Appeal

IN THE COURT OF DISTRICT & SESSION JUDGE, DELHI

Criminal Appeal No ___________/2010

In the matter of

Sh. Om Parkash Tripathi …Appellant

Vs.State & Anr. …Respondents

MEMO OF PARTIES

SH. OM PARKASH TRIPATHIS/O LATE SH. JATA SHANKAR TRIPATHIR/O HOUSE NO 328, GALI NO 2,THAN SINGH NAGAR, ANAND PARBAT,NEW DELHI- 110 005 …APPELLANT

VERSUS1. STATE

GOVT. OF NCT OF DELHINEW DELHI

2. SH. LAXMI NARAYANS/O LATE SH. GYAN CHANDR/O 5/126, GALI NO 5ANAND PARBAT, PUNJABI BASTI,NEW DELHI-110 005 …RESPONDENTS

APPELLANT

NEW DELHI Through

DATE: December 2010 COUNSEL FOR THE APPELLANT

Dr. (Maj) J C Vashista, & asso.

Advocate, Erl. No. D-1184-2K Ch. No 647, Dwarka Courts

Complex,Sector 10, Dwarka, New Delhi-75

# 9891152939



In the matter of



INDEX

SR. No PARTICULARS COURT FEES PAGE

1. MEMO OF PARTIES A

2. APPEAL U/S 374 Cr. PC ALONG 2.75 1-13 SUPPORTING AFFIDAVIT

3. APPLICATION U/S 389 Cr. PC 2.75 14-15 ALONGWITH SUPPORTING

AFFIDAVIT

4. COPY OF IMPUGNED ORDER/JUDGEMENT

5. VAKALATNAMA 1.25

_________________________________________________________

APPELLANT

NEW DELHI Through


Dr. (Maj) J C Vashista, & asso. Advocate, D-1184-2K

Ch. No 647, Dwarka Courts Complex,Sector 10, Dwarka, New Delhi-75

# 9891152939



In the matter of

SH. OM PARKASH TRIPATHIS/O LATE SH. JATA SHANKAR TRIPATHIR/O HOUSE NO 328, GALI NO 2,THAN SINGH NAGAR, ANAND PARBAT,NEW DELHI- 110 005 …APPELLANT

VERSUS1. STATE

GOVT. OF NCT OF DELHINEW DELHI

2. SH. LAXMI NARAYANS/O LATE SH. GYAN CHANDR/O 5/126, GALI NO 5ANAND PARBAT, PUNJABI BASTI,NEW DELHI-110 005 …RESPONDENTS

APPEAL UNDER SECTION 374 Cr. PC AGAINST JUDGMENT/ORDER DATED 13-8-2010 AND ORDER ON SENTNCE DATED 06-09-2010 PASSED BY Ms. TWINKLE WADHWA, LD. MATROPOLITAN MAGISTRATE, TIS HAZARI COURTS DELHI IN CRIMINAL COMPLAINT CASE NO 4040/1/2007, 4042/1/2007 AND 4043/1/2007 WHERBY APPELLANT WAS CONVICTED AND SENTENCED TO SIMPLE IMPRISIONMENT OF THREE MONTHS AND TO PAY COMPENSATION IN THE SUM OF Rs. 2,50,000/- IN ALL THE NINE CHEQUES (CONSOLIDATED IN ALL THREE COMPLAINT CASES)

Most Respectfully Showeth:

1. That the complainant/respondent herein preferred three

complaints under Section 142/138 of the Negotiable

Instruments Act, 1881 alleging that the appellant in the

month of February 2006 asked for a friendly loan of Rs.

1,70,000/- through a common friend namely Sh. Prahlad

Chander Sharma.

2. That the complainant/respondent No 2 herein has stated to

advanced the loan of Rs. 1,70,000/- and further stated that

the appellant had promised to return said loan in 9

installments and issued nine cheques amounting to Rs.

1,70,000/- the three cheques in each complaint case.

However, in the course of examination when, where, how

much the loan was advanced did not find mention either in

the complaint, evidence or submission made by the

complainant/respondent No 2 herein.

3. That as averred in the complaint complainant/ responded

No 2 wherein asked the appellant to repay the said loan in

the month of August 2006 to December 2006 i.e., soon

within 6 months and appellant issued a cheque amounting

to Rs. 20,000/- on 10-8-2006 followed by four cheques

amounting to Rs. 60,000/- whereas balance of Rs. 50,000/-

was to be paid on 11-12-2006 all drawn on Standard

Chartered Bank, Karol Bagh, New Delhi-110 005 favouring

the complainant/respondent No 2 herein in discharge of his

aforesaid loan liability.

4. That when the cheques were presented for payment they

were returned back with the reason “funds insufficient”

and the complainant/ respondent No 2 herein went three

legal notices all dated 31-01-2007 through his counsel

within limitation in all the three cases same are exhibited

and placed on record. The appellant had replied all three

notices through his counsel Sh. Anil Kumar Narang,

Advocate on 13-2-2007 wherein the appellant has

specifically stated that he did not issue any cheque in

favour of the complainant/respondent No 2 herein, which

have been lost and police complaint to that effect has

already been lodged vide DD No 73 B dated 28-10-2006 at

page No 1698/2006. The appellant’s counsel had

requested the counsel to the complainant/ respondent No

2 herein to withdraw the notices under reply and not to

initiate any legal proceedings against the appellant,

whereas the complainant/respondent No 2 herein

preferred the present complaints consequently impugned

order/ judgment passed by the Ld. Trial Court.

5. That the Ld. Trial Court summoned and admitted the

appellant on bail whereas on charge, appellant pleaded

not guilty and prayed for trial. During the course of trial

complainant/respondent No 2 herein led his evidence,

statement of appellant was recorded and the appellant led

evidence by way of affidavit in his defence and exhibited

the documents of police complaint and FIR.

6. That right from beginning the appellant maintained the

fact that the subject cheques have been lost and the

complainant /respondent No 2 herein has misused the

same. In support of his contention appellant had placed on

record/exhibited the police complaint as well as non-

cognizable report, same is placed on record.

7. That the complainant /respondent No 2 herein Sh. Laxmi

Narain was never a friend or acquainted with the appellant

and the complainant /respondent No 2 herein has stated in

his cross examination that he is earning a sum of Rs.

10,000/- per month doing embroidery work and does not

have any other source of income consequently there is no

ground to believe the theory of the complainant

/respondent No 2 herein that he had advance a loan of Rs.

1,70,000/- as alleged. The complainant /respondent No 2

herein has also not produced or exhibited any evidence to

that effect for advancing the alleged loan of Rs. 1,70,000/-

whereas the fact remained that the complainant

/respondent No 2 herein had misused the lost cheques of

the appellant.

8. That after hearing both the parties the Ld. Trial Court

convicted the appellant and sentenced him to undergo

simple imprisonment for three months and to pay a sum of

Rs. 2,50,000/- as compensation for all the nine cheques

involved in all the three complaints/impugned order dated

13-8-2010, Aggrieved by the said order and judgment the

appellant assails and is moving present appeal before this

Hon’ble Court.

GROUNDS FOR THE APPEAL:

1. That the impugned order/ judgment, which is based on

surmises and conjectures and totally against the matrix of

facts and law hence the judgment/order as well as

sentence is void, illegal and liable to be reversed, quashed

and set aside.

2. That the Ld. Trial Court did not appreciate the fact that the

complainant /respondent No 2 herein has failed to

discharge the onus to prove that subject cheque were

issued for any specific admitted consideration wherein the

respondent No 2 has miserably failed to prove that when,

where and how (mode of payment) and how much alleged

loan was advanced.

3. That complainant /respondent No 2 herein has further

failed to prove that how much of the alleged loan was

advanced and placed any documents, receipts and

records/accounts to the affect that the complainant

/respondent No 2 herein had advanced any friendly loan to

the appellant as alleged in his complaint, hence judgment/

order is bad in the eyes of law and liable to be reversed,

quashed and set aside.

4. That the Ld. Trial Court has failed to appreciate the fact

that the complainant /respondent No 2 herein has

miserably failed to place any document to show any

recordable debt/ liability of appellant towards the

complainant /respondent No 2 herein as claimed. It is

pertinent to mention here that the complainant

/respondent No 2 herein even did not place on record any

documentary evidence to prove his allegation that any

particular time alleged friendly loan was advanced by the

complainant /respondent No 2 herein to the appellant

therefore said impugned judgment/order is liable to be

reversed and quashed.

5. That the Ld. Trial Court has observed but ignored the

material fact that there is no evidence regarding payment

of any friendly loan by the complainant /respondent No 2

herein to the appellant, hence the judgment/ order is bad

in the eyes of law and liable to be set aside.

6. That the Ld. Metropolitan Magistrate has erred in law

disbelieving and /or ignoring the version of appellant

wherein appellant had placed on record and exhibited the

document police complaint as well as NCR both dated 27-

10-2006 stating therein that the appellant has lost his bag

containing 12 cheques, which includes 8 cheques in the

instant complaint cases that the complainant /respondent

No 2 herein has misused the lost cheques of the appellant,

consequently present impugned order/judgment passed

against the appellant herein which is liable to be quashed.

7. That the Ld. Trial Court has ignored the material

emphasized by the appellant that he has no acquaintance

and unknown to the complainant /respondent No 2 herein

and there is no chance to advance a loan of Rs. 1,70,000/-

that too without obtaining any security deposit excepting

the subject cheques involved in the instant complaint

cases, hence the impugned judgment/ order is liable to be

recalled, reversed and quashed.

8. That the Ld. MM has grossly erred and ignored the fact

submitted by the appellant herein that the appellant did

not mention name of the payee and date of drawing the

cheques in question which have been filled by different

persons in different colored ink, therefore, the impugned

judgment/ order is liable to be set aside.

9. That the Ld. Trial Court has failed to appreciate specific

documentary evidence exhibited along with appellant’s

affidavit in his defence that there was no friendly loan as

alleged, rather the cheques in question were lost and

complaint to that affect has been lodged with the local

police consequently the complaint is not maintainable as

the same is not a legally enforceable liability and an

exception to Section 138 of The Negotiable Instruments

Act, 1881, therefore, the order/judgment passed by the Ld.

Trial Court is bad in the eyes of law and liable to be

reversed, set aside and quashed.

10. That the Ld. Trial Court did not appreciate the fact

that usually a person uses one or two cheque books at any

one time, whereas the lost 12 cheques involved four

different cheque-books as he has stated in his complaint

before local police on 27-10-2006 made by him along with

FIR, therefore, impugned judgment/ order is liable to be

set aside.

11. That the Ld. Trial Court has failed to appreciate the

fact that the complainant /respondent No 2 herein has

alleged to have advance loan of Rs. 1,70,000/- in the

month of February 2006 to an unknown person and asking

return of the loan amount just within a period of 6 months

which is highly improbable and unbelievable story cooked

by the complainant /respondent No 2 herein, therefore, the

impugned judgment/ order is liable to be quashed.

12. That the Ld. Metropolitan Magistrate has failed to

appreciate the fact that the complainant /respondent No 2

herein is earning a sum of Rs. 10,000/- per month from his

employment without any other support/ source of income

and arranging Rs. 1,20,000/- from his own savings is

absolutely unbelievable and improbable story, hence the

order/ judgment passed by the Ld. MM is liable to be set

aside.

13. That the Ld. Metropolitan Magistrate has failed to

appreciate the fact that the alleged loan was not legally

recoverable debt as stated by the appellant in his affidavit

as well as deposition before the Hon’ble Court and has

stood to the test of cross examination as well. On the

contrary the appellant has exhibited the document of

complaint before the local police and lodging FIR for the

lost cheques involved in the present complaint cases,

hence the order/ judgment passed by the Ld. MM is liable

to be set aside.

14. That the Ld. Trial Court has failed to consider various

verdicts/ decision handed down by the Hon’ble Supreme

Court regarding maintainability of the complaint resulting

into impugned judgment of conviction is against the facts

and law consequently miscarriage of justice. Hence the

judgment of Ld. Trial Court is neither just nor fair or

reasonable and against the principles of law, justice and

equity.

15. That the appellant craves the leave of this Hon’ble

Court to urge any other additional grounds which would be

made available to him at the time of final hearing of

present appeal.

16. That present appeal of the appellant is within

prescribed limitation.

PRAYER:

It is, therefore, most respectfully prayed that this Hon’ble

Court may graciously be pleased to call for the trial court

records, set aside/quash impugned order/ judgment passed by

Ld. Trial Court, accept present appeal and acquit the appellant

in the interest of justice.

It is further prayed to pass any other order/direction as this

Hon’ble Court may deem fit and proper in the light of the facts

and circumstances explained hereinabove, in favour of the

appellant and against the respondents, to meet the ends of

justice, fairness and equity.

APPELLANT

NEW DELHI Through


Dr. (Maj) J C Vashista, & asso. Advocate, D-1184-2K


# 9891152939



In the matter of



AFFIDAVIT

I, Om Prakash Tripathi S/O Late Sh. Jata Shankar Tripathi

aged about 50 years R/O H. No 328, Second floor, Gali No 2,

Than Singh Nagar, Anand Pabat, New Delhi-110 005 do hereby

solemnly affirm and declare as under:

1. That I am appellant in the above noted case and am

conversant with the facts and circumstances of the case

and also competent to depose this affidavit.

2. That accompanying appeal has been drafted by my

counsel under my instructions, contents of the same may

be read as part and parcel of this affidavit which is not

repeated herein for the sake of brevity and the same are

read over to me in vernacular and stated that the facts

mentioned therein are true and correct to the best of my

knowledge and belief.

DeponentVERIFICATION:

Verified at New Delhi on this 06th October 2010 that the

contents of my above affidavit are true and correct to my

knowledge, no part of this affidavit is false and nothing material

has been concealed therefrom.

Deponent


IA No__________/2010

IN


In the matter of



APPLICATION UNDER SECTION 389 Cr. PC FOR SUSPENSION OF SENTENCE AND DEPOSIT OF COMENSATION FOR GRANT OF BAIL TILL DISPOSAL OF THE APPEAL

Most Respectfully Showeth:

1. That the appellant has filed an appeal against the

impugned judgment dated 13-8-2010 and sentenced on

06-09-2010, copy received on 13-9-2010 passed by

Ms.Twinkle Wadhwa, Ld. Metropolitan Magistrate, Tis

Hazari Courts, Delhi in three complaint cases bearing No

4040/1/2007, 4042/1/2007 and 4043/1/2007 and same is

pending disposal before this Hon’ble Court.

2. That contents of aforesaid appeal may kindly be read as

part and parcel of this application also as the same have

not been reproduced herein for the sake of brevity.

3. That the appellant remained on bail throughout the trial

and he had never misuse the concession of bail.

4. That the appellant has a very good prima facie case in his

favour and has every hope of success therein.

5. That the appellant undertakes to abide by the condition

imposed by this Hon’ble Court.

PRAYER:

It is, therefore, most humbly prayed that this Hon’ble

Court may graciously be pleased:

a) To suspend the order of sentence dated 06-09-2010

passed by Ms.Twinkle Wadhwa, Ld. Metropolitan

Magistrate, Tis Hazari Courts, Delhi in three complaint

cases bearing No 4040/1/2007, 4042/1/2007 and

4043/1/2007;

b) To suspend order to deposit the compensation awarded to

the complainant/respondent No 2 herein;

c) To enlarge the appellant on bail till final disposal of

present appeal;

d) To pass any other order/directions as this Hon’ble Court

may deem fit and proper in the light of facts and

circumstances enumerated herein above, may also be

passed in favour of the appellant, in the interest of justice.

APPELLANT

NEW DELHI Through


Dr. (Maj) J C Vashista, & asso. Advocate, Erl. No. D-1184-2K


# 9891152939



In the matter of



AFFIDAVIT

I, Om Prakash Tripathi S/O Late Sh. Jata Shankar Tripathi

aged about 50 years R/O H. No 328, Second floor, Gali No 2,

Than Singh Nagar, Anand Pabat, New Delhi-110 005 do hereby

solemnly affirm and declare as under:

a) That I am appellant in the above noted case and am

conversant with the facts and circumstances of the case

and also competent to depose this affidavit.

b) That accompanying application has been drafted by my

counsel under my instructions, contents of the same

may be read as part and parcel of this affidavit which is

not repeated herein for the sake of brevity and the

same are read over to me in vernacular and stated that

the facts mentioned therein are true and correct to the

best of my knowledge and belief.

DeponentVERIFICATION:

Verified at New Delhi on this 06th October 2010 that the

contents of my above affidavit are true and correct to my

knowledge, no part of this affidavit is false and nothing material

has been concealed therefrom.

DeponentBEFORE THE HON’BLE PRESIDENT, DELHI COOPERATIVE TRIBUNAL MATCALF HOUSE, NEW DELHI

APPEAL NO. OF 2010

IN THE MATTER OF:

SH. I.P.SINGH …..APPELLANT

VERSUS

DELHI CHARTERED ACCOUNTANTS CGHS LTD & ANR. ….RESPONDENTS

MEMO OF APPEAL

SH. I.P. SINGHS/O SH. TARA SINGH, 810, C A APARTMENTS,PASCHIM VIHAR, NEW DELHI-110063 ….APPELLANT

VERSUS

1. DELHI CHARTERED ACCOUNTANTS CGHS LTDTHROUGH PRESIDENT833, C A APARTMENTS, PASCHM VIHAR, NEW DELHI-110063

2. SH. N.L. SETHI (ARBITRATOR),REGISTRAR’S NOMINEE,C/O REGISTRAR COOPERTIVE SOCIETIES,GOVT. OF N.C.T. OF DELHI,

PARLIAMENTARY STREET, NEW DELHI-110001 ….RESPONDENTS

APPELLANTNEW DELHIDATED: THROUGH

Dr.(Maj) J.C. VASHISTAADVOCATE

CH.NO.647, DWARKA COURTS,NEW DELHI-110075

BEFORE THE HON’BLE PRESIDENT, DELHI COOPERATIVE TRIBUNAL MATCALF HOUSE, NEW DELHI

APPEAL NO. OF 2010

IN THE MATTER OF:

SH. I.P. SINGHS/O SH. TARA SINGH, 810, C A APARTMENTS,PASCHIM VIHAR, NEW DELHI-110063 ….APPELLANT

VERSUS

1. DELHI CHARTERED ACCOUNTANTS CGHS LTDTHROUGH PRESIDENT833, C A APARTMENTS, PASCHM VIHAR, NEW DELHI-110063

2. SH. N.L. SETHI (ARBITRATOR),REGISTRAR’S NOMINEE,C/O REGISTRAR COOPERTIVE SOCIETIES,GOVT. OF N.C.T. OF DELHI,PARLIAMENTARY STREET, NEW DELHI-110001 ….RESPONDENTS

APPEAL UNDER SECTION 112 OF THE DELHI COOPERATIVE SOCIETIES ACT, 2003 AGAINST THE IMPUGNED ORDER DATED 10.09.2010 IN ARBITRATION CASE NO.2789/DR/ARB/09-10 PASSED BY SH. N.L. SETHI ARBITRATOR (REGISTRAR’S NOMINEE).

MOST RESPECTFULLY SHOWETH:

1. That the Appellant is a law abiding citizen of India and a

member/resident of the respondent society. The appellant

has been paying all his dues to the respondent and there

is no outstanding amount under the head maintenance

charges for the Upkeep of the Society.

2. That the respondent No.1 is a society registered with the

Registrar of Cooperative Societies who is responsible for

maintenance for providing maintenance of essential

services in the Housing Complex of the Society called as

C.A. Apartments in accordance with DCS Rules, 2007. The

society is entitled to collect maintenance charges under

the provisions of DCS Rules, 2008 in accordance with DCS

Act, 2003.

3. That the appellant being aggrieved by the order dated

10.09.2010 passed by respondent No.2 received by the

appellant on 25.09.2010 directing the appellant to pay a

sum of Rs.81,433/- towards principal amount of

maintenance/service charges upto 31.7.2009 and a sum of

Rs.51,289/- towards interest accrued on principal amount

upto 31.7.2009 @ 12% per annum and further interest till

realization of the principle amount in full besides this the

Arbitrator has decided that the cost of Rs.5000/- for

litigation shall also be born by the appellant, copy annexed

as Annexure-A/1.

4. That the respondent No.2 appointed by the Registrar

Cooperative Society as an Arbitrator vide Order dated

04.02.2010 U/s 71 of the Delhi Cooperative Societies Act,

2003 vide their letter No. Arb. Case No.2789/DR/ARB/2009-

10/1698 dated 05.02.2010, Copy annexed as Annexure-

A/2 despite the fact that the appellant had established

that the outstanding amount of Rs.1,32,722/- as shown in

the above order have not been claimed by the claimant

society and the same pertained to an unauthorized and

illegal Association called as Welfare Committee, Delhi

Chartered Accountants, CGHS Ltd and the same do not

hold any legal sanctity and the same cannot be excepted

either by the members or managing committee of the

Society. Photocopy of the Notice dated 08.10.1999 and

21.11.1999 issued by the respondent No.1 are annexed as

Annexure-A/3 (Colly.).

BRIEF FACTS OF THE APPEAL:

1. That the Welfare Association was formed by a group of few

persons of the respondent No.1 had been enjoying full

rights of Administration and financial powers but did not

have any legal sanctity and the body was formed in-

contravention of bye-laws of the respondent No.1 Society.

The notices issued by the respondent No.1 (supra) are self

explanatory. After framing of new rules and coming of DCS

Act, 2003 in force, aforesaid Association has been merged

with the respondent No.1 society and the subject dues

against the appellant had been demanded by the said

Welfare Association and not by the respondent No.1, as

decided by the Ld. Arbitrator in impugned order dated

10.09.2010 (supra).

2. That the respondent No.1 did never raised any demand as

the maintenance charges from any of the members of the

society including the appellant, as opinioned by the Ld.

Arbitrator, thus, the decision of the respondent No.2 is bad

in the eyes of law and not in conformity with the facts of

the case, hence present appeal before this Hon’ble

Tribunal to set aside and quash impugned order dated

10.09.2010 passed by the Ld. Arbitrator Sh. N.L. Sethi in

the aforesaid Arbitration case.

3. That besides the illegal demands raised by aforesaid

Welfare Association, the appellant has been asking the

respondent No.1 to compensate loss of Rs.43,887/- for the

loss of electricity meter stolen from the electricity meter

room solely under the control, supervision, lock & key of

the said Welfare Association, which the appellant was

compelled to get a fresh meter installed for restoration of

his electricity.

4. That the appellant had been asking for adjustment/refund

of a sum of Rs.7,286/- retained by the respondent No.1

since 1998 after adjustment of cost of flat. The appellant

had been requesting the respondent No.1 time and again

to adjust/refund the amount of Rs.7,286/- alongwith

interest @ 18% per annum calculated to be Rs.24,852/- till

31.12.2009 and outstanding amount of Rs.43,887/-

alongwith interest calculated to be Rs.55,293/- till

31.12.2009 for the compensation of electricity meter

stolen from the care and custody of the respondent No.1,

whereas, the respondent No.1 maintained silence on the

issue.

5. That the amount involved in the impugned order /decision

dated 10.09.2010 passed by the Ld. Arbitrator pertains to

time barred illegal demand which is not maintainable.

6. That the Order dated 10.09.2010 is bad in the eyes of law

and on the merits of the facts on the following grounds

amongst other:

GROUNDS FOR APPEAL:

(A) Because the Ld. Arbitrator has grossly erred on the matrix

of facts and law and has arrived at the decision in a

mechanical manner.

(B) Because the Ld. Arbitrator did not apply his judicious mind

and has failed to appreciate the fact that the claim of the

respondent No.1 was illegal and not maintainable since the

same was raised by erstwhile Welfare Association (a group

of few persons) of the society who had been

unauthorizedly controlling the activities and powers of

respondent No.1.

(C) Because the Ld. Arbitrator has passed impugned order on

the basis of surmises and conjectures without considering

the facts of the case.

(D) Because the Ld. Arbitrator has acted arbitrarily and with

prejudice mind considering the averments made by

respondent No.1 to be true that the claim pertained to the

maintenance facilities/services provided by the respondent

No.1 to its members including defendant, appellant herein.

(E) Because the erstwhile Welfare Association had no locus

standi to raise any demand from the members of

respondent No.1 Society and the respondent No.1 has

neither handed over nor taken over any assets and/or

liabilities of the erstwhile Welfare Association which was

maintaining bank accounts and fixed deposits in some

Nationalized banks i.e. Corporation Bank, Paschim Vihar,

New Delhi, Oriental Bank, Paschim Vihar, New Delhi and

some other banks.

(F) Because the Law of equity is being violated by the

respondent No.2 since the appellant has been singled out

from amongst number of such persons who did not obliged

to the illegal and unauthorized demand raised by the

erstwhile Welfare Association.

(G) Because the Ld. Arbitrator has ignored the material facts

that the appellant had made specific averment in his reply

to the claim dated 21.07.2010 that the claim of the

claimant respondent No.1 herein was barred by limitation.

(H) Because the respondent No.2 has grossly erred in law and

on the matter of facts that the claim raised by a non-est,

illegal and unauthorized body called C.A. Apartments

Residents Welfare Association which do not have any locus

standie to file the claim.

(I) Because Ld. Arbitrator did not appreciate the fact that the

appellant had been paying his dues and demands raised

by the respondent No.1 and there had not been any dues

of the respondent No.1 against appellant /defendant in

said claim.

(J) Because the Ld. Arbitrator did not appreciate the fact that

despite numerous requests, reminders and personal

meetings of the appellant with the respondent No.1, the

amount of Rs.43,887/- charged by BSES on account of re-

installation of electricity meter of the defendant/appellant

herein has not so far been reimbursed/adjusted/credited

by the claimant/respondent No.1 herein which was stolen

from absolute control, lock & key, care and custody and

supervision of the respondent No.1.

(K) Because there is a material irregularity in the impugned

order passed by Ld. Arbitrator as an interest @ 18% since

the year 1990 on Rs.7286/- calculated to be Rs.25,000/-

excess charged by the respondent No.1 towards cost of

the flat, refunded by the respondent No.1 society on

11.01.2008 was still due/not credited in the account of the

appellant.

(L) Because findings of Ld. Arbitrator that the amount of

Rs.81,433/- was due towards appellant and appellant was

liable to pay the said amount since the claimed amount

pertained to maintenance facility /services availed by

appellant as a resident of respondent No.1 society in

respect of Flat No.810 as maintenance charges is not

tenable in the eyes of law since services had never been

extended/provided by respondent No.1 to either of the

members of society including appellant herein. Thus,

observation of the Ld. Arbitrator is against the principal of

natural law and justice and same must be out rightly

repudiated.

(M) Because the Ld. Arbitrator, despite its being in total death

of essential documentary evidence went to assess the

interest @ 12% per annum and cost of litigation to be

charged from the appellant is by his imagination,

interpretation and visualization of the facts not in

existence, which is contrary to the settled law of land,

therefore, it warrants upsetting impugned order of Ld.

Arbitrator.

(N) Because the Ld. Arbitrator have miscarried justice by

denying the claim of the appellant where the appellant has

suffered a loss of Rs.43,887/- charged by BSES on account

of re-installation of electricity meter of the appellant which

was stolen from the absolute care, control, custody,

supervision and lock and key of the claimant

Society/respondent No.1 herein. Hence present appeal

before this Hon’ble Tribunal.

(O) Because Ld. Arbitrator has failed to appreciate the fact

that the respondent No.1 has not approached the

respondent No.2 with clean hands and concealed the

material facts that the claimant /respondent No.1 herein

has illegally and unauthorisedly sold common area and

parking space to some of the members of the society.

Hence present appeal before this Hon’ble Tribunal.

(P) Because the Ld. Arbitrator did not appreciate the fact that

the claimant/respondent No.1 has suppressed the material

facts that respondent No.1 has not cleared /clarified audit

objections of misappropriation of Rs.7,50,000/- raised

against erstwhile C.A. Apartments Welfare Association.

Hence present appeal before this Hon’ble Tribunal.

The appellant craves the leave of this Hon’ble Tribunal to

submit any other ground at the time of final hearing of the

Appeal.

7. That appellant had not filed any other proceedings against

impugned order dated 10.09.2010 passed by Sh. N.L.

Sethi, Arbitrator, respondent No.2 herein in any court of

law.

8. That present Appeal is within limitation as prescribed

under the provisions of Delhi Cooperative Societies Act,

2003.

PRAYER:

It is, therefore, most humbly prayed that this Hon’ble court

may graciously be pleased:-

(a) To call for Arbitration records in the case No.

2789/DR/ARB/2009-10/1698 dated 05.02.2010 from Sh.

N.L. Sethi, Arbitrator (Registrar’s Nominee) C/o Registrar

New Delhi Cooperative Societies, NCT of Delhi,

Parliamentary Street, New Delhi-110001.

(b) To set aside and quash order dated 10.09.2010 in the case

No. 2789/DR/ARB/2009-10/1698 dated 05.02.2010 from

Sh. N.L. Sethi, Arbitrator (Registrar’s Nominee) C/o

Registrar New Delhi Cooperative Societies, NCT of Delhi,

Parliamentary Street, New Delhi-110001, to meet the ends

of justice, fairness and equity.

(c) To pass any other order/relief as this Hon’ble court may

deem fit and proper in the light of facts and circumstances

explained hereinabove, in the interest of justice.

APPELLANT

NEW DELHIDATED:08.11.2010 THROUGH

DR.MAJ J.C. VASHISTAADVOCATE

CH.NO.647, DWARKA COURTS,NEW DELHI

(Mobile No.:9891152939)


APPEAL NO. OF 2010

IN THE MATTER OF:


VERSUS


AFFIDAVIT

I, I.P. SINGH S/O SH. TARA SINGH, 810, C A APARTMENTS PASCHIM VIHAR, NEW DELHI-110063, do hereby solemnly affirm and declare as under:

1. That I am the appellant in the above noted Appeal and well conversant with the facts and circumstances of the case and competent to depose this affidavit.

2. That the accompanying Appeal has been drafted by my counsel under my instructions, the contents of the same have been read over to me in vernacular and are found to be true and correct. The contents of the same may be read as part and parcel of this affidavit as the same are not being reproduced herein for the sake of brevity.

DEPONENTVERIFICATION:

Verified at New Delhi on this 8th day of November 2010, that the contents of my above affidavit are true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom.

DEPONENT


APPEAL NO. OF 2010

IN THE MATTER OF:


VERSUS


APPLICATION FOR STAY OF EXECUTION AGAINST IMPUGNED ORDER DATED 10.09.2010 IN ARBITRATION CASE NO.2789/DR/ARB/09-10 PASSED BY SH. N.L. SETHI ARBITRATOR (REGISTRAR’S NOMINEE).

MOST RESPECTFULLY SHOWETH:

1. That the appellant/applicant has filed accompanied appeal

before this Hon’ble court which is pending consideration,

contents of the same may kindly be read as part and

parcel of this application which is not been reproduced

herein for the sake of brevity.

2. That present application is being filed since the appellant

is aggrieved by order dated 10.09.2010 passed by the

respondent No.2.

3. That there is every likelihood of the appellant/applicant to

succeed in the present appeal.

4. That the appellant/applicant will be put to great injury and

loss which cannot be assessed and compensated in terms

of money if the order dated 10.09.2010 passed by the

respondent No.2 is not stayed till the decision on the

accompanied appeal. On the contrary the respondents

shall not suffer any loss if the stay granted in favour of the

appellant/applicant.

5. That the balance of convenience lies in favour of the

appellant/applicant and appellant has good prima-facie

case in his favour.

It is, therefore, most humbly prayed that the

operation/ execution of the order dated 10.09.2010 passed

by Sh. N.L. Sethi, Ld. Arbitrator (Registrar’s Nominee) in

Arbitration Case No. 2789/DR/AR/ARB/2009-10 may kindly

be stayed and kept in abeyance till the final decision of the

present Appeal, in the interest of justice.

APPELLANT/APPLICANTNEW DELHIDATED: 08.11.2010 THROUGH

COUNSEL


APPEAL NO. OF 2010

IN THE MATTER OF:


VERSUS


AFFIDAVIT

I, I.P. SINGH S/O SH. TARA SINGH, 810, C A APARTMENTS, PASCHIM VIHAR, NEW DELHI-110063, do hereby solemnly affirm and declare as under:

1. That I am the appellant in the above noted Appeal and well conversant with the facts and circumstances of the case and competent to depose this affidavit.

2. That the accompanying Application has been drafted by my counsel under my instructions, the contents of the same have been read over to me in vernacular and are found to be true and correct. The contents of the same may be read as part and parcel of this affidavit as the same are not being reproduced herein for the sake of brevity.

DEPONENTVERIFICATION:

Verified at New Delhi on this 8th day of November 2010, that the contents of my above affidavit are true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom.

DEPONENT

BEFORE THE HON’BLE PRESIDENT, DELHI COOPERATIVE TRIBUNAL, NEW DELHI

APPEAL NO. OF 2010

IN THE MATTER OF:


VERSUS


INDEX

S.NO. PARTICULARS PAGES C.FEE

1. MEMO OF APPEAL

2. APPEAL U/S 112 OF DELHICOOPERATIVE SOCIETIES ACT, 2003.

3. AFFIDAVIT IN SUPPORT OF THE APPEAL.

4. APPLICATION FOR STAY OF EXECUTION WITH AFFIDAVIT.

5. ANNEXURE-A/1.COPY OF ORDER DATED 10.09.2010 IN ARBITRATION CASE NO.2789/DR/ARB/09-10PASSED BY SH. N.L. SETHIARBITRATOR (REGISTRAR’S NOMINEE).

6. ANNEXURE-A/2COPY OF ORDER DT. 04.02.2010 PASSED BY THE DY. REGISTRAR (ARBITRATION)R.C.S. PARLIAMANTARY STREET, NEW DELHIIN THE ARBITRATION CASE NO. 2789/DR/ARB/09-10.

7. VAKALATNAMA.

APPELLANT

NEW DELHIDATED:08.11.2010 THROUGH

DR.MAJ J.C. VASHISTAADVOCATE

CH.NO.647, DWARKA COURTS,NEW DELHI

(Mobile No.:9891152939)

Appeal

Documents

Transcript of Appeal