Pavitra Cooperative Group ... vs Registrar Of Cooperative ...
2002 Latest Caselaw 1052 Del

JUDGMENT

1. The Petitioner Society is aggrieved by an Award dated 9thNovember, 2001 passed by the Joint Registrar/Arbitrator, Cooperative Societies and order dated 21st December, 2001 passed by the Delhi Cooperative Tribunal (for short the Tribunal) dismissing the appeal of the Petitioner Society against the Award.

2. Respondent No.4 claimed to be a member of the Petitioner Society. According to her, she had paid a sum of Rs.3,55,100/- over a period of time by way of deposits for the allotment of a flat. However, since it was not possible to allot her a flat, the Petitioner Society decided to refund the amount deposited by her. In fact, the Petitioner Society issued two cheques of Rs.1,00,000/- each in 1987 towards refund of the deposited amounts. Unfortunately, both the cheques bounced because the funds in the account of the Petitioner Society were insufficient. Respondent No.4 alleged that she had been insisting on the allotment of a flat or at least a refund of the amounts deposited by her along with interest @ 18% per annum from the date of deposit but the Petitioner Society has neither allotted the flat nor is it refunding the deposits made.

3. On these facts Respondent No.4 raised a dispute which was referred to arbitration under the provisions of Section 60 of the Delhi Co-operative Societies Act, 1972 (for short the Act). The claim was admitted by the Registrar of Cooperative Societies and referred for arbitration under the provisions of Section 61 of the Act.

4. In response to the claim, the defense set up by the Petitioner Society was that the Managing Committee at the relevant time, along with one K.L. Dubey, the Secretary of the Petitioner Society, embezzled over Rs. 1 crore belonging to the Petitioner Society. This embezzlement was enquired into and in fact the Crime Branch of Delhi Police had investigated the matter and had even seized the records of the Petitioner Society. Since huge amounts had been embezzled, the Petitioner Society was not in a position to refund the deposits made by Respondent No. 4. The allegations made by Respondent No. 4 to the effect that she was a member of the Petitioner Society and that she had been given two cheques of Rs. 1,00,000/- each towards refund of the deposits were not denied by the Petitioner Society.

5. The learned Arbitrator considered the matter and examined the evidence on record. It was found that Respondent No.4 was a bona fide member of the Petitioner Society and she had made various deposits for the allotment of a flat with the Petitioner Society. It was held by the learned Arbitrator that she was entitled to either the allotment of a flat or a refund of the deposits made with interest as prescribed by Circular dated 28th May, 1996 by the Registrar, Cooperative Societies, Delhi. The Petitioner Society was given an option to decide which alternative to accept.

6. Feeling aggrieved by the Award, the Petitioner Society filed an appeal under the provisions of Section 76 of the Act before the learned Tribunal. The appeal was taken up for hearing by the learned Tribunal which noticed three primary facts, namely, that there was no dispute about Respondent No. 4 being a member of the Petitioner Society, that she had made deposits with the Petitioner Society and that the Petitioner Society had even issued two cheques of Rs.1,00,000/- each to Respondent No. 4 for a refund of the amounts deposited by her. In view of these facts, the learned Tribunal saw no reason to interfere with the Award passed by the Joint Registrar on 9th November, 2001 and accordingly, dismissed the appeal by an order dated 21st December, 2001.

7. Feeling aggrieved, the Petitioner Society preferred a writ petition which was taken up for hearing on 2nd May, 2002 when learned counsel for the Petitioner was heard and orders reserved.

8. The facts alleged by Respondent No.4 have all been found in her favor not only by the Joint Registrar in his Award dated 9th November, 2001 but also by the learned Tribunal in its order dated 21st December, 2001. On the basis of these facts there can be no doubt that Respondent No.4was a bona fide member of the Petitioner Society and had made deposits for the allotment of a flat. Since the flatwas not allotted to her, the Petitioner Society had expressed its intention to refund the deposits made and had issued two cheques for refunding the amounts deposited by Respondent No.4. Nothing was shown by learned counsel for the Petitioner Society to disturb the concurrent findings of fact arrived at by the Joint Registrar as well as the learned Tribunal. On the contrary, the facts are admitted. Therefore, there is absolutely no reason why the Award dated 9th November, 2001or the order passed by the learned Tribunal on21st December, 2001are required to be interfered with or set aside.

9. Learned counsel for the Petitioner Society contended that the claim made by Respondent No.4 was barred by time. This argument cannot be countenanced. It cannot be the case of the Petitioner Society that despite Respondent No.4 having made huge deposits, she is neither entitled to the allotment of a flat nor is she entitled to a refund of the deposits. Admittedly, the Petitioner Society had taken deposits from Respondent No.4 for the purposes of allotting a flat to her. If the Petitioner Societycannot allot a flat to Respondent No.4, it is obliged to at least refund the amount deposited by her. The Petitioner Society cannot keep the money of Respondent No.4 and yet deny to her the allotment of a flat on the ground that her claim is barred by limitation. This is completely inequitable. The claim of Respondent No.4 is a subsisting and continuing claim which is primarily for the allotment of a flat. If it is not possible for the Petitioner Society to allot a flat to her, it has no option but to return the money deposited by Respondent No.4. We, therefore, reject the contention raised by learned counsel for the Petitioner Society.

10. Since no other point was urged before us we see no merit in the writ petition and the same is, accordingly, dismissed but with no order as to costs.

11. the petitioner Society is given two months time to either allot a flat to Respondent No.4 or to refund the amount of Rs.3,55,100/- deposited by Respondent No.4 with interest as determined by the Joint Registrar/Arbitrator from the date of deposit.

CM No.3088/2002 is also dismissed.