R.P.BEDI vs KEDAR CO-OPERATIVE GROUP HOUSING SOCIETY LIMITED

THE facts of the case have been given in our judgment dated 29-1-91 by which we decided a preliminary objection of the respondent. That may be deemed to be a part of the present judgment. THE/Counsel for respondent appeared before us on 3-7-91 and made a statement that he wanted to withdraw from the case as the respondents were not attending his office to give instructions. He requested for one week''s adjournment to make an application for that purpose. At his request the case was adjourned to 10-7-91. THE learned Counsel on the next date of hearing moved as application that he be allowed to withdraw from the suit. We allowed him to do so. No one was present on behalf of the respondents consequently they were proceeded against exparte. A notice was ordered to be issued to the respondents informing them that they had been proceeded against ex-parte as their counsel had withdrawn from the proceedings. THE respondents, however, did not appear.

THE complainant has claimed an amount of Rs. 1,24,748.10 on account of interest on the amount of Rs. 4,15,827/- from 1.1.89 to 31.8.90 @ 18% P.A. THE total amount is alleged to have been deposited by him before 1.1.89. It is argued by the learned Counsel for the complainant that an assurance was given to the complainant by the respondents that the flat would be handed over to him by 31.12.88. He submits that the flat was actually delivered in September'' 90 and therefore the complainant is entitled to the interest on his amount from 1.1.89 to 1.9.90. We have duly considered the arguments. It is common knowledge that the house construction work is a tedious and time consuming work. It has been seen that the house is normally not completed within the expected period. It is true, that the respondents assured the complainant that the house would be handed over to him by December'' 88. However, no fault can be found with the builder, if some more time is taken by them in completing a multi-storeyed building. We think that some allowance regarding time should be given to the respondents for completing and obtaining the completion certificate of the building. In the present case the respondents, in view of the assurance should have completed the building by the end of 1988. We allow a further period of 10 months to the respondents to complete the building. Consequently, we are of the opinion that the complainant is entitled to interest from 1.11.89 to 31.8.90.

Now the question arises at what rate the complainant should be awarded the interest. The Counsel for the complainant has placed reliance on M.K. Gupta v. Lucknow Development Authority (First Appeal No. 21 of 1990), decided by the National Commission, reported as 1990-91 (3) MRTP Reports 98 = I (1992) CPJ 66 (NC). In that case the complainant was allowed 16% interest on the amount deposited on account of the late delivery of possession of the house by the respondent. He also referred to a case B.L. Putney and Krishna Putney v. Delhi Development Authority (Case No. C-15/1991 decided on 24.1.91) I (1991) CPJ 345, reported as, I (1991) CPJ 345 decided by this State Commission. In that case we awarded interest @ 15% p.a. In view of the observations of the National Commission we grant interest to the complainant @ 16% P.A. The total amount of interest at the said rate, for 10 months on Rs. 4,15,000/- comes to Rs. 55,333.00.

THE complainant has claimed refund of Rs. 15,000/- .on account of use of Dana instead of Dholpur Stone and Rs. 9,500/- charged as additional amount by the Society. In paras 5 & 6 of the complaint the complainant, however, has claimed Rs. 19,000/- only. We restrict these claims to Rs. 19,000/- In the reply to the complaint, it is stated, that the Society did not make any unjust demand! from its members and the averments in the com plaint were wrong. It is true that in letter dated 25.7.88 it is mentioned that Dholpur Stone was to be used in the outer finish of the building. In order to reduce the cost and the time the Managing Committee accepted the recommendations of the Architect and the Members of the Managing Committee to use Dana instead of Dholpur Stone. It is also mentioned that the Committee would be able to save an amount of Rs. 10,000/- to Rs. 15,000/- in the cost of each flat. However, in the minutes of the Annual General Project Meeting of the Members of the Society held on 8.3.90 it was resolved that the Society approved the construction cost of each Type ''A'' flat as Rs. 4,04,727/- plus the price of land as Rs. 10,500/- . Thus the total priice of the flat comes to Rs. 4,15,227/- THE resolution no doubt does not bear the signatures of the complainant. Still in our opinion, he is bound by it. THE resolution was passed in the Annual General Meeting. THE complainant must have received the notice of the Meeting. If he does not attend the Meeting, still he is bound by the resolutions passed in it THErefore, he can not be allowed to say that the resolution is not binding on him as he did not attend the meeting. THE complainant however, has paid Rs. 4,15,827/- He is, therefore, entitled to the refund of Rs. 690/- The complainant has claimed an amount of Rs. 50,000/- for not providing swimming pool and using cheap material like Dana instead of Dholpur Stone. It is true that the respondent had informed the complainant that Dholpur Stone would be used outside the building and that a swimming pool would be provided therein and both things have not been provided. However, the cost of the flats has been worked out taking into consideration the material used therein. If the stone had been used, the price of the building would have gone up. Similarly if a Swimming Pool had been constructed, some more amount would have been charged from the members of the Society. We have already referred to-the resolution of the members of the Society wherein they admitted that the cost of the building including the price of the land was Rs. 4,15,227/- In the circumstances we are of the view that complainant is not entitled to any compensation from the respondents for not using Dholpur Stone and for not providing the Swimming Pool. This claim of the complainant is, therefore, rejected.

FOR the aforesaid reasons, we partly accept the complaint and direct the respondents to pay an amount of Rs. 55,933/- with interest (a) 16% P.A. from the date of the complaint till the date of payment within three months from the date of the order. No order as to costs. Sh. B.L. Anand, Member I have examined the record and heard the complainant at length. I have also gone through the findings recorded by Sh. R.N. Mittal, President. The claimant has raised the following three points in his plaint:- (i) To pay interest on the sum of Rs. 4,15,827/- for the delayed period of possession i.e. from December, 1988 to August, 1990 @ 18% Rs. 1,24,748.10 (ii) To refund of Rs. 15,000/- on account of change of outer finish material from Dholpur Stone to crushed dana stone .Rs. 15,000.00 (iii) To refund the additional amount which the Society demanded and illegally obtained after having received full construction cost in consideration of the flat. ..Rs. 9,500.00

Whereas I support the conclusions with reference to the about point Nos. 2 & 3 whereby these claims of the complainant stand rejected, I am not in confirmity with the views of Sh. R.N. Mittal, President with regard to the interest'' allowed to him for the late possession of the flat to the complainant. The complainant has emphasised about the so promised handing over of the flats before the end of the years 1988. According to the complainant he had made the last payment to the said Society on 26.1.91. This has been sworn by him under para 9 of his affidavit and he has also repeated the allegation regarding the delay of the project beyond September'' 88 and as such he claimed interest on the sum of Rs. 4,15,827/- for the period for delayed possession from December ''88 to August/September'' 1990 at 18% p.a. It is on record that the Society could complete this Common Housing Project by raising a loan of Rs. 85.25 lacs from the DCHFC. It is also on record that this loan was disbursed to the respondent Society in three instalments. A perusal of the record further reveals that the third instalment was released by the Delhi Cooperative Housing Finance Society Ltd. vide their letter No. F. 21(204)/88-89 dated 16.6.89 and that this instalment was consisting of Rs. 26,10,000/- . The claimant for the reason best known to him has suppressed this fact from his complaint as well as his affidavit and has nowhere made clear that the third instalment of loan was released by the DCHFC only on 16.6.89. It is worth considering that when this huge portion of loan say Rs. 26.10 lacs, was released only in June'' 89 how could the complainant expect that the project could be completed by December'' 88. It need not be discussed that in the absence of sufficient funds any such project is bound to get delayed and the respondent Cooperative Society could not be held responsible for the alleged delay. It may be of interest to note that this loan part according to own admission of the complainant contained a proportionate share of the complainant himself which means that the complainant had not made the full contribution of his share of investment for the flat upto 16.6.89 when this loan was released by the DCHFC.

TO make the matter more clear a reference to letter dated 12.3.90 which is R-37 on record and another letter KOGHSL/238/90 dated 6.6.90 which was R-38 on record may be made. These two letters were written to the complainant by the Honorary Secretary of the respondent Society and both these letters are very pertinent. In these letters reference to the draw of lots held by the Dy. Director of DDA on 8.3.90 has been made and the complainant has been written and reminded that he has been allotted Flat No. A-304 and that he should make payment of dues to the Society and collect necessary possession papers from the Office of the Society. The complainant for the reasons best known to him has supressed the contents of those two letters also as there is no mention of such a correspondence either in the. main complaint or in the affidavit sworn by him. A careful scrutiny of this correspondence on record proves beyond any iota of a doubt that the flats were ready by March, 8th, 90 and that an open offer was repeatedly made to the complainant for taking the possession of his flat after meeting his obligations such as payment of any dues etc.

A further perusal of Exhibit R-12 to R-30 which are on record reveals that many other members of the society did get the possession of their respective flats within March'' 90. This fact on record further goes to prove that the flats were ready on or before 8th March'' 90 and that the complainant Shri Bedi did never take the possession for the reasons known to him. I have also examined the minutes of the Annual General Body Meeting of the Members of Kedar Group Housing Society held on 8.3.90 a copy of which has been placed on record. This meeting was attended by 92 Members and Shri Bedi''s (complainant) name and signatures figured at S.No. 5 bearing his Membership Slip No. 238. As mentioned above it is in this meeting that the draw of lots was done by Sh. M.A. Hashmi, Dy. Director (DDA) and as per further proceedings recorded at page 107 of the Minutes Book the name of the complainant (Shri Bedi) again appears at S.No. 42 where flat A-304 has been shown to have been drawn in his favour. Having been a party to those proceedings of the General Body Meeting and then choosing to make allegations against the society of having delayed the project upto August/September'' 90 is nothing but blowing hot and cold in the same breath. From the scrutiny of these proceedings of the General Body Meeting It is amply clear that Shri Bedi was fully knowing that the flats have been completed by 8.3.90. He was even made an offer in writing to take possession of his flat soon after the meeting on 12th March''90 and even reminded subsequently. A careful perusal of the proceedings of the General Body Meeting further reveals that the complainant had raised these points regarding the Swimming Pool as well as the usage of Dana instead of Dholpur Stone and also the claim of interest. In that meeting of General Body on 8.3.90. all these issues were discussed and a concensious decision has taken by the majority of the Members rejecting these claims of Shri Bedi. Shri Bedi ultimately took the possession of his flat and in my view the raising of these points before this Commission is nothing but an after thought on the part of the complainant. In the light of the above discussed facts on record, I am of the opinion that the claim of the complainant is not justified and merits no consideration.

The matter needs to be examined from another angle. Shri Bedi, the complainant, was a member of the Cooperative Society and the cost for the construction of these flats was to be borne from the (i) equal/proportionate contribution to be made by the Members and (ii) partly be raising loans from the DCHFC. There were no other assets or the source of funds for the completion of the project. In case there was any loss or saving the same had obviously to be shared proportionately by all the Members. For arguments sake in case any such claim of paying interest for delayed construction/completion of flats from any member of the Cooperative Society is admitted; the other members also became entitled for such a compensation. Under that given situation it is not understood as to who will bear the burden as the assets and liabilities of the Society were owned by each and every member equally. The Society was nothing but a "Common-wealth owned by all the Members."

I have also seen the by-laws of the Society which were placed on record. According to bylaws any member could come forward to share the responsibility of being a member of the Managing Committee and could have, held any office for running the day to day affairs of the said society. The complainant, Sh. Bedi had every right to offer his service for the welfare, of other members of the society including himself. It is also made out from the by-laws of the society that the members of the Managing Committee were to receive no renumeration. In this regard the provision under Item 26 at page 13 of by-laws is re-produced for ready reference: "No member of the Committee shall receive any remuneration for his work as a member of the Committee. No member of the Committee shall vote in any application for a loan in which he himself is interested as a borrower nor shall stand surety for a loan to another member of the Committee."

Shri Bedi, being an enlightened Member of the said Society was aware of all the above factual provisions and was supposed to be conscious of his own rights as well as duties viz-a-viz the Cooperative Society. By resorting to this type of litigation I am of the considered opinion that Shri Bedi has wasted useful time of this Commission and that he should be burdened with a cost of Rs. 2,000/- . Dr. (Mrs.) Avtar Pennathur, Member The record has been examined by me and I had heard the arguments advanced by the complainant at length. I have perused the orders rendered both by the Hon''ble President, Shri R.N. Mittal, J. and Shri B.L. Anand, Hon''ble Member. All this leads me to the inescapable conclusion that Shri R.R Bedi, the complainant has suppressed vital information which has a bearing on his complaint against Kedar Cooperative Group Housing Society Ltd., of which he is a member, and through which he got the flat, subject matter of the complainant.

I am in agreement with the views expressed by the Hon''ble President and the Hon''ble Member with regard to refund of Rs. 15,000/- on account of change of outer finish of the complex from Dholpur to crushed Dana Stone and refund of Rs. 9,500/- which is alleged to have been demanded and received by the Society illegally after having received the full consideration of the flat. Both these claims of the complainant stand rejected. With regard to the complainants'' claim of interest for late delivery of flat from 1.1.89 to 1.9.90. The facts supressed by the claimant have a bearing on this issue. He is silent both in his complaint and in his affidavit about the fact that substantial loan i.e. Rs. 85.25 lacs was raised by the Society from Delhi Cooperative Housing Finance Society Ltd. (DCHFS). The third instalment (if loan of Rs. 26.10 lacs was released by DCHFS only on 18.6.89. How does the complainant expect the society to carry on with construction in the absence of funds? How could the project be completed by December''88, when it is only after six months from that period that the society received the third instalment on 18.6.89? The complainant has claimed interest from 1.1.89. Second point relevant to the issue of interest is the fact that the flats were ready for possession in March 1990. In fact several members took possession of their flats during March''90. The flats were allotted through a draw of lots held on 8.3.90. The society had written to the complainant followed by reminders to take possession of flat A-304 allotted to him after meeting his obligations. In view of the above, discussed facts I am of the considered view that the onus of any delay in getting possession of the flat after 8 March 1990 falls on the complainant. As such the complainant is not entitled to any interest. The complaint be dismissed and the complainant be burdened with Rs. 2,000/- as costs for indulging in unnecessary and avoidable litigation. Complaint dismissed.