Delhi High Court
Suresh Chand Jain vs Pharmaceutical Employees Cghs Ltd. on 5 July, 2023
Author: V. Kameswar Rao
Bench: V. Kameswar Rao, Anoop Kumar Mendiratta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: July 05, 2023
8
+ W.P.(C) 2740/2015
SURESH CHAND JAIN ..... Petitioner
Through: Mr. R.K. Gupta, Advocate.
versus
PHARMACEUTICAL EMPLOYEES
CGHS LTD. ..... Respondent
Through: Mr. Dilip Singh and Ms. Raj Lakshmi,
Advocates for R-1.
Ms. Shobhana Takiar, Advocate for
R-3/DCHFC.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
V. KAMESWAR RAO (Oral)
1. This petition has been filed by the petitioner with the following
prayers:
"(a) Issue a writ, order or direction in the nature of
certiorari thereby quashing the order dated 30.7.2014
passed by Delhi Cooperative Tribunal in Appeal
No.36/2010/DCT and also the Award dated 9.1.2010 passed
by the Arbitrator U/s. 71 of the Act;
(b) Directions may also be issued to the society to refund
Rs.40,000/- as charged by way of Entry Fee with interest or
the same may kindly adjusted against the future maintenance
W.P.(C) 2740/2015 Page 1 of 9
charges;
(c) Issue a writ, order or direction in the nature of
mandamus thereby directing the Registrar to complete the
recovery proceedings initiated under Section 59 of Delhi
Cooperative Societies Act, 1972 within a stipulated period;
(d) Issue a writ, order or direction as this Hon‟ble Court
may deem fit and proper under the facts and circumstances
of the case;
(e) Cost of the proceedings may also be awarded."
2. In substance, the challenge in this petition is to an order passed by the
Delhi Co-operative Tribunal („DCT‟, in short) in Appeal No. 36/2010/DCT
and also the award dated January 09, 2010 passed by the learned Arbitrator
under Section 71 of the Delhi Co-operative Societies Act, 2003.
3. The grievance of the petitioner before the learned Arbitrator was two-
fold. One with regard to the claim of Rs. 40,000/- as a refund from the
society, which was paid by the petitioner at the time of entry to take
possession of the flat in question. The second grievance is with regard to a
claim of Rs. 61,257/- by the society pursuant to a loan of Rs. 1.6 crores taken
by the society from DCHFC, i.e. respondent No. 3 herein.
4. The brief facts are that one S. K. Arora was the member of the society
being Pharmaceuticals Employees CGHS Ltd. He was allotted flat No.
B-17/211. The petitioner purchased the said flat from S. K. Arora vide a
GPA dated May 28, 1999. Thereafter, the society had demanded Rs. 40,000/-
as an entry fee from the petitioner.
5. The case of the petitioner was that, he has been forced to pay the
W.P.(C) 2740/2015 Page 2 of 9
amount on July 07, 1999. With regard to the loan amount, it was the case of
the petitioner that, as the petitioner had paid the complete amount to S. K.
Arora, he was not liable to pay any loan amount taken by the society.
6. Whereas, the case of the society was that, it had taken loan from
DCHFC/respondent no. 3 and the refunds were utilized in construction of the
flats and the members were asked to share the burden of the past liability
equally to avoid further accumulation of interest. It was also the case of the
Society that the membership of the flat was transferred in the name of the
petitioner on April 08, 2007 after the petitioner gave an affidavit that, he
would pay the amount, if any, against the original member as and when
asked and certified by the society.
7. The learned Arbitrator held that the petitioner is liable to pay an
amount of Rs. 61,257/- against the loan taken by the society from the
respondent No. 3. In so far as the dispute with regard to the claim of the
society to pay the refund of the entry fee of Rs. 40,000/- is concerned, the
learned Arbitrator took a view that the said claim is barred by time.
8. The DCT while rejecting the appeal filed by the petitioner, in
paragraphs 10, 11 & 12, has stated as under:
"10. The society is claiming that the entry fee was not paid
by the appellant. The membership in his name had been
transferred on 08/04/2007. Copy of the affidavit of the
appellant dated 31/03/2007 shows that he had agreed to
clear the liability, if any, against the original member, in
respect of the dues towards the society.
11. The appellant is placing reliance on the receipt no.457
dated 07/07/1997. A perusal of the receipt reveals that the
amount had been paid by Sh. Arora and not by the
appellant. Therefore, the claim of the appellant that he had
paid the amount of Rs.40,000/- through cheque on
W.P.(C) 2740/2015 Page 3 of 9
07/07/1999 vide receipt no.457 is factually incorrect.
Sh.Arora is not seeking refund of the amount.
12. The appellant has not disputed the fact that the
membership had been transferred to him on 08/04/2007.
Therefore whatever was due and outstanding prior to his
becoming a member of the society were recoverable from
Sh. Arora. The NOC had been issued on 01/04/1999 to Sh.
Arora. The amount sought by the society was because of
issuance of recovery certificate dated 26/05/2008 by the
Assistant Collector, Gr-1. It is not in dispute that the loan
had been taken by the society on behalf of the members.
Therefore, the balance amount was required to be paid by
the members."
9. In so far as the claim of the loan amount by the society, which was
quantified as Rs. 61,257/- by the learned Arbitrator is concerned, as noted
above the submission of Mr. Gupta is that, when the petitioner had made
complete payment of the flat and had not taken the loan as advanced by the
respondent no.3, he is not liable to pay the said amount to the society.
10. The submission of Mr. Gupta is contested by Mr. Dilip Singh, learned
counsel appearing for the society i.e. respondent No. 1, by relying upon the
judgment in the case of Veena Mahajan vs. The Registrar, Office of the
Registrar of Cooperative Societies and Ors., W.P.(C) 5942/2013 and
connected petitions decided on September 11, 2017, wherein on an identical
issue, the challenge by similarly placed persons, this Court negated the
challenge in paragraphs 1, 2, 3, 7, 8, 9, 10, 11, 12 & 13, as reproduced as
under:
"1. By this common order, we propose to dispose of the
present petitions filed by the petitioners, who are not the
original members of the respondent No.2/Society, but have
purchased flats in the said Society on second sales from the
original members. In each case, the petitioners have sought
W.P.(C) 2740/2015 Page 4 of 9
quashing of demand letters issued by the respondent
No.2/Society, calling upon them to pay their respective share
of the apportioned amount under the
individualization scheme. For ready reference, the dates of
the demand letters issued in respect of each of the petitioners
and the amounts demanded, as per the documents filed with
the petitions, are set out as below:-
2. Mr. Jitender Kumar, learned counsel for the petitioners
argues that the individualization scheme is applicable only to
those members of the Society, who had obtained loans from
the respondent No.3/Delhi Co-operative Housing Finance
Corporation Ltd. (in short „DCHFC Ltd.‟) but the petitioners
having not obtained any loan, cannot be called upon to pay
any amount under the individualization scheme.
3. Mr. Dilip Singh, learned counsel for the respondent
No.2/Society states that several rounds of litigation have
taken place between different members of the Society and the
Society and the first round of litigation had commenced
somewhere in the year 2000-2001. In December, 2000, the
respondent No.3/DCHFC Ltd. had filed a petition under
Section 60 of the Delhi Cooperative Societies Ltd., 1972
against the respondent No.2/Society and the loanee members,
for recovery of Rs.15,26,354/-, as on 31.12.2000. Vide Award
dated 24.01.2001, the learned Arbitrator had referred to the
W.P.(C) 2740/2015 Page 5 of 9
following four categories of members as drawn by the
Society:-
(1) those who have paid fully
(2) those who are paying according to schedule
(3) those who are dead
(4) those who are defaulters.
xxxxxxx xxxxxxx xxxxxxx
7. It is an undisputed position that the respondent
No.2/Society had defaulted in refunding the loan amount to
the DCHFC Ltd. As a result, DCHFC Ltd. had to approach
the respondent No.1/RCS by filing an application under
Section 84(1) of the Delhi Cooperative Societies Act, 2003,
for issuance of a Certificate for a sum of Rs.1,34,79,105/-
alongwith the interest. Accordingly, the Assistant Collector,
Cooperative Societies had issued a Certificate dated
26.05.2008, certifying inter alia that a sum of
Rs.1,34,79,105/- was outstanding as arrears as on
30.09.2006, including recall of the loan amount against the
debtors, jointly and severally.
8. In the year 2010, one of the members of the respondent
No.2/Society, Mr. M.S. Chawla had filed a writ petition in this
court against the respondent No.2/Society, registered as
W.P.(C) 3384/2010 wherein an order dated 18.05.2010 was
passed by the Division Bench, as below:-
"The Society lost an arbitration award and contested
the same right till the High Court unsuccessfully. The
consequence is that certain amounts have to be paid
to the finance company and the amount to be so paid
is being apportioned between different members who
are occupants of flats.
In the aforesaid position the petitioner, a member of
the Society and occupant of a flat cannot be permitted
to claim that he is not entitled to pay his share of the
apportioned amount because he had earlier cleared
all the dues.
Dismissed."
9. After about three years, six other members of the
respondent No.2/Society including the petitioner in W.P.(C)
W.P.(C) 2740/2015 Page 6 of 9
5942/2013 and the petitioner No.1 in W.P.(C) 8094/2014 had
jointly filed a writ petition in the High Court, registered as
W.P.(C)281/2013 praying inter alia that the respondent
No.2/Society be called upon to come up with the correct
amounts payable by individual members towards the liability
of the Society and thereafter, release the mortgage of the flats
of the members, who had paid their shares. The aforesaid
petition was disposed of by the Division Bench on 06.05.2013,
by passing the following order:-
" The petitioners, who are members of R-2/Society,
are claiming that there continues to be a clog on their
property on account of the loan availed of by R-
2/Society from R-3/Bank even though the petitioners
have cleared their loans and / or are willing to clear
any outstandings. It was in these circumstances that
we had called upon R-3/Bank to find out as to whether
the individualization scheme can be applied to the
members of the R-2/Society.
We are informed that, in fact, the said Scheme has
already been availed of by the Society and the
individual outstandings have been communicated to
the members on the clearance of which they can get a
No Due Certificate.
To put an end to the controversy, we once again call
upon the R-2/Society to intimate the outstandings qua
the petitioners as per the individualization scheme to
the learned counsel for the petitioner within a week
from today."
10. It was after the aforesaid order came to be passed that the
respondent No.2/Society had issued the impugned demand
letters, calling upon individual members to pay the amounts
as specified therein.
11. Learned counsel for the respondent No.2/Society states
that the amounts demanded from the individual petitioners in
the present case are not only towards the shortfall of the
money payable to DCHFC Ltd., but also on account of
diversion of the loan amounts received by the Society from
various members for payment to the DCHFC Ltd., but utilized
W.P.(C) 2740/2015 Page 7 of 9
towards construction activity/development purposes of the
Society.
12. In view of the fact that the petitioner in W.P.(C)5942/2013
and one of the petitioners in W.P.(C) No.8094/2013 had
themselves approached the Court on an earlier occasion,
seeking directions to the respondent No.2/Society to come up
with the correct amounts payable by individual members and
vide order dated 06.05.2013 passed in W.P.(C) 281/2013,
appropriate directions were issued in this regard, the
petitioners herein cannot be permitted to re-agitate the issue
and try to unsettle matters that have been satisfactorily
resolved. The order dated 6.5.2013 has attained finality and is
binding on all similarly placed members of the Society.
13. Given the above background, we are not inclined to
interfere in the impugned orders passed by the respondent
No.2/Society, calling upon the individual members to pay
quantified amounts, as demanded from them. However, in the
interest of justice, the petitioners are granted a period of six
weeks to clear the said amounts, failing which the respondent
No.2/Society and the DCHFC Ltd. shall be at liberty to seek
legal recourse against the defaulting petitioners and/or the
Society.
14. The petitions are dismissed. No orders as to costs."
11. We have been informed that this petition was also listed along with the
above said petitions but could not be heard along with those petitions as the
counter affidavit was not filed. In any case, we find that the Court had not
interfered with the orders issued by the respondent No. 2 society calling
upon the individual members to pay the quantified amounts as demanded
from them and in that regard, six weeks were granted by this Court.
12. If that be so, we are inclined to accept the conclusion arrived at by the
DCT in that regard. In so far as the entry fee is concerned, the learned
Arbitrator and the DCT have rejected the claim on the ground that the same
was barred by time. We agree with the said conclusion inasmuch as, it is a
W.P.(C) 2740/2015 Page 8 of 9
conceded position that the amount of Rs. 40,000/- was paid to the society on
July 07, 1999 and the claim was made only in the year 2009 and as per
Section 70(4) of Delhi Co-operative Societies Act, 2003, the limitation being
of six years from the date the cause of action has arisen, the claim made in
the year 2009, was barred by time.
13. So, the two submissions made by Mr. Gupta being without merit, the
petition is dismissed. No Cost.
V. KAMESWAR RAO, J.
ANOOP KUMAR MENDIRATTA, J. JULY 04, 2023/akc W.P.(C) 2740/2015 Page 9 of 9