Haryana

Yamunanagar

CC/11/2013

Prem Chand Sharma S/o Tara Chand Sharma , - Complainant(s)

Versus

The Jagdhri Co-op House Building Society Ltd. - Opp.Party(s)

Chander Bhushan

20 Jul 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR.

                                                                        Complaint No. 11 of 2013

                                                                        Date of Institution: 02.01.2013/31.12.2012  

                                                                        Date of Decision: 20.07.2017

 

Prem Chand Sharma, aged about 72 years, son of Shri Tara Chand Sharma, resident of House No.C-II-623, Honian Street, Jagadhri, District Yamuna Nagar at present resident of House No.1090, Mahabir Colony, Hanuman Gate, Jagadhri, District Yamuna Nagar.

 

 …Complainant.

                                    Versus

The Jagadhri Coopertive House Building Society Ltd. Saraswati Colony Jagadhri-Yamuna Nagar Road, Jagadhri, District Yamuna Nagar, through its President Dr. Brij Mohan Gupta.                                                                                                                         

                                                                                                 …Respondent

 

BEFORE:         SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

                        SMT. VEENA RANI SHEOKAND…..…… MEMBER

 

Present:           Shri Chander Bhushan, Advocate for complainant along with complainant in                          person.

                       Shri G.C. Verma, Advocate for Respondent.

 

ORDER (ASHOK KUMAR GARG, PRESIDENT)

 

1.                     The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986, against the respondent hereinafter respondent will be referred as OP.

2.                     The brief facts of the present complaint are that complainant is the member of OP society i.e. Jagadhri Cooperative House Building Society Ltd. from a very long time and his membership No. is 54. The OP society owned and possessed land sufficiently for providing residential plots to its member but the official of the said society had indulged in mal- practice and had not been working properly for the purpose of functioning of the said society smoothly. The complainant being the member of the said society was fully entitled to get the plot for residential purpose and when the complainant was got entered as member of society, the office bearers of the society had promised with the complainant that a plot for raising construction of house shall be allotted to him and each and every members of the society but the complainant made many requests to allot a plot but all in vain. It has been further mentioned that complainant had at his own level verified from the spot and came to know that the said society had adopted the pick and choose policy and did not adopt the proper way for the allotment of plots for the purpose of constructing the residential house for the members. The opposite party also did not carve out the colony in proper size for the allotment of plots to its members and it carved out the big sizes plots and the office bearers of the said society sold away the land of the society for heavy profits to the commercial concerns like SP Hospital etc. which is very much unfortunate on the part of the said society. Lastly, it has been mentioned that the OP is duty bound to allot the plot to the complainant for construction of residential house but the OP refused to allot the same which constitute the deficiency in service and unfair trade practice on the part of the OP and lastly prayed for directing the OP to produce entire record of the society as well as also to allot the plot of  his share as per his membership and further to pay compensation as well as litigation expenses.

3.                     Upon notice, OP appeared and filed its written statement taking some preliminary objections such as complaint is neither legally maintainable nor tenable in the eyes of law; complainant is estopped by his own act and conduct to file the present complaint; the present complaint is highly barred by limitation and on merit it is stated that the complainant did not pay any membership fee, he had paid Rs.15000/- for allotment of plot out of the land of Mandir and Dharamshala which was meant for the Mandir and Dharamshala of the society. In fact the society has only 104 members who are members from beginning vide resolution No.3 and 4 dated 11.12.1997, all 104 members of the society were allotted plots and because the society had no surplus land, therefore no new members was to be joined. 127 plots of 133 sq. yards has been carved out vide resolution dated 23.04.1995. It is further submitted that vide resolution No.4 dated 19.09.1993, it was resolved by the OP society to allot the plots to the other 23 members including the present complainant other than 104 members who had applied and conditionally deposited the sum of Rs.15000/- from the land which was reserved for temple, School and Dharamshala. So far deposit of Rs.15000/- by the complainant is concerned, in that respect, it is submitted that the complainant was allotted to deposit the same on his own responsibility and risk subject to availability of plots otherwise refund of the amount was agreed. This resolution was given effect to and plot of 133 Sq. Yards out of the land so reserved were to be distributed among 127 members. This distribution was subject to approval. The resolution dated 19.09.1993 was challenged and the Inspector Cooperative Societies vide letter dated 14.05.1999 ordered the cancellation of the allotment to 23 members including the present complainant. As such the OP society in terms of that letter dated 14.05.1999 cancelled the said allotment vide resolution no.4 dated 15.06.1999. The complainant and everybody is well aware of this fact and he and other members filed appeal before the Deputy Registrar, Karnal which was dismissed vide judgment dated 04.10.2000. After that, the appeal before the Registrar Cooperative Societies, Haryana, Chandigarh was also dismissed vide order dated 15.01.2013, because the land of mandir and Dharamshala could not be allotted and it was a land of public utility and therefore, this amount had been returned by the society with interest amounting to Rs.21000/- to the complainant vide cheque No.208736 dated 15.01.2008 drawn on Central Bank of India, Jagadhri and this amount had been credited to the account of the complainant which he had accepted. The OP society bonafidely and honestly refunded the sum of Rs.15000/- with interest by sending cheques to the other members as well. Rest contents of the complaint were denied being wrong and incorrect and lastly prayed for dismissal of the complaint.

4.                     In support of his case, ]complainant tendered into evidence his affidavit as Annexure CW/A, photocopy of certificate bearing No.048 as Annexure C-1, photocopy of RTI as Annexure C-2, photocopy of postal order as Annexure C-3, photocopy of RTI reply dated 04.09.2012 as Annexure C-4, photocopy of letter to Prem Chand dated 10.03.1995 as Annexure C-5, photocopy of letter to Prem Chand regarding draw as Annexure C-6, photocopy of receipt as Annexure C-7 to C-27 and closed the evidence on behalf of complainant.

5.                     On the other hand, learned counsel for the OP tendered into evidence photocopy of judgment bearing CC No.43/2008 as Annexure R-1, photocopy of judgment bearing CC No.44/2008 as Annexure R-2, photocopy of judgment bearing CC No.447/2008 as Annexure R-3, photocopy of order passed by Shri DR Dihngra, IAS Additional Registrar (Admn.) Cooperative Societies, Haryana as Annexure R-4 and closed the evidence on behalf of OP.

6.                     We have heard the learned counsel for the parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

7.                     After hearing both the parties, we are of the considered view that this complaint is nothing except an abuse of the process of law. Firstly, the version of the OP Society that an amount of Rs.21000/- i.e. Rs.15000/- principle amount + interest was refunded to complainant vide cheque No.208736 dated 15.01.2008 drawn on Central Bank of India, Jagadhri and this amount has been credited to his account, which was deposited by him for allotment of plot out of land of Mandir and Dharamshala which was meant for the Mandir and Dharamshala of the society at his on responsibility and risk subject to availability of the plots otherwise refund of amount was agreed and further this distribution/allotment was subject to approval, however, the OP society in terms of that letter dated 14.05.1999 cancelled the said allotment vide resolution No.4 dated 15.09.1999, has not been rebutted by the complainant by filing any cogent evidence, when the complainant had already received the amount of Rs.15000/- along with interest on 15.01.2008, then no question arise to file the complaint on 02.01.2013 i.e. after a period of 5 years. So, the complaint of the complainant  is hopelessly time barred under Section 24-A of the CP Act. Secondly that from the perusal of written statement filed by the OP society, it is also clear that some other members filed an appeal before the Deputy Registrar, Karnal which was dismissed vide judgment dated 04.10.2000. After that the appeal before the Registrar, Cooperative Societies, Haryana, Chandigarh was also dismissed vide order dated 15.01.2013, because the land of Mandir and Dharamshala could not be allotted and it was a land of public utility and therefore, the amount deposited by the member  had been returned by the society with interest to the members. All these facts have been suppressed/concealed by the complainant due to the reason best known to him, so the complainant has not come to the Forum with clean hands and is not entitled to get any relief on this account, otherwise on merit also by way of this complaint, complainant wants to issue direction to the OP society to allot the plot to the complainant but not a single iota of word has been mentioned in the complaint that the OP society has commenced the draw of the society for allotment of plots or the society had demanded any applications to allot the plots against any consideration to its members, as no such brochure has been placed on file. It is settled law that prior to any allotment by draw, to the customer, does not fall under the definition of consumer. The same view has been held in case titled as (National Commission) 2010(1) CPC 440 and referred by the counsel for the OPs wherein it has been held that :-

Consumer Protection Act, 1986- Section 2(1) – Consumer- Allotment- An application for allotment was given by the complainant as a prospective investor- Complainant is not a consumer merely on the basis of application for allotment till allotment of plot made in his favour.

 

Similarly in another case tilted as “Union Bank of India Vs. Smt. Anita Gupta and others, Appeal No.783/2003 decided on 28.09.2010 by the Hon’ble State Commission, Panchkula which is based on the judgment titled as Rourkela Development Authority Vs. Rourkela Consumer’ Front, 2009 CTJ 1166(CP) (SCDRC) wherein it has been held that:-

only by depositing the earnest money for allotment of a plot of land or house does not make a person “Consumer “  as thereby he does not hire service in the present case and therefore, there can be no question of any deficiency in service.

8.                     Further, from the other angle also, as per provision of Section 102,112,124,128 of the Haryana Cooperative Society Act, the complaint of the complainant is also not maintainable. The case law referred by the counsel for the complainant titled as “ Virender Jain Vs. Alaknanda Coop. Group Housing Society Limited 2013(4), 3311 is not disputed but not helpful and applicable to the facts of the present complaint.

9.                     Resultantly, in the circumstances noted above and going through the law referred above, we are of the considered view that complaint of the complainant is devoid of any merit and the same is neither maintainable or the complainant falls under the definition of consumer and further the complaint is hopelessly time barred as such, this complaint is hereby dismissed with no order as to cost. Copies of this order be supplied to the parties concerned as per rules. File be consigned to the record room after due compliance.

Pronounced in open court.

Dated: 20.07.2017                              

                                                                     (ASHOK KUMAR GARG),    

                                                                     PRESIDENT, DCDRF,

                                                                     YAMUNA NAGAR AT JAGADHRI

 

 

     (VEENA RANI SHEOKAND)                (S.C. SHARMA)

      MEMBER                                                MEMBER