Brij Nath Singh vs Ordinance Coop. G/H Society Ltd. & ...
2010 Latest Caselaw 2579 Del

 *          IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                              W.P.(C) No. 2667/2008

                                                Reserved on : 11th May, 2010

                                                Pronounced on: 14th May, 2010


 BRIJ NATH SINGH                                            ...... Petitioner

                                Through:        Mr. R.K.Gupta, Advocate

                                VERSUS


 ORDINANCE COOP. G/H SOCIETY LTD. & OTHERS                          ....Respondents

                                Through:        Mr. J.N.Gupta, Advocate for
                                                Respondent No.1.

 CORAM:
 HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
 HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

 %                              JUDGMENT

 VALMIKI J. MEHTA, J

1. The present writ petition has been filed under Articles 226 and 227 of the

Constitution of India seeking to challenge the order dated 24.8.2007 passed by the

Delhi Cooperative Tribunal dismissing the appeal of the petitioner against the

Award dated 5.6.2006 passed by the Arbitrator. The Delhi Co operative Tribunal

however granted relief to the petitioner to the extent of reduction of interest from

18% to 15.5% in repayment of loan to the Delhi Cooperative Housing Finance

Corporation (for short „DCHFC‟).

2. The disputes arose between the petitioner and the respondent No.1 society,

with respect to a demand raised by the society upon the petitioner which was as

under:-

"1.Quarterly loan installments incl.

             Penal as per DCHFC schedule
             (statement attached).                        Rs.9,01,730

          2. Balance Construction Money                   Rs.1,35,750

          3. Intt. @18% w.e.f. March, 93 to
             May 04 as per GB Resolution
             (statement attached)                         Rs.2,74,894

          4. Other Charges incl. Intt. (DDA
             Penalty+ Road Lease/Insurance, etc.
             (Statement attached)                         Rs. 26,845

          5. Maintenance Charges from 1990-91
             To June 04 incl. Interest (Statement
             attached)                                    Rs. 71,882
                                                          ________
             Total amount to be payable                   Rs.14,11,101"

3. The Arbitrator awarded the following amounts in favour of the society.

"1. Quarterly Loan installments Rs.9,27,930/- including penal interest as per DCHFC.

2. Balance Construction Money Rs.1,35,750/-

             3. Interest @ 18%                                     Rs.3,19,691/-

             4. Other Charges                                      Rs. 31,983/-

             5. Costs                                              Rs.1,20,000/-

             6. Less amount in the award
                Dated 28/12/90                                     -(Rs.78,548)

             7. Total                                             Rs.14,24,823/-

With further interest at 18% until the realization in full the principal amount."

As already stated, by the impugned order, the rate of interest as awarded by

the Arbitrator, being interest payable to DCHFC was reduced to 15.5% i.e the

same rate as was payable to DCHFC.

4. A reading of the facts of the case and the impugned order shows that it

cannot be disputed that loan was taken by the society from DCHFC prorata

repayable by each flat owner including against the subject flat which has been

allotted to the petitioner and therefore, the petitioner is bound to pay the loan

amount with interest as claimed by DCHFC. As already noted above, the

petitioner has already got the benefit in the impugned order of the Delhi

Cooperative Tribunal which has reduced the rate of interest as awarded by the

Arbitrator. The petitioner is also surely liable to pay the balance construction

money. A member who is allotted a flat cannot dispute payment of the balance

construction money.

5. The last head of charges awarded by the Arbitrator, claim of which was

upheld by the Tribunal of Rs.31,983/-, are basically the proportionate charges

payable by each flat owner towards DDA penalty, insurance charges etc. No fault

can be found even with regard to this finding because each member is liable to pay

these actual costs incurred by the society proportionately. So far as the

maintenance charges are concerned, the counsel for the respondent has made a

statement during the course of hearing that the claim of maintenance charges has

been withdrawn and would be payable by the petitioner only from the date the

petitioner was granted possession of the flat.

6. That leaves us only with the issue with regard to interest which is payable

with respect to the balance cost of construction not paid and which has been

awarded at the rate of 18% per annum by both the authorities below. We feel that

in the facts and circumstances of the present case and in the interest of justice this

rate of interest should be reduced to 12% per annum from 18% per annum,

although the society has charged interest at 18% from other members. This

reduction which we are giving is because the petitioner did not have the benefit of

the possession of the flat without any fault of his own, though of course it must

also be stated that it was strictly not because of the society either because there was

an issue of the petitioners disentitlement on account of his owning a property in

Delhi. However, we must note the fairness of the counsel for the society who said

that the society will abide by any orders with respect to rate of interest awarded by

this court.

7. The counsel for the petitioner vehemently contended that he is not liable to

pay all the charges as aforesaid. We find the arguments to be wholly devoid of

merits because surely the charges whether towards the loan of DCHFC with

interest claimed by DCHFC, common charges to be proportionately paid by the

member, balance cost of construction so far as the flat allotted to the petitioner

with reasonable interest thereon are not such which can be in any manner disputed

by the petitioner. In fact, we find that the petitioner is deliberately seeking to

unnecessary litigate although he is liable to pay the charges and the society has

been more than fair in not only waiving the maintenance charges but also agreeing

to reduce the rate of interest payable on the balance cost of construction.

8. In view of the aforesaid, we do not find the present case to be a fit case for

our interference under Article 226 of the Constitution of India in view of the two

concurrent orders of the Arbitrator and the Delhi Cooperative Tribunal, inasmuch

as there is no illegality or gross perversity in the orders of both the authorities

below.

9. The petition is therefore dismissed except giving benefit to the petitioner to

the extent of reduction of interest as stated in para 6 above. We leave the parties to

bear their own costs.

CM No. 5111/2008 (Stay) in W.P.(C) No. 2667/2008

Application does not survive for consideration and is disposed of.

VALMIKI J. MEHTA, J

SANJAY KISHAN KAUL, J

May 14 , 2010 ib