Draft of Appeal Against Award U/S 56 of C.S.Act 1929

 BEFORE THE COURT OF REGISTRAR CO-OPERATIVE SOCIETIES KARACHI.

ABN Case No:       2017

APPEAL No:           /2018

M/S. Works Co-operative

Housing Society Ltd. Office at No; B-44,

Block-8, Gulshan Iqbal,

Karachi ………             …………      APPELLANT.

                           VERSUS

Mst. S. Farooqi W/O R. M. Baig,

Through Attorney

M.A S/O M.A,

House No:  D.View, Phase No:

Karachi.                  ……………… RESPONDENT.

APPEAL AGAINST AWARD U/S 56 C.S.Act 1929

Being aggrieved and dissatisfied with the Award, dated 14 February 2018, passed in ABN Case NO:    /2017, by the court of Rigistrar’s Nominee, the Appellant above captioned, prefers this Appeal in consideration of the facts & grounds mentioned herein under :-

FACTS

The facts of the case are the respondent had submitted in case ABN No:    2017, through plaint, as, “in the year 1975, the respondent had submitted application for membership & allotment of plot. Thereon the appellant / society in their official business had processed this application. At first she was admitted as a member and thereafter upon receiving payments of all due amounts, the appellant society, had issued allotment orders for plot No: A-   /, measuring 160 Sq Yards, in Gulsha Iqbal, Karachi, to her. Further, the respondent was also handed over physical possession of said plot through issuance of acknowledgements of possession. So, since the date of issuance of possession orders, the respondent was enjoying physical possession said plot. But on 24-08-2015, first time, when the respondent approached to appellant society for issuance of NOC for transfer of said plot in the name of proposed purchaser. The appellant society refused to do so, which had given rise to cause of action to file ABN Case / suit for declaration & entitlement with a prayer as under:

A.  Declare that subject plot bearing No: A- /, measuring 160 Sq Yards, Gulshan Iqbal, Karachi was lawfully allotted to plaintiff and plaintiff is the lawful owner of subject plot.

B.  Direct the defendant to issue NOC for the purpose of construction as well as for selling of the subject plot.

C.  Permannately restrain the defendant or any other person claiming through or under it from obstructing, alienating, cancelling and or creating hindrens in the peaceful possession of plaintiff on subject plot  and / or to create any third party interest in the subject plot till decision of the case.

While, in reply, the appellant society had submitted written statement & had contended that the “ In the year 1975, in routine manner, three different applications, were submitted by one person, who was father of respondent, for membership of his own and his two daughters who were minors - 5 & 6 years old at that time. The respondent is one of them.  And like this way three plots were got allotted in one family. The father of respondent, intentionally and just to circumvent the rules & regulation of minimum age for membership and blood relation of applicants with him, submitted two other applications, side by side of application of his own. And these two applications (out of these two, one is subject to an action here in this appeal) were submitted with impersonation. Specifically in application of respondent, the age of respondent was shown 18 years old and the father’s name was shown as S.A, fraudulently. This fact could not be unearth at that time and during course of official business, all above stated / three applications, were approved by then administration with issuance of allotment orders upon terms & conditions mentioned on reverse of allotment order, whereat, it is particularly mentioned that these allotments are subject to the approval by Karachi Development Authority (KDA). After a long time passed and after obtaining three plots, the plot of father of respondent vide 1st application has been sold by his legal heirs and other two plots, one is in the name of respondent & other is in the name of her real sister, were also being made for sale. On 24-08-2015, the respondent had approached, in respect of her plot, to appellant society for getting issuance of NOC for sale and for transfer of record of rights in the name of proposed purchaser M.A & side by side said sister of respondent had also approached, in respect of another plot, to appellant society for getting issuance of NOC for sale and for transfer of record of rights in the name of proposed purchaser M. S. Luckily, when both applications for NOC were being processed at same time in office of appellant society and also upon scrutiny of NICs, it was unearthed that respondent & Mst. A - other applicant, are real sisters to each other and at the time of allotment they were at age of less than 8 years & less than 06 years respectively. Side by side, the appellant society had further scrutinized the matter, in which it further revealed that the person who had identified them for membership, was their real father. As in office record file of respondent’s father, the copy of heirs-ship certificate was found which confirmed it, that fraudulently & through misrepresentation, three plots have been got allotted to one family & at the time of allotment, the respondent as well as her sister A were also minor or ineligible. Thereafter the respondent & her sister did not prefer to accept the demand of appellant society to avail the opportunity of being heard positively & and to satisfy for their claim. But they preferred to send legal notices and also to initiate legal proceedings through subject case. Thereon the appellant society had filed a counter claim with a prayer as under:.

“It is therefore prayed that this honorable court may be pleased to declare that in view of above stated circumstances, the plaintiff has no right to retain allotment & possession of Plot & also is not entitled for relief claimed in prayer clause of plaint Or any other relief or relives which this Hon'ble Court deems fit and proper in the circumstances of case, may be awarded”.

Thereafter in support of above stated pleas or contentions, the appellant & respondent had also filed their affidavits in evidence, both were cross examined and written arguments were also filed, all this is a part of record & proceedings of subject case.

       The award, which is impugned in this appeal, is „ a subject of blatant illegality‟ or error on the face of the record‟ and also is in negation of rules, act & relevant laws of cooperative societies, hence this appeal is on following grounds: [Copy of authority / resolution to file appeal & Award which is impugned, are attached herewith as Annuxure P & P1]

GROUNDS

1.                That the learned arbitrators did not take in account, any single plea of appellant or admitted facts and passed an award on wholesale acceptance of solely respondent & one sided contention. Especially when the respondent has admitted in his cross examination by saying as:

A.  It is correct that the name of S.A. F denotes Shu A Fi.

B.  It is correct that Mr. Shu A Fi had / was allotted 03 plots Vol. says one of the plot is in his name.

C.  While the other two subject plots are in the name of plaintiff.

D.  It is correct that all three plots were allotted in the year 1977.

E.   It is correct that the age of S. F was 5 years in the 1977.

F.   It is correct that as per CNIC the year of birth of A is 1968.

G.  It is incorrect that Mr. Shu A Fi was eligible to get three plots in a society as per cooperation laws.

H.   It is correct that the plots of plaintiff are lying vacant / open.

I.      It is not leased plot Vol. says.

J.    There is no place to mention that the payments were made by the father on the behalf of the plaintiff.

K.  It is correct that the address of plaintiff plots & Shu A Fi in  Membership forms are different.

2.                That the learned arbitrators willfully ignored that the case of respondent is a clear violation of the notification dated 22^nd June 1971 issued by Government of Sindh & Section 7(1) of co-operative societies act 1925. Notification dated 22^nd June 1971 – particularly following bylaw reads as;

ü      “That no person shall be allotted a plot by the society if he or his wife / husband, minor child or any dependant, owns or has at any time owned aplot, a house or a flat in the Metropolitan area of Karachi.”

ü    Section 7(1) of co-operative societies act 1925: Condition for registration – No society other than a society of which a member is a society, shall be registered under this act, which does not consist of at least [thirty] persons above the age of 18 years and where the object of the society is the creation of funds to be lent to its members, unless such persons- (a) reside in the same town or village or in same group or villages or (b) save where the registrar otherwise directs, are member of same tribe, class, cast or o occupation.

ü      Section 3(C) of co-operative societies act 1925 reads as; “Member” includes a person joining in the application for the registration of a society or a person admitted to membership after registration in accordance with the rules and by-laws applicable to such society;

3.                That the respondent’s case is a subject of scam for multiple allotments of plots and the respondent has no right or capacity to bring an action against the appellant society. The learned arbitrators have failed to assess that the action complained of by the respondent was, actually an action taken in a routine discharge of official responsibility of the appellant society.

4.                That the learned arbitrators did not consider, willfully, that the submission of application for membership & for allotment & paid amounts, for respondent, all it was made in mysterious & fraudulent manners, which made deceived the answering defendant to issue allotment order & acknowledge of possession. And when it was unearthed, the appellant society took an action to discharge its official duty to cancel subject allotment & possession orders.

5.                That the learned arbitrators have failed blatantly to consider a law point  as “it is not the assent of one or thousands to make a thing lawful but the law alone and upon this principle law suppose that “what one cannot get directly (lawfully) the same cannot be obtained indirectly (unlawfully).” Therefore the physical possession of plaintiff is unlawful.

6.                That the learned arbitrators did not consider, willfully, that the respondent had not questioned, the fact which is admitted, about the past practice & minutes – bylaws, as on 10-June-1982, a meeting of board of directors of appellant society was held, in which it was categorically decided / approved that;

“The allotment rules of the society provides that a member is entitled for allotment of only one plot either residential or commercial one. The member was however allowed to hold more than one plot through transfer subject to the conditions that such member shall have only one vote to case in election etc”.

Further on 14^th March 1981 vide letter No: R/1786/WCHS/80, the answering defendant had also cancelled a plot of similar nature of this case.

7.                 The learned arbitrator have failed to frame facts in issue & to address the same with legal mind and authority.

8.                 That the composition of the arbitral authority or the nomination of arbitrator for respondent party was not in accordance with the cooperative societies act, rules & regulations as It has been mentioned clearly in Award Impugned that respondents side arbitrator was Advocate by profession.

9.                 That the view taken by the arbitrators is totally biased & unlawful as the appellant society is not delivered, willfully, copy of dissenting note or award of arbitrator of appellant society, though repeatedly the appellant has approached for.

10.             That the impugned award is against the public policy under the cooperative societies laws, rules & regulations.

11.          That the impugned award is in contravention with the Laws & with the most basic notions of the morality or justice.

12.          That the impugned award is a product of misapplication of laws / rules and non-appreciation of the evidences, which amounts to illegality & irregularity, for which, the same is liable to be set aside.

13.          That other grounds will be argued at the time of hearing of this appeal with the kind permission of this honable court / forum.

                                                

                                                PRAYER 

It is therefore prayed that this honorable court / forum may be please to declare by setting aside the Award impugned, that the respondent has no right to retain allotment & possession of Plot & also is not entitled for relief claimed through its suit / case.

 

Karachi.                                                    Hon. Secratery.

Dated:                                         Authorized Representative

            of Appellant  Society                    

VERIFICATION

I, M. A S/O M. A, Muslim, Adult, resident of Karachi, authorized representative of appellant society, holding NIC No:---, Honorary Secretary Works Co-operative Housing Society Karachi, do hereby state on oath that whatever stated above is true & correct to the best of my Knowledge & belief.

                                                          

DEPONENT

Deponent is identified.

ADVOCATE.

Solemnly affirmed and stated on oath before me at Karachi on this----- day of March 2018 by the deponent above named who is identified to me by Mr.________________Advoocate, who is known to me personaly.

COMMISSIONER FOR TAKING AFFIDAVITS

Documents filed:                                  Annexure P & P1

Documents relied upon:                              As above

Address of parties:                                       As in the title

BEFORE THE COURT OF REGISTRAR CO-OPERATIVE SOCIETIES KARACHI.

APPEAL No:           /2017

M/S. Works Co-operative

Housing Society Ltd.        …………      APPELLANT.

VERSUS

Mst. S.A                          …………… RESPONDENT

APPLICATION FOR INTERIM ORDER TO STAY EXECUTION OF AWARD

It is respectfully prayed on behalf of the appellant above named that this honorable court may be pleased to order for suspension of execution of AWARD appealed against till the pendency or till the decision of the accompanying appeal, in consideration of facts & grounds narrated in accompanying appeal. As the case of appellant society is on merits & requires interference. Therefore the prayer is made in the interest of justice.

   

Karachi.                                         Advocate for Appellant

Dated:   

BEFORE THE COURT OF REGISTRAR CO-OPERATIVE HOUSING SOCIETY KARACHI.

APPEAL No:           /2018

M/S. Works Co-operative

Housing Society Ltd.            …………      APPELLANT.

VERSUS

Mst. S. A                          ……………… RESPONDENT.

AFFIDAVIT IN SUPPORT OF APPLICATION FOR INTERIM ORDER TO STAYEXECUTION OF AWARD

I, M.A S/O M.A, Muslim, Adult, resident of Karachi, authorized representative of appellant society, holding NIC No: 421, Honorary Secretary Works Co-operative Housing Society Karachi, do hereby state on oath as under:

1.    That I am deponent of this affidavit as well as sectratery of appellant society in above stated case and I am fully conversant with the facts of the matter.

2.    That I say that accompanying appeal as well as application for stay of execution has been drafted & filed under my specific instructions. The contents of the same as well as mail appeal may be treated as part & parcel of this affidavit.

3.    That whatever stated above is true and correct to the best of my knowledge and belief.

Karachi.                                        DEPONENT

Dated:

Deponent is identified.
                                               ADVOCATE.

Solemnly affirmed and stated on oath before me at Karachi on this--------- day of March 2018 by the deponent above named who is identified to me by Mr. _____________________, who is known to me personally.

COMMISSIONER FOR TAKING AFFIDAVITS