State Consumer Disputes Redressal Commission
Azad Hind Cghs Ltd. vs Anita Mittal on 13 July, 2022
FA - 751/2010 AZAD HIND CGHS LTD. VS ANITA MITTAL DOD: 13.07.2022
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 01.10.2010
Date of hearing: 09.05.2022
Date of Decision: 13.07.2022
FIRST APPEAL NO.751/2010
IN THE MATTER OF
AZAD HIND CGHS LTD.
Plot No.15, Sector- 9,
Dwarka, Papankalan,
New Delhi - 110049
(Through: Anjan Sinha, Advocate)
...APPELLANT
VERSUS
ANITA MITTAL
11/390, Sunder Vihar,
New Delhi.
(Through: Sumit Baluja, Advocate)
...RESPONDENT
DISMISSED PAGE 1 OF 8
FA - 751/2010 AZAD HIND CGHS LTD. VS ANITA MITTAL DOD: 13.07.2022
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. RAJAN SHARMA, MEMBER (JUDICIAL)
1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
Present: None for parties.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Forum record are:
"The complainant applied for membership of the Opposite Party on 20.04.95 and deposited Rs.100/- as share money and Rs.10/- as admission fee alongwith other charges as asked by the OP amounting to Rs.250/-. The OP issued a receipt 1056 dated 20.4.1995. The complainant also deposited Rs.80,000/- with the OP towards the cost of the residential flat and OP also issued a receipt No. 1055 dated 20.04.95. On many occasions, the complainant requested the official of the society to issue share certificate and also to allot a flat but no step has been taken by the OP with regard to the issue of share certificate and the allotment of the flat. She also made a representation to the Registrar, Co-operative Societies, Parliament Street, New Delhi. There is sheer deficiency in the service on part of the OP as well as' unfair trade practice. The complainant claims to issue the share certificate alongwith allotment of a flat or in the alternate to refund Rs.80,360/- together with interest @ 18% pa."
2. The District Forum after taking into consideration the material available on record passed the judgment dated 18.02.2010, whereby it held as under:
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"The complainant has proved her case upto the hilt and she is entitled to the refund of Rs.80,3601/-. This amount is deposited by the complainant in 1995 and OP has used this huge amount of the complainant for about 15 years. Ultimately, the complainant was deprived of use of this money for 15 years, therefore, the OP is liable to pay interest @ 18% p.a. from the date of the deposit to the date of the realisation. In the similar and identical case of the Hon'ble National Consumer' Disputes Redressal Commission in KEB Employees Co-operative Society, Limited Vs. V. Munivenkatappa III(2006) CPJ 259 (NC) has directed the OP i.e. co-operative society to pay the interest@ 18% p.a. The complainant claims Rs.50,000/- as compensation and Rs.10,000/- as litigation charges. We have already recorded a finding that the complainant was deprived of use of this money more than Rs.80,000/- for a period of 15 days, therefore, she has mental agony, harassment and sheer suffering.
In this regard, the observation of the Hon'ble Supreme Court made in Ghaziabad Development Authority v. Balbir Singh (2004) 5 SCC 65 are quote worthy and are as under:
"The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in DISMISSED PAGE 3 OF 8 FA - 751/2010 AZAD HIND CGHS LTD. VS ANITA MITTAL DOD: 13.07.2022 public office by the officers. Such compensation is for vindicating the strength of law."
Taking into consideration the entire facts and circumstances, we quantify to the amount of the compensation as Rs.25,000/- inclusive of the litigation charges.
We hereby direct:-
1) The OP shall pay Rs.80,360/- to the complainant together with interest @ 18% p.a. from the date of the deposit i.e. 20.4.1995 to the date of the realisation.
2) The OP shall also pay Rs.25,000/- as compensation for mental agony, harassment and sheer suffering inclusive of the litigation charges."
3. Aggrieved by the judgment of the District Commission, the Appellant has preferred the present appeal contending that the District commission failed to consider that dispute was covered under Section 60 of the Delhi Co-opeartive Act. The counsel for the appellant further submitted that the amount was already refunded to the respondent by Cheque no. 377685 dated 22.08.1996 and the complaint was barred by limitation.
4. We have heard the Counsel for the parties and perused the material on record.
5. The first question for consideration before us is whether Respondent falls under the category under the Consumer protection Act, 1986. It is clear from the receipt no. 1055 dated 20.04.1995 issued by the appellant that the respondent duly paid Rs. 80,000/- for the residential flat, therefore, the respondent is a consumer under the Consumer Protection Act, 1986. The appellant further submitted that the respondent resigned from the DISMISSED PAGE 4 OF 8 FA - 751/2010 AZAD HIND CGHS LTD. VS ANITA MITTAL DOD: 13.07.2022 membership of the appellant and the entire amount was refunded to the respondent. However, we fail to find any document which shows the resignation letter from the respondent or any document showing the debit of the refund amount to the respondent's account. Therefore, the contention of the appellant that the respondent ceases to be a consumer on resignation is without any merit.
6. The next question for consideration before us is whether the complaint is barred by limitation as per Section 24A of the Consumer Protection Act, 1986. To deal with the aforesaid contention, it is imperative to refer to Section 24A of the Consumer Protection Act, 1986, wherein it is provided as under:-
"24A. Limitation period.-
(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint as this such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."
7. Analysis of Section 24A of the Consumer Protection Act, 1986 leads us to the conclusion that the District Commission is empowered to admit a complaint if it is filed within a period of 2 DISMISSED PAGE 5 OF 8 FA - 751/2010 AZAD HIND CGHS LTD. VS ANITA MITTAL DOD: 13.07.2022 years from the date on which cause of action has arisen. We further deem it appropriate to refer to the case of Mehnga Singh Khera and Ors. Vs. Unitech Ltd. reported in I (2020) CPJ 93 (NC), wherein the Hon'ble National Commission has held as under:
"It is a settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts."
8. Applying the above settled law, it is clear that the respondent is within their right to file the complaint before the District Commission as the handing over of possession of the said flat is still pending and has not seen the light of the day; giving the complainant a recurrent cause of action to file the said complaint.
9. The last question for consideration before us is whether Section 60 of Delhi Co-Opeartive Act bars the jurisdiction of the consumer commissions. To deal with this issue, we deem it appropriate to refer to Emaar MGF Land Limited vs. Aftab Singh reported at I (2019) CPJ 5 (SC), wherein the Apex court has held as under:-
"55. We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration."
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10. The Hon'ble Apex Court has put to rest the controversy relating to the existence of arbitration clauses in the disputes as is evident from the relevant paragraph of Emaar MGF Land Limited (supra). In the present case also, the respondent opted for the special remedies provided under the Consumer Protection Act, 1986, which is in addition to and not in derogation of the provisions of any other law for the time being in force. Hence, this commission is authorised to adjudicate the case and the existence of Section 60 of Delhi Co-operative Act does not affect the jurisdiction of District commission.
11. It is noted that the Respondent has duly filed an affidavit before this commission stating that the refund of Rs.80,360/- was never received by her and the said fact was also not denied by the appellant. Therefore, there is no merit in the argument of the appellant that the amount was already refunded by it to the respondent.
12. In these circumstances, we fail to find any cause or reasons to reverse the findings of the District Forum. Consequently, we uphold the judgment dated 18.02.2010, passed by the District Consumer Disputes Redressal Forum II, New Delhi- 110016.
13. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
14. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
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15. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (RAJAN SHARMA) MEMBER (JUDICIAL) Pronounced On:
13.07.2022 DISMISSED PAGE 8 OF 8