State Consumer Disputes Redressal Commission
Sri Sourav Biswas vs T.E. Co-Operative Housing Society Ltd. on 26 July, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/342/2017 ( Date of Filing : 15 May 2017 ) 1. Sri Sourav Biswas S/o Lt. Arun Baran Biswas, 480, Madurdaha, Rail Vihar, Block-I, Flat no. 208, Kolkata - 700 107. ...........Complainant(s) Versus 1. T.E. Co-operative Housing Society Ltd. Regd. office at Block- CF, 157. Salt Lake, Sector -I, Kolkata - 700 064. 2. Aditya Lal Mukherjee alias Aditya Mukherjee, The Secretary, T.E. Cooperative Housing Society Block- CF, 157. Salt Lake, Sector -I, Kolkata - 700 064. 3. Solace Group of Co. Block- CF, 157. Salt Lake, Sector -I, Kolkata - 700 064. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Ms. Soumi Guha Thakurta, Advocate For the Opp. Party: None Appear Dated : 26 Jul 2018 Final Order / Judgement The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of a Member of a Co-operative Society against one Co-operative Housing Society Ltd. (OP No.1) and its Secretary (OP No.2) and one developer/builder (OP No.3) on the allegation of deficiency in services on the part of them with prayer for following reliefs, viz. - (a) a direction upon OP Nos. 1 & 3 to refund Rs.11,70,000/-; (b) a direction upon OP Nos. 1 & 3 to pay Rs.5,00,000/- as compensation; (c) a direction upon OP Nos. 1 & 3 to pay litigation cost of Rs.50,000/- etc. In a nutshell, complainant's case is that on the basis of an advertisement in a daily leading Bengali newspaper on 01.09.2012, he became interested to book a flat measuring about 1300 sq. ft. on the 1st floor of Premises No.09-0213 on Plot No.CA-199 at New Town, P.S.- New Town, Kolkata - 700156, Dist - North 24 Parganas at a total consideration of Rs.39,00,000/-. The complainant has stated that he has paid Rs.11,70,000/- to OP No.1 as part consideration amount. As per agreement dated 28.09.2012 the OP No.1 was under obligation to handover the subject flat by 01.04.2014. In this regard, no progress in the construction has been made. Therefore, the complainant has lodged the complaint with prayer for several reliefs, as indicated above.
Despite service of notices either of the OPs have neither appeared nor filed written version. Therefore, the complaint was heard ex-parte.
In support of his case, complainant himself has tendered evidence through affidavit. Besides the same, the complainant has relied upon several documents including the Agreement dated 28.09.2012.
The said Agreement (unregistered) indicates that the complainant being member has entered into an agreement with OP No.1 Cooperative Society represented by OP No.2. The OP No.1 Society is registered under the West Bengal Cooperative Societies Act. Therefore, the question arises for consideration as to whether a Forum constituted under the provisions of Consumer Protection Act, 1986 has got any jurisdiction to entertain the complaint in view of the embargo as embodied in Section 102(4) of West Bengal Cooperative Societies Act, 2006. For appreciation of the situation, it would be worthwhile to reproduce the provisions of Section 102 of West Bengal Cooperative Societies Act, 2006 below -
" 102. Disputes to be filed Registrar. - (1) Any dispute concerning the management or business or affairs of a Co-operative society other than the dispute relating to election in a Co-operative society as an when such election is conducted by the Co-operative Election Commission and disciplinary action taken by Co-operative society against its paid employees regarding the terms and conditions of the service shall be filed before the Registrar for settlement if it arises -
(a) among members, past members and persons claiming through members and deceased members or then sureties ; or
(b) between member, past member or a person claiming through a member, past member or deceased member representing through heirs or legal representatives and the Co-operative society, its board or any officer ,agent or employees of the Co-operative society or liquidator, past or present ; or
(c) between the Co-operative society or its board and any past board, any officer, agent or employee or any past officer, past agent ; or past employee or the nominee, heirs or legal representatives of any deceased officer or deceased employee of the Co-operative society ; or
(d) between two Co-operative society or between a Co-operative society and a liquidator of another Co-operative or between liquidator of two different Co-operative or between a Co-operative society and any person having transaction with it or between a Co-operative society and its financing bank."
Section 102 (4) of Act, 2006 are reproduces below :-
" Any Civil Court or any Consumers' Dispute Redressal Forum shall not have any jurisdiction to try any dispute as mentioned in Sub-Section (1).
The plain reading of the aforesaid provision makes it clear that the matter which are referable before the Registrar for settlement as per Section 102(1) of Act, 2006 the Civil Court or any Consumers' Dispute Redressal Forum shall not have any jurisdiction to try such dispute. The provisions of Section 102(1)(b) makes it manifestly clear that in case of any dispute between member of a cooperative society and the cooperative society shall be filed before the Registrar. Therefore, in view of express bar as contained in Section 102(4) of Act, 2006, this dispute is not amenable before a Forum constituted under the Act.
Consequently, the complaint is rejected. However, this order will not debar the complainant to approach the appropriate Forum in accordance with law and in order to overcome the hurdle of limitation, if any, he may seek assistance of the decision of Hon'ble Supreme Court reported in (1995) 3 SCC 583 [Laxmi Engineering Works - Vs. - PSG Industrial Institute].
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER