Geeta vs Financial Commnr.Govt.Of Nct Delhi

[NON-REPORTABLE]

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 1362 of 2011

Geeta & Ors. … Appellants Versus Financial Commissioner Govt. of NCT Delhi & Ors. --- Respondents

JUDGMENT

Rajesh Bindal, J.

1. Having failed at all stages of the proceedings, the

Appellants are before this Court impugning the order passed by

the Division Bench of Delhi High Court whereby writ petition

was filed challenging the order dated 15.12.1994 passed by the

Financial Commissioner, Delhi was dismissed. The High Court

upheld the order dated 23.3.1993 passed by the Joint Registrar

(II), Cooperative Societies, Delhi whereby the membership of

late husband of the appellant no.1 was expelled. It was on

account of non-payment of dues for construction of flats and Signature Not Verified Digitally signed by Indu Marwah Date: 2023.03.29 17:43:54 IST Reason: Page 1 of 8 Civil Appeal No. 1362 of 2011

allotment thereof by the Nav Jagriti Cooperative Group Housing

Society Limited.

2. Learned counsel for the appellants submitted that

there is a procedure prescribed in Rule 36 of the Delhi

Cooperative Society Rules, 1973 for cancellation of membership

of the society, which has not been followed in the case in hand.

The amount shown to be recoverable from the late husband of

appellant no.1 as ₹1,72,990/-, was not due as there was some

enhancement of the cost of the flats, which was not proper.

The late husband of the appellant no.1 never refused to pay the

amount due. Learned counsel referred to a meeting notice

dated 4.3.1992 of the society in which a sum of ₹1,33,920/-

was shown to be due against the late husband of appellant

no.1. He further submitted that the notice issued by the

society to late husband of appellant no.1 dated 9.2.1993 shows

that he had already paid ₹1,40,500/- up to 31.1.1993 and in

fact, there was nothing due.

3. On the other hand, learned counsel for the

respondents submitted that there are concurrent findings of

facts recorded by all the authorities under the Act. The orders

were upheld by the Division Bench of the High Court recording

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the default of the appellants in paying the dues of the society.

No interference is called for in the present appeal. He further

submitted that an offer was made to late husband of appellant

no.1 at the appellate stage for payment of the balance dues so

that issue could be resolved. However, that opportunity was

not availed of as late husband of appellant no.1 wanted to

contest the litigation. He further submitted that a meeting of

the society was held on 31.1.1995 and against the vacancy,

new member was added. 40 flats were constructed against

which 40 members are on roll, hence, at this stage, it is not

possible to offer any flat to the appellants as she had failed to

avail of the opportunity at the appropriate stage.

4. Heard learned counsel for the parties and perused

the material of record.

5. From the material on record, it is evident that society

had issued notice to the late husband of appellant no.1 on

4.11.1991 for expulsion of his membership on account of

default in payment of dues of the society. A notice for holding

Annual General Meeting on 22.03.1992 of the society was

issued on 4.3.1992 specifically for considering expulsion of

members of the society who were persistent defaulters. The

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name of late husband of appellant no.1 was one of them. A

sum of ₹1,33,920/- was shown to be due against him. On

22.3.1992, a resolution was passed in the aforesaid meeting

expelling the membership of number of persons, including the

late husband of the appellant, on account of default in

payment. The matter was referred to Registrar, Cooperative

Societies, Delhi for necessary action. Joint Registrar (II),

Cooperative Societies, Delhi, vide his order dated 23.3.1993

granted time to the expelled members to deposit dues by

30.04.1993 and in default the resolution of the society was

approved.

6. Late husband of appellant no.1 preferred appeal

under Section 76 of the Delhi Cooperative Societies Act, 1972

challenging the order dated 23.3.1993 passed by the Joint

Registrar (II), before the Financial Commissioner, Delhi, who

dismissed the appeal vide order dated 15.12.1994. The order

passed by the Financial Commissioner, Delhi specifically

records that late husband of appellant no.1 deposited a sum of

₹ 1,46,000/- and a balance of more than ₹ 2,00,000/- was due

from him. The amount was being disputed by him claiming that

the cost of construction has not been properly calculated. The

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offer was given to him to pay the dues with interest within

certain reasonable period, however, he did not avail the same.

The relevant part of the order passed by the Financial

Commissioner, Delhi is extracted below:-

“3. ….. However, on ascertaining the facts from the parties, it was found that undisputedly the appellant has paid a sum of Rs.1,46,000/-and that he has still to pay more than Rs.2,00,000/-. This has been objected to by Shri Gupta by arguing that the cost of construction has not properly been calculated and that the appellant has always been challenging the said cost of construction. On this ground, the learned Counsel has disputed the liability of the appellant. The learned Counsel also declined the offer given by this court to square up the dues by the appellant alongwith upto date interest within a reasonable period, for the same reason that the appellant is not accepting the cost of construction.

4. I find that no such plea was taken by the appellant before the learned Joint Registrar. All that has been recorded in the impugned order is that the members, including the applicant, wanted some more time to make the payment, their request was accepted and that they were allowed time upto 30.4.93 to make the payment of the amount by the appellant by the extended date and eh has preferred

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to approach this court through the appeal In view of the above facts, it now does not lie with the appellant to take any other ground. The opportunity to make the payment given to the appellant during the argument by this court has also been declined on behalf of the appellant. Instead the learned counsel has attempted to rake up matters, not connected with the present case. In view of these facts, there is no extenuating factor in favour of the appellant and I hold that the impugned order does not suffer from any infirmity.”

7. Still not satisfied, late husband of appellant no.1 filed

a writ petition before the High Court of Delhi one year and ten

months after passing of the order passed by the Financial

Commissioner, Delhi. The order dated October 7, 1996 passed

by the High Court at the time of issuance of notice records the

statement of late husband of the appellant no.1 that he is ready

and willing to deposit the entire amount along with interest.

However, the fact remains that the late husband of appellant

no.1 had not deposited any amount till the writ petition was

decided by the High Court on July 5, 2010 and no such stand

was taken. Even before this Court the position is same. The

High Court, in the impugned order, had recorded that the late

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husband of appellant no.1 is raising dispute regarding cost of

construction. Meaning thereby the default of late husband of

appellant no.1 in payment of amount to the society goes

unrebutted, on the basis of which the membership of late

husband of appellant no.1 was expelled.

8. The argument now raised, which had not been raised

before any of the authorities including the High Court, is that

there is violation of Rule 36(2) of the Delhi Cooperative Society

Rules, 1973 and the prescribed procedure for expulsion of a

society member has not been followed. We are not impressed

with the argument. Procedural law is subservient to justice.

9. In the case in hand the only issue is regarding default

of payment of dues of the society for construction of flats,

which the late husband of appellant no.1 was not ready and

willing to pay at any stage, despite opportunities given. Firstly

by the Society, secondly by the Joint Registrar (II), Cooperative

Societies, Delhi and thereafter by the Financial Commissioner,

Delhi. Even before the High Court, at the time of issuance of

notice, the statement of late husband of appellant no.1 was

that he is ready and willing to deposit the amount due with

interest but still nothing was paid.

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10. For the reasons mentioned above, we do not find any

error in the order passed by the High Court. The appeal is,

accordingly, dismissed. No order as to costs.

______________, J.

(Rajesh Bindal)

______________, J.

(Aravind Kumar) New Delhi March 29, 2023.

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