Complaint no. 285/2013

                                          Filed on. - 14/08/2013.

                                          Decided on. - 20/01/2014

Mr. Manmohan Ramswarup Goyal

(Director of Shasheel Construction Pvt., Ltd.,)

R/at  Brabourn Stadium,

87, Veer Nariman Road, Churchgate,

Mumbai 400 020.                           .. Complainant

               Versus 

Secretary / Chariman

Through Nilgiri Gardens CHS Ltd.,

Amar Marg, Uran Road, Sector 24,

C.B.D. Belapur, Navi Mumbai 400 614.         .. Opponents

BEFORE – HON’BLE PRESIDENT MRS. S. S. MHATRE

            HON’BLE MEMBER MR. S. S. PATIL

Present –  Ld. Adv.Varsh Vaidhya for Ld. Adv Vijay Shinde

                 for Complainant.

                 Ld. Adv. Shivajirao Masal for Opponent.

Order below application of the Opponent

on Maintainability of the complaint.

        (20/01/2014)

Per HON'ABLE MEMBER MR. S.S.Patil.

1.         This is an application filed by the Opponent raising preliminary issue of maintainability of this complaint on the following grounds:-

The Opponent has raised the point that M/s. Shasheel Construction & Development Co., Pvt., Ltd., is a member (of this Society) since its formation i.e since 1997.  The Opponent has further alleged that, though the said M/s. Shasheel Construction & Development Co., Pvt., Ltd.,is a member of the society, it (Shasheel Co., for brevity) has not paid a single penny to the Opponent society towards its maintenance, repair and other service charges. The said Shasheel Co., has kept flat no. 301, in D2 building vacant.  As it is being vacant and it is not maintained properly it was badly damaged. Therefore considering the interest of other members in D2 building, and to safeguard the building as whole, the Opponent carried out major repair work and structural work in the said flat.

2.         As on 19-08-2013  the total amount due from M/s. Shasheel Co., was Rs. 7,80,433/-.  The Opponent sent various letters and notices to the said Shasheel Co., to pay the outstanding dues.  However, there is no response from the said Shasheel Co., Therefore, the Opponent approached the Joint Registrar Co-operative Societies to issue certificate u/s. 101 of Co-operative Societies Act.  The said proceeding U/s. 101, Societies Act is pending.

3.         The Opponent has further stated that the bylaw of the society provides for expulsion of a member if he is permanent defaulter for continuous seven years. The Shasheel Co., ie the member is permanent defaulter since last 15 years.  Therefore the Managing Committee of the Opponent decided to put an agenda for discussing the issue of  expulsion of defaulter member in Annual General Meeting to be held on 18-08-2013 by the Opponent.  Therefore the Opponent issued notice to the said Shasheel Co., as per rule 29 of the Maharashtra Co.op Societies Act and bylaw no. 51 to remain present and give explanation.

4.         The Opponent has further alleged that M/s. Shasheel Construction and Development Co., Pvt., Ltd., has been dissolved and ceased to be a company.  The Complainant has himself claimed that he is the proprietor of the said company.  As per the agreement for sale dts. 16-04-1991, the said company had agreed to purchase the said flat and Opponent had admitted that Company to become its member. The Opponent has produced the status report of M/s. Shasheel Construction and Development Co., Pvt., Ltd., obtained from web portal of Ministry of Corporate Affairs.

5.         The Opponent has further averred that, taking into consideration the definition of the term, ‘consumer’, the present Complainant not being its member he has not availed any service of the Opponent.  Even the Complainant is not a beneficiary of service or he is not availing the services with approval of the first person.  Even the member, M/s. Shasheel Construction & Development Co., Pvt., Ltd., company is not in existence. It is alleged by the Opponent that taking into consideration the above said facts, the present Complainant is not a consumer within the meaning of Sec 2(1)(d) of the Consumer Protection Act, 1986, and hence the Complaint is not maintainable.

6.         The Opponent has further raised the point that, the Complainant has not come with the case of any defect in any goods or deficiency in service of the Opponent but has only challenged the notice issued by the Opponent calling upon M/s. Shasheel Construction and Development Co., Pvt. Ltd., to remain present for General Body Meeting to give explanation to General Body of the Opponent as to why the resolution of expulsion of membership should not be passed.

7.         The Opponent has further alleged that the services rendered by a housing Co-operative Society or work done by a housing         Co-operative is not a service within the meaning of definition of the term ‘service’.  Therefore the Opponent is not a service provider.

8.         The Opponent has further raised one more preliminary issue that Sec 91 of M.C.S Act provides that a dispute be redressed in     Co-operative Court.

9.         Finally the Opponent has prayed that the above issues of maintainability be decided and the complaint be dismissed for non maintainability with heavy cost of Rs. 2 lacs.

10.       The Opponent has attached the Xerox copies of the following documents in support of his application on non-maintainability of this complaint.

a) Registration certificate of Shasheel construction.

b) Share certificate of Shasheel Construction.

c) Agreement for sale dtd. 16-04-1991.

d) Statement of ledger account of M/s. Shasheel construction.

e) Status report and Shasheel Construction company.

f) Citation of Hon. Supreme Court.

11.        The Complainant was directed to file his reply to the application of the Opponent on non-maintainability of the complaint but the Complainant did not file his reply but filed copy of judgment of the Hon’ble National Commission in Agarwal Grain Syndicate V/s. Shaskiya Vasahat Grahak Sahakari Sanstha Maryadit which is not relevant to the Case in hand.

12.        We heard the Ld. Adv., for both the parties and perused the papers filed by both of them and our findings are as follows:-

M/s. Shasheel Constructions and Development Co., Pvt., Ltd., is the member of Opponent Society i.e the flat in question is in the name of M/s. Shasheel Constructions and Development Co., Ltd., However, this fact was suppressed by the Complainant in his Complaint and it is claimed that, he is competent and authorized to institute the present complaint before this Forum.  But he has not given / produced any document to show that M/s. Shasheel Construction and Development Co., Pvt., Ltd., has authorised him to institute this proceeding nor he has stated as to how he is competent to file this complaint.

13.        The Opponent has produced the web document showing that the above Pvt., Ltd., Company M/s. Shasheel construction and Development Co., Pvt., Ltd., has been dissolved.  The Complainant has not only suppressed the fact but also mislead this Forum so far as his status as a Complainant in this case. Even, he is not residing in the premises D-2-301, Nilgiri Garden Co-op., Hsg., Society. It is seen from the clause title of the Complaint. Thus he is not a user or an authorised person to use these premises. We have perused the entire set of papers filed by Complainant but nowhere he has filed ay document to show that he has paid any consideration to avail the services of the Opponent.  Hence taking into account all these facts and circumstances of the case it is clear that present Complainant is not a consumer of the Opponent.

14.        In para 5 of the Complaint, the Complainant claims that he has purchased the said flat in the name of Shasheel Construction Pvt., Ltd.,  the proprietor is Manmohan Ramswaroop Goyal.  In first place the Pvt. Ltd., Company registered under companies Act is not a private entity.  The Complainant cannot be treated as the proprietor of the said company, hence the averment of the Complainant in this para that he is the proprietor and hence competent to file this complaint is not a correct averment as per law.  Consequently as said earlier the flat is in the name of Shasheel Construction Pvt., Ltd., Company. The Complainant is not using the flat and he has not paid any consideration to the Opponent, the Complainant is not a consumer within the meaning of term consumer as defined in sec. 2(1)(d)(ii) of Consumer Protection Act.,

15.        Further the Complainant has alleged the deficiency in service as he received a notice dtd. 30-07-2013, on 06-08-2013 stating that the  membership of the Complainant will be expelled under rule 29 Maharashtra Co-operative Societies Rule 1961 by law 51.  Here also the Complainant has mislead the Forum and stated that the Complainant would be expelled. In fact the notice is not against the Complainant but it is against its member i.e. Shasheel Construction Co., Pvt., Ltd., Therefore here also the Complainant has mislead this Forum. The member i.e Shasheel Construction Co., Pvt., Ltd., not been paying its dues more than 7 lacs Rs. They are to be recovered from the member.  The notice is as per the provision of Co-op Societies Act and it is for calling upon its member for default in payment of its dues.  Therefore if the Co-op., Society is taking steps as per law to recover its dues, it cannot said to be the deficiency in service.  Therefore, the allegations of deficiency in service on the part of the Opponent are not substantiated at all.  Hence taking into consideration the above facts we find no merits in the complaint and hence we pass the order as follows;-

-: FINAL ORDER :-

1. An application of the Opponent on maintainability of the complaint is allowed.  Consequently the complaint is dismissed for want of merits.

2. There is no order as to cost.

3. Copies of the above said order be supplied to both the parties free of cost.

Date :- 20/01/2014.

Place :- Kokan Bhavan, Navi Mumbai.

                      (S.S.Patil)      (S.S.Mhatre)

                     Member         President

              Addn. Thane Dist. Cons. Disputes Redressal Forum.