PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        The Complainant has prayed that the Opposite Party be directed to pay Rs.60,000/- towards compensation alongwith interest @ 18% p.a. from the date of complaint till its realization.  Besides this the Complainant has also prayed that the Opposite Party Non1 to 3 be directed to pay Rs.45,000/- to the Society of the Complainant.  It is also prayed that the Opposite Party No.4 be directed to pay Rs.15,000/- to the Legal Aid Society of this Forum.  It is also prayed that this Forum may direct the Bar Council of Maharashtra and Goa to take appropriate punitive/disciplinary action against Opposite Party No.4 under Section 35 of the Advocates Act, 1961.  The Complainant further prayed that the Opposite Parties 1 to 3 be directed to issue the clean bill to the Complainant and cost of this complaint.

 2)        The Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986, against the Opposite Parties alleging that he is a member of the Mount Everest CHS Ltd. having 5 shares bearing No.36 to 40 as per Share Certificate No.8. The copy of Share Certificate is marked as Exh.‘A’. According to the Complainant, if an elected members of the managing Committee of Registered Cooperative Housing Society, such as, Treasurer, Secretary and Chairman do not comply the resolution passed by the General Body at Annual General Meeting and if they do not reply a letter of the member it is deemed to be a deficiency of service and the negligence of duty under the Consumer Protection Act, 1986 (hereinafter referred to as an Act).  It is alleged that the Opposite Parties No.1 to 3 are Treasurer, Secretary and Chairman of the Society of the Complainant.  The Opposite Party No.4 is an advocate and had given legal service to the Opposite Party No.1 to 3 on professional basis and therefore, it is alleged that he has given the service to the Complainant since, his appointment was on behalf of the Society. 

 3)        According to the Complainant, he reliably understood that Managing Committee of the Society has not given power to Opposite Party No.1 to 3 to take the service of Opposite Party No.4 in any litigation before the Court of Law. It is alleged that the Complainant has not named the Society as Opposite Party simply to save time and energy of the other elected representatives who are giving their service to the Society on honorary basis.  The Complainant has further alleged that if needed he be permitted to add the Society and other elected members as Opposite Parties in the present complaint.    

 4)        It is alleged that till the end of 2006, the Complainant has paid his normal bills towards the Society to the Opposite Party No.1 to 3 who have issued proper receipts. The last receipt was bearing No.6777, dtd.28/12/06 for Rs.4,705/- being full and final payment of Society’s due for the period of Oct. – Dec., 2006.  According to the Complainant, he received bill No.3912, dtd.01/01/07 for Rs.1,64,475/- which is marked as reference ‘A’ from the Opposite Party instead of normal bill of Rs.4,705/-.  The said bill consist of Rs.20,000/- towards alleged legal charges and balance being parking charges @ Rs.50/- per day though he has not parked his car in the compound of the Society.  According to the Complainant the figure shows in the aforesaid bill is not correct and according to the resolution.  It is alleged that he thereafter in constant contacts with the Opposite Party No.1 to 3 for withdrawal of the said bill and he has also met almost all the members of the managing committee.  It is alleged that the Opposite Party No.1 who signed the bill No.3912 has informed that the said bill has been raised as per the instruction of the Opposite Party No.2 and he cannot help. The Opposite Party No.2 has not responded the written requests and has not taken any initiative to correct the aforesaid bill.  The Opposite Party No.3 has informed that he has his political compulsion and he cannot help.  The Opposite Party No.4 had issued threat letters without verifying the details. 

 5)        According to the Complainant, he wrote mercy petition dtd.07/02/07 and 20/02/07 to the Opposite Party No.2 and gave explanation and sought kindness of him for withdrawing the illegal bill.  According to the Complainant, upon receiving the illegal bill his health was affected and he was advised to take rest after being shifted to Jaslok Hospital. 

6)        It is the case of the Complainant that the Opposite Party called an AGM on 12/08/07 wherein the bill issued to the Complainant being outstanding was discussed and General Body has appointed 2 members committee to negotiate and give a proposal to the Opposite Party.  The copy of the said resolution is marked as reference ‘F’.  It is alleged that the two members have submitted the report within 4 days in a sealed envelop to the Opposite Party No.1 to 3 within 4 days of the AGM which is marked as reference ‘G’.  According to the Complainant even after about 22 months the Opposite Parties No.1 to 3 have failed to implement the action and have neglected the report submitted by the 2 members.  The Complainant has come with the case that he was shocked and surprised because of the letter from Opposite Party No.4 dtd.08/04/08 asking him to pay bill of Rs.2,13,445/- which is marked as reference ‘H’.  It is alleged that he had replied the letter of Opposite Party No.4 vide his letter dtd.21/04/08 and informed that he has paid cheque of Rs.48,965/- to the Society for which the Opposite Parties No.1 to 3 had not issued the receipt which is marked as reference ‘I’.  It is alleged that as advised by his advocate the Complainant has filed Caveat No.125/2008 before the Co-Op. Court No.2, Mumbai, which is marked as reference ‘J’.  It is submitted that one more letter was issued by the Complainant dtd.23/04/08 to the Opposite Party No.4 attaching the cheque as full consideration of dues  as per Arbitrator award for Rs.48,965/- consist of fudge bill and subsequent bills which were returned by the Opposite Party No.1 to 3 are marked as reference ‘K’. The Complainant thereafter, again received the letter from Opposite Party No.4 dtd.25/4/08 which is marked as reference ‘L’.  

 7)        According to the Complainant, then he contacted the two members appointed by the General Body of the Society and discussed with them and they were shocked reading the threat of Opposite Party No.4. The said members informed the Complainant that they have submitted their findings and suggestion in writing to Opposite Party No.2 and have requested to instruct the Opposite Party No.1 to withdraw the fudge bill singed by him for Rs.1,64,475/-.  They also informed that they had collected the details of raising such huge figure of Rs.1,64,475/- from the Manager and Accountant which is marked as reference ‘M’ and they surprised that such a figure is not possible and assure the Complainant they will re-submit their written submission and obtain the proper receipt. They also informed the Complainant that the bill issued to him is illegal and incorrect and the same is required to be called back.  They also told the Complainant the Advocate of the Society is careless and he has threatened the Complainant without application of mind and without verifying the correctness of the bill.

 8)        According to the Complainant, the Opposite Party No.4 was duty bound to verify the correctness of the bill before demand for recovery.  He was careless and negligent and issued series of threat notices without verifying the details of the bill.  The Opposite Party No.1 to 3 remained negligent to carryout the opinion of two members committee so appointed by General Body of the Society.  They ought to have obeyed the outcome of arbitrators appointed by the General Body of the Society.  Mr. Satish Sharma, one of the member appointment by the General Body had resubmitted his written views to the Opposite Party No.2 on 10/06/08 and the copy of which was provided to the Complainant is marked as reference ‘N’. The another member had resubmitted his written views to Opposite Party No.2 on 19/06/08 and the copy which was provided to the Complainant is marked as reference ‘O’.  

 9)        It is the case of the Complainant that the Opposite Party No.1 to 3 had arranged the Special General Body Meeting of the member of the Society on 23/11/08 to discuss the fudged bill but the Complainant was not allowed to take part in it.  According to the Complainant, he reliably understood that SGM had appointed yet another set of Arbitrators one Mr. Satish Sharma and Mr. Basudev Sonthalia.  They both visited the Complainant and discussed the fudged bill.  According to him, they both submitted joint award to the Opposite Party No.1 to 3.  The Opposite Party No.1 to 3 however, remained negligent and has not withdrawn the fudged bill.  As the Complainant was not allowed to take part in the SGM the Opposite Party No.1 to 3 have not issued the minutes of the said SGM.  It is alleged that as the Opposite Party No.1 to 3 remained negligent one of the arbitrator sent a circular dtd.08/01/09 to all the members of the society.  The copy of which is annexed as reference ‘F’.  It is alleged the Opposite Party No.1 to 3 however, did not withdraw their fudged bill.

 10)      According to the Complainant as the Opposite Party No.4 has served threat notices without verifying the correctness, the Complainant by his letter dtd.15/04/2009 forwarding the copy of it to Opposite Party No.1 to 3 and called upon to justify their action.  The said correspondence is reference ‘Q, R, S’. It is alleged that by not obeying the instruction of the arbitrators appointed by the General Body and SGM the Opposite Parties No.1 to 3 are guilty of the deficiency of service to the Complainant who is the member of the Society.  It is alleged that the Opposite Party No.4 has misused his profession and committed professional misconduct. The Complainant thereby suffered mental torture by the act of the Opposite Parties.  It is alleged that since the fudged bill has not been withdrawn by the Opposite Party No.1 to 2, he is not getting ancillary service from the Opposite Party No.1 to 3. 

 11)      According to the Complainant as per clause 73 (IAB) of Maharashtra Cooperative Society Act, Chairman, Treasurer and Secretary of the Housing Society are required to execute an indemnity bond within 15 days of taking charge of the office and they are responsible for all action of the society.  The Complainant therefore, states that the Opposite Party No.1 to 3 have committed gross violation of right of the consumer, therefore, they are liable to pay the amounts as referred in para 1 of this order for their deficiency of service in favour of the Complainant.  

 12)      The Opposite Parties No.1 & 2 have contested the complaint by their written statement and contended that the complaint is false, frivolous, misconceived, bad in law and not maintainable as the same is out of purview of the provisions of the Consumer Protection Act, 1986 and therefore, the same is liable to be dismissed with cost.  It is contended that this Forum has no jurisdiction to try and entertain the issues raised in this matter by the Complainant against the Opposite Party.  The complaint is bad for misjoinder and non joinder of necessary party.  The complaint is not maintainable as the same is filed against the members of the Executive Committee such as, Secretary, Chairman, etc. and not against the Society.

 13)      It is contended that the Complainant is in habit of filing frivolous litigation against the Society or the Committee Members for last 14 years.  He has filed near about 7 proceedings  before various authorities, such as, Dy. Registrar Co-Op. Society, Co-op. Court, Consumer Forum, Hon’ble High Court and Metropolitan Magistrate of which proceeding numbers have been mentioned in para 4 of the written statement.  It is contended that out of those 7 proceedings 6 proceedings have been dismissed by the respective Courts and decided in favour of the Society.  1 proceeding is pending before Metropolitan Magistrate. It is contended that in the said proceedings the Complainant has achieved nothing.  According to the Opposite Parties, the aforesaid cases were filed only with an intention to keep the office bearers of the Society on toe so as to escape from payment of lawful charges.  It is pointed out that the issue raised in this complaint was raised by the Complainant before the Hon’ble High Court in Writ Petition No.580/2007 regarding Bill of the Society, dtd.01/01/2007 and the same was dismissed.  

 14)       It is contended that this complaint is nothing but one more attempt to harass the Opposite Party by filing the false case and to fulfill the whims of the complaint.  It is prayed that the complaint be dismissed with heavy compensatory cost so that the Complainant would not dare to file false case before any Court against the Society or Opposite Party.  It is submitted that the Society has passed the resolution in the meeting of members of the society that in case any dispute or litigation filed by the member against the society and the decision of the Court comes in favour of the Society the member who had filed the litigation will have to pay the expenses to the Society for defending the litigation. The Complainant has therefore, filed this complaint against the Opposite Party. 

 15)      It is contended that the Complainant is the member of the Society and not the consumer of the Opposite Party.  Therefore, there is no question at all to render the service to the Complainant by the Opposite Parties in their personal capacity.  The Society provides service to its members and not the Opposite Party as alleged in the complaint.  The Managing Committee of the Society had appointed the Opposite Party No.4 as an Advocate of the Society. The case of the Complainant is based on imagination and hearsay information.  It is contended that neither the society nor the Opposite Parties have filed any case against any members of the Society.  The Complainant is unnecessarily wasting the time of the Forum and members of the Society and money of the members of the Society.  It is contended that inspite of dismissal of Writ Petition No.580/2007 regarding the Bill dtd.01/01/2007, the Complainant has filed the present complaint before this Forum and also one criminal case before the Metropolitan Magistrate.  It is thus, contended that the Complainant has filed this complaint with malafide intention and with alterative motive to harass the Committee Members.  It is contended that the bill annexed to the complaint is correct, normal and genuine.  According to the Opposite Party, garage no.17 is in possession of the Complainant for about 15 years and he has not applied to the Society for transfer of garage in his name with dishonest intention to keep the Committee Members on work.

 16)      It is contended that in the A.G.M. held last year the Complainant was given open invitation to resolve the matter on the day of meeting itself but he never came forward.  Thus, Mr. Nimbalkar and Mr. Satish Sharma were appointed to meet the Complainant and come with solution but they had taken 10 months to get back the Society and in the mean time the Complainant has filed one more case against Opposite Party No.2 and the Society.  Said fact was informed to the said two members and replied to their letters accordingly.  It is contended that the letters of Advocate S.C. Jodhavat, referred in the complaint were issued to the Complainant on instruction of the Society.  It is denied that the Opposite Parties appointed Mr. Satish Sharma and Shekhar Nimbalkar or any person as Arbitrators.  It is denied that any award was given by the Arbitrators appointed by the General Body.  It is denied that as per the amendment of the Maharashtra Co-op. Society Act, every member is required to execute an indemnity bond within 15 days of taking charge of the office and the Committee Members are responsible for all actions taken by the Society.  The Opposite Parties No.1 & 2 have specifically denied all other allegations made by the Complainant and prayed for dismissal of the complaint with cost.

 17)      The Opposite Party No.3 though served remained absent.  Hence, the complaint proceeded against Opposite Party No.3 ex-parte. 

 18)      The Opposite Party No.4 contested the claim by his written statement.  It is contended that the Complainant has no relationship whatsoever with the Opposite Party No.4.  He is an advocate and the Society of the Complainant had engaged the professional services of the Opposite Party No.4 for the society matters. The Complainant is the members of the Society, therefore, he does not fall within the definition of ‘Consumer’ as defined in the said Act.  The Complainant has not joined the Society as Opposite Party and therefore, the Complainant is personally not consumer of the Opposite Party No.4.  The Complainant has not paid any fees to the Opposite Party No.4 nor he had engaged the Opposite Party No.4 for rendering any services to the Complainant so as to create consumer relationship.  It is contended that thus, the present dispute is not maintainable before this Forum and liable to be dismissed with cost of Opposite Party No.4.  The Opposite Party No.4 acted as per instruction and information given to him by the Opposite Party  No.2 and thus, the question does not arise of Opposite Party No.4 acting sue motto, personally against the Complainant.  It was for the Society to withdraw the notices issued by the Opposite Party No.4 on its behalf.  The Complainant has made defamatory allegations against the Opposite Party No.4. The Complainant is behaving untruly and not abiding to the bylaws of the Society and has filed various litigation against the Society over last 10 years and had also filed complaint against Opposite Party No.4 in Bar Council of Maharashtra with malafide intention and with ulterior motive only to harass the Committee Members.  It is denied that the Complainant has suffered the damage of Rs.50,000/- due to the issuance of any demand notice by the Opposite Party No.4.  The complainant filed against Opposite Party No.4 is nothing but abuse of law against the professional who rendered his professional service ethically to his client. 

 19)      The Complainant has filed rejoinder to the written statement of Opposite Party No.1& 2 and that of written statement of the Opposite Party No.4.  The Complainant has filed his written argument.  The Opposite Party No.1 & 2 have filed the written argument. 

 20)      We heard the Complainant in person and Shri. U.B. Wavikar, Ld.Advocates of the Opposite Party No.1 & 2.  We have perused the documents relied by both sides. 

 21)      The following points arise for our consideration and our findings thereon are as under –

Pont No.1 - Whether present complaint is maintainable against the Opposite Parties in the present form under the Consumer Protection Act, 1986 ?

Finding    -  No

                   Pont No.2 - Whether the Complainant is liable to pay cost to the Opposite Parties as provided under Sec.26 of the Consumer Protection Act, 1986 ?

Finding    -  Yes.

 22)      Point No.1 -  It is undisputed that the Complainant is a member of the Mount Everest CHS Ltd., 12, Peddar Road, Padam Hill, Mumbai -26.  It is undisputed that the Opposite Party No.1 is Treasurer, Opposite Party No.2 is Secretary, Opposite Party No.3 is Chairman of the said Society.  The Opposite Party No.4 had looked after the proceedings filed against the Society as an Advocate for the Society.  The Opposite Parties No.1, 2 & 4 have specifically raised contention that as the Complainant has not joined the Mount Everest CHS Ltd. as party to this proceedings thus, the complaint filed against the Opposite Parties only they being the office bearers of the said Society is not maintainable. The Complainant in para 6 of the complaint has specifically pleaded that he has not named the Society as an opponent simply to save time and energy of the other elected representatives who are giving their service to the said society on honorary basis. The Complainant has further pleaded that if needed he be permitted to add the said Society and other elected members as Opponent to oppose the present complaint.  It is pertinent to note that even after raising the objection by the Opposite Parties No.1, 2 & 4 in the written statement specifically as the Complainant has not joined the Society as Opposite Party of whom he is member, the complaint itself is not maintainable. The Complainant who is fully aware in view of the pleadings in para 6 of the complaint referred above then also has not amended the pleadings and requested to add the Mount Everest CHS Ltd. as Opposite Party to the present complaint to redress his grievances mentioned in the complaint. The Complainant in the complaint has not pleaded how there is relationship between him and the Opposite Parties as service provider and consumer.  It appears that there is no privity of contract and consumer relationship between the Complainant and Opposite Parties No.1 to 4.  It is the fact that the Complainant has not paid any fees or charges to Opposite Parties No.1 to 4 personally for rendering the services as member of the Society. The Complainant has not engaged the Opposite Parties No.1 to 4 for rendering any service to the Complainant so as to create consumer relationship. In our view therefore, the Opposite Parties No.1 to 4 personally are not service provider to the Complainant though he is member of the Mount Everest CHS Ltd. As the Complainant has not joined the Mount Everest CHS Ltd. who is the service provider and the Complainant being member of the said Society in our candid view the complaint is bad for non joinder of necessary party.  We therefore, hold that whatever contention the Complainant has raised in the present complaint as the same being not maintainable, are not required to be gone into merits. We therefore, answer this point in the negative.

 23)  Point No.2 - The Advocate for the Opposite Party Shri. Wavikar vehemently submitted that the Complainant is inhabit of filing various complaints as mentioned in para 4 of the written statement against the Opposite Parties as well as the office bearers of the Society which ultimately dismissed by the respective Courts and the Complainant has achieved nothing in the said proceedings and he is liable to be saddled with cost. He further pointed out that in the present complaint the Complainant could not point out any merits regarding the reliefs claimed against the Opposite Parties, on the other hand on 22/03/2013, he has filed an application for withdrawal of complaint that too keeping portion regarding payment of sum of Rs. as Blank and lastly prayed in the said application that the complaint may be treated as withdrawn with no order as to cost necessarily show that the Complainant try to pressurize the office bearers of the Society as per his whims.  He therefore, submitted that as the Complainant is in the habit of wasting of the time of the Forum it will be proper to saddle the cost as provided under Sec.26 of the Consumer Protection Act, 1986.  in support of his submission he relied the decision of the Hon’ble National Commission in R.P.No.281/2013, M/s. Sagar Shopping Developers V/s. Anil Dattatrya Kadam, decided on 01/05/2013 and submitted that the suitable cost be directed to be paid by the Complainant to the Opposite Parties.  The Complainant submitted that earlier this Forum has imposed fine against the Secretary of Housing Society in Complaint Case No.119/2006 between Madhavi Arun Gujar V/s. Anil H. Parte and therefore, he has filed the present complaint against the office bearer of the Society.  The Complainant therefore, apposed to saddle any cost against him as submitted by the Advocate for the Opposite Party.  In our view the submission made by the Complainant cannot be accepted as the Complainant was aware of the fact that in his personal complaint filed against Mr. S.K. Kapoor and Ors. Bearing No.04/2012, decided by this Forum on 14/09/2012, it was specifically held that without joining the Co.op. Housing Society of whose the Complainant is member the complaint itself is not maintainable.  It was also held in the said complaint that there is no relationship as service provider and consumer between the Complainant and the Opposite Parties who were made in person in connection with the affair of the Society.  We therefore, hold that the submission made by Shri. Wavikar, Ld.Advocate for the Opposite Party No.1 & 2 and having considered the view taken by the National Commission in the case relied by him, the Complainant is liable to pay cost for frivolous or vexatious claim lodged or filed by the Complainant against the Opposite Parties having full knowledge that the complaint in the present form is not maintainable unless the Society is made party to the compliant for the grievances put forth by the Complainant.  Furthermore, the Complainant has also filed misconceived application for withdrawal of this complaint by saying that the complaint may be withdrawn as no order as to cost and putting some conditions in the said application against the Opposite Party posing it as a compromise formula, we therefore, hold that such type of unfair complaints are necessarily required to be curbed and for that the Complainant is required to be saddled with cost.  In the result the following order is passed -                  

O R D E R

i.                    Complaint No.207/2009 is dismissed.

ii.                 The Complainant to pay cost of Rs.2,000/- (Rs. Two Thousand Only) to each Opposite Party No.1 to 4 under Section 26 of the Consumer Protection Act, 1986, for frivolous and vexatious claim made against them.  

iii.       The Complainant is directed to comply with the above order within one month from the date of service of this  order.  

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