Delhi High Court
R.K. Anand And Ors vs Delhi Co-Operative Housing Finance ... on 25 November, 2013
Author: Gita Mittal
Bench: Gita Mittal, Deepa Sharma
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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 WP (C) No.7370/2013 Page 1 of 7 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 WP (C) No.7370/2013 Page 2 of 7 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 WP (C) No.7370/2013 Page 3 of 7 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 WP (C) No.7370/2013 Page 4 of 7 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. WP (C) No.7370/2013 Page 5 of 7
(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 WP (C) No.7370/2013 Page 6 of 7 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 WP (C) No.7370/2013 Page 7 of 7