PRESENT:-
Complainants by Adv. Shirish Deshpande
Opponent No. 1 to 4 absent
ORDER
(Per- Mr. S. S. Vyavahare, Hon’ble President.)
1) In the present complaints opponents are common the reliefs claimed as well as cause of action to the complainants are common and therefore we have decided to dispose of these complaints by common judgment.
2) The complainants have filed these complainants under Section 12 of the Consumer Protection Act, against the opponents for getting compensation alleging deficiency of service.
3) Facts giving rise to the present complaints in short are as under.
4) The opponent No.1 is a register co-operative housing society registered under Co-operative Society Act having its office on the address mentioned in the complaints. Opponent No.2 to 4 are then office bearers of opponent No.1, when the complaint is filed.
5) The complainants are the members of opponent No.1. The building of the opponent No.1 was constructed by builder who is admittedly not made party to the complaint. It is the contention of the complainant that the builder was making unnecessary delay for completing the construction work of the building and same was held up. The opponent No.2 who is also member of opponent No.1 was initially struggling and objecting against the activities of the builder. It is the contention of the complainant, that the opponent No.2 and one Mr. Mukesh Ghia and the builder have entered into conspiracy, therefore opponent No.2 and Mukesh Ghia were made agent and associate of Lokprabha Everest Project. The opponent No.2 was also made authorized signatory for opponent No.1 in respect of bank account and was permitted to handle the financial transactions. It is the contention of the complainant that because of the attitude of the builder the complainants were not ready to give up the rightful claim against the builder. However it is opponent No.2 who had insisted the complainants to forget whatever amount they have paid to the builder. It is further contention of the complainants that because of the attitude of the builder they were objecting the builder to become the promoter in respect of registration of opponent No.1 and therefore the builder has deliberately refused to include the name of 53 bonafide flat owners including the complainants. Infact the builder had collected share application money and registration expenses long back. Inspite of accepting the said amount the builder has refused even to accept the request of Deputy Registrar to include name of flat holders. The letter issued by Deputy Registrar though duly received by the opponents, the opponent No.2 had refused to accept the complainant as a member buy ignoring the letter issued by Deputy Registrar of Co-operative Society. Infact opponent No.3 who was elected to preside the meeting had announced about the admission of 53 applicants and about the receipt of their applications. Even then opponent No.2 in order to assist the builder had refused to accept the complainants as a member of the society. And thus floated the direction issued by Deputy Registrar. Being aggrieved to the act of opponent No.2 the complainants had to file appeal before Deputy Registrar. It is further contention of the complainant that at the instance of Deputy Registrar without prejudice to their earlier application they also made fresh application. However, the opponents did not send any communication to the complainant for a period of three months. Therefore according to the complainants they became the deemed members of opponent No.1. In order to obstruct the right of the complainant the opponents filed appeal to Deputy Registrar and raised irrelevant issues. They also insisted the complainant to apy dues of the builder pertaining to prior period of the formation of society. It is the contention of the complainants that infact the opponents were aware that the builder owes lakhs of rupees to the complainants. Even then only to assist the builder they made these demands to the complainants.
6) It is further contention of the complainants that the builder has collected maintenance charges for the period of one year as deposits which he did not return to the complainants or to the society. Inspite of bringing this fact to the notice of the opponents they did nothing. It is further contention of the complainants that inspite of directions from Deputy Registrar to issue share certificate to the complainants the opponents filed Revision Application before the Joint Registrar in which the Joint Registrar had refused to grant stay even then the opponents have refused to obey the statutory orders of the Deputy Registrar. The Joint Registrar also gave directions to the society for allowing the complainants to attend Annual General Body Meeting even then the opponents have refused to obey the statutory order of Deputy Registrar.
7) It is further contention of the complainants that they had brought to the notice of opponent No.1 in writing about huge amount due to them from the builder. However, even then opponent No.1 instead of taking any suitable action in the matter has colluded with the builder in supporting the false claim of the builder. The opponents have also not taken the complete account from the builder before the statutory period of Annual General Body Meeting. Whatever accounts received from the builder were also individually communicated to the flat holders. According to complainant with intend to assist the builder the opponent No.1 had allowed the builder to collect the maintenance charges directly from the flat holders by raising his own bill for one year. Even opponent No.1 did not collect the maintenance charges from the builder.
8) It is further contention of the complainants that in the year 2007 the opponent No.1 was not sending bill for maintenance charges to the complainants and therefore the complaint was made to the deputy Registrar insipte of directions from Deputy Registrar the opponent No.l1 did not issue maintenance bill to the complainants. The complainants had opened separate account and depositing their maintenance charges and they called upon the opponents to give that due to the non submission of information from the society they have deposited maintenance charges in separate account. However, the complainants were declared defaulter.
9) It is further contention of the complaint that, in order to defame the complainants, the opponents have declared the complainant as a defaulter. The security personnel of the opponents were also giving information to the relatives of the complainant stating that complainants are defaulters. Even in the report of managing committee which was circulated to the members of society that complainants were declared as defaulters. Even in Revision Application filed by the opponents it was stated that except the complainant rest of 290 members are regular in paying the maintenance charges.
10) It is further contention of the complainants that the builder has misappropriated Rs.1 Crore collected from flat holders. The builder had paid property taxes directly to MCGM. When the builder was pressurized by Corporation to pay property taxes collected from the flat holders which he has collected in advance the opponents in order to protect eh interest of the builder gave fabricated list of defaulters to the Corporation and in the said list complaints were shown as defaulters. It is further contention of the complainants that even though the opponent No.1 has accepted them as members their names are not appearing on the name board, no intercom facility is provided to them. Being aggrieved to the act of the opponents the complainants approached to Deputy Registrar who gave directions to the opponent to include the name of the complainants on notice board. Inspite of receiving directions from Deputy Registrar the opponents have failed to comply the statutory order. According to complainant the acts on the part of the opponents amounts to deficiency of service. Therefore the complainants sent notice by registered post calling upon the opponents to take immediate action and to rectify the deficiencies. The opponents falsely replied the notice but did not rectify the deficiencies. Therefore complainants have filed present complaint. Initially the complainants have given detail list of the compliances to be carried out by the opponents but they have given up those prayers and restricted only prayer to pay compensation of Rs.4,00,000/- to the complainants. They also pray that said amount should not be reimbursed from opponents No.1.
11) The opponents have resisted the complaints by filing their written statement. Wherein they have contended that complainant’s complaints are false, frivolous and not based on true facts. According to the opponents the complaints are bad in Law and they have been file only with intend to harass opponent No.2 to 4 and members of opponent No. 1. It is also submitted by the opponents that complainants have suppressed material facts and claim relief by stating false facts. The opponents have also challenged the jurisdiction of this forum by submitting that allegations made by the complainants are touching to the business of opponent no.1 and therefore in case of any dispute of the business of co-operative housing society the complaint ought to have approached to co-operative court and therefore this forum has no jurisdiction to entertain the complaint. It is also submitted by t eh opponents that the allegations made by the complainants are against the builder to whom the complainant did not joined as a party to proceedings. No satisfactory explanation is forthcoming fro not joining the builder as opponent. Therefore complaint is bad.
12) The opponents further submits that the complainants who have purchased their respective flats in 2003 did not purchase the same directly from the builder and therefore complainants have no knowledge about stopping of work by the builder. Therefore the allegations made by the complainants about the opponents about their collusion with builder are baseless. The opponents have denied all adverse allegations made by the complainant in respect of deficiency of service. The opponents further submit that opponent No.1 was in continuous contact with builder for getting the accounts and pending matter settled. However, the builder has expressed his inability to attend the matter. Therefore in the interest of the society the opponent have no other way than to pursue the builder and to arrive amicable settlement. According to opponents whatever amount collected from the flat holders on account of statutory requirement is invested in sinking fund, reserved fund and cumulative deposits. According to opponents the complainants are in habit of abusing and filing complainants against the society by doing so they are creating show and harassing other members of the society. The opponents further submit that the complainants are residing peacefully in their flat they have been provide all facilities. Opponent No. 1 is continuously pursing the builder to complete unfinished work and amenities. The amenity of club house is yet to be provided for which the society is keenly pressurizing the builder. Therefore according to opponents the allegations made by the complainant are baseless and devoits any merit and pray to reject the same.
13) On respective contentions of the parties following points arises for our considerations. Our findings are recorded against the same.
POINTS
- Do the complainants prove that the opponents have indulged in deficiency of service by refusing them to accept the members of society, by not providing the required amenities and by colluding with the member and by not safeguarding the interest of the society? Not proved
- Whether complaint is entitled to get compensation? No
- What order? As per Final order.
REASONS
Admitted Facts
14)Before going to evidence on record it will not be out of place to go through some of the facts which are undisputed.
15) Complainants are the members of opponent No.1 is not disputed by the opponents. The round of litigations between the complainants and opponent No.1 and its office bearers before Deputy Registrar are not disputed. It is also not disputed position that arising out of the prayers mentioned in the complaints except the prayer for compensation of Rs.4,00,000/- from opponent No. 2 to 4 rest of the prayer have been given up by the complainants is also not disputed.
16)In view of above admitted facts the complainants in support of their complaints have filed their rejoinder to written statement and written arguments. As against this the opponents have only filed their written statement but did not file evidence affidavit, written arguments. Even for the oral arguments the opponents could not keep themselves present. The learned counsel for the complainants has orally argued the matters. We have gone through the oral submissions of the learned counsel for the complainants. We have also gone through written statement of opponents as well as the written arguments and documents filed on record by the complainants.
17)The complainants in order to prove deficiency of service on the part of opponents have mainly tried to bring on record that the construction work of the building of opponents No.1 was delayed by the builder. Therefore taking advantage of delay opponent No.2 in collusion with builder and one Mr. became the agent of the builder and completed the construction of the building of opponent No.1. However, while doing so the opponents have shown excessively favoritism to the builder and did not take any action against him of strong protest from the complainants. The builder who was not allowing the complainants and other some flat holders to become the member of opponent No.1 were not prohibited by the opponents. On the contrary the opponents branded the complainants as a defaulter and advertised them as defaulter before various authorities. The Deputy Registrar of Co-operative has given directions to the opponents to include the complainants as a member and to issue them share certificate even then opponents refused to obey the directions of Deputy Registrar and file false Revision Application to the Joint Registrar. It is also contention of the complainants the builder has collected huge amount from them towards maintenance but did not refund it. The opponents who were the office bearers of then society did not take any step to that effect. On the contrary opponents took several benefits of their position of office bearers of society. Even fundamental amenities were not provided to the complainants. The reliance is placed on the judgment of Supreme Court in the case Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. Lalitha (2004) 10 CLA-BL Supp to show that members of co-operative society can approach to Consumer Forum for redressal of his grievances against co-operative Society. Reliance is also placed on the judgment of Bombay High court in case of Mayadevi Krishna Lulla V/s. Byculla Service Industries Premises C.H.S Ltd. wherein it has been held that society cannot ask for dues prior to formation of society. Therefore alleged act on the part of the opponents amounts to deficiency of service. Therefore complainants are entitled to get compensation.
18)Per contra the opponents in their written statement have denied these allegations and have come with a case that the complainants who are quarrelsome persons have filed these complaints in order to settle the score with the opponents in respect of personal disputes. According to opponents the nature of dispute pending between the parties was out of the jurisdiction of this forum it touches to the business of the society. Secondly, in a dispute before Deputy Registrar and Joint Registrar they have every right to avail the legal remedy which they did so. The complainants being aggrieved to the act of opponents No.1 have also moved to the Deputy Registrar of Co-operative as those remedies were provide to them under Co-operative Society Act. According to the opponents the complainants have not purchased the flat from the builder and they have purchased their flats from third person therefore their entire allegations against the builder as well asthe allegations against the opponents in respect of conspiracy and collusion are baseless. According to them the amicable settlement which they have carried out with the builder was the only available source in the interest of the society. However whatever amount received on account of statutory requirement has been properly invested in sinking fund, repair fund and reserve fund and cumulative deposits. Therefore the opponents have denied any deficiency of service.
19)We have gone through respective cased put forth by the parties oral arguments advanced on behalf of the complainants. From the perusal of same first of all it is seen that allegations made by the complainants are mainly against the builder. Though an attempt has been made by the complainants that since the opponents are agent of the builder there was no necessity to join the builder as a party we do not find any force in the submissions on behalf of the complainants. On the contrary the contentions of the opponents that the complainants have purchased their respective flats from third parties are not disputed by the complainants. Therefore when the construction was stalled, what were the circumstances for the said condition, what was decided between the builder and opponents are not on record. Nor, complainants have produced any satisfactory evidence to that effect. When complainants are alleging charges of conspiracy and collusion against the opponents much material evidence was very much necessary. Even the complainants do not brought anything on record when the opponent No.1 was registered. Though reliance is placed on the judgment of Bombay High Court in the case (cited supra) wherein it is held that the society cannot asked dues prior to the formation of society, the opponents did not bring any evidence on record about the formation of society and the exact period when the dues were claimed. On the contrary perusal of complaint it is seen that the occupancy charges till occupation certificate were claimed by the builder in the letter of 2002. So also the collection of maintenance charges which were deposited several years back was also claimed by the complainants. If it is accepted that those were the dues prior to 2002 then the complaint which is filed in 2009 is prima barred by limitation. the complainants have not given the details in respect of dues, period of dues and therefore we are of the opinion that the allegations of the complainants in respect of dues claim from them are vague.
20)Though by relying on the judgment of Supreme Court in the case of Secretary Credit Co-operative Society (cited supra) much was argued about the directions given by the Deputy Registrar of Co-operative society and it has tried to bring on record that the opponents didnot obey the directions of Deputy Registrar, we are of the opinion that the opponents who were the office bearers of the society have challenged the orders of Deputy Registrar by taking suitable action before Joint Registrar. We do not find anything wrong in the steps taken by the opponents as those remedies were provide to them by Law. The record shows that not only the opponent but complainants have also approached to the different authorities for getting their claim. Therefore we are of the opinion that merely because the opponents have challenged the orders of Joint Registrar by filing Revision Application before joint Registrar of Co-operative society, it cannot be said that they floated the order of co-operative authority. Though there cannot be two opinion about the legal prepositions laid down by the Apex Court in the case of Secretary Credit Co-operative Society, it is the fact that the relief which were claimed by the complainants before deputy Registrar of co-operative society same relief have been claimed by the complainants before this forum. We have already held that merely because the opponents have challenged the orders of Deputy Registrar their action cannot be deprecated by branding them as troubleshooter. Admittedly the recourse before Co-operative Society is having larger jurisdiction to the consumers than the jurisdiction before Consumer Forum. Here the jurisdiction of this forum is narrow. The complainants have already approached before co-operative authority they also got some orders in their favour. Same were implemented by the society with the result complaints were admitted as a member, share certificate issued to them. Even then, the complainants have repeated their allegations by singing the same song before the forum. Having exhausted the remedy before larger jurisdiction, the same before this forum having narrow jurisdiction is not permissible. Our view has been fortified by the Hon’ble member of the State Commission, Mumbai in the case of Shankar Ganpati Jadhav V/s, Hertigae Motors reported in 2012 (2) all MR (Journal) (11). Therefore also we are of the opinion that complaint filed before this forum and the claim made in this complaint are not permissible.
21)Now, whatever acts done by the opponents were in the capacity of office bearers. However it is strange to note that the complainants are claiming compensation that too of Rs.4/- in each complaint from opponent No.2 to 4. Firstly there is no quantification of compensation. Secondly, there is no satisfactory evidence about the conspiracy and collusion between the opponent No. 2 to 4 and builder. On the contrary non addition of builder as party top complaint is fatal blow to the complaints. So also whatever demands raised by the builder or opponents are not specified pertaining to its period. Therefore the claiming of compensation in the personal capacity from opponent No.2 to 4 is found to be rather strange than . On the contrary it appears that the complainants seem to have some grudge against the opponents and the complainants want to settle their score with opponent No.2 to 4 and therefore they have chosen this recourse. For want of above referred reasons we are unable to accept the relief claimed by the complainants. Complainants are also not claiming any compensation from opponent no.1 therefore there is no point in considering the compensation against opponent No.1. Otherwise also evidence adduce on record as well as the allegations made by the complainant do not find to be satisfactory. Therefore we are of the opinion that the complainants are not entitled to get any compensation. Hence order.
ORDER
- Complaints are dismissed.
- No order as to cost.
