BEFORE THE DISTRICT CONSUMER FORUM : MEDAK AT SANGAREDDY

PRESENT: Sri Patil Vithal Rao, B.Sc., LL.B.,President

Smt. Meena Ramanathan, B.Com., Lady Member

Friday, the 15^th day of March, 2013

CC. No. 23 of 2012

Between:

K. Rama w/o Late K. Sudharshan,

Aged about : 37 years, Occ: BHEL LWS Contract Employee,

R/o Q.No. 341/1 E, BHEL Township, Ramachandrapuram,

Medak District, Andhra Pradesh.

                                                                                                  ……Complainant                       

                   And

The President,

BHEL MIG Employees Co-Operative Housing Society Ltd.,

Phase-II, (Regd. No. TBC 655)

Near Main Circle, OHT – 1, MIG Phase – II Colony,

Vidyut Nagar, Ramachandrapuram – 502 032,

Medak District, Andhra Pradesh.                                           ……Opposite party

This case came up for final hearing before us on 04.03.2013 in the presence of Smt. Thakur Poornima, Advocate for complainant and Sri M. Giridhar, advocate for opposite party and heard the arguments of both sides, on perusing the record and having stood over for consideration till this day, this Forum delivered the following:

O R D E R

(Per Se Sri Patil Vithal Rao, President)

                 The factual matrix of the case which has been filed under Section 12 of the Consumer Protection Act, 1986, in brief, is that one K. Sudarshan, husband of the complainant, while working as an Engineer in BHEL, Ramachandrapuram, Medak District, became member of the housing society of the opposite party by paying necessary charges towards membership fee and share capital to secure a housing plot and that subsequently paid a sum of Rs. 15,000/- and Rs. 10,000/- towards developmental charges and died on 21.11.2004. The complainant has further contended that despite several requests the opposite party did not allot a plot to her husband during his life time and thereafter to her though plots were allotted to other junior members illegally resulting in monetary loss and hardship to her in staying in a rental house by paying monthly rent of Rs. 3,000/- since June 2001. Therefore she prayed to direct the opposite party to allot a plot to her within three months or alternatively to award a sum of Rs. 10,00,000/- towards market value of such a plot in the vicinity apart from Rs. 3,96,000/- towards rental expenses incurred  by her. She has also claimed a sum of Rs. 2,00,000/- towards punitive damages and compensation for negligence of the opposite party and mental harassment and agony suffered by her on account of deficiency of service, and Rs. 5,000/- towards costs of the litigation.

2.              The opposite party has filed the counter challenging the claim of the complainant on the grounds, in brief, that this Forum has no jurisdiction to entertain the case and that the same is barred by the limitation. The further defence of the opposite party is that the complainant’s deceased husband, after becoming member of the society failed to remit Rs. 2,55,000/- towards costs of the plot within stipulated time and also extended time as per terms & conditions and that as such the management of the housing society terminated his membership. The opposite party has further contended that instead of making the claim for refund of the amounts,  the deceased thereafter kept quite for quite long time and then sent a letter with lame excuses in not making payment of the cost of a plot, with a view to create some evidence against the opposite party. After his demise, as per the opposite party, the complainant approached the management with a request to refund the amounts paid by her husband after receiving a cheque for Rs. 300/- which was sent by the opposite party to her towards his membership fee and share capital. Even after receiving of a letter dated. 26.08.2005, as per the opposite party, the complainant did not produce any proof of remittance of Rs. 25,000/- by her late husband and that as such the opposite party could not refund the same to her. For all these reasons the opposite party as prayed to dismiss the complaint with costs.

3          During the course of the enquiry the complainant has filed her evidence affidavit and marked Exs. A1 to A8 to substantiate her case. The opposite party has filed his evidence affidavit and relied on Exs. B1 to B19, in defence.

                   The written argument has been filed for the complainant. Heard.

4.                  Now the point for consideration is that whether the complainant is entitled for the reliefs as prayed for against the opposite party on the ground of deficiency of service?

Point:

5.            It is not in dispute that the deceased husband of the complainant, Mr. K. Sudarshan was a member of the housing society of the opposite party. Ex. A1 is his photo identity card in this regard. He obtained a recommendation letter vide Ex. B1 from his General Manager in securing membership of the housing society. He paid a sum of Rs. 200/- towards share capital apart from membership fee. Subsequently as per the terms & conditions of the allotment of housing plot under Ex. B4 he submitted his affidavit vide Ex. B5 and remitted a sum of Rs.25,000/- towards installments of the value of a plot. Ex. B2 and B3 are counter foil receipt and chalan of the bank respectively in this regard. Ex. A3 and A4 are copies of Ex. B2 and B3 whereas Ex. A2 is bank challan for Rs. 200/- towards payment of share capital. He died on 21.11.2004 leaving behind his wife, the complainant herein, as his legal heir.  Ex. A6 is the death certificate issued by the municipality and Ex.A5 is the certificate issued by his employer to the complainant to submit the same to the office of the opposite party. These are all admitted facts.

6.             It seems the deceased did not pay Rs. 2,55,000/- towards total cost of the housing plot as per the agreed terms & conditions of the contract between the parties within the stipulated time and as such the opposite party issued demand notice vide Ex. B6. When there was no response from the deceased, final notices under Exs. B7 to B9 were issued to him with extension of time in making remittance. After waiting for almost 2½ years, ultimately the opposite party cancelled allotment of plot by treating him as a defaulter. Ex. B10 is intimation letter sent to him in this regard on 20.02.2002. Ex. B11 is un served postal cover for Ex. B10. Evidently the allotment was cancelled by the opposite party as per clause No. 9 given in the terms & conditions, Ex. B4, noted supra. The allegation put forth by the deceased in the letter dated. 28.05.2003, Ex. B12 is that as he was transferred to a far away place from Ramachandrapuram, he could not receive any communication from the opposite party and as such could not pay the dues and expressed his willingness to clear off the same and requested to allot a housing plot. He also sent a reminder on 05.07.2003 to the opposite party vide Ex. B13. But evidently there is no truth in the said allegation because the demand notice under Ex.B7 shows that it was served personally on him 07.08.2000. Moreover Exs. A6,B8,B9,B10 & B11 were sent to him on his address as furnished by him in his affidavit, Ex. B5. Thus virtually there is no lapse of any kind on the part of the opposite party in invoking clause no. 9 of Ex.B4 stated above. Further, on 12.07.2003 the opposite party requested the deceased to take refund of the amount of Rs. 25,000/- covered by Ex. B2 and B3 remitted by him, on production of relevant documents. Ex. B14 is a copy of the said letter and Ex. B15 is postal acknowledgment for it which was sent on the new address of the deceased given by him only. Ex. B16 is another letter dated. 11.06.2004 addressed by the deceased to the opposite party intimating his latest residential address. Thereafter he died on 21.11.2004.

7.              The complainant, as legal heir of the deceased, approached the opposite party with an application dated. 24.08.2005, Ex. B17 requesting refund of the above noted amount of Rs. 25,000/-. On receiving the same the opposite party responded immediately by sending letter dated 26.08.2005, Ex. B18 by enclosing a cheque towards refund of share capital and requested her to submit proof of remittance for refund of balance amount. But surprisingly after about four months of it she approached the opposite party with a letter dated 12.12.2005, Ex. B19 informing her intension to withdraw her earlier letter, Ex. B17 and requested for allotment of a house.

8.                     It is to be noted that on cancellation of the housing plot by the opposite party through the letter dated. 28.03.2002, Ex. B10, the membership of the deceased husband of the complainant came to an end. Therefore the complainant, being not a member of the society, cannot request the society for allotment a house in its housing scheme. Hence her request under Ex.B19 is not tenable in the eye of law. At the cost of repetition, it is to be noted that the cancellation of allotment of a plot /house by the opposite party to the deceased husband of the complainant is perfectly in accordance with agreed terms & conditions of the mutual contract between the parties and is not tainted with any malafides or illegalities.

9.              The learned counsel for the complainant has vehemently contended that several irregularities were committed by the managing committee of the housing society of the opposite party in making allotment of plots and also in maintaining its accounts. The complainant has filed a copy of inspection report under Ex. A7 in this regard evidencing the said facts. But this document does not come to her rescue for the simple reason that the alleged mis-management  of the affairs of the society is entirely different aspect and cannot be linked with the present claim of the complainant. Further, as per item No. 12 in the index sheet of Ex.A7 the subject matter therein was subjected to judicial scrutiny in a civil suit in O.S.No. 270/2010. But a copy of judgment there is not placed before us for perusal. For these reasons the report under Ex. A7 becomes totally irrelevant to the case. By mistake the memo filed by the counsel for the complainant with regard to service of notice on other side in I.A. No. 42/2013 in this case has been marked as Ex. A8. Therefore this memo cannot be a document to the case.

10.         The learned counsel for the complainant has further contended that the membership of complainant’s husband was illegally terminated and was never communicated to him and that she being his legal heir, is entitled to all the benefits of her husband and that she did not receive amounts paid by him to the society and that she has already cancelled her decision in claiming refund of the said amount by informing the opposite party through the letter, Ex.B19 about her intention to accept allotment of a house. She has further propounded that so far her claim was not redressed by the opposite party and the same is still pending and as such it is not barred by limitation. To support her contention she has relied on a copy of the order dated. 12.01.2006 of the Hon’ble National Commission in Revision petition No. 529/2006, in a case between “Commissioner, Nagar Palika Nigam, Bhilai And Rajesh Kumar Shukla”. This is a case wherein the complainant had remitted entire costs of the housing plot with the opposite party and continued persuasion for allotment  of the same but the opposite party refunded only value of the plot on the premise of non-availability of a plot for allotment but failed to refund initial 10% deposit of the value of the plot. Therefore it was held that by retaining the initial deposit value and another sum of Rs. 500/- towards cost of news paper advertisement, the hope of the complainant was kept alive by the opposite party and that as such it constituted a continuous cause of action and, therefore, the complaint was not barred by limitation. But in the present case when the membership of complainant’s husband was already terminated by the opposite party, the complainant has no locus standi to put forth her claim by way of present complaint. Even otherwise she kept quite even after receiving the decision of the managing committee to refund the balance amount lying with it to her on her submitting proof of remittances made by her husband, but filed the present case only on 12.04.2012, i.e. after more than six years. Thus her claim is barred by limitation u/s 24-A of the Consumer Protection Act, 1986.

               For the aforesaid reasons, we hold that the complaint is neither maintainable on the facts nor in the eye of law and as such the same is liable to be dismissed.

                 The point is answered accordingly against the complainant.

11.            In the result, the complaint is dismissed but in the circumstances without cost.

                 Dictated to Stenographer, after correction the orders pronounced by us in the open court this the 15^th  day of March, 2013.

                   Sd/-                                                 Sd/-

                    LADY MEMBER                                 PRESIDENT

APPENDIX OF EVIDENCE

                                 WITNESS EXAMINED

For the complainant:                                            For the opposite parties:-

DOCUMENTS MARKED

For the complainant:                                            For the opposite parties:-

                              Sd/-                                           Sd/-

                     LADY MEMBER                 PRESIDENT

Copy to

1. The Complainant
2. The Opp.Party
3. Spare copy