STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                        UNION TERRITORY, CHANDIGARH

The Punjab State Federation of Cooperative House Building Societies Ltd., (Housefed), SCO No.150-151-152, Sector 34-A, Chandigarh through its Managing Director. 

….…Appellant/Opposite Party No.1

V E R S U S

1.     Kuljit Singh s/o Sh.Jaswant Singh, Singh Kuljit & Associates (Chartered Accountants), Near OBC Kansal Market, Kotkapura, District Faridkot.

…..Respondent No.1/Complainant

2.     Registrar Cooperative Societies, Punjab, Near Jagat Cinema, Sector 17, Chandigarh.

.…..Respondent No.2/Opposite Party No.2

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                MRS. NEENA SANDHU, MEMBER

Argued by:  

Sh.Harit Sharma, Advocate for the appellant.

                Sh.Achin Gupta, Advocate, for respondent No.1

Ms.Esha Sharma, Inspector O/o Registrar Cooperative Societies, Punjab, duly authorized representative on behalf of respondent No.2.

                                ---

MRS. NEENA SANDHU, MEMBER

                This appeal is directed against the order dated 11.05.2012, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it allowed the complaint, filed by the complainant, and directed Opposite Party No.1 (now appellant) as under:-

“As a result of the above discussion, we partly allow this complaint with directions to the complainant to pay the defaulted amount to OP NO.1 along with interest @18% p.a. for the defaulted period, whereupon the OP No. shall restore the flat in question in the name of the complainant forthwith. No order as to compensation or cost”.

2.                    In brief, the facts of the case, are that in response to an advertisement, issued by Opposite Party No.1, for Built up Flats at Banur, the Complainant applied for Category-I Flat, by paying Rs.1,01,000/- as initial deposit, vide Application Form No.711.  It was stated that the complainant was allotted Category-I flat at Cooperative Housing Complex of Housefed, Punjab at Banur. On the asking of Opposite Party No.1, the Complainant further deposited the registration money, amounting to Rs.2,02,000/-, and thereafter, deposited 2 installments of Rs.1,13,500/- each.  It was further stated that Opposite Party No.1, vide letter dated 16.12.2010, cancelled the allotment of flat and forfeited the amount, deposited as per Clause No.5 of the allotment letter, due to non-deposit of 3 consecutive installments of Rs.1,13,500/- each. It was further stated that the Complainant visited Opposite Party No.1 many times, and showed his willingness to make the payment, alongwith interest, and even moved applications dated 21.02.2011 and 11.03.2011, for restoration of flat & revocation of order dated 16.12.2010, but to no effect. It was further stated that vide letter dated 10.03.2011, Opposite Party No.1 forfeited 15% earnest money, as per Clause 6 of the allotment letter, and refunded Rs.2,27,000/- vide Cheque No.613171, dated 9.3.2011 to the Complainant. It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

3.                    In its written reply, Opposite Party No.1 took up the preliminary objection to the effect that the complainant being not a consumer, the District Forum did not have jurisdiction to entertain and decide the complaint. It was stated that the complainant was allotted Category-I flat at Cooperative Housing Complex of Housefed, Punjab at Banur vide allotment letter dated 22.6.2010. The flat was rightly cancelled due to non payment of installments. It was further stated that as per Clause 5(c) of the Brochure, it was the discretion of the Managing Director to restore the cancellation, after charging interest @18% p.a. for the defaulted period, within 60 days, from the date of cancellation of flat. The request of the Complainant for restoration of his flat, was beyond the aforesaid period of 60 days. It was further stated that, in the allotment letter, there was an arbitration clause and the dispute between the parties had to be referred to the Arbitrator, whose decision was to be final and binding upon the parties.  It was denied that the Superintending Engineer, or the staff of Housefed, informed that the delayed payment could be made any time. It was further stated that as per Clause No.5 of the terms and conditions, if the allottee did not pay three consecutive equated quarterly installments after payment of 15% of earnest money then the allotment could be cancelled after deducting 100% of the receipt of earnest money. It was further stated that in the present case, the complainant defaulted, in paying the installment which were due on 30.4.2010, 31.7.2010, 31.10.2010 and, as such, the allotment of the complainant was rightly cancelled vide letter dated 16.12.2010 - Ann.C-2. It was further stated that once the allotment was cancelled, then the complainant was not entitled to any compensation, damages etc.  It was further stated that, Opposite Party  No.1 was neither deficient, in rendering service nor indulged into unfair trade practice.

4.                    Opposite Party No.2 did not turn up despite service, and thus, he was proceeded against exparte by the District Forum.

5.                    The Parties led evidence, in support of their case.

6.                    After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, allowed the complaint, as stated above. 

7.                    Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.

8.                    We have heard the Counsel for the parties, authorized representative of respondent No.2 and, have gone through the evidence and record of the case, carefully. 

9.                    The Counsel for the appellant/Opposite Party No.1 submitted that due to non-payment of three consecutive equated quarterly installments by respondent No.1/complainant, the allotment of flat was cancelled, as per clause 5(b)of the allotment letter (Annexure C-1) and the representation for restoration of the same was, rightly, rejected by the Managing Director. He further submitted that the complaint was not maintainable, because the present dispute was liable to be raised under Sections 55/56 of the Punjab Cooperative Societies Act, 1961. He further submitted that  the District Forum failed  to consider the fact that  under Section 82 of the Act ibid, the jurisdiction of the Civil Court was barred. In support of his submission, he placed reliance upon the judgment titled as The Sonepat Cooperative Sugar Mills Ltd., Sonepat through its Managing Director Vs. The Presiding Officer, Labour Court, Rohtak and Another, 1987(1)PLR 77.  He further submitted that the District Forum wrongly held that the flat of the complainant was cancelled vide letter dated 16.12.2010, Annexure C-2 and the request for restoration of the flat was made on 21.02.2011. It was further submitted that  the letter (Annexure C-2) was merely a communication and not an order as the cancellation was automatic, as the complainant failed to deposit the three consecutive equated quarterly installments on due dates, and the District Forum wrongly gave the benefit of Clause No.7 (in fact Clause No.5) of the allotment letter. He further submitted that the order of the District Forum, being illegal, is liable to be set aside. 

10.                                     On the other hand, the Counsel for respondent No.1/complainant submitted that due to unavoidable circumstances, the complainant could not deposit three consecutive equated quarterly installments, and the flat was cancelled on 16.12.2010 and the intimation thereof was received by him thereafter. He further submitted that the representation regarding the restoration of the same was made by him on 21.02.2011 as per  Clause 5(c) of the allotment letter. He further submitted that the complainant was willing to pay all the three consecutive equated quarterly installments alongwith interest as envisaged under Clause No.5(c) of the allotment letter, but his request was illegally rejected by Opposite Party No.1 without assigning any reason.  He further submitted that the order of the District Forum, being legal, is liable to be upheld.

11.                 The submission of the Counsel for the appellant was to the effect that the complaint was not maintainable, because the present dispute was required to be raised, before the Arbitrator, as per Sections 55/56 of the Punjab Cooperative Societies Act, 1961 and even otherwise, in view Section 82 of the Act ibid, the jurisdiction of the Civil Court was barred. Undisputedly, the jurisdiction of the Civil Court regarding the disputes falling under Sections 55/56 of the Act ibid was barred, but, there is no mention therein that the jurisdiction of the Consumer Fora is barred.  Moreover, as per the provisions of Section 3 of the Consumer Protection Act, 1986, which is a benevolent Act, the remedies under this Act, are in addition to and not in derogation of the provisions of any other law for the time being in force.  It is now settled law, that even in the cases, where there is a provision of settlement of dispute by Arbitration, the Consumer Fora has the jurisdiction to entertain and decide the complaint.  Reference may be made to the cases titled as Secretary, Thirumurugan Coop. Agricultural Credit Society Vs. M.Lalitha (dead) through LRs and others, 2004 AIR (SC) 448, M/s Fair Air Engineers Pvt. Ltd. Vs. N.K.Modi, AIR 1997 (SC) 533, National Seeds Corpn. Ltd., Vs. P.V. Krishna Reddy-I (2009) CPJ 99 (NC), S. Kumars Com Ltd., Vs. Amarendra Raiguru-II (2008) CPJ 177 (NC) and Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors.-I (2008) CPJ 404 (NC). The District Forum, in our considered opinion, had jurisdiction to entertain and decide the complaint. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail and same is rejected.

12.                 The next submission of the Counsel for the appellant was that due to non-payment of three consecutive equated quarterly installments by respondent No.1/complainant, the allotment of flat, was cancelled on 31.10.2010 itself as per Clause 5(b)of the allotment letter (Annexure C-1). It was further the submission of the Counsel for the appellant that the cancellation of flat was automatic and there was no need to send the cancellation letter and, as such, the letter dated 16.12.2010 was merely a communication. As per Clause 5(b) of the allotment letter,  if the allottee failed to pay three consecutive equated quarterly installments after payment of 15% earnest money, but before and after the offer of possession, then the flat may be cancelled after deducting 100% of the receipt of earnest money (15% earnest money). As per this Clause, the appellant was certainly entitled to cancel the allotment of flat, but it was nowhere mentioned in the Clause aforesaid that the cancellation of flat would be automatic.  Hence, it could not be concluded that the cancellation of flat was automatic. Once, the appellant decided to cancel the allotment of flat, then keeping in view the principle of natural justice, it was obligatory on its part to issue prior notice thereof to the complainant. In the present case, no such notice regarding the cancellation of flat, was ever issued to the complainant.  Admittedly, the appellant vide letter dated 16.12.2010 informed the complainant regarding the cancellation of flat and the same was received by him on 27.12.2010. Immediately after receipt of the said letter, the complainant, as per Clause 5(c) of the allotment letter, made a representation within 60 days to the Managing Director and showed his willingness to pay all the due installments alongwith interest but the same was rejected without assigning any reason, whatsoever. In our view, though it was the discretion of the Managing Director either to accept or cancel the allotment of flat yet the same should have been done in accordance with the terms and conditions of the allotment letter by giving reasons therefor but, in the present case, the representation was rejected without assigning any plausible reason. Thus, the appellant was certainly, deficient in rendering, the service.

13.                 In view of the above discussion, we are of the considered opinion that the order passed by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission.

14.                 For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order, as to costs. The order of the District Forum is upheld.

15.                 Certified Copies of this order be sent to the parties, free of charge.

16.                 The file be consigned to Record Room, after completion.

Pronounced.                                                                          Sd/-

08.10.2012                               [JUSTICE SHAM SUNDER[RETD.]

                                                                                 PRESIDENT         

                                                                                                                        Sd/-                                                          [NEENA SANDHU]

                                                                                                MEMBER

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