PRESENT:      Sh.J.C.Kapoor, Adv. for complainant

Sh.Rajeshwar Singh, Adv. for OPs No.1 and 2.

Ms.Ritu Jain, GP for OP-3.

                              ---

PER LAKSHMAN SHARMA, PRESIDENT

          Sh.Pawan Arora has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OPs No.1 and 2 be directed  to :-

i)              To pay Rs.1,22,107/- along with interest @ 24% p.a. 

ii)         To pay a sum of Rs.1,00,000/- as compensation for mental agony and harassment.

iii)    To pay a sum of Rs.22000/- as litigation costs.

2.        In brief the case of the complainant is that being member of OP-Society, he was allotted flat No.2226, Category B constructed on plot No.4 in Sector 50-C, Chandigarh.  OP-3 issued order dated 23.04.04 (Annexure C-1) directing all the Co-operative House Building societies to charge interest @ 12% p.a.  on the dues to be paid by the defaulter members with immediate effect. According to the complainant, OPs No.1 and 2 by ignoring the said order issued by OP-3 charged interest to the tune of Rs.38,664/- @ 18% p.a. vide letter dated 14.12.2005 issued by OPs No.1 and 2 instead of Rs.25,776/- calculated @ 12% p.a.  In this way, OPs No.1 and 2 have charged Rs.12,888/-  i.e. at the time of taking the possession of the flat. Similarly, the cost of flat as intimated vide letter dated 14.02.2006 (Annexure C-3) by OPs No.1 and 2 is Rs.12,81,128/- but they have charged Rs.13,62,897/- i.e. Rs.81,769/- in excess during the span of 18 days.   According to the complainant, he is also entitled to interest on the amounts of Rs.12,888/- and Rs.81,769/- for the period from 06.03.06 to 31.08.2008 which comes to Rs.3737/- and Rs.23,713/- respectively. In this way, he is entitled to recover a total sum of Rs.1,22,107/- from OPs No.1 and 2 which has not been returned to him despite his repeated requests. According to the complainant he made representations dated 31.10.2006 & 24.10.2007 to OP-3 regarding utilization of the contribution made by the members of the society upon which a direction vide letter dated 06.11.2006 and 19.11.2007 (Annexure C-4 and C-5) was issued to OPs No.1 and 2 to inform the members regarding the same but OPs No.1 and 2 failed to give any reply.   According to the complainant, he also served a legal notice dated 30.08.2008 (C-6) seeking refund of the amount of Rs.1,22,107/- but to no effect. According the complainant, non refund of Rs.1,22,107/- to him amounts to deficiency in service and unfair trade practice. In these circumstances, the present complaint was filed seeking the reliefs mentioned above.

3.        In the reply filed by OP-1, it has been pleaded that the order dated 24.04.2004 issued by the Registrar, Cooperative Societies has no relevance for the present controversy as the societies who are responsible for the construction of flats are free to deal with defaulters in any manner in consonance with the provisions contained in the Punjab Cooperative Societies Act, 1961 and this was necessary to keep their regularity in making payments.  The society cannot discriminate with Members who are meticulous in making their payments to the society by taking loans from financial institutions and are paying compound interest on the loans taken by them.  It has been pleaded that it was never decided that interest shall be 12% p.a., therefore, the calculations made by complainant are of his own imagination.  The societies have unanimously decided that the penal interest shall be charged in consonance with the Chandigarh Housing Board @ 20% p.a. and other factors and, thus the society has charged only 18% p.a. which is less than the interest charged by Chandigarh Housing Board.  It has been pleaded that the letter dated 14.12.2005 is meaningless as the complainant was made aware along with other members of the society regarding the penal interest vide letter dated 21.03.2003 (Annexure R-1/1).  It has been pleaded that the complainant is a defaulter on all occasions, therefore, OP issued 13 letters to him to pay the due amount to him towards the society for the construction of the houses. It has been denied that the cost of the flat was Rs.12,81,128/- and the cost of the flat was excluding the interest on cost of the land. Therefore, no excess amount has been charged from the complainant. Otherwise also, the cost of the flat was only tentative cost which could increase or decrease depending upon the price index. It has been denied that the complainant made any representation regarding utilization of the contribution made by Members and even no such direction was given by OP-3 but OP-1 at its own has circulated the utilization of the amount deposited by the members of the society vide letter dated 31.12.2006 (Annexure R-1/2). It has further been denied that any representation was sent by the complainant to OP-2. However, OP-society sent the utilization certificate to all the members vide letter dated 29.11.2007 (Annexure R-1/3). In these circumstances, according to OP-1,  there is no deficiency in service on its part and the complaint deserves dismissal.

4.        OP-2 did not file reply and adopted the reply filed by OP-1.

5.        In its separate written statement, OP-3 admitted most of the contents of the complaint and pleaded that there is no deficiency in service on its part and the complaint qua it deserves dismissal.

6.        We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits and the written submissions filed by complainant. 

7.        It has been argued by the learned counsel for the complainant that the interest on the delayed payment has been charged at the higher rate than 12% p.a. in violation of the standing order issued by Registrar, Cooperative Societies, Chandigarh (OP-3) vide its letter dated 23.04.2004 (Annexure C-1) which amounts to deficiency in service. Our attention has been drawn to the standing order dated 23.04.2009 (Annexure C-1) issued by Registrar, Cooperative Societies, Chandigarh  (OP-3) whereby all the Cooperative Societies have been directed to charge interest @ 12% p.a. on the delayed payment whereas vide letter dated 14.12.2005 (Annexure C-2) sent by OPs No.1 and 2 to the complainant, a demand of Rs.80,554/- as principal amount and Rs.38,664/- as interest  has been made. The rate of interest is calculated @ 18% p.a. Otherwise also, in the written statement filed by OP-1 in para No.3, it has been admitted that the rate of interest is being charged @ 18% p.a. as it is in consonance with the decision taken by All Cooperative Societies in Chandigarh. Thus, admittedly, the rate of interest has been charged on delayed payment at the rate more than 12% which is higher than the rate of interest mentioned in the standing order dated 23.04.2009 (Annexure C-1). The standing order (Annexure C-1) has been issued by OP-3 under Rule 45 of the Cooperative Societies Rules and the said standing order is binding on all the societies. So the demand and realization of interest at the rate more than 12% p.a. amounts to deficiency in service as the OPs No.1 and 2 have recovered a sum of Rs.12,888/- as interest on the delayed payment.

8.        The next point argued by the learned counsel for the complainant is that price of the flat is being charged in excess to the resolution passed by the Society on 10.12.2005. According to the complainant, he was required to pay the price of the flat amounting to Rs.12,81,128/- whereas now a demand is being made for Rs.13,62,897/-. Annexure R-1/1 is the letter sent by OPs No.1 and 2 to the complainant. It has been mentioned that the complainant shall have to pay Rs.4,75,480/- as cost of the land whereas a sum of Rs.7.50 lacs was required to be charged as cost of the construction. Later due to increase of the price of the material, a resolution was passed by the general body of the society that the cost of the construction recoverable for B-Type houses shall be Rs.8,86,989/- in addition to this, the allottees of B-Type flats shall have to pay Rs.37,000/- + Rs.6,000/- as misc. charges. Thus by reading both the documents together, the cost of the flat comes to Rs.12,68,480/- whereas the complainant admittedly has paid a sum of Rs.13,62,897/-, the remaining amount being the amount of interest and misc. charges. In these circumstances, the price of the flat is not being charged in excess to the resolution passed by the general body of the society.

9.        It was argued by the learned counsel for the OPs that the complainant is barred by limitation as per section 24-A of the Consumer Protection Act, 1986 as the maximum period for filing the complaint is 2 years.  According to the learned counsel for the OPs, the last payment was made by the complainant on 05.03.2006 whereas the complaint was filed on 13.10.2008 i.e. beyond the period of two years from the date of cause action. Therefore, the complaint is barred by limitation. It has further been pleaded that no application to condone the delay has been filed on behalf of the complainant.

10.       On the other hand, the learned counsel for the complainant has argued that the complainant has written repeated letters to OP-3. In these circumstances, the complaint is within the period of limitation. To our mind, the argument advanced by the learned counsel for the complainant has no force. Writing of repeated letters to the OP-3 would not extend the period of limitation as has been held in the K.V.Rajalakshmiah Setty and another Vs. State of Mysore and another, 1967 AIR (SC) 993. So the complaint filed by the complainant is barred by limitation.

11.       In view of the above findings, this complaint is dismissed with no order as to costs. The parties are left to bear their own costs.

12.       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced                                        

22.01.2010