Per Shri P.N.Kashalkar – Hon’ble Presiding Judicial Member.

             This appeal is filed by the Appellant/original O.P.No.2 against the order passed by the District Consumer Forum, Mumbai Suburban in C.C.No. 45/2006 decided on 03/08/2010.  By allowing complaint partly forum below directed to the O.P. No. 1 &2 to pay sum of `1,13,387/- with interest thereon @ 9% p.a. from the date of order till its realization to the complainant.  Forum below also directed to pay costs in sum of `1,000/- to the complainant.  As such, org. O.P. has filed this appeal taking strong exception to the award passed by the Forum below.

          The facts to the extent material to dispose of this appeal may be stated as under :-

          Complainant Mr. R. M. Chaudhary has filed complaint against Malvani Savli Co-operative Housing Society, flat owners society.  The complainant agreed to purchase a flat bearing no. 205, in ‘B’ Wing; admeasuring about 750 sq. ft. for an agreed consideration @ `965/- per sq. ft., totally amounting to `7,23,750/-.  The complainant was the employee of Airport Authority of India.  After he made the initial payment, the O.P. society informed the complainant about the area of the said flat.  However, subsequently the sanctioned plan was changed without the consent of the members.  The complainant received the possession of the flat in the month of Feb. 2004. 

          It is the case of the complainant that on taking over the possession of the flat, the complainant found that the carpet area of the flat was admeasuring 525 sq. ft. and after addition of 20% area further, the built up area of the flat was 630 sq. ft. and the super built up area was 682.50 sq. ft.  Thus, according to the complainant, the area of his flat was less than the agreed area of 800 sq. ft as represented to him.  The complainant, vide his letter dated 06/12/2004, asked for refund of price of lesser area.  Since no communication was received from the opposite parties, the complainant filed consumer complaint for recovery of `1,13,387/- towards the deficit area and compensation in sum of `86,400/- for delay in handing over the possession of the flat.

          The O.P. No. 2, appellant herein, contested the complaint by filing written statement.  Shri B.K.Joshi – the original Opposite Party No. 2 was Secretary of the Opposite Party No.1- Society and the complainant received the possession of the flat on 08/12/2003, while the complaint came to be filed before the forum below on 19/01/2006 and thus, it is after-thought.  Shri Joshi pleaded that, it was decided by the society that, for the purpose of ascertaining proportion of the amount payable by each of the flat purchaser and the area of the flat of the complainant and similar such flats would be admeasuring 800 sq. ft.  This criterion was applied to all the members with uniformity.  Thus, according to Mr. Joshi, representation about area of the flat as admeasuring 800 sq. ft. was the rough estimate and was not strictly to be complied with.  Mr. Joshi submitted that the complaint should be dismissed against him with costs.

          O.P.No.1-Society was duly served the notice of appearance issued by forum below, but the O.P.No. 1 Society remained absent and did not file its written version on the record, and as such, it was proceeded ex-parte.

          Considering the affidavits and documents placed on record, the forum below held that,  the brochure issued by the O.P.No.1-Society was showing the area of a 2BHK flat is shown to be admeasuring 750 sq. ft. having total cost of `7,23,750/-.  At the top of the brochure, there is mention of `965/- as the cost of the flat per sq. ft.  So price of the flat was estimated @ `965/- per sq. ft.  At Annexure-B, there is letter dated 09/11/1998, by which payment of an amount of `25,000/-, by a cheque by the complainant, was acknowledged.  At Annexure-F, there is copy of area statement.  At Annexure-K, there is copy of the letter addressed to the original Opposite Party No.1 – Mr. B.K. Joshi; by which the complainant explained that cost of the flat was `7,72,000/- having 728 sq.ft.  The complainant expressed grievance that he was to receive the possession of the flat on 15/01/2003, but the possession was not delivered on that day.  It was the grievance of the complainant that the original O.P. delivered possession of a flat having lesser area and for that he has sought refund of price of deficit area. 

          The forum below relied upon the letter of the society sent to the complainant.  Mr. B. K. Joshi was the then Secretary of the Malvani Savli Co-Operative Housing Society Ltd.  In that letter it is clearly mentioned that the cost of the flat is `7,72,000/-.  The forum below held that since the society represented to the complainant that the built up area of his flat would be admeasuring 800 sq. ft.   On finding that the area of the flat actually given to him is of 525 sq. ft. carpet area and built up would be 630 sq. ft.   Therefore, forum below held in its judgment in Para 13 & 14, that the O.P. delivered possession of flat to the complainant having less area.  The complainant has sought refund of price of deficit area.  As such, forum below, after hearing both the parties, allowed the complaint and directed opposite parties to refund an amount of `1,13,387/- as worked out by the complainant.  Aggrieved by the said order, opp. party has filed this appeal.

          We heard submission of Adv. Naveen Joshi, for appellant and Adv. Uday Wavikar, for respondent no. 1.  None appears for respondent no. 2.  We are finding that Shri B.K.Joshi was acting on behalf of Malvani Savli Co-Operative Housing Society Ltd.   Shri B. K. Joshi was forming one man society and he running the society duly registered with 52 members and there was Managing Committee.  We have been told by the appellant’s counsel that there were 07 members in the Managing Committee.  What is pertinent to note that, the Secretary to the society is to act on the express mandate given by the Managing Commitee or Annual General Body Meeting.   The respondent no. 1 failed to establish before forum below that the appellant was personally liable for the act done on behalf of the society.  Mr. B.K.Joshi has ceased to be Secretary of the Society till 2006.  When the complaint is filed Mr. Joshi was not holding charge of Secretary of the said Malvani Savli Co-Operative Housing Society.  So whatever letters issued by Mr. Joshi, they were issued on behalf of the said society.  It is pertinent to note that all payments were made to the society and moneys had gone to the bank account of the society alone.  If this is so whatever action was taken by Mr. Joshi, it is taken on behalf of society and the society is alone liable.  We hold that, the society alone is responsible and Mr. B. K. Joshi can not be held liable simply because Mr. Joshi was just holding the post of Secretary of the said society. 

In the circumstances, we are of the view that the appeal will have to be partly allowed to quash and set aside the order passed by the District Consumer Forum, Mumbai Suburban in consumer complaint No.46/2006.  Hence, we pass the following order :- 

                   -: ORDER :-

1.       Appeal is partly allowed. 

2.       So far as the appellant is concerned, the operative order of the forum   below is quashed and set aside.  The complaint stands dismissed as against       him only.    

3.       The amount of award shall be recoverable from Malvani Savli Co-       Operative Housing Society, likewise, amount payable as cost will be paid       solely by the society.

4.       Both parties are left to bear their own costs.

5.       Copies of the order be furnished to the parties.

Pronounced Dated 22 December 2010