Per Shri Dhanraj Khamatkar – Hon’ble Member:
These two appeals take an exception to an order passed by the Consumer Disputes Redressal Forum, Central Mumbai District dated 16.04.2008 in Consumer Complaint no.776/2003. Appeal No.700/2008 is filed by the original Complainants – Smt.Indu A. Doshi & Anr. for the enhancement of compensation ordered by the Forum below and Appeal No.757/2008 is filed by original opponents – Sambhav Tirth Co-op. Housing Society Ltd. & Ors. for setting aside the order passed by the Forum below. Since the order challenged in both the appeals being same the Appeals are clubbed together and common order is passed.
The facts and circumstances leading to these appeals can be summarized as under:
The original Complainant, i.e. Smt.Indu A. Joshi and Anand B. Joshi, owns a Flat No.2-C(1) in Sambhav Tirth Co.op. Housing Society Ltd. and Opponent Nos.2, 3 and 4 are the office bearers of the Opponent no.1. The Complainant No.1 had purchased the said flat in the year 1977 and she became the member of the opponent no.1 Society in the year 1984. The opponents demanded the maintenance charges from the original Complainant. They have increased the amount of maintenance charges from Rs.343.86 to 578.86 plus Rs.155/-. The Complainant enquired about the increase in the charges, but they have avoided to give reply. On 10.07.1989 the opponents threatened the original Complainant to initiate the proceeding for the recovery of outstanding amount under section 101 of the Maharashtra Co-operative Societies Act. The Complainant could not get a satisfactory reply from the opponents. The Complainant wanted to sell the flat and for selling the flat she requested for the N.O.C. from the Opponents, but Opponents have not given the N.O.C. and demanded the arrears of maintenance charges along with compound interest, N.O.C. fee and repair fund. The Complainants had paid the following amounts under protest:
(i) | ` 26,004.27 | 04/05/1998 | )Arrears till |
(ii) | `1,02,630.50 | 01/06/1998 | )30/06/1998 |
(iii) | ` 25,000.00 | 10/06/1998 | Transfer fee |
(iv) | ` 25,000.00 | 10/06/1998 | Building Repair Fund |
| `1,78,634.77 | | |
The Opponents have tried to cause mental agony to the Complainant and hence, Complainant has filed consumer complaint praying to return the amount which the opponents have unauthorisedly recovered from the Complainant.
District Consumer Forum after hearing both the parties has passed an order directing the Opponent no.1 Society to return the amount of Rs.25,000/- with an interest @9% per annum from 10.06.1998 till the realization of the amount, Rs.5,000/- for mental agony and Rs.3,000/- as costs. Aggrieved by this order the original Complainants have filed Appeal No.700/2008 for increase in the compensation ordered by the Forum below and the Opponents have filed an appeal for setting aside the order of the Forum below.
Admittedly, Sambhav Tirth Co.op. Housing Society Ltd. is a Co-operative Housing Society and Ms.Indu A. Joshi is the member of the Society. The original Complainant had purchased a flat in the year 1977 and started occupying the flat from the year 1984. It is the allegation of the original Complainant that the office bearers of the original opponent no.1 housing society had increased the maintenance charges of the Society from Rs.343.86 to Rs.578.86 plus Rs.155/-. From perusal of papers it is seen that the managing committee has passed resolution to increase the amount of the maintenance charges. There are 42 members in the Society. However, only original Complainant has objected to the resolution passed by the managing committee. It is the contention of the original Complainant that the managing committee has no right to pass such resolution, such resolution should have been passed in the General Body Meeting or in a Special General Body Meeting. It is the contention of the opponents that resolution passed by the managing committee was placed before the General Body meeting and General Body had approved the resolution of managing committee increasing the maintenance charges.
It is the contention of the Opponent Society that the original Complainant had not deposited the maintenance charges from 1977 to 1984, when she became the member. Legally speaking, even if the Complainant is not a member of the Society till 1984. She purchased the flat in the year 1977 and she becomes entitled to the maintenance charges from the year 1977. Further, it is the contention of the original Opponent Cooperative Housing Society that the Complainant had not paid the maintenance charges from 1987 to 1998. As against this, Complainant alleges that the Opponent Society had threatened her to initiate the proceeding under section 101 of the Maharashtra Cooperative Housing Societies Act. It is not on record whether the Opponent Society had initiated any such proceeding. Even if the Opponent Society initiated any such proceeding, it is not bad in law.
In a Cooperative Housing Society every member is legally responsible for paying the dues of the Society as per the demand. Further, it is the allegation of the original complainant that she wanted N.O.C. from the opponent society for the sale of the flat and at the time of sale of the flat for issuance of N.O.C. the Opponent Society had demanded the charges as explained in above paragraph. From perusal of the amount paid by the Complainant it is seen that the amount shown at serial nos.1 to 3 is a lawful payment. Only amount shown at serial (iv) is not admissible. However, the Opponent housing Society had recovered the amount from the original Complainant. The Forum below looking into facts and circumstances of the case has rightly ordered the Opponent Society to return the amount which is unauthorisedly recovered by the opponent housing society. Recovery of the amount which is not due constitutes deficiency on the part of Opponents. Apart from this there is no deficiency on the part of original opponents. The original complainant had not adduced any evidence for the enhancement of the compensation. The Forum below after taking into consideration the pleadings of both the parties has passed the impugned order. We do not find any substance in the appeals filed by the original complainant and original opponents. We hold accordingly and pass the following order:
O R D E R
(i) Appeal Nos.700/2008 and 757/2008 are hereby dismissed.
(ii) The order passed by the Forum below dated 16.04.2008 in consumer complaint no.776/2003 is hereby confirmed.
(iii) No order as to costs.
(iv) Inform the parties accordingly.
