State Consumer Disputes Redressal Commission
Narwana Co-Operative Group Housing ... vs Manoj Kumar/Rajinder Kumar on 28 May, 2012
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 28.5.2012 First Appeal 593/2009 (Arising out of the order dated 27.5.2009 passed by the District Forum(East), Saini Enclave, Delhi in complaint case No. 548/2002 Narwana Co-Operative Group Housing Society Ltd., 89, I.P. Extension, Patparganj, Delhi-92 through its President .........Appellant VS 1. Shri Manoj Kumar/Rajinder Kumar, R/o C-112, Narwana Co-Operative Group Housing Society, 89, I.P. Extension, Patparganj, Delhi-92 ..Respondent CORAM Justice Barkat Ali Zaidi, President V.K.Gupta, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
V.K.GUPTA, MEMBER
1. This appeal by the OP is directed against the order dated 27.5.2009 CDRF(East), Saini Enclave, Delhi whereby complaint of the complainant was allowed and a direction was issued to the OP to refund the share money together with interest @ 6% p.a. and also quashed the bills.
2. In nutshell the facts are that the complainant (hereinafter referred to as respondent) has purchased the flat No.C-112, through the General Power of Attorney Delhi, registered with Sub-Registrar, Delhi on 31.1.1995. The Opposite party (hereinafter referred to as respondent) obtained a membership of Delhi Housing Finance Co. to provide the loan to its allottees of flats and stood as guarantor on behalf of the allottees. The loan taken by Shri K. D. Gupta, the original allottee of the aforesaid flat, was duly repaid by the respondent, the holder of the General Power of Attorney and paid Rs.65,548/- as the outstanding amount of the loan on 18.3.1995 vide receipt No.2574. Against the repayment of the aforesaid loan, the share money between 8,000/- to 9,000/- was payable by the appellant to Shri K.D. Gupta, the original allottee of the flat, but the appellant has not paid the same nor it was deposited in the account of the original allottee. A clarification in this regard was sought on 27.12.2000 wherein in addition to the refund of the share money and further a clarification regarding the generator was also sought but during this no reply was given and further a letter dated 17.9.2001 was sent to the appellant, but nothing was done. However for the quarter ending 30.6.2002, a payment of Rs.9310/- was made alleging that the society is not providing proper services. Thereafter a case was filed praying for direction to the appellant to refund the share money with interest and quash the demand through the bills raised for services as well as for generator in addition to cost and compensation.
3. The appellant has filed a written statement and denied the allegation and it was very vehemently contended that the jurisdiction of the District Forum is barred under the provisions of the Delhi Co-operative Society Act, 2003 and it was only the Registrar of the Co-operative Society, Delhi who has jurisdiction to entertain any dispute inter-se the Members of the Society and the Management Committee of the concerned Co-operative Society, therefore, the complaint is not maintainable. The complaint is also not maintainable on account of the fact that complainant is not the owner of the flat in question as per record maintained by either the appellant or the Registrar of the Society and the respondent could not have demanded the share money which has been paid to the original allottee only on the basis of the record. Further it is alleged that Shri K.D. Gupta is still the original allottee of the flat in records. Neither the original allottee Shri K.D.Gupta nor the complainant submitted any document regarding the sale and purchase of the flat in the office of appellant or Registrar Co-operative Society as per the provisions of Section 79 of the Delhi Co-operative Society Act, 2003. As a matter of fact one Shri Manoj Kumar Garg, who is authorized representative of the complainant to contest the complaint, has been residing in the flat in dispute along with his family having voter I Card No. DC VI 625995 and his wife Mrs Suman Garg. The names of both husband and wife appear at Serial No.346 & 347 of Electoral List, 2007. Shri Manoj Garg is actually liable to pay the service charges amounting to Rs.1,12,301/- but it appears that signatures of complainant Shri Rajinder Kumar has been manipulated and for this reason the complaint is liable to be dismissed. The complainant never resided in the Society, hence the question of availing any services does not arise. The letter dated 27.12.2000, which was given by the complainant is admitted. However, it is denied by the appellant for engagement of plumber and electrician etc. to check the electric lines of the individual flat. The generator is auto start and there are 250 flats in the society of the appellant, out of which 240 flats are occupied, but none has made any complaint with a regard to the generator. The complainant has been enjoying the services, but not making the payment of service charges, as such a huge amount of Rs.1,12,301/- has been accumulated against the flat in question. The appellant has been providing the requisite services to all its residents with entire satisfaction and there is not any complaint against the society in any manner what so ever it may be. As such, there is no deficiency in service by the appellant.
4. The Ld. District Forum (East) vide order dated 27.5.2009 has allowed the complaint and directed the refund of the share money to the complainant along with interest @ 6% p.a. and also quashed the bills.
5. Being aggrieved by the aforesaid order dated 27.5.2009, the appellant preferred this appeal.
We have heard Ld. Counsel for the Appellant and respondent in person.
6. The preliminary legal objection has been raised by the Ld. Counsel for the Appellant that the jurisdiction of the Court, Tribunal or authority is barred by Section 83 of the Delhi Co-operative Society Act, 2003 and the Ld. District Forum has not recorded any finding of this legal bar, therefore, the complaint is liable to be dismissed. On the other hand, the complainant present in person has advanced an argument that the District Forum has a jurisdiction to decide the complaint in view of the fact that he is a consumer. Section 83(1) of Delhi Co-operative Society Act, 2003 is reproduced below:-
Notwithstanding anything contained in any law relating to rents or any other corresponding law for the time being in force in force in Delhi, any dispute relating to the occupation or recovery of possession of any plot, dwelling unit or flat in any co-operative housing society, the recovery of dues payable by a member of sub-allottee to a co-operative housing society or vice-versa arising on or after the date of commencement of this Act and suits or proceedings pending in any court after such commencement, shall be deemed to be a dispute within the meaning of Section 70 of this Act and shall be decided in accordance with the provisions of this Act, and no court or other Tribunal or authority shall have jurisdiction to entertain and decide any proceedings in respect of such disputes.
7. On a plain reading of the aforesaid section it is apparent that if any dispute arises which are mentioned in Section 70 of the Delhi Co-operative Society Act, 2003, no Court or other Tribunal or authority shall have jurisdiction to entertain and decide the proceedings in respect of such a dispute. The aforesaid section further lays down that if there is any dispute with regard to the recovery of dues payable by a Member of sub-allottee to the Society or vice-versa, it shall be decided in accordance with the provisions of this Act and as such a dispute shall be deemed to be decided within the manner of the Section 70 of this Act. It is admitted by both the parties that the appellant is a registered Co-operative Society under the Delhi Co-operative Society Act, 2003 and the complainant claims himself to be a Member by virtue of holder of Power of Attorney in as much as the flat in question was sold to the complainant by the original allottee.
Section 70 sub-section 2 of this Act lays down that if any question arises with regard to the dispute, as herein above mentioned in Section 83, it shall be referred to the Registrar under Section 70(2) and the decision thereon shall be final. Section 71 of the Delhi Co-operative Society Act further lays down that the Registrar on the receipt of reference of dispute under Section 70 of this Act, may decide the dispute himself or refer it for the disposal of the Registration Counsel.
8. As stated earlier Section 83 of the Delhi Co-operative Society Act, 2003 very clearly and categorically places a bar on courts tribunal or authority to decide or settle any dispute between the member and the society. This has not been considered at all by the District Forum.
9. The respondent has contended that a finding may be obtained from the District Forum on this legal issue, therefore, the case may be remanded back to the District Forum. We do not agree with the contention of the complainant in this regard. The matter is apparently a legal issue, which we are deciding at this stage. It may be pointed out that the complaint was filed in the year 2002 and it is near about a decade that it was decided at present, therefore, no fruitful purpose will be served to remand this case to the District Forum.
10. Under these circumstances, the appeal is allowed and the order dated 27.5.2009 is hereby set aside, consequently the complaint No. 548/2002 filed by the respondent shall stand dismissed.
11. FDR, if any, deposited by the appellant be released after completing due formalities and filed be consigned to the record room.
(JUSTICE BARKAT ALI ZAIDI) PRESIDENT (V.K.GUPTA) MEMBER Arya