1.      The present Revision Petition has been filed by the Petitioner under Section ­­­21(b) of the Consumer Protection Act, 1986 (the “Act”) against impugned order dated 10.10.2012, passed by the State Consumer Disputes Redressal Commission, Uttar Pradesh at Lucknow (‘State Commission’) in First Appeal No. 257 of 2011. In this appeal, the Petitioner/OP appeal was dismissed, affirming the Order dated 03.12.2010, passed by the District Consumer Disputes Redressal Gautam Budh Nagar (“District Forum”) in Consumer Complaint No. 410 of 2009, wherein the Complaint filed by the Complainant was partly allowed.

2.      For the convenience, the parties are referred to as placed in the original Complaint filed before the District Forum.

3.      Brief facts of the case, as per the Complainant, are that he is a member of the OP’s Greenwoods Society and was allotted Villa No.2 in Greater Noida Phase-II on depositing Rs.30 Lakhs with the OP. The agreed possession deadline of 31.12.2006 was not met. Despite repeated letters, the possession was not given. Multiple inspections on 07.04.2007, 21.04.2007 and 17-06-2007, along with engineer Shri Atul Sharma, revealed numerous deficiencies. Despite assurances and promises by the engineer to rectify these, they persisted, leading to further assurances at a General Board meeting on 29.07.2007 for completion by 31.10.2007. However, construction remained incomplete. His letters dated 15.10.2008 urging for removal of deficiencies and possession of the villa or refund for the remaining work to make the villa inhabitable did not yield the requisite result. The delay caused significant financial loss to him.

4.      Being aggrieved the Complainant filed Consumer Complaint No. 410 of 2009 before the District Forum with the following prayer:  

(a) Possession of the fully constructed villa notably of standard quality materials used must be handed over to the complainant immediately after completion and replacement of defective items.

(b) The immediate possession of the villa even if it is under construction, the O.P. be directed to pay the cost of the balance structure to be completed.

(c) The OP be directed to provide the details of Specifications of various items.

(d) The OP be directed to pay the compensation of Rs 9.00 lakhs for financial loss incurred in terms of interest on the total amount of 30 lakh for the period of delay w.e.f. 01.01.2007 @ 9.25%.

(e) The O.P. be directed to pay the Compensation of Rs. 7.00 lakh as financial loss due to non availability of the villa w.e.f. 1.1.2007 to the Complainant since he was not able to use it or rent it out.

(f) Compensation of Rs.2 lakhs for mental agony & harassment.

g) O.P. be directed to pay Rs.20 thousand as cost of the case.

(h) Any other relief which this Forum thinks appropriate.

5.      In their reply, the OP contested the jurisdiction of the District Forum and asserted that it lacked jurisdiction as per the terms stipulated by OP. They contended that the dispute should be referred for arbitration. They also contend that the society does not charge any fees from its members, indicating that the services aren't provided for commercial gain, thus falling outside the realms of services under the definition. They refuted the Complainant's status as a consumer, alleging that the complaint is misleading. The Complainant intended use the property for commercial purposes.

6.      The OP further elaborated the circumstances and highlighted that the society's primary aim was to fulfill residential needs by acquiring land, allotting villa plots to its members and constructing residential buildings. A contractor was engaged for construction and the contractor could also undertake modifications made by certain members to their villa designs. However, these alterations were at the discretion and cost of the individual members. OP emphasized the challenges faced in completion due to these modifications and outstanding payments, mentioning efforts taken by the management committee to address the concerns raised by various members, including the Complainant. They underscore that efforts were made to resolve issues between members and the contractor regarding modifications and additional work. The Opposite Party made several attempts to communicate and resolve the issues with Complainant, citing instances where the Complainant did not respond or engage in the process of taking possession of the villa allotted. They asserted that the dispute primarily concerns the Complainant and the contractor, suggesting that the Contractor should be included as a party to the dispute. The OP expresses difficulty in responding to allegations, citing the unavailability of certain communications due to unfortunate circumstances, thereby challenging the accuracy of the claims made in the complaint.

7.      The District Forum in its Order dated 03.12.2010, partly allowed the complaint with the following order:

“ORDER

  The complaint of the complainant is admitted partially. It has been directed to the op that within one month of the order the possession of the villa shall be handed over and within one month only for completion of the construction pay an amount of Rs. 12,01,6000/-. For financial loss an amount of Rs. 3,00,000/- as compensation be paid and for mental agony an amount of Rs. 25,000/- and for litigation expenses an amount of Rs. 5,000/- be paid.”

8.      Being aggrieved by the District Forum Order, the OP/Appellant filed an Appeal No. 257 of 2011 before the State Commission. The State Commission vide order dated 10.10.2012 dismissed the Appeal and affirmed the Order passed by the District Forum, with the following Order: -

ORDER

Dismissing the present appeal the learned forum, Gautam Budh Nagar in Complaint No. 410 /2009 has passed the order and judgment dated 3-12-2010 and accordingly, it has been incorporated.

Appellant has also been directed that the order and judgment passed by the concerned district forum shall be complied with within the period of one month otherwise 10% simple interest will be applicable on the total awarded money form the dated of judgment till the dated of actual payment.

  Appellant shall pay an amount of Rs. 10,000 to the respondent/appellant as the cost of the appeal.”

9.      Being dissatisfied by the Impugned Order dated 10.10.2012 passed by the State Commission, the Petitioner/Opposite Party filed the instant Revision Petition mainly raising the following grounds:

(a) The Fora below did not appreciate that the Petitioner, being a society and not a "builder," emphasized its collective working role for common objectives outlined in its Memorandum and Rules. The argument posited that as a member of this society, the Respondent should support the collective objectives rather than seeking individual commercial benefits.

(b) The Fora below failed to appreciate the finite nature of the Society was funds contributed collectively by all members. Any award to a single individual member would impact the Society's functioning and adversely impact other members and society.

(c) The District Forum committed a manifest error in law by awarding 3 Lakhs compensation and Rs.25,000/- for mental agony with no basis. The observation of the State Commission that Rs.30,00,000/- is lying with the OP for the last 5 years is baseless and erroneous.

(d) The Fora below failed to appreciate that by awarding Rs.1201600 would mean that the cost of the Villa in real terms would be reduced to Rs. 18,00,000/-, i.e., 60% of the cost.

(e) The Fora below failed to appreciate that the petitioner was not directly involved in the construction of the Villas, and the respondent was directly in touch with the representatives of the contractor and privately issued instructions to him. Moreover, additional works/modifications were demanded by him, which resulted in a dispute between the Complainant and contractor.

(f) The Fora below failed to appreciate that the report of the Commissioner Shri Sardar Singh cannot be made basis for granting relief to the Complainant in the absence of his specific case that the material used is not as promised.

10.    In his arguments, the learned Counsel for the Petitioner/OP reiterated the grounds of the petition and asserted the fundamental argument that the Complainant, being a member of the Petitioner's Society, does not qualify as a Consumer. Emphasis was placed on the nature of the petitioner as a welfare society, not a housing society, solely established for the welfare of its members. It was emphasized that no contractual obligations or promises for the alleged services were made by the petitioner. The membership fees collected is explicitly intended for welfare and not for profit. The observations made by the fora below incorrectly categorized holding a post in an institution as automatically entailing profit. The mischaracterization of the Petitioner as a housing development society rather than a welfare society by the fora below warrants dismissal of the complaint on this ground. He forcefully contested the maintainability of the complaint, highlighting the absence of the contractor as a party to the complaint despite the Complainant’s initiation of additional work. The complaint is deemed flawed due to the non-joinder of necessary parties, as indicated in the minutes of meetings where it was clearly conveyed that alterations in the villas would remain solely between the members and the contractor, excluding the involvement of the society. He also asserted that the complaint exceeds the pecuniary jurisdiction of the learned District Forum, as the relief sought by the Complainant surpasses the prescribed pecuniary limit. The requested relief includes possession of property valued over 30 Lakhs and additional compensation, surpassing the established jurisdiction of the learned District Forum, which only entertains cases within the 20 lakhs pecuniary limit. He also argued that the as the relief regarding possession was already handed over to the Respondent in 2014 by the Hon’ble Commission. He sought the rest of the order of District Forum and the State Commission be set aside and Respondent be Ordered to refund Rs.6,97,211.27/- along with interest, which was withdrawn by him from the HDFC Bank Account of the Society in a coercive manner. He relied on the following judgments to support his arguments: -

(a) Vasant Kumar Radhakisan Vora Vs. Board of trustees of the Post Bomba, (1991) 1 SSC 761;

(b) Rattan Chand Hira Chand Vs. Askar Nawaz Jung (Dead) by Lrs. Reported in (1991) 3 SCC 67.

(c) The Bengal Secretariat Cooperative Land Mortgage Bank and Housing Society Ltd.  vs. Aloke Kumar and Ors., Civil Appeal No. 7261 of 2022.

11.    On the other hand, the learned Counsel for the Respondent / Complainant reiterated the issues raised in the complaint and asserted the order of the learned State Commission. He argued that despite the order from the District Forum dated 03.12.2010, directing the Petitioner Society to hand over possession of the villa within a month, the Petitioner Society deliberately refused to comply, causing harassment to the Respondent/Complainant. Only after intervention of this Commission's order dated 10.10.2014 did the Respondent/ Complainant finally taken possession. The Revision Petition is an attempt to cause unnecessary delay and further harassment. Further, highlighting the prolonged duration of over 8 years that this case has been pending before this Commission and inflicted significant financial and mental anguish upon the Complainant, who is a Senior Citizen. He sought the Revision Petition to be dismissed with substantial costs and grant of adequate compensation for the endured mental distress, in addition to upholding the orders of the State Commission. The learned Counsel for the Complainant relied upon the following judgments to support his arguments:-

a) Regarding Pecuniary Jurisdiction of the District Forum & State Commission :-

1. M/s Treaty Constructions & Anr Vs M/s Ruby Tower Cooperative Housing Society (Civil Appeal No. 5699 of 2019).
2. Harshad Chiman Lal Modi Vs DLF Universal & Anr AIR 2005 4446.

b) Regarding Relationship of a Consumer and Service Provider between the Respondent (Allottee Member) and the Society (Service Provider).

1. Kalawati & Ors Vs M/s United Vaish Cooperative Thrift & Credit Society Ltd., RP No. 823 to 826 of 2001.
2. Secretary, Thirumurgan Cooperative Agricultural Credit Society Vs M Lalitha (Dead) through LRs. & Ors, (Case No. Appeal (Civil) 92 of 1998)

c) Scope of Revisional Jurisdiction of NCDRC in view of the Concurrent findings based on merits by the District Forum and the State Commission.

1. Ruby (Chandra) Dutta Vs M/s United Insurance Co Ltd, Civil Appeal No. 2588 of 2009.
2. Sunil Kumar Maity Vs State Bank of India & Anr. (Civil Appeal No. 432 of 2022)
3. The Bengal Secretariat Cooperative Land Mortgage Bank and Housing Society Ltd.  vs. Aloke Kumar and Ors.,” Civil Appeal No. 7261 of 2022 (Para 52 & 53) is not applicable in this case because in this case is general body decision regarding redevelopment of the buildings which altogether a different matter.

12.    I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned counsels for both the parties.

13.    As regards to the objection raised by the Petitioner in this present Revision Petition, which questions “whether the fora below erred in pecuniary jurisdiction”, the Petitioner contended that the learned District Forum surpassed the pecuniary limit, as the value of the goods and services amounts to Rs.45,31,600 (Rs.30 Lakhs + Rs.12,01,600 + Rs.3,00,000 + Rs.25,000 + Rs.5,000). Nevertheless, as per the pecuniary limit or jurisdiction of the learned District Forum, a complaint can be entertained only when the pecuniary limit is up to Rs.20 Lakhs. Conversely, the Respondent argued that the issue of pecuniary jurisdiction cannot be raised at this stage.

14.    In this context, I would like to rely on the judgment of the Hon’ble Supreme Court in M/s Treaty Construction vs. M/s Ruby Tower Co-op. Hsg. Society Ltd., Civil Appeal No. 5699 of 2019, decided on 19.07.2019, wherein it was held:

“7. The contention on the part of appellants as regards pecuniary jurisdiction has only been noted to be rejected. The National Commission has observed, and rightly so, that such a plea was not specifically raised before the State Commission at the earliest opportunity; and the State Commission having already decided the matter on merits, such a technical objection as regards pecuniary jurisdiction could not have been countenanced before the National Commission. We find no error in the National Commission rejecting this plea as being wholly untenable at the given stage”.

15.    As regards second objection whether “Decision of Managing Committee of Society are final and binding on each member”, the State Commission in its Order made the following observation: -

“It is clear from perusal of the facts in issue that Appellant Society is a Housing Society, who constructs flats and villa for its members. In the aforesaid definition of service it had been seen that issues related to building construction covered under the definition of service. It is admitted fact of the parties that Complainant/ Respondent has made a payment of Rs.30.00 lacs in one installment for the construction of villa to the society in consideration. In this situation Complainant/Respondent prima facie is a consumer of Appellant Society and he has every right to file a complaint for deficiency in service as a consumer. Clearly, in the case in hand the possession of the allotted villa after completion of construction work within the stipulated period by the appellant society has not been handed over. In the stipulated period not completion of construction work of villa as per the stipulated norms is clearly come under the deficiency of service and this deficiency is defined under Section 2(l)(g) of the Act 1986, which is as under

(g) "deficiency" means any fault. Imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.”

16.    The State Commission on the aforesaid issue cited this Commission Order in Bihar State Housing Co-Operative Federation Ltd. vs. Sushila Devi, II (2006) CPJ 197(NC), wherein it was held that there is no explicit exclusion of the Consumer Fora to try the disputes between the petitioner society and member of the petitioner-society. The learned State Commission also referred to the order of Hon’ble Supreme Court in Secretary, Thirumurugan Co-operative Agricultural Credit Society v. M. Lalitha (Dead) through legal heirs and Others, I (2004) CPJ 1 (SC)=I (2004) SLT 200=(2004) 1 SCC 305, to back its view on this issue. Thus, it can be concluded that the case in the instant revision petition between the petitioner society and a member of the petitioner society, does not take away the right of the respondent to become a consumer and file a consumer complaint in an appropriate consumer forum.

17.    As regards the third issue with respect to maintainability of the complaint when the Respondent failed to make the contractor a party, the judgment of Hon’ble Supreme Court in Savita Garg Vs The Director, National Heart Institute, CA No. 4024 of 2003, decided on 12.10.2004 is relevant, wherein the Apex Court has held that:-

“…. Therefore, as a result of our above discussion we are opinion that summary dismissal of the original petition by the Commission on the question of non-joinder of necessary parties was not proper. In case, the complainant fails to substantiate the allegation, then the complaint will fail……”

18.    Now returning to the core issue whether the Complainant is entitled to the compensation of Rs.12,01,600/- as ordered by the District Forum, subsequently upheld by the State Commission, it is undisputed that he became a member of the Society after depositing Rs.30 Lakhs and was allotted Villa No.2 in Greater Noida Phase-II. He accepted the allotment letter dated 09.11.2005 and opted to pay the cost in a lump sum by obtaining a Rs. 25 Lakhs loan from State Bank of Punjab, Patiala, and Rs.5 lakhs by cheque. As per the said allotment letter, the possession was to be delivered by 31.12.2006. However, OP failed so deliver within the time prescribed. Despite repeated correspondence by the Complainant, it remained unfulfilled due to incomplete construction. Multiple inspections on 07.04.2007, 21.04.2007 and 17.06.2007, accompanied by engineer Shri Atul Sharma, revealed numerous deficiencies. On 18.07.2007, he wrote to the Vice President, Shri HR Singh for removal of deficiencies and possession. Despite assurances, the deficiencies persisted, leading to further assurances at a GBM on 29.07.2007 for handing over by 31.10.2007. However, it remained incomplete. Subsequent letters on 15.10.2008, for removal of deficiencies and possession or refund for the remaining work, did not yield the result. The delay in handing over possession exceeded 3 years until the date of filing the consumer complaint before the district forum.

19.    The learned District Commission, in its order made observations regarding the primary scope of work, which was an integral part of the original scheme. In response to Complainant's request, the District Forum appointed a Commissioner to inspect the quality of construction work, identify deficiencies, and estimate the amount required to make the villa habitable. Shri Sardar Singh, a retired Government Engineer, submitted a report indicating that an amount of Rs. 12,01,600/- is needed for this purpose. Despite being afforded the opportunity, no objection was filed by the OP. As a sequel, the district forum partially allowed the complaint, instructing the OP to hand over the villa within one month after completing the construction and pay Rs.12,01,600/-. Additionally, compensation of Rs. 3 lakhs for financial loss, Rs. 25,000 for mental agony, and Rs.5000 for litigation costs were awarded.

20.    It is noted that, as sought vide IA No. 4392/2014, the Villa was handed over in 2014 on an "as-is-where-is" vide order dated 10.10.2014. This Commission also directed that the Respondent shall pay the Society the monthly/annual maintenance charges, as are being collected from other members of the Society, from the date of delivery of possession and shall not commit any default in payment of such charges in future.

21.    Now, the question is whether the Respondent is entitled to delay compensation and whether the District Forum rightly awarded Rs.12,01,600/- for completion of the construction; Rs. 3 lakhs for financial loss, Rs. 25,000 for mental agony, and Rs.5000 as costs.

22.    The learned Counsel for the Petitioner contended that as the relief regarding possession has already been granted, the rest of the Order of the District Forum and the State Commission should be set aside, and the Respondent be ordered to refund Rs.6,97,211.27 along with interest, which was withdrawn by him from HDFC Bank Account of the Society in a coercive manner. On the other hand, the learned Counsel for the Respondent asserted that the scope of Revisional Jurisdiction of NCDRC, in view of the concurrent findings based on merits by the District Forum and the State Commission, and the grounds raised in Revision Petition are the same as already been agitated before both the for a and thus liable to be dismissed.

23.    Admittedly, the contract in the form of allotment/ membership letter was entered into between the parties on 09.11.2005 as per which the Villa was to be handed over by 31.12.2006. However, it was not completed and was finally handed over on an "as-is-where-is" basis vide order dated 10.10.2014. Therefore, the delay of over 8 years. Hon’ble Supreme Court in DLF Home Developers Ltd. v. Capital Greens Flat Buyers Assn., (2021) 5 SCC 537 decided on 14.12.2020 has held as under:

“Insofar as the parking and club charges are concerned, in view of the decision of the court in Wing Commander Arifur Rahman Khan (Supra), the direction of the NCDRC in that regard shall stand set aside. Accordingly, we allow the appeals in part to the following extent:

1. The compensation on account of delay in handing over possession of the flats to the flat buyers is reduced from 7% to 6%; and

2. The direction for the refund of parking charges and club charges and interest on these two components shall stand set aside.

We clarify that the directions of the NCDRC are upheld, save and expect, for the above two modification in term of clauses (1) and (2) above. The payment at the rate of 6% per annum shall be made after making due adjustments for the compensation for delay at the contractual rate…..”.

24.    Scrutiny of the detailed Report dated 18.10.2010 submitted within a few days by Er Shri Sardar Singh, appointed by the District Forum vide order dated 13.10.2010 has some adverse observations about the exterior and interior work. The estimated costs for replacement and development of doors, windows, flooring, waterproofing, painting, polishing, works required for providing certain facilities in kitchen, toilets, cable TV & other wiring, external development work etc were also listed. Intriguingly, however, at no stage the scope of actual work to be executed as per the allotment letter, specifications of contract, details of shortfall as well as the additions and alterations made by the Complainant directly with the contractor, are neither addressed in the report nor it is stated that the quality of items intended to be installed, for which estimation of costing was made, was as per the terms of original contract agreed between the parties. Therefore, the said report of Er Shri Sardar Singh is grossly incomplete and cannot be relied upon. In addition, the observation of the learned State Commission that the amount of Rs.30 Lakhs paid by the Complainant was retained by the OP Society for six years is untenable, as the construction of the villa in question was executed with the same funds and it this an admitted position by both parties. Therefore, the compensation awarded on both these counts needs intervention.

25.    The Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, in CA Nos. 4910-4941 of 2019 decided on 10.05.2019 has held that multiple compensations for singular deficiency is not justifiable. Therefore, award of compensation of Rs.3 Lakh and Rs.25,000/- towards mental agony passed by the learned District Forum are untenable.

26.    In view of the foregoing, the Orders of the both the Fora below are modified as below:

ORDER

1. The Petitioner/ OP is directed to pay simple interest @ 6% on the amount deposited by the Complainant/ Respondent from the date of possession which was due on 31.12.2006 till the actual date of handing over the possession i.e. October 2014, within a period of one month. In the event of delay beyond one month, the rate of interest applicable shall be @ 9% for such extended period.

2. The Respondent/Complainant is directed to refund to the OP Society, the amount paid during the Execution Proceedings of the orders of the District Forum, along with simple interest @ 6% from the date of payment by the OP Society, within a period of one month from the date of this order. In the event of delay, the interest applicable shall be @ 9% per annum for such extended period. This amount may be set off by the OP Society while making payment as mentioned at Direction-I above.

3. The orders for award of compensation of Rs.3 Lakh and Rs.25,000/- towards mental agony passed by the learned District Forum is set aside.

4. The Orders for payment of Rs.10,000/- as costs each by the District Forum and State Commission are also set aside.

27.    Consequently, the instant Revision Petition No. 69/2013 stands disposed of.

28.    There shall be no order as to costs. All pending Applications, if any, also stand disposed of accordingly.