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

 1)        The Complainant has prayed that the Opposite Party be directed to pay Rs.20,000/- towards compensation alongwith interest @ 18% p.a. from the date of complaint till its realization and cost of this complaint.

 2)        The Complainant is a member of Mount Everest CHS Ltd. having 5 shares bearing No.36 to 40 as per Share Certificate No.8.  According to the Complainant he has been given to understand that if a Secretary of Co.op Housing Society do not reply a letter of the member it is deemed that a deficiency of service and negligence of duties under the Consumer Protection Act, 2005 and therefore he has preferred this complaint.  It is alleged that the Opposite Party got himself elected and appointed as Honorary Secretary and he is Statutory Head of the Society and his acts being challenged in the present complaint.  It is submitted that the Complainant has not named the Housing Society as Opponent to save time and energy of other elected representative who are giving their service to the said Society on honorary basis.  It is further submitted that if needed the Complainant be permitted to add the Society and other elected members as Opponent to oppose the present complaint.

 3)        According to the Complainant, the Opposite Party is not replying the letters of the members as a Secretary and it is deficiency of service and negligence under the Consumer Protection Act, 2005.  According to the Complainant, in June, 2008, he came across a very good offer for his flat for which the prospective buyer wanted to have No Objection Certificate of the Society. The Complainant therefore, made request in writing on 10/06/2008, however, the Opposite Party has not acted on the written request of the Complainant and ultimately the Complainant lost one of the finest offer in his life for his flat.  The said letter is marked as Exh.‘B’.  It is alleged that in June, 2008, his son Pratik, who is staying with him since his birth in 1974, the Complainant has applied for issuing resident certificate as he wanted to renew his passport and that was the requirement of the area police.  The copy of the letter issued to Opposite Party in that regard dtd.12/06/08 is marked at Exh.‘C’.  The said letter was not replied by the Opposite Party.  The son of the Complainant has also made such request to the Opposite Party by letter dtd.16/06/08 which is marked at Exh.‘E’. 

 4)        The Complainant has alleged that in August, 2008, the Opposite Party issued a general circular about payment of stamp duty to the Government of Maharashtra who has introduced the Amnesty Scheme.  The copy of the said circular is marked as Exh.‘F’ which is dtd.21/08/08.  For the availment of the said scheme the certificate from the Opposite Party was necessary so he made request by letter dtd.30/09/08 which is marked at Exh.‘G’.  According to the Complainant the said letter remained unacknowledged and neglected. The Complainant had issued the letters on 18/10/08, 20/10/08, 15/11/08, to the Opposite Party to get timely benefit of Amnesty Scheme of the Government. The said letters are marked at Exh.‘I’ ‘J’ & ‘K’.  It is alleged that on 25/02/2008 Opposite Party has issued a certificate without statutory requirement of supportive documents and the Amnesty Scheme of the government was closed 3 days after the certificate issued by the Opposite Party i.e. on 28/11/08.

 5)        The Complainant alleged that he had submitted a set of nomination form to the Opposite Party which was verified by the manager.  On 25/09/08, it was not registered by the Opposite Party and later on it was returned on 04/10/08 under vague letter.  It is alleged that the set of nomination was returned by the Opposite Party informing that it was decided by the Managing Committee not to accept the same as the Complainant is defaulter of the Society.  The copy of the letter issued by the Opposite Party is marked as Exh.‘L’. 

 6)        According to the Complainant, as per the amendment in the Maharashtra Co-op. Society Act, the Committee Members are responsible for all action taken by the Society.  It is alleged that the Society has issued a fudge bill of Rs.16,04,475/- instead of Rs.4,705/- and the said bill had been challenged in the Court of Law. It is submitted that the Complainant had referred the matter to the Dy. Registrar of the Co-op Society Commissioner by his letter dtd.08/03/09.  The copy of the said letter is marked at Exh.‘M’.  According to the Complainant the Dy. Registrar had issued an order to the Opposite Party to register his nomination, however, the Opposite Party has ignored.  The copy of the order of Dy. Registrar was submitted to the Opposite Party on 29/04/09. The Complainant then made enquiry with the Chairman of the Society who opined that he cannot take decision as he has his own political compulsion and it is the Opposite Party who alone can decide it. The copy of the order Dy. Registrar is marked as Exh.‘N’.       

 7)        The Complainant has alleged that as the Opposite Party is the Secretary of the Society and there is deficiency of the services and negligence of the duty under the Consumer Protection Act, 2005, the Opposite Party is liable to pay compensation of Rs.20,000/- together with interest @ 18% p.a.   The Complainant has thereby prayed for the relief as stated in para 1 of this order against the Opposite Party.

 8)        The Opposite Party contested the complaint by written statement. It is contended that the complaint filed by the Complainant is false, frivolous, misconceived, bad in law and not maintainable in view of the provisions of the Consumer Protection Act, and the same is liable be dismissed with cost. It is contended that this Forum has no jurisdiction to try and entertain the issues raised in this matter.  The complaint is bad for misjoinder and non joinder of necessary parties.  It is contended that the Complainant is in habit of filing of 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. Court, Hon’ble High Court, Consumer Forum and Metropolitan Magistrate.  The details of the said proceedings have been mentioned in the para 4 of the written statement. It is contended that out of those 7 proceedings 6 proceedings have bee dismissed by the respective Courts and decided in favour of the Society.  One proceeding is pending before the Metropolitan Magistrate.  It is contended that in the said proceeding the Complainant had achieved nothing.  It is contended that the aforesaid cases were filed only with an intention to keep the officer bearers of the Society on toe so as to escape from the payment of lawful charges.  The copies of the aforesaid proceedings have been filed as Exh.‘A’ colly.

 9)        It is contended that this complaint is nothing but one more attempt to harass the Opposite Party and the same is filed to fulfill the whims of the Complainant.  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 the Opposite Party. The other allegations made by the Complainant regarding issuance of NOC for the sale of flat, issuance of certificate for passport to Mr. Pratik and request for issuance of certificate to avail Amnesty Scheme and registration of nomination of the flat of the Complainant  as alleged by the Complainant have been denied by the Opposite Party.  It is contended that the complaint is liable to be dismissed with compensatory cost.

 10)      The Complainant has filed rejoinder to the written statement of the Opposite Party.  Both the parties have filed their written arguments.  We heard the Complainant in person and Shri. U.B. Wavikar, the Ld.Advocate for the Opposite Party.

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

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

            Finding      :  No

            Point No.2 :  Whether the Complainant is liable to pay cost to the Opposite Party as provided under Section 26 of the Consumer Protection Act, 1986 ?     

            Finding     :    Yes.

 12)  Point No.1 - It is undisputed that the Complainant is member of the Mount Everest CHS Ltd., 12, Peddar Road, Padam Hill, Mumbai – 26.  It is undisputed that the Opposite Party is a Secretary of the said Society.  The Opposite Party has specifically raised contention that the Complainant has not joined the Mount Everest CHS Ltd. as party to this proceedings.  Thus, the complaint filed against the Opposite Party only that he being office bearer or secretary of the Society is not maintainable.  The Complainant in para 4 of the complaint has specifically contended that he has not named the Society as an opponent simply to save time and energy of the elected representative who are giving their service to the said Society on honorary basis.  He has further pleaded that however, the Complainant prays 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 Party 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 nor 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 Party as service provider and consumer.  It appears that there is no privity of contract and consumer relationship between the Complainant and the Opposite Party.  It is the fact that the Complainant has not paid any fees or charges to Opposite Party personally for rendering the services as member of the Society.  The Complainant himself has not engaged the Opposite Party for rendering any service to him so as to create consumer relationship. In our view, therefore, the Opposite Party personally is not service provider to the Complainant though he is member of Mount Everest CHS Ltd. In this complaint the Complainant has alleged that he has been given to understand if the Secretary of the Co-Op. Society do not reply the letter of the member it is deemed that the deficiency of service and negligence of the duty of the Consumer Protection Act, 2005, and therefore, the said pleadings in the complaint are totally erroneous as there is no act is enacted as Consumer Protection Act, 2005.  Furthermore, for the reliefs regarding deficiency of service the Society being service provider is required to be impleaded as Opposite Party.  As the Complainant has not joined the Mount Everest CHS Ltd. as Opposite Party for the deficiency of services alleged to have been made in respect of the Complainant in our candid view the complaint is bad for non joinder of necessary party.  In our view Sanjeev K. Shah i.e.   Opposite Party has though impleaded as Secretary of the Society unless the Society is joined as party to this complaint, the complaint cannot be held maintainable in the present form.  We therefore, hold that whatever contentions the Complainant has raised in this complaint are not required to be considered on its merits as the complaint itself is not maintainable.  We therefore, answer this point in the negative.             

 13)  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 were ultimately dismissed by the respective Courts and the Complainant has achieved nothing in the said proceedings. 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 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 Party 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 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 Party 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.149/2009 is dismissed.

ii.                 The Complainant to pay cost of Rs.2,000/- (Rs. Two Thousand Only) to the Opposite Party under Section 26 of the Consumer Protection Act, 1986, for frivolous and vexatious claim made against him.  

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.