BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No. 94 of 2015
Date of institution: 03.03.2015
Date of Decision: 20.10.2015
Ms. Raminder Kaur w/o Iqbal Singh resident of House No.4837, Puncham Cooperative House Building Society, Sector 68, Mohali, Punjab.
……..Complainant
Versus
1. Puncham Cooperative House Building Society Limited through its President. Current Office Address: Office of Society at Puncham Cooperative House Building Society, Sector 68, Mohali, Punjab.
2. Puncham Cooperative House Building Society Limited through its Secretary. Current Office Address: Office of Society at Puncham Cooperative House Building Society, Sector 68, Mohali, Punjab.
3. Registrar, Cooperative Societies, Punjab, 17 Bays Building Sector 17, Chandigarh.
4. Shri Hardayal Singh Mann, Former Secretary and now President,
Alternative Address: Office of Society at Puncham Cooperative House Building Society, Sector 68, Mohali, Punjab.
5. Shri Sumesh Chawla, Former designated member of society and Partner. Current Address: House No.1492, Sector 40-B, Chandigarh.
6. Shri Gursharan Batra, Former President and Partner, Known Address: Batra Selections, SCO 18, Sector 20-D, Chandigarh.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Naveen Jindal, counsel for the complainant.
Shri Balwinder Singh Sehra, counsel for OP Nos.1 and 2.
OP No.3 exparte.
Shri Veer Singh, counsel for OP Nos.4,5 and 6.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following directions to the OPs to:
(a) to deliver her the possession of the flat as per her share as member of the society.
OR in the alternative
refund her double the amount of Rs.5,75,000/- deposited with the society, alongwith interest @ 24% per annum from the date of deposit.
(b) to pay her Rs.50,000/- as costs of litigation.
(c) to pay her Rs.5,00,000/- for harassment and mental agony.
The OP No.1 is a society registered with Registrar Cooperative Societies Punjab. OP No.1 had formulated a scheme to construct residential flats for providing these to its members. The members of the society were to be admitted as per rules framed by the society. PUDA issued allotment letter on 04.02.2000 to the society for construction of HIG Category flats. At that time OP Nos.4,5, and 6 were the designated members and partners of the society. These OPs allured the complainant to opt for flat in the society by obtaining membership. The complainant obtaining the membership of the society for HIG flats by paying membership fee of Rs.1610/- on 16.02.2004. After confirmation of her membership, she was asked to make payments in lieu of the consideration for the flat. Accordingly the complainant paid Rs.5,75,000/- out of Rs.9,18,600/- to the society in two installments of Rs.3,50,000/- on 14.05.2004 and Rs.2,25,000/- on 13.08.2004. Thereafter, the OPs issued share No.1407 vide share certificate to the complainant on 02.07.2005. Thereafter for few months there was no demand from the OPs and the complainant alongwith her husband went to the OPs to pay the remaining amount but OP Nos.4, 5 and 6 did not accept the payment and said that it will be taken as and when demand is raised by them. The husband of the complainant also became the member of the society on 04.05.2003 and he started making payments as per demand made by the society. The construction of the flats had started by then. Share certificate to the husband of the complainant was given on 08.01.2004 and possession was given to him on 15.09.2005. The complainant had been contacting the OPs but till date possession of the flat has not been given to her. The legal notice sent to the parties received back with the wrong report except OP No.6 but no reply has been received from OP No.6 to the legal notice. With these allegations the complainant has filed the present complaint.
2. OP No.1 and 2 in the joint written statement have pleaded the affairs of the society are run by the Members of Managing Committee who are elected amongst the members in accordance with Chapter IV of the Act. The complainant was made member of the society after completing the requisite formalities. Her husband Iqbal Singh was became member of the society. As the land for the flats was to be allotted by the PUDA, it was the condition of the allotment letter issued by PUDA that the members before allotment of flats would furnish an affidavit that she/or their spouse do not own any other residential house in Chandigarh, Panchkula or Mohali. The husband of the complainant was handed over possession of the flat. The complainant submitted an application that a sum of Rs.1,50,000/- be transferred in favour of her husband who is also member of the society which was accordingly transferred. The OP Nos.1 and 2 are ready and willing to refund the amount of Rs.5,75,000/- to the complainant. Lastly these Ops have sought dismissal of the complaint.
3. OP No.4 and 6 in their separate replies have taken similar stand. The project in question was project of the cooperative society registered under Section 4 o the Punjab Cooperative Societies Act, 1961. The cooperative society is a mutual concern and members agree to contribute funds for some common purpose mutually beneficial and receive back the surplus left out in the same capacity in which they have made the contributions. The complainant does not fall within the definition of consumer as defined in Consumer Protection Act. In the present case the complainant has not paid any consideration for the services but simply paid an amount that includes land share cost, land development/infrastructure cost, construction share of the flat, etc. The tentative price of the flat was mentioned as Rs.11,32,500/-. The complainant has not paid any consideration for the activity undertaken by OP No.4 and 6. The complainant has not paid full payment of the flat. OP No.4 and 6 were merely a member of the society and they were not holding any title in the property of the society. As the dispute arises between a member of the society and society itself and as per Clause 67 of the bye laws of the Cooperative Society any dispute will be dealt in the manner as provided under the Societies Act or Rules made thereunder. Denying any deficiency in service on their part of OP No.4 and 6 have sought dismissal of the complaint against them.
4. OP No.5 in his separate written statement has pleaded that he never remained a member of the cooperative society and has no relation with the other OPs. The complainant has failed to prove her case against OP No.5. The complainant has failed to place on record any document to establish any relationship of OP No.5 with the present case. OP No.5 has sought dismissal of the complaint against him.
5. Shri Geetinder Singh appeared for OP No.3 on 29.04.2015. Thereafter, no written reply was filed by OP No.3. On 08.06.2015 none appeared for OP No.3 and it was accordingly proceeded against exparte.
6. To succeed in the complaint, the complainant tendered in evidence affidavit Ex.CW-1/1 and copies of the documents Ex.C-1 to C-14.
7. Evidence of OP No.1 and 2 consists of affidavit of Surinder Kumar, their Manager Ex.OP-1/1 and documents Ex.OP-1 and OP-2.
8. Evidence of OP No.4,5 and 6 consist of affidavit of Hardiyal Singh Mann Ex.OP-4/1 and copies of documents Ex.OP-4/2 to Ex.OP-4/4; affidavit of Sumesh Chawla Ex.OP-5/1; affidavit of Gursharan Batra Ex.OP-6/1 and copies of documents Ex.OP-6/2 to Ex.OP-6/4.
9. We have heard learned counsel for the parties and have also gone through the written arguments submitted by them.
10. Admittedly the complainant is a member of the Cooperative Housing Society OP No.1 since 16.02.2004 and had paid a membership fee of Rs.1610/-. Further it is admitted fact that the complainant had applied for allotment of HIG flat in the Cooperative Group Housing Society under the scheme of the OPs. As per provisional allotment letter the complainant has paid Rs.5,75,000/- in two installments i.e. Rs.3,50,000/- on 14.05.2004 and Rs.2,25,000/- on 13.08.2004 respectively and the OPs have issued share certificate No.1407 to the complainant on 02.07.2005. As per the complainant she was willing and ready to make the balance payment. However, the OPs have not accepted the same and postponed it on the ground that as and when the demand will be raised to make the payment, she can make the payment. Till date no such demand has been made and the complainant has not been given the offer of possession. The complainant has even sent a legal notice which has been received back from all the Ops except OP No.6 and the OP No.6 has also not given any response to the legal notice. The grievance of the complainant is that despite having received a considerable amount of Rs.5,75,000/- against the agreed price of Rs.9,18,600/-, the OPs have failed to deliver her the possession of the flat or refund the deposited amount alongwith interest which she is entitled.
11. As per OP No.1 and 2 in their joint written statement, the complainant has defaulted in making balance payment. Further her husband who was a member of the society has been allotted the flat and members of the family are not entitled to allotment of more than flat as per PUDA rules. They are willing and ready to refund the deposited amount to the complainant. Another plea taken by OP Nos.1 and 2 is regarding the maintainability of the present complaint before this Forum is that as per Clause 67 of the Bye Laws of the Cooperative Society, any dispute between the members and the society is to be dealt in the manner as provided under the Societies Act or rules made there under. OP No.4 and 6 have reiterated the stand taken by OP N.1 and 2 in their reply with further objection that the complainant is not a consumer as defined in the Consumer Protection Act. Complainant has not paid any consideration for the services but simply paid an amount that includes land development infrastructure cost, construction share of the flat etc. and complainant has not paid any consideration to OP No.4 and 6. Therefore, the complainant is not a consumer qua them. OP No.5 raised a plea in the written statement that he never remained member of the society and has no relation with the other OPs and, therefore, the complaint against him is not maintainable.
12. The limited question for consideration in the present complaint is whether the complainant being member of the OP No.1 and 2 is entitled to refund of the deposited amount alongwith interest and compensation, in the eventuality when the OPs have failed to handover the possession of the flat as per terms of provisional allotment letter dated 02.07.2005 Ex.OP-6/2. Perusal of provisional allotment letter (w.e.f. 30.09.2003) issued to the complainant on 02.07.2005 by the OPs shows that the tentative cost of the HIG Super Flat is Rs.11,32,500/-. The tentative date of completion of these flats is 15.09.2004. Since the complainant has been issued the allotment letter on 02.07.2005 it was very well within her knowledge that the construction of the flats has not been completed on 02.07.2005, still she accepted the provisional allotment letter. As per allotment letter the tentative cost was to be paid as per installments depicted in the schedule. However, there is no schedule attached with the document Ex.OP-6/2. Therefore, in the absence of details of binding time frame for making payment, the plea of the OPs that the complainant has failed to make the balance payment as per schedule is only a bald assertion without any supportive evidence to this effect. Further there is nothing on record to show any demand notice raised by the OPs for making balance payment from the complainant. There is nothing on record to show any offer of possession letter having been issued to the complainant. However, the OP No.1 and 2 have issued one letter dated 01.06.2005 Ex.C-14 wherein the complainant has been asked to visit the office of the Ops for completion of formalities before allotment/possession of the flat. But such a communication is of no relevance to the complainant as the complainant has been issued the provisional allotment letter in the month of July, 2005. The complainant vide letter Ex.C-13 has requested the OPs to allot the flat to the complainant and the said letter has been duly acknowledged by the OPs on 25.08.2009 as is evident from some inscription made on the body of the document. Still till date the OPs have failed to either issue any demand notice for making balance payment, or offer of possession letter or have even failed to refund the deposited amount to the complainant. The OP No.1 and 2 themselves in their written statement in Para 7 have shown their willingness and readiness to refund the deposited amount of Rs.5,75,000/- to the complainant which is lying in the account of the society. Thus, as per their own admission, since they have failed to refund the deposited amount, the OP No.1 and 2 have indulged into an act of unfair trade practice as the OPs have failed to respond to Ex.C-13 till date, neither have allotted the falt to the complainant nor rejected her request for allotment of flat nor refunded the deposited amount which they are holding with them since 2004. Therefore, the claim of the complainant kept pending by OP No.1 and 2 and as the claim remained undecided, the cause of action will continue till the OP No.1 and 2 accepts or rejects the claim of the complainant as per Ex.C-13 or in the alternative refund the deposited amount as per their own admission in the written statement. It is a contiuous cause of action and, therefore, the complaint is within limitation. Therfore, as per the own admission of OP No.1 and 2 the complainant is entitled to refund of Rs.5,75,000/- which is lying in the account of the society. Hence, the complaint deserves to be allowed against OP No.1 and 2.
13. The complainant has failed to her grievance against OP No.3 to 6. Hence, the complaint against them is not maintainable and is dismissed qua them.
14. Admittedly the amount of Rs.5,75,000/- remained in the possession of the OP No.1 and and they have utilized this money for furtherance of their own cause and without giving any benefit to the complainant, the complainant is squarely entitled to minimum interest @ 12% per annum as has been held by the Hon’ble Punjab State Consumer Disputes Redressal Commission in case titled Brigadier B.S. Taunque (Retd.) & others Vs. M/s. Sangeetashree Builders & Developers International Private Limited and others, 2014 (2) CLT 401.
15. Therefore, the complainant is allowed against OP No.1 and 2 and is dismissed against OP No.3 to 6. OP No.1 and 2 are jointly and severally directed to:
(a) refund to the complainant Rs.5,75,000/- (Rs. Five lacs seventy five thousand only) with interest @ 12% per annum from the respective dates of deposit till realization.
(b) pay a lump sum compensation of Rs.20,000/- (Rs. Twenty thousand only) for mental agony, tension, harassment and costs of litigation.
16. Compliance of the above order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
October 20, 2015.
(Mrs. Madhu P. Singh)
President
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No. 94 of 2015
Date of institution: 03.03.2015
Date of Decision: 20.10.2015
Ms. Raminder Kaur w/o Iqbal Singh resident of House No.4837, Puncham Cooperative House Building Society, Sector 68, Mohali, Punjab.
……..Complainant
Versus
1. Puncham Cooperative House Building Society Limited through its President. Current Office Address: Office of Society at Puncham Cooperative House Building Society, Sector 68, Mohali, Punjab.
2. Puncham Cooperative House Building Society Limited through its Secretary. Current Office Address: Office of Society at Puncham Cooperative House Building Society, Sector 68, Mohali, Punjab.
3. Registrar, Cooperative Societies, Punjab, 17 Bays Building Sector 17, Chandigarh.
4. Shri Hardayal Singh Mann, Former Secretary and now President,
Alternative Address: Office of Society at Puncham Cooperative House Building Society, Sector 68, Mohali, Punjab.
5. Shri Sumesh Chawla, Former designated member of society and Partner. Current Address: House No.1492, Sector 40-B, Chandigarh.
6. Shri Gursharan Batra, Former President and Partner, Known Address: Batra Selections, SCO 18, Sector 20-D, Chandigarh.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Naveen Jindal, counsel for the complainant.
Shri Balwinder Singh Sehra, counsel for OP Nos.1 and 2.
OP No.3 exparte.
Shri Veer Singh, counsel for OP Nos.4,5 and 6.
Dissent view of the Members
(Amrinder Singh Sidhu Member)
(Mrs. R.K. Aulakh, Member)
We do not agree with the order of the Ld. President of this Forum vide which the ld. President allowed the complaint. We don’t agree on the following points:
1. The complainant has impleaded Opposite Party No.1 to Opposite Party No.6 as parties in the present complaint but she neither took the permission of the District Forum or acquiesces of OP No.3, 5 and 6 as required to be taken under Section 11 (2) (b) of the Consumer Protection Act, 1986 (as amended upto date). Further complainant has failed to prove on file that OP No.3, 5 and 6 actually and voluntarily resides or carries on business or have a branch office or any cause of action arose to the complainant against them within the territorial jurisdiction of this Forum. Section 11 (2) (b) of the Consumer Protection Act, 1986 (as amended upto date) states as under:
“Section 11 (2). A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction:
(a) xxxxxxx
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or [carries on business or has a branch office] or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties, who do not reside or [carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or
(c) xxxxxxxxx”.
So the word used in Section 11 (2) (b) of Consumer Protection Act, 1986 (as amended upto date) is “shall” i.e. a complaint shall be instituted in a District Forum within local limits of whose jurisdiction the complaint falls. Therefore, either permission of District Forum or acquiesce of the concerned Opposite Party is mandatory as per Section 11 (2) (b) of Consumer Protection Act, 1986 (as amended upto date) which is lacking in this complaint and, therefore, fatal to the present complaint. Hence the present complaint is dismissed on the sole ground that the complainant has neither taken the permission of the District Forum nor acquiesce of OP No.3, 5 and 6.
2. We further do not agree especially with para No.12 of the order of the Ld. President where the Ld. President has held that the limited question for consideration in the present complaint is whether the complainant being member of OP No.1 and 2 is entitled to refund of the deposited amount alongwith interest, compensation, in the eventuality when the OPs have failed to handover the possession of the flat as per terms of provisional allotment letter dated 02.07.2005 Ex.OP-6/2. Our view is that the Ld. President allowed the complaint in favour of the complainant which could not be done so under the provisions of the Consumer Protection Act, 1986 (as amended upto date) unless complainant is held consumer of OP No.1 and 2.
3. The Ld. President allowed the complaint without deciding the objection raised by the OPs that there is no relation of service provider and service receiver between the parties.
4. The Ld. President did not decide the objection raised by the OPs that the complainant has not paid any consideration to the OPs .
5. The Ld. President did not decide the objection raised by the OPs that as per Clause 67 of Bye Laws of the Cooperative Society rules correct remedy is before the Registrar of Societies as per Punjab Cooperative Societies Act, 1961 and not the District Consumer Forum.
6. The Ld. President also did not decide the objection of the OPs that where there is a complex facts and the matter cannot be adjudicable summarily and parties need to be relegated to the Civil Court. The Ld. President also did not discuss Rajeshwar Parshad Vs. BCL Financial Services Ltd. 2008 (1) CPJ (NC) 121 on which the OPs have relied upon.
In view of the said discussion, this complaint is dismissed being hit by Section 11 (2) (b) of Consumer Protection Act, 1986 (as amended upto date).
Our dissent view be attached with the order of the Ld. President for the purpose of clarity of the order.
Certified copies of the order be furnished to the parties forthwith free of cost as per rules and regulations and thereafter the file be consigned to the record room.
Pronounced.
October 20, 2015.
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
