Delhi High Court
Surender Kumar Aggarwal vs Registrar Cooperative Societies ... on 14 August, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6883/2014
% Date of decision: 14th August, 2015
SURENDER KUMAR AGGARWAL ..... Petitioner
Through: Mr. Rajat Aneja, Ms. Rashmi
Verma and Mr. Kartikeya
Bhargava, Advs. with petitioner in
person
versus
REGISTRAR COOPERATIVE SOCIETIES AND ORS
..... Respondent
Through: Mr. S.K. Sharma, Adv. for R-2
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE I.S.MEHTA
GITA MITTAL, J (ORAL)
1. The petitioner has filed the instant writ petition seeking inter
alia issuance of a writ of mandamus to the respondent nos. 2 and 3
for issuance of no dues certificate and other certificates to the
petitioner for converting his flat from leasehold to freehold and also
for complying with the directions made by the Delhi Cooperative
Tribunal vide its order dated 8th December, 2011.
2. So far as the basic facts with regard to membership of the
Sadar Cooperative Group Housing Society Ltd. as well as allotment
of flat no. 49 therein to the petitioner are concerned, there is no
dispute at all. We note hereafter only some essential facts necessary
WP(C) No.6883/2014 page 1 of 9
for the purposes of adjudication on the present petition. The Sadar
Cooperative Group Housing Society Ltd. (hereafter referred to as
the 'society') filed a case under Sections 70/71 of the Delhi
Cooperative Societies Act, 2003 (hereinafter referred to as 'DCS
Act') against the petitioner claiming recovery of money on the
ground of maintenance charges; development charges; interest on
the maintenance besides other charges, ground rent, interest thereon
against the present petitioner. By an order dated 11th June, 2010,
this case was referred to Sh.S.K. Parashar, Arbitrator for arbitration
under Section 70 of the DCS Act, 2003. These proceedings
culminated in an award dated 23rd October, 2010 wherein it has
been held that the petitioner was liable to pay an amount of
Rs.40,951.00 on the various counts noted above as well as
arbitration fee @ 7.5% of the awarded amount quantified at
Rs.2554/- and future interest @ 12% per annum on the entire
amount till realisation thereof.
3. Aggrieved by the award, the petitioner assailed the same by
way of an appeal under Section 112 of the DCS Act, 2003 which
was registered as Appeal No. 165/10/DCT/2916-17. After a
detailed consideration, the Tribunal decided the same finally by an
order passed on 8th December, 2011. The operative part of the
order reads as follows :-
"8.0 The issue involved in this appeal and findings
of the Bench
After the arguments and discussion the society
submitted that as on 04.10.2011 shown dues of
Rs.57046/- it is reported by the society on 17.10.2011
WP(C) No.6883/2014 page 2 of 9
that the Appellant had made payment in each of
RS.20583/- on 10.10.2011 and Rs.15261/- vide Bank
Draft No.119265 dated 10.10.11 total Rs.35844/- which
were taken money in their books as suspense money
which according to their calculation short by Rs.21202/-
The calculations show award amount till 30.09.2010 and
Rs.16095/- thereafter till December 2011. There are the
following charges were found excess in award.
(i) Mistake in calculation shown Rs.14100/- against
Rs.12900/- excess charges of Rs.1200/-
(ii) Ground rent difference between what shown
Rs.6022/- while original claim Rs.3553/- shown in
the statement i.e. Rs.2469/-
(iii) The defaulter's penal interest was waived for Mr.
Rani Devi Jain, flat no. 81 and Dinesh Kumar Flat
No. 82. Suh charges in the statement submitted by
society in Annexure 1 apart from ground rent
penalty and abovenoted differences from 1st
April, 2007 to 31st January, 2011 are :
Late payment charges Rs.1146/-; Rs.2014/-;
Rs.1098/-; Rs.108/-; Rs.738/- total Rs.5304/-
(iv) The claims before the Dy. Registrar filed were
Rs.32810/- but the appellant ahs not calculated the
Arbitration fee and other charges hence no
concession can be claimed on this ground.
Total (i) to (iv) Rs.8973/- and further interest if levied on
it may be in round figures Rs.10,000/- and he must pay
Rs.5000/- more and close the matter for the above noted
period."
4. A reading of the above would show that the Tribunal held
that an amount of Rs.10,000/- had to be deducted from the awarded
amount of Rs.40,951/- and therefore the awarded amount had to be
quantified at Rs.30,951/-. In addition, the Society was entitled to
interest for approximately one year after the passing of the award on
23rd October, 2010 @ 12% which when quantified, comes to
WP(C) No.6883/2014 page 3 of 9
`3,272/-. The petitioner was also liable for the arbitration fees. To
sum up these figures, the total liability of the petitioner in terms of
the order dated 8th December, 2011 would stand quantified at
Rs.37,265/-.
5. Before us, it is an admitted position that the petitioner has
paid a total amount of Rs.40,844/- in the following manner :
(i) On 10th October, 2011 in cash : Rs.20,583/-
(ii) By a cheque drawn on the State Bank : Rs.5,261/-
of India dated 17th October, 2011
(iii) By a bank draft dated 10th October, : Rs.15,000/-
This makes the total amount paid by the petitioner of
Rs.40,844/-
The petitioner has contended that in view of these payments,
he had thus paid the full amount which he was liable to pay under
the orders of the Delhi Cooperative Tribunal dated 8th December,
2011.
6. We may note that the respondent-society has not appealed or
assailed the findings returned by the Delhi Cooperative Tribunal by
way of any further challenge and the same has attained finality.
7. A reading of para 8 of the order dated 8th October, 2011
shows that the society had quantified on dues of the petitioner as on
4th October, 2011 at Rs.51,046/- which were considered and the
Tribunal had concluded that the amount had to be read as
Rs.30,951/- as being the same total of the petitioner's dues on that
WP(C) No.6883/2014 page 4 of 9
date.
In view of the above facts, the aforenoticed payments by the
petitioner, therefore, satisfies all demands of the respondent society
up to 4th October, 2011.
8. It appears that having made the payments the petitioner had
addressed letters dated 13th December, 2011 and 31st December,
2011 to the Society requesting it to issue a no dues certificate to
enable him to seek the conversion of his property from leasehold to
freehold.
9. A perusal of the letter dated 22nd December, 2011 of the
Society to the petitioner which has been placed before us would
show that the society was misreading the order of the Tribunal
dated 8th December, 2011. The Society was reading the order as if
the Tribunal had held the petitioner as required to pay Rs.10,000/-
instead of the said amount being deducted from the awarded
amount. This was incorrect. Despite the request of the petitioner to
act fairly, the respondent society was refusing to do justice to him.
10. In these circumstances, the petitioner before us filed a
petition dated 23rd January, 2012 seeking initiation of contempt
proceedings against the respondents. While notice was initially
issued on 23rd January, 2012, however, by an order dated 22nd
February, 2012, the Tribunal noted that it was taking cognizance of
the contempt for reporting the same to the appropriate forum for
further consequential action.
11. Faced with this order, on 22nd March, 2012 the society sought
review of the orders dated 8th December, 2011 and 22nd February,
WP(C) No.6883/2014 page 5 of 9
2012. The society urged that the findings of the Tribunal with
regard to the amount payable by the petitioner were incorrect. So
far as the review of the order dated 8th December, 2011 was
concerned, it was rejected by the Tribunal by its order dated 31st
May, 2013. The order dated 22nd February, 2012 was, however,
recalled with the direction to the Registrar of Cooperative Societies
to proceed with the contempt application under Section 105 of the
DCS Act with Rule 29.
12. It is important to note that the Society did not assail the order
dated 31st May, 2013 of the Tribunal. The issue of the
quantification of the liability of the petitioner therefore attained
finality. Yet the Society refused to act fairly and do justice to this
hapless petitioner.
13. Before us, the petitioner points out that he made requests on
13th December, 2011, to the Society for the certificates and
documentation for conversion of his flat from leasehold to freehold.
As the petitioner was not being issued the no dues certificate or the
other required documents, he was compelled to file this writ
petition. We had issued notice in the writ petition.
14. Before us the respondents were still insisting that the
petitioner had not complied with the order of the Tribunal.
Consequently, both parties were asked to place their statement of
accounts before us. It is necessary to note that the petitioner who
was appearing in person was unable to place the case before us. We
therefore, requested Mr.Rajat Aneja, Advocate to assist us in the
matter on behalf of the petitioner. We note that because of the
WP(C) No.6883/2014 page 6 of 9
inability of the petitioner to put across his case, we were almost
persuaded by learned counsel for the respondents to wrongly hold
that the petitioner was a defaulter and to dismiss the writ petition.
Grave injustice would have resulted to the petitioner if we had not
appointed a counsel. We record our deep appreciation for the
valuable assistance rendered by Mr.Rajat Aenja, Advocate who has
painstakingly prepared the brief and assisted us in ensuring justice.
For the purposes of this order, we are relying on the statement of
accounts placed by the respondent society before us. The same
contains the entries of the three payments made by the petitioner in
compliance with the orders of the Tribunal, which we have
extracted above.
15. The extract of its ledger relied upon by the society, which is
placed before us show that all demands of maintenance charges etc
made upon the petitioner have been complied with and stand duly
paid by the petitioner. The same have been duly credited in the
accounts of the respondent society to the credit of the petitioner.
We are informed that the ledger is upto date and contains entries up
to 7th August, 2015. It is, therefore, not possible to hold that the
petitioner is owing any amount to the respondent society as on date.
A bogey of the petitioner being a defaulter has been created in the
accounts by merely carrying forward the illegally claimed amount
of Rs.10,000/- on which the learned Tribunal as well as the
Arbitrator have authoritatively ruled.
16. In our view, the petitioner is being unduly harassed for no
fault of his and despite having complied with every lawful demand
WP(C) No.6883/2014 page 7 of 9
of the society. The petitioner was entitled to the issuance of the no
dues certificate as back as on 13th December, 2011 after he had
made all payments in terms of the Tribunal in October, 2011 itself.
His request on 13th December, 2011 should have been favourably
considered.
17. We also find it unfortunate that the bogey of the same
demand is being pressed before us even today.
18. Valuable judicial time has been expended on a complete non-
issue. The respondent Nos.2 and 3 are office bearers and
responsible for the affairs of the Society. In these circumstances,
the petitioner is required to be compensated with payment of costs
by the Society and the respondent nos. 2 and 3.
19. In view of the above, we direct as follows :-
(i) The Society as well as the respondent nos. 2 and 3 shall issue
a no objection certificate/no dues certificate in such format as
would satisfy the Delhi Development Authority for
conversion of the flat from leasehold to freehold within a
period of two weeks from today.
(ii) In case, any other documents are required by the petitioner
for the purpose of conversion to freehold, the same shall be
furnished within two weeks of his request for the same. It
shall be the responsibility of the respondent Nos.2 and 3 to
ensure compliance of our order.
(iii) The writ petition is allowed with costs which are quantified at
Rs. 20,000/- which shall be paid by Sadar Cooperative Group
Housing Society. The costs shall be paid within a period of
WP(C) No.6883/2014 page 8 of 9
two weeks from today.
(iv) Before we part with this case, we once again record our deep
appreciation for the valuable assistance rendered by Mr.Rajat
Aneja, Advocate who has very ably assisted us in this matter.
(v) List for directions on 19th August, 2015
GITA MITTAL, J
I.S.MEHTA, J
AUGUST 14, 2015
kr
WP(C) No.6883/2014 page 9 of 9
