Delhi

East Delhi

CC/877/2013

KESHAV SWARUP - Complainant(s)

Versus

WATER & POWER - Opp.Party(s)

13 Sep 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 877/13

 

Shri Keshav Swarup Chaube

S/o Late Shri S.S. Chaube

R/o E-02, Swati Apartment

(Also known as Water and Power Engineers CGHS)

12, Patparganj, I.P. Extension

Delhi - 110 092                                                           ….Complainant

Vs.    

 

Management Committee

Water and Power Engineers CGHS

12, Patparganj, I.P. Extension

Delhi - 110 092                                                                  …Opponent

 

Date of Institution: 05.10.2013

Judgement Reserved on: 13.09.2018

Judgement Passed on: 19.09.2018

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Sh. Sukhdev Singh (President)

 

JUDGEMENT

            This complaint has been filed by Shri Keshav Swarup Chaube against Management Committee of Water and Power Engineers CGHS (OP) under Section 12 of the Consumer Protection Act, 1986 with allegations of deficiency in service. 

2.         The facts in brief are that the complainant Keshav Swarup Chaube is a resident of Swati Apartment which is a cooperative group housing society.   Maintenance and day to day affairs of the society were maintained on payment of monthly maintenance charges.  The complaint has been paying all charges and cost of monthly maintenance to the society.  These monthly charges have been deposited in the bank account, maintained by the society in the name of “Swati Four Storey Maintenance Account” and has no relation to other outstanding charges as far as the provision of standard services were concerned.  The complainant have made full payment for the period April 2013 to Sep. 2013 which includes the outstanding charges for the period October 2010 to March 2011.  It has been stated that its President has been causing harassment to the complainant as the dispute has been raised by OP.  The complainant has not paid certain charges of the onetime repairs of the building which was carried out in 2012 and maintenance charges for the period October 2010 to March 2011 which have been adjusted.   

            It has further been stated that OP had been charging unfairly and unreasonably Rs. 15,000/- through its demand note wp/11-12 dated 28.01.2012 which was extended through demand note no. wp/12-13 dated 19.05.2012 for one time repairs.  The complainant asked through its letter of dated 29.05.2012 and subsequently reminder dated 14.09.2012 for the breakup item wise, however, no response was given to such clarification.  They handed over one page estimate, the demand of which was found to be excessive to the extent of Rs. 2,027/- as being the cost of work not to be done by OP, but free of cost by the power supply company.  The demand of Rs. 13,000/- was made by the complainant deducting Rs. 2,000/- through cheque no. 507383 dated 14.09.2013. 

            They returned the said cheque alongwith original letter WP/13-14 of the complainant of dated 01.10.2013 on the ground that cheque was to be issued for the combined demand of one time maintenance charges as well as annual maintenance charges for Rs. 24,898/- latest by 15.10.2013 failing which the society will be compelled to withdraw further paid services including disconnection of water supply.  They issued fresh demand note wp/2013-14 dated 01.10.2013 in which last date of payment was given as 30.10.2013 which contradicted the last date given as 15.10.2013. 

            It has further been stated that complainant could not give one cheque as the demand raised contained the charges pertaining to annual maintenance charges and one time maintenance charges for which separate cheques were to be issued, one in favour of “Swati Four Storey Maintenance Account” and the other cheque for one time maintenance charges for Rs. 13,000/- was in favour of “Water and Power CGHS Ltd.”

            It has further been stated that complainant has been paying all monthly maintenance charges towards upkeep of day to day maintenance which includes guards at the gate, maintenance of common area, parks and light in common area, water supply, salary of clerk, gardener, electrician, plumber etc.

            He has further stated that complainant wants to make payment for maintenance charges for the period October 2013 to March 2014, but the payment was not accepted separately for the same inspite of the fact that exclusive account exists.

            He has further stated that complainant was having seepage of his house in 2009 coming out from the common area due to water logging and holes created by the rats in the common area.  His balcony also accommodated waters and caused seepage into the drawing and dining room. 

            He has stated that responsibility of maintaining common area lies with OP.  No action was taken by the society inspite of verbal and written requests.  The complainant could not carry out distemper and painting work of his house for more than two years due to persisting seepage coming out from the common area.  He has carried out the preventive works by paying an amount of Rs. 4,475/- which he adjusted from the pending bill of maintenance charges of OP for an amount of Rs. 7,200/- for the period October 2010 to March 2011 and the balance of Rs. 2,725/- was made through cheque no. 061359.  The complainant did not receive any receipt for the payment made /adjusted.  He had to incur extra expenditure of      Rs. 8,000/- due to rise in cost of work of distemper/painting due to deficiency in services of OP to stop seepage.

            He has further stated that complainant and his family members have been harassed by one way or the other and since 11.08.2013, the guard at the main gate has been instructed not to open gate for the complainant and his family members for going out of society premises and while coming in the society.  The notice Ref. no. WP/2013-14 dated 11.08.2013 was pasted on notice board for withdrawing services to complainant for which due payment was made well in time.  No copy of this notice was given to the complainant.  The guard misbehaved with family members on the instruction of opposite party and refused to open the gate.  The police was also called and a complaint was lodged on 28.06.2013. 

            The office bearers of the Management Committee misguided the police stating that nothing has happened and dispute was one of consumer and not criminal.  Thereafter, for one two occasions, the gate was opened, but again the complainant was threatened for withdrawal of such facilities.  Even on one occasion, the cleaner of the society refused to pick the garbage belonging to the complainant for 10 days.  The guards also misbehaved   on instructions of the society. 

            He has further stated that they have threatened the complainant with withdrawal of further amenities like water and electricity.  The society in its letter of dated 01.10.2013 has threatened to stop water supply and further paid services if the payments were not made as demand created by clubbing the maintenance charges and one time major repair charges. 

            The complainant has prayed for restoration of services which were stopped since of its notice dated 11.08.2013 and provide regular standard and uninterrupted maintenance services to the complainant as provided to other residents on payment of monthly maintenance charges by the complainant; to direct OP to accept payments separately for the annual maintenance charges of Rs. 8,340/- for the period October 2013 to March 2014  in favour of “Swati Four Stores Maintenance Account” and              Rs. 13,000/- for major repairs in favour “Water and Power CGHS Ltd.”; reimburse Rs. 8,000 towards increased cost of distemper and painting work; to furnish proper receipt for the payment of Rs. 2,725/- and             Rs. 4,475/-; compensation of Rs. 2,00,000/- on account of mental agony, harassment and social embarrassment  and Rs. 5,000/- towards litigation expenses.    

3.         In the written statement filed on behalf of Management Committee of Water and Power Engineers CGHS (OP), they have stated that complainant have not disclosed the facts of nonpayment of dues viz. major repair charges and maintenance charges even after repeated written/oral reminders. 

            They have further stated that due to dilapidated structure of the apartment in the common areas of the society, it was resolved in the 42^nd Annual General Body Meeting of the Opposite Party, held on 08.01.2012 that major repair works were required to be carried out in the common areas of the society and the cost for the same would be borne by all residents/members by making a contribution of Rs. 15,000/- each.  This demand was over the above the monthly maintenance charges.  Thus, a demand notice dated 28.01.2012 was sent to the residents including the complainant.  The complainant was given notices/reminders dated 19.05.2012, 04.07.2012, 18.09.2012, 27.09.2012 and 01.10.2013 as he did not make the payment towards the major repair charges. 

            An amount of Rs. 34,438/- was due from the complainant as on 22.02.2014.  The complainant have also invoked the remedies under Section 89(2) of the Delhi Cooperative Societies Act, 2003 by instituting an Appeal dated 13.09.2013.  The complainant cannot simultaneously invoke two parallel remedies which render the complainant guilty of forum shopping.  He has concealed the facts that he has been highly irregular in paying the maintenance charges.  On one occasion, cheque no. 50560 dated 05.03.2011 for a sum of Rs. 8,500/-  got dishonoured due to which the bank levied a penalty of a sum of Rs. 100/-.  The complainant issued a fresh cheque no. 293182 dated 10.04.2011 for a sum of Rs. 8,500/-.  For bouncing charges of Rs. 100/-, the complainant also issued cheque          no. 293185 dated 22.04.2011 which was again dishonoured.

            After a period of 21 months, the complainant without remitting any equalization charges, tendered a cheque of Rs. 100/- vide cheque           no. 130815 dated 29.01.2013.  They have also written letters to the Registrar, Cooperative Society for not paying the maintenance charges.  They have also stated that OP was a mutual society which provides common facilities like maintenance, water supply, security etc. to the residents of the apartments out of the common funds collected from the members/residents.  They were not involved in profit making venture.  They have been well within their rights to discontinue such services to residents who committed faults in making payment of their respective share towards the repairs/maintenance and other dues. 

            They have also stated that though complainant was not paying its dues even after repeated reminders, they have not stopped the security guard facility to the complainant.  All other common facilities viz. water supply, electricity etc. were being provided by OP.  It was only thereafter on 03.10.2013, the complainant has approached this Forum by filing this complaint.  The behavior of the complainant has been highly deplorable and condemnable.  The members of the society vide letter dated 28.11.2011 had written a collective complaint against the complainant.

            They have denied that the society through their President or any other office bearers was harassing the complainant.  On the contrary, it was complainant who has deprived the OP of its legitimate/monitory claims.  They have denied that they have charged any entry fee from the complainant.  They have also stated that no other flat owner have raised any issue regarding the charges pertaining to the major repairs/maintenance levied by OP.  All other members/residents have cleared their dues.  They have denied that they have charged unfairly and unreasonably vide their demand note dated 28.01.2012 and 19.05.2012 wherein OP have demanded a sum of Rs. 15,000/-.  OP specifically endorses that the contents of the estimate dated 16.08.2013 were correct and genuine. 

            They have denied the demand to the extent of Rs. 2,027/- as excessive.  The complainant was legally bound to remit the annual maintenance and one time maintenance charges.  He has unilaterally sought to reduce the maintenance charges, which was clearly impermissible.  All other members of society have been complying with the demands of maintenance charges.  They have denied that the complainant have been regular in paying monthly maintenance charges towards upkeep of the day to day maintenance task which includes guards at the gate, maintenance of common area, water supply, salary of clerk, gardener, electrician, plumber etc.

            It has been stated that OP has been willing to accept without prejudice to their rights and contentions, the maintenance charges for a period between October 2013 to March 2014.  The demand of the complainant for recovery of Rs. 8,000/- was barred by limitation as it pertains to the year 2009 and the complaint has been filed after a period of 4 years which was clearly beyond the prescribed period of limitation. 

            They have denied that any seepage has occurred in the house of the complainant due to the common area.  They were not responsible for the maintenance of the residential premises/house of the complainant.  They have denied averments made in respect of Rs. 4,475/- incurred by the complainant.  He has paid a lesser amount of Rs. 2,725/- as maintenance charges for the period between October 2010 till March 2011. 

            They have admitted that OP stopped the security guard facility to the complainant as the complainant was not paying the maintenance charges, however, all other common facilities like water supply, electricity etc. were provided to the complainant.  They have denied that the security guard misbehaved with the family of the complainant and refused to open the gate.  They have denied that the Management Committee misguided the police and stated that the dispute was of a consumer nature.  All other facts have also been denied.

 

 

4          Rejoinder to the written statement filed on behalf of the complainant.  He has controverted the pleas taken in the written statement and have reiterated the contents of the complaint.  He has further stated the facts in respect of the proceedings before the Registrar of Cooperative Societies.  Not only this, he has also given additional pleas which do not require any elaboration.

5.         In support of its complaint, the complainant have examined himself who has deposed on affidavit.  He has filed the affidavit twice, one alongwith the rejoinder and another during the course of proceedings.  Since he has filed two affidavits in support of his complaint, his later affidavit is taken in the form of evidence.  In this affidavit, he has got exhibited documents running from Ex.CO-1/1 to 1/23.  In the affidavit, instead of reiterating his averments in the complaint, he has made additional submissions and have controverted the pleas taken by OP in its written statement.  Not only that, he has narrated the facts in respect of proceedings of Delhi Cooperative Societies Act held by the society from time to time which were not part of complaint, so they are not read in Evidence.

            Management of Water and Power Engineers, CGHS (OP) have examined Shri V.S. Verma, who has deposed on affidavit.  He has narrated the facts which have been stated in the written statement.  He has also got exhibited documents such as notice to the residents/members including the complainant dated 28.01.2012, 19.05.2012, 04.07.2012, 18.09.2012, 27.09.2012, 01.08.2013 and 01.10.2013 (Ex.OP-1/1 colly.), copy of letter dated 17.02.2013 to the complainant  (Ex.OP-1/2), copy of letter dated 06.02.2013 (Ex.OP-1/3), copy of letter dated 09.12.2013 and 25.12.2013 sent to the Registrar (Ex.OP-1/4), copy of letters dated 28.11.2011 and 19.12.2011 sent by OP to the complainant in respect of deplorable conduct of the complainant (Ex.OP-1/5), copy of letters dated 28.11.2011, 26.10.2012, 07.12.2012 and 09.12.2012 sent to the complainant demanding payments by providing appropriate regular breakup (Ex.OP-1/6).

6.         We have heard the complainant and have perused the material placed on record.  Counsel for OP did not appear to argue.  Though, they have not appeared to argue, however, their plea taken in the written statement as well as the evidence on record are examined.  If the written statement filed on behalf of OP is perused, it is noticed that they have admitted that they stopped the security facility to the complainant as he was not paying the maintenance charges.  However, they have stated that all other common facilities like water supply, electricity etc. were provided to the complainant. 

            The basic issue which has arisen in this complaint has been that complainant was asked to pay an amount of Rs. 15,000/- in addition to the maintenance charges.  This amount as per the version of the Management of Water and Power Engineers, CGHS (OP) has been over and above the monthly maintenance charges which was resolved in the 42^nd Annual General Body Meeting of OP to maintain the common areas of the society. 

            From perusal of the evidence on record and the documents placed by the complainant himself, it has been noticed that complainant himself have placed notice Ex.CO-1/2 where it has been stated that an amount of Rs. 24,591/- was outstanding against the complainant.  Withdrawing the facilities to the defaulting residents including the complainant was taken if they did not make the payment by 31.08.2013.  It means that the complainant was irregular in making the payment and was a defaulter. 

            If the complainant himself was a defaulter, he cannot say that there was deficiency on the part of Management of Water and Power Engineers, CGHS (OP).  They have categorically admitted in their written statement that they have withdrawn the facility of security guard as the complainant did not make the payment.  Even they have stated in their written statement that they have been willing to accept the maintenance charges for a period between October 2013 to March, 2014. 

            There is nothing on record to show that it was due to the fault of Management of Water and Power Engineers, CGHS (OP), the complainant have to incur expenditure for distemper and painting work.  The evidence on record is sufficient to show that there was no deficiency on the part of Management of Water and Power Engineers, CGHS (OP), but on the contrary, the complainant has been at fault by not paying an amount of    Rs. 24,591/- towards maintenance charges. 

            During the course of arguments, complainant have stated that at present, he was not having any problem with the society.  The fact that he was not having any problem with OP and there has been no deficiency on the part of Management of Water and Power Engineers, CGHS (OP).  The case of the complaint deserves its dismissal which stands dismissed.  There is no order as to cost. 

            However, complainant is directed to make payment of the maintenance charges for the period October 2013 to March 2014 and any other amount outstanding to the Management of Water and Power Engineers, CGHS (OP) as the Management of Water and Power Engineers, CGHS (OP) has been formed for the welfare of the residents and not for any profit making venture. 

            Copy of the order be supplied to the parties as per rules.

            File be consigned to Record Room.

 

 

 

(DR. P.N. TIWARI)                                              (HARPREET KAUR CHARYA)

       Member                                                                             Member 

  

            (SUKHDEV SINGH)

                   President