State Consumer Disputes Redressal Commission
Riviera Apts. Owners Co-Operative ... vs Sanjay Chiripal, on 5 February, 2008
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 05-02-2008 Appeal No.FA-2007/338 (Arising from order dated 03-04-2007 passed by District Forum(North), Tis Hazari, Delhi in Complaint Case No.1106/2006) Riviera Apts. Owners Co-Operative Housing Society Ltd., Appellant 45, Mall Road, Through Delhi-110054. Mr. Deepak Sabharwal, Through its President Advocate. Shri G.S. Saini. Versus Shri Sanjay Chiripal, Respondent R/o N-1, Riviera apts., Through 45, Mall Road, Mr. Rajesh Bhatia, Delhi-110054. Advocate. CORAM : Justice J.D. Kapoor- President Ms. Rumnita Mittal - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) The short question arising in this appeal preferred against the order dated 03-04-2007, passed by the District Forum whereby the appellant has been directed to refund the amount of Rs. 31,000/- to the respondent and pay compensation of Rs. 5,000/- and cost of Rs. 2,000/-, is whether the amount of Rs.
31,000/- charged by the appellant was towards transfer fee or donation.
2. Relevant facts, in brief, are that the respondent purchased a flat No. 1(North) in Riviera apartments from Mr. Tosh Sethi on 28-06-2003 and applied to the appellant for transfer of the membership of share of Mr. Tosh Sethi to the name of the respondent on 17-06-2004 after compliance of all required conditions along with an application. The application of the respondent for transfer was found in order and he was entitled for transfer of membership in accordance with law within one month from the date of application for transfer and that no objection was raised by the appellant in this respect within the stipulated period of limitation for transfer of the share certificate as per the rules of the appellant. The transfer was not made from 17-06-2004 to 05-12-2004. The case of transfer of shares of the said flat was kept pending with malafide intention to extract illegal money by the appellant from the respondent. Appellant verbally directed the respondent to pay Rs. 31,000/- before transfer of shares. Finding no other alternative the respondent deposited Rs. 31,000/- with the appellant. Appellant to cover up its lapses by charging illegal money in the shape of transfer charges disguised as voluntary donation issued two different receipt both dated 06-12-2004. Respondent stated that it was now well settled law that Cooperative Societies cannot take any amount under the guise of voluntary donation, entry fees or any other head and if such money is extorted from its members it is violation of the provisions of DCS Acts and Rules. The respondent requested several tiems to the appellant for refund of the amount of Rs. 31,000/- but all in vain. The respondent sent a legal notice dated 26-09-2006 to the appellant but there is no response from the appellant. Alleging deficiency in services on the part of the appellant, the respondent prayed before the District Forum to direct the appellant to refund Rs. 31,000/- besides compensation of Rs. 50,000/- for causing mental agony and harassment to the respondent.
3. In its defence the appellant which is a Housing Co-operative Society duly registered and governed by the provisions of Delhi Cooperative Societies Act, 1972 and the rules framed thereunder averred that forum has no jurisdiction to try and entertain the present complaint that the respondent filed the instant complaint in gross violation of the terms and conditions signed by him on 15-06-2004. The respondent had applied for transfer of membership with the appellant on 18-06-2004 and had submitted incomplete papers and he was informed by the appellant immediately that the papers were incomplete and as per the Rules, Regulations of Delhi Co-operative Society Act and Bye Laws of the society no transfer can be done without submitting the original share certificate which was not submitted by the respondent even on making repeated requests to his father who was also a member of the Managing Committee. Further that the respondent submitted original share certificate along with letter dated 05-12-2004 and it immediately transferred the membership in respect of the flat owned by the respondent on the very same day. The decision of taking voluntary donation was taken in AGM dated 21-11-2004 and the respondents father was also present in that meeting. The present complaint filed by the respondent is a counter blast of the complaint given by the appellant to the MCD against the complainant for encroachment upon the society land and causing damage to the structure. Respondent concealed from the forum that earlier also the respondent had encroached upon the society land and the appellant filed a suit titled Riviera Apartments Owners Cooperative Housing Society Limited Vs. Sanjay Chiripal & Another which was pending before the Honble Court of sh. Naveen Arora, Civil Judge, Delhi. During the pendency of the said suit, the unauthorized construction and encroachment was demolished by MCD on 10-05-2006 and accordingly the suit of appellant was disposed of by the civil Court.
Appellant also made a complaint to the MCD on 03-10-2006. Appellant denied that the amount of Rs.
31,000/- was paid by the respondent under any kind of force or pressure from any corner but it was paid by him voluntarily.
4. During the course of arguments the learned counsel for the appellant contended that out of Rs. 31,000/- only Rs. 10,000/- was charged as transfer fee, which was permissible under the law and Rs.
21,000/- was paid voluntarily by the respondent for upliftment of the Society as the father of the complainant was a member of the Managing Committee and he had proposed in the General Body Meeting to take voluntary donation for upliftment of the society.
5. Even if it is accepted what is contended by the learned counsel for the appellant still the fact remains that Rs. 21,000/- was charged over and above the transfer fee and since the National Commission has held that such a donation was not permissible under the law, we partly allow the appeal by reducing the amount to be refunded from Rs.
31,000/- to Rs. 21,000/- as respondent was liable to pay transfer charges and maintain rest of the order. However, the appellant shall be at liberty to recover maintenance charges from the respondent as per rules and as per law as it has been alleged that the respondent has not been paying maintenance charges since June 2006.
6. Appeal is partly allowed and disposed of in aforesaid terms.
7. FDR/Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
8. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
9. Announced on the 5th February, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj