State Consumer Disputes Redressal Commission
1. Omaxe Limited vs 1. Sh. Narinder Singh on 3 March, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 01 of 2014 Date of Institution : 01.01.2014 Date of Decision : 03.03.2014 1. Omaxe Limited through Sh. Rohtas Goel, Chairman & Managing Director, Registered & Corporate Office at Omaxe House, 7, LSC, Kalkaji, New Delhi-110019. 2. Omaxe Limited through Sh. Ritesh Sehgal, General Manager, Regional Office at SCO No.143-144, First Floor, Sector 8, Chandigarh. 3. Omaxe Limited through its Manager (Omaxe Parkwood, Baddi Project), Omaxe Chandigarh & Regional Office, SCO No.143-144, Sector 8, Chandigarh. Through their authorized representative namely Sh. Harsh Bhargav, Manager (Legal), Omaxe Limited, 7, LSC, Kalkaji, New Delhi-110019. Appellants/Opposite Parties V e r s u s 1. Sh. Narinder Singh son of Sh. Manjit Singh, resident of House No.3005, Sector 35D, Chandigarh. 2. Smt. Mohinder Kaur daughter of Sh. Karam Singh, resident of House No.3005, Sector 35D, Chandigarh. ....Respondents/complainants Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. Munish Gupta, Advocate for the appellants Sh. Anuj Kohli, Advocate for the respondents.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 22.10.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainants (now respondents) and directed the Opposite Parties(now appellants), as under:-
In view of the above discussion, we are of the opinion that the present complaint deserves to succeed and the same is accordingly allowed. The Opposite Parties are directed as under :-
i) to refund the total deposited amount of Rs.10,95,460/- to the complainants with interest @ 9% per annum from the respective dates of deposit;
ii) to pay an amount of Rs.3,420/- per month since March 2011, with interest @ 9% per annum from the date it was due, till the refund of the total deposited amount to the complainants.
iii) to pay Rs.50,000/- as compensation for mental agony and harassment caused to the complainants;
iv) to pay Rs.10,000/- as costs of litigation.
This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) to (iii) above shall carry interest @18% per annum from the date of this order till actual payment besides payment of litigation costs.
2. The facts, in brief, are that the complainants booked 2 BHK flat, bearing No.304, 3rd Floor, Type Alpha-I, in Green Tower-9, Super Area 116.13 sq.mt/1250 sq.ft., in the name of complainant No.2, and paid a sum of Rs.5,99,375/-, as 95% price of the same (flat). Allotment letter dated 14.01.2006, in respect of the said flat, was issued, in favour of complainant No.2, by the Opposite Parties. Complainant No.2, was assured that construction of the flat/unit, would be completed, and possession thereof, would be delivered, within 18 months. However, in the month May 2008, when complainant No.2, approached the Opposite Parties, she was told that the construction of flats, could not be completed. She was advised to get the flat, transferred to another project i.e. Omaxe Parkwoods, Baddi. Accordingly, complainant No.2, submitted letter of conversion dated 26.05.2008, at the Regional Office of the Opposite Parties, at Chandigarh, which was duly received, by them. Pursuant to the said letter dated 26.05.2008, Unit No.222, Block- Jacaranda-B Tower, 2nd Floor, with super area 66.24 sq.mt/713 sq. ft., in Omaxe Parkwoods, Baddi, was allotted, in favour of complainant No.2. Agreement dated 25.08.2008 Annexure C-1, in respect of the newly allotted unit, was duly executed, between the Opposite Parties and complainant No.2.
3. It was stated that since the flat, allotted in the Omaxe Parkwoods, was costlier, complainant No.2, was asked to deposit the difference of amount, towards the price of the same (flat). After adjusting the previous amount, the total amount paid by complainant No.2, came to be Rs.10,95,460/- , i.e. 95% of the sale price of the newly allotted flat. However, the Opposite Parties failed to handover physical possession of the flat, by the stipulated time. The Opposite Parties, as per the terms and conditions of the Agreement, paid rent to complainant No.2, @ Rs.3,420/- per month, till February, 2011, for the period of delay, but thereafter, stopped paying the same. It was further stated that since there was no hope of delivery of possession of the flat, in question, to the complainants, in the very near future, complainant No.2, being very old, requested the Opposite Parties, to assign/transfer the newly allotted flat, in the name of her son (complainant No.1), but the same was not done. It was further stated that the complainants visited the Offices of the Opposite Parties, at Delhi and Chandigarh, as well as the project site, at Baddi, many times, to know about the exact status of construction, but nobody informed them about the same.
4. Complainant No.1, also sent letters dated 12.03.2012 Annexures C-10 and C-11, to the Opposite Parties, followed by service of legal notice dated 03.05.2012 Annexure C-12, vide registered post, receipt whereof is Annexure C-13, to refund the amount, deposited by complainant No.2, towards the said flat, alongwith interest, as also compensation, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.10,95,460/-, alongwith interest @18% P.A., from the dates of respective deposits, till realization; rent @ Rs.3,800/- per month, since March 2011, till realization, alongwith interest @18% P.A.; compensation, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.30,000/-.
5. Opposite Party No.1, in its written version, pleaded that the District Forum had no territorial and pecuniary Jurisdiction, to entertain and decide the complaint. It was admitted that flat No.304, referred to above, was provisionally allotted, in favour of complainant No.2 . It was also admitted that the payments, as depicted in the complaint, were made to Opposite Party No.1, by complainant No.2. It was stated that complainant No.1, being subsequent purchaser of the newly allotted flat, could not raise any hue and cry, regarding the delay, in delivery of possession, thereof. It was further stated that the endorsement regarding transfer, of the flat, in question, in favour of complainant no.1, had already been made, on all the documents and the same (flat) stood transferred, in his name. It was denied that complainant No.1, ever approached the Office of Opposite Party No.1. It was further stated that the project was on the verge of completion. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. Opposite Parties No.2 and 3, did not file their separate written reply. However, on 22.02.2013, Sh. Munish Gupta, Counsel for Opposite Parties No.2 and 3, who was also appearing for Opposite Party No.1, made a statement, that he adopted the written reply, filed by it (Opposite Party No.1). It was stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.2 and 3, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
7. The Parties led evidence, in support of their case.
8. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
9. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
10. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
11. The Counsel for the appellants, submitted that the flat, in question, which was initially allotted, in favour of the complainant No.2, and later on, transferred, in favour of complainant No.1, was situated at Baddi, the State of Himachal Pradesh. He further submitted that the Agreement dated 25.08.2008 Annexure C-1, executed between complainant No.2 and the Opposite Parties, was executed at New Delhi. He further submitted that, no payment of installments, towards part price of the flat, in question, was made by the complainants, at Chandigarh. He further submitted that the receipts, with regard to payments, made by the complainants, in respect of the flat, in question, were issued by the Head Office of the Opposite Parties, from New Delhi. He further submitted that since neither the flat, which was allotted, in favour of complainant No.2, and later on, transferred, in favour of complainant No.1, is situated within the territorial Jurisdiction of Chandigarh, nor any payment of the price of the same was made at Chandigarh, nor the Agreement dated 25.08.2008 Annexure C-1, was executed at Chandigarh, no part of cause of action, arose to the complainants, to file the complaint, before the District Forum, at Chandigarh. He further submitted that, as such, the District Forum, at Chandigarh, had no territorial Jurisdiction, to entertain and decide the complaint. He further submitted that the order of the District Forum, therefore, being without Jurisdiction, was liable to be dismissed.
12. On the other hand, the Counsel for the respondents/complainants, submitted that the endorsement of transfer of the flat, in question, in favour of complainant No.1, was made at Chandigarh. He further submitted that even the payments of some of the installments, through cheques were made to the Opposite Parties, at Chandigarh, as is evident from Annexures C-6 and C-17, the two letters issued by the Bank of India. He further submitted that even the amount of Rs.3,420/- per month, as per the terms and conditions of the Agreement, towards rent, till February 2011, was made by the Opposite Parties, to complainant No.2, at Chandigarh. He further submitted that, as such, the District Forum was right, in coming to the conclusion that the District Forum, had territorial Jurisdiction, to entertain and decide the complaint. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
13. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be accepted, and the complaint deserves to be returned to the complainants, for presentation before the appropriate District Consumer Disputes Redressal Forum, having territorial Jurisdiction, to entertain and decide the same (complaint), for the reasons to be recorded hereinafter. Admittedly, the flat, in question, which was initially allotted, in favour of the complainant No.2, and later on, transferred, in favour of complainant No.1, is situated at Baddi, in the State of Himachal Pradesh. The Agreement dated 25.08.2008 Annexure C-1, was executed between complainant No.2 and the Opposite Parties, at New Delhi, where the Registered/Corporate Office of the latter is located. On receipts, copies whereof, are Annexures C-3 to C-5, the address of Opposite Party No.1 is mentioned as Omaxe House, 7, Local Shopping Centre, Kaklaji, New Delhi-110019. Annexure C-6 is a copy of the letter, which was issued by the Bank of India, on 18.04.2012. It is evident from this document that cheque no.316035, for a sum of Rs.4,96,085/-, in favour of Omaxe was paid by the said Bank, in clearing, on 18.07.2008, and the same was debited to the account of complainant no.2, bearing no.19173. Annexure C-17 is another copy of letter issued by the Bank of India, saying that cheque no.316035, for a sum of Rs.4,96,085/-, favouring Omaxe was paid, in local clearing of 18.07.2008 of Chandigarh, and the same had been debited to account no.19173 of complainant no.2. From these documents, it is not at all evident that payment, through the cheque, in question, was made by complainant No.2, to the Opposite Parties, at Chandigarh. From these documents, it cannot be concluded that the cheque, which was debited to the account of complainant no.2, which she was maintaining, in the Bank of India, at Chandigarh, was credited to the account of the Opposite Parties, which they were allegedly maintaining at Chandigarh. Had there been a clear certificate, with regard to the factum, that the amount of cheque, in question, which was paid towards the part price of flat, which was debited to the account of complainant No.2, was actually credited to the account of the Opposite Parties, which they were allegedly maintaining at Chandigarh, it would have been said that such payment was made at Chandigarh. So, no help, from these documents could be sought by the Counsel for the respondents/complainants. Even, there is nothing, on the record, that endorsement, with regard to the transfer/assignment of the rights, in the flat, was made, in favour of complainant no.1, at Chandigarh. Even, it is evident from Annexure C-4, copies of the cheques dated 15.01.2011, 28.02.2011 and 31.01.2011, vide which payment of Rs.3,420/-, each, for some time, was made to complainant No.2, that the same were issued by the State Bank of India, Commercial Branch, New Delhi. These cheques were not issued by the Opposite Parties, at Chandigarh. If complainant No.2 received these cheques, at Chandigarh, that did not confer any territorial Jurisdiction, upon the District Forum, at Chandigarh, to decide the complaint. It is not known, as to how, the District Forum came to the conclusion, that it had territorial Jurisdiction, to entertain and decide the complaint. While interpreting the provisions of Section 17(2)(b) of the Act, which are para-materia to Section 11 of the Act, in Sonic Surgical Vs National Insurance Company Ltd. IV (2009) CPJ 40 (SC), the Apex Court held as under;
4. In our opinion, no part of the cause of action arose at Chandigarh. It is well settled that the expression cause of action means that bundle of facts which gives rise to a right or liability. In the present case admittedly the fire broke out in the godown of the appellant at Ambala. The insurance policy was also taken at Ambala and the claim for compensation was also made at Ambala. Thus no part of the cause of action arose in Chandigarh.
XXX XXX XXX 8. Moreover,
even if it had application, in our opinion, that will not help the case of the appellant. Learned Counsel for the appellant submitted that the respondent-Insurance Company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned Counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequence. If the contention of the learned Counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the Insurance Company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench-hunting. In our opinion, the expression branch office in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity [vide G.P Singhs Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79].
14. The perusal of the facts of Sonic Surgicals case (supra), clearly goes to reveal that the Policy was taken by the complainant at Ambala; the godown, in respect of which, the Policy was taken, was situated at Ambala, whereas the complaint was filed before this Commission, at Chandigarh. Under these circumstances, it was held that since no cause of action arose, within the territorial Jurisdiction of this Commission, at Chandigarh, except that the Opposite Party had the Branch Office there, it had no territorial Jurisdiction, to entertain and decide the complaint. In Sonic Surgicals case (supra), before the Honble Supreme Court, an argument was advanced by the Counsel for the appellant/complainant, that since the Branch Office of the Insurance Company, was situated at Chandigarh, even if, no other cause of action, arose to the complainant, within the territorial Jurisdiction of Chandigarh, the State Consumer Disputes Redressal Commission, at Chandigarh, had Jurisdiction to entertain and decide the complaint. That argument of the Counsel for the appellant/complainant therein, was rejected by the Honble Supreme Court, in the manner, referred to above. The principle of law, laid down, in the aforesaid case, is fully applicable to the instant case. The findings of the District Forum, to the effect that it had territorial Jurisdiction, to entertain and decide the complaint, therefore, being perverse, are reversed.
15. For the reasons recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum is set aside.
16. The complaint, in original, is ordered to be returned to the respondents/complainants, alongwith the documents attached therewith, after retaining the attested to be true photocopies of the same, with a liberty, to file the same, before the appropriate District Consumer Disputes Redressal Forum, having territorial Jurisdiction, to entertain and decide it (complaint).
17. Certified copies of this order, be sent to the parties, free of charge.
18. The appeal file, be consigned to Record Room, after completion.
Pronounced.
March 3, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg STATE COMMISSION (First Appeal No. 01 of 2014) Argued by: Sh. Munish Gupta, Advocate for the appellants Sh. Anuj Kohli, Advocate for the respondents.
Dated the 3rd day of March 2014 ORDER Alongwith the appeal, an application for condonation of delay of 27 days, in filing the same (appeal) has been moved, by the applicants/appellants, stating therein, that on receipt of certified copy of the order impugned, by hand, on 05.11.2013, the same was sent to their Office, located at New Delhi, for obtaining approval of the Competent Authority, as to whether, the appeal, in the case, was to be filed or not. However, on 11.12.2013, it came to light, that the same (certified copy of order impugned), was misplaced in the Office, at New Delhi, which was traced from some other files, on 13.12.2013. Finally, the approval was obtained from Delhi Office of the applicants/appellants, and the appeal was filed on 01.01.2014. It was further stated that, in these circumstances, the delay of 27 days, in filing the appeal occurred. It was further stated that the delay, in filing the appeal, was neither intentional, nor willful. Accordingly, the prayer, referred to above, was made.
2. Notice of this application, was given to the respondents/complainants, who filed reply, stating therein, that the application deserved to be dismissed, as no sufficient cause, was constituted, for condonation of delay.
3. No doubt, there is delay of 27 days, in filing the appeal. The question arises, as to whether, the delay was intentional, or on account of the reasons, beyond the control of the applicants/appellants. Before discussing this question, let us have a look at law, laid down by the Hon`ble Supreme Court, and the Mumbai (Maharashtra) High Court, regarding the condonation of delay. In Lanka Venkateswarlu (D) By Lrs. vs State Of A.P. and Ors., A.I.R. 2011 S.C. 1199: (2011) 4 S.C.C. 190, the Apex Court held as under:-
(i). The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act.
(ii). Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.
(iii). Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that.
(iv). Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law.
4. In N.Balakrishnan v. M.Krishnamurthy (1998) 7 Supreme Court Cases 123, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-
It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice.
The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."
The Court further observed in paragraphs 11, 12 and 13 which run thus:-
"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality (1972) 1 SCC 366.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "
5. In Jyotsana Sharda vs Gaurav Sharda, (2010-3) 159 P.L.R. D15,Mumbai (Maharashtra) High Court, while condoning 52 days delay, in filing the appeal, observed as under:-
No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day`s delay in filing the appeal. The later judgments of theApex Court have considerably diluted this requirement of explaining each days delay by a party. The latest trend and the ratio cases which the Apex Court has laid down in the judgments is that the Court must adopt a liberal approach rather than pedantic approach while doing so. It must see the bonafides of the person who is preferring the appeal rather than seeing the quantum of delay which has been occasioned. Reliance in this regard can be placed on Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji & Ors. AIR 1987 SC 1353.
6. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. It is evident, from the record that delay, in this case, occurred due to the cumbersome procedure, which was required to be followed, to obtain approval for filing the appeal. Certified copy of the order impugned, after having been received, by hand, alongwith necessary documents, was, in the first instance, sent to the Office of the applicants/appellants, at Delhi, for consideration, and seeking approval of the Competent Authority, as to whether, it was a fit case, for filing an appeal or not. For taking decision by the Company, as to whether, an appeal against the order was to be filed or not, the file had to pass through many channels. No single person, could take the decision, at his own level independently, for filing an appeal. The delay of 27 days, in filing the appeal, cannot be said to be so huge, as to deny the substantial justice.
Even otherwise, it is settled principle of law, that normally every lis should be decided on merits. When substantial justice and the procedural wrangles are pitted against each other, then the former shall prevail over the latter. Under these circumstances, it could be held that delay in filing the appeal, was neither intentional nor willful, but, on account of the reasons, explained in the application. There is, thus, sufficient cause, for condoning the delay. The application. thus, deserves to be accepted.
7. For the reasons recorded above, the application for condonation of delay of 27 days, in filing the appeal, is allowed, and the delay is, accordingly, condoned.
8. Admitted.
9. It be registered.
10. Arguments, in the main appeal have already been heard.
11. Vide our detailed order of the even date, recorded separately, the appeal has been accepted, with no order as to costs. The order of the District Forum has been set aside, holding that it had no territorial Jurisdiction, to entertain and decide the complaint.
12. Certified copies of this order, alongwith the certified copy of the main order, be sent to the parties, free of cost.
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(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT (PADMA PANDEY) MEMBER Rg