Punjab

StateCommission

A/11/1225

Harkrishan Singh - Complainant(s)

Versus

SGTBHB Society Ltd. - Opp.Party(s)

Mohit Jaggi

05 Mar 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                                               PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                             First Appeal No.1225 of 2011

 

                                                          Date of Institution: 16.08.2011  

                                                          Date of Decision :  05.03.2015

 

Harkrishan Singh son of Daman Singh, resident of House No.1064, Sector 70, Mohali (now resident of VPO Chakhiara Jalandhar)

 

                                                                    …..Appellant/complainant                                       Versus

 

Shri Guru Teg Bahadur House Building Society Ltd., Sector 70, Mohali through its President

 

                                                          ….Respondent/opposite party

         

First Appeal against order dated 11.07.2011 passed by the District Consumer Disputes Redressal Forum, Mohali

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

Present:-

 

          For the appellant              :         Sh.Mohit Jaggi, Advocate

          For the respondent :         None

 

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                            

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                  

           The appellant (the complainant in the complaint) has directed this appeal against the respondent in this appeal (the opposite party in the complaint), challenging the order dated 11.7.2011 of District Consumer Disputes Redressal Forum Mohali, dismissing the complaint of the complainant. The instant appeal has been preferred against the same by the complainant now appellant.

2.      The complainant Harkrishan Singh has filed this complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP on the averments that Housefed was allotted land of 5.49 acres in Sector 70 SAS Nagar Mohali by the Estate Officer, Urban Estate, Punjab, Chandigarh in January 1988 for construction of multi-storeyed flats. Housefed transferred the land to the OP for construction of the flats for providing housing accommodation to its members. The OP appointed contractor for construction of the Housing Complex and also executed an agreement with the contractor and on account of objection of the State Government, the Housefed cancelled the allotment of the land to the OP. Thereafter, management of the Housefed entered into an agreement with the OP and with contractor for construction of the housing complex in Sector 70, Mohali for providing housing accommodation to the members. Tripartite agreement was executed on 24.7.89 amongst the OP, M/s Radical Builders (India) Pvt. Ltd., Chandigarh in as much as Housefed took over the project. The complainant is a member of the OP society  and deposited the fee on 12.7.1993. The complainant was asked to deposit 25% of the total price of the flat in question. Earnest money of Rs.1,34,000/- was deposited on 14.10.1993 by the complainant. After deposit of the earnest money, the flat was cancelled by the Housefed. The Housefed took over the project itself. The Housefed demanded Rs.16,65,028/- from the complainant inclusive earnest money already paid by the complainant to the OP. The complainant found that the OP had never deposited said amount with the Housefed. The complainant, has, thus filed the complaint and OP be directed to refund the earnest money deposited with it of Rs.1,34,000/- along with interest @15% p.a, besides Rs.2 lacs as compensation for mental harassment  and Rs.11000/- as costs of litigation.

3.      Upon notice, OP filed written reply and contested the complaint of the complainant vehemently on the preliminary objections that complaint is not maintainable. That his original allottee Harkishan Singh  filed affidavit on 17.5.2011, duly attested by Sub Divisional Magistrate Jalandhar stating that he took possession of the flat No.1383/1 (first floor) of HIG Category Sri Guru Teg Bahadur Co-operative House Building Society Limited Sector 70 Mohali from the Housefed and he would not sue the OP society for damages or the earnest money. That complaint is not maintainable under Section 79 of the Punjab Cooperative Societies Act 1961 without service of prior notice. That Harkishan Singh r/o village Chokhiara, District Jalandhar was allotted a flat no.1383/1 located in Sri Guru Teg Bahadur Complex, Sector 70 Mohali by the President of the Society.  The above Harkishan Singh made initial payment of Rs. 1,34,000/- for allotment of the flat, which amount was transferred by the OP to Housefed, which was constructing the flats on behalf of the society. That Harkishan Singh made full and final payment to the Housefed directly without the intervention of the OP and received the possession of allotted site from them. That the amount of the earnest money of the complainant has been already transferred to Housefed by the OP. That it is mistake of the complainant's side to again deposit the earnest money with the Housefed. The Col. Gian Singh GPA holder of the original allottee has no locus standi in this case. The complainant has not locus standi to file the complaint. The case of the Harkishan original allottee has been transferred to Housefed, as per the record of the society. OP had paid the entire amount to the Housefed, which were spent on the project of this case. That Housefed received extra amount of Rs.2,72,68,292.12 from the OP society and OP society has written to Housefed to refund this amount. OP prayed for dismissal of the complaint by averring that Housefed is also a necessary party in this case.  Complainant filed rejoinder in support of his averments.

4.      The complainant  tendered in evidence copy of receipt dated 12.7.1993 of Rs.210/- issued by OP No.1 in favour of complainant Ex.C-1, letter dated 13.09.1993 Ex.C-2, copy of deposit voucher of Rs.1,34,000/- Ex.C-3, copy of order of Hon'ble Supreme Court dated 4.2.2010 and 31.7.2009 Ex.C-4 and Ex.C-5, copy of detail of dues Ex.C-5/A, copy of resolution of OP dated 6.2.2011 Ex.C-6, copy of letter dated 2.4.2011 Ex.C-7, copy of letter dated 5.10.2010 Ex.C-8, copy of details of the earnest money with Ops Ex.C-8/1 and General Power of Attorney Ex.C-9. As against it, OP has not tendered in evidence affidavit of Kulwant Singh, President of OP Ex.RW-1/1,  affidavit of complainant Ex.R-1, copy of Section 79 of Cooperative Societies Act 1961 Ex.R-2, affidavit of Gupreet Singh Ex.R-3, resolution of OP Ex.R-4, copy of letter dated 3.6.2011 Ex.R-5 . On conclusion of evidence and arguments, the District Forum, Mohali, dismissed the complaint of the complainant by virtue of the order dated 11.7.2011. Dissatisfied with the order dated 11.07.2011 District Forum, Mohali, the complainant now appellant has preferred this appeal against the same.

5.      We have heard learned counsel for the appellant as none has appeared on behalf of respondent at the time of arguments of the appeal. We have also examined the record of the case. Firstly, we deal with this point as to whether complaint without service of prior notice under Section 79 of the Punjab Cooperative Societies Act 1961 is tenable in this case or not. Ex.RW1/1 is Affidavit of Kulwant Singh President of the OP as placed in evidence on the record. The complainant sent detailed representation dated 5.10.2008 Ex.C-8 to OP in this regard. The instant complaint was filed thereafter after lapse of three months from that period. No definite format of any notice U/s 79 of the Punjab Cooperative Societies Act is prescribed by law. This representation Ex.C-8 can be taken to be the prior notice of the OP, which fulfills the mandate of Section 79 of the above Act. We find no force in this plea on this point.

6.      Now we examine the merits of the case. Admittedly, the complainant paid the entire price of the flat to the Housefed and received the possession from the Housefed of the flat. Hosuefed has not been arrayed as a party in this case by the complainant. On the other hand, stand of the OP is that the Housefed took over the project of the OP and the entire money and record stood thereby transferred to Housefed by the OP. That OP has virtually merged in Housefed, when Housefed took over this project.

7.      Now the simple point for adjudication before us is whether the refund money of Rs.1,34,000/- deposited by the complainant with the OP of the flat is liable to be refunded by the OP or not. Complainants deposited the entire money of the flat with the Housefed inclusive the above earnest money of the complainant. The OP's version before us is that they have transferred the entire funds to the Housefed including the above earnest money of the complainant. That Housefed has received the excess amount of Rs.2,72,68,292.12 from the OP and they have written for refund thereof. .

8.      We have carefully examined the pleadings of the parties coupled with the documents placed on the record in support thereof. The factual matrix of the case is not in dispute. We are of this view that Housefed should have been arrayed as a party in this case for proper adjudication of the matter. Even otherwise, the OP virtually stood merged with the Housefed and Housefed received the finances and funds from the OP, when it took over the project of the construction along with the entire record of the OP. Consequently, this is a case of settlement of the accounts between the OP, Housefed and the complainant. Until and unless, the Housefed is impleaded as a party in this case, it cannot be decided at its back. Even otherwise, we find that this is a case of rendition of accounts only between the complainant , OP and Housefed because funds are lying with the Housefed, as the entire funds have been transferred to Housefed by the OP, as established on record.

9.      On the other hand, the OP produced on record affidavit of the complainant Ex.R-1 to the effect that complainant Harkishan Singh would not sue the OP society for any damages. That he, his legal heirs including GPA or agent would not claim the earnest money or any other amount from the OP society. The complainant relinquished recovery of the earnest money from the society by filing affidavit Ex.R-1. The GPA disowned this affidavit of complainant. We find that GPA is only an agent of the complainant, it is in the knowledge of the principal, who is the complainant as to whether this affidavit Ex.R-1 was sworn by him under any coercion or pressure or voluntarily. The GPA is not supposed to know about its authenticity, as rightly observed by the District Forum in the order under appeal in this case. The Arbitrator, vide award Dated 4.4.94 assessed the total cost of the flat and land as Rs.6,15,56,374.88, whereas Housefed received the amount of Rs.8,88,24,667.20 from the OP when the funds were transferred to Housefed by the OP at the time of taking over project  by Housefed. The matter is virtually of settlement of accounts, which cannot be adjudicated in summary manner by the Consumer Fora. The remedy of the complainant lies before Civil Court only on account of complex facts and law involved in this case. The order of the District Forum is accordingly affirmed in this appeal.

10.    As a result of our above discussion, we find no merit in the appeal and same is hereby dismissed by affirming the order of the District Forum under challenge in this case.

11     Arguments in this appeal were heard on 03.03.2015 and the order was reserved. Now the order be communicated to the parties.

12.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                              PRESIDING JUDICIAL MEMBER

                       

                                                                     (VINOD KUMAR GUPTA)

                                                                              MEMBER

 

March 5    2015.                                                             

(ravi)