PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT
1) The Complainants by this complaint have prayed that the Opposite Party be directed to permit the Complainant Nos.2 to 5 to carry out internal repairs such as, plastering, painting, electrical work, etc. for maintaining Flat No.1 on the 1st Floor, situated in the premises of Shirin Building of Daulat Shirin Co-op Hsg. Society Ltd. in proper habitable condition. It is also prayed that the Complainants No.2 to 5 be awarded compensation of Rs.10,000/- each for mental harassment and physical inconvenience caused to them and cost of Rs.10,000/- from the Opposite Party.
2) According the Complainants, the Complainant No.1 is a Voluntary Consumer Organization which has been espousing the cause of consumers. The Complainant Nos.2 to 5 are the actual aggrieved consumers. The Complainants submitted that this complaint pertains to deficiency in service and unfair trade practice rendered by the Opposite Party. It is alleged that the Complainant Nos.2 to 5 are residing in Flat No.1 on the 1st Floor of Shirin Building in the Opposite Party Society. They are in exclusive possession and occupation of the said flat. It is alleged that the aforesaid flat is in the name of Mr. Charles Anthony Thurlow who was a member of Opposite Party Society. Mr. Appuswamy was residing with the said Mr. Charles as member of the family and it is reflected from the Ration Card of Mr. Charles. In the said Ration Card Mr. Appuswamy is noted as a cusine of Mr. Charles Thurlow. Copy of the said Ration Card is marked as Exh.‘A’. It is alleged that the marriage of Appuswamy with the Complainant No.2 took place on 14/03/1976 in Flat No.1 of Shirin Building of Opposite Party Society. In the marriage certificate there is mention to that effect. The copy of it is marked as Exh.‘B’. Out of the wedlock of Mr. Appuswamy and Complainant No.2 three children were born who are Complainant Nos.3 to 5 on the aforesaid address as mentioned in para 2(e) of the complaint and the copies its proof are at Exh.‘C’ to ‘E’. The Complainant Nos.3 to 5 were borned and bought up at the address flat no.1 of Shirin Building. It is submitted that Mrs. Charls Thurlow expired on 05/07/1997. The copy of Death Certificate of him is at Exh.‘F’. It is submitted that Mr. Charls was not married and did not have any children. The only surviving legal heirs were Appuswamy, his wife i.e. Complainant No.2 and their children i.e. Complainant Nos.3 to 5 and all of them were residing with late Charls Thurlow as members of the family. It is submitted that Mr. Appuswamy expired on 23/04/2004. The copy of death certificate of him is marked as Exh.‘G’. It is submitted that the Complainant Nos.2 to 5 as stated above are in exclusive possession of flat no.1 of Shirin Building.
3) According to the Complainants after the death of Mrs. Charles and Mr. Appuswamy the Opposite Party kept accepting maintenance from the Complainant Nos.2 to 5. The copy of bill dtd.01/10/2006 and receipt dtd.05/11/2006 show that the Opposite Party accepted the payment from the Complainant Nos.2 to 5 of maintenance charges. The copy of it is at Exh.‘H’. It is submitted that as Mr. Charles Thurlow expired intestate. Mr. Appuswmay filed a Testamentary Petition in the Bombay High Court. Before the said petition could be decided Mr. Appuswamy also expired, hence, Mr. Appuswamy’s wife and their children i.e. Complainant Nos.2 to 5 brought themselves on record in the said Testamentary Petition. The Opposite Party also intervened in the said petition, claiming title to the said flat. The Hon’ble High Court by order dtd.14/12/2007 in Testamentary Petition in 954 of 1999 held that the Complainant Nos.2 to 5 could continue to reside in the said flat on furnishing an undertaking that they would not create any third party interest therein till the disposal of the petition. The copy of the order dtd.14/12/2007 which is Exh.‘I’.
4) According to the Complainants during the pendency of Testamentary Petition the Opposite Party sent a bill dtd.01/07/2007 for usual maintenance charges of Rs.4,447/- and also additional bill of further amount of Rs.5,000/- towards the legal fees incurred by the Society to intervene in the Testamentary Petition. It is submitted that the maintenance charges were paid by the Complainant Nos.2 to 5 but they refused to pay the legal charges incurred by the Society. The receipt of the said amount dtd.08/09/2007 and the copies of the bills are marked collectively as Exh.‘J’. Thereafter also the Complainant Nos.2 to 5 paid the maintenance charges. The copy of proof of payment is marked collectively as Exh.‘K’.
5) According to the Complainant, the Opposite Party thereafter refused to accept maintenance charges. It is submitted that it is believed by the Complainants that the maintenance charges are not being collected from any of the members as the society is getting sufficient income from the installation of cell phone tower which is adequate to cover maintenance cost. According to the Complainants, the Complainant Nos.2 to 5 are thus, legal heirs and beneficiaries of late Charles Thurlow and Appuswamy. It is submitted that by virtue of orders by Bombay High Court the Complainant Nos. 2 to 5 are entitled to use and occupy Flat No.1 on the 1st Floor of Shirin Building. It is submitted that as the Complainant Nos.2-5 have been paying the monthly maintenance charges as stated above and they are thus, consumer of the Opposite Party.
6) According to the Complainants, the said Flat No.1 on the 1st Floor of Shirin Building is in an extremely bad state and requires urgent internal repairs such as, plastering, painting, redoing of internal electric wiring, etc. It is submitted that as a consequence of the bad condition of the flat there is leakage of water in the premises of Punjab National Bank which is situated below the flat in which the Complainant Nos.2 to 5 reside. It is alleged that the bank has also repeatedly complaining about leakage. The copy of one such letter dtd.30/03/2011 sent to the Opposite Party is marked as Exh.‘L’. It is submitted that as per the relevant Model Bye-Law No.160(b) all repairs which have not covered by Bye-Law No.160(a) shall be carried out by the members at their cost. It is submitted that the failure to attend to the leakage constitutes a deficiency in service. According to the Complainants No.2 to 5 they were willing to get the internal work to their flat carried out at their expenses with a view to preserve the said flat and solve the problem of leakage from their premises into the bank premises on the ground floor. It is alleged that the Complainant Nos.2 to 5 had sent letter dtd.29/10/2010 to the Opposite Party seeking permission to carryout internal repairs copy of which is marked at Exh.‘M’. It is submitted that the Opposite Party refused to acknowledge hand delivered of the said letter therefore, they sent through courier. According to the Complainant Nos.2 to 5 meanwhile they attempted to get the internal repairs in their flat carried out at their own expenses. However, the Opposite Party physically obstructed the workman and refused to allow them to enter the building, and hence, repairs could not be carried out.
7) According to the Complainants the Complainant Nos.2 to 5 then sent reminder dtd.09/04/2011 seeking permission to carryout the internal repairs. The copy of the said reminder is marked at Exh.‘N’. It is submitted that the Opposite Party sent reply dtd.08/04/2011 refusing to grant permission to carryout repairs on the ground that the matter of ownership of the flat is sub-judice. The copy of the said letter is marked at Exh.‘Q’. It is alleged that as the reason given for refusal of carrying out repairs was not correct the Complainant Nos.2 to 5 sent a letter dtd.13/04/2011 disputing the correctness of the contentions of the Opposite Party. By the said letter the Opposite Party was also informed that the Society and its Managing Committee would be held responsible and liable to compensate the Complainant Nos.2 to 5 for the deficiency in service and illegal harassment being mitted out by them. According to the Complainant Nos.2 to 5, the copy of the said letter is marked as Exh.‘P’. The Opposite Party, however, by letter dtd.27/04/2011 refused to grant permission to the Complainant Nos.2 to 5 to carryout internal repairs. The copy of the said letter is marked as Exh.‘Q’.
8) According to the Complainants the refusal of permission to carryout internal repairs is illegal, unjustified and an attempt to harass the Complainant Nos.2 to 5 to make them quit and usurp the property. It is submitted that the issue of repairs is not sub-judice as contended by the Opposite Party. According to the Complainants, the carrying out internal repairs does not affect the dispute regarding the title or the inheritance to the property and would not result in creating of any third party interest in the property. It is thus, submitted that as the Opposite Party is not allowing the Complainant Nos.2 to 5 to carryout internal repairs the said action on the part of the Opposite Party is arbitrary and amounts to deficiency in service. The Complainants have therefore, prayed for the reliefs mentioned in para no.1 of this order.
9) The Opposite Party contested the claim by filing written statement. It is contended that the Complainants have not disclosed any valid cause of action and the complaint itself false, frivolous, vexatious and not maintainable and the same is liable to be rejected. It is contended that the complaint is bad-in-law as the Complainants are not the members/owners of the flat in Daulat Shirin Co.op. Hsg. Society. It is submitted that the Complainants Nos.2 to 5 are not therefore, consumer as per Sec.2(d) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act). Nor do they come under the definition of a member of Maharashtra Co-op. Society Act, under Sec.2(c) of the said Act. It is submitted that as the issue of ownership is sub-judice and pending before the Hon’ble High Court, the complaint should be dismissed. The Opposite Party has denied all the parawise allegations made in the complaint and contended that the Opposite Party has rightly rejected the permission. It is submitted that the complaint is barred by limitation as the cause of action arosed on 08/04/2011. The Opposite Party has thus, prayed for dismissal of the complaint.
10) The Complainants have filed pursis on 28/10/2013 stating that they have filed the complaint alongwith all supporting documents and affidavit in support thereof and they do not want to file any further affidavit or rely on any documents. The Opposite Party has filed the affidavit of Mr. Iqubal Zumani, Secretary of the Opposite Party. The Complainants have later on submitted the report of Architect - Mr. Kishore H. Parker, dtd.03/08/2014 showing the nature of repairs the cost involved and the time expected to be carried out the said repairs. Both the parties filed their written arguments. We heard oral argument of ehangir Gai, Ld. Representative of the Complainants and Shri. Manoj Kathe, Ld.Advocate for the Opposite Party.
11) The Representative of the Complainants made submissions that the complaint filed by the Complainants is maintainable against the Opposite Party in view of the judgment in the case of Secretary Thirumurragan Co-op. Agriculture Society V/s. M. Lalitha (death) Through LR, reported in (iii) CPJ (1)(SC) and in the case of Virendra Jain V/s. Alakhnanda Co-op. Group Hsg. Society Ltd. reported in (2013) 2 SCR 1058. He also made submission that as the Opposite Party had accepted maintenance charges from Complainant Nos.2 to 5 the Complainants can be held as consumers of the Opposite Party. It is also submitted that the internal repairs of the flat in question can be carried out by the Complainant Nos.2 to 5 and the same is required to be carried out by them as per the Model Bye-Law No.160(b). He made submission that the Complainant Nos.2 to 5 by repairing the flat are not creating third party interest and as they are doing the said repairs at their own cost as such no prejudice would be caused to the Opposite Party. Shri. Jehangir Gai the Representative of the Complainants further submitted that the Opposite Party by letter dtd.09/04/2011 asked the Complainant No.2 to obtain the Courts order to undertake any renovation/repair of flat no.1 of Shirin Building. He thus, submitted that Opposite Party’s contention is that it requires the order of the Court granting permission of repair of the flat no.1 which is in possession of the Complainant Nos.2 to 5. He made submission that as the act of the Opposite Party as alleged in the complaint is deficiency in service on the part of the Opposite Party. The reliefs claimed by the Complainants against the Opposite Party may be granted.
12) Shri. Manjoj Kathe, Ld.Advocate for the Opposite Party made submission that the Complainants have not complied with the provisions of Sec.164 of the Maharashtra Co-op. Society Act, 1960 as held in the case of Suprabhat Co-op. Hsg. Society. V/s. Pan Builders, reported in 2002 (3) Maharashtra Law General Pg. 837. He also made submission that the Complainant Nos.2-5 are not the members of the society and therefore, the complaint filed by the Complainants is not maintainable. Shri. Kathe, Ld.Advocate also submitted that as the matter of Testamentary Petition is pending before the Hon’ble High Court this complaint cannot be entertained. He thus, submitted that the complaint filed by the Complainants is liable to be dismissed with cost.
13) From the facts of this case it appears that it is undisputed that the Complainant Nos.2 to 5 are in exclusive possession of the flat in question. It also appears from the order of the Hon’ble High Court in Testamentary Petition No.54/1999 that the Hon’ble High Court accepted the undertaking of Complainant Nos.2 to 5 as claimed by the Opposite Party’s Advocate Mr. Tailor. As per the said undertaking the Complainant Nos.2 to 5 had undertaken that they shall not create third party interest or part with the possession of the flat in question. The Complainant’s No.2 to 5 had paid regular maintenance charges in respect of the flat in question to the Opposite Party after the death of Charles Thurlow and Mr. Appuswamy is also not disputed, thus, we hold that the Complainant Nos.2 to 5 are covered under the definition of consumer as provided under Sec.2(d) of the Act. The objection therefore raised by the Opposite Party that the Complainants not being the consumers of the Opposite Party and the complaint itself is not maintainable can not be accepted. The submission therefore, made by the Ld.Advocate for the Opposite Party that the Complainant Nos.2 to 5 are neither owners of the flat in question nor members of the Opposite Party Society and therefore, the complaint filed against the Opposite Party is liable to be dismissed also cannot be accepted. The submission of the Ld.Advocate for the Opposite Party that for want of issuance of notice under Sec.164 of the Co-op. Society Act, the present complaint cannot be entertained also cannot be accepted as the Complainant Nos.2 to 5 have sought the remedy as provided under the Consumer Protection Act, 1986. The Hon’ble Supreme Court in the case relied by the Representative of the Complainants reported in I (2004) CPJ 1 (SC) (Cited Supra) held that the provisions of the act shall be in addition to the act and to any other provisions of any other law for the time being inforce and having due regard to the scheme of the act and purpose sought to be achieved to protect the interest of the consumers under Sec.3 the remedies provided can be availed of unless there is clear bar under other Acts. We therefore, hold that the said submission of the Advocate for the Opposite Party is without substance. Furthermore, the Complainant No.2 had issued notice to the Opposite Party dtd.13/04/2011 requesting to allow her to make repairs to the flat in question or otherwise the Opposite Party will be liable for the consequences. Thus, we are of the view that as the complaint is filed after two months of issuance of such notice the bar as provided under Sec.164 of the Co-op. Society Act will not attract for dismissal of this complaint. It is pertinent to note that the cause of action for this complaint is continuing cause of action and therefore, the objection raised by the Opposite Party that the complaint is barred by time also cannot be said legal and proper. As noted above the Opposite Party by letter dtd.09/04/2011 had informed the Complainant No.2 that without written permission or consent of the Court the Opposite Party cannot permit any repairing/renovation. It appears that the repair sought by the Complainant Nos.2 to 5 are essential to the flat in question for having the premises in safe and habitable condition. The Complainants have also placed on report of Architect – Shri. Kishore Parker to that effect. The Complainants have specifically come out with the case that they are willing to do the internal repairs of flat in question at their own cost we therefore, hold that no prejudice and harm would be caused to the Opposite Party. In our view that the Complainants prayer in para 14(a) of the complaint needs to be allowed. We hold that as the permission sought by the Complainant Nos.2 to 5 as regards internal repairs to the Opposite Party is genuine the Opposite Party ought to have granted the same to them. As the Opposite Party declined to grant the permission sought by the Complainant Nos.2 to 5 in our view that act on the part of the Opposite Party is deficiency in service in respect of the Complainant Nos.2 to 5. In our view that the Complainants prayer in para 14(a) of the complaint needs to be allowed. We therefore hold that the Opposite Party is guilty of deficiency of service and is liable to pay compensation for mental harassment and inconvenience caused to the Complainant Nos.2 to 5 to the tune of Rs.10,000/- (in total) and cost of Rs.5,000/- towards this complaint. In the result we passed the following order –
O R D E R
i. Complaint No.199/2012 is partly allowed against the Opposite Party.
ii. Opposite Party is directed to permit and allowed the Complainant Nos.2-5 to carry out internal repairs such as, plastering,
painting, electrical works, etc. as per the report placed on record of Architect Mr. Kishore Parker, dtd.03/08/2014 for
maintaining Flat No.1, 1st Floor, Shirin Building of Daulat Shirin Co-op. Hsg. Society Ltd. in proper habitable condition at the
cost of Complainant Nos.2 to 5.
iii. Opposite Party is directed to pay Rs.10,000/- (Rs. The Thousand Only) to the Complainant Nos.2 to 5 for mental
harassment and physical inconvenience caused to them.
iv. Opposite Party is directed to pay cost of Rs.5,000/- (Rs. Five Thousand Only) to the Complainant Nos.2 to 5.
v. The Opposite Party is directed to comply with the aforesaid order within one month from the date of service of this order.
vi. Certified copies of this order be furnished to the parties.
