State Consumer Disputes Redressal Commission
Rk Goyal vs Kamal Chaudhary on 1 May, 2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T.,
CHANDIGARH
Appeal Case No.
:
350
of 2011
Date of Institution
:
16.12.2011
Date of Decision
:
01.05.2012
1.
R.K. Goyal S/o Sh. Diwan Chand, R/o H.No.47, Young
Dwellers Society, Sector-49, Chandigarh.
2.
Balkar Singh S/o Sh.Kundan Singh, resident of H.No.989,
Sector 69, Mohali.
Appellants
V E R S U S
1. Kamal Chaudhary S/o Sh.O.P. Chaudhary,
resident of H.No.3503, Ist floor, Sector-32-D, Chandigarh.
2. The Nectar Co-operative House Building Society Ltd.
Operating Office at SCO No. 208-209, Top Floor, Sector 34-A, Chandigarh, through its
President Sh.Sudeep Singh Sabharwal, R/o
House No.1285, Sector 34, Chandigarh.
3. Smt.
Kulwinder Kaur, Cashier, The Nectar Co-operative House Building Society Ltd., Operating office at SCO
No. 208-209, Top Floor, Sector
34-A, Chandigarh.
4. a) Official
Liquidator, The Nector Co-Op House Building Society Ltd. C/o Assistant Registrar Cooperative
Societies, Punjab, 30 Bays Building
Sector 17-C, Chandigarh.
b)
Official Liquidator The Nector Co-op
House Building Society Ltd. C/o
Assistant Registrar Cooperative Societies, Punjab Randhawa Road,
Kharar.
....Respondents.
Appeal U/s 15 of
Consumer Protection Act, 1986
BEFORE: JUSTICE
SHAM SUNDER, PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Present:
Sh.Gunjan Rishi, Advocate for the appellants.
Ms.Anuradha Gupta, Advocate for respondent No.1 Service of respondent Nos.2 & 3 dispensed with vide order dated 16.3.2012.
Service of respondent NO.4 dispensed with vide order dated 23.12.2011.
PER JUSTICE SHAM SUNDER, PRESIDENT This appeal is directed against the order dated 18.11.2011, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which it accepted the complaint of the complainant (now respondent No.1) and directed Opposite Parties No.1 to 4 to refund the deposited amount of Rs.1,11,010/- to the complainant alongwith interest @ 12% p.a. from the respective dates of deposit, till realization and Rs.5,000/- as costs of litigation, within one month from the date of receipt of the certified copy.
2. The facts, in brief, are that Opposite Parties No.1 to 4 floated a scheme for the share holders of the Society known as The Nectar Co-operative House Building Society, SAS Nagar, Mohali to construct/allot flats, in Sector-74 A, Mohali. The complainant, became a member of the Society by paying Rs.510/- vide receipt dated 30.10.2006. Thereafter, the complainant paid a sum of Rs.10,500/- vide receipt dated 30.10.2006 towards earnest money of share/allotment of flat, and Rs. one lac vide receipt No.1696. It was stated that the complainant was forced to pay Rs.39,000/-, being the premium, for which no receipt was issued by the Opposite Parties. It was further stated that the complainant was issued a letter dated 2.11.2006 (annexure E) confirming the allotment of a flat to him in Sector-74-A, Mohali. It was further stated even after the lapse of sufficiently long time, no construction of any sort, was started by the Society as it did not possess the requisite approvals/permissions for raising the construction. Even, possession of the proposed site was not delivered to the Society. All these circumstances created a doubt, in the mind of the complainant regarding the genuineness of the claim of the Society, and vide letter dated 20.8.2007, he asked for the refund of amount. Thereafter, the complainant also wrote letters dated 21.11.2008, 12.5.2009 and 21.8.2009, to the Asstt. Registrar, Cooperative Societies, directing the Society to refund the amount, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, he filed a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), for the refund of Rs.1,50,000/- alongwith interest @ 18% p.a.
3. Opposite Parties No.1&4, The Nectar Cooperative House Building Society Ltd. through its President Sudeep Singh Sabharwal, and Smt.Kulwinder Kaur, Cashier of the Society were served through publication, but they did not come present without any sufficient cause. Opposite Party No.5 official liquidator also did not appear, despite due service. Accordingly, Opposite Parties No.1,4 & 5 were proceeded against ex parte by the District Forum.
4. Opposite Party No.2, Society through Balkar Singh, Secretary in its written version, took up the preliminary objections, to the effect, that the complainant did not fall within the definition of a consumer ; that the complaint was barred by limitation ; that the complaint was not maintainable, as already the Society had gone into liquidation ; and the Registrar of Cooperative Societies, by taking cognizance, had appointed a Liquidator vide order dated 23.4.2007, as a result whereof, all the assets and properties of the Society had been taken over by him, after the dissolution of the Society ; and that the District Forum, at Chandigarh, had no jurisdiction to entertain and try the complaint. It was stated that the answering Opposite Party, never issued any receipt regarding the payment of amounts, mentioned by the complainant, in the complaint. It was further stated that the receipts for the amounts, which were received, were issued by Smt. Kulwinder Kaur, Opposite Party No.4. It was further stated that the entire correspondence for demanding instalments, was exchanged by the President, or the Cashier of the Society. It was further stated that the answering Opposite Party, had no role to play, in the transaction. It was further stated that the answering Opposite Party was neither deficient, in rendering service, nor indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. Opposite Party No.3, Sh.R.K.Goyal, Vice President of the Society also filed his separate written reply, by taking almost identical pleas, as were taken up by Opposite Party No.2, in its written version.
6. The parties led evidence, in support of their case.
7. After hearing the Counsel for the parties, and, on going through the evidence and record, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, was filed by the appellants/ Opposite Parties No.2 &3.
9. Respondent Nos.2 & 3, who were Opposite Parties No.2 & 3 in the original complaint, were ex parte in the District Forum. They did not appear in the District Forum despite publication. The Counsel for the appellants submitted that the Society respondent No.2 was sued through its President Sudeep Singh Sabharwal against whom criminal case was got registered and he is facing trial, whereas, respondent No.3 Smt.Kulwinder Kaur has been declared as proclaimed offender. Accordingly, service of respondent Nos.2 & 3 was dispensed with vide order dated 16.3.2012. The service of respondent No.4, was also dispensed with, vide order dated 23.12.2011.
10 The complainant and Opposite Parties No.2 & 3 led evidence.
11.. We have heard the Counsel for the appellants, as well as respondent No.1/complainant and have gone through the evidence and record , carefully.
12. The Counsel for the appellants, submitted that the amount of Rs.1,11,010/- vide various receipts, was deposited by the complainant, with the Cashier in the year 2006. He further submitted that the complaint was filed on 21.1.2010, though the cause of action, accrued to the complainant, in the year 2006 itself, and, as such the same was barred by time. He further submitted that this point was highlighted before the District Forum, but it did not take into consideration the same, in its proper perspective, as a result whereof, it fell into a grave error, in entertaining and deciding the complaint. The District Forum was correct in coming to the conclusion that the amount of Rs.1,11,010/- was deposited by the complainant, in the year 2006, vide different receipts. He was issued the share certificate, for the allotment of a flat. Even after the lapse of a sufficient long time, when the complainant visited the site, he found that there was no sign of any construction. Even the necessary permissions from the competent authorities, for raising construction, had not been obtained by the Opposite Parties.
He, throughout, remained under the impression that one day the project would be developed, after obtaining necessary approvals, from the competent authorities, and he would be allotted a flat, for which he had already deposited a sum of Rs.1,11,010/-, but to no avail. Under these circumstances, there was a continuing cause of action, in favour of the complainant, until and unless, either he was allotted and handed over the possession of the flat, or refunded the amount. It was not one time cause of action, which accrued to the complainant, and his failure to file a complaint, within two years, from that date, disentitled him to claim the relief. The District Forum was also right, in holding that the cause of action, being continuing, the complaint filed by the complainant, was within limitation. The submission of the Counsel for the appellants, in this regard, being devoid of merit, must fail, and the same stands rejected.
13. The Counsel for the appellants, placed reliance on Kandimalla Raghavaiah & Co. Vs National Insurance Co. & Anr.
2009(3)RCR(Civil)888(SC) and State Bank of India Vs M/s B.S. Agricultural Industries (I) 2009(2)RCR(Civil)628(SC), in support of his contention, that the cause of action accrued to the complainant, in the year 2006, when he deposited a sum of Rs.1,11,010/-, and he could file a complaint within a period of two years, from that date. There is, no dispute, with the proposition of law, laid down, in the aforesaid cases. However, in the instant case, as held above, there was a continuing cause of action, in favour of the complainant, as he had neither been allotted the flat, nor handed over the possession, nor refund of the amount deposited by him, with interest, had been made, despite his request. Under these circumstances, it could not be said, that the cause of action accrued to the complainant only in 2006, and he could file a complaint within a period of two years, from the last date of making payment to the Opposite Parties. The perusal of the facts of the aforesaid cases, clearly goes to show that the cause of action accrued to the complainants, on a particular date, but they failed to file the complaints, within a period of two years, from the date of accrual of cause of action. It was, under these circumstances, that, in the aforesaid cases, it was held that the complaints, were barred by time, and the same could not be entertained for hearing by the Consumer Fora as envisaged by Section 24-A of the Act. The facts of the instant case, being clearly distinguishable, from the aforesaid cases, no help from the proposition of law, laid down therein, could be drawn, by the Counsel for the appellants. The submission of the Counsel for the appellants, being devoid of merit, must fail , and the same is rejected.
14. It was next submitted by the Counsel for the appellants, that the amount, aforesaid, was received by Mrs. Kulwinder Kaur, who was the Cashier of the Society or Mr.Sudeep Singh Sabharwal, who was the President of the Society. He further submitted that no amount was received by the appellants, and, as such, they could not be made liable to refund the same. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Sh.Raj Kumar Goyal, appellant NO.1, was the Vice President of the Society, whereas, Balkar Singh was the Secretary of the Society. They were, at the relevant time, the main functionaries of the Society. The Society was not to act itself, but it was to act through its office bearers. Even if, it is assumed, for the sake of arguments, that Mrs. Kulwinder Kaur, Cashier and Sh.Sudeep Singh Sabharwal, President of the Society, obtained the amount from the complainant, the same was on behalf of the Society. Under these circumstances, both the appellants, the President and the Cashier were incharge of and responsible to the Society, for the conduct to its day to day business. They could not deny their liability qua the third person, who deposited the amount, for the allotment of a flat, with the Society, through its office bearers. Both the appellants, alongwith the other office bearers of the Society, were, thus, jointly and severally liable to refund the amount. Under these circumstances, the submission of the Counsel for the appellants, being devoid of merit, must fail, and the same stands rejected.
15. It was next submitted by the Counsel for the appellants, that already FIR No.503 dated 2.11.2007 under Sections 406 & 420 I.P.C., in Police Station, Sector-34, Chandigarh by Sh.Raj Kumar Goyal, appellant No.1, has been got registered against Sudeep Singh Sabharwal, President of the Society, his wife Amandeep Kaur, Kulwinder Kaur, Cashier of the Society and Sarabjit Singh. He further submitted that the criminal trial is pending against them. He further submitted that Sudeep Singh Sabharwal and Kulwinder Kaur have already been declared proclaimed offenders, in the same. He further submitted that, since a criminal case is already registered against these persons, the consumer complaint, was not maintainable. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Section-3 of the Act, which reads as under, provides an additional remedy ;
3.Act not in derogation of any other law:- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
16. The mere fact that a criminal case, under the Indian Penal Code has been got registered against the President of the Society, as also against Kulwinder Kaur, Cashier of the same and the trial is pending against them, before the Criminal Court, did not debar the complainant from filing the Consumer Complaint, claiming refund of the amount, with interest and compensation. The Criminal Court can not grant the relief, which are available to the complainant, under the Act. In Trans Mediterranean Airways) Vs Universal Exports & Anr. IV(2011)CPJ13(SC), it was observed as under ;
In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other Statute. It does not extinguish the remedies under another Statute but provides an additional or alternative remedy.
17. The principle of law, laid down, in the aforesaid case, by the Honble Supreme Court, presents a clear answer, to the challenge, made by the Counsel for the appellants, to the order impugned, on the ground ,that in the face of the registration of a criminal case, against the aforesaid persons, and the pendency of trial, the Consumer Complaint was not maintainable. The principle of law, laid down in the aforesaid case, is fully applicable to the facts of the instant case. The submission of the Counsel for the appellants, being devoid of merit, must fail, and the same stands rejected.
18. It was next submitted by the Counsel for the appellants that since already the Society, in question, has been dissolved and a liquidator has been appointed, who has taken over all the assets, and liabilities thereof, the former (Society) and its office bearers could not be made personally liable for the refund of amount, to the complainant. It may be stated here, that if the office bearers of the Society, at the relevant time, after having received the amount, from the complainant, for the allotment of a flat, committed the acts of malfeasance, misfeasance, as also of embezzlement, then they could be made liable, for such acts, and could be held personally liable to refund the amount. In such circumstances, the office bearers of the Society, could not absolve themselves of their personal liability, on account of their acts of malfeasance, misfeasance and embezzlement. The mere fact, that an FIR under Sections 406 and 420 I.P.C. against the President and the Cashier and other persons, had been registered, at the instance of the some of the office bearers of the Society, in itself, was sufficient to clinch that the amount, in question, was embezzled. In this view of the matter, the submission of the Counsel for the appellants, being devoid of merit, must fail, and the same stands rejected.
19. It was next submitted by the Counsel for the appellants, that the complainant was not a consumer, qua the appellants/opposite parties. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. In the instant case, the services of the appellants and other office bearers were hired by the complainant for consideration. He applied for the allotment of a flat after making payment of Rs.1,11,010/-. There was no permission with the Opposite Parties, for raising the construction. Once the complainant deposited the amount, aforesaid, for the allotment of a flat, after hiring services of the Opposite Parties, he fell within the definition of a consumer, as provided in Section 2(1)(d)(ii) of the Act, which reads as under;
Consumer" means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
It, therefore, could not be said that the complainant was not a consumer qua the Opposite Parties. The submission of the Counsel for the appellants, thus, being devoid of merit, must fail, and the same stands rejected.
20. Not only this, the Opposite Parties, indulged into unfair trade practice. They formed the Society i.e. The Nectar Cooperative House Building Society Ltd.
in respect of the proposed project, within the master plan of Sector-74, Mohali. However, it is evident, from a copy of the letter dated 27.10.2008(placed on District Forum file at page 65) from the Assistant Registrar, Cooperative Societies, Kharar, to one Sukhbir Singh son of Sh.Mehar Singh that as per bye laws, the area of operation of the Nectar Cooperative House Building Society Ltd. Registration No.648 was only limited to Block Majri. It was further made clear, in this letter, that since the area of operation of the Society, aforesaid, was Block Majri circle only, therefore, no question arose of conducting the operation by the concerned Society, in the circle of Mohali. Since the Society, in question, had no area of operation in circle Mohali, and, on the other hand, the area of its operation was limited to Block Majri only, it misrepresented to the complainant, that it was going to develop a project, within the master plan of Mohali. It was, on the basis of such misrepresentation, having been made by the Opposite Parties, that the complainant was misled to deposit the amount aforesaid, for the allotment of a flat, by issuing a share. Naturally when the Society had no area of operation relating to Sector 74, Mohali, it could not develop any project therein. By misleading the prospective vendors, in this regard, the opposite parties, thus, indulged into unfair trade practice.
21. The District Forum was, thus, right in holding that, by not refunding the amount with interest, despite demand, to the complainant, and by misleading him, in the manner, referred to above, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice.
22. No other point, was urged, by the Counsel for the appellants.
23. The order of the District Forum ,does not suffer from any illegality or perversity, warranting the interference of this Commission.
24. For the reasons, recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
25. Certified Copies of this order be sent to the parties, free of charge.
26. The file be consigned to the Record Room, after compliance.
Pronounced. Sd/-
May 1,2012 [JUSTICE SHAM SUNDER] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER *Js STATE COMMISSION (Appeal No.350 of 2011) Present:
Sh.Gunjan Rishi, Advocate for the appellants.
Ms.Anuradha Gupta, Advocate for respondent No.1 Service of respondent Nos.2 & 3 dispensed with vide order dated 16.3.2012.
Service of respondent NO.4 dispensed with vide order dated 23.12.2011.
Dated the ORDER Vide our detailed order of the even date, recorded separately, this appeal has been dismissed, with no order as to costs.
(Neena Sandhu) (Justice Sham Sunder ) Member President