DISTRICT FORUM-I,

                             MISCELLANOUES APPLICATION NO.23 OF 2012

                                                IN

                             CONSUMER COMPLAINT No.735 of 2011

ARGUED BY : Sh.S.S.Khetarpal,  Counsel for complainant.

                        Sh.Rajiv Sharma, Counsel for OP No.1.

                       Sh.Jatinder Singh, Govt. Pleader for OP No.2.

Dated the 13^th day of December, 2012

                                                O R D E R

1.                The Sargodha Coop. Housing Building (1^st) Society Ltd. – complainant has filed an application for inclusion of 13 non-allottee members of the society for refund of retained amount by the Chandigarh Housing Board.

2.                We have gone through the material on record and heard the arguments addressed by the learned Counsel for the parties.

3.                It has been urged by the learned Counsel for the complainant that the complainant society has filed a complaint No.735 of 2011 for refund of retained amount of interest to the tune of Rs.6,84,273/- in respect of 42 non-allottee members along with interest @ 8% p.a. on the retained amount from 10.2.1998 till actual refund with prayer to award compensation/cost of litigation. He has argued that Chandigarh Housing Board had allotted land to the society for 74 eligible members leaving behind 55 members, who had not deposited difference of the amount of earnest money at the enhanced rate of land @Rs.2500/- per square yard and had requested for refund of their earnest money with interest. The Chandigarh Housing Board refunded earnest money only in respect of 42 members but retained the amount of interest deposited by them. He has argued that the complainant society could not lay its hands on the letter of Housing Board, wherein, the earnest money of 13 members was refunded. Now from the letter No.HB/CAO/AOII/2012/1187 dated 23.1.2012 addressed to the President of the society, it is clear that the factum of retention of amount of 13 remaining members stand admitted by the Chandigarh Housing Board, therefore, the retained amount in respect of 55 non-allottee members in total is now to be refunded to the society. He has argued that the remaining 13 members have the similar interest and if the application is allowed it shall minimize the litigation.

4.                On the other hand, the learned Counsel for OP No.1 has argued that the refund of earnest money in respect of 55 members was paid way back in the year 2001 and the complainant society has not furnished the material facts with regard to the payment of the earnest money. He has argued that in the reply filed by OP No.1, it has been clearly stated that the cheque, which was sent to the society for Rs.13,81,252/- on 23.1.2012 included refund of total 55 members and not 42 members and the said cheque was returned by the society during the hearing of this case on 30.1.2012. He has argued that despite this, OP No.1 had refunded the amount of 13 non petitioners on 16.2.2012 by way of cheque No.017586 for Rs.3,02,443/- to the President of the society for disbursement to its individual members.

5.                We have given out thoughtful consideration to the rival contentions. A perusal of the complaint itself shows that the complainant society has made a prayer for refund of the amount of Rs.6,84,273/- in respect of 42 members of the society along with interest. Now when the complaint is at the stage of final arguments, instead of moving any application for amendment of the complaint, the complainant society wants to include 13 non-allottee members of the society for refunding of the retained amount by OP No.1 in that complaint No.735 of 2011. This Forum cannot grant any relief to the 13 non-allottee members of the society for refund of the amount in the miscellaneous application, in the absence of any plea to this effect in the main complaint under Section 12 of the Consumer Protection Act, 1986. We are of the view that even if the 13 non-allottee members have the similar interest and as per reply of OP No.1, it has already refunded the amount to 13 non-allottee petitioners still they cannot be included for the refund of the retained amount by OP No.1. In our view, such an order cannot be passed in the application without claiming relief in the main complaint. Accordingly, the application is devoid of any merit and the same is dismissed, leaving the parties to bear their own costs. The miscellaneous application be tagged with the main complaint.

6.                Now for arguments in the main complaint, listed for 4.1.2013.