State Consumer Disputes Redressal Commission
Secy. Mohd. Nizamuddin vs Mohd. Abraral Haqu on 24 August, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 24.08.2015 First Appeal No. 1058/2013 (Setting aside the order dated 20.12.2012 passed in Complaint Case No.879/2011 passed by the District Consumer Dispute Redressal Forum (East), Saini Enclave Delhi) In the matter of The Secretary Md. Nizamuddin Sarv Sarkari Karmchari Sahkari Awas Samiti Ghaziabad Office :-WA-23, First Floor Sakarpur, Delhi-92 Current address at:- Type - II, G/7 Mirdard Road, New Delhi ......Appellant Versus Md. Abrarul Haque 180/1B, First Floor Lane No.-7, Zakir Nagar, New Delhi. CORAM Salma Noor, Member
O.P. Gupta,Member(Judicial)
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
O.P. Gupta, Member (Judicial) Aggrieved by the order dated 16.7.2012 & 20.12.2012 passed by District Consumer Dispute Redressal Forum (East), Saini Enclave, Delhi the opposite party has filed the present appeal. Vide order dated 16.7.2012 applicant was proceeded ex-parte and vide order dated 20.12.12 the District Forum has awarded Rs.25,000/- as compensation to be recovered from Sh. Nizamuddin, Secretary, Sarv Sarkari Karmchari Sahkari Awas Samiti, Ghaziabad and not from the funds of the Samiti. In case of failure to pay the said amount within 45 days, the amount was to bear interest @9% from the date of filing the complaint to the date of payment.
The complaint is based on the allegation that respondent (Appellant herein) is engaged in the business of selling plots to consumers by acquiring land from farmers. One has to take membership of the respondent society by purchasing shares of RS.100/-. In case of purchase of plot from existing member, the plot is transferred to the purchaser with the consent of the Secretary of the Society. The complainant purchased 100 sq. yds. From Sh. Rashid Jamal Shamsi by paying Rs.1,50,000/-. Said Mr. Shamsi had already paid that amount to the society. Mr. Shamsi handed over all receipts and a cash receipt of Rs.80,000/-. A letter dated 7.8.2008 antedated with the date 23.7.08 was issued to the complainant on 7.8.08 which demanded Rs.2,00,000/-. The payment of Rs.80,000/- was not shown in the creit of Mr. Shamsi. The membership of the complainant was cancelled illegally. The complainant prayed for refund of amount paid by him alongwith interest and compensation of Rs.5,00,000/-.
The complainant filed his evidence and statement of bank account through which amount was transferred from ICICI Bank to the Society. The respondent had not filed any reply or evidence.
The appeal was filed on 1.10.13 which is beyond limitation. The appellant has moved an application for condonation of delay on the ground that the daughter of appellant was hospitalized in AIIMS where prolonged treatment was taken. Despite that she is still bed ridden and lost her both eyes. The appellant has got depression. There is a delay of 440 days in filing the appeal against order dated 16.7.12. Office of the appellant Counsel was shifted due to which there is a delay of 8 days in filing the appeal against order dated 20.12.12. There is no intention to delay in filing the appeal. Appellant had got good case on merits and would suffer irreparable loss, in case delay in filing the appeal is not condoned.
The respondent had filed his reply to the application for condonation of delay. However, the reply to appeal filed by him contain objections to condonation of delay also. According to him as per annexure A2 attached with the appeal, appellants' daughter was never hospitalized. His daughter simply took treatment as 'OPD' patient. The dates of appearing before the District Forum do not match with the dates of doctors' appointment. Respondent has relied on the decision of Hon'ble Supreme Court in the case of Anshul Aggarwal Vs. New Okhla Industrial Development Authority,IV(2011)CPJ 63 where it was held that the court has to keep in mind that special period of limitation as been prescribed in the Consumer Protection Act for filing the appeal and the object of expeditious adjudication will get defeated if the Court was to entertain highly belated petitions.
We have gone through the material on record and heard arguments.
Perusal of order dated 16.7.12 passed by Ld. District Forum shows that the opportunity was provided to the parties to settle the issue but there was no possibility of compromise. The OP was to file written statement which had not been filed. The case was listed for 2.8.12 for complainants' evidence. The complaint was filed on 14.09.11 and the appellant appeared before the District Forum on 23.4.12. If the appellant was aggrieved by order dated 16.7.12 closing his right to file written statement he ought to have challenged the said order immediately. He did not do so till the final order was passed on 20.12.12. Not only this he waited for more than nine months even after passing of final orders. The appeal was filed on 1.10.13. There is not reasons as to why the appellant kept mum for such a long delay of 440 days. It is not the case of appellant that he was not aware about the proceedings before the Ld. District Forum. Simply saying that his daughter was under treatment is a omnibus plea which is not sufficient for condonation of delay. It may be added that appellant tried to befool this Commission by making a wrong statement that his daughter was hospitalized.
Keeping in view the law laid down by Hon'ble Supreme Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority,IV(2011)CPJ 63 supra, which is peculiar to case under Consumer Protection Act, the word sufficient cause for has to be construed strictly. Hence the application for condonation of delay fails and is dismissed.
With this the appeal must automatically stand dismissed as barred by limitation.
Anyhow a perusal of the appeal shows that even on merits, the appellant has no case. His contention as raised in ground (d) of the appeal is that present dispute is not a consumer dispute. The complainant is nominee of Md. Rashid Jamal Shamsi. It is settled law that consumer fora has no jurisdiction to try dispute between Co-operative society and its alleged members. In the present case, the jurisdiction of consumer fora is barred by UP co-operative society Act, 1965. Services rendered on no profit no loss basis or free of cost are outside perview of Consumer Protection Act. As per byelaws of society no members has a right to transfer land or building without written permission of the society. The complaint is barred by limitation under Consumer Protection Act. Complainant had not prayed for restoration of membership.
The appellant had not cited any case law to support his contention. Rather the law is well settled that remedy under consumer act is an additional remedy. Thus provisions for arbitration in society Act is no bar to invoke remedy under Consumer Protection Act. In this regard reference with advantage may be made to the decision of Hon'ble Supreme Court in Secretary Thiru Murgan Co-operative Aggricultural Credit Society Vs. M. Lalitha AIR 2004 SC 448 and decision of the National Commission in Talagan Co-operative Groupt Housing Vs. Vandana Sharma IV (2009) CPJ 161.
In view of the above decisions, the appeal is dismissed.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge.
File be consigned to record room.
(Salma Noor) Member (O.P. Gupta) Member (Judicial)