged in the business of
security and detective services having its office at the address mentioned in the memo of parties and
the present suit has been filed by the General Attorney of the plaintiff, Sh. Deepak Prasad. It is
stated that the defendant No. 1 is a registered society having defendant Nos. 2, 3 and 4 as its
President, Secretary and Administrator respectively. It is stated that the said defendants used to
collect funds from the members of the society in order to maintain security in the society.

3. It is stated in the plaint that the defendant No. 1 approached the plaintiff through defendant No. 4
to avail the services from the plaintiff and as per the request, five security guards were provided at
the main entrance gate of the defendant No. 1 society since November, 2004 @ Rs. 2400/ per
month per guard. It is stated in the plaint that as per the mutual agreement, it was agreed between
the parties that the payment of security guards has to be made on time failing which the service
provided by the plaintiff shall be withdrawn.

4. It is stated that initially the requisite payments were made on time by the defendant No. 1 and the
same were accepted sometimes through cash and sometimes through cheques by the plaintiff. It is
stated that despite providing agreed security services to the defendant No. 1 regularly, the defendant
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 Sh. Dhanraj Prasad vs Hil Co−Operative Gr. Housing ... on 1 August, 2012

No. 1 failed to clear the bills raised by the plaintiff for the months of September, 2005 to November,
2005. Plaintiff has given in the plaint the details of the bills raised by the plaintiff.

5. It is stated that the plaintiff has made written request to the defendant No. 1 on 27.10.2005 and
10.1.2006 to pay the due amount but despite that the same was not paid allegedly on the grounds of
the shortage or unavailability of funds as communicated by the defendants to the plaintiff
sometimes orally and also through letters dated 28.10.2005 and 30.11.2005, the defendant No. 1 is
stated to informed the plaintiff that the maintenance charges are being collected by the Residents
Welfare Association without jurisdiction. It is stated that finding no alternative, the plaintiff served
a legal notice dated 1.5.2006 duly received by the defendants but despite that the same was not
replied to nor any payment was made. Hence, the plaintiff was constrained to file the present suit.

6. Thereafter, the defendant No. 4 filed his written statement on 27.7.2004 while the defendant Nos.
1, 2 and 3 despite being given several opportunities did not file their written statement and
accordingly defence of the defendant Nos. 1, 2 and 3 was struck off vide order dated 22.3.2010
passed by the Ld. Predecessor.

7. In his written statement, the defendant No. 4 prayed for the dismissal of the suit of the plaintiff
against the said defendant No. 4 as the said defendant is not related in any manner to the suit of the
plaintiff and as such no cause of action has arose against the said defendant. The defendant No. 4
specifically denied that the said defendant is the Administrator of the society and it was further
stated that the said defendant was not working as an Administrator since 30.6.2005 till date and
any dispute as raised by the plaintiff is between the plaintiff and the RWA and not against the
defendant No. 4. It is stated that the defendant No. 4 had handed over the charge and keys to one
Mr. Majumdar who displayed a notice on 1.10.2007 at the notice board of the defendant No. 1
society admitting receipt of the charge by the said defendant.

8. It is further stated that the actual working of the defendant No. 4 in the defendant No. 1
association was upto 30.6.2005 and till that date, the maintenance charges were collected by the
said defendant and thereafter, by the defendant No. 1. It was further stated that the salary of the said
defendant No. 4 was due since 30.9.2005 till date of handing over charges @ Rs. 5000/− per month
excluding other charges. It was further stated that the plaintiff has not approached this court with
clean hands. In addition thereto, the said defendant deny the averments as made in the plaint.

9. Thereafter, on the basis of the pleadings of the plaintiff and the defendant No. 4 following issues
were framed by the Ld. Predecessor on 22.3.2010 : −

1. Whether the plaintiff is entitled to recovery of amount claimed, if so at what rate of interest and
for which period? OPP.

2. Whether the defendant No. 4 is not liable to pay the claimed amount as he ceased to work as an
Administrator on 30.6.2005? OPD−4.

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 Sh. Dhanraj Prasad vs Hil Co−Operative Gr. Housing ... on 1 August, 2012

3. Whether the defendant No. 4 had resigned as an Administrator of Hill Co−operative Group
Housing Society on 30.6.2005? OPD−

4.

4. Relief.

Thereafter, the matter was listed for plaintiff evidence.

10. In plaintiff evidence, plaintiff examined Attorney of the plaintiff, Sh. Deepak Prasad as PW1. In
his examination in chief, PW1 mostly reiterated the averments made in the plaint and relied upon
and produced the following documents on record :−

1. Power of attorney as Ex. PW1/A.

2. Suit for recovery as Ex. PW1/B.

3. Copies of bills as Ex. PW1/C1 to Ex. PW1/C11.

4. Letter dated 27.10.2005 as Ex. PW1/D1.

5. Letter dated 10.1.2006 as Ex. PW1/D2.

6. Letter dated 28.10.2005 as Ex. PW1/E.

7. Letter dated 30.11.2005 as Ex. PW1/F.

8. Notice dated 1.5.2006 as Ex. PW1/G.

9. Letter dated 28.8.2006 as Ex. PW1/H.

The said PW1 was cross examined by the counsel for defendant No. 4. Thereafter, Sh. Sanjay Prasad,
Supervisor in the plaintiff firm was examined as PW2 who in his evidence by way of affidavit also
reiterated the averments as made in the plaint. The said PW2 also placed reliance on the documents
already exhibited in the evidence of PW1. However, PW2 was not cross examined by the said
defendant despite given several opportunities for the same. Thereafter, the matter was listed for
defendant evidence which was also closed without defendant No. 4 leading any evidence even when
sufficient opportunities were given for the same. The matter was then listed for final arguments.

11. I have heard final arguments on behalf of the plaintiff and have carefully gone through the case
file. My issuewise findings are as follows :

12. ISSUE NO. 1.

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 Sh. Dhanraj Prasad vs Hil Co−Operative Gr. Housing ... on 1 August, 2012

The onus of proof of the present issue is upon the plaintiff. The plaintiff in support of his case as
stated aforesaid has examined PW1, Sh. Deepak Prasad, Attorney of the plaintiff who has placed on
record the copies of the bills raised by the plaintiff against the defendants as Ex. PW1/C1 to Ex.
PW1/C11. The said witness has also placed on record copy of the letter dated 27.10.2005 issued to
the defendant No. 1 association and received by the same. The witness has further produced on
record the copy of letter dated 10.1.2006 issued by the plaintiff to the President of defendant No. 1
association as Ex. PW1/D2. The said witness has further produced and relied upon the copy of the
letter dated 28.10.2005 issued by the Administrator of the defendant No. 1 association as Ex. PW1/E
and another letter issued by the said Administrator dated 30.11.2005 as Ex. PW1/F. The said
witness has also filed on record the copy of the legal notice dated 1.5.2006 as Ex. PW1/G and copy of
the letter dated 28.8.2006 issued by the plaintiff to the Registrar of Co−operative Group Housing
Society as Ex. PW1/H.

13. A perusal of the Ex. PW1/D1 which is a letter dated 27.10.2005 whereby the plaintiff has claimed
the salaries for the month of September and October, 2005 and is duly received by the
Administrator of defendant No. 1 reveals that the plaintiff has raised a claim of Rs. 24,000/− for the
salary of the security guards for the period of September and October, 2005. A perusal of Ex. PW1/F
i.e. the original letter written by the Administrator of the defendant No. 1 society reveals that vide
the said letter, the defendant No. 1 society had acknowledged that due to non availability of funds
presently with the society, the defendant No. 1 society is not in a position to pay the salaries of the
security guards from 1.9.2005 till 2.11.2005 as the maintenance charges are collected by the RWA
without jurisdiction. In view of the said admission by the Administrator of the defendant No. 1
society, this court finds no reason to disbelieve the case of the plaintiff.

14. In the cross examination of the said witness by the defendant No. 4, the said PW1 had admitted
that the liability of payment is against the society while denying the general suggestions as made by
the proxy counsel for the defendant No. 4. The said witness has further admitted that there was no
personal role of Sh. L.N. Jindal. It is stated by the PW2 in his examination in chief that the original
bills were retained by the defendants and the copies of the same as reproduced from the defendant's
bill book are Ex. PW1/C1 to Ex. PW1/C11. The said PW2 was never cross examined by any of the
defendant and thus this court finds no reason to disbelieve the testimony of the said witness.

15. The plaintiff has filed the present suit on 22.3.2007 and the amount sought to be recovered from
the defendants is for the period September, 2005 to November, 2005 and accordingly, the suit of the
plaintiff has been filed within the limitation. In view of the aforesaid, this court finds no reason to
disbelieve the case of the plaintiff as stated out in the present suit.

16. The plaintiff in the present suit has prayed for an interest @ 24% per annum from the date of
amount due till realization of the said amount. However, the plaintiff has not produced on record
any document in support of the said rate of interest nor any evidence has been led. In view of the
aforesaid, it is decided that the plaintiff is entitled to an amount of Rs. 27,330/− including salaries of
the guards for the month of September and October, 2005 and for two days salary of the said guards
for the month of November, 2005 along with Service Tax @ 10.2% on the said amount raised. In the
considered opinion of this court, an interest @ 9% per annum to be calculated on the aforesaid

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 Sh. Dhanraj Prasad vs Hil Co−Operative Gr. Housing ... on 1 August, 2012

amount of Rs. 27,330/− from 2.11.2005 till the realization of the same shall suffice to meet the ends
of the justice. The present issue is decided in the aforesaid terms.

17. ISSUE NOS. 2 & 3.

The onus of proof of these two issues has been placed on the defendant No. 4. However, the
defendant No. 4 has not led any evidence in support of the said issues and accordingly, the same are
decided against the said defendant and in favour of the plaintiff.

18. RELIEF.

In the light of the aforesaid discussion and decision of the issues, the plaintiff is held entitled to the
recovery of Rs. 27,330/− along with interest @ 9% per annum to be calculated from 2.11.2005.
However, a perusal of the documents as placed on record and also the averments as made in the
plaint, it is apparent that it was the defendant No. 1 Society who had entered into an agreement with
the plaintiff and it is for the said Society that the security guards were provided by the plaintiff. The
other defendants being the President, Secretary and Administrator of the said Society cannot be
held liable for the aforesaid amount due against the plaintiff. In support of this, the court puts
reliance on Section 8 of the Societies Registration Act, 1860 which provides as follows :

"Enforcement of Judgment against society.−−−If a Judgment shall be recovered

against the person or officer named on behalf of the society, such Judgment shall not
be put in force against the property, movable or immovable or against the body of
such person or officer, but against the property of the society. The application for
execution shall set forth the Judgment, the fact of the party against whom it shall
have been recovered having sued or having been sued, as the case may be, on behalf
of the society only, and shall require to have the Judgment enforced against the
property of the society".

In view of the aforesaid statutory provision, the suit of the plaintiff is decreed in terms as stated
aforesaid against the defendant No. 1 Society only while the same stands dismissed against the other
defendant Nos. 2, 3 and 4. Decree sheet be prepared accordingly. File be consigned to record room.

Announced in the open court (Jitendra Pratap Singh) on 01.08.2012. Civil Judge, North (IV) Tis
Hazari Courts, Delhi 01.08.2012.

This Judgment consists of 13 pages and all the pages are duly signed by me.

Suit No. 170/07

01.08.2012

Present: None.

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 Sh. Dhanraj Prasad vs Hil Co−Operative Gr. Housing ... on 1 August, 2012

Vide separate order of even date suit of the plaintiff is decreed against defendant No. 1 while
dismissed against defendant Nos. 2, 3 and 4. Decree sheet be prepared accordingly. File be
consigned to record room.

(Jitendra Pratap Singh) CJ/N/Delhi/01.08.2012

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