State Consumer Disputes Redressal Commission
Kalwant Singh (Deceased), vs 1. The Chandigarh Sector 21 Universal ... on 12 September, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 250 of 2014 In Consumer Complaint No. 709 of 2008 Date of Institution : 30.06.2014 Date of Decision : 12/09/2014 Kalwant Singh (Deceased), through his wife/nominee/ L.R. Mrs. Jagdish Kaur, Earlier resident of House No.120, Sector 32-A, Chandigarh. Now R/o Flat No.1126, The Chandigarh Sector 21 Universal Cooperative House Building First Society Ltd., Sector 48B, Chandigarh. Appellant/widow of the Complainant Versus 1. The Chandigarh Sector 21 Universal Cooperative House Building First Society Ltd., through its Administrator Sh. Santokh Singh, Office of Registrar Co-operative Societies Chandigarh, U.T., 30 Bays Building, Sector 17-A, Chandigarh, now through its President. 2. The Chandigarh Sector 21 Universal Cooperative House Building First Society Ltd., through its Administrator Sh.Udham Singh, Office of Registrar Co-operative Societies Chandigarh, 30 Bays Building, Sector 17-A, Chandigarh, now through its President.. 3. Registrar Co-op. Societies Chandigarh U.T., 30 Bays Building, Sector 17-A, Chandigarh. 4. Inderjeet Bajaj, Ex. President C/o Nand Lal, SCF 14, Sector 29, Chandigarh. 2nd Address: House No.1088, Sector 7, Panchkula. 5. Surjit Chaudhary, Ex. Secretary, H. No.117, Sector 18-B, Chandigarh. 6. Devinder Gupta, Ex. President, SCF-10, KB, Empire Store, Sector 21-C, Chandigarh. 7. Anil Aggarwal, Cashier-cum-Executive Member, H.No.1214, Universal Enclave, Sector 48-B, Chandigarh. 8. Kamal K. Sharma, Executive Member, 152/2, Sector 45-A, Chandigarh. 9. Devinder Pal Sharma, Executive Member, H.No. 1114, Universal Enclave, Sector 48-B, Chandigarh ..Respondents/Opposite Parties. 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. Gaurav Bhardwaj, Advocate for Smt. Jagdish Kaur, widow, widow/nominee/LR of Kalwant Singh (now deceased), appellant.
Sh. K.K. Sharma, Advocate for respondents No.1,2,5,7,8 and 9.
Sh. Jatinder Singh, Govt. Pleader for respondent No.3.
Respondent No.4 demised.
Service of respondent No.6, dispensed with, vide order dated 01.07.2014.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT An application for bringing on record, Smt. Jagdish Kaur, widow/nominee/LR of Kalwant Singh (now deceased), appellant, alongwith his death certificate was filed. That application was allowed, vide order dated 09.09.2014, and she was brought, on record.).
2. This appeal is directed against the majority order dated 10.03.2014, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed the complaint, filed by Sh. Kalwant Singh complainant (now deceased).
3. One Member of the District Forum, recorded the dissenting order dated 20.03.2014.
4. In the year 1991, the Chandigarh Administration floated a Scheme called Chandigarh Allotment of Land to Cooperative House Building Societies Scheme, 1991, to promote private housing and optimum utilization of land, by constructing multi-storeyed structures. As such, a number of Societies came into existence, including The Chandigarh Sector 21 Universal Cooperative House Building Society Ltd., i.e. Opposite Party No.1 (for short hereinafter to be referred as Opposite Party No.1 Society only). Originally, there were about 186 members, in the said Society, who deposited the initial amount of earnest money. Later on, about 121 members of Opposite Party No.1 Society, surrendered their membership, for various reasons. Since the construction was to be completed within the stipulated period, for which money was required, the Managing Committee of Opposite Party No.1 Society, thought it proper to fill up the vacancies of the old members, who surrendered their membership, and, as such, an advertisement Annexure C-1, was published, in the daily English Tribune (Chandigarh Edition) dated 16.01.2003, contents whereof read as under:-
The Society intends to substitute a few members for allotment of house/flat in its ongoing housing project in sector 48 B, Chandigarh against the members who have surrendered their entitlement from owning the house/flat of the society. The persons of public who are willing to own house/flat of the society by way of substitutions on first come first serve basis may contact the office personally for completion of related formalities within 7 days of publication of this notice President.
5. It was stated that Sh. Kalwant Singh (now deceased), complainant, at the time he was alive, became member of Opposite Party No.1 Society, after reading the above-extracted advertisement Annexure C-1, and paid a sum of Rs.110/-, as membership fees, vide receipt No.44 dated 12.10.2003, Annexure C-2. Share Certificate No.245 Annexure C-3, was duly issued, in favour of Sh. Kalwant Singh, on 13.10.2003, by Opposite Party No.1 Society. According to Sh. Kalwant Singh, complainant, he received letter Annexure C-10, wherein it was mentioned that the total cost of Category A flat would be Rs.8 lacs. He was asked to deposit the said amount, as per the schedule mentioned, in the said letter. It was further stated that Kalwant Singh, complainant (now deceased), paid a sum of Rs.9,25,410/- (infact Rs.9,86,010/-), in installments, vide receipts Annexures C-4 to C-9 against the total cost of the said flat. According to Sh. Kalwant Singh, complainant, the time period for the completion of construction of flat, was 18 months. Vide letter dated 05.01.2003 Annexure C-11, the President of Opposite Party No.1 Society, gave details of work to be completed by it (Society), within the stipulated period of his (complainant) becoming a member of the same (Society).
6. According to Sh. Kalwant Singh, complainant (now deceased), the draw of lots was to be held on 28.05.2005, but Opposite Party No.1, in connivance with Opposite Party No.3, did not hold the same. It was further stated that Kalwant Singh, complainant, alongwith other substituted members of the Society, filed Civil Writ Petition No.10691 of 2005, before the Punjab and Haryana High Court, at Chandigarh, which passed an order for restoration of their rights as members. The Punjab and Haryana High Court, at Chandigarh, also ordered for holding of draw of lots. Sh. Kalwant Singh, complainant, and other substituted members, who were also complainants, in the connected complaints, were allowed to participate in the draw of lots. It was further stated that despite the order of the Punjab and Haryana High Court, at Chandigarh, the Opposite Parties failed to hold the draw of lots. Thus, Contempt of Court Petition No.1388 dated 28.01.2008, was filed before the Punjab and Haryana High Court, at Chandigarh, wherein a direction was issued that the original allotment letters, in terms of the draw of lots, be handed over to the petitioners, within three days, failing which respondent No.5, was to be made liable to pay exemplary costs.
7. It was further stated that, ultimately, the draw of lots was held and Kalwant Singh, complainant, was allotted flat No.1126, vide letter dated 14.11.2007 Annexure C-14, subject to clearance of all the dues. It was further stated that the construction work of flats, in question, was not completed by the Opposite Parties, as promised by them. It was further stated that the flat allotted, in favour of Kalwant Singh, complainant, was not in a livable condition. It was further stated that there were many structural cracks, in the building, which could endanger the life and property. Those shortcomings, in construction, were also brought to the notice of Opposite Party No.1 Society. The Opposite Parties, however, failed to get the construction work completed. It was further stated that the remaining construction work was got done by Kalwant Singh, complainant, at his own expenses. It was further stated that Kalwant Singh, complainant, also wrote a letter to the Opposite Parties, for the refund of amount, spent by him, for completion of the remaining work of construction, but to no avail. It was further stated that later on, an Administrator was appointed by Opposite Party No.3, for regulation of the working of the Society, but still nothing concrete had been done. It was further stated that even the advertisement Annexure C-1, which was given by Opposite Party No.1 Society, for the substitution of members, was misleading, as no Substitution Policy, existed at that time. 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.
8. When the grievance of the complainant, was not redressed, left with no alternative, the 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 hand over possession of the flat, in question,, and refund the existing price of the remaining construction work got done by him, at his own expenses; pay compensation, to the tune of Rs.5 lacs, for deficiency, in rendering service; unfair trade practice; mental agony and physical harassment; and cost of litigation, to the tune of Rs.55,000.
9. Opposite Parties No.1 and 2, in their joint written version, admitted that Sh. Kalwant Singh, complainant, was substituted as one of the members against the vacancies which occurred, on account of the surrender of membership, by some of the original members of the said Society. It was stated that according to Clause 21 of Annexure RE/3 the Allotment letter, vide which the land to Opposite Party No.1 was allotted, prior approval of the Registrar, Cooperative Societies, UT, Chandigarh, Opposite Party No.3, for substitution of members, as per the prescribed Policy/procedure was required. It was further stated that the original members had deposited various amounts, on various dates, to make 25% of the earnest money, to make themselves eligible, for the allotment of land, by the Chandigarh Housing Board, Chandigarh. Thereafter, they paid cost of flats mentioned below, before getting possession of the same (flats). It was further stated that, even some of the substituted members also deposited the amount, for getting possession of the flats. Opposite Parties No.1 and 2 had also detailed, in their reply, the amount required to be deposited for each category of flats i.e. A, B, C prior to the allotment of land, in January 2002, and total amount paid for the respective flats was as under:
Category A Total Cost of flat -Rs. 17,36,366-00 25% Earnest Money-Rs. 1,69,000.00+ other Expenses Category B Total Cost of flat -Rs. 13,77,999-00 25% Earnest Money-Rs. 1,23,270-00+ other Expenses Category C Total Cost of flat -Rs. 10,94,293-00 25% Earnest Money-Rs. 97,830-00+other Expenses 10. It was further
stated that besides making the above payments, the substituted members were also required to pay interest, on delayed payments. The Managing Committee of Opposite Party No.1 Society, had issued notices to the substituted members, in compliance with the order dated 04.02.2008, passed by the Punjab and Haryana High Court, at Chandigarh, in Contempt of Court Petition No.1388 dated 28.01.2008, titled as 'Kuldip Singh etc Vs Krishna Mohan etc., whereby they (substituted members) were asked to deposit the arrears of dues, which had not been paid till date. It was further stated that Sh. Kalwant Singh, complainant, and other substituted members, who were also complainants, in the connected complaints, were still in arrears of those dues, demanded by the Opposite Parties. It was further stated that the cost of flat of each category, mentioned in the letter, was tentative, which was worked out, on the basis of building plans, submitted to the Chandigarh Administration. It was further stated that the actual cost of construction was to be adjusted, in the last installment, after completion of the same (construction), keeping in view the escalation, in its (construction) cost, for various reasons. It was denied that the construction of flats, in question, was incomplete. It was also denied that there were certain deficiencies and drawbacks, in the flats, possession whereof had been delivered, in favour of Kalwant Singh, complainant (now deceased), and other substituted members.
It was also denied that there was any delay, in handing over possession of the flats, to the substituted members, on the part of the Opposite Parties. It was also denied that there was no Substitution Policy, at the time, the advertisement Annexure C-1, was published. On the other hand, it was stated that according to the Bye-laws of the Society, it could admit/enroll/elect new members and allot shares/flats, to them. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
11. Opposite Party No.3, in his reply, stated that the name of Sh. Kalwant Singh, complainant, had been cleared by him, and the Society had been informed accordingly. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor he indulged into unfair trade practice. The remaining averments, were denied, being wrong.
12. The Counsel for Opposite Parties No.4, 5, 7 to 9, vide his statement dated 20.03.2009, adopted the reply, filed by Opposite Parties No.1 and 2. It was stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.4, 5, 7 to 9, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
13. Initially, on one or two dates, Opposite Party No.6, put in appearance, in person, but, thereafter, none put in appearance, on his behalf, as a result whereof, he was proceeded against exparte, by the District Forum, on 02.09.2008.
14. The complainants, and Opposite Parties No.1 to 3, led evidence, in support of their case. The Counsel for Opposite Parties No.4,5,7 to 9, vide his statement dated 20.03.2009, adopted the evidence, led by Opposite Parties No.1 and 2.
15. After hearing the Counsel for the complainant, Opposite Parties No.1, 2, 4, 5, 7 and 9, Govt. Pleader for Opposite Party No.3, Opposite Party No.8, in person, and, on going through the evidence, and record of the case, the District Forum, vide its majority order, dismissed, the complaint, as stated above.
16. Feeling aggrieved, the instant appeal was filed by the appellant/wife/nominee/L.R. Mrs. Jagdish Kaur of the complainant.
17. The service of respondent no.6, who was Opposite Party No.6, in the Consumer Complaint, and was proceeded against exparte, was dispensed with, by this Commission, vide order dated 01.07.2014, for the purpose of this appeal.
18. During the pendency of appeal, on 03.09.2014, the Counsel for Smt. Jagdish Kaur, widow/nominee/LR of Kalwant Singh (now deceased), appellant, submitted that respondent No.4/Opposite Party No.4, had expired.
19. We have heard the Counsel for the appellant, respondents No.1,2,5,7,8 and 9, Govt. Pleader for respondent No.3, and have gone through the evidence, and record of the case, carefully.
20. The Counsel for the appellant, submitted that there was no Substitution Policy, in existence, on 16.01.2003, when the advertisement Annexure C-1, was given by Opposite Party No.1 Society. He further submitted that, in the absence of existence of any Substitution Policy, it could be said that Opposite Party No.1 Society, misled the general public, and, thus, indulged into unfair trade practice. He further submitted that, according to the letter of allotment of land, by the Chandigarh Housing Board, to Opposite Party No.1 Society, substitution could be made, only with the prior approval of the Registrar Cooperative Societies, U.T., Chandigarh, but Opposite Party No.1 Society substituted the members, obtained membership fees from Sh. Kalwant Singh (now deceased), issued him the share certificate and got deposited the price of the flat, from him, without following the said procedure. He further submitted that there was delay, in raising construction, as a result whereof, Sh. Kalwant Singh (now deceased), and his family had to suffer a lot of mental agony and physical harassment. He further submitted that even the flat, which was allotted to Sh. Kalwant Singh (now deceased), and possession whereof, was given to him, was incomplete. He further submitted that there were so many deficiencies and drawbacks, in the flat, possession whereof was given to the complainant, but the same were not got rectified, by the Opposite Parties. He further submitted that Sh. Kalwant Singh (now deceased), had to spend money, from his own pocket, to complete construction and rectify the deficiencies and drawbacks, for which his widow/legal heir was required to be compensated, but the Opposite Parties, failed to do so. He further submitted that even demand of more amount, towards the construction of flat, and external works, raised by the Opposite Parties, was illegal. He further submitted that the District Forum was wrong, in coming to the conclusion, that the Opposite Parties, were neither deficient, in rendering service, nor indulged into unfair trade practice. He further submitted that the majority order of the District Forum, being illegal and invalid, is liable to be set aside.
21. On the other hand, the Counsel for respondents No.1,2,5, 7, 8, and 9, submitted that Opposite Party No.1 Society, was duly registered, under the Societies Registration Act. He further submitted that Opposite Party No.1 Society, had framed it own Bye-laws, which have got the force of law. He further submitted that these Bye-laws were duly approved by the Registrar Cooperative Societies, the competent Authority, in 1968. He further submitted that according to Bye-laws 5 (iv) and 36 (viii) of these Bye-laws, the Managing Committee of the Society was competent to admit/elect new members, issue new and transfer old shares. He further submitted that it was according to these Bye-laws, that the advertisement Annexure C-1, for the substitution of members, was given. He further submitted that any condition, in the allotment letter dated 24.01.2002 (Annexure RE/3), issued by the Chandigarh Housing Board, in respect of the land, in favour of Opposite Party No.1 Society, contrary to the Bye-laws, aforesaid, could not prevail. He further submitted that according to the Bye-laws aforesaid, Opposite Party No.1 Society had legally and validly substituted the members, issued them the share certificates, permitted them to participate, in the draw of lots, which was to be held in the year 2005, but the Joint Registrar Cooperative Societies, did not allow Opposite Party No.1, to permit the participation of the substituted members in the same (draw of lots), vide order dated 25.07.2005. He further submitted that even the Revision-Petition filed by Opposite Party No.1, against the order dated 25.07.2005, passed by the Joint Registrar Cooperative Societies, U.T., Chandigarh, was dismissed by the Secretary Cooperation, U.T., Chandigarh, vide order dated 17.07.2006. He further submitted that, no doubt, Civil Writ Petition No.10691 of 2005, was filed by Kuldeep Singh and others, wherein, the Punjab and Haryana High Court, issued direction for allotment of flats, to the substituted members, and hand over the possession thereof to them. He further submitted that, thus, the flat was allotted to the complainant, being the substituted member of Opposite Party No.1 Society. He further submitted that no deficiency, thus, could be attributed to Opposite Parties No.1 and 2, on account of delay, in allotment of flats to Sh. Kalwant Singh, (now deceased), and other substituted members. He further submitted that the flat, which was allotted, and possession whereof was handed over to the complainant was complete, in all respects, and there were no deficiencies and drawbacks, therein. He further submitted that even Kalwant Singh, complainant (now deceased), gave the satisfaction note Annexure RE/11 dated 24.12.2008, at page 101 of the District Forum file, to the effect that The physical possession of the flat allotted to the above named member has been handed over on as is where is basis to the allottee member in satisfactory state and liability of the society to look after and maintain this flat ceases w.e.f. today 24.12.2008. He further submitted that, neither any protest was raised at that time, by Sh. Kalwant Singh, complainant (now deceased), nor even later on, he wrote any letter, raising protest that the construction of flat was incomplete. He further submitted that there was no intentional delay, in raising construction of the flats, in question, but the matter went into litigation, as a result whereof, if any delay was caused, that could not be attributed to the Opposite Parties. He further submitted that there was neither any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. He further submitted that the majority order of the District Forum, being legal and valid, is liable to be upheld.
22. The Govt.
Pleader for respondent No.3/Opposite Party No.3 did not advance any arguments.
23. The first question, that falls for consideration, is, as to whether, the advertisement Annexure C-1, issued by Opposite Party No.1 Society, in The daily English Tribune (Chandigarh Edition) on 16.01.2003, stating therein that new members were to be substituted by way of process of substitution, against the members, who surrendered their membership, on completion of related formalities, was misleading and amounted to indulgence into unfair trade practice or not. The answer to this question, is in the negative, as would be discussed hereinafter. As stated above, Opposite Party No.1, is a duly registered Society, under the Punjab Cooperative Societies Act, 1961, vide Registration No.94 dated 21.12.1968. This Society framed its own Bye-laws, in pursuance of the provisions of the Punjab Cooperative Societies Act, 1961, as far back as on 21.12.1968. These Bye-laws have got the force of law. These Bye-laws were duly approved by the Registrar Cooperative Societies, the Competent Authority, in the year 1968. Opposite Party No.1 Society was bound by its Bye-laws. According to Bye-law 5 (iv) of the aforesaid Bye-laws, the Society could admit the members. This Bye-law also provided that applications for admission as members other than those, who joined the application, for registration and for allotment of shares shall be disposed of by the Managing Committee of the Society. Bye-law 36 (viii) of the Bye-laws aforesaid, also provided that the Managing Committee was competent to exercise the power to elect/admit new members, to issue new and transfer old shares. These Bye-laws, therefore, authorized Opposite Party No.1 Society, to admit new members, to issue new and transfer old shares. These Bye-laws, therefore, provided for substitution of the members, in lieu of the old ones, who had surrendered their membership. Not only this, Memo No.Coop/HB/ 2KI/3890 dated 05.10.2001, copy whereof is Annexure R-4A, at page 132 of the District Forum file, was sent by the Registrar, Cooperative Societies, U.T., Chandigarh, to all the Cooperative House Building Societies in Chandigarh, for information and record, for enrollment of new members. It was intimated vide this letter, that the allotment of flat, surrendered by an eligible member, may be made to the senior most eligible member of the Society, enrolled before 31.10.1990. It was also intimated, vide this letter, that, in case, no willing and eligible member was enrolled before the said date, then fresh enrollment may be undertaken, as per the Bye-laws of the Society, and the case for substitution may be sent to the office of the Registrar, Cooperative Societies, U.T., Chandigarh, for clearance. Thus, this letter being substantially, in consonance with Bye-laws 5 (iv) and 36 (viii) of the aforesaid Bye-laws also empowered Opposite Party No.1 Society, to enroll new members, in place of the members, who had already surrendered their membership, as per the same (Bye-laws). Chandigarh Allotment of Land to Co-operative House Building Societies Scheme, 1991, under which the land was allotted to Opposite Party No.1, did not prohibit the enrolment of new members or substitution of the members, in lieu of the members, who had surrendered their membership, for whatever the reason may be. Not only this, even vide letter No.CAP-SO-III-2KI/1207 dated 24.01.2002, Annexure RE/3, at page 76 of the District Forum file, addressed to the President, Chandigarh, Sector 21, Universal Coop. H.B. Society Ltd., S.C.O. No.10, Sector 21-C, Chd. (Opposite Party No.1) by the Chief Executive Officer, Chandigarh Housing Board, Chandigarh, it was made clear that substitution of the members, as per the prescribed policy/procedure, with the prior approval of the Registrar, Cooperative Societies, U.T., Chandigarh, may be allowed, subject to fulfillment of eligibility conditions. The condition of prior approval of the Registrar Cooperative Societies, for substitution of new members, in place of those, who had surrendered their membership was contrary to the Bye-laws, aforesaid, of Opposite Party No.1 Society. Such a condition was also contrary to Chandigarh Allotment of Land to Co-operative House Building Societies Scheme, 1991, notified vide Notification dated 28.05.1991. Not only this, such a condition was also contrary to Annexure R-4/A, letter sent by the Registrar Cooperative Societies, U.T., Chandigarh, to all the Cooperative House Building Societies, in Chandigarh. Such a condition, in view of the aforesaid Bye-laws, could not operate, and was required to be ignored. This all goes to show that the Policy, with regard to substitution of the members, was already in existence, when the advertisement Annexure C-1 was given by Opposite Party No.1 Society. The only bar which was imposed contrary to the Bye-laws was that after substitution of the members, the case was required to be sent to the office of the Registrar, Cooperative Societies, U.T., Chandigarh, for clearance. Under these circumstances, by no stretch of imagination, it could be said that there was no Policy of substitution of members, in place of the members, who had already surrendered their membership, before the advertisement dated 16.01.2003, Annexure C-1 was issued by Opposite Party No.1 Society. It was in pursuance of the Substitution Policy already in existence that membership fee of Rs.110/- was deposited by Sh. Kalwant Singh, complainant (now deceased), vide receipt, copy whereof is dated 12.10.2003, and he was substituted as a member of the Society. Not only this, even share certificate, copy whereof is Annexure C-3, was issued in favour of Sh. Kalwant Singh, complainant (now deceased) . The complainants, in other complaints, who were also substituted as members, were issued the share certificates. All the substituted members, including the complainant, thereafter, deposited various amounts, towards the price of the flats, ultimately allotted to them. Therefore, by no stretch of imagination, it could be said that misleading advertisement was given by Opposite Party No.1 Society, which amounted to unfair trade practice. The District Forum was also right, in holding so. The findings of the District Forum, in this regard, being correct, are affirmed.
24. No doubt, the Counsel for the appellant, placed reliance on Seema Vs. Rohin Sachdeva (Dr.) & Anr, II (2008) CPJ 207, to contend that if misleading advertisement or information is given in the newspapers, then that amounted to unfair trade practice. The facts of Seema`s case (supra), are clearly distinguishable, from the facts of the instant case. In that case, there was infact misleading information, in the newspaper, regarding affiliation of the College, as a result whereof, the students took admission therein, and their valuable years of life were wasted, whereas, in the instant case, as stated above, there was no misrepresentation of facts. Advertisement Annexure C-1, as stated above, for substitution of members, was given by Opposite Party No.1 Society, as per the Substitution Policy, already in existence. Since, the facts of the instant case, are completely distinguishable, from the facts and circumstances of Seema`s case (supra), no help can be drawn, by the Counsel for the appellant, therefrom. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail, and the same stands rejected.
25. The next question, that falls for consideration, is, as to whether, there was delay, in construction and allotment of flats, on the part of Opposite Party No.1 Society. Even answer to this question, is in the negative, as would be discussed hereinafter. The complainant became member of Opposite Party No.1 Society, on payment of enrollment fees. He was given Membership Certificate/Share Certificate by Opposite Party No.1 Society. As stated above, Opposite Party No.1 Society was competent to enroll/substitute new members and transfer shares, as per Bye-laws 5 (iv) and 36
(viii) of the Byelaws aforesaid, and Memo No.Coop/HB/2KI/3890 dated 05.10.2001, copy whereof is Annexure R-4A, at page 132 of the District Forum file. Opposite Party No.1 Society, sought permission from Opposite Party No.3-Registrar Cooperative Societies, U.T., Chandigarh, to hold draw of lots and for participation of the newly enrolled/substituted members, in the same. However, the Joint Registrar, Coop. Societies, U.T., Chandigarh, declined the permission for participation of the newly enrolled/substituted members, in the draw of lots, vide order dated 25.07.2005. Had there been a malafide intention, on the part of Opposite Party No.1 Society, it would not have issued the membership Certificate/ Share Certificate, to the complainant, nor it would have given him permission to participate, in the draw of lots. If the Joint Registrar, Coop. Societies, U.T., Chandigarh, did not permit the substituted members to participate, in the draw of lots, which was scheduled to be held, in the year 2005, then the fault could not be attributed to Opposite Party No.1 Society. Further, the bonafides of Opposite Party No.1 Society, are writ-large, on the face of it, from the fact that it challenged the order dated 25.07.2005, of the Joint Registrar, Coop. Societies, U.T., Chandigarh, before the Secretary Co-operation, Union Territory Chandigarh, by filing a Revision Petition. However, the same was dismissed vide order dated 17.07.2006. In this order, the Secretary Co-operation, Union Territory Chandigarh, in clear-cut terms, stated that Substitution Policy was already in existence. It was, thereafter, that the substituted members, filed Civil Writ Petition No.10691 of 2005, before the Punjab and Haryana High Court, at Chandigarh, which was decided on 21.08.2006. Later on Civil Misc. No.16313 of 2006 was filed in the aforesaid Writ Petition, which was disposed of vide order dated 25.09.2006. During the pendency of Civil Writ Petition No.10691 of 2005, the Chandigarh Administration issued new Substitution Policy, on 08.06.2006, according to which, the Societies were to take their substitution decision, in their General Bodies, provided such decisions were consistent with:-
i) The provisions of Cooperative Act and Rules framed thereunder;
ii) Articles of associations/Bye-Laws of the said Cooperative House Building Society;
iii) The terms and conditions of allotment of land of the society.
26. From the aforesaid resume of facts, it is abundantly proved, that Opposite Party No.1 could not be held responsible for framing a new Substitution Policy, on 08.06.2006. On the other hand, the efforts were made by Opposite Party No.1 Society, by filing a Revision-Petition before the Secretary Co-Operation, Union Territory Chandigarh, against the order dated 25.07.2005 of the Joint Registrar, praying that the substituted members be allowed to participate, in the draw of lots scheduled to be held in 2005. That Revision-Petition was dismissed vide order dated 17.07.2006. Civil Writ Petition No.10691 of 2005, was disposed of by the Punjab and Haryana High Court, with the following observations:-
At the time of arguments, it has fairly been stated by Mr. Sunil Parti, that as per substitution policy, Society has taken a decision for substitution of names and the petitioners are supposed to deposit an amount of Rs.50,000/- for category 'A', Rs. 35,000/- for Category 'B' and Rs.25,000/- for Category 'C' alongwith their affidavits (copy of the performa has been placed on record as Annexure R-4/5). The Society, after verifying the contents of the affidavits, shall include the names of the petitioners in draw of lots, to be conducted on September 24, 2006. The statement made by the Counsel for the Society satisfies the counsel of the petitioners. Most of the petitioners are present in Court. On getting instructions from them, Counsel for the petitioners states that the requisite amounts shall be deposited and affidavits will be filed on or before August 31, 2006.
27.
Ultimately, on the basis of the new Substitution Policy dated 08.06.2006, framed by the Chandigarh Administration, and the parameters laid down therein, that permission was given to the newly enrolled/substituted members, for participation, in the draw of lots. Eventually, the draw of lots was held on different dates.
28. In Civil Writ Petition No.10691 of 2005, the Punjab and Haryana Court, at Chandigarh, directed the substituted members, including Sh. Kalwant Singh, complainant (now deceased), to submit their affidavits, in the requisite Performa, but they did not comply with the said directions for a long time. In those circumstances, Opposite Party No.1 Society, had to file an application, in Civil Writ Petition No.10691 of 2005, for extension of time, and for direction to the complainant, for submitting the required affidavit. The required affidavits, as per the directions, given by the Punjab and Haryana Court, at Chandigarh, in Civil Writ Petition No.10691 of 2005, were received in the months of June and July, 2007, during the pendency of the Contempt Petition. On 09.08.2007, the Punjab and Haryana Court, at Chandigarh, passed the following order, in COCP no.1388 of 2006:-
Mr. Munjal states that the affidavits in proper format have been received by the respondents No.4 and 5 and that the consequential steps will be taken within 2 weeks. List for 23.08.2007.
29. Ultimately, on fulfillment of the conditions, referred to above, by the complainant being the substituted member, that the draw of lots was held and flat was allotted to him. Later on, Kalwant Singh, complainant (now deceased), took possession of the flat, even without paying the outstanding dues against him. Opposite Party No.1 Society, thus, had to issue notice to the complainant, for payment of outstanding dues, as per the orders, passed by the Punjab and Haryana Court, at Chandigarh, in the aforesaid COCP.
30. If the Chandigarh Administration, which was not impleaded as a party to the complaint, took a long time, and forced the complainant into litigation, without any fault of Opposite Party No.1 Society, then the latter could not be held guilty of deficiency, in rendering service. On the other hand, the effort of Opposite Party No.1 Society, by way of filing Revision Petition, against the order passed by the Joint Registrar Cooperative Societies, before the Secretary, Cooperation, U.T., Chandigarh, clearly proved its bonafides. Under these circumstances, delay in construction and allotment of flats, could not be attributed to Opposite Party No.1 Society, in any manner. Therefore, it could not be held that Opposite Party No.1 Society, was, in any way, deficient, in rendering service, by causing the alleged delay, in the construction and allotment of flats, to the complainants, who were substituted as members of Opposite Party No.1. The District Forum was also right, in holding so.
31. The next question, that falls for consideration, is, as to whether, construction of the flat, was incomplete, and there were certain deficiencies and drawbacks, in the same (construction), which were duly conveyed to Opposite Party No.1 Society. It may be stated here, that Sh. Kalwant Singh, complainant (now deceased), and other substituted members, were given possession of the flats, allotted to them, after the aforesaid litigation, on as-is- where-is-basis. No cogent and convincing evidence was produced, by the appellant, to the effect that the construction of flat was incomplete, when the possession thereof, was handed over to her husband, Sh. Kalwant Singh, complainant (now deceased). In case, the construction of flat, was incomplete and the same was carrying some deficiencies and drawbacks, it was required of the complainant, being the substituted member, to submit the report of some Engineer or Architect, by getting the same inspected, from him, at the time, he took the possession thereof. However, he failed to do so. No doubt, affidavit was filed by Kalwant Singh, complainant (now deceased), being substituted member, in the complaint, that the construction of flat was incomplete and there were certain deficiencies and drawbacks therein, yet such self-serving statement of the complainant, with regard to existence of the same (alleged deficiencies and drawbacks) in the flat, could not be said to be sufficient, to prove the same. Only an expert Engineer or Architect could prove the same. An application dated 14.11.2011, at page 145 of the District Forum file, for the appointment of Local Commissioner, was filed, before the District Forum, and the same was dismissed, by it, vide order dated 05.03.2012. No Revision-Petition was filed, against that order, by the complainant. In case, the complainant was aggrieved against that order, it was required of him, to file Revision-Petition, before this Commission. This Commission, in those circumstances, might have set aside the said order, and directed the appointment of a Local Commissioner, for inspection of the flat, in question. Not only this, no bills and receipts regarding the purchase of material, which was used for the completion of the alleged incomplete construction, and showing the payment of wages/amount to the mason(s) and labourers, were produced by the complainant, to prove this factum.
32. On the other hand, at the time of taking possession, Possession Letter dated 24.12.2008 Annexure R/E/11, at page 101 of the District Forum file, duly signed by Sh. Kalwant Singh, complainant (now deceased), was given, which reads as under:-
The Chandigarh, Sector 21 Universal Coop. House Building (Ist) Society Ltd., Chandigarh Ref.
No.UB-95 Dated:
24.12.08 POSSESSION LETTER
1. It is certified that Sh. Kalwant Singh s/o Sh. Arjan Singh is a Member of the society has been allotted Flat No.1126 Category B on the First Floor vide Allotment Letter No. UE:A:68 dated 29.1.08 on the land allotted to the society by Chandigarh Housing Board, Chandigarh in Sector 48-B, Chandigarh.
2. The physical possession of the flat allotted to the above named member has been handed over on as is where is basis to the allottee member in satisfactory state and liability of the society to look after and maintain this flat ceases w.e.f. today 24.12.08.
3. The allottee undertakes to abide by the terms and conditions as laid down in the Allotment of land by Chandigarh Housing Board, Chandigarh and Allotment of flat as contained in the Allotment Letter issued by the society and provisions of Act/Rules and Bye-laws. He further undertakes to abide by the instructions, directions, terms & conditions issued by any concerned authority from time to time. He further undertakes to pay share of contribution as and when demanded by the society from time to time.
The possession is given as per order of the Hon`ble Pb. & Hr. High Court dated 26.11.08.
Taken Over Handed Over Sd/- 24/12/2008 Sd/-
Signature of the Allottee Authorized Signatory For and on behalf of The Chandigarh Sector 21 Universal Cooperative House Building (First).
33. The possession letter aforesaid clearly proved that possession of the flat, allotted in favour of the complainant, was handed over on as-is- where-is-basis in satisfactory state, and liability of Opposite Party No.1 Society, to look after the maintenance ceased w.e.f. 24.12.2008. There is nothing, on record, that after 24.12.2008, any protest was raised by the complainant, with regard to handing over possession of the flat, in question, with incomplete construction. There is also, nothing, on the record, that this letter of possession was obtained by Opposite Party No.1 Society, under duress or any coercion was exercised upon the complainant, by any of its (Opposite Party No.1), office bearers. Even if, it is assumed for the sake of arguments, that, at that time, the complainant was under alleged duress, and gave the certificate, he could, immediately, thereafter, write a letter, raising protest therein, that he took possession of the flat, but there were so many deficiencies and drawbacks existing therein. The case of the appellant, wife of Sh. Kalwant Singh (now deceased), to the effect that incomplete constructed flat, was handed over to him, and he had to spend sufficient amount, for completing the same, therefore, does not carry any substance. On the other hand, it is held that Sh. Kalwant Singh (now deceased), complainant, was handed over possession of the flat, on as-is-where-is-basis, in satisfactory condition and he got the same, without any protest, and, as such, there was no deficiency, in rendering service, on the part of Opposite Party No.1 Society. The submission of the Counsel for the appellant, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
34. The Counsel for the appellant, however, placed reliance on M/s Associated Construction Vs. Pawanhans Helicopters Pvt. Ltd., 2009 (1) R.C.R. (Civil) 34, to contend that if, in such circumstances, letter of possession was obtained from Sh. Kalwant Singh (now deceased), by Opposite Party No.1 Society, the same could be said to have been obtained by it (Opposite Party No.1 Society), under duress. Perusal of the facts of M/s Associated Construction`s case (supra) shows that no steps for payment of the amount due to the contractor, were taken, upon which he addressed a letter dated 2nd February 1993, for payment of dues. He again stated that if the payment was not made, the dispute should be referred to the Arbitrator. In response to this letter, Pawanhans, in its letter dated 9th February 1993, replied that the matter was under scrutiny, and it would take about 2 months, for verification and that the contractor would be informed, in due course. As no reply was received, letter dated 21st May 1993, was addressed by the contractor, relating to the undertaking that the enquiry would be completed within 2 months, but complaining that nothing had been done, and, on the contrary, on 8th June 1993, the claim for any payment was rejected by Pawanhans, observing that as "No Dues Certificate" had been submitted by the contractor, the question of any balance payment being due, did not arise. It may be stated here, that the perusal of the facts of M/s Associated Construction`s case (supra) clearly goes to show that immediately after giving the No Dues Certificate, by the contractor, he wrote a letter to Pawanhans that some payment was still due to him and the same be made. The Opposite Party, in that case, in clear-cut terms, intimated the complainant, that the matter was under scrutiny, and it would take about 2 months, for verification and that information would be given in due course. It was, under these circumstances, held by the Hon`ble Supreme Court of India, that it appeared that No Dues Certificate had been given by the contractor, under duress. In the instant case, as stated above, the possession letter was handed over by Sh. Kalwant Singh (now deceased), complainant, duly signed by him. It was also signed by an office bearer of Opposite Party No.1 Society. On the possession letter, no protest was raised by Sh. Kalwant Singh (now deceased), that the construction was incomplete. Not only this, immediately, thereafter, Sh. Kalwant Singh (now deceased), did not write any letter to Opposite Party No.1 Society, that the construction was incomplete, but he could not raise any protest, at the time of delivery of possession of the flat, to him, because he was under threat that, in case, he did not take possession of the same, he would not be given the same. The possession letter aforesaid was signed and given by Sh. Kalwant Singh (now deceased), voluntarily, in sound disposing mind, without any threat, coercion or duress. The facts of M/s Associated C onstruction`s case (supra), being completely distinguishable, from the facts of the instant case, no help can be drawn, by the Counsel for the appellant, therefrom. The submission of the Counsel for the appellant, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
35. No other point, was urged, by the Counsel for the appellant, respondents No.1 to 3, 5, and 7 to 9.
36. In view of the above discussion, it is held that the majority order dated 10.03.2014, passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
37. 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.
38. Certified copies of this order, be sent to the parties, free of charge.
39. The file be consigned to Record Room, after due compliance and completion.
Pronounced.
September 12, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER SD/-
(PADMA PANDEY) MEMBER Rg STATE COMMISSION (First Appeal No. 250 of 2014) Argued by: Sh. Gaurav Bhardwaj, Advocate for Smt. Jagdish Kaur, widow, widow/nominee/LR of Kalwant Singh (now deceased), applicant/ appellant.
Sh. K.K. Sharma, Advocate for respondents No.1,2,5,7,8 and 9.
Sh. Jatinder Singh, Govt. Pleader for respondent No.3.
Respondent No.4 demised.
Service of respondent No.6, dispensed with, vide order dated 01.07.2014.
.
Dated the 12th day of September 2014 ORDER Alongwith the appeal, an application, for condonation of delay of 47 days, (as per the applicant/appellant, (as per the office 45 days), has been filed, by the applicant/appellant, stating therein that, no doubt, appeal was required to be filed within 30 days, from the date of receipt of certified copy of the order impugned. It was further stated that certified copy of the order impugned, was received by the Counsel for the applicant/appellant, on 16.04.2014, but, since, Sh. Kalwant Singh, complainant, expired on 04.02.2014, and, the applicant/appellant, his widow, after his death, had left for England, as such, the appeal was sent to England, for her signatures and attestation thereof, which was done on 07.05.2014. However, the application for impleading the applicant/appellant, as legal heir/nominee of Sh. Kalwant Singh, complainant, had not been signed by her, as a result whereof, the same (application), was again sent to England, to her, for the purpose. It was further stated that, in these circumstances, the delay of 47 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 respondents No.1 to 5 and 7 to 9. However, they did not file reply to the same.
3. No doubt, there is delay of 47 days, (as per the applicant/appellant, (as per the office 45 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 applicant/ appellant. 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 Vs. 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 may be stated here, that the applicant/appellant, in support of the averments, contained in the application for condonation of delay of 47 days, has placed on record, the death certificate of her husband, Sh. Kalwant Singh, who expired on 04.02.2014. Not only this, it is also evident, from the applications for condonation of delay and impleadment of the applicant/appellant, as Legal Representative of Sh. Kalwant Singh, that the same had been got attested by her (applicant/appellant), from the Oath Commissioner, in England. Thus, it is clear that since the applicant/appellant, after the death of her husband Sh.
Kalwant Singh, complainant, had left for England, and the documents referred to above, had to be sent to her, for signatures and attestation thereof, which took some time, the delay of 47 days, in filing the appeal occurred. The delay cannot be said to be so huge, as to deny the substantial justice. 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 47 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 separate detailed order of the even date, recorded separately, this appeal has been dismissed, with no order as to costs.
12. Certified copy of this order, be sent to the parties, free of charge.
Sd/- Sd/-
Sd/-
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT (PADMA PANDEY) MEMBER Rg