State Consumer Disputes Redressal Commission
Ashoka Hind C.H.S.L vs Ashoka Hind C.H.S.L on 7 May, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI Date of Filing: 12/09/2007 Consumer Complaint No.:140/2007 Date of Order: 07/05/2009 The Hon. Secretary/Chairman, Complainant Ashoka Hind C.H.S.L. Plot No. 430, 15th Road, Khar(W), Mumbai-400 052. V/s. 1. M/s. Madhu Builders & Developers Opp.Party No.1 617, Ishkripa, 14th Road, Khar, Mumbai- 400 052 And Ors. 2. Mr.Prem Punjabi, Opposite party No.2 M/s. Madhu Builders & Developers, 617, Ishkripa, 14th raod, Khar, Mumbai- 400 052. Corum : Mr.P.N.Kashalkar, Honble Presiding Judicial Member.
Smt S.P.Lale, Honble Member.
Present : Adv.Shri U.B.Wavikar for complainant.
Adv.Shri S.B.Prabhawalkar for opp.parties.
-: ORDER :-
Per Shri P.N.Kashalkar, Honble Presiding Judicial Member This complaint has been filed by Secretary cum Chairman of Ashoka Hind Co-op.Hsg.Soc.Ltd., 15th road, Khar(W), Mumbai-52 against M/s. Madhu Builders & Developers and Mr. Prem Punjabi, who is proprietor of M/s. Madhu Builders & Developers. Complaint was filed listing certain prayers that it be declared opposite party nos. 1 &2 jointly and severally liable to pay balance amount of Rs.1,25,000/- with interest @21% p.a. and be declared that opposite party nos.1 & 2 are jointly and severally liable to pay damages to the complainant amounting to Rs.63,65,000/- by way of penalty and further be directed to pay Rs.2 lakhs for mental agony to the members of the Society and Rs.25,000/- towards costs.
Notice before admission was issued and Adv.Shri Prabhavalkar appeared on behalf of opp.parties. We heard Adv.Shri U.B.Wavikar for complainant and Adv.Shri S.B.Prabhavalkar for opposite parties on point of admission of the complaint.
We are finding that the prayers for declaration are in proper. The complainant society should have alleged deficiency in service and should have claimed damages. But in 2-3 prayers they have sought declaration. The relief of declaration cannot be granted by the Consumer Fora established under Consumer Protection Act, 1986. Declaratory reliefs can be granted under Specific Performance Act by the Civil Court. So, such prayers cannot be taken cognizance of by this Commission exercising its original jurisdiction under Consumer Protection Act, 1986. Moreover, Shri Prabhavalkar for the opp.parties vehemently submitted that the complaint has been filed by the Managing Committee of the Society on 12/09/2007. Whereas on that day Society was superceded by the order passed by Registrar, Co-operative Societies and appeal filed by the Managing Committee of the complainant/society had been dismissed. Further revision preferred by the Hon.Secretary and Chairman was also turned down by the Honble Minister. Writ petition challenging the order passed in Maharahstra Co-operative Societies Act was also disposed of by Honble High Court in terms of Minutes of order passed on 25/02/2009. By the said order of Honble High Court order dated 12/07/2007 passed by Deputy Registrar, Co-operative Societies, H/W ward, Mumbai was confirmed and Shri B.K.Parab was appointed as Administrator of Ashoka Hind Co-op.Hsg.Soc.Ltd.
In he circumstances order dated 12/07/2007appointing Administrator by the Deputy Registrar, Co-operative Societies, Mumbai has been ultimately confirmed by the Honble High Court and once Managing Committee has been dissolved and Administrator has been appointed by Society and it is the Administrator, who can file consumer complaint against the builder-developer or it is the new Managing Committee if at all it has come in existence, who can file consumer complaint. As per minutes of order, the Honble High Court had directed holding of elections and ultimately declare result of election on 05/04/2009. Since 05/04/2009 is over, we hope that new Managing Committee having Hon.Secretary and Chairman must have been elected and it is for them to decide whether to prosecute the consumer complaint on behalf of Society against M/s. Madhu Builders & Developers and proprietor. Thus, considering all the facts and circumstances of the case, we are of the considered view that the complaint as filed by the Hon. Secretary and Chairman of society is not tenable in law because on date of filing of complaint i.e. on 12/09/2007 Managing Committee had been superceded and Administrator was appointed by the competent authority under Maharashtra Co-operative Societies Act. In the circumstances, we pass the following order:-
:-ORDER-:
1. Complaint as filed by Hon.Secretary and Chairman of the Society stands rejected, as they are having no locus standi to file the consumer complaint on behalf of all the members of the Society. However, it is made clear that new Chairman or Hon. Secretary newly elected may decide to file the consumer complaint afresh if authorized to do so by resolution passed to that effect in the meeting of Managing Committee.
2. No order as to costs.
3. Copies of the order herein be furnished to the parties.
(S.P.Lale) (P.N.Kashalkar) Member Presiding Judicial Member Nbh