R.K. Anand And Ors vs Delhi Co-Operative Housing ...
2013 Latest Caselaw 5421 Del

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*            IN THE HIGH COURT OF DELHI AT NEW DELHI
+            W.P.(C) No.7370/2013 & CM Nos.15826/2013, 15827/2013
%                                         Date of decision: 25th November, 2013


     R.K. ANAND AND ORS                                    ..... PETITIONERS
                            Through   Mr. Bharat Bhushan Bhatia, Adv. with
                                      Mr.Akshay Bhatia, Adv. & Mr.Ashok
                                      Verma, Adv.

                                 Versus

     DELHI CO-OPERATIVE HOUSING FINANCE
     CORPORATION LTD. AND ORS              ..... RESPONDENTS

Through Mr.Sunil Sabharwal, Adv. for R-1/DCHFC Mr.Arjun Pant, Adv. for R-3.

Mr.Anil Kumar, Adv. for R-4.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL, J (ORAL)

1. By way of the present petition, the petitioners submit that the

members of the Neel Kamal Cooperative Group Housing Society

(hereinafter referred to as `Society') has taken loan of Rs.51.52 lacs from

the Delhi Co-operative Housing Finance Corporation (hereinafter

referred to as "DCHFC") to complete the construction of flats for its

members. It appears that the Society defaulted in making timely

payment of the instalments to the DCHFC. It is also pointed out that the

loan which was taken by the Society, was secured by execution of a

mortgage deed. In the year 2010, the DCHFC proceeded with the

recovery suit against the Society impleaded as respondent no.3 before

us. These proceedings culminated in issuance of a recovery certificate

to the tune of Rs.1,20,06,701/- with interest at the rate of 15.5% per

annum.

2. In execution proceedings filed by the DCHFC, the Assistant

Collector & Recovery Officer, DCHFC-respondent no.4 before us, issued

a public notice dated 4th March, 2013 for sale of the assets of the Society

which would include flats occupied by different members including the

present petitioners.

3. During these proceedings, an order dated 14th August, 2013 has

been passed by the respondent no.4 directing members/GPA

holders/residents of respondent no.3-Society to apportion amounts

found payable by the Society in terms of the recovery certificate and

informing the members that `No Objection Certificate' would be issued

against the members who cleared full and final payments.

4. We are informed that some of the members of the Society filed

objections before the respondent no.4 disputing liability to pay any

amount under the order dated 14th August, 2013. These objections are

stated to be pending even on date.

5. Before us, the petitioner nos.3 to 7 submit that they deposited the

amounts in compliance of the order dated 14th August, 2013 by way of

cheques with the respondent no.4 and sought issuance of the no

objection certificate in terms of the order dated 14th August, 2013.

The respondent no.4, however, returned the cheques to the

petitioners under cover of its communication dated 28th September,

2013 stating that the order dated 14th August, 2013 had yet not been

enforced by it.

6. The instant writ petition makes a grievance that in view of the

above, despite the bona fide as well as sincere efforts of the petitioners

to comply with the order dated 14th August, 2013 and non-acceptance of

the tender by the petitioners, the petitioners would be foisted with an

unwarranted interest liability as and when the respondent no.4 opted to

enforce the order dated 14th August, 2013. The petitioners contend that

the same would be highly prejudicial given their sincere intention and

efforts to comply with any lawfully payable demands.

7. We are also informed that at the instance of the Society,

proceedings under Section 70 of the Delhi Co-operative Societies Act,

2003 are pending wherein the Society is claiming amounts against

several members including the petitioners. These proceedings

culminated in awards which were in favour of petitioner nos.1 to 5 and

7. So far as these petitioners are concerned, we are informed by

learned counsels for the respondents who are present today, that the

society has impugned the awards by way of statutory appeals. These

appeals are pending on date.

The award was in favour of the Society and against petitioner no.6

who has assailed the said award by way of a statutory appeal.

8. Be that as it may, it cannot be disputed that the respondent no.1/

DCHFC is entitled to repayment of its dues. By the order dated 14th

August, 2013 passed in execution proceedings, the DCHFC has

crystallized the liability on that date and has also apportioned the same

amongst the members. Therefore, so far as such members of the

Society who are willing to pay the amount as apportioned by the

respondent no.4 is concerned, they deserve to be permitted to deposit

the amounts and the respondent no.4 is liable to be directed to accept

the payment thereof as a lawful tender towards discharge of the liability

of such members in terms of the order dated 14th August, 2013.

9. We are informed by learned counsel appearing for respondent

no.4 that in a meeting held on 8th August, 2013 between the members

of the society and the respondent no.4, the amounts due to the

respondent no.1 were apportioned and quantification thereof was

effected. This quantification has been noted in the order dated 14th

August, 2013 wherein the Assistant Collector has effected quantification

of amounts payable by members after categorising them as LIG & MIG

flat owners. The petitioners claim to have deposited amount in terms of

such apportionment. The respondent no.4 has duly communicated the

quantification of the liability of the flat owners.

10. In view of the above, we direct as follows:-

(i) The respondent no.4 shall accept tenders of amounts made in

terms of the order dated 14th August, 2013 in Execution Case

No.526/2008-2009 from the members of the respondent no.3/Society.

Such amount shall be towards the discharge of the liability of the

members under the order dated 14th August, 2013.

(ii) In case there is a variation of the liability of the petitioners in any

proceedings pending before the Delhi Co-operative Tribunal or by any

court, the petitioners shall be bound by such adjudication and shall be

liable to make good the deficiency between the amount which is

tendered in terms of the order dated 14th August, 2013 and the

adjudication of apportionment as on 30th September, 2013.

(iii) In order to obviate any further disputes, it is also directed that in

case any other member of the Society seeks to comply with the order

dated 14th August, 2013, such member shall be liable for interest which

would be payable on the amount apportioned w.e.f. 30th September,

2013 till the date of tender.

(iv) In case the adjudication by any forum or court results in

reduction/assessment of further liability of a member who has made

payment in terms of the order dated 14th Augusts, 2013 as well as the

order being passed by us today, it shall be the responsibility of

respondent no.1 to forthwith return the excess amount with interest at

the rate of 15.5% per annum from the date of payment.

(vi) We also clarify that so far as the conduct of public auction of

property of the respondent no.3 in order to recover the amounts due

and payable by it to the respondent no.1 is concerned, the same shall

stand restricted to the remaining liability of the respondent no.3 after

adjustment of the amounts which are recovered from the members and

against such members who do not deposit in terms of the order dated

14th August, 2013.

(vii) We also clarify that there is no stay of execution of the

proceedings and it shall be open for the respondent no.3 to proceed

expeditiously in the matter accordingly.

(viii) The payment by the member(s) as well as receipt of amounts by

the respondents shall be without prejudice to the respective rights and

contentions of the parties.

This writ petition and applications are disposed of in the above

terms.

Copy of this order be given dasti to counsel for the parties.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE NOVEMBER 25, 2013 aa