State Consumer Disputes Redressal Commission
M/S. Adams Lift And Escalator Pvt. Ltd. vs Arkodoy Co-Operative Housing Society ... on 17 October, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1169/2016 (Arisen out of Order Dated 04/11/2016 in Case No. Complaint Case No. CC/208/2016 of District Kolkata-II(Central)) 1. M/s. Adams Lift and Escalator Pvt. Ltd. 34, Aharipakur Road, Flat no. 4A/B, Front Block, Kolkata -700 019. ...........Appellant(s) Versus 1. Arkodoy Co-operative Housing Society Ltd. Represented by its Secretary, Mr. Debashis Ghosh, 13, Simla Road, P.S.- Maniktala, Kolkata- 700 006. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Souvik Das, Advocate For the Respondent: Mr. Niranjan Lahiri, Advocate Dated : 17 Oct 2017 Final Order / Judgement
Date of filing : 05.12.2016 Date of hearing : 21.09.2017 The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as " the Act " ) is at the behest of the Opposite Party to assail the order no. 15 dated 04.11.2016 passed by the Ld. District Consumer Disputes Redressal Forum,Kolkata, Unit - II ( in short, Ld. District Forum ) in consumer complaint no. 208/2016. By the impugned order the Ld. District Forum allowed the complaint lodged by the respondent U/s. 12 of the Act on contest with the direction upon the appellant to refund a sum of Rs.4,03,950/- to the respondent along with interest thereon @ 10% p.a. w.e.f. 19.04.2013 till compliance, to pay compensation of Rs. 50,000/- and litigation cost of Rs.10,000/- with a stipulation that failure to comply within one month, the appellant shall be liable to pay penal damages @ Rs. 5000/- p.m. The Respondent herein being Complainant lodged the complaint before the District Forum with an assertion that they placed an order for installation of lift at premises no. DA -24, P. S. - New Town, Kolkata - 700156, District - North 24-Parganas as per offer letter / quotation dated 18.04.2013 of the Opposite Party at a total cost of Rs.4,46,550/-. The complainant has already paid a total sum of Rs.4,03,950/-to the OP on different dates having only a sum of Rs.42,600/- payable by the complainant on completion of installation of lift for residential purposes for the members of the complainant Society for there family members. The complainant alleged that the OP could not fulfil their part of obligation in installation of lift. Then the complainant approached the Central Consumer Grievances Redressal Cell, Consumer Affairs Department of Govt of West Bengal wherein the OP appeared but no fruitful result arrived at for installation of lift on agreed terms of contract dated 18.04.2013. Hence, the respondent approached the District Forum with prayer for several reliefs, viz - (a) a direction upon the OP to install and complete the work or to refund the sum of Rs.4,03,950/- being the advance amount of the lift along with 18 % interest p.a., (b)compensation of Rs.1,00,000/-,(c) litigation cost of Rs.35,000/- etc. The Appellant being OP by filing a Written Version has stated that the complaint is not maintainable as the complainant is a registered Co-operative Society governed by the functions as laid down in the West Bengal Co -operative Societies Act, 2006 ( for short, Act, 2006 ) and as per provisions of Section 102 (4) of the said Act any Civil Court or any Consumer Disputes Redressal Forum has any jurisdiction to try any dispute which arises in Section 102 (1) of the Act, 2006. The OP has also stated that they collected several materials and transmitted the same to the complaint but due to severe labour problem the installation work has been delayed. Hence, as there is no deficiency on the part of them, the complaint should be dismissed.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint to the extent as indicated above. Challenging the said order, the OP has come up in this Commission with the present appeal.
Ld. Advocate for the appellant has submitted that as the disputes referred in the petition of complaint comes under the perview of Section 102 (1)(d) of the Act, 2006 and as per Section 102(4) of the said Act any consumer disputes redressal forum has no jurisdiction to try those disputes mentioned in Section 102(1), the Ld. District Forum should have dismissed the complaint on the ground that it had no jurisdiction to try the same. In support of his contention, Ld. Advocate of the appellant has placed several decisions of this Commission in (1) RP/16/2016 ( M/s. Adams Lift & Escalator Pvt. Ltd. -vs. - Urmimukhar Housing Co-operative Society Ltd. ; (2) MA/655/2016 in CC/108/2016 ( M/s. Adams Lift & Escalator Pvt. Ltd. -vs.- Krishna Ashirbad Co-operative Housing Society Ltd. ); (3) RP/115/2016 ( The General Manager, M/s. Adams Elevator Co. Ltd. -vs. - Internet Housing Co-operative Society Ltd. ) and (4) RP/104/2015 ( Anjan Dutta, Marketin g Manager, M/s. Adams Elevetor Co. Pvt. Ltd. -vs. - Shri Nirmal Kumar Das ). Ld. Advocate for the appellant has submitted that defying all those decisions of this Commission of the Ld. District Forum has passed the order which should be set aside.
Per contra, Ld. Advocate for the respondent has contended that the grievances of the Co-operative Society is not internal as under section 102 (1) of Act, 2006 which to be referable before the Registrar, but the against the outsider /third party, who have to provide the service to a particular Society upon payment and upon such breach of contract, said particular Co-operative Society has the right to file the complaint before the Forum or the Civil Suit as per provisions of law. Expanding his argument, Ld. Advocate for the respondent has emphasise that the petition of complaint has been filed by a particular Co-operative Society against the third person, who having the contract with a particular Co-operative Society for its deficiency of service, who having no concern with any internal dispute of the Co-operative Society. Accordingly, the Ld. District Forum was quite justified in passing the order impugned and the said order should not be disturbed. To fortify his submission, Ld. Advocate for the respondent has placed reliance of three decisions of Hon'ble Supreme Court reported in - (1) (2004) 1 SCC 305 ( Secretary, Thirumurugan Co-operative Agricultural Credit Society - vs. - M. Lalitha (Dead) through L.Rs and others). (2) (2003) (2) SCC 412 ( State of Karnataka -vs,- Vishwabharathi House Building Co-op Society and Ors. and (3) (2015) 10 SCC 277 ( Bhanushali Housing Co-operative Society Ltd. -vs.- Mangilal & Ors. .
I have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the parties.
It is not in dispute that the respondent being a registered co-operative Housing Society has entered into an agreement with the appellant on 19.04.2013 to install a 5 passenger lift at its G + 4 storied building lying and situated at premises no.DA-24, New Town, P. S. - New Town, Kolkata - 700 156 and the total price for the execution of the said work has been assessed at Rs. 4,46,550/-. It also remains undisputed that the respondent society has paid a total sum of Rs. 4,03,950/- out of total assessed sum of Rs. 4,46,950/- leaving Rs. 42,600/- only payable by the Society on satisfactory completion of installation of the said lift. In their written version, the appellant /OP admitted their deficiency to install the same as per terms of agreement. Therefore, it is palpably clear that the respondent Society being' Consumer' as defined in Section 2(1)(d) (ii) of the Act approached the appellant for hiring their service on payment for installation of lift in their complex but the appellant company has shown deficiency as a service provider within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.
In this backdrop the only point comes for consideration in this appeal as to whether a Consumer Forum has got jurisdiction to entertain the complaint in view of the embargo embodied in Section 102 (4) of Act,2006 read with Section 102 (1) (a) to (d).
For appreciation of the dispute, it would be worthwhile to reproduce the provisions of Section 102 (1) of Act, 2006 which provides -
" 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. It implies that the Civil Court or any Consumers' Dispute Redressal Forum shall have the jurisdiction to try such disputes which are not referable before the Registrar of the Society.
Section 4(25) of Act, 2006 defined 'dispute ' as thus -
" Dispute means any matter capable of being the subject of civil litigation, and includes a claim in respect of any sum payable to or by a Co-operative society ".
All the four decisions of Co-ordinate Bench of this Commission have arrived at a conclusion that the dispute regarding non-completion of the work of installation of lift in the building is an 'affair' of the Co-operative society and as such in view of Section 102(4) of Act, 2006 the Consumer Disputes Redressal Forum does not have jurisdiction to try the dispute.
In the case of Bhanushali Housing Co-operative society Ltd. ( Supra), the Hon'ble Apex Court has observed that the expression 'business' is of very wide import and means any activity that is continuous and systematic, perceptions about what would constitute business may vary from public to private Sector or from industrial financing to commercial banking sectors. What is certain is that any activity in order to constitute business must be systematic and continuous. A single transaction in the circumstances would not constitute business. In the case beforehand, the dispute raised by the respondent society related to the admitted deficiency on the part of the appellant company to install the lift in the housing complex of the Respondent society for its members as per terms of the agreement. Therefore, the nature of the dispute did not obviously touch the Constitution, management or affair of the Co-operative society.
Section 102 of Act, 2006 is almost identical to Section 64 of M.P. Co-operative societies Act and Section 90 of Tamilnadu Co-operative societies Act and the Hon 'ble Apex Court in the case of Bhanushali Housing Co-operative society Ltd. (Supra) has explained the matter to be referable before the Registrar of Co-operative society. In the case of Secretary, Thirumurugan Co-operative Agricultural Credit Society (Supra) the Hon'ble Supreme Court has expressed the view of wider additional jurisdiction of Forums , wherein it is stated that the Act should be interpreted broadly, positively and purposefully having regard to the additional /extended jurisdiction conferred U/s. 3 of the Act. In the case of State of Karnataka ( Supra) the Hon 'ble Supreme Court while discussing the object behind the Act has observed in paragraph 39 thus - " the right of the parties have adequately been safeguarded in the Act inasmuch as although it provides alternative system of consumer jurisdiction on summary trial, they are required to arrive at a conclusion based on reason. Assignment of reasons excludes or at any rate minimizes the chances of arbitrariness and higher forum created under the Act can test the correctness thereof".
So, I am in agreement with the view of the Ld. District Forum that the grievance of particular Co-operative society against third party is not internal matter of Co-operative society as under Section 102 (1) of Act, 2006. The outsider /third person, who has the contract with particular Co-operative society and upon such breach of contract, said particular Co-operative society has the right to lodge complaint before a Forum as per provisions of the Act .
In fact, the dispute is not related among the members of the society or its membership dispute or the dispute between two different Co-operative societies or between the Co-operative and its board or any internal matter of the Co-operative society or its business. Therefore, as it is not the internal dispute of the Co-operative society, as defined in Section 102(1) of Act,2006, a complaint before the Consumer Forum, filed by a particular Co-operative society against the third person is amenable before a Consumer Forum.
After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties I share the view of the Ld . District Forum that the respondent /complainant is a 'Consumer' and the instant 'dispute ' is a consumer dispute within the purview of the Act.
However, I am not in agreement with the Ld. District Forum for imposition for penal damages of Rs.5000/- per month. In a decision reported in (2015) 1 SCC 429 ( General Motors (India) Pvt. Ltd. -vs. - Ashok Ramnik Lal Tolat & Anr. ) the question came for consideration before the Hon'ble Apex Court whether in the absence of any prayer made in the complaint and without evidence of any loss suffered, the award of punitive damages was permissible ? Answering the question, the Hon'ble Court has observed that punitive/penal damages are against a conscious wrongdoing unrelated to the actual loss suffered and such a claim has to be specially pleaded. When there is no averment in the petition of complaint about the suffering of penal damages by the other consumers, the appellant was not aware that any such claim is to be made by it. Therefore, since fair procedure is the hallmark of every legal proceeding, the Ld. District Forum should have restrained itself from passing any order on account of penal damages and as such the said part of the order is liable to be set aside.
In view of the above, I do not find any merit in the appeal excepting the imposition of penal damages of Rs. 5000/- per month and as such besides that part of the order, all other directions given by the Ld. District Forum are maintained.
With the above observations, the instant appeal stands disposed of on contest . However, there will be no order as to costs in this appeal The Registrar of this Commission is directed to send this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit - II for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER