State Consumer Disputes Redressal Commission
Shanti Nagar Co-Op.Hsg. Society vs Jugal Kishore on 7 October, 2015
M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
FIRST APPEAL No. 565 /2014.
DECIDED ON : 07 .10.2015.
Shanti Nagar Co-operative Housing
Society Ltd., U.G.1, Johri Palace,
51, M.G. Road, Indore (M.P.).
....APPELLANT.
VERSUS
Jugalkishore,
s/o Shri Madanlal Neema,
116, Juna Pitha, Main Road,
Indore (M.P.).
....RESPONDENT.
BEFORE:
HON'BLE SHRI JUSTICE RAKESH SAKSENA, PRESIDENT
HON'BLE SMT. NEERJA SINGH, MEMBER
COUNSEL APPEARING FOR THE PARTIES :
SHRI SUDHIR LONDHE, LEARNED COUNSEL FOR APPELLANT.
SHRI R. S. CHHABRA, LEARNED COUNSEL FOR RESPONDENT.
ORDER
The following order of the Commission was delivered by Rakesh Saksena, J. :
Appellant / opposite party / Housing Society has filed this appeal against the order dated 12.12.2013 passed by District Forum, Indore in complaint case No.1216/2010.
2. Briefly stated, the facts as narrated by the complainant are that appellant is a registered Housing Society who developed a Colony by name -2- "Vrindavan Dham The Garden Estate". Respondent / complainant submitted an application for allotment of a plot in Vrindavan Dham The Garden Estate along with a sum of Rs.10,156/- on 26.3.1988. It is alleged that Society allotted a plot to complainant. During the period between the year 1988 to 1996 complainant deposited Rs.82531/- with the Society. The Society however did not allot any plot to him. Complainant, in this regard, made a complaint to the Office of Deputy Registrar, Co-operative Societies but Society did not admit payment of Rs.70,000/-. Society also denied issue of receipts for that amount. The Society admitted payment of Rs.12531/- in total under receipts dated 26.3.1988, 3.4.1988 and 4.6.1988. Since the complainant was neither declared defaulter nor his membership was cancelled, he approached to Consumer Forum attributing deficiency in service on the part of Society in not executing sale deed of the plot in his favour. Complainant prayed for execution of the sale deed of a 5000 sq. ft. plot by the Society and compensation.
3. Society stated that members of the Society were required to deposit instalments as per schedule. If the instalments were not paid within the stipulated period, the Society had a right to cancel the allotment without giving any notice to member. Since the payment of instalments was not made regularly by the complainant, his allotment stood cancelled automatically. The complainant had deposited only Rs.12531/-, no further amount was deposited in the Society and the receipts produced by the complainant were forged and fabricated. Since the last instalment was deposited on 4.6.1988, the complaint filed in the year 2010 was barred by the period of limitation.
4. Learned Forum after appreciating the evidence on record held that the receipts of the instalments deposited by the complainant between the year 1988 to year 1996 were reliable, and complainant had paid Rs.82531/- -3- to Society on various dates, as such the Society committed deficiency in service in not providing plot to him in the colony. The Forum accordingly allowed the complaint and directed Society to allot and execute a registered sale deed in favour of complainant of a 5000 sq.ft. plot in the colony on payment of development charges and other dues by him. In alternative, if the plot was not available with the Society, to pay the amount equivalent to the price of the said plot in accordance with the guideline declared by the Collector in the year 2009 - 2010 with interest and cost. Aggrieved by the aforesaid order, opposite party / Hosuing Society has preferred this appeal.
5. We have heard learned counsel for the parties and perused the impugned order and the material on record carefully.
6. Learned counsel for the appellant submitted that the complainant made payment of Rs.12531/- only till 4.6.1988 for which receipts were issued to him. No further amount of Rs.70000/- as alleged by the complainant was paid. The receipts produced by the complainant in that regard were forged and fabricated. Since the complainant did not deposit the instalments in accordance with the terms and conditions of the membership, he became defaulter and his allotment was cancelled automatically. No notice was required to be given under any bye-laws or rules of the Society. Learned counsel also challenged the receipts filed by the complainant on the ground that it was not disclosed as to who issued those receipts.
7. Learned counsel for the complainant referred to the relevant terms and conditions printed overleaf the membership application form of the Society and submitted that in case the instalments were not paid within a
- 4- stipulated period, though Society had a right to cancel the allotment letter, but the Society was required to apprise the complainant of the "Schedule" of payment. The Society neither apprised the Schedule nor the period within which the instalments were to be paid. For ready reference the relevant terms and conditions printed on the membership application form of the Society are reproduced hereunder :-
"3. If the Society decides to accept the application of the Applicant shall be forwarded :-
(i) A letter of allotment containing the terms and conditions of the allotment and a descriptive brochure.
(ii) The applicant shall be required to deposit further instalments as per schedule. If the instalments are not paid within the stipulated period, the Society reserves its right to cancel the allotment letter and may at its sole discretion allot the land to someone else.
4. If the society rejects the application the Application money shall be refunded to the applicant, without interest, within ninety days of receipt of application money.
6. The registration of the plot in favour of the member will be done as per the convenience of the society and the registration charges will be borne entirely by the members.
9. In case of any Govt. rulings and / or special circumstances, the plot number may be revised."
- 5-
8. On perusal of the aforesaid conditions it is apparent that if the instalments were not deposited as per schedule within prescribed time the Society had a right to cancel the allotment letter, but as submitted by learned counsel for the complainant no cancellation letter for the allotment was ever issued to complainant by the society. Learned counsel for the Society did not deny this fact, rather he admitted that no cancellation of allotment letter was issued. It is also relevant to note that as per clause 4 of the conditions if the Society rejected the application, the money deposited by the applicant ought to have been refunded within 90 days. Similar steps ought to have been taken by the Society where the allotment of the member is cancelled. No amount deposited by the complainant was refunded to him by the Society, if, as alleged by the Society, the allotment of the complainant stood automatically cancelled. We failed to find any provision postulating automatic cancellation of the allotment of a member. Learned counsel for the complainant drew our attention to the membership lists of the Society submitted to Assistant Registrar, Audit of the Co- operative Societies for the years 1994 - 95, 1996-97 and 1997-98. In all these lists the complainant has been shown as member at serial no.424, 424 and 354, respectively. However his name is missing in the list of the year 1998 -99. The presence of the name of complainant in membership lists indicates that he continued to be the member of the Society. In view of the above facts, we find that the opposite party / Society failed to prove that complainant was declared defaulter and his allotment was cancelled.
9. Learned counsel for the Society strenuously argued that the receipts purporting to be issued by "Vrindavan Dham The Garden Estate" from 13.12.1994 to 14.2.1996 are forged and fabricated. It has not been proved as to who issued these receipts and the address given on the said receipts "202,
- 6- Progress Chamber, Sneh Nagar, Main Road, Indore" is also different. The genuine receipts issued by the Society were issued in the name of "Shanti Nagar Co-operative Housing Society Ltd., 410, Jawahar Marg, Indore". It is an admitted position that "Vrindavan Dham" colony is being developed by Shanti Nagar Housing Society. Even the receipts issued by the appellant / Society mentioned "Vrindavan Dham" on them. It is for the Society to issue receipts in the name and style of "Shanti Nagar Co-operative Housing Soiety" or in the name of "Vrindavan Dham The Garden Estate". In ordinary course nobody would have objected if the receipts were issued by the appellant / Society in the name of Vrindavan Dham The Garden Estate. When the receipts were issued from the office of the Society, a member had reason to believe that they were issued by some authorized person.
10. Learned counsel for the Society submitted that the membership application form and the receipt dated 3.4.1988 indicated allotment of plot No.34 to complainant, whereas receipts purporting to be issued by Vrindavan Dham from 13.12.1994 to 14.10.1996 reflected plot No.70. This created suspicion about the genuineness of the said receipts. To this learned counsel for the complainant replied that clause 9 of the conditions of the membership application authorised Society in case of any Government ruling or special circumstances to revise the plot number. Therefore, if the plot number was changed in the receipt issued by the Society, it created no suspicion in the mind of complainant. Merely by change of number of the plot it could not be presumed that receipts filed by the complainant were forged and fabricated. Learned counsel for the complainant submitted that to substantiate the averments made in the complaint, the complainant obtained Audit Reports of the Society under the Right to Information Act, 2005 and filed the said reports before
- 7- the Forum along with affidavit. Annexure "L" the Audit Report of the appellant / Society by Auditors, Co-operative Societies, District Indore for the year 1994 - 95 reflects the suggestions made by them as under :-
"1- laLFkk }kjk xr vkfMV vk{ksiksa dh rkfeyh ugha dh x;h gS A 2- laLFkk }kjk vius lnL;ksa dks va'k izek.k i= tkjh ughsa fd;s x;s gS A 3- oDr vads{k.k lnL; iath viw.kZ ik;h x;h A 4- laLFkk lnL;ksa ds O;fDrxr [kkrs ;k rkjh[k iw.kZ ugha gS A 6- laLFkk }kjk lapkfyr fofHkUu ifj;kstukvksa dk ;kstukokj fglkc ugha j[kk x;k gS ftlls ;g Li"V ugha gksrk gS fd laLFkk dh fdl ;kstuk esa fdrus lnL; gS rFkk muls izkIr jkf'k dk fofu;kstu dgk fd;k x;k gS A 7- vads{k.k o"kZ esa laLFkk }kjk izkIr dh x;h ,oa Hkqxrku dh x;h jkf'k dk O;ogkj uxnh ls fd;k x;k gS tks xyr gS] lHkh Hkqxrku ,oa izkfIr;ka fu;ekuqlkj psd ls dh tkos A 8- laLFkk dh okf"kZd vkelHkk M~;w gksdj dk;Zdkfj.kh dh cSBds fu;ekuqlkj le; ij ugha gqbZ gS A 9- laLFkk }kjk vads{k.k o"kZ esa cuk;s x;s ,oa [kkfjt fd;s x;s lnL;ksa ls fof/kor ?kks"k.kk i= izkIr ughaa fd;s x;s gS A 11- laLFkk }kjk dqN fdlkuksa ls Hkwfe dz; vuqca/k isVs :-675000@& okil crk;h x;h gS] laLFkk dh dk;Zokgh iqfLrdk esa bl ckcn~ dksbZ mYys[k ugha gS A Li"V djsa lkFk gh dksbZ dkxtkr bl O;ogkj ckcn~ ns[kus dks miyC/k ugha gq,] bl O;ogkj dh fLFkfr Li"V djsa A 12- laLFkk esa ,d le; esa ,d ls vf/kd jlhn dV~Vksa dks jde izkfIr esa mi;ksx fd;k gS tks xyr gS A laLFkk }kjk tkjh jlhnksa ij fofHkUu izkIrdrkZvksa ds gLrk{kj gS ftudk inuke Li"V ugha gS A" (emphasis ours)
- 8-
11. From the Audit Report it could be inferred that the appellant / Society was not working in fair and transparent manner. It was observed by the Auditors that the Society was using more than one receipt books which was not proper. It was also observed that in the receipts, signatures of different receivers were found whose designations were not clear. In our opinion, this observation by the Auditors, after examining the record submitted by the Society, reinforced the contention of the complainant that receipts issued from 13.12.1994 to 14.2.1996 were genuine and were issued by the appellant / Society.
12. On the question that the address on the disputed receipts is different than the receipts admitted by the appellant / Society, counsel for the complainant placed reliance on an inland letter dated 5.10.1004, Annexure / 1K purported to be issued by Vrindavan Dham The Garden Estate wherein the same address of the sender has been recorded (seal imprint) which has been mentioned on the receipts disputed by the appellant / Society. Counsel submitted that the letter established that the receipts were genuine, but with an ulterior motive appellant / Society disowned them. Learned counsel for the appellant / Society submitted that learned Forum committed error in relying on the said inland letter since only a photocopy of the letter has been filed with the complaint, and this letter bears no signature of the author. Counsel challenged the reliability of this letter further on the ground that no original letter was made available to the counsel of Housing Society for perusal. The letter Annexure / 1K is a cyclostyled inland letter issued to members of Vrindavan Dham The Garden Estate informing that the development work of Vrindavan Dham was in progress and the members were asked to contact the office. The sender's address bears seal of Vrindavan Dham The Garden Estate. Learned counsel for the appellant / Society submitted that though learned Forum, in para 13 of the impugned order
- 9- observed that the aforesaid original inland letter was produced on 1.10.2014, but it is not on record. If the said letter, on the said date was perused by the Forum, the counsel for the Society ought to have given an opportunity to see it. It is true that the fact about the production of the original letter for the perusal of the Forum has not been recorded in the order sheet of the Forum, but merely on that ground the said letter cannot be ignored from consideration since the photocopy of the said letter has already been placed on record as Annexure / 1K along with the complaint. Learned counsel for the complainant placed before us the original inland letter and it has also been perused by the counsel of the appellant / Society. Though the contents of the cyclostyled letter bear no signature of the author, but at the place where the sender's address has been recorded, it bears signature purporting to be of S. N. Malpani, the Director of the appellant / Society. The complainant in his affidavit dated 23.8.2011 categorically stated that the said letter was received by him and it was signed by S. N. Malpani as sender, but S. N. Malpani or anybody on behalf of Society did not controvert that averment. S. N. Malpani though filed his affidavit on 17.1.2013, but did not refute the said averment. Learned District Forum after appreciating the aforesaid circumstances held that the receipts of depositing instalments were genuine and reliable and it stood established that complainant in total deposited Rs.82,531/- in the appellant / Society on different dates.
13. On appraisal of the evidence adduced by the complainant once again we find no fault in the finding recorded by the Forum, especially in view of the observations made in the Audit Report to the effect that appellant / Society was not working in fair and transparent manner and the Society used more than one receipt books in its transactions.
- 10 -
14. Besides above, the circumstances which appealed to us immensely in holding the disputed receipts genuine are firstly, had complainant forged or fabricated the receipts of deposits by printing, he could have very well adopted the proforma which was used by the appellant / Society for issuing receipts to him earlier, why he would have fabricated the receipts which were altogether different; secondly, there appeared no reason for complainant to have changed the number of the allotted plot No.34 to plot No.70 and thirdly, despite the accusation levelled against the complainant by the appellant / Society that he forged and fabricated the receipts ( a valuable security) for grabing a plot, the Society did not lodge FIR or a Criminal Case against him. It is also significant to note that Vrindavan Dham The Garden Estate is admittedly a project of appellant / Shanti Nagar Co-operative Housing Society.
15. We find no substance, in the objection raised by learned counsel for the appellant / Society challenging maintainability of the complaint being barred by limitation, in view of the law laid down by the Apex Court in Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC) wherein the Apex Court observed : -
"In our view, the complaint filed by the respondent who had patiently waited for 27 years with the hope that he will get the plot was rightly not dismissed by the District Forum as barred by limitation because he had a recurring cause for filing a complaint in the matter of non-delivery of possession of the plot."
16. Learned counsel for the appellant submitted that this Commission in case of Dilip Gupta vs. Shanti Nagar Grih Nirman Sahakari Sanstha Mydt., Indore, Appeal No.1338/2011 decided on 18.7.2013, under
- 11 -
similar circumstances disbelieved similar receipts filed by complainant on the ground that address recorded on receipts was different than the address of respondent / Society and held the complaint barred by limitation, therefore, the District Forum was not justified in taking a different / contrary view. We are unable to accept the submission made by learned counsel for the reason that the decision of this Commission in case of Dilip Gupta, supra did not decide any question of law. The Commission delivered its verdict on the facts and the evidence rendered in that case. The evidence adduced in the case of Dilip Gupta, supra is not before us, but in the instant case the complainant adduced some additional evidence which persuaded us to hold otherwise. In the case in hand, the complainant produced Auditors Report which suggested and reinforced our inference that the working of the appellant / Society was not fair and transparent and the Society used more than one receipt books which was improper. Such evidence does not seem to have been adduced in the case of Dilip Gupta, supra. This Commission cannot shut eyes from the evidence which is brought on record by the parties in the case. Each case has to be decided on its own facts and peculiar circumstances.
17. For the aforesaid reasons, we find that the appellant / Society committed deficiency in service in not delivering the plot to complainant despite receiving a huge sum from him on that count. The impugned order passed by the District Forum, in our opinion, does not suffer with any illegality or impropriety. It is therefore, affirmed and the appeal is accordingly dismissed.
(Justice Rakesh Saksena) (Smt. Neerja Singh)
PRESIDENT MEMBER