State Consumer Disputes Redressal Commission
Dr. Basa Raheshwar Rao, S/. Bhoomaiah, ... vs 1. Sakkubai Nagar Co- Operating Housin ... on 11 April, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana First Appeal No. FA/1209/2013 (Arisen out of Order Dated 08/04/2013 in Case No. Complaint Case No. CC/2/2011 of District Karimnagar) 1. Dr. Basa Raheshwar Rao, S/. Bhoomaiah, Aged about 58 Years, Occ: General Surgeon, India, R/o. H.No. 1-4-338, TB Road, Koratla Town & Mandal, Karimnagar Dist. ...........Appellant(s) Versus 1. 1. Sakkubai Nagar Co- Operating Housin Society Ltd., Hyderabad at Presently Chanbged as S.N. Murthy Aided Co-Operative Housing Society Ltd., H.No.8-1-297/2, Sukkubai Nagar, Shaikpet, Hyderabad, 2. Rep. byD. Seetharamaiah. D. Seetharamaiah. 3. 2. D. Seetharamaiah Authorised Person of Sakkubai Nagar Co- Operating Housin Society Ltd., Hyderabad at Presently Chanbged as S.N. Murthy Aided Co-Operative Housing Society Ltd., C/o. Florochem Pvt. Ltd., H.No.3-6-307/1, Hyderaguda, Hyderabad-500 029. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Appellant: For the Respondent: Dated : 11 Apr 2017 Final Order / Judgement BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD FA NO.1209 OF 2013 AGAINST CC NO.2 OF 2011 ON THE FILE OF DISTRICT FORUM, KARIMNAGAR Between: Dr.Basa Rajeshwar Rao S/o Bhoomaiah, Aged about 68 years, occ: General Surgeon, Indian, R/o H.No.1-4-338, I.B. Road, Koratla Town & Mandal, Karimnagar district. ...Appellant/Complainant And 1) Sakkubai Nagar Cooperative Housing Society Ltd., Hyderabad, at present changed as S.N. Murthy Aided Cooperative Housing Society Ltd., H.No.8-1-297/2, Sakkubai Nagar, Shaikpet, Hyderabad, rep. by D.Seetharamaiah. 2) D.Seetharamaiah, authorized person of Sakkubai Nagar Cooperative Housing Society Ltd., Hyderabad, at present, changed as S.N. Murthy Aided Cooperative Housing Society Ltd., C/o Florochem Pvt., Ltd., H.No.3-6-307/1, Hyderguda, Hyderabad-500 029. ...Respondents/Complainants Counsel for the Appellant : Sri V.Gouri Sankara Rao Counsel for the Respondents : Sri M.S.Srinivasa Iyengar Coram : Hon'ble Sri Justice B.N.Rao Nalla ... President and Sri Patil Vithal Rao ... Member
Tuesday, the Eleventh day of April Two thousand Seventeen Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) *** This is an appeal filed by the complainant dissatisfied by the orders of District Consumer Forum, Karimnagar dated 08.04.2013 made in CC No.2 of 2011 in partly allowing the complaint and directing the Opposite party to refund Rs.40,000/- to the complainant with interest @ 9% p.a. from the date of filing the complaint i.e., 06.01.2011 till the realization and Rs.1,000/- towards costs of the proceedings within one month from the date of receipt of the order.
2) For the sake of convenience, the parties are referred to as arrayed in the complaint.
3) The case of the complainant, in brief, is that the complainant is a medical practitioner at Korutla and the OP No.2 stated to have started housing society in the name and style of Sakkubai Nagar Cooperative Housing Society Ltd., Hyderabad assuring that the members will get house-plots on easy instalments. On the assurance given by the OP No.2, complainant joined as a member in OP No.1 society with serial no.211, admission No.223 on 08.09.1997 for which the OP No.2 also issued identity card. The OP changed the name of the society as S.N. Murthy Aided Cooperative Housing Society Ltd.,
4) As per instructions of OP No.2, complainant paid an amount of Rs.40,000/- till 24.01.2000 and thereafter, there is no communication from the Ops and the complainant tried to contact them by way of sending letters through post, for which, there is no response. Complainant came to know from some other members that they too paid around Rs.75,000/- additionally for which, on 23.01.2008, the complainant sent demand draft for Rs.75,000/- of SBH Korutla but the same was returned not claimed. His efforts to contact the Ops could not fructify. The complainant is ready to pay the amount but there is no communication from the Ops. The Ops are purposefully avoiding to receive the payments as the value of the plots which are proposed to be allotted to the members is increased in several folds.
5) The complainant got issued legal notice on 26.04.2010 but there is no response from the Ops though the same was acknowledged. Hence the complaint with a prayer to direct the Ops to receive the balance amount which is due by the complainant and allot the plot to him as is done in the case of other members; to pay Rs.25,000/- towards damages and mental agony, to pay costs of the complaint.
6) The Opposite party No.1 remained exparte and did not chose to file its written version. While Opposite party No.2 filed its written version contending that the complaint filed by the complainant is not maintainable and liable to be dismissed in limine as the matter in dispute does not fall within the meaning of a dispute under the Consumer Protection Act, 1986 and the complainant is not a 'consumer' as defined under the Act and that the dispute raised does not pertain to 'goods' or 'services'.
7) The complainant is a member of the S.N. Mutually Aided Cooperative Housing Society Limited having joined in the year 1981. As a member, the complainant is entitled for allotment of a plot in the layout of the society provided, he had paid the amounts being the cost and betterment charges to be paid to the Municipal Corporation of Hyderabad. The complainant paid the amount of Rs.30,000/- to the society, which are as under but not Rs.40,000/- till 24.01.2008, as claimed by him.
Rs.5,000/- on 16.10.1989 Rs.5,000/- on 04.03.1991 Rs.5,000/- on 12.08.1992 Rs.5,000/- on 24.07.1993 Rs.10,000/- on 04.02.2000
8) It is denied unequivocally the claim of the complainant that he paid Rs.75,000/- by way of DD on 22.01.2008 and as admitted by the complainant, the said demand draft was not claimed by the Opposite party and as such, the total amount paid by the complainant to the society is only Rs.30,000/-. There is no vacant plot to be allotted to any member of the Society and all the plots in the lay-out of the Society were allotted to the members who paid the amounts indicated by the Society a decade ago i.e., in 1984 and 1990 as the Lay-out was approved by the local authority i.e., MCH tentatively in 1990 and accordingly possession of the allotted plots was also delivered to member allottees.
9) No plot could be allotted to the complainant in 1984 or 1990 as he failed to pay cost of land and betterment charges in spite of sending notices by registered post and the final notice dated 09.02.1993 was also sent to him. In the said notice, the members, including the complainant were informed that "if no payments were made by the members before 15.03.1993, the plots would be allotted to the next member in the waiting list as per seniority". At present, there are no vacant plots for allotment to the complainant, as such, he is entitled for refund of the amount paid by him i.e., Rs.30,000/- till 04.02.2000.
10) Regarding the admissibility of the complaint, as the complainant is a member of the Cooperative Society, if he has any dispute with reference to his rights for allotment of plots or otherwise, he should invoke the jurisdiction of the Cooperative Tribunal, Hyderabad functioning in Chandra Vihar Building, 7th floor, constituted under the A.P. Cooperative Societies Act, 1964 vide Section 37 of the Act and which is having jurisdiction to entertain and dispose of "disputes" as the S.N.Mutually Aided Cooperative Housing Society Limited and the complainant is a member of the society. Hence, prayed to dismiss the complaint as not maintainable.
11) During the course of enquiry before the District Forum, in order to prove his case, the Complainant filed his evidence affidavit and Exs.A1 to A13 and on behalf of the Opposite parties, got filed the affidavit evidence of D.Seetharamaiah and Ex.B1 to B4.
12) The District Forum after considering the material available on record, allowed the complaint bearing CC No.2/2011 by orders dated 08.04.2013, as stated, supra, at paragraph no.1.
13) Dissatisfied by the above orders, the Appellant/Complainant preferred this appeal contending that the forum below (a) ought to have directed the Respondents to allot the plot by receiving the balance sale consideration instead of ordering for return of amount; (b) failed to see that the Appellant has joined as member of Respondent No.1 society with admission No.223 on 08.09.1997; (c) failed to see that till 24.01.2000, the Appellant paid Rs.40,000/- and later on, there is no communication from the Respondents; (d) failed to see that on 23.01.2008, the Appellant sent a DD for Rs.75,000/- to the Respondents which was returned with postal endorsement "not claimed"; (e) failed to see that Appellant got issued a notice on 20.04.2010, to which, the Respondents failed to give reply; (f) failed to see that there is no evidence to establish that Ex.B2 to B4 were served on the Appellant and that they were addressed to the appellant, as no acknowledgements were filed; (g) failed to see that when the Appellant failed to make balance payment before 15.09.1993, what made the Respondents not to refund the amount paid all these years; (h) failed to see that no evidence is filed to show that all plots were allotted and registered in favour of the respective members. Hence, prayed to allow the appeal and modify the orders of the forum below dated 08.04.2013 passed in CC No.2/2011.
14) The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief ?
15) It is not in dispute that the Appellant is a member of the Respondent No.1 society. It is also not in dispute that the Appellant paid an amount of Rs.40,000/- as can be seen from Ex.A2 and A3 as against the claim of Rs.30,000/- as contended by the Respondent No.2 in his written version. It is also not in dispute that the Appellant had obtained a demand draft for Rs.75,000/- and sent to the Respondent No.1 which was returned. The only objection the Respondent No.2 raised is that the forum at Karimnagar had no jurisdiction and that the Appellant is not a consumer as defined under the Consumer Protection Act, 1986 and that the dispute is not a consumer dispute and that since the Respondent No.1 is a society, the same can be dealt by the appropriate authority under section-37 of the A.P. Cooperative Societies Act.
16) In so far as the factum of 'consumer' and 'consumer dispute' are concerned, the Appellant is very much a consumer and falls within the definition of Section 2(1)(d) of the Act and the dispute raised is also the consumer dispute. Insofar as the aspect of jurisdiction of the consumer forum is concerned, Section 3 of the Consumer Protection Act clearly shows that the remedy available under the 1986 Act is in addition to and not in derogation of the other remedies available; having regard to the Statement of Objects and Reasons and the purpose sought to be served by the 1986 Act, it cannot be said that District Forum had no jurisdiction to decide the dispute. The preamble of the Act declares that it is an Act to provide for better protection of the interest of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumer disputes and matters connected therewith. In Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of 1986 Act shall be in addition to and not in derogation of the provisions of the any other law for the time being in force. Therefore, we may state that there is no bar for the Appellant to seek redressal of his grievance by approaching the fora established under the Consumer Protection Act, 1986.
17) We may state that having denied the allotment of plot to the Appellant on the premise that the Appellant failed to pay the balance amount in spite of repeated reminders under Ex.B1 to B3, the Respondent No.1 had no right or authority to retain the amount of the Appellant for years together and the forum below had rightly ordered to return the amount with interest. Be that as it may, it is the contention of the Respondent No.2 that there are no vacant plots for allotment to the appellant. In such a circumstance, it is for the appellant to prove that there existed any vacant plot for allotment, which he failed to bring on record. The appellant himself is responsible for his own wrong doing as he kept quiet for long years without exercising his right. Without establishing that there exists any vacant plot, the Appellant cannot seek the relief of allotment of plot on payment of balance consideration. Accordingly, we answer the point framed for consideration at paragraph No.14, supra, against the Appellant and in favour of the Respondents.
18) In the result, the appeal fails and is accordingly dismissed but in the circumstances, parties to bear their own costs.
PRESIDENT MEMBER Dated 11.04.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER