GARHWAL COOPERATIVE GROUP HOUSING SOCIETY LTD v. REGISTRAR COOPERATIVE SOCIETIES
2009-10-08
BADAR DURREZ AHMED, VEENA BIRBAL
body2009
DigiLaw.ai
JUDGMENT BADAR DURREZ AHMED, J (ORAL) 1. We have heard the learned counsel for the petitioner. Nobody appears on behalf of the respondents today. This is despite the fact that all the respondents have been served, as indicated in the order dated 18.08.2009, whereby, in the presence of the counsel for the respondent Nos. 3 and 6, this Court had directed that this matter be listed in the category of Regular Matters as per its own turn. In these circumstances, we have thought it fit to hear the learned counsel for the petitioner and to decide this matter on the basis of arguments advanced by him and the material already on record. This is an old matter of 1990. 2. We may also note that in the first instance when this matter was taken up by this Court on 09.07.1990, the same was dismissed in limine. Being aggrieved by the said dismissal, the petitioner preferred a Special Leave Petition before the Supreme Court being SLP (C) No.12153/1990 which was admitted and numbered as Civil Appeal No.5633/1990. The said appeal was disposed of by the Supreme Court by an order dated 26.11.1990 whereby the order of dismissal in limine dated 09.07.1990 passed by this Court was set aside and the case was remanded to this Court with a direction that the petition be restored and the same be disposed of on merits and according to law after giving parties an opportunity to file their affidavits. Thereafter, parties have appeared and the pleadings have been completed. 3. The learned counsel for the petitioner submitted that the case is one of no opportunity of hearing having been granted to the petitioner. He submitted that the respondent No.4 was an allottee of a flat bearing No. B-44 in the petitioner Society. He submitted that sometime in 1985, a certificate was issued by the Society for the purposes of computation of property tax which indicated the cost of the flat to be Rs 86,000/-. The learned counsel submitted that this figure of Rs 86,000/-excluded various other costs such as cost of Community Centre, Development Charges, cost of Delhi Electricity Supply Undertaking Sub-Station etc. As per the petitioner, the total sum payable by the petitioner as on 31.12.1985 was Rs 1,02,900/-. The said computation was arrived at in the following manner:- 1. Towards Dev. & Const. Rs 52900.00 2.
As per the petitioner, the total sum payable by the petitioner as on 31.12.1985 was Rs 1,02,900/-. The said computation was arrived at in the following manner:- 1. Towards Dev. & Const. Rs 52900.00 2. DCHFS loan given Rs 50000.00 (on 1.1.86) __________ Total Rs 1,02,900.00 - Cost of flat+ 3. Extra Cost of top floor Rs 3000.00 4. DESU Sub Stn Cost Rs 7500.00 5. Cost of land Rs 4500.00 6. DCHFS Share moneyRs 4355.00 7. Society Share moneyRs 2100.00 8. Nine instalment paid by him Rs 16880.00 (Principal Rs 837/- + Instt. Rs 16043/-) 9. Defaulted Interest Rs 29406.00 (from 1.8.78 to 31.12.85 Statement attached) ___________ Total Rs 1,70,641.00 + NB Cost of flat is Rs 1,02,900/- including cost of Community Hall, Garage, Water Pump House etc. If these are excluded the cost of flat comes to be Rs.86000/-.´ 4. It is indicated by the petitioner that the cost of the flat was Rs 1,02,900/-which included the cost of Community Hall, Garage, Water Pump House etc. and that, if these are excluded, the cost of the flat would come to Rs 86,000/-. As per the petitioner, the certificate indicating the cost of the flat to be Rs 86,000/- had been given only for the purposes of assessment of House Tax and was not the entire extent of liability of the respondent No.4 towards the said flat. The respondent No.4 was also liable to pay the Society for the cost of Community Centre Development Charges, share money of Delhi Cooperative Housing Finance Ltd., the interest payable thereon, the cost of the DESU Sub-Station, the extra cost of the top floor as well as the interest equalization amount on the delayed payment. 5. The respondent No.3 claiming to be the power of attorney holder of the respondent No.4 filed an application before the Joint Registrar under Section 60 of the Delhi Cooperative Societies Act, 1972. The matter was referred to arbitration by an order dated 06.11.1989. The first hearing before the respondent No.2 Arbitrator was held on 18.12.1989. On 23.12.1989, the petitioner Society filed its written statement and the case was adjourned to 06.01.1990 for filing of documents. On 06.01.1990, nobody appeared on behalf of the petitioner Society before the Arbitrator (respondent No.2).
The matter was referred to arbitration by an order dated 06.11.1989. The first hearing before the respondent No.2 Arbitrator was held on 18.12.1989. On 23.12.1989, the petitioner Society filed its written statement and the case was adjourned to 06.01.1990 for filing of documents. On 06.01.1990, nobody appeared on behalf of the petitioner Society before the Arbitrator (respondent No.2). It is submitted before us that the Secretary of the petitioner Society could not appear before the Arbitrator on that date on account of certain unavoidable circumstances inasmuch as he was having certain domestic problems with his wife. The Arbitrator, without giving any further opportunity to the petitioner Society, concluded the hearing on 06.01.1990 itself and passed an award against the petitioner Society to the extent of Rs 65,593/-. The award was based on the consideration that the cost of the flat as per the certificate submitted was Rs 86,000/-. The computation of Rs 65,593/- as awarded by the Arbitrator by virtue of the award dated 06.01.1990 is as under:- ³D_ Rs. 1,36,666/-paid upto Dec. 1989 Less Rs. 86,000/-cost of the flat Balance Rs. 50,666/-Excess amount recovered by the Society. Add Rs. 14,937/-Interest charged calculated. Total Rs. 65,593/-´ 6. Being aggrieved by the said award, the petitioner Society preferred an appeal before the Delhi Cooperative Tribunal under Section 76 of the Delhi Cooperative Societies Act, 1972. In the said appeal, the petitioner Society, inter alia, took the plea that both the parties had appeared before the Arbitrator on 23.12.1989 and the Arbitrator/respondent No.2 had directed the parties to produce the relevant papers/documents and in support of their contentions and had adjourned the case to 06.01.1990. It was submitted that on that date the petitioner could not appear due to some unavoidable circumstances and that the Arbitrator instead of issuing another notice to the petitioner giving a final opportunity, made the said award dated 06.01.1990. The learned counsel for the petitioner submitted that the date of 06.01.1990 was fixed for filing of documents and not for arguments and that, the Arbitrator, if he felt that the petitioner was adopting dilatory tactics, could have closed the right of the petitioner to file documents and ought to have listed the case for arguments on another date.
The learned counsel for the petitioner submitted that the date of 06.01.1990 was fixed for filing of documents and not for arguments and that, the Arbitrator, if he felt that the petitioner was adopting dilatory tactics, could have closed the right of the petitioner to file documents and ought to have listed the case for arguments on another date. According to the learned counsel for the petitioner, that would have met the ends of justice, however, instead of doing so, the learned Arbitrator decided the matter on 06.01.1990 itself, the date on which the parties were to file their documents. 7. The Delhi Cooperative Tribunal dismissed the appeal filed by the petitioner on three points. The first point being that the appeal was incomplete as the copy of the impugned award had not been filed along with the appeal. The second point was that the appeal was delayed. The third point on which the appeal was dismissed was that it could not be said that the Arbitrator had failed to offer an opportunity to the petitioner and that it was the petitioner Society alone who was to be blamed for the wilful absence of its representative on the date fixed. The Tribunal was of the view that, in these circumstances, the Arbitrator had no option but to pass the award after going through the material/evidence available before him. On the basis of these three points, the appeal was dismissed. 8. The learned counsel appearing on behalf of the petitioner submitted that the copy of the impugned award could not be filed along with the appeal as the same was not received till that time. The learned counsel for the petitioner submitted that even before the Tribunal, the petitioner Society had taken the plea that the Arbitrator after passing the award dated 06.01.1990 did not send a copy of the same to the petitioner. He submitted that under Rule 89(4)(b) of the Delhi Cooperative Societies Rules, 1973, the award was to be communicated to the petitioner Society by registered post. Rule 89, to the relevant extent, reads as under:- ³Rule 89 Award of Decision. XXXX XXXX XXXX XXXX 4. The award shall be communicated to the parties by . (a) pronouncement of the award, or . (b) registered post to any party which may be absent on such date. XXXX XXXX XXXX ;;;;´ 9.
Rule 89, to the relevant extent, reads as under:- ³Rule 89 Award of Decision. XXXX XXXX XXXX XXXX 4. The award shall be communicated to the parties by . (a) pronouncement of the award, or . (b) registered post to any party which may be absent on such date. XXXX XXXX XXXX ;;;;´ 9. It is clear from a reading of the Rule that since the petitioner Society was not present on the date of pronouncement of award i.e., on 06.01.1990, clause (a) of sub-rule (4) of Rule 89 would not apply. Therefore, the award had to be communicated by registered post to the petitioner Society in terms of clause (b) of sub-rule (4) of Rule 89. The learned counsel for the petitioner drew our attention to the fact that the copy of the award was received by the petitioner Society only from the respondent No.3 and not from the respondent No.2 and, that too, along with a letter dated 08.03.1990 as would be apparent from paragraph 13 of the appeal memo before the Delhi Cooperative Tribunal. It is thereafter that the petitioner applied for a certified copy of the award which was not available with the petitioner Society at the time of filing of the appeal but was made available to the petitioner Society during the pendency of the appeal and the same was filed immediately thereafter, before the disposal of the appeal. Thus, according to the learned counsel for the petitioner, the non-filing of the copy of the award along with the appeal could not be a ground for rejection of the appeal of the petitioner. Insofar as the question of delay is concerned, the learned counsel for the petitioner submitted that an application for condonation of delay had been filed along with the memorandum of appeal as recorded in the impugned order dated 24.05.1990 itself. However, the said application has not at all been discussed in the impugned order. The only reference to the said application is that such an application was filed. The Tribunal has not considered the said application on merits and, therefore, the rejection of the appeal on the ground of the delay could not be sustained. 10.
However, the said application has not at all been discussed in the impugned order. The only reference to the said application is that such an application was filed. The Tribunal has not considered the said application on merits and, therefore, the rejection of the appeal on the ground of the delay could not be sustained. 10. As regards the decision of the Tribunal on the question of opportunity not having been granted to the petitioner before the Arbitrator, the learned counsel for the petitioner reiterated that the date of 06.01.1990 before the Arbitrator was only for filing of documents and not for arguments and, therefore, the non-appearance on the part of the petitioner Society could not have the entailed serious consequence of a decision on merits in the absence of the petitioner. The petitioner Society ought to have been granted an opportunity for presenting arguments. 11. We have considered the arguments advanced by the learned counsel for the petitioner and have also examined the papers on record. We feel that the impugned order passed by the Tribunal on 24.05.1990 as also the award dated 06.01.1990 cannot be sustained. It is clear from paragraph 4 of the award dated 06.01.1990 itself that Sh. N.S. Negi, Secretary of the petitioner’s Society also demanded certain information/ documents “for which purpose the case was adjourned for 6.1.1990”. The Arbitrator also directed the Society to produce the ledger and accounts concerning the case as also to give photostat copy of the letter dated 22.12.1989. From these statements contained in the award itself, it is clear that 06.01.1990 was the date fixed for filing of documents and furnishing of information, it was not a date fixed for hearing the final arguments in the case. We feel that the Arbitrator ought to have given another opportunity to the petitioner Society to represent its case. A peremptory notice could have been given and if thereafter the petitioner Society did not appear, it would have been open to the Arbitrator to have gone ahead and have made his award. However, we feel that the Arbitrator rather acted hastily in this case and concluded the case on 06.01.1990 itself, a date which was fixed for furnishing documents/information. We also feel, prima facie, that it is not as if the petitioner Society had no case at all.
However, we feel that the Arbitrator rather acted hastily in this case and concluded the case on 06.01.1990 itself, a date which was fixed for furnishing documents/information. We also feel, prima facie, that it is not as if the petitioner Society had no case at all. The counter claim of the petitioner with regard to the amount due from the respondent No.4 also needed consideration. This fact was also completely lost sight of. The figure of Rs 86,000/- towards cost of flat was certified only for the purposes of house tax and did not reflect the total amount due from the respondent No.4. This aspect of the matter needed consideration which had not been gone into by the Arbitrator or the Tribunal. 12. Insofar as the impugned order dated 24.05.1990 is concerned, we find that the findings given by the Tribunal on all the three points cannot be sustained. While it is mentioned that the appeal was not accompanied by a copy of the impugned award, the Tribunal has not taken account of the facts mentioned in the appeal memo itself that the award was not communicated to the petitioner in terms of Rule 89(4)(b) of Delhi Cooperative Societies Rules, 1973. With regard to the question of delay, we agree with the learned counsel for the petitioner that, apart from mentioning that a condonation of delay application had been filed by the petitioner, there is no discussion as to whether the grounds for condoning delay were acceptable or not. As regards, the question of lack of opportunity, we have already indicated that the petitioner has been able to demonstrate that a full and fair opportunity was not granted to the petitioner Society to put forth its case before the learned Arbitrator. Thus, on all three grounds, the impugned order dated 24.05.1990 deserves to be set aside. 13. Consequently, the writ petition is allowed, the impugned order dated 24.05.1990 as also the award dated 06.01.1990 are set aside. The respondent No.1 (Registrar of Cooperative Societies) is directed to refer the matter afresh to a new Arbitrator to decide the disputes between the parties. We hope that the award shall be finalized at an early date after giving full opportunity to the parties. The parties shall bear their respective costs.