DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016.

Case No.429/2005

Mrs. Asha Jawatkar

W/o Dr. K.S. Jawatkar

DDA Flat No.47, Surabhi Apartment,

Sector-11, Pocket-1, Dwarka,

New Delhi-110075                                               ….Complainant

Versus

1.       Rudrakshi Co-operative Group

          Housing Society Ltd.

          through its Secretary (Sh. S. K. Sharma)

Sanjeev Travel,

JC-16, 3^rd Floor, Gupta Colony,

Khirki Extension, P.O. Malviya Nagar,

New Delhi-110017

3.       Sh. S. K. Sharma @ Sanjeev Sharma

          Secretary,

          Rudrakshi Co-operative Group

          Housing Society Ltd.

          Sanjeev Travel, JC-16, 3^rd Floor,

          Gupta Colony, Khirki Extension,

          P.O. Malviya Nagar, New Delhi-110017

4.       Registrar, Co-operative Societies

           Govt. of NCT of Delhi

          Parliament Street,

          New Delhi-110001                                       ……Opposite Parties

                                                          Date of Institution          :     2005                                                        Date of Order        :   18.07.16

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

Sh. S.S. Fonia Member

O R D E R

Sh. S.S. Fonia Member

Record reveals that the complaint was filed in the year 1995 and the same was registered as complaint No.1311/95. The same was dismissed as non-maintainable vide order dated 22.12.1996 passed by the then President and the Members. Record further reveals that the Complainant filed A-711/1996 before the State Commission. The same was allowed vide order dated 10.09.2004. OP No.4 was proceeded exparte vide order dated 01.11.2004. Other OPs were served by way of publication in a newspaper and they were proceeded exparte vide order dated 08.02.2005.  Complainant filed exparte evidence by way of affidavit. Vide order dated 30.04.05 our Predecessors allowed the complaint as discussed herein below.

Facts gathered from the complaint and the connected documents reveal that the Complainant became member of OP No.3 on the basis of newspaper advertisement put out by OP No.1 as its so-called secretary. On the promise of the flat in the proposed group housing the Complainant made initial deposit of Rs.15,000/- in cash on 10.04.1999 and thereafter made further payment of Rs.55,000/- towards the land money deposit apart from share money as per the details in Annexure-A. She further states that these deposits were made by withdrawing funds from the Provident Fund Account of her husband on which 13% interest per annum was being credited. After applying for membership the Complainant was not aware that OP No.1 was totally being controlled by OP No.2 and his son OP No.3 and on the representations that the land was about to be allotted the Complainant had made payment of land money deposits  but to her horror she found that allotment of land by DDA in Dwarka, Papankala Phase-I was cancelled because the OPs did not make the payment despite collecting huge amount of money from the members.  Seeing that no such flat would be made available to her, the Complainant resigned from the membership and asked for refund of her deposits with interest @ 13% per annum. The Complainant’s resignation was accepted with a great difficulty after orders were made by the Registrar of Cooperative Societies who also directed for refund of the claim amount but despite all efforts the refund was not forthcoming from OP No.2 & 3 who avoided notices/summons from the Registrar of the C-operative Societies. The Complainant has claimed principal amount of Rs.70,000/- together with interest @ 13% per annum i.e. the same rate to which her husband would have been entitled to in the Provident Fund Account. In all she has claimed Rs.1,14,123.50 upto February, 1995  apart from share money. Thereafter she has claimed interest on the principal amount @ 18% per annum for the period from March, 1995 till the actual date of payment and Rs.2 lacs towards compensation for having being deprived of the opportunity to acquire a flat for causing mental agony and pain.   

This Forum vide its order dated 27.04.2005 proceeded exparte against the OPs and passed exparte order as per the written submissions of the Complainant holding the OPs guilty of deficiency in service and directed to refund sum of Rs.70,000/- -paid by the Complainant to the Society  in installments with interest @ 9% from the date of deposit till payment besides Rs.5,000/- as compensation for inconvenience, harassment and mental agony and Rs.3,000/- towards cost of litigation.

Vide order dated 12.02.2008 passed in FA No. 429/2005 the State Commission allowed the appeal of the OPs and directed this Forum to decide the liability of OP No.2 & 3 afresh after giving them reasonable opportunity of being heard and also to give a liberty to the Complainant to file amended memo of parties.

Vide order dated 22.09.09 OP No.1 & 2 have been proceeded exparte and vide order dated 09.04.11 OP No.4 was also proceeded exparte.

The OP No.3 filed his written statement denying all the allegations   and  also filed an undertaking signed by the Complainant

to the effect that she shall not withdraw membership and also if she failed to do the above mentioned undertaking the management of the society is fully authorized to cancel her membership and forfeit the amount of all deposits with the society without any further notice to her. This undertaking is marked as Annexure-A for the purposes of identification. According to him the Complainant deposited only Rs.55,000/- as the cheque for Rs.15,000/- given on her behalf was bounced for “insufficient funds.” She paid Rs.15110/- only on 09.09.1989 and membership was accorded to her on 31.08.1989 only.  It is stated  that Complainant remained an elected member of managing committee of OP No.1 Society from 31.03.1990 to 26.05.1993 and thus she  has concealed material facts; that the land to the Society could not be allotted because the members and particularly the Complainant  were not ready to deposit the land amount demanded by the D.D.A. which was Rs.54,88,000/- and at that time the society was having only 35 members and the per member land money to be deposited was estimated at Rs.1,56,812/-; that the Complainant wanted to get the flat only by paying a meager sum of Rs.55,000/- only and also did not want to pay the running cost of the society despite enjoying the executive position for three years; that the Complainant is claiming the interest on the amount deposited by her with the society as if she had invested in a profit making venture or business; that the society could not be allotted land because of the lackadaisical approach of the Complainant herself and it is manifestly clear from the contents of her affidavit filed before the society in which she undertook to deposit the amount demanded by the D.D.A. for the land allotment within three days  and also undertook not to withdraw her membership and in case she fails to do the same the society was authorized to forfeit her amounts; that the failure of the society in achieving it’s aims is to be squarely blamed on the conduct of the Complainant herself as even after being the executive committee member of the society, she acted against the interest of the society and now want to take advantage of her own wrongs by misusing the provisions of law by misrepresenting the material facts before this Forum.  It is further stated as under:-

“5……The society was not a profit earning business venture and was not having independent source of income, the affairs of the society were being run by the deposits made by the members and as such after finally settling the accounts of the society the complainant was offered an amount of Rs.38,000/- by the society but the complainant never turned to take the same and ultimately the said amount was deposited with the Registrar Of Societies. The complainant is not entitled for any interest on the amount deposited by her rather she is liable to pay her contribution in running the affairs of the society for all those years and after deducting the same she was being refunded adequately.”

It is also stated as under:-

“8……Now after the liquidation of the society in the year 1995 itself the entire charge has already been handed over to the Office of The Official Liquidator and the opposite party no.3 has nothing to do with the affairs of the society since June, 1995. Apart from it the opposite party no.3 is not personally liable to make any payment to the complainant. The complainant made the deposits with the society and not personally with the opposite party no.3, nor the opposite party no.3 was getting any salary from the society nether he was doing any business of profit being the secretary of the society. The claim of the complainant against the opposite party no.3 is not sustainable in law”

OP No.3 has prayed for dismissal of the complaint.

The Complainant has filed rejoinder to the reply filed by the OP No.3 with further liberty to file amended memo of parties as to the status held by the OP No.2 & 3 at the relevant time. However, the averments made in the reply of OP No.3 that the Complainant filed an undertaking signed by the Complainant to the effect that she shall not withdraw membership and also if she failed to do the above mentioned undertaking the management of the society is fully authorized to cancel her membership and forfeit the amount of all deposits with the society without any further notice to her have not been denied by the Complainant.

Complainant has filed her own affidavit in evidence.

On the other hand affidavit of Sh. Sanjeev Kr. Sharma ( OP No.3) has been filed in evidence on behalf of the OP No.3.  OP No.3 has relied upon various documents and one of the documents which is an undertaking given by the Complainant is marked as Ex. OP3G  (not marked) (Annexure-A).

Written arguments have been filed on behalf of the parties. We have heard the arguments on behalf of the parties and have also gone through the record very carefully.

Now we advert to the issue whether the complaint is maintainable and, if so, whether the reliefs claimed by the Complainant is admissible?        

In the written statement filed by OP No.3 one of the crucial aspects of the complaint is contents of affidavit filed before the Society in which she undertook “to deposit the amount demanded by the DDA for the land allotment within 3 days and also not to withdraw her membership and in case she fails to do the same the society was authorized to forfeit her amount”. This affidavit which indeed is an undertaking and not affidavit is marked as Annexure-1 for the purpose of identification.  The Complainant in her rejoinder has not specifically denied about this undertaking issued under her signature.  This document has further been relied upon by the OP No.3 in his evidence and is exhibited as Mark A which is unarguably and undisputably issued under the signature of the Complainant.  In this undertaking, the Complainant categorically states as under:-

“ I also undertake that I shall not withdraw my membership and if I fail to do the above mentioned undertaking,  the management of the society is fully authorized to cancel my membership and to forfeit the amount of all my deposits with the society without any further notice to me. I will have no objection to the action taken by the society”.

The aforesaid undertaking of the Complainant makes it abundantly clear that she has voluntarily forgone her claim for refund by her own deed and therefore there cannot be complaint against the OPs by binding herself with the aforesaid undertaking.   It also stands proved from the un-rebutted pleading and evidence of OP-3 that after finally settling the accounts of the society the complainant was offered an amount of Rs.38,000/- by the society but the complainant never turned to take the same and ultimately the said amount was deposited with the Registrar Of Societies.  Though there are some grounds for justifying the refund of monies deposited by the Complainant i.e. the purported order of the Registrar of the Cooperative Society to refund the amount but in view of voluntary undertaking of the Complainant to forfeit the amount of all deposits and that the amount has been deposited with the Registrar of Societies, the other documentary evidence melts into insignificance. Hence, we hold that neither of the OPs are liable to pay any amount to the complainant.  Accordingly, we dismiss the complaint with no order as to costs.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

(S. S. Fonia)                                                                  (Naina Bakshi)                                                                                    (N. K. Goel)

Member                                                                             Member                                                                                           President

Announced on  18.07.16

Case No. 429/05

18.7.2016

Present –   None.

        Vide our separate order of even date pronounced, the complaint is dismissed.  Let the file be consigned to record room.

(S. S. Fonia)                                                                  (Naina Bakshi)                                                                                    (N. K. Goel)

Member                                                                             Member                                                                                           President