R.K. Malhotra And Ors. vs The Friends Central Government ...
2003 Latest Caselaw 1276 Del

JUDGMENT

Dalveer Bhandari, J.

1. Late J.L. Malhotra, brother of petitioner, R.K. Malhotra, was enrolled as a member of the Friends Central Government Employees Co-operative House Building Society, Surya Niketan, Delhi. His membership was terminated on account of consistent defaults, but on account of the order of this Court dated 3.2.1989 his membership was restored and his name was included in the waiting list of the society. By the order of this Court in a draw of lots held on 1.3.1989 he was allotted Plot No. 147 in the year 1989. It may be pertinent to mention that J.L. Malhotra died on 14.12.1988 even before the order of draw of lots had been passed, but this fact was not brought to the notice of the Court. Otherwise his name would not have been included. J.L. Malhotra had nominated his mother, Lalita Devi, as a nominee. She had applied for substitution before the society and the Court. Smt. Lalita Devi also expired on 27.7.1990 and her name was not substituted by the High Court. The petitioners, R.K. Malhotra and others, had approached this Court on 13.12.1991 after a lapse of 16 months with the prayer that they be substituted as the legal heirs of late Shri J.L. Malhotra.

2. The petitioners approached the society for transfer of membership in their name, but the society refused their request vide letter dated 4.6.1992 addressed to the petitioner, R.K. Malhotra. It may be pertinent to mention that the Hony. Secretary of the respondent society stated that as per bye law 7(6)(1) of the society, the person ceases to be a member on death and has also referred to bye law 16 in this regard. It was further stated that the nominee, Lalita Devi, mother of late J.L. Malhotra had also expired.

3. The petitioner, R.K. Malhotra,brother of J.L. Malhotra, and seven others filed an arbitration case under Section 60 of the Delhi Cooperative Societies Act, 1972. The Court heard the parties at length. In the Award it is mentioned that the petitioners and others have moved an application on 13.12.1991 to be substituted as legal representatives in the writ petition. It is mentioned that the substitution application was made after a delay of 16 months and the proceedings, if any, in the High Court stood abated automatically and the petitioners claimants have no right to reagitate the matter and claim any right in respect of the said plot. It is further observed in the Award that J.L. Malhotra died even before passing of the order of draw of lots but this fact was concealed from the Court. Late J.L. Malhotra.who became member of the society in the year 1963 except for share money and admission fee amounting to Rs. 105/- did not not pay even a single paise to the society. After his death his mother Lalita Devi did not pay any amount to the society, meaning thereby that till date the society has not received any amount either from late Shri J.L. Malhotra or from any one on his behalf.

4. The Arbitrator further observed as under:-

"The claimants have no right to seek the allotment of plot No. 147, Surya Niketan, Delhi. The claimants have no rights of succession in respect of the aforesaid plot inasmuch as late Shri J.L. Malhotra ceased to have any right with respect to the said plot on account of willful default on account of non payment of amount as per orders of the Hon'ble High Court dated 23.5.1989 and as required by bye laws No. 7(6)(1) of the respondent society."

5. Against the order dated 28.2.1994 the petitioners had filed an appeal under Section 76 of the Delhi Cooperative Societies Act before the Delhi Cooperative Tribunal. The Tribunal after hearing the parties passed the following order:-

"It was also admitted before me that no payment has been made by the appellants despite a compromise deed, arrived at between the respondent-society and the Registrar Cooperative Societies during the pendency of the matter before the Delhi High Court."

6. Aggrieved by the order in appeal by the Tribunal dated 13.5.1994 the petitioners approached this Court by filing a writ petition under Article 226 of the Constitution of India.

7. We have heard learned counsel for the parties. Late J.L. Malhotra became member of the society on 26.9.1963. It is not disputed that from 1963 to 2003 for a period of 40 years neither late J.L. Malhotra nor any one else on his behalf has paid any amount to the society except share money of Rs. 105/-. J.L. Malhotra's membership was terminated on account of consistent default. Even thereafter his nominee,mother,Lalita Devi, did not pay any amount nor his brother or any one else on his behalf had paid any amount. Though J.L. Malhotra and on his behalf his late mother and his brother and other relations were not oblivious of various proceedings in Courts, they were also aware that other similarly placed members have paid substantial amounts and in more than 40 years from 1963 to 2003 all what had been paid either by J.L. Malhotra or on his behalf is Rs. 105/- towards share money.

8. Admittedly there has been consistent default in payments by the original allottee and his nominee. The stand taken by the petitioners and J.L. Malhotra's nominee mother that they did not pay the amount because the society did not inform late Shri J.L. Malhotra and his nominee mother to pay the outstanding amount is devoid of any merit. It cannot be accepted that late J.L. Malhotra, his nominee mother, Lalita Devi and the petitioners were not aware that what has been paid by other similarly placed allottees of plots. They could have deposited the money and in case the society declined to accept the money, then without prejudice to their rights and contentions, with the permission of the Court they could have deposited the money before this Court. Even this was not done.

9. In view of the conduct of the petitioners, late J.L. Malhotra , original allottee and his nominee mother, Smt. Lalita Devi and the findings of facts of the Tribunal and the Arbitrator regarding consistent default in payment, no interference is called for in our extraordinary jurisdiction under Article 226 of the Constitution of India. Consequently, the writ petition being devoid of any merit is accordingly dismissed.

10. In the facts and circumstances of this case, we direct the parties to bear their own costs.