DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016.

Case No.95/2010

Smt. Smita Singh

W/o Sh. Rajendra Singh Verma

R/o F-16B/389,  Street No.14, Laxmi Nagar,

Delhi-110092                                                                ….Complainant

Versus

Janhitkari Sahakari Awas Samiti Ltd. (Regn. No.2288 dated 21.05.97)

Through its Hony. Secretary

having its office at G-4 Palika Niwas,

Lodhi Colony, New Delhi-110003                        ……Opposite Party

                                                          Date of Institution          : 12.02.10                                                           Date of Order        : 04.07.16

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

Sh. S.S. Fonia, Member

O R D E R

S.S. Fonia, Member

Briefly stated, the case of the Complainant is that the Complainant got herself enrolled with the Janhitkari Sahakari Awas Samiti Ltd. Ghaziabad ( In short, ‘OP’) on 25.11.97 as an ordinary member and applied for  a flat under category-B of a group housing complex that was proposed to be constructed at plot No.GH-01, Sector-6, Vasundhara, Ghaziabad. She deposited a sum of Rs.1,58,000/-  with the OP vide receipt No.239 dated 28.03.98 towards cost of the land as per the letter dated 16.03.1998 issued by OP in pursuance of 2^nd General Meeting Held on 15.03.1998. She further deposited a sum of Rs.24,000/- vide receipt No. 377 dated 31.08.99 with the OP as an additional cost of the land in terms of the letter dated 12.07.1999. She also made a payment of Rs.28000/- vide receipt No.572 dated 16.08.2000.  It is stated that OP vide its letter dated 01.12.2000 acknowledged the receipt of Rs.2,10,000/- towards the cost of the land and indicated Rs.50,000/- towards cost of land. OP also demanded Rs.1,49,000/- from her towards 1^st installment of cost of construction.   She felt disturbed because Rs.50,000/- were shown due towards land cost although she had paid full cost of Rs.1,58,000/- towards land cost in single installment in March, 1998 and additional amount of Rs.24,000/- was also paid by her towards land cost in good faith in July, 1999.  It is further stated that she requested the OP vide her letter dated 30.12.2000 to furnish information/clarification and paid Rs.1,21,000/- (Rs.1,49,000- Rs.28,000) vide cheque No.248491 dated 30.12.2000. The Hony Secretary of OP accepted the cheque as well as letter and  informed that the information/clarification requested as also the receipt  for the cheque would be furnished after few days.  However, no reply, information, clarification etc. was received by her despite requests made in this regard.  She received a letter dated 12.12.01 from the Hony Secretary of OP for appearing in person before the Committee.  However, the same was replied by her vide letter dated 27.12.01 and copy of the same was also sent to higher authorities of OP.  It is further stated that the OP terminated her membership vide resolution No.8 passed by the committee on 30.12.01 without following the procedure prescribed in Section 27 of the UP Co-operative Society Act (In short, ‘the Act’) and Rules 56, 57 & 58 of the UP Co-operative Society Rules (In short, the ‘Rules’) and byelaws Nos. 12 to 15 of the OP which were communicated to her vide letter dated 07.01.02.   Being aggrieved by the resolution No.8 dated 30.12.01, she filed an appeal U/s 98 of the Act before the Cooperative Tribunal.  OP filed the objections to the appeal on 10.04.03. She also filed reply to the objections on 14.07.03.          The Co-operative Tribunal vide its judgment dated 30.09.03 set-aside the resolution No.8 regarding termination of her membership. OP filed a writ petition No.4272 before the Hon’ble Allahabad High Court Lucknow Bench in November, 2003 which was dismissed vide order dated 12.08.09. It is further inter-alia stated that the OP was demanding total of Rs.2.6 lakhs towards land cost i.e. additional amount of Rs.50,000/- towards land cost after acknowledging receipt of Rs.2,10,000/- towards land cost without informing the total amount deposited with the UP Awas Evam Vikas Parishad (UPA VP) under the head “land cost” and without providing calculations based on which  her share towards land cost has been fixed at Rs.2.6 lakhs.  The OP was demanding Rs.7.3 lakhs towards construction cost without informing (a) total cost actually incurred in construction of the complex and (b) calculations to arrive at Rs.7.3 lakhs being demanded towards construction cost.  OP was also demanding Rs.90,150/- towards additional cost of electricity, expenses for provisions of rain water harvesting and making internal roads of RCC in place of bitumen roads without providing following information:

1. Details of cost incurred additional cost of electricity, expenses for provisions of rain water harvesting actually made and additional expenses actually made in making internal roads of RCC in place of internal roads made of bitumen.
2. Calculation to arrive at cost being demanded from her under above head.
3. Copy of decision/document based on which RCC Roads were provided in place of bitumen roads.

Complainant has further stated that the OP  demanded Rs.1,91,850/- towards compounding charges without informing total compounding charges levied/demanded by UPA VP with copy of considerations & calculations for arriving at compounding charges levied/demanded by UPA VP and without providing the calculations for arriving at amount of share to be borne by her. The OP had further demanded Rs.11,74,142/- towards interest @ 15% per annum without providing the following information:

1. The consideration that lead to the decision of charging interest.
2. The basis on which interest @ 15% is being charged
3. The calculation for arriving at amount of Rs.11,74,142/- towards interest.

More issues have been raised in the complaint. Hence, pleading deficiency in service and unfair trade practice on the part of OP the complaint has been filed with the following prayers:-

“(i)   OP be directed not to cancel allotment of flat to her.

(ii)             OP be directed to  provide her allotment letter.

(iii) Direct the OP to provide actual cost (not estimated/approximate cost  since housing complex has been completed. In case any work is pending/under progress, same may be indicated with expenses incurred up to date and estimated cost of balance work) of the flat with breakup of cost towards each head separately:

1.  Total land cost paid by OP to UPAVP so far and my share of land cost with supporting  documents/calculation.
2. Total lease rent paid by OP to UPAVP and her share of lease rent with supporting affidavit/calculation.
3. Total development cost paid by OP to UPA VP and her share of development cost without supporting documents/calculation.
4.  Total construction cost incurred by OP for all flats of the complex and her share of construction cost with supporting documents/calculation.
5. Total cost incurred by  OP towards common service/facilities  and her share of cost with supporting documents/calculation.
6. Total cost incurred by OP towards development and her share of cost with supporting documents/calculation.
7. Total cost incurred by OP towards any other head(s) and her share of cost with supporting documents/calculation.

OP be further directed to provide following information/drawings/documents:

1. Final ‘As built’ drawings of her flat alongwith drawings for water, sewerage and electrical supply lines.
2. List of inventory of her flat, format for possession certificate and/or any other document to be singed by her at the of time of possession of the flat so that she is ready with the requisite documents/papers, photos etc.
3. Information regarding account numbers, name of the banks  and address of the branches where accounts are being maintained by the society so that the manager’s cheques/drafts could be arranged accordingly.
4. Copies of Agenda as well as Minutes of Annual general, extra general and/or special General Meetings convened since formation of society.
5. Copies of financial statements and other statements of society duly audited under section 64 of the Act for each year since formation of society and submitted by auditor (s) as per Rule 206.
6. Copies of letters/communications/ orders/documents /regulation etc. that society had issued to ordinary members from time to time since formation of society.
7. Details of loan taken by society for financing the project, if any with detailed terms and condition of loan taken.
8. Details of loan(s) given by society, if any, with detailed terms and condition of loan(s) given by society.

Complainant has further prayed as under:-

1. The Hony Secretary may kindly be directed not to insist for submission of the affidavit since it is not required as per applicable laws. Further, the language seeks to restrict my rights & privileges.
2. The Hon’ble District Forum may kindly facilitate so that I could pay the amounts that are payable by me since I am unable to effect payment due to environment created by Hony Secretary even though I am ready to pay the amount payable.
3. That the Hony Secretary to Samiti may please be directed to provide possession of my flat without any further delay, duly complete and finished as per drawings/specification, copy of which need to be provided in advance.
4. That the exemplary penalty may please be imposed on concerned officers of society for following deliberate and willful acts to cause harm, financial loss and mental agony to Complainant and her family members for being a vigilant member.

1. For receiving the cheque No.248491 dated 30.12.2000 but  neither issuing the receipt nor depositing the same in account of society.
2. For not providing the information sought by Complainant to protect her interest.
3. For returning/not receiving the letters sent by the Complainant.
4. For terminating my membership illegally.
5. For filing the frivolous writ petition in Hon’ble High Court to delay to the matters and keeping  me away.
6. For instructing the guards at the gate not to allow entry to the society premises to a vigilant member and/or her spouse/family members.
7. For not issuing demand letters signed in original.
8. For not providing letter of allotment of my flat.
9. For not sending me communication and other documents as member of society.
10. For not informing the account number, name of the bank and address of the branches in respect of accounts maintained by  Samiti.
    1. The OP may be directed to compensate me for the loss suffered by me for delay in giving possession of my flat.
    2. The OP may kindly be directed be directed to compensate me for the harassment, mental agony and financial loss caused to me and my family members.
    3. That the OP may kindly be directed to compensate me for the cost of the case.”

OP in the written statement has stated that the present complaint is a gross abuse of the process of the law and no cause of action has ever arisen to file the present complaint. The Complainant is a willful defaulter and had not paid the cost of the flat even after several reminders.  There was no deficiency on the part of OP as at no point of time the OP had committed any default, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance and hence no relief can be granted to the Complainant as prayed for.  OP has always been willing to perform its part of the contract and it is the Complainant who had willfully defaulted in making the payment and had come before this Forum just to skip from fulfilling her liability. The present complaint is liable to be dismissed on the ground that this Forum has no territorial jurisdiction to entertain the present complaint.  The office of OP is situated in Ghaziabad, UP and it is registered under the Uttar Pradesh Sahakari Awas Samiti having its office at 6, Sarojni Naydu Marg, Lucknow, Uttar Pradesh. No cause of action has arisen in Delhi and the flat in question is also situated in Ghaziabad. The matter regarding dispute between the parties is already been pending before the Hon’ble High Court, Lucknow Bench bearing CM No. 11390(W)/2010.  It is stated that  the OP through its letter dated 16.3.98 had requested all the members to pay Rs.1,58,000/- towards the land cost wherein it was clearly mentioned that  this was an  estimated cost and finally through its letter dated 01/12/2000 the OP had acknowledged the receipt of Rs.2,10,000/- towards the land cost and had requested to deposit the balance of Rs.50,000/- towards the land cost which was including the administrating expenses like guard salary, construction of boundary, other development works and other expenses which the society had incurred while performing its day to day activities. The total amount from the beginning of the society till 1^st of December, 2000 was Rs.2,60,000/-.  But the Complainant for the reason best known to her chose not to pay and wrote a letter at the residential address of the secretary which has been given to its members in Delhi to contact in case of urgency and demanded to explain as to how the construction and development cost had been calculated as well as how the construction cost had been calculated.  OP asked the Complainant to be present on 30.12.01 before the managing committee to get her all doubts redressed but instead of making herself available before the managing committee of OP the Complainant chose to write a letter to the OP as well as other authorities which shows that she was never interested to get her grievances resolved but she was always interested to create trouble in the development works of the society. Due to non appearance of the Complainant the managing committee found it proper to terminate her membership. It is further stated that the appeal against the termination of the membership was allowed by the Co-operative Tribunal on the technical ground that since the OP had given the time to pay the dues till 31.12.01 hence the termination before the said date was not proper.  OP had filed an appeal before the Hon’ble High Court, Lucknow Bench at Lucknow which was dismissed in default due to non appearance of the representative of the OP or its counsel.  Denying other allegations, OP has prayed for dismissal of the complaint with exemplary cost.

Complainant has filed rejoinder to the written statement of OP.

Complainant has filed her own affidavit in evidence and in support of the case of the Complainant, the Complainant’s husband Sh.  Rajendra Singh Verma has filed his affidavit in evidence.

On the other hand, affidavit of Sh. B. S. Bhati, Hony Secretary has been filed in evidence on behalf of the OP.

Written arguments have been filed on behalf of the parties.

We have heard the Husband/AR of the Complainant and have also gone through the file very carefully.

Since the territorial jurisdiction of this Forum was vital to decide this case, on 11.04.16 the Complainant through her AR/Husband was asked to satisfy this Forum that this Forum has the territorial jurisdiction to entertain the complaint? The Complainant pointed out four documents which are marked as Mark A, B, C, D, E & F.

Before going to the merit of the case, we straightaway come to address the question of territorial jurisdiction of this forum to entertain this complaint.  The OP has its registered office at 6, Sarojni Naydu Marg, Lucknow, Uttar Pradesh vide registration No.2288/21.05.97 and branch office at plot No.1, Sector-6, Vasundhara, Ghaziabad (U.P.) as is evident from Mark ‘A’ and B. S. Bhati (Sabhapati) of the OP has given Delhi  contact address of F-4, Palika Niwas, Lodhi Colony, New Delhi. The main cause of action for allotment of residential unit arose at plot No.GH-01, Sector-6, Vasundhara, Ghaziabad and all the payments were made in the branch office at Vasundhara, Ghaziabad.

The Hon’ble Supreme Court in Sonic Surgical Vs. National Insurance Co. Ltd. IX (2009) SLT 111 has categorically held inter-alia that expression “branch office in the amended section 17 (2) would mean the branch office where the cause of action arises.” In the instant case, the cause of action has arisen at plot No.GH-01, Sector-6, Vasundhara, Ghaziabad and not at F-4, Palika Niwas, Lodhi Colony, New Delhi which is merely the address to facilitate the  communication to the members of the society. It is also pertinent to  observe that the Complainant in her prayers has sought 35 reliefs which are beyond our reach and would require lengthy trial akin to that of the Civil Court.

In view of the above discussion, we dismiss the complaint with no order as to costs.

Before parting with the order, we would like to highlight here that on 11.04.2016 the Husband/AR of the Complainant submitted that the Complainant is ready to make the payment of all lawful dues to the OP for allotment of the flat. On that day counsel for OP sought adjournment so that calculation sheet of the amount could be made and given to the Complainant. Complainant was also directed to file her calculation sheet before the Forum. However, neither of the parties have filed their respective calculation sheet.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

(S. S. Fonia)                                                                    (Naina Bakshi)                                                                                       (N. K. Goel)

Member                                                                             Member                                                                                                 President

Announced on   04.07.16