Haryana

StateCommission

A/1531/2017

THE TANWAR COOP. HOUSE BUILDING SOCEITY LTD. - Complainant(s)

Versus

KAMLESH AND ANR. - Opp.Party(s)

SATBIR MOR

05 Jul 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                Date of Institution:13.12.2017

                                                          Date of final hearing: 05.07.2024

                                                     Date of Pronouncement: 05.07.2024

First Appeal No.1527 of 2017

 

Haryana State Coop. Housing Federation, Bays No.49-52, Sector-2, Panchkula through its Managing Director.

          .....Appellant

•  

1. Kamlesh W/o Sh.Udaybir Singh, R/o H.No.100, Gali No.5-C, Bhudutt Colony, Ballabgarh, Faridabad, Haryana.

2. The Tanwar Coop. House Building Society Ltd., H.No.147, Gali No.10, Bhikam Colony, Ballabgarh (service be effected through its Secretary, Manager/Chairman/Authorize Signatory etc.).

..... Respondents

CORAM:             Mr.S.C.Kaushik, Member

 

Argued by:-       Mr.PardeepSolath, counsel for the appellant.

Mr.Gursimran Walia proxy counsel for Mr.B.S.Walia, counselfor the respondent No.1.

Mr.SikanderBakshi proxy counsel for Mr.SatbirMor, counsel for the respondent No.2.

First Appeal No.1531 of 2017

Date of Institution: 14.12.2017                                                          Date of final hearing: 05.07.2024

Date of Pronouncement: 05.07.2024

 

The Tanwar Coop. House Building Society Ltd., H.No.147, Gali No.10, Bhikam Colony, Ballabgarh through its Secretary Sh.Shilak Ram.

          .....Appellant

•  

1. Kamlesh W/o Sh.Udaybir Singh, R/o H.No.100, Gali No.5-C, Bhudutt Colony, Ballabgarh, Faridabad, Haryana.

2. Haryana State Coop. Housing Federation, Bays No.49-52, Sector-2, Panchkula through its Managing Director.

..... Respondents

CORAM:             Mr.S.C.Kaushik, Member

 

Argued by:-       Mr.SikanderBakshi proxy counsel for Mr.SatbirMor, counsel for the appellant.

Mr.Gursimran Walia proxy counsel for Mr.B.S.Walia, counsel for the respondent No.1.

Mr.PardeepSolath, counsel for the respondent No.2.

                                                ORDER

S.C.KAUSHIK, MEMBER:-

 

          By this order, above mentioned two connected appeals are being disposed off. In both appeals; legality of order dated 20.02.2017 passed by District Consumer Disputes Rederssal Forum-Faridabad (In short “District Consumer Commission”) in Complaint Case No.555 of 2012 has been questioned separately.

2.      There is a delay of 259 days in filing the appeal bearing No.1527 of 2017.  Theappellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  259 days wherein,  it is alleged that  impugned order dated 20.02.2017 was prepared by the office of Ld. DCF, Faridabad on 20.02.2017, which was received by the appellant on 27.02.2017. The Manager of the appellant went to the office of counsel for filing of appeal on 25.03.2017, but, counsel was out of station. In the absence of counsel, Sh.Sanjeev Ojha Manager of the appellant wrongly put the documents of the instant appeal in the decided cases. Due to this, the documents were misplaced in the office of counsel.  When Manager of the appellant institution namely Sanjeev Ojha retired on 30.09.2017 and new Manager took the charge and examined the files then it was found that case was not filed. Upon this the documents of the case were traced in the office of counsel and in this manner the delay occurred in the filing of the instant appeal.Thus, delay of 259 days in filing of the present appeal be condoned.

3.      There is a delay of 260 days in filing the appeal bearing No.1531 of 2017.  Theappellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  260 days wherein,  it is alleged that  impugned order dated 20.02.2017 was prepared by the office of Ld. DCF, Faridabad on 20.02.2017, which was received by the appellant on 27.02.2017. the appellant was unaware about the passing of the order dated 20.02.2017 as the counsel for the appellant before the District Commission did not inform the appellant about the passing of the impugned order.  It is only in the month of November, 2017 when the officer from Housefed asked some detail from the office of present appellant, it was revealed that order dated 20.02.2017 has been passed against the appellant and Housefed. The appellant immediately came to Panchkula and engaged the present counsel to file  the present appeal and in this manner the delay occurred in filing of instant appeal. Thus, delay of 260 days in filing of the present appeal be condoned.

4.         Arguments Heard. File perused.

5.         Learned counsel for the appellant in both the appeals vehemently argued that as per facts mentioned above, it is clear that delay in filing both appealsare not intentional, so the delay may be condoned in both the cases. 

6.         This argument is of not avail.  A period of 30 days (As per the Old Act) has been provided for filing an appeal against the order of the District Forum. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

7.                   The inordinate delay of 259& 260 days ( First Appeal bearing No.1527 of 2017 and First Appeal bearing No.1531 of 2017) cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

          The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every day delay.”

          The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

          In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been observed:

         “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

      In Ram Lal and Ors.  Vs.  RewaCoalfields  Ltd., AIR  1962 Supreme Court 361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

         

    Hon’ble Supreme Court in  Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 held as under;

“We have considered   the respective    submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same   time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”       

    In2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority, Hon’ble Apex Courtobserved as under:-

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

8.      Taking into consideration the pleas raised by appellant in both the appeals in the application for condonation of delay and settled principle of law, this Commission does not find it a fit case to condone delay of 259days  and 260 days in filing of the appeals bearing No.1527 of 2017 and 1531 of 2017 respectively.  The appellants have not properly explained each and every day of delay in both the cases.Hence applications filed for condonation of delay in First Appeal No.1527 of 2017& First Appeal No.1531 of 2017 arehereby dismissed.

9.      Factual matrix:  The complainant is the share holder and valid member in the cooperative society of the opposite party (OP) No.1 and deposited his share money vide receipt No.095 dated 30.07.2009 for Rs.110/-. The respondent No.1 further received Rs.2400/- vide receipt No.134 dated 15.01.1998, Rs.3200/- vide receipt No.160 dated 10.03.1998 and Rs.2400/- vide receipt No.174 dated 02.05.1998. Complainant made a request for a loan to opposite party (OP) No.1. A loan of Rs.1,00,000/- was given to the complainant against the mortgage property of his plot No.100, Gali No.5C, Bhudutt Colony, Ballabgarh, Distt. Faridabad. The agreed rate of interest was settled at that  time @ 17% per annum simple interest and not more or any type of other interest or penalty.  The complainant deposited total Rs.1,67,449/- as per scheduled given in the  Annexure C-1 to C-29A in different dates. The respondent has charged more interest as compared to the agreed rate of interest. The complainant has directly deposited Rs.7650/- vide DD Nop.1983 drawn on Punjab National Bank Ltd. on dated 28.09.2004 but even then the respondent has not cleared the account of the complainant nor released the mortgage of his plot, which was pledged. The respondent No.1 on 25.09.2004 has written a letter to complainant by which it was intimated that if the complainant wish to regularize his account then the rate of interest will be charged @ 11%. The complainant had immediately given his consent and wrote a letter dated 29.09.2004 by which he sent DD No.1983 of PNB directly to respondent No.2 and requested to reduce the rate of interest from 17% to 11% but no heed was taken of the request of complainant.  The respondent has not given the benefits of the different scheme of the Haryana Govt. by which the loan from the cooperative institution was exempted. Crores of rupees loan in the state of Haryana was exempted by the State Govt. but complainant was deprived of from that schemes and remaining loan if any was not exempted by the respondents as on the date of exemption of loan. The complainant was shocked to know that respondent No.1 demanded Rs.1,55,000/- from complainant even through paying a heavy amount of Rs.1,75,099/-. The complainant was harassed by the OPs by not clearing the account of the complainant and no dues certificate was not issued and plot which was mortgaged was not released. Thus there was deficiency in service on the part of the OPs.

10.    Upon notice, OPs-appellants raised contest.  In its written version, it is alleged that  complaint is not maintainable in the present from as there is no relationship between the complainant and answering respondent, which falls under the definition of ‘Consumer’.  OPs  further pleaded that they have not charged more interest in any manner. OPs have claimed the amount from complainant as per terms and conditions of agreement arrived atbetween the parties as well as on basis of norms of the society. The  complainant has no right to claim for no dues certificate from the OPs. The OPs have right to recover the amount due from complainant. Thus, there was no deficiency in service on the part of the OPs.

11.    Parties to this lis led their respective evidence (oral as well as, documentary). On analyzing it; learned District Consumer Commission-Faridabad vide order dated 20.02.2017 has allowed the complaint. It has directed to issue the No Dues Certificate by clearing the account of the complainant and to release the mortgage deed of plot No.100 Gali No.5C, Bhudutt Colony, Faridabad by giving the benefits of exemption or charge the rate of interest @ 11% p.a. (if any balance remain pending) and also refund the share money of the complainant along with dividend and interest. The Ops  werealso directed to pay Rs.2200/- on account of mental agony, tension as well as harassment besides Rs.1100/- towards litigation expenses to the complainant.

12.    Feeling dissatisfied; the unfazed and unsuccessful OP No.2-Appellant has filed appeal bearing No.1527 of 2017 and  OP No.1 has also filed First appeal bearing No.1531 of 2017.

13.    Heard learned counsel for parties at length on 05.07.2024 and examined record with their able assistance.

14.    Learned counsel for OP-appellant in both the appeals, while urging for acceptance of this appeal, has contended that; impugned order dated 20.02.2017 passed by learned District Consumer Commission-Faridabad is illegal.  Counsel argued that the complaint is time barred because cause of action has arisen on 29.09.2004 when the alleged letter of reduction of interest was issued in favour of complainant, whereas the complaint is filed on 31.12.2012 i.e. after more than 8 years of the statutory period prescribed in the Consumer Protection Act. Counsel further argued that loan was repayable in 80 quarterly equated installments in 20 years with interest.  The loan was advanced against mortgage of properties by a member in the name of concerned society and same property was further sub mortgaged in favour of Housing Federation Haryana by the concerned society with consent of the loanee member.  All properties were pledged as floating charge with Life Insurance Corporation of India by the Housing Federation Haryana.   In case of default of payment of the quarterly equated installment, the loanee member was required to pay the penal interest @ 2 ½% in addition to normal rate of interest. The complainant did not deposit the installments in time and upto 01.02.2017 only an amount of Rs.94,363/- was deposited by the complainant. Due to capitalization of the defaulted payments, the outstanding amount against complainant has risen to Rs.6,36,467/- including principal + interest + penal interest.  There was no provision to reduce the interest rate from 17% to 11%. The averment of the complainant was merely an imagination.  There was no privity of contract between the complainant and OP No.2.Mainly, on these submissions learned counsel for appellant has urged for acceptance of appeal and to set aside the impugned order.

15.    Per-Contra: learned counsel for complainant-respondent No.1in both the appeals has supported the impugned order dated 20.02.2017 by urging that  she obtained loan of Rs.1,00,000/- from Ops. The complainant has to repay the loan amount in 80 quarterly equated installments. The complainant has already deposited Rs.1,75,099/- against the loan amount of Rs.1,00,000/-. The OPs-appellants have illegally demanded Rs.6,36,467/- from her.  As per Annexure C-31, the cooperative society-appellant (in F.A. No.1531 of 2017) has reduced the rate of interest from installment due on 01.11.2004, but despite several requests made by the complainant,  OPs did not reduce the rate of interest from November 2004.  The complainant was entitled for the reduced rate of interest from November 2004.

16.    It is admitted that complainant obtained loan of Rs.1,00,000/- from Haryana State Cooperative Society. The complainant-respondent has to repay the loan amount in 80 quarterly equated installments. Perusal of the file shows that the complainant has already deposited Rs.1,75,099/- against the  loanamount of Rs.1,00,000/-, however, the OP-appellant raised an amount of Rs.6,36,467/- including principal + interest + penal interest to the complainant which is wrong and illegal because as per reply of para No.7 of complaint, the OPs have not denied specifically that the complainant has been regularly paying the installments as per schedule. Since, as per  letter dated 25.09.2004 Annexure C-31, it is clear that cooperative society has reduced the rate of interest from installment due on 01.11.2004, but,  despite several requests made by the complainant, OP No.2 did not reduce the rate of interest from November 2004.   The learned District Commission-Faridabad has thus rightly allowed the complaint of the complainant.

17.    In the wake of above discussion, this Commission has arrived at an inescapable conclusion that impugned order dated 20.02.2017 passed by learned District Consumer Commission-Faridabad in Complaint No.555 of 2012 titled as “Smt. Kamlesh Vs. The Tanwar Co-operative House, Building Society Ltd.,”, does not contain any illegality or perversity.    It is accordingly maintained, upheld and affirmed. There is no fallacy on part of learned District Consumer Commission-Faridabad to non-suit OPs-appellants in both the appeal. Both appeal of OPs, does not carry any substance on merit.  Being devoid of merits, both appealsare hereby dismissed on the grounds of delay as well as on merits.

18. Statutory amount of Rs.1650/- was deposited by appellant at the time of filing of both appeals bearing No.1527 of 2017 and First Appeal No.1531 of 2017. This amount is now ordered to be refunded to appellant in both the appeals bearing No.1527 of 2017 and First Appeal No.1531 of 2017 against proper receipt, identification and verification as per rules and registry of this Commission is accordingly directed.

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21.    Files of two appeals be consigned to record room.

 

Date of Pronouncement: 5th July, 2024               S.C.Kaushik                                                                                             Member

Addl. Bench-II