Suresh Srivastava vs Delhi Government Officers ...
2000 Latest Caselaw 113 Del

JUDGMENT

M.K. Sharma, J.

1. This petition has been preferred by the petitioner as against the order passed by the Appellate Authority, namely, the Financial Commissioner dated 20.8.1998 dismissing the appeal filed by the petitioner as against the order of the Joint Registrar, Cooperative Societies dated 21.5.1998 directing the petitioner to pay interest @ 18% on the 10th and 11th instalments for the period of default.

2. The petitioner is a member of the Delhi Government Officers Cooperative Group Housing Society Limited. The petitioner was also an office bearer of the Managing Committee of the Society and for some time he was also the President of the Society.

3. The Society is a Group Housing Society which constructed three types of flats, namely Type B, Type AL and Type A. The initial cost as approved by the General Body was for Type A Rs. 2,61,200/-, Type AL Rs. 3,56,000/- and Type B Rs. 4,42,000/-. The aforesaid cost was divided into nine instalments and the General Body Meeting held on 17.12.1989 resolved that penal interest at the rate of 18% would be charged from the defaulters in respect of the said nine instalments.

4. My attention is drawn to the Minutes of the General Body Meeting of the Society held on 17.12.1989 and to the Resolution adopted therein which indicates

that it was resolved by the General Body that the last instalment, i.e. covering all the costs incurred on the construction work would be paid by 30.6.1990 and thereafter interest @ 18% would be levied on the defaulting members.

5. The petitioner who was appointed as the Secretary of the Sub-Committee by his letter to the Members of the Society intimated amongst others that a further amount of Rs. 34,000/- shall have to be paid for B Category by 15.4.1993. The said letter is dated 20.3.1993 and has been placed on record as Annexure R-4. On 10.4.1993, the Secretary of the Society informed all the members that the Managing Committee has decided to extend the spirit of the General Body Resolution adopted on 14.2.1993 with regard to the provision of 15% incentive interest and 18% default interest to subsequent demands. It was made clear that those members who do not make the payment by 15.4.1993 of the amount called for by the Sub-Committee in its letter dated 21.3.1993, which is the letter written by the petitioner, the said members would be liable to pay default interest at the rate of 18%.

6. It further transpires from the records placed by the respondents alongwith the counter affidavit that a General Body Meeting was held on 4.9.1994 wherein it was resolved by the General Body to adopt the Resolution which was adopted by 17 votes to 6. The said Resolution is extracted herein below :

"On all instalments upto 9th instalment, the interest will be charged and appropriated in the manner approved by the general body in the meeting held on 6.2.1993. Those members who pay the 10th instalment by 30.9.1994 and 11th instalment by 31.10.1994, will not be required to pay interest on the said instalments. Those members who will fail to pay the 10th instalment by 30.9.1994, shall be liable to pay interest thereon w.e.f. 16.4.1993, Similarly those who will fail to clear the 11th instalment by 31.10.1994, shall be liable to pay interest thereon w.e.f. 1.5.1994. The rate and manner of appropriation of interest will be the same as approved by the General Body on 6.2.1993.

7.1 am also informed by the Counsel for the respondent-Society that except for the petitioner, all other members have paid interest in case of default at the rate of 18% per annum on the 10th and 11th instalments and that it is only the petitioner who is aggrieved by the aforesaid levy of interest and is agitating the matter.

8. In terms thereof, interest at the rate of 18% was charged from the petitioner who was a defaulting member, being aggrieved by which the petitioner filed a petition under Section 60 of the Delhi Cooperative Societies Act before the Registrar. The Joint Registrar, Cooperative Societies, heard the parties and thereafter by order dated 20.5.1998 held that the petitioner is liable to pay interest at the rate of 18% on the 10th and 11th instalments during the period of default Being aggrieved by the said order, the petitioner filed an appeal before the Appellate Authority, namely, the Financial Commissioner, who by this order dated 20.8.1998 dismissed the appeal and upheld the award. The present petition has been preferred as against the aforesaid orders before this Court.

9. I have heard the petitioner who appears in person as also Mr. Rakesh Munjal, Counsel appearing for the respondent-Society.

10. It is stated by the petitioner that the Resolution dated 4.9.1994 is not sustainable in the eye of law, A similar plea was raised by the petitioner before the Joint Registrar, Cooperative Societies. In paragraph 10 of his affidavit by way of evidence he had stated that a bare perusal of the Minutes of the General Body Meeting of the Society held on 4.9.1994 shows that the General Body had not determined as to what would be the amount of 10th and 11th instalments and that as such, the demand of the Society that the instalments work out to be Rs. 34,000/- and Rs. 60,500/- respectively is without any basis and is not sustainable in the eye of law and that the Society cannot base its claim for the aforesaid demand. It is contended by the petitioner that there was no Resolution of the General Body resolving payment of interest @ 18% on the 10th and 11th instalments. According to him levy of interest on 10th and 11th instalments is not legal as it is not supported by the Resolution of the General Body. Mr. Rakesh Munjal, Counsel appearing for the respondent-Society refutes the aforesaid submissions of the petitioner and draws my attention to the documents at Annexures R-3, R-4, R-5 and R-6..

11. It transpires from the records that as against the same an affidavit by way of evidence was filed by the respondent-Society wherein it was stated that by the aforesaid Resolution it was resolved to give one time benefit to members in order to mobilize funds and it was decided that those members who would pay the 10th instalment by 30.9.1994 would not be charged interest on the 10th instalment and that those members who pay the 11th instalment by 31.10.1994 would not be charged interest on the 11th instalment. It is also stated that the members were fully aware of their rights and obligations regarding payment of instalments. It is, thus, apparent that the aforesaid Resolution was before the Joint Registrar, Cooperative Societies. The said Resolution has not been set aside by any Competent Authority till date and as such the contention of the petitioner is found to be without any merit.

12. The Joint Registrar, Cooperative Societies, while disposing of the petition filed by the petitioner under Section 60 of the Delhi Cooperative Societies Act, considered the entire aspect of the matter, perused the documents on record and thereafter, came to the conclusion that the petitioner is liable to pay interest @ 18% per annum on the 10th and 11th instalments. For arriving at the aforesaid conclusion, he has recorded reasons. He has also considered the Resolution of the General Body dated 17.12.1989, and letters and communications dated 17.2.1993,20.3.1993 and 10.4.1993. Reference to the aforesaid letters have also been made by him. The Appellate Authority also considered the records and was of the opinion that the appeal filed by the petitioner has no merit. He has referred to the decision of the Joint Registrar, Cooperative Societies, and has held that the said order is well-reasoned.

13. In order to satisfy myself, I have also considered the records independently and minutely. On appreciation thereof, I am satisfied that there is a Resolution of the General Body which is extracted above which permits levy of interest @ 18% for any default made in payment of 10th and 11th instalments. The said Resolution has not been challenged at any Forum till date and the same stands valid.

14. In view of the aforesaid order, the petitioner, therefore, would be liable to pay interest @ 18% on the 10th and 11th instalments during the period of default.

The Joint Registrar, Cooperative Societies had recorded in his order that on the date of filing of the application before him, the petitioner was liable to pay Rs. 93,6847- towards principal and interest of Rs. 65,885/- levied thereon calculated @ 18% per annum.

15. Considering the peculiar facts and circumstances of the present case, I direct that the petitioner shall pay the principal amount of Rs. 93,684/- alongwith interest of Rs. 65,885/- which is 18% interest calculated and recorded by the Joint Registrar, Cooperative Societies, within four weeks from today. The respondent-Society shall, however, grant a rebate of Rs. 20,000/- as admissible to the petitioner at the time of full and final payment. It is, however, made clear that in case the petitioner fails to deposit the amount in terms of the present order within four weeks from today, he shall be liable to pay 18% interest on the entire amount till the date of payment. The petitioner shall also be liable to pay all other charges as admissible and chargeable and payable by all the members of the Society and on making full payment and completion of all the formalities, possession of the flat shall be handed over to the petitioner within three weeks thereafter.

16. In terms of the aforesaid order, the writ petition stands disposed of. Pending application stands disposed of accordingly.