PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :

1) In brief present dispute is as under –

      That the Complainant is a member of the Mount Everest CHS Ltd., 12, Pedder Road, Padam Hill, Mumbai – 26, having 5 shares bearing No.36 to 40 as per Share Certificate No.8. According to the Complainant he has been given to understand that if an elected members of the managing committee of registered co-operative housing society particularly the Co-opted Member, Treasurer, Secretary and Chairman do not comply the resolution passed by the General Body of AGM and if they do not reply a letter of the member it is deemed to be deficiency of service and negligence of duty under the Consumer Protection Act, 1986, and therefore, he has filed this complaint. Initially, the Complainant has filed this complaint against in all five persons. After filing of this complaint and before admission of the complaint the Complainant deleted names of the Opposite Party No.1 – Mr. S.K. Kapoor and Opposite Party No.5 without making application in writing for deleting the names of the Opposite Party No.1 & 5. The notice of this complaint was issued against Opposite Party No.2, 3 & 4.

2) It is averred by the Complainant that Opposite Parties are members of the said society and they have got themselves elected and self appointed as members of the managing committed. Problems mentioned in this complaint has been raised by the Complainant to various authorities viz; Opposite Party No.1 to 5, the Hon. Secretary/Hon. Chairman of the society, the Dy. Registrar of the societies of Maharashtra Government.

3) Main grievance of the Complainant is as under –

    That in the AGM held on 10/08/02, one of the member of the society pointed out to Opposite Parties that filing of income tax return with the Income Tax Authorities is compulsory before 31/10/02 and accordingly the General Body authorized to Opposite Party to appoint qualified C.A. to do the needful. Copy of minutes of AGM held on 10/08/02 is filed alongwith complaint at Exh. ‘B’. The Complainant has produced copy of his share certificate at Exh. ‘A’. It is submitted by the Complainant that Opposite Parties failed to implement important decision of filling of income tax return decision taken in AGM on 10/08/02 till end of 2008. On 05/11/08, after the gap of about 6 years Opposite Parties obtained detailed working from CA who has submitted “Tax liability for filing of income tax and other returns for society is approximately 3 Lacs for the past 3 years.” If Income Tax Department insist for filing the return for the past 6 years then the tax liability is of Rs.13,50,000/-. The Complainant has produced true copy of the minutes meeting of the managing committee held on 05/11/08 alongwith complaint at Exh. ‘C’. According to the Complainant Opposite Parties failed and neglected to file income tax return inspite of decision taken in the AGM held on 10/08/02 for about 6 years. Opposite Parties circulated Balance Sheet on 31/03/09 without explanatory statement of the said society wherein Rs.3,13,138/- is shown as assets. Opposite Parties paid only income tax for past 3 years and not for past 6 years. No explanation whatsoever was given for not filing income tax return for balance 3 years. Further, no explanation is given for extreme delay caused in filing of return. According to the Complainant, it is an established liability of the society to file income tax return for 6 years which was self assessed at Rs.13,50,000/-. If any penalty or interest which will arise out for such extreme delay for the left over liability of balance 3 years which is as assets and arrived at by Opposite Party at Rs.10,50,000/- will be of the Opposite Parties. Statutory Auditor has observed “Income Tax paid of Rs.3,13,138/- has not been debited to profit & loss account.”

4) According to the Complainant amount of Rs.3,13,138 which was paid is not only towards income tax, but in fact out of that amount of Rs.2,30,569/- was paid towards Income Tax of 3 years from the year 2006-07 to 2008-09 and an amount of Rs.83,066/- was paid towards the interest for the delay caused in payment of Income Tax. If the Opposite Party had paid income tax within stipulated period, the amount of Rs.83,066/- must have been saved. Therefore, Opposite Parties are liable to pay Rs.83,066/- to the Mount Everest Co-op. Housing Society Ltd. It is alleged that Opposite Parties have caused deliberate delay in filing of income tax which has resulted in huge loss to the society and it amounts to deficiency in service on the part of Opposite Parties.

5) It is submitted that on 01/07/09, Opposite Parties have tendered their resignation. Even then they actively participated in the meeting of the managing committee which was held on 28/07/09. In the said meeting of management committee decision was taken to the contest the complaint lodged by the Complainant against Opposite Party No.2, 3 & 4 before this Forum. The aforesaid decision was not only unethical but it was unfair. Managing committee in the aforesaid meeting decided to appoint Advocate Mr. Vijay Dhadam and paid sum of Rs.20,000/- to Adv. Mr. Vijay Dhadam. The said society has not given any approval to the decision of managing committee to contest private complaint. According to the Opposite Parties, they are liable to refund an amount of Rs.20,000/- to the society alongwith interest @ 18% p.a. The Complainant has prayed to direct Opposite Parties to pay to the society an amount of Rs.1,55,121/-. Particulars are given in the complaint para no.55. the Complainant has further requested to direct Opposite Parties to pay interest @ 18% p.a. on Rs.1,55,121/- and to pay cost of this complaint. In support of the complaint the Complainant has filed the affidavit of evidence and produced documents alongwith list of documents.

6) As mentioned above initially the Complainant has filed complaint against Opposite Party No.1 to 5. However, before admission of complaint the Complainant deleted names of Opposite Party No.1 & 5. Therefore, notice was issued only against Opposite Party No.2, 3 & 4. Opposite Party No.2 – Mr. Vijay Ahuja, inspite of service with notice of the complaint has not appeared before this Forum, so ex-parte order was passed against Opposite Party No.2– Mr. Vijay Ahuja. Opposite Party No.2 & 3 (Original O.P. No.3 & 4) appeared before this Forum and filed Vakalatnama of Adv. Shri. U.B. Wavikar. Opposite Party No.2 & 3 have filed their common written statement and resisted claim of the Complainant contending that complaint is vague, false and fabricated and therefore, deserves to be dismissed with cost. It is alleged that the Complainant has approached this Forum with unclean hands and suppressed material facts from this Forum. According to the Opposite Parties, complaint is barred by law of limitation and therefore, complaint is liable to be dismissed. There is no cause of action to this complaint.

7) It is alleged that the Complainant is a habitual and the Complainant has already filed several complaints before this Forum on small and non maintainable issues. It is submitted that complaint is not maintainable before this Forum in the present Form as complaint is filed only against managing committee members of the society and society is not joined as a party. Complaint is outside the purview of the Consumer Protection Act, 1986.

8) It is submitted that the Opposite Parties are not service provider and therefore, no deficiency can be alleged against these members and therefore, on this ground complaint is liable to be dismissed. The Opposite Parties have denied allegations made in the complaint contending that allegations made in the complaint are false and frivolous. Opposite Parties are not guilty of deficiency in service and therefore, complaint deserves to be dismissed with cost.

9) Opposite Parties have filed an application for challenging maintainability of complaint. The Opposite Parties have raised following primary objection –

    1) Complaint is hopelessly time barred.

    2) Complaint is liable to be dismissed because of suppression of material facts.

      3) Complaint is not maintainable against managing committee members only as society is not joined as a party.

      It is further contended that Complainant is not a ‘Consumer’ of Opposite Parties, Jurisdiction of this Forum is specifically barred by the provisions of Maharashtra Co-op. Society Act, 1960. Therefore, complaint should be dismissed under the Consumer Protection Act, 1986. The Complainant has filed a reply/rejoinder and thereby denied allegations made by the Opposite Party No.2 & 3. We heard oral submissions of the Complainant Mr. Hasmukh Mehta in person and Ld.Advocate Shri. U.B. Wavikar for Opposite Party – Kirit H. Sheth & Mr. Sanjeev K. Shah.

10) Following points arises for our consideration and our findings thereon are as under -

      Point No.1 : Whether complaint is maintainable in the present Form under the Consumer Protection Act, 1986 ?

      Findings    : No

        Point No.2 : Whether complaint is barred by law of limitation ?

     Findings    : Yes.

 Reasons :-

Point No.1 :- On 10/01/2012, the Complainant has filed this complaint before this Forum initially complaint was filed against in all five persons. After filing of this complaint the Complainant was deleted names of Opposite Party No.1 – S.K. Kapoor and Opposite Party No.5 Unknown Members of the Managing Committee of the Mount Everest Co-op. CHS Ltd. It is vehemently submitted by the Ld.Advocate Mr. Wavikar for the Opposite Parties that the Complainant has tampered Court record. It submitted that this complaint is filed on 10/01/2012 thereafter, without making an application for amendment of the complaint and without obtaining written permission from this Forum the Complainant deleted names of Opposite Party No.1 & 5. According to the Ld.Advocate it amounts to tampering of Court record. It is clear from the record that on 10/01/2012, the Complainant had initially filed this complaint against in all five persons. On 17/01/2012, the Complainant has deleted names of Opposite Party No.1 & 5 without making application for amendment of complaint and without obtaining permission. On 17/01/2012, this Forum has issued notice only against Opposite Party No.2, 3 & 4 only. Before passing issuance of notice, the Complainant had deleted names of Opposite Party No.1 & 5 but without making application for amendment and without obtaining written permission for the same.

            The Complainant is a member of the Mount Everest CHS Ltd., 12, Pedder Road, Padam Hill, Mumbai–26. He has produced share certificate alongwith complaint at Exh. ‘A’. The Complainant has filed this complaint against Opposite Parties submitting that Opposite Parties having themselves elected or self appointed members of the managing committee of the Mount Everest CHS Ltd. It is alleged that Opposite Parties were not diligent in discharging their duties. It is alleged by the Complainant that in the AGM dtd.10/08/02, resolution was passed to appoint qualified C.A. for filing income tax return but inspite of resolution dtd.31/10/02 for about 6 years i.e. upto 05/11/08, the Opposite Parties failed and neglected to appoint C.A. and to file Income Tax Returns. According to the Complainant, it was necessary to submit Income Tax return for 6 years and to pay total income tax of Rs.13,50,000/- but Opposite Parties on or about 19/03/2009 paid Rs.3,13,138/- to the Income Tax Department. Out of that amount, an amount of Rs.2,30,569/- was paid towards income tax and Rs.83,066/- was paid towards interest on account of delay and thereby caused huge loss to the society.

             Ld.Advocate for the Opposite Parties has submitted that in this case the Complainant has not joined the Mount Everest CHS Ltd. as a party to this proceeding. In fact, society is a service provider. X-Hon. Chairman, X-Hon. Treasurer, X-Hon. Secretary i.e. Opposite Party No.2 to 4 are not service provider. There is no relationship as service provider and consumer between the Complainant and Opposite Parties and therefore, present complaint is not maintainable under the Consumer Protection Act, 1986 and deserves to be dismissed.

              It appears that there is no privity of contract and consumer relationship between the Complainant and Opposite Party No.2 to 4 who were X-Managing Committee Members of Mount Everest CHS Ltd. In the complaint para No.3, the Complainant specifically averred that “he has not named the said society as Opposite Party, simply to save time and energy of other elected representatives.” It is fact that without joining the Mount Everest CHS Ltd. the Complainant has filed this complaint against the office bearer of this society. The Complainant has not paid any consideration to the Opposite Party No.2 to 4 for their alleged services and there is no relationship as a consumer and service provider between the Complainant and Opposite Party No.2 to 4. Therefore, present complaint is not maintainable under the Consumer Protection Act, 1986. It is further to be noted that initially the Complainant had filed the complaint against all five persons. Mr. S.K. Kapoor, who was joined Opposite Party No.1, as X-Member of the Managing Committee and Opposite Party No.5, were other members of the Managing Committee, but the Complainant has deleted their names. Therefore, complaint is also bad for non joinder of necessary parties. For the reasons discussed above we answer point no.1 in the negative.

Point No.2 :- It is case of the Complainant that in the AGM of the Mount Everest CHS Ltd. held on 10/08/02, one of the member point out that filing of income tax return with the income tax authority is the compulsory before 31/10/02 and therefore, General Body Authorized Opposite Parties to appoint qualified C.A to do the needful. The Complainant has produced true copy of the minutes of general body held on 10/08/02. It appears from the resolution no.8 that Mr. Gokani pointed out that filing of income tax return with the Income Tax Authorities is compulsory before 31/10/2002 and therefore, it was decided to appoint qualified C.A. for the same. Ld.Advocate Shri.Wavikar for the Opposite Party No.2 & 3 by referring to the minutes of AGM dtd.10/08/02 pointed out that present Complainant was present in AGM held on 10/08/02, so he was personally aware about the resolution passed in the AGM. In the said AGM name of the Complainant appeared at Sr. 5 of the members who were present in the said meeting. It is submitted that cause of this complaint took place on or about 31/03/2003 when the society was supposed to file Income Tax Returns and this complaint is filed on 10/01/2012. It is submitted that as per the provisions of Sec.24(A) of the Consumer Protection Act, 1986, complaint is required to be filed within 2 years from the date of cause of action. For this complaint cause of action took place on 31/03/2003. Therefore, present complaint is hopelessly barred by law of limitation.

             According to the Complainant, after passing of aforesaid resolution in the AGM dtd.10/08/062 after lapse of 6 years the Opposite Parties paid income tax of Rs.3 Lacs for the last 3 years and that time on account of delay in payment of income tax Opposite Parties paid Rs.83,066/- as an interest on income tax of Rs.2,30,569/-. From the copies of income tax form submitted by the Complainant it appears that income tax return was filed on 19/03/09. Even then from the date of submitting all income tax return i.e. from 19/03/09 present complaint is not filed within period of limitation of 2 years. It was necessary for the Complainant to file this complaint on or before 19/03/2011. Present complaint is filed on 10/01/2012. Delay of about 1 year is caused in filing of this complaint. It is alleged by the Complainant that Opposite Parties have illegally and unethically passed resolution of the meeting of Managing Committee to appoint Advocate Mr. Vijay Dhadam to file private complaint against Opposite Party No.2 to 4. Said meeting was held on 28/07/09 and accordingly an amount of Rs.20,000/- were paid on or before 01/08/09. Ld.Advocate for the Opposite Party has submitted that the Complainant is in habit to file false and frivolous complaints against managing committee members of the Mount Everest CHS Ltd. and therefore, in the interest of society it was necessary to appoint an advocate to defend frivolous complaint. It is submitted that even according to the Complainant, resolution was passed by the managing committee in the meeting held on 28/07/09 and as per the resolution amount was paid on or before 01/08/09. This Forum has no jurisdiction to decide illegality of resolution passed in the AGM as well as meeting of managing committee. The Complainant’s claim for the amount Rs.20,000/- is also not within limitation. Allegedly said amount was paid on or about 01/08/09. Therefore, the Complainant ought to have filed this complaint before this Forum on or before 01/08/2011. Complaint which is filed before this Forum on 10/01/2012 is hopelessly time barred. There is no application for condonation of delay. For the reasons discussed above, we hold that complaint is barred by law of limitation. Hence, we answer point no.2 in the affirmative.

              For the reasons discussed above the complaint deserves to be dismissed. Hence, we pass following order -

O R D E R

i.Complaint No.04/2012 is dismissed with no order as to cost.

ii.Certified copies of this order be furnished to the parties.