DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No. 42/2013

QUORUM:

Order By: Shri S.S. Malhotra (President)

JUDGMENT

By this judgment the Commission shall dispose off the present complaint filed by the Complainant with the prayer that the respondent be directed to recall /withdraw his demand letter dated notice dated 20.08.2011 against the Flat No.A-36 of the OP Society and pay compensation.

1. Brief facts as stated by the complainant in the complaint are that he purchased Flat No.A-36 from Ms. Poonam Kudesiya, w/o late Sh. Mohan Kudesiya, who expired on 05.01.2020. Previously, Smt. Poonam Kudesiya got the Flat mutated in her name after the death of her husband who was the original allottee of the flat. After clearing all the dues relating to the maintenance and repayment of Delhi Cooperative Housing Finance Co. (DCHFC) loan in full and final, she (Poonam Kudesiya) also obtained the NOC from the Management Committee i.e. OP on 17.08.2001. The fact w.r.t. clearance of DCHFC loan was also conveyed to the OP vide letter No.F21 (155) 2003-2004/ DCHFC/4903 dated 04.03.2004 addressed to DDA and copy to the OP where DCHFC has certified that the said member has repaid the full loan sanctioned and disbursed. It is also submitted that after the clearance of the loan taken by original allottee and after its payment, the said DCHFC vide letter No.F21 (155) 2003-2004/ DCHFC/3683 dated 16/17.12.2003 along with the certificate of conversion of Flat No. A-36 from lease hold to free hold was conveyed to the society in the said letter dated 04.03.2004.
2. However the complainant was shocked when he received a demand notice from the OP on 02.02.2008 thereby demanding Rs.7,32,035/-.  The Complainant then visited the office of OP and discussed the same and despite assurance by the OP, such letters were being sent by OP time and again and the OP had sent four letters to the complainant i.e. letter dated 01.06.2008 whereby it demanded Rs.718213/-, letter dated 30.10.2009 where OP demanded Rs.133128/-, letter dated 12.02.2012 where OP demanded Rs.118774/- and letter dated 20.08.2011 where OP demanded Rs.546571/- and complainant had also given reply by writing letter to the OP but OP failed to give any satisfactory reply which amounts to deficiency in service on the part of OP for which complainant has suffered extreme mental agony and the act of the OP tentamounts to deficiency in service on its part for which complainant is entitled to claim compensation and as such he has filed the present complaint case with the prayer that OP be directed to recall/withdraw demand notice dated 20.08.2011 against the  Flat No.A-36, pay compensation of Rs.300000/- and litigation charges of Rs.25,000/. 
3. After filing of this complaint case by the complainant when OP was served, OP initially filed an application u/s 12 and 13 of the CPA-1986 inter alia stating that this Commission does not have the jurisdiction to entertain the present complaint case as neither complainant is a consumer nor the present dispute falls within the scope of the CPA and since this is a dispute w.r.t. arrears of the charges on the society particularly on the flat in question and therefore the complaint case as filed by the complainant be dismissed. However, the Ld. Predecessor vide its order dated 03.01.2014 dismissed the said application inter alia observing that the prima facie case is made out against the OP and matter is required to be heard on merits and the maintainability of the complaint would be decided after full facts are brought on record and thereafter the final view on the maintainability would be taken, and simultaneously directed the OP to file the written statement vide order dated 08.01.2014.  However the OP filed revision petition against the said order before the Hon’ble SCDRC and the Hon’ble SCDRC vide its order dated 20.07.2015 dismissed the revision petition of the OP and directed the OP to file the written statement and by specifically clarifying that any observation made in the said order shall have no bearing on the final view on the maintainability of the complaint and district forum shall decide the same in accordance to law.
4. The OP accordingly filed its written statement taking preliminary objection that said complaint case is not maintainable as it does not pertain to the allotment but pertains to the loan which was taken by the OP for the benefit of the flat owners and the said loan  amount is required to be repaid with interest therefore it is the Registrar Cooperative Society and not this Forum who would decide w.r.t. the balance amount due. The NOC  given by Sh. A.C. Sharma the then Secretary was under duress and pressure of the flat owners as she had verbally stated that she will repay the loan when she will receive the amount from the prospective buyers i.e the complainant herein and instead of making payment, Ms. Poonam Kudesiya, the previous owner, sold the flat to the present complainant leaving the outstanding against the prospective buyer and as per law the buyer has to be aware about each and every liability which stands in the name of the previous owner and since the said loan has never been waived off, the complainant is under obligation to pay the amount. It is further stated that in the general body meeting which was held on 09.08.2016 liability of loan against the loanee member was crystallized which were accepted and agreed by the general body members and as per the same the flat owner dues against them and order was passed by Recovery Court of DCHFC, against the society for certain loans which were taken by 39 members of the OP including the original allottee. It is further stated that the loan was availed by members  of the society in the year 1988-89,  the installment started quarterly w.e.f. September 1988. The loanee members paid only Rs.28,998/- till December 1999 and after LIC settled death claim in the quarter of March 2000 by paying Rs.93475/- which was only towards Principal insured balance loan amount and accordingly DCHFC/Society issued NOC w.r.t. the loan account.  Defaulted amount w.r.t. interest on late payment was due on which the interest was being levied and therefore there was no full payment of the loan amount. As far as writing various letters dated 01.06.2008, 30.10.2009, 12.02.2012, 20.08.2011 for different amounts is concerned, it is submitted that the demand was revised and finalized by GBM on 09.10.2016 with 60% rebate in the interest calculated on the deferment of payment but the complainant did not avail this offer of the OP and for that reason, different amount have been mentioned in different letters. As far as writing of letters by the complainant and of not replying the same and suffering mental agony is concerned, it is submitted that once the loan is being demanded by the OP, it cannot bring any mental agony to the complainant rather this is an explicit strategy adopted by the complainant in order to wash his hands from the repayment of loan and therefore the present complaint case is not maintainable before this forum and the appropriate forum is Registrar of Society which will look into the said issue of the complainant and it is prayed that complaint case of the complainant be dismissed.
5. The Complainant has filed Rejoinder thereby denying the contents of reply and reiterated that Smt. Poonam Kudesiya got the above said flat mutated in her name after the death of her husband who was the original allottee and after clearance of all the dues relating to the maintenance and repayment of DCHFC loan she obtained NOC from the Management Committee of OP as well as from the DCHFC and only after, certifying by DCHFC that the said member has repaid the loan amount as was, sanctioned and disbursed to the original allottee and no objection certificate for conversion of Flat No.A-36 from lease hold to free hold, the complainant purchased the flat but surprisingly he was receiving letters for different dates and different amounts as mentioned in para 6 of the complaint which amounts to deficiency in service and therefore this Commission has the jurisdiction to entertain the complaint. 
6. Complainant has filed his own evidence whereas OP has filed evidence of Sh. A.C. Sharma being the AR of the Society.
7. The Commission has heard the arguments and perused the record.
8. The flat was in the name of original allottee Mr. Kudesiya who has expired and  her wife completed all the formalities and repaid the loan, DCHFC has issued a letter thereby confirming that this flat owner does not have any loan pending, a letter has been issued by OP society that there is no dues against the said flat and has no objection in getting the flat converted from lease hold to free hold and then purchasing the present flat by complainant all are admitted facts. The complainant however argues that if he had not been issued certificate by the society as well as by the DCHFC and if the property would not have been converted from lease hold to free hold, then he would not have purchased this flat but only on account of all the certificate and getting clearance from each and every department concerned, he purchased the flat that too within the information of the OP society who had been even providing the basic amenities like maintenance against the charges and therefore sending letter by the society on the pretext that certain amount is due against the OP amounts to deficiency in service and therefore this Commission has a jurisdiction.
9. On the other hand the main contention of the OP is that the letter written by the Secretary of the society at the relevant time was under duress that too on the oral assurance of the previous owner that she would repay all the loan and since she did not pay the loan rather sold the property, the demand was being raised on the complainant which he has to pay and the fact that whether complainant has to pay this amount or whether he is not required to pay this amount is not within the domain of this Commission rather under the provision of section 83 if there is any demand the same is subject matter under the provision of Cooperative Societies Act and therefore this Commission does not have the jurisdiction to entertain the present complaint.
10. Having observed all this, now coming to the prayer clause of the complaint, once the complainant is asking in his present complaint that OP be directed to recall their letter by which the arrear of loan are being demanded, the Commission has enquired time and again from the complainant as to how this prayer clause falls within the ambit of the provision of Consumer Protection Act.  It is not the prayer of the complainant at all that there is certain deficiency in providing any service to the complainant by the OP.  The deficiency which is alleged is that OP is issuing letter to him thereby demanding certain amounts which according to OP are due against the said flat. Apparently, in view of the admission by the OP that the secretary has given No due certificate to the previous owner under duress and also keeping in view that OP so far has not challenged the decision of its own secretary before any court of law that the secretary had issued the NOC under duress, that has to be recalled but even that fact has to be appreciated a little bit,   it is yet to be adjudicated as to which court or commission or forum would adjudicate that issue. The Complainant had filed a judgment in its support titled “Gazender Pal Singh and Anita Singh V/s East End Apartments Co.” decided by Hon’ble SCDRC and claims that similar case was decided by the Hob’ble SCDRC where compensation was granted and complaint was held maintainable. The Commission has perused the said judgment but apparently the same is not pari materia with the facts of the present case. The judgment relied upon by the complainant does not relate with the prayer that the demand notice be recalled by the OP rather in the said case compensation is being demanded on account of certain irregularities committed by the OP society and which was allowed. Here the present case is quite distinguishable, and the only prayer is that notice of demand be recalled.  As per the CP Act what relief can be granted by this Commission are duly mentioned under section 14 of the CPA-1986.

14. Finding of the District Forum

(1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to 1[do] one or more of the following things, namely,- (a) to remove the defect pointed out by the appropriate laboratory from the goods in question; (b) to replace the goods with new goods of similar description which shall be free from any defect;

(c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant;

(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.

2[(e) to remove the defects or deficiencies in the services in question;

(f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;

(g) not to offer the hazardous goods for sale;

(h) to withdraw the hazardous goods from being offered for sale;

(i) to provide for adequate costs to parties.]

11. On none of these reliefs, the Commission finds any power by which it can adjudicate on the aspect that a letter whether it is right or wrong is required to be recalled. The Commission is of the opinion that if any letter or demand notice is ordered to be recalled even then, prior to that, the Commission has to adjudicate as to whether  the amount demanded in such letter is valid/invalid, proper/improper and in addition to that if the demand is not proper then what amount is due or not due and this apparently does not fall within the ambit of provisions of CP Act. What amount is due, if any, is not within the domain of the CPA and in the considered opinion of this Commission present dispute does not come in the domain where Commission has to decide whether any amount was actually due or actually not due and if that is not in the domain of this Commission, then this Commission cannot order to recall any demand notice as prayed for and therefore present complaint of the complainant which seeks a prayer to recall a demand notice is not within the domain of this Commission. With these observations the complaint is dismissed being the same is not maintainable before this Commission.    

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room.     

Announced on 05.06.2024.