(Delivered on 21/04/2023)

PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL  MEMBER.`

1.         Appellant – Bhagyashree Gruh Nirman Sahakari Sanstha Ltd.   has preferred the present  appeal feeling aggrieved and dissatisfied by the impugned order dated  09/03/2020 passed by the learned District Consumer Forum, Nagpur  in Consumer Complaint No.  RBT/CC/265/2019, this second complaint  filed by the  respondent –Madhukar Nagorao Sengraphwar  which came to be allowed and appellant- Bhagyashree Gruh Nirman Sahakari Sanstha Ltd. (hereinafter referred as Society) was directed  to allot  one plot  and also execute  the sale deed on receipt of amount  of  Rs. 22,662/- or in the alternative to pay  the amount  as per Government  ready reckoner  for the  plot admeasuring  1334 Sq. fts.  along with interest. (Appellant and respondent shall hereinafter be  referred as per  their original nomenclature)

 2.        Short facts leading to filing of the appeal may be narrated as under;

            Complainant –Madhukar Nagorao Sengraphwar claims to be resident at Umred Road, Nagpur and claims  to have retired  from service  as Agriculture  Assistant  in the year 1998. The complainant has alleged that  in the  year 1994 he was in need of  one plot for constructing his  own house  and so he became a member  of the O.P.- Bhagyashree Gruh Nirman Sahakari Sanstha Ltd. by paying  Rs. 50/- and also paid sum of Rs. 1000/- towards booking amount. The complainant has alleged that  his name was figuring  at Sr. No. 205 in the list of  members  maintained by the O.P- Society  but O.P- Society  did not  allot any plot  to him  and instead allotted  one plot  No. 34 to Valmik Ambekar who was at Sr. No.  206 on 11/07/2000 and thereafter  executed  the sale deed by  accepting  an amount of Rs. 24,701/-. Complainant has contended that  the O.P- Society  had also  allotted  plots  to as many as  35 members  and 4 members  out of them have been allotted 2 plots each. The complainant  has contended that  in the list dated 31/03/2010 his name  was shown  at Sr. No. 101 but despite  having  accepted  amount of  deposit of Rs. 1,000/- . the O.P.-Society  allotted one plot  to Valmik Ambekar who was  at Sr. No. 102 though  the said member had not paid any amount.  Complainant – Madhukar has alleged that  he had also  paid an amount of Rs. 1,00,000/- to  Ranjit  Narayan Shirke  who was the  Secretary  of the O.P.-Society  but he did not  give any receipt  and the conversation   with the Secretary  regarding   payment  was also  duly   recorded  in the Cassette. The complainant has contended that  earlier  the complainant  had filed  a complaint  under  the Consumer Protection Act, 1986 bearing No. 17/2005 and  it was allowed on 21/12/2006 and  thereafter the  appeal bearing No. 70/2007 was preferred  by the O.P.- Society  to the State Consumer Commission and the  State Consumer Commission   decided the  said appeal  and the order  in Consumer Complaint No. 17/2005 was set aside and the complaint was dismissed.  The complainant has contended that thereafter he preferred a Revision Petition before the Hon’ble National Commission bearing No. 672/2014 wherein  Hon’ble National Commission  decided the revision petition No. 672/2014 on 24/02/2014 and  directions were  given  to the O.P.-Society  to allot  a plot to the complainant as he was a member  of the Society  and in  pursuance  of the same,  the complainant  sent  a letter  on 27/01/2015 to the Society,  asking  the Society  to allot  one plot  out of plots Nos. 67,259 and 260 but  there was no response  from the Society. The Complainant has contended that he came to know that the plot No. 67 was allotted to one Anil Gunwant Devgade but no sale  deed was executed.  The complainant has alleged that  by  not allotting any plot  to him the O.P.-Society  has committed  Deficiency  in Service as well as  Unfair Trade Practice and so he filed the  second  consumer complaint bearing No. 713/2015 which  came to be dismissed on 10/07/2017 on the ground  of Res Judicata and  the Appeal No. 170/2018 was  therefore  filed by the complainant  which was allowed  and matter was remanded to the District Consumer Forum, Nagpur  holding that Principle of   Res Judicata  is not  applicable  and to decide the  case for  deficiency  in service. The complainant  then filed consumer complaint No. 265/2019 directing the O.P.  to give documents of share (भाग भांडवल), booking amount, allot a plot  No. 259,260 and 67 for  Rs. 24,701/- and execute  sale deed. 

3.         After filing of the complaint due notice  was issued to the O.P. – Society by  District Consumer Forum and  O.P.- Society  appeared  and resisted  the complaint  by filing  detailed  written version  on record.  The O.P.-Society has admitted that complainant – Madhukar was a Member of the Society since   the year 1994 and had also paid  Rs. 50/- as membership  fee and Rs. 1,000/- as deposit . However, the O.P. has denied that it had indulged in any deficiency in service and have allotted any plot to other person in preference to the complainant.  At the outset  the O.P. has contended that  the complaint preferred  by the present complainant  was not at all tenable  in law as the same was  barred  by the Principle  of  Res Judicata  as the  complainant  had  earlier also  filed  two similar complaints  against the  O.P-Society  in respect of same cause of action and also  same subject matter. The O.P. has contended that the complainant has filed this third  complaint on the same facts. The O.P. has  contended that  earlier  complaint filed by the complainant  on similar  facts  had come to be dismissed and  said order  has  also  attained   finality in the appeal till the National Consumer  Commission. The O.P. has further  contended that  there was  no cause of action  to file  the present  complaint  as the National Consumer Commission had only observed  that the Society  may  consider  to allotment  of plot if  same  is available  but no such  evidence  has been adduced  on record.  The complainant has also not paid any amount towards cost of the plot since 1994 and there is no deficiency in service or Unfair Trade Practice on the part of the O.P. /appellant –Society. The O.P. –Society has also contended that  the Executive Committee of the Society has also come to be suspended  and Administrator  has also come to appointed as per order passed by the District Deputy  Registrar dated 25/11/2014.  O.P- Society has contended that  the office bearer   have  no control over  the Society. For the  foregoing  reasons  the O.P.-Society  has  contended that  the complaint filed  by the Complainant – Madhukar is not  at all  tenable  in law and deserves to be  dismissed with cost.

4.         The learned District Consumer Forum, Nagpur thereafter recorded the evidence led by the complainant as well as O.P. The learned District Consumer Forum, Nagpur   went through the documents filed by both the parties as well as written notes of arguments. After appreciating  the evidence adduced  on record, the learned District Consumer Forum, Nagpur  came to the conclusion  that  the bar of Res Judicata was not applicable  and there was  deficiency  in service  on the part of the O.P.-Society  by not  allotting any plot  to the Complainant. The learned District Consumer Forum, Nagpur therefore partly allowed the complaint and directed the O.P.-Society to allot a plot admeasuring 1334 Sq. Fts.  by accepting  a sum of Rs. 22,662/- and thereafter  execute  the sale deed  or in the alternative  to pay  amount in lieu of plot  as per  Government Ready Reckoner  along with interest  at the rate of 6%. The learned District Consumer Forum, Nagpur  also directed  the O.P.- Society to pay compensation  of Rs. 5,00,000/- and also to pay  Rs. 10,000/- towards cost of  litigation as per judgment  and order dated 09/03/2020.  Aggrieved by the impugned order dated 09/03/2020 passed by the learned District Consumer Forum, Nagpur the present appellant has come up in the present appeal.

5.         We have heard Mr. S.B. Solat, learned advocate appearing for the appellant and Mr. Mishrikotkar, learned advocate appearing for the respondent /complainant. We have also perused the record and proceedings in Consumer Complaint No. RBT/CC/265/2019.  On the basis of the facts stated above the following points arise for our determination  with our findings  recorded against the same.

Reasons

6.         At the outset  it needs to be mentioned  that this is the  second round of litigation  between  the complainant –Madhukar who claims  to be a Consumer  and O.P.-Society in connection with  alleged  deficiency  in service by non allotment  of plot to the Consumer/Complainant.  Before dealing with the  rival contentions advanced  by  Mr. S.B. Solat, learned advocate  appearing for the appellant  and Mr. Mishrikotkar, learned advocate  appearing for the respondent  it would be pertinent   to  mention   certain  undisputed  facts.

7.         It is not in dispute  that the complainant – Madhukar  Sengraphwar became  a member  of the O.P.- Society  by paying  membership  fee of Rs. 50/- and booking  amount of Rs. 1,000/-. It is  also  not in dispute  that the  complainant –Madhukar Sengraphwar  had earlier  preferred  a complaint bearing  complaint  No.17/2005 in respect of Khasara No. 11, 29 to 32 in respect of plot  admeasuring  1500 Sq. fts.  and this complaint  came to be decided  on 21/12/2006. It appears that thereafter the appeal came to be preferred bearing appeal No. A/07/70 and same came to be decided on 16/12/2013. It is also an admitted fact that thereafter the complainant has preferred the Revision Petition before the National Consumer Commission bearing Revision Petition No. 672/2014. It is not  in dispute that  the order of dismissal  passed by the  State Consumer Commission came to be  confirmed  by the National  Consumer Commission but the  Hon’ble National Consumer Commission  made  observation that  the O.P. Society  may consider  to allot  a plot  to the complainant- Mr. Madhukar as he was  the member  of the O.P. Society  as per  provisions of law.  Complainant –Madhukar thereafter  issued  a letter  addressed to the O.P. Society  on 27/01/2015 and asking  the O.P.-Society  to allot one plot out of  plot Nos. 67,259 and 260 but  the  Society  sent  a reply that  no plot  was available . The complainant  then sent  reply stating that  the plot Nos. 259 and 260 were  allotted  to one  member  and  so one allotment  be cancelled and  plot  may be allotted  to him as he was waiting  for plot since  last 13 years. There is also not in dispute that thereafter the present complainant preferred another consumer complaint bearing No. CC/713/2015 and  the same  came be dismissed  on the ground  that  the  complaint  was  barred by the  Principle  of Res Judicata  as per Section 11 of  Civil Procedure Code (C.P.C.). Against the said order  dated 10/07/2017 the present  complainant  has preferred the  appeal  bearing No. A/18/170 before the State Consumer Commission and  appeal  was allowed  on the ground that  the Principle  of Res Judicata does not  apply  to the  proceedings  under the  Consumer Protection Act, 1986 and the  complaint was remanded back for deciding  afresh  on merits by keeping all  the options  open  to the parties.

8.         In the backdrop  of the above  facts, the present  complaint  came  to be filed  before the learned District Consumer Commission, Nagpur  and  evidence was also  led  by  both the parties afresh  and same came to be  decided  as per  impugned order dated 09/03/2020. Mr. S.B. Solat, learned advocate appearing for the appellant /O.P. has challenged the impugned order dated 09/03/2020 on several counts and we will deal with them  one by one.

9.         At the outset  It is contended  by Mr. S.B. Solat, learned advocate  for the appellant that the learned District Consumer Commission, Nagpur  has not appreciated  the law and facts  in proper  perspective  and therefore has come  to conclusion   which was erroneous in nature. It is submitted  by  Mr. S.B. Solat,  learned advocate  for the  appellant  that  the present  complainant –Madhukar has preferred  this third complaint against  the Society  with the same  subject matter and same cause  of action and therefore,  the  complaint  is barred  by  ‘Res Judicata’.  It is submitted  by Mr. S.B. Solat, learned advocate for the  appellant   that  earlier  also the present  complainant  had preferred  one complaint  regarding non allotment of plot bearing complaint  No. CC/17/2005 and thereafter an appeal was preferred before the  learned State Consumer Commission bearing Appeal No. A/07/70 whereby the appeal came to be allowed and the earlier complaint filed by the present complainant –Madhukar had came to be dismissed. It is contended  that  complainant- Madhukar had thereafter  preferred  the Revision Petition  bearing  No. 672/2014 challenging  the order passed  by the State Consumer Commission but the  Revision Petition  came to be dismissed and thereby  the order passed by the State Consumer Commission, Circuit Bench, Nagpur came to be confirmed  and  thus  the order passed  by the State Consumer Commission, Circuit Bench, Nagpur in appeal No. A/07/70 had attained finality. It is submitted  by  Mr. S.B. Solat, learned advocate  for the appellant that  thereafter  despite this order  passed  in Revision Petition  No. 672/2014 the present  complainant- Mr. Madhukar had preferred the present  complaint on very  same  facts and also  same cause of action  regarding  non allotment  of plot and therefore,  the complaint  was hit   by  the Principle of Res Judicata as per Section 11 of Civil Procedure Code. It is also submitted  by Mr. S.B. Solat, learned advocate for the appellant  that  no cause of action  survived  for the  present  complaint and  in any case  there was  no cause of action  on the basis  of   some  observation  made by the  Hon’ble National Consumer Commission particularly when no plots were  available  with the Society.  In order to support his contention Mr. S.B. Solat, learned advocate for the appellant has drawn our attention to the facts as well as judgments passed in the earlier proceedings by the District Consumer Commission, as well as State Consumer Commission.  Beside this Mr. S.B. Solat, learned advocate for the appellant has also heavily relied upon  several authorities  and we will deal with them one by one. As  observed  earlier  there is no dispute  that  this is the  3^rd  consumer complaint  filed by the  Consumer- Madhukar regarding  deficiency in service against the  same Society  namely  Bhagyashree Gruh Nirman Sahakari Sanstha Ltd. In short it is the contention of the  complainant –Madhukar that  though  he had became a member  in the year 1994 and had paid membership  fee and also Rs. 1,000/- towards deposit,  yet he was not allotted a  single  plot and  instead  of  O.P. Society had also allotted plots to the   several  persons who became  member subsequently and  even  2 plots were  allotted  to  one member but we  shall deal with  this aspect  presently.  Firstly we will have  to examine whether  the  instant  complaint  is  hit by   the Principle of  Res Judicata as  provided  under Section 11  of Civil Procedure Code and secondly whether   the bar of Res Judicata is applicable  to the proceedings  under the Consumer Protection Act, 1986.

10.       Mr. Mishrikotkar, learned advocate appearing for the respondent /complainant has rebutted all the contentions and has submitted that the Principle of Res Judicata is not at all applicable to the proceedings under the Consumer Protection Act, 1986. In order to appreciate this aspect it is necessary go to the  earlier complaint filed by the complainant bearing No. 17/2005.  If we go through the said complaint, the complainant had demanded one plot admeasuring 1500 Sq. fts.  out of Khasara No. 11, 29 to 32,& P.H. No. 39A of Mouza Sakkardhara after making  the  payment of Rs. 1,00,000/- but in the instant  complaint  which is before us the complainant  has  demanded  one plot  out  of plot Nos. 67,259 and 260 by  cancelling  the  plot  No. 67 allotted  to one  Valmik Ambekar. As such  it cannot be  said that  the subject matter of  the earlier  complaint  was the same.  Mr. Mishrikotkar, learned advocate for the respondent /complainant  has submitted that  the complainant  was a member  of Society since the year 1994 and  was  waiting  for  plot and had filed  the complaint on the basis  of the observation  and direction  given in the Revision Petition No. 672/2014 by the  National Consumer Commission. Mr. S.B. Solat, learned advocate appearing  for the appellant  has also  submitted before us  that though  the complainant  had  claimed  allotment  of plot  out of  plot Nos. 67,259 and 260 yet it is  pertinent  to  note   that  the complainant –Madhukar has not paid the price of the plot  of Rs. 1,00,000/- as claimed by the complainant  nor the complainant  has placed on record any material  which could go to show that  any plot  was available  to the society  for  being  allotted to the Complainant –Madhukar. Mr. Mishrikotkar, learned advocate  appearing for the respondent/ complainant  has rebutted  this contention  and has submitted that  though the  complainant  had became  a member in the year 1994 and his name figured at Sr. No. 205.  the  appellant   had allotted  the plot to one  Valmik Ambekar though  his name  was at  Sr. No. 206 and thereafter had also executed one sale deed  in his favour. Further, Mr. Mishrikotkar, learned advocate appearing for the respondent / complainant has also pointed out from the  list of membership, copy of which  is filed on record that  four  persons were allotted  two plots.  Mr. Mishrikotkar, learned advocate appearing for the respondent /complainant has submitted that   complainant –Madhukar had also paid   a sum of Rs. 1,00,000/- on 03/09/1998 to Secretary- Ranjit Shirke but no receipt  was given but  we will  deal with  this aspect later.

11.       Coming back to the question of applicability of the Principle of Res Judicata raised by appellant /O.P.-Society. It is pertinent  to note  that this  Commission  in appeal No. 170/2018  decided  on 10/04/2019 had already  adjudicated  that  Principle of Res Judicata  is not applicable  in the Consumer Cases. However,  Mr. S.B. Solat, learned advocate appearing for the appellant has relied upon several authorities. At the outset he has relied upon one judgment of the Hon’ble National Consumer Commission in the case of Catherine De Souza & Anr. Vs. Bank of Maharashtra & Anr., (reported in I(2021) CPJ 44 (NC). Further he has also relied upon  one judgment  in the case  of Anwar Husein Mohmed Chokwala Vs. State Bank of  India & Ors., (reported in  III(2018) CPJ 199 (NC) and  the case of  Pradeep Vinayakrao Path and another Vs. Abhay Yuva Kalyan Kendra, Dhule, reported in [ 2022(I)Mh.L.J.].  We have carefully gone through these judgments on which reliance is placed by Mr. S.B. Solat, learned advocate appearing for the appellant.  In the case of Catherine De Souza & Anr. Vs. Bank of Maharashtra & Anr. the complainant  had approached  the Civil Court seeking injunction  against the  O.P. Bank but the Civil Court did not grant  any relief and so the complainant  approached  the Consumer Forum. It was observed that it was the case of Res Judicata and  on the same facts the complainant  had approached  the Consumer Fora.  In the case of Anwar Husein Mohmed Chokwala Vs. State Bank of  India & Ors. the complainant  had filed  the consumer complaint  before  the District Consumer Forum for the same cause  of action  but  between different parties.  It was observed that the fresh complaint was not maintainable under the Consumer Protection Act, 1986. We have also gone through the judgment in the case of Pradeep Vinayakrao Path and another Vs. Abhay Yuva Kalyan Kendra, Dhule. In that case the Hon’ble Bombay High Court was dealing with the Principle of Res Judicata under Section 11 of Civil Procedure Code and not under the Consumer Protection Act, 1986. Mr. Mishrikotkar, learned advocate appearing for the respondent/ complainant  has rebutted  this contention  and has submitted  that  the  Principle of Res Res Judicata  is not  applicable at all to the  proceedings under the Consumer Protection Act, 1986 as proceedings  are  in summary  in nature and all provisions  of C.P.C.  are not applicable.  On this aspect he has relied upon the judgment of the Hon’ble Supreme Court in the case of   N. Suresh Nathan & Ors. Vs. Union of India & Ors.,( reported in  2010(5) SRJ 93) and one judgment  of Hon’ble National Commission  in the case of Goa Urban Cooperative Bank Ltd. & Anr. Vs. Franklin Noronha & Anr, (reported in II(2008) CPJ 12 (NC). We have gone through both these judgments including the judgment in the  case of Goa Urban Cooperative Bank Ltd. & Anr. Vs. Franklin Noronha & Anr. In the case of Goa Urban Cooperative Bank Ltd. & Anr. Vs. Franklin Noronha & Anr. the facts  were  that  earlier  complaint  was  not  finally decided  on merits. It was observed by the Hon’ble National Commission that in such case the complainant was not debarred from re-agitating the matter and filing a fresh complaint is not hit by Res Judicata.  Further, Mr. Mishrikotkar, learned advocate appearing for the  respondent/complainant  has also relied  upon one judgment  of the Hon’ble Supreme Court in the case of Indian Machinery Company Vs. Ansal Housing  & Construction  Ltd., reported in I (2016) CPJ 15 (SC).  In that case the first complaint was dismissed in default for non prosecution. It was observed  by the  Hon’ble  Supreme Court that  the Rule of  prohibition  contained in  Order 9, Rule 9(1) CPC  cannot  be extended to the  proceedings  before  District  Forum or State Commission and second complaint   was maintainable. Secondly, it is necessary  to note that in the present  case the matter had gone earlier  to the  State Commission and State Commission in Appeal No. 170/2018 had given  finding also that  the Principle  of Res Judicata was not applicable  by  relying  upon the case of Goa Urban Cooperative Bank Ltd. & Anr. Vs. Franklin Noronha & Anr, reported in II(2008) CPJ 12 (NC). As such this contention  raised by Mr. S.B. Solat, advocate for the O.P.-Society relating to  applicability  of the Res Judicata is not tenable in law.  

12.       If we  turn back to the facts, we find that in the present  case  the earlier  Consumer  Complaint  filed by complainant – Madhukar against the O.P.-Society bearing Complaint  No. 17/2005 was decided finally on merits but  as pointed  out  earlier  the  subject  matter in the instant complaint  was different as the complainant  had claimed  one plot out of plot Nos. 67,259,260 though the parties were same. Whereas  in  earlier complaint  No.17/2005 the present  complainant  had demanded one plot out of Khasara No. 11 and 29 to 32 from the Society.

13.       The next  contention advanced  by Mr. S.B. Solat, learned advocate appearing for the appellant  is that  complainant –Madhukar has filed this  false complaint only on the basis  of  the  certain observation  made by the Hon’ble National Commission in Revision Petition  No. 672/2014.  It is submitted that complainant –Madhukar had not paid any price for the plot and no plot was available with the O.P.- Society for allotment. Further the complainant had also given up  his right to claim plot Nos. 259 and 260. But , the O.P. Society had already executed the registered sale deed in respect of plot No. 67 in  favour of one Mr. Anil Devgade on 28/06/2018 and so  there was no cause of action  for the complainant  to file  the complaint. Mr. Mishrikotkar, learned advocate appearing for the respondent /complainant  has strongly rebutted  this contention  and has submitted that  the complainant  was waiting  since  beginning  for allotment  of plot and Society  had  allotted  plots  to  persons unlawfully  who became  member subsequently by ignoring genuine claim of the complainant. During the course of arguments, the learned advocate for the respondent /complainant has drawn our attention again to the list of members dated 31/03/2010. It is contended that the complainant was the member of O.P-Society.  One plot was allotted to another member Valmik Ambekar though no deposit was made by Valmik Ambekar.  Similarly one plot bearing No. 67 was allotted to Anil Devgade though no deposit was made by him. Plots were also not allotted as per first come first serve basis and same  amounted to deficiency  in service.  Mr. S.B. Solat, learned advocate appearing for the appellant has pointed out that plot No. 67 which is claimed by the complainant is already allotted to Mr. Anil Devgade and copy of the sale deed was also filed on record.  On the other hand, the complainant has never paid price and there is no evidence to that effect filed on record.  At this stage  it is necessary  to mention  that this  aspect  regarding  payment of price by the  complainant  was also  considered by the Hon’ble National Commission in  Revision Petition No. 672/2014 and it was observed  that  the  complainant has  failed to  establish the payment  of Rs. 1,00,000/- to the O.P.- Society but the complainant  is relying  only upon  observations  made in the Revision Petition   that  the  Society  may consider  to allow him the plot as per  the provisions of law and facts. It is pertinent  to note that  the O.P.-Society  has not given  any reason or explanation  as to why  plots were  allotted  to  subsequent  purchaser  and not to complainant – Madhukar.  It was easily  open to the complainant  to adduce positive  evidence  on this aspect  but no such  evidence is forth coming.

14.       Considering the directions of the  Hon’ble National Commission  in Revision Petition No. 672/2014 it appears that  the  complainant  approached  the O.P.  requesting  to   allow  him a plot either  of 67, 259,  and 260. It  reveals that  O.P. replied to complainant-Madhukar  that his case  cannot be considered on the ground that  there is no plot available  for  allotment. It appears  that  complainant contended  that two plots  259 and 260 are allotted to one Udaysingh Narayanrao Shirke  and a plot No. 67 is allotted  to  Anil Devgade and there is no  sale deed  executed  in Devgade’s favour.  It reveals  that  O.P. submitted  during the course of argument  that  Mr. Udaysingh was allotted two plots considering will  deed  made by earlier  land  owner and  sale deed is also executed in favour of O.P.No. 2- Anil Devgade on 28/06/2018 and there is no plot available for  allotment  to complainant. It reveals  that  complainant has  already deleted Udaysing Shirke from complaint and not pressed plot  Nos. 259 or 260. On the basis  of the aforesaid facts, it is contended by  Mr. S.B. Solat , learned advocate for the O.P. that  in the present case mixed question  of facts and law are involved and same cannot be decided in the summary  manner and therefore, the matter requires  to be decided by Civil Court. On this aspect Mr. S.B. Solat, learned advocate for the O.P. placed reliance  on various  authorities namely  the case of Bhagwandas Khubchand Mulani Vs. Manager, Cargo Motors Ltd. & Anr. decided by Gujarat State Consumer Commission,(reported in I(2004) CPJ 529),  Manas Developers Vs. Madhur Arjun Bhabal & Anr. (reported in III(2015)CPJ 192 (NC), Ludhiana Improvement Trust, Ludhiana and another Vs. Shakti Cooperative House Building Society, (reported in 2009 CTJ 594 (Supreme Court) (CP),  and case of Oriental Insurance Company Ltd. Vs. Munimahesh Patel, (reported in 2006 CTJ 1073 (Supreme Court) (CP). We have carefully gone through  all these authorities  but on going  through the same  we are of the view that  the same are not applicable to the present  facts, in view of the facts involved in that case.  Admittedly, we find that  in the present case  before us complainant –Madhukar has only claimed allotment  of  one plot from the  Society of  which he was a member  and so  it cannot be said that  there was any complicated  question  of law involved. As such  this plea raised by  Mr. S.B. Solat, learned advocate for the O.P./appellant  cannot be accepted. During the  course of argument  it is also submitted by Mr. S.B. Solat, learned advocate  for the  O.P. that  complainant  had not paid  amount of Rs. 1,00,000/- as claimed but we have already referred to this aspect and this question  has also  been  dealt with  by the Hon’ble National Commission in Revision Petition  No. 672/2014. Even otherwise once the complainant  was a Member of the Society  since 1994, it was  open  to the O.P.-Society  to demand  the price as alleged but no letter is placed on record demanding the same  and so the complainant was required  to write a letter to the O.P.-Society  and thereafter  to knock the door of the Consumer Fora. At the cost   of  repetition it may be observed  that the O.P. has not given  any  satisfactory  explanation as to why the plots came  to the allotted to  persons  who became  member subsequently and  not to the complainant.  Mr. Mishrikotkar, learned advocate for the respondent /complainant   has pointed out  from  the  complaint  itself that  one plot was allotted to one Valmik Ambekar who was at Sr. No. 206 whereas  the name of the complainant  is at Sr. 205 after  accepting  amount of Rs. 24,701/-. According to the complainant  the  said Valmik Ambekar had not deposited  any amount with the Society.  If we go through  the judgment  delivered  by the learned District Consumer Commission, the learned District Consumer Commission has elaborately dealt with this aspect .

15.       Further, Mr. S.B. Solat, learned advocate  for the O.P./appellant  has also taken  a plea that the present  complaint  was  barred  by limitation  and also there was  no cause of action  for  filing the present  complaint as complainant –Madhukar had become  a member in the year 1994 and complaint  came to the filed  in the year 2015. On this  aspect Mr. S.B. Solat, learned advocate for the O.P./appellant  has also relied upon one judgment  in the case of Secretary Vs. Santosh Kumar, (reported in  (2010) 8 Supreme Court Cases 353) and we have gone through the same.  However, Mr. Mishrikotkar, learned advocate  for the  complainant /respondent  has submitted that  the question  of limitation would not arise  as  there was continuous  cause of action  due to non allotment  of plot. On this aspect he has relied upon one judgment in the case of K.C. Bhatia Vs. Huda and Anr., (reported in 2017(2)CPR 228 NC) and we have gone through  the  same. No doubt the complainant –Madhukar had earlier  also filed  the  complaint which  was  similar in nature  but in the  present  case before us  after the order was passed in the revision petition  No. 672/2014 the complainant  had again issued  a letter on 27/01/2015 for allotment  of plot and  so it can be said that  fresh  cause of action  has arisen  due to refusal  on the  part of the Society. As such  this contention  raised  by the O.P.-Society /appellant  relating to the  bar of limitation is not  tenable  in law.  Admittedly, though  the complainant  had earlier  also filed complaint despite  became  the member  of the O.P.-Society, he was not allotted the plot.  Mr. S.B. Solat, learned advocate for the O.P./appellant  has submitted that  the sale deed has been already  executed  in respect of plot No. 67 on 28/06/2018 but  no evidence is  led by the appellant /O.P.-Society  to show  as to why no plot was allotted to the complainant and so this contention also  is not  tenable  in law.

16.       If we turn to order dated 09/03/2020 passed by the learned District Consumer Commission, the learned District Consumer Commission has not directed O.P.-Society to allot the plot No. 67 as claimed but has only directed the O.P.-Society to  allot  one plot admeasuring  1334 Sq. fts. after accepting  consideration  of Rs. 22,662/-. The learned District Consumer Commission has also directed the O.P.-Society that in case the plot is not available to pay consideration for the plot admeasuring 1334 Sq. fts. as per Ready
Reckoner  after deducting   the amount already paid  by the complainant and also  to pay compensation.  Obliviously compensation was awarded looking to the fact that the complainant was not allotted the plot since he became a member in 1994.

17.       Sum and substance  of the aforesaid discussion  is that  as  complainant –Madhukar was not allotted  the plot despite  being  the member  of the O.P.-Society, the same amounted  to deficiency  in service as well as unfair trade practice.  Further  we are  also  of the view that  as no plot was allotted to the complainant  whereas  several plots were  allotted to subsequent members the same  has caused  mental and physical harassment  to the complainant and so the complainant  was also  entitled  for compensation  on this count.  In the light of aforesaid  discussion  we are unable  to accept  the contentions advanced by  Mr. S.B. Solat, learned advocate for the O.P./appellant  that  the learned District Consumer Commission has not appreciated  the evidence  in proper  perspective. On the other hand  we find  that the learned District Consumer Commission  has elaborately dealt with  evidence and so we do not find  any reason  to interfere with these findings and so we hold that  the appeal filed by  the appellant /Opposite party-Society was  not tenable  in law and so   pass the following  order;

ORDER

i.          Appeal is  hereby dismissed.

ii.          Appellant to bear his own cost as well as cost of the respondent.

iii.         Copy of order  be furnished to both the parties, free of cost.