Delhi

North East

cc/432/2011

Shri Sanjay S. Chhabra - Complainant(s)

Versus

Shri Rajbir Sharma - Opp.Party(s)

17 Jul 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 432/11

 

In the matter of:

	Shri Sanjay S. Chhabra Flat No. 8, Block ‘A’ Shekhar Apartments MayurVihar Phase-1 Extension Delhi-110091	Complainant
	Versus
1             2	ShriRajbir Sharma Vice President Shekhar Cooperative Group Housing Society Ltd. MayurVihar Phase-1 Extension Delhi-110091   Shekhar Cooperative Group Housing Society Ltd. MayurVihar Phase-1 Extension Delhi-110091 Through its Secretary	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

21.12.2011 17.07.2020 17.07.2020

 

Arun Kumar Arya, President

Ms. Sonica Mehrotra, Member

 

Order passed byMs. Sonica Mehrotra, Member

ORDER

1. Facts germane as culled out by the complainant for adjudication of the present complaint on merit is that the complainant is a member of OP2 society which was built on land allotted by Delhi Development Authority (DDA) to OP2 and on which it constructed residential flats of two categories: Block A which is seven storeyed comprising 28 flats and Block B which is four storeyed comprising 77 flats. The complainant was allotted Flat A-8 in OP2 in 2001 by a registered conveyance deed after getting it converted from lease hold to free hold on payment of all dues of DDA and OP2 and on issuance of No Dues Certificate from OP2. OP2’s then president OP1 had taken an entry fee ofRs. 17,500/- from the complainant before he shifted in the said flat which the complainant had paid vide cheque no. 419206 dated 22.12.2012 in the name of OP1. Pursuant to the judgment of Hon’ble Delhi High Court holding that the charging of entry fee by Group Housing Society is illegal, the complainant made several requests to OPs for refund of the entry fee paid by him and also filed a complaint in this regard with Registrar of Cooperative Society (RCS) but same was dismissed as being outside the purview of Section 70 of Cooperative Societies Act. On complainant asking for explanation for the said amount from OP2, OP2 vide letter dated 21.04.2007 informed the complainant that out of the said amount in question, Rs. 6,600/- was appropriated towards arrears of maintenance and Rs. 7,700/- towards lift committee account but despite complainant requesting OP1 to issue copy of the said receipt, he was informed that the concerned records, being very old were not available with OP1. OP2, vide communication dated 21.04.2007 informed the complainant that the amounts appropriated “could not have been done without your instructions to the then management committee”. OP1 did not provide inspection of books of account containing the entries in question to the complainant and has alleged that they were not shown because there were no arrears at all. The complainant discovered that in 2008-09, OP2 had refunded Rs. 10,000/- charged by it as entry free from flat owner of A-22 which fees was paid by him 5-6 years prior to the payment made by the complainant. On questioning the OPs regarding the same by the complainant he was told by the secretary of OP1 that the entry fee of Rs. 17,500/- would be adjusted towards maintenance charges payable to OP1 by complainant in future. However, vide communication dated 13.03.2011 by the OP1 to the complainant, it was alleged that the complainant had not paid maintenance dues of OP1 (amount not specified) since December 2008 despite verbal request and complainant was also threatened with discontinuance of maintenance services. The complainant replied to the said letter vide reply dated 26.03.2011 calling upon the OP2 to desist from intimidation tactics qua his senior citizen parents staying in the said flat. The complainant has further raised the grievance about the car parking in the basement issue and the determination of whether the basement is a common area or area belonging to owners of “A” category flats which issue despite taken up by OP1 on several occasion remains to be determined. Likewise lift facility charges were levied only on A block residents despite status of basement whether a common area or otherwise had not been determined for which reason there was no contribution from owners of flats in “B” category where all the members of managing committee reside and therefore OPs are furthering their own interest neglecting the A Block which is suffering poor maintenance due to seepage issues which was also made known to OP1 vide written representation made by residents of Block A but was not acted upon and therefore Block A residents had to spend Rs. 26,000/- for immediate repairs. The complainant further agitated the issue of formulation of Bye Laws by OP1 despite judgment of Hon’ble Delhi High Court dated 28.05.2010 which had directed formulation of Bye Laws in accordance with Section 15(2) of Apartment Ownership Act and by non framing of which OPs are guilty of deficiency of service and unfair restrictive trade practice. Lastly, the complainant had alleged that OP2 has fixed discriminatory / different rates of maintenances charges for residents of A Block and those in B Block despite usage of same common area without any basis. Therefore vide the present complaint, the complainant had prayed for issuance of direction against the OPs to refund the entry fee of Rs. 7,500/- to the complainant with interest payable by OP2, car parking area  in the basement of A Block be declared as not a common area on which only A Block residents shall have right to park their cars, OP2 to discontinue charging discriminatory rates of maintenance charges for A Block and B Block flats and directions to OP2 to draw up Bye Laws for the maintenance of society in accordance with Delhi Apartment Ownership Act.
2. Complainant has attached copy of letter dated 21.04.2007 from OP1 on behalf of OP2 to the complainant, copy of letter dated 07.02.2009 by OP2 in response to complainant’s letter dated 07.01.2009, copy of minutes of meeting dated 29.05.2011 and 06.06.2011 held by Lift Maintenance Committee signed by residents of A Block, copy of demand letter dated 13.03.2011 from OP2 to complainant for claiming outstanding maintenance dues and reply thereto dated 26.03.2011 by complainant to OP1 and OP2. The complainant also filed an interim application u/s 13(3B) praying for interim protection by way of restraint order against the OPs not to discontinue or adversely affect maintenance services to Flat no A-8 belonging the to the complainant.
3. The Forum on hearing held on 21.12.2011 for admission, admitted the complaint and issued notice to the OPs and also restrained them from withdrawing the maintenance services available to complainant’s parents till the next date of hearing as order passed on the complainant’s interim application. The OPs entered appearance on 24.01.2012 on which date the complainant filed two separate applications against OP1 and OP2 u/s 13(4) of CPA read with Order XII Rule 12 CPC for Discovery and Production of several documents of OP2 from both OPs. OPs filed reply to the aforementioned applications objecting to the maintainability of the same as also the interim relief granted to the complainant despite him being a defaulter of OP2 and both OPs submitted that they are not withholding any document required in context with the present complaint and the complainant has been making fishing enquiry to convert this Forum for production of the entire record of OP2 which provision lies with Delhi Cooperative Societies Act (DCSA) and also on dilatory tactics for prolonging interim protection granted to him by this Forum and prayed for dismissal of the applications.
4. OPs filed joint written statements raising preliminary objection to the relief sought by the complainant. OPs resisted the complaint in so far as the allegation of non refund of Rs. 17,500/- on grounds that the charge of entry fee by society is a matter falling exclusively within the domain of Registrar of Cooperative Societies u/s 70 of Cooperative Societies Act 2003 and Section 132 of the said Act bars such disputes as covered u/s 70 and Section 142 clearly bars application of provision of Consumer Protection Act 1986 (CPA). On merits OPs submitted that even if the complainant was entitled to the refund of the said amount, he was in arrears of maintenance dues to OP1 since July 2008 and therefore no adjustment can be given to him for sustaining the interim protection granted by this Forum to him vide order dated 21.12.2011. In this regard, OPs submitted that the complainant had earlier (before the present complaint) filed an application u/s 70 of Delhi Cooperative Societies Act 2003 registered as Arbitration Case no. 359 Dr/Arb/2007-08 dated 24.04.2007 claiming inter alia refund of entry fee as its first relief on receipt of notice of which petition, all parties had reached a settlement filed on 20.07.2007 before the Learned Joint Registrar of Delhi Cooperative Societies (DCS) duly signed by the complainant and Secretary of OP2 whereby the demand for the refund of the said sum of Rs. 17,500/- was specifically dropped by the complainant after which the complainant continued to make payment of maintenance charges upto June 2008. However, complainant filed another arbitration petition no. 1534/Dr/Arb/2008-09 in July 2008 praying for relief by way of inspection of books of account of lift maintenance for last three years, declaration of cessation of members of executive committee who are in default of payment of contribution @ Rs. 500/- per month for common services and facilities to the common areas i.e. basement and to fill up the post of secretary of society. The Deputy Registrar (Arbitration) vide order dated on 18.11.2008 dismissed the petition as outside the scope of Section 70. The OPs opposed the complaint in so far as relief pertaining to car parking area in the basement of Block A to be declared as not a common area on grounds that the issue of car parking area in A Block basement is still pending finalization vide resolution within the society as discussed in its General Body Meeting (GBM) dated 04.05.2008 and the said issue does not pertain to a single member only and even otherwise is a subject matter of arbitration u/s 70 of DCSA and therefore no deficiency of service can be made out against OPs on this account. With respect to the relief claimed by complainant pertaining to discontinuing discriminatory rate of charges levied by OPs for flats of A & B Block, OPs objected to the maintainability on grounds that the Forum can only take cognizance of pre existing rights of the complainant or inaction by the society against those pre existing rights provided such services is a service within definition of CPA. OPs submitted that the complainant has no pre existing right for the alleged grievance against maintenance charges as the two blocks have flats of two different sizes of 900 Sq. Ft. and 1760 sq. Ft. and no other occupant has raised any grievance on this issue. OPs alleged that the present complaint is wholly time barred since complainant is seeking refund of                     Rs. 17,500/- paid by him in 2001 vide the present complaint filed in 2011 and therefore hit by Section 24A of CPA. On merits OPs resisted the complaint on grounds that complainant is a habitual defaulter of OP2 and not entitled to make any grievance against OPs of deficiency of service. The complainant has misrepresented that the jurisdiction of this Forum was invoked as his earlier complaint filed u/s 70 of DCSA was dismissed as misconceived / non-maintainable whereas as actually the relief claimed in the said petition are different from those made in the present complaint for which reason of misstatement, complainant does not deserve any indulgence by this Forum. OPs submitted that complainant neither is a consumer nor has availed service within the scope of CPA. OPs alleged that the complainant being a practising lawyer is trying to misuse his professional status to drag the OPs into the present frivolous litigation to compel the OPs not to collect dues in event of default by him of. OPs averred that complainant had not made any payment towards general maintenance charges and lift maintenance dues from December 2001 till October 2003 when he had shifted to the society and only when he was satisfied to the extent of adjustment of payments made by him of Rs. 17,500/- did he start making payment towards maintenance and lift but only till June 2008. Complainant never claimed any refund till he filed arbitration proceedings in 2007 which claim was dropped by him before Learned Joint Registrar (DCS). Therefore complainant cannot take advantage of non-availability of records of society which are otherwise maintained by way of Ledger Register of society in due course of business. OPs contended that the complainant has not placed on record any proof of payment made by him towards maintenance charges despite being under obligation and therefore on this account OP2 has every right to discontinue maintenance services for such defaulting members. OPs admitted that the parking issue has not yet been determined but it has been resolved that payments received from A Block members towards additional parking charges shall be without prejudice to their rights and contentions to claim refund / adjustment, if any, post determination of the issue and even otherwise A Block members are already making payment towards this head and complainant cannot claim any special privilege. OPs denied applicability of section 20 of Delhi Apartment Ownership Act in the matter of maintenance charges as these charges are decided by General Body of Cooperative Housing Societies from time to time which is solely empowered to do so. With respect to the allegation of seepage in A Block, OPs submitted that the General Body has constituted a Special Building Maintenance Committee as resolved in GBM held on 25.12.2011 and the process for redressal of problem is already on going and that expenditure of Rs. 26,000/- incurred by A Block Lift Maintenance Committee is a subject matter of internal correspondence. Lastly, in so far as relief claimed by complainant pertaining to directions to OPs to formulate Bye Laws for maintenance in accordance with Delhi Apartment Ownership Act,  OPs submitted that OPs were not the party in the judgment dated 28.05.2010 passed by Hon’bleDelhi High Court as relied upon by complainant and that the said judgment applies only to multi storeyed buildings constructed and built by private builders and not by society and therefore implementation of such judgment is not applicable. Even otherwise fixation of maintenance charges is the sole prerogative of the general body which a statutory Forum for such fixation. For defence so taken on all of the above grounds, OPs prayed for dismissal of the complaint for want of any cause of action against it.
5. OPs attached copy of settlement resolution dated 20.07.2007 submitted before Deputy Registrar Cooperative Society signed by complainant as well as OP1, copy of application u/s 70 of DCSA filed by the complainant, copy of representation dated 08.02.2007 by UCO Bank, Delhi High Court Branch certifying that the cheque of Rs. 17,500/- in favour of OP2 drawn by complainant has been paid by the bank to the Corporation Bank MayurVihar, Delhi where OP2 has its account, copy of summons dated 24.04.2007 issued by Deputy Registrar DCS to OP1 in ARB no. 359DR/ARB/2007-08/750, copy of claims filed by complainant before RCS in July 2008, summons to OP1 dated 29.08.2008 on ARB case no. 1534/DR/ARB/2008-09/692 issued by Deputy Registrar (Arbitration) Office of RCS, copy of order dated 18.11.2008 passed in the said arbitration case by Deputy Registrar S.K. Hari, arbitration, copy of circular dated 12.05.2008 issued by OP2 with respect to issues discussed and approved by GB of OP2 in AGBM held on 04.05.2008 with attached minutes signed by flat member A and B Block members society of OP2, copy of ledger maintained by OP2 highlighting payment of Rs. 17,500/- paid by complainant adjusted in maintenance and lift of OP2, copy of notice dated 10.12.2011 by OP2 to all members to attend the AGBM of society to be held on 25.12.2011, copy of minutes dated 17.01.2012 of AGBM of OP2 held on 25.12.2011, copy of cheque list for submission of audit report with brief summary of society, form no. 877 dated 10.08.2009 from office of RCS filled by OP2 for conducting statutory audit for 2008-09 and 2009-10, copy of auditor’s report dated 07.10.2009 by G.S. Goel and Associates, CA of Society for the year ending 31^st march 2009 alongwith balance sheet, income in expenditure account, copy of list of members and their contribution, copy of maintenance receipt for year ending 31.03.2009, copy of bank reconciliation as per for books of account as maintained with Corporation Bank, copy of list of members of the management committee of OP2 as on 09.08.2009 and copy of maintenance dues with respect to complainant flat A-8 as on 01.01.2012 for a total outstanding payable Rs. 52,452/-.
6. OPs filed reply to interim application filed by complainant u/s 13(3B) opposing maintainability of the same in as much interim relief has been granted without hearing OP2 and specifically pertaining to main relief (a) in the prayer clause whereby complainant is seeking refund of entry fee of Rs. 17,500/- from OP2 which relief cannot be granted since complainant has already claimed same relief before Deputy Registrar (arbitration) in earlier proceedings and had dropped the same by mutual consent.Therefore complainant cannot be allowed to seek the same relief vide the present complaint. The OPs urged that the said claim was also time barred / hit by section 24A of CPA by complainant’s own admission of cause of action having arisen post receipt of letter dated 21.04.2007 from OP2 which was in response to complainant letter dated 23.03.2007 and vide the said letter, OP2 had clarified that the amount of Rs. 17,500/- stood adjusted towards maintenance charges between December 2001 to December 2003 and also towards lift maintenance and therefore the present complaint having been filed in December 2011 (cause of action having arisen in April 2007) is hopelessly barred by limitation and in view of no application preferred u/s 24A(2), this application u/s 13(3B) deserves rejection. OPs urged that no interim protection against disruption of maintenance services can be granted to the complainant in view of complainant being willful defaulter in payment of maintenance charges since April 2006 July 2008 and the outstanding dues inclusive of interest as on date wasRs. 52,452/- as per resolution passed by GB of OP2 and therefore prayed for dismissal of the application and vacation of interim protection granted on 21.12.2011 till complainant deposited the aforementioned amount upto date.
7. The complainant filed another application u/s 13(3-B)(iv) of CPA submitting that the communication titled as “minutes of meeting held on 29.05.2011” was signed by 16 members of the OP2  constituting more than 15% of its total membership in which meeting it was held inter alia that secretary of OP2 was a defaulter of dues and therefore disqualified to act as a secretary but he has signed the reply for and on behalf of OP2. Complainant urged that despite having sought information u/s 139 of DCSA for inspecting books of account, he was informed vide letter dated 07.02.209 that the said account were sent to the auditor for preparation of statement of account and till date inspection of the same has not been facilitated. Complainant urged that he has not been given the details of dues by OP2 except letter dated 21.04.2007 whereby he was informed that Rs. 17,500/- has been adjusted by the society in break up Rs. 6,600/- and Rs. 7,700/- towards maintenance and lift respective against dues upto October 2003 but complainant was not allowed inspection of ledger or books of account. Complainant also objected to the contradictory stand taken by OPs in as much as in its letter dated 13.03.2011 to complainant, he was informed that maintenance charges were due from December 2008 but in written statement, OPs have stated that the maintenance charges were outstanding from July 2008. Complainant submitted that the secretary of OP2 is himself defaulter in dues and being part of management is presumed to be in custody of accounts book of society. Lastly, complainant submitted that the relevant source of information with respect to balance sheet and account is the Audit Department of RCS where details of society having received payment under heads of Construction of Flats, maintenance and lift maintenance are submitted. Therefore complainant vide the present application prayed for directions of Special Audit of Account either by Registrar Cooperative Societies or through well reputed Chartered Accountancy Firm for the said three heads for the year 2001 till 2010. Complainant placed on record extract of relevant sections of Delhi Cooperative Societies Rules 1973 specifically Rule 43, 47 and 48 read with Schedule I of the said Rules to buttress his argument and copy of order passed by Civil Judge in some other case whereby application under Order XI Rule 12 CPC for discovery and inspection of record was allowed.  OPs filed reply to the said application objecting to its maintainability as diversionary tactics of complainant and that the said provision of CPA cannot be stretched to direct a statutory functionary body such as RCS formed under provisions of DCSA 2003 since this Forum does not have supervisory jurisdiction over the statutory functionary (RCS) which has entirely independent jurisdiction as such relief / direction as prayed for can only be invoked via Writ Jurisdiction of High Court under Article 226/227 of Constitution and prayed for rejection of the application. On merits OPs opposed the application on grounds that the complainant has been a defaulter member of OP2 in having failed to pay its dues since April 2006 as car parking dues and society maintenance dues since July 2008 but still enjoying the services which is not permissible. OPs further objected to the application that the secretary alleged to be defaulter has no bearing on the complainant enjoying the basic amenities of OP2 and even otherwise he has not filed any documents to show that the secretary of OP2 was in default towards maintenance charges as the minutes of meeting dated 29.05.2011 do not contain reference to any specific default which was a misinformation and stood clear in duly audited account by the CA appointed by RCS under provision of DCSA        in which complainant has been shown as debtor. The OPs stated that the report of RCS has already been annexed alongwith its written statement and therefore the application was misconceived and liable to be rejected. This Forum vide order dated 10.10.2012 disposed of both the applications filed by the complainant u/s 13(4) and 13(3B)(iv) directing OPs to discover and produce the documents asked for in the said application exercising its power u/s 13(4)(ii) of CPA. However, OPs did not comply with the said order and kept taking time from November 2012 till December 2012 during which period the complainant filed execution application u/s 27 of CPA to which OP1 submitted that they were willing to resolve all issues raised by the complainant by way of amicable settlement. OPs filed reply thereto submitting that the entire record of the society is with OP2 which has the key of the room as well as of the almirah in the office of the society and despite efforts to impress upon the secretary and other members to conduct affairs of society in fair manner, efforts of the OP1 have failed compelling OP1 to tender his resignation. In furtherance to the same, OP1 vide application and affidavit dated 21.12.2012 in proceeding held on the said date, submitted that during his tenure as president, he was kept in dark of activities and decisions taken by few executive members of the managing committee of OP2 and many members of OP2 have doubted the functioning  of OP1 and the members have not shown the books of account etc., despite on demand and therefore OP1 was constrained to tender his resignation on 19.12.2012  due to non availability of books of account and record of society resulting in inability to comply with the order of this Forum since the power to extend or stop services to a member of society vests with the RCS. OP1 also attached copy of his resignation letter. OPs also filed an application of having preferred revision against order dated 10.10.2012 before Hon’ble State Commission vide Diary no. 6890/2012 on 18.12.2012. In hearing held on 02.01.2013, Affidavit of AR / Secretary of OP2 was filed alongwith the aforementioned application deposing that the OP2 has already filed copies of ledger account pertaining to payment made by complainant as also the issue of recovery of the same having been settled by the complainant in first proceeding filed by him in the office of RCS in 2007. In so far as the issue of parking in A Block, the Secretary stated that the minutes of GBM held on 04.05.2008 have already been annexed in which it had been made clear the current system of parking and additional revenue by levying extra parking charge of Rs. 150/- per month will continue because the society does not have any sanction building plan for its A and B Block and therefore parking issue is sub-judice with the committee. The secretary further submitted that the resignation tendered by OP1 has not been accepted by the managing committee for which a meeting on 23.12.2012 had been convened in which OP1 withdrew his resignation. Secretary of OP2 has attached hand written note of minutes of meeting 04.05.2008 alongwith copy of letter dated 23.12.2012 by OP1 to OP2 in withdrawal of resignation alongwith minutes of meeting held on 23.12.2012. This Forum therefore vide order dated 04.01.2013 directed the RCS to make thorough investigation of records of OP2 and submit its report before this Forum on 08.02.2013. No report however was submitted on the said date due to non receipt of court order. In hearing held on 08.03.2013, the Complainant filed Substitution Application under Order 1 Rule 10 of CPC for substituting OP1 Shri O.P. Sharma the President with ShriRajbeer Sharma, Vice President of OP2 in view of letter dated 16.02.2013 by OP1 to OP2 tendering his resignation from OP2 with immediate effect for reasons cited in the said letter. The application was allowed and amended memo of parties was filed by the complainant impleading Rajbeer Sharma as OP1 for all future purposes. This Forum also directed the RCS to comply with its previous order 04.01.2013 and 08.02.2013 with explanation of non compliance of said order despite specific directions to comply. However, when no response came forth from the office of RCS, this Forum had issued a show cause notice dated 22.03.2013 to the RCS for failure to comply with its order and to show cause why contempt proceedings may not be initiated against RCS for disobedience of order of this Forum. The complainant on the said date also gave an undertaking to pay the maintenance charges of OP2 every month till the pendency of the complaint and on the said undertaking, OPs were directed to issue acknowledgment of payment receipts of all payment thus made by the complainant to it. In hearing held on 12.04.2013, Deputy Registrar and Assistant Registrar of Cooperative Society appeared and submitted that on the receipt of knowledge of this Forum order, they have appeared and sought time to comply with its order as also to the show cause notice issued on the said date. On the next date of hearing i.e. 26.04.2013, the RCS filed its reply to the show cause notice of this Forum vide which the said office submitted that the show cause notices dated 22.03.2013 and 12.04.2013 issued by this Forum were received by its office on 18.04.2013 and a consequent show cause notice was  issued by its Deputy Registrar (Admn.) dated 25.04.2013 deputing two person, PS to RCS and LDC (R&I) to explain the reason and circumstances for such action before this Forum and order of the same date issued by RCS appointing Assistant Registrar (East II) as inspecting officer in excercising of power vested with it u/s 61 of DCS Act 2003 to conduct an inspection into the constitution, working and financial condition of the society and submit its inspection report within 60 days from issuance of this order. Office of RCS submitted that in compliance of order of this Forum, the files of the OP2 have been looked into and as per record of the office of RCS, OP2 has filed the audit accounts for the period 2001-02 to 2010-11. The RCS attached copy of show cause notice, copy of audited account report for the aforementioned period and copy of order appointing inspecting officer as annexure R-1 to R-3. On hearing held on 17.05.2013, OPs apprised that the revision before Hon’ble State Commission has been admitted. In hearing held on 31.05.2013, complainant handed over a cheque of Rs. 13,500/- vide cheque no. 409189 drawn on UCO Bank dated 12.04.2013 in favour of OP2 for the period 01.01.2011 to 30.06.2013 towards maintenance subscription@ Rs. 450/- per month. The same was received by secretary of OP2 before this Forum against part payment of total dues of Rs. 52452/-. The OPs placed on record copy of resolution of AGBM of OP2 held on 30.06.2013 vide which the subject cheque was mentioned as having been received from the complainant for maintenance dues for the period mentioned at the back of the chequeand the complainant has a total outstanding of Rs.70,121/- (Rs. 52,452/- from April 2012 to March 2012 plus additional maintenance of Rs. 17,669/- from April 2012 to June 2013) and Society resolved to keep the subject cheque in abeyance and not to be deposited in OP2’s account till adjudication of this complaint. Complainant filed an application under Order 11 Rule 21 of CPC read with Section 13(4) of CPA for striking off the defence of the OPs in willful and deliberate default and non compliance of order of this Forum for discovery or production of documents as OPs failed to produce the documents / statutory records maintained with OPs whose production and discovery was sought by the complainant and has also contravened the provision of Rule 44 of Cooperative Societies Rule 1973 whereby it is directed that the Secretary shall keep all records of Cooperative Society and shall be responsible for preparation and submission of returns to the Registrar and therefore such records shall be deemed to be in custody, possession, power and control of Secretary. OPs in response filed a list of documents enclosing three documents in hearing held on 04.09.2013. The documents so filed were copy of order dated 21.08.2013 passed by Hon’ble Delhi High Court, Division Bench in W.P. (C) 4526/2013 titled Sanjay ChhabraVs Registrar  Cooperative Societies vide which order, pursuant to order of  Hon’ble Delhi High Court, RCS had appointed DRCS (Retd.) as administrator for conducting election of managing committee of society and the fact that the records of the society lying sealed in almirah keys of which have been deposited by LC of Hon’ble Delhi High Court handed over to so appointed administrator to recover such record, the writ petition was disposed of. OPs also placed on record circular dated 17.07.2013 of minutes of AGBM held on 30.06.2013 laying special emphasis on Agenda no. 4-legal case on society filed by complainant and expenses incurred thereon. OPs also placed on record copy of order dated 14.08.2013 passed by RCS appointing administrator under Section 35(5) of DCS Act 2003 to conduct election of managing committee of OP2. OPs also filed reply to the said application on 28.03.2014 vide which it raised preliminary objection of maintainability of the same as order of this Forum dated 10.10.2012 was already complied with by the learned Registrar of Cooperative Societies which had appointed an Inspecting Officer u/s 61 of DCSA who had furnished his report dated 19.08.2013 which has already been placed on record. OPs also objected to the application in view of the complainant’s letter dated 17.10.2013 requesting for inspection of books of account of society towards general maintenance for the years 2002 to 2003, 2004 to 2005 and 2007 to 2008 duly replied to by OPs through administrator vide response dated 08.11.2013 informing the complainant that his cheques of Rs. 6,000 and Rs 3,000/- each were received and appropriated towards outstanding dues of Rs. 70,121/-  as duly reflected in the minutes of AGBM held on 30.06.2013 and to pay the same within one week and further the complainant had already inspected the records upto 2005-06 and the subsequent record would be made available to him on 24.11.2013 for inspection between 10:30 AM to 12:30 PM. But the complainant was never serious about the issue and wrote a letter dated 17.11.2013 raising further queries instead of inspecting the records. For this non seriousness and vagueness, the Hon’ble Delhi High Court had also declined to take cognizance of complainant’s grievance. Therefore OPs prayed for dismissal of the application. Due to continued absence of OPs August 2014 onwards, OPs were proceeded against ex-parte vide order dated 16.11.2017. The present application was thus rendered infructuous vide order dated 13.07.2018; even otherwise the application of Civil Procedure Code has a very limited / restrictive scope in proceedings under Consumer Protection Act as laid down u/s 13(4) of CPA wherein the specific provisions of CPC have been laid down to be applicable in proceedings under the CPA.  The Hon’ble National Commission in I.S. Bhatia Vs Anil Kumar Mehta (1994) 2 CPJ 92 (NC) held that procedure of “striking of defence followed in the civil court is not provided for under the Consumer Protection Act or rules” in the absence of opposite parties. Even otherwise as per the settled law by Hon'ble National Commission in Bank of India Vs N V Deoras 1997 (3) CPR 63 (NC),even if OP is absent, Commission / Forum must consider averments in version before passing orders.
8. We have heard the arguments advanced by the counsel for complainant and have examined the entire material on record and bestowed our anxious consideration to the pleadings of both parties before us.
9. We shall be dealing with the relief prayer wise. In so far as the first relief of refund of Rs. 17,500/- as claimed by complainant is concerned, it is undisputed fact that the said sum was paid by the complainant in December 2001 to OPs as entry- fee charged by them and was appropriated / adjusted towards arrears of maintenance and lift maintenance to the tune of Rs. 7,700/- and            Rs. 6,600/- respectively by OPs in their books of account / ledger. The complainant by his own admission demanded refund of the said amount from OPs in March 2007 as can be ascertained from the reply dated 21.04.2007 to the said demand raised by complainant on 23.03.2007 i.e. after more than five years and the present complaint was filed four years thereafter of the refusal by OPs to refund the same. Therefore not only is the said relief barred by limitation u/s 24A of CPA but is also hit by Res Judicata in as much as the said relief was prayed for by complainant vide application u/s 70 of Delhi Cooperative Societies Act filed by him in July 2007 (prior to filing of the present complaint in December 2011) and the demand for the said amount was dropped by the complainant in joint compromise arrived between the parties submitted before the Deputy Registrar (Arbitration) on 20.07.2007 and therefore the principle of Estoppel also operates against the complainant in this regard. The Deputy Registrar (Arbitration) vide order dated 18.11.2008 (again prior to the filing of the present complaint) had dismissed the application u/s 70 of DCA Act 2003 filed by the complainant on grounds that the complainant’s claim for inspection of Books of Account without any specific dispute relating to him with OPs cannot be entertained. The Hon'ble National Commission in Vishnu Chandra Sharma VsSriram Finance Co. Ltd. III (2017) CPJ 211 (NC) decided on  20.03.2017 and Lalit Kumar DangivsKalpana P. Sanghavi III (2018) CPJ 380 (NC) held that provisions of CPA cannot be used in derogation of Arbitration and Conciliation Act, remedy under former being an additional remedy if main remedy under concerned act has not been taken and if made known otherwise, proceedings under Consumer Protection Act 1986 could not have been taken as alternative remedy also in view of the fact that the issues were settled or decided otherwise by the arbitrator in both of  which cases, the remedy by way of Consumer Protection Act is hit by Res Judicata, remedy of arbitration having already been availed of. In the present case too, the complainant had availed of invoking arbitration proceedings against OPs and had not only entered into a compromise settlement with respect to forgoing the refund of entry fee but also did not challenge the arbitral award dated 18.11.2008 which thus attained finality. This relief therefore prayed for in the present case cannot be granted to the complainant for all of the above reasons of limitation, Res Judicata and estoppels since the dispute stands already adjudicated by the Deputy Registrar (Arbitration) and this Forum cannot re-determine the issue as it does not have jurisdiction to sit in judgment over the awards of the arbitrators and the remedy open to the  complainant is / was by way of challenging the award as was also held by Hon'ble National Commission in JagdishKainthlaVs Bajaj Alliance Company and Anr IV (2016) CPJ 35 (NC) decided 16.05.2015 and Rajendra Singh VermaVsIndraprashthaSahakariAwasSamiti Ltd. IV (2016) CPJ 711 (NC) decided on 01.04.2016 vide which the Hon'ble National Commission held that where the arbitrator had already settled the matter between member and society, complainant cannot be permitted to have benefit of second remedy and second inning before the Hon'ble National Commission were thus barred by Res Judicata. We therefore conclude in this regard that this Forum cannot arrogate to itself that power which it is not armed with.
10. With respect to reliefs prayed for in prayer clause (b) and (d) are concerned, we observe that the complainant has prayed for reliefs pertaining to determination of parking area and formulation of Bye Laws which actually pertains to other occupants / residents of the society i.e. other flat owners in A and B Block as well and not complainant individually or alone. In respect of reliefs applicable to other members of the society and other flat owners in OP2, there is no application by complainant u/s 12(1)(c) of the Act seeking permission of this Forum for filing the complaint / seeking relief on behalf of or for the benefit of other consumers having the same interest / so interested as required under the aforesaid relevant provision of the Act. Hence, the relief claimed vide prayers clause (b) and (d) are not considered for the purpose of this consumer complaint as no such permission has been either requested for or obtained from this Forum by the complainant and therefore disallowed. The Hon'ble National Commission in Azure Tree Township LLP VsSrishti Building No. 343 Co-operative Housing Societies Ltd. in F.A Numbers 166/2016, 504/2016 and 505/2016 decided on 07.10.2016 held that cooperative societies or a group of cooperative societies, if are consumers within the meaning of Section 2(1)(d) is entitled to file a complaint u/s 12(1)(c) of the Act of the seeking having the same interest i.e. a common grievance and same relief by way of impleadment of other interested parties. If such individual complaints are allowed, that would be in contradiction to Order 1 Rule 8 (6) of CPC.
11. With respect to relief claimed under prayer clause (c) we observe that complainant being member of OP2 is required to pay maintenance charges to it at the rate decided by OP2 in its GBM and complainant is bound to pay the same at the same rate. This Forum cannot decide the amount of maintenance charge to be levied by OP2 but we direct OP2 to demand appropriate maintenance charges from the complainant as per the rate decided for corresponding periods by its as per its resolutions in Annual General Meeting and / or Special General Meeting as the case may be and the complainant is required to pay the same to OP2.
12. In view of none of the prayers being admissible / maintainable / entertainable by this Forum, we dismiss the present complaint as devoid of merits with direction to the complainant to pay all the outstanding / unpaid maintenance dues and lift dues of OP2 as per the prevailing charges decided by OP2 and arrears, if any, and OP2 shall issue proper receipts to the complainant of appropriations / adjustments of the amounts thus paid under their relevant heads. OP2 is directed to return the unencashedcheque of Rs. 13,500/- vide cheque no. 409189 drawn on UCO Bank dated 12.04.2013 in favour of OP2 for the period 01.01.2011 to 30.06.2013 @ Rs. 450/- per month handed over by the complainant to OP2 on 31.05.2013 with direction to complainant to issue a fresh cheque in lieu of the same as per the prevalent maintenance charges for the period concerned. The stay granted by this Forum to the complainant vide order dated 21.12.2011 operating against OPs accordingly stands vacated.  Let the order be complied with both the parties within 30 days of receipt of copy of this order.
13.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
14.   File be consigned to record room.
15.   Announced on  17.07.2020

(Arun Kumar Arya) President

(Sonica Mehrotra)  Member