State Consumer Disputes Redressal Commission
Philips Co-Operative Group Housing ... vs D.S. Kundu on 26 November, 2024
FA/100/2020 D.O.D.: 26.11.2024
PHILIPS COOPERATIVE GROUP HOUSING SOCIETY (REGD NO.1024) VS MR.D.S. KUNDU
IN THE DELHI STATE CONSUMER DISPUTESREDRESSAL
COMMISSION
Date of Institution: 20.07.2020
Date of hearing: 20.09.2024
Date of Decision: 26.11.2024
FIRST APPEAL NO.-100/2020
IN THE MATTER OF
PHILIPS COOPERATIVE GROUP HOUSING SOCIETY LTD.
REGD. NO.1024
PLOT NO.3, SECTOR 23, DWARKA
NEW DELHI - 110077
(Through: Dr. Bipin K Dwivedi, Advocate)
...Appellant
VERSUS
MR. D.S. KUNDU
R/O C-503, SECTOR 23, PLOT NO.3
PHILIPS TOWER,
NEW DELHI-110075
.......Respondent in person
ALLOWED PAGE 1 OF 16
FA/100/2020 D.O.D.: 26.11.2024
PHILIPS COOPERATIVE GROUP HOUSING SOCIETY (REGD NO.1024) VS MR.D.S. KUNDU
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Mr. Mohit Kaushik, proxy counsel for Dr. Bipin K
Dwivedi, Advocate, Counsel for the Appellant.
None for the Respondent.
PER :HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are as under:
"The Complainants herein is the member of Group Housing Society Namely, Philips CGHS Limited (OP). The OP has launched a project namely Philips Towers sometime in the year 1994 and started construction of this tower in December 1995.
OP also offered to construct and allot additional room car parking space in the basement of the building for its members. The additional room/car parking were only 50 against 120 members of the OP. The OP has fixed a cost of said additional room/car parking in the basement of the building at Rs. 50,000/-. The Complainant also booked an additional room /car parking and made the payment of Rs. 50,000/- against the demand from the OP in December 1998. The Complainant alleges in the complaint before us that despite lapse of more than 20 years since the payment was made to the OP for this basement car parking/ additional room, the OP has not allotted the same to the Complainant.
The OP completed the building in March 2001 and the flats were allotted to its 120 members through draw of lots but the allotment of additional room /car parking space was kept in abeyance. The Complainant was allotted flat no C-503 which ALLOWED PAGE 2 OF 16 FA/100/2020 D.O.D.: 26.11.2024 PHILIPS COOPERATIVE GROUP HOUSING SOCIETY (REGD NO.1024) VS MR.D.S. KUNDU was also confirmed by the land owing agency Delhi Development Authority vide its letter dated 06.12.2004. It is important to mention here that vide certificate of allotment issued by the OP, which was in accordance with the confirmation by DDA, the OP has allotted flat of 'A' Category with 145.72 sq. mtrs bearing flat no. 503 in Block C on filth floor with specific earmarked car parking space for one car in open area". The car parking space was different from the additional car parking space in the additional room for which the Complainant has made payments in the month of December 1998.
On 01.04.2013, OP has issued a letter to all its member including the Complainant whereby OP has admitted that at least till the date of the letter, completion certificate of the building was also not obtained by the OP particularly for the reason that allotment of additional room/ car parking space in the basement would require structural changes which may not be possible immediately. It is to be noted here that the additional room. Parking in basement has already been constructed by the OP, but the OP has not allotted the same to its members.
Vide the same letter, OP has offered adjustment of the payment of Rs. 50,000/- against the dues of the members on account of their future maintenance charges. Accordingly, the OP has raised a demand of Rs.44,907/- from the Complainant after adjustment the said amount charged on account of additional room/ car parking in basement from the Complainant. In the complaint before this Forum the Complainant has sought a direction to the OP to either allot the additional room /car parking in the basement to the Complainant or to direct the OP to refund the amount charged from the Complainant in the year 1998 with interest @ 24% P.A. from the date of payment till actual payment made and also has sought compensation and litigation expenses.."
ALLOWED PAGE 3 OF 16 FA/100/2020 D.O.D.: 26.11.2024
PHILIPS COOPERATIVE GROUP HOUSING SOCIETY (REGD NO.1024) VS MR.D.S. KUNDU
2. The District Commission after taking into consideration the material available on record passed the order dated 25.01.2019, whereby it held as under:
"We issued notice to the OP who has filed its reply. It is to be noted here that after filing of the reply OP has decided not to appear before this Forum. Hence, we have closed the right to OP to file its evidence and proceeded accordingly.
In the reply the OP has raised preliminary objection that the complaint is time barred. In support of this objection OP has stated that allotment of flats has done as per rules in 2001 and possession of the flat were initiated to its members in 2003. The Complainant herein took the possession of his flat sometimes in 2006 however, the Complainant filed this complaint only in the year 2014 which is more than 8 years after he took the possession. The OP has also claimed that the additional room /car parking in the basement of the building could not be constructed in view of the fact that such construction of additional room/ car parking in the basement of the building were not permissible under municipal by- laws. The OP has also referred to the order dated 27/12/2013 passed by my predecessor Sh. S.K. Sarvaria lo the matter of Harish Ramchandran V/s Philips CGHS [CC 182/2012]. In Harish Ramchandran (supra) case my predecessor, has dismissed the complaint on the ground that the complaint is time barred as the Complainant in that case got allotment in the year 2003, and the cause of action also arose in the year 2003. But the complaint was filed before this Forum in 2012, after a lapse of more than 9 years. Hence, the complaint was considered to be time barred.
With due respect to my predecessor I am not agreeable to the reasoning giving in the said Harish Ramchandran (supra) order. Further the order in the Harish Ramchandran case (supra) also is not binding on us. On the issue of limitation ALLOWED PAGE 4 OF 16 FA/100/2020 D.O.D.: 26.11.2024 PHILIPS COOPERATIVE GROUP HOUSING SOCIETY (REGD NO.1024) VS MR.D.S. KUNDU the leading judgements of Hon'ble Supreme Court and Hon'ble National Commission gives the different interpretation than the one which was followed by my predecessor in Harish Ramchandran (supra) case.
In the present matter it is indeed a fact that the flat was allotted sometime in 2003 but the Complainant has filed the complaint in the year 2012. But it is also a fact that the OP has neither allotted the additional room/ car parking space in the basement of the building to the Complainant in terms of its resolution of 1998 nor has refunded the amount so collected with interest. Hence, we are of the opinion that OP has been at fault in not allotting additional room/ car parking in basement or to offer to refund the amount so collected with interest.
In this context we would like to refer to the judgement of Hon'ble Supreme Court in the matter of National Insurance Company Ltd. V/s Hindustan safety works [(2017) 5 SCC 776] in which Hon'ble Supreme Court has held that if the delay in filing the complaint can be attributed to the inaction of OP, then consumer fora must take pragmatic view and give advantage to the Complainant. Hon'ble Supreme Court has held in National Insurance Company Ltd (supra) as under:
"18. In our opinion, in a dispute concerning a consumer, it is necessary for the courts to take pragmatic view of the rights of the consumer principally since it is the consumer who is places at a disadvantage vis a-vis the supplier of services or goods. It is to overcome this disadvantage that the beneficent legislation in this form of the Consumer Protection Act, 1986 was enacted by Parliament. The provision of limitation in the Act cannot be strictly construed to disadvantage a consumer in a case where a supplier of goods or services itself is instrumental in causing a delay in the settlement of the consumer's claim. That being so, we have no hesitation in coming to the conclusion that the National Commission was ALLOWED PAGE 5 OF 16 FA/100/2020 D.O.D.: 26.11.2024 PHILIPS COOPERATIVE GROUP HOUSING SOCIETY (REGD NO.1024) VS MR.D.S. KUNDU quite right in rejecting the contention of National Insurance in this regard."
In the case in hand the OP has constructed 50 additional room/ car parking in the basement of the building in accordance with its resolution of 1998 and has also collected money from its members @ 50,000/- for each additional room/car parking in basement. This additional room/ car parking is in addition to the surface car parking in accordance with the certificate of allotment. The OP has also taken a stand that the allotment of additional room/ car parking in the basement of the building is against the municipal by-laws. It is however not clear that how the allotment of additional room/ car parking in the basement of the building is against the municipal by-laws, when the additional room/ car parking has already been constructed in the basement of the building by OP. OP has not placed on record any document to indicate that how allotment of additional room/ car parking in basement of the building is against the municipal by-laws.
It is also a fact that on 01/04/2013, OP has offered to adjust the said amount with future maintenance charges. The OP has not considered the fact that the amount of Rs. 50,000/- is with the OP without any authorization since 1998 and it was earning interest on the said amount. During arguments, it is contended by the Complainant that the basement parking/ additional room has been constructed by the OP but the OP has not allotted the same to the Complainant till date. It appears that after adjusting the said amount with future maintenance charges, OP is trying to get the number of claim of its members in additional room/ car parking in basement reduced and to allot the additional room/ car parking to members who may offer higher prices.
It is to be noted that the letter dated 01.04.2013 by OP also clearly indicates that the OP has not obtained completion certificate from the concerned authorities even on ALLOWED PAGE 6 OF 16 FA/100/2020 D.O.D.: 26.11.2024 PHILIPS COOPERATIVE GROUP HOUSING SOCIETY (REGD NO.1024) VS MR.D.S. KUNDU 01.04.2013, even after almost more than 10 years since the construction of flats were completed and possession were handed over to the flat owners. Allowing its members to take possession of the flats without obtaining completion certificate is also against the law, but as the same is not the subject matter of this complaint, we are not dealing with this issue.
Hence, while holding that this complaint is maintainable and is not time barred, we also held that OP has adopted unfair trade practices by not allotting specific additional room/ car parking in the basement of the building despite the fact that the additional room/ car parking has already been constructed by the OP. We also hold OP liable for deficiency of service on account of non-allotment of additional room/ car parking in the basement of the building to the Complainant till date. Hence, we are direct the OP as under:
(1) OP is directed to allot and deliver possession of one additional room/car parking in the basement of the building in accordance with its resolution 1998 to the Complainant within a period of four weeks from the date of this order.
(2) If OP fails to allot and deliver possession of the additional room/ car parking in the basement of the building within the stipulated time, it shall be liable to pay interest on the sum of Rs. 50,000/- @ 12% PA from the date of this order till actual allotment and delivering possession of additional room/ car parking in the basement of the building is not done by the OP.
(3) For the deficiency of service and for adopting unfair trade practice, the OP is directed to pay a sum of Rs. 1,50,000/- as compensation to the Complainant within a period of four weeks from the date of this order It is clarified that if the OP does not make the payment within the stipulated time frame the OP shall be liable to pay the ALLOWED PAGE 7 OF 16 FA/100/2020 D.O.D.: 26.11.2024 PHILIPS COOPERATIVE GROUP HOUSING SOCIETY (REGD NO.1024) VS MR.D.S. KUNDU interest @ 18% PA on the entire amount payable to the Complainant on the expiry of stipulated timeframe, till actual payment is made.
Ordered accordingly. Office is directed to send one true copy of this order to the parties by registered/ speed post in accordance with the rules. This final order be sent to server (www.confonet.nic.in). Thereafter, file be consigned to record."
2. Aggrieved by the aforesaid order of the District Commission, the Appellant has preferred the present appeal, submitting that the absence of the Appellant was neither willful nor intentional as renovation work was going at the District Commission and hearing was not taking place, moreover, the counsel who was appearing failed to keep tracks of the case and no notice was received from the District Commission. It is further submitted that seat of the District Commission was shifted from Sheikh Sarai to Dwarka and no notice was received for further fixing of the case. Secondly, the Appellant has submitted that the Consumer Commissions lack jurisdiction to adjudicate upon cases of Cooperative Group Housing Societies therefore the order of the District Commission is not tenable in the eyes of law. Thirdly, it is submitted that between same parties and on the same facts award dated 31.05.2022 has been passed in Arbitration case no. 175/2016 and said award dated 31.05.2022 in the matter of D.S.
3. Kundu v. Phillips Cooperative Group Housing Society has been assailed before Delhi Cooperative Tribunal as Appeal no. 27/2022. Pressing the aforesaid contentions, the Appellant submitted that the impugned order be set aside.
4. During the course of proceedings, the Respondent was required to file reply to the present Appeal. Despite giving multiple opportunities, the Respondent did not file the reply. Vide order dated 25.09.2023, the ALLOWED PAGE 8 OF 16 FA/100/2020 D.O.D.: 26.11.2024 PHILIPS COOPERATIVE GROUP HOUSING SOCIETY (REGD NO.1024) VS MR.D.S. KUNDU Respondent was given last and final opportunity to file the reply, however, the Respondent failed to file the reply. Consequently, the right of the Respondent to file the Appeal stood closed.
5. We have perused the material available on record and heard the counsel for the Appellant. Due consideration has been given to the written submissions filed by the parties.
6. A perusal of the contents of the appeal makes it clear that the case in hand relates to dispute between the Cooperative Society and its members. Therefore, the first question that falls for our consideration is whether the Consumer Commissions have jurisdiction to adjudicate upon disputes between Cooperative Group Housing Societies and its members.
7. In order to resolve the aforesaid issue, we deem it appropriate to refer to the decision of the Hon'ble National Commission in Revision Petition No. 3005 Of 2008 titled "Hanuman Sahakari Pani Pruvatha Sanstha Vs Ramchandra Bapuso And Ors", wherein it was observed as under:
"Admittedly, complainants are members of opposite party-Society which was formed for supply of water to complainant's land and for that purpose, loan was obtained by complainants by mortgaging their land. Opposite Party specifically pleaded that consumer fora has no jurisdiction to entertain complaints regarding disputes between Members of the Society and for redressal of their grievances, they could have approached to Cooperative Court under Maharashtra Co-operative Societies Act. Learned District Forum observed that there was relationship of consumer and service provider between complainants and opposite party-Society. This observation is not correct as it was a clear dispute between complainants and opposite party(s) touching business of the Society. Learned Karnataka State Commission in III (1994) CPJ 500- The Kulve Gram Seva Shahakari Sangha Ltd. Vs. Mahabaleshwar Ramakrishna Bhat; has held that as per ALLOWED PAGE 9 OF 16 FA/100/2020 D.O.D.: 26.11.2024 PHILIPS COOPERATIVE GROUP HOUSING SOCIETY (REGD NO.1024) VS MR.D.S. KUNDU Section 70 of Karnataka Cooperative Societies Act, dispute was to be settled only by Registrar of the Cooperative Societies and complaint before Consumer Fora was not maintainable. Similar view was expressed by State Commission, Maharashtra, Mumbai, in 1998 (1) CPR 630- Indrapuri Nagari Sahakari Pat Sanstha Ltd. & Ors. Vs. Shri Suryakant Ramchandra Gomase; in which it was observed that Consumer Fora was barred from entertaining any dispute between the Members and Society. This Commission in 1-1993(1) CPR 174- Dilip Bapat & Anr. Vs. Panchvati Co-op. Housing Society Ltd.; held that complainants being Members of Cooperative Housing Society cannot raise dispute regarding payment of escalation in cost of construction before Consumer Fora and right forum for Members of Society to agitate their grievances is Cooperative Court under Co-operative Societies Act.
In the light of aforesaid judgments, it becomes clear that dispute among complainants and their Society regarding loss due to non-supply of water for irrigation of land could have been decided only under the Cooperative Societies Act and Consumer Fora has no jurisdiction to entertain the complaint and in such circumstances, as Fora below have exercised jurisdiction not vested in it by law, this Commission has power to set aside impugned order under revisional jurisdiction."
8. We further deem it appropriate to refer to the decision of the Hon'ble National Commission in Dilip Bapat Vs Panchavati Cooperative Housing Society Ltd I (1993) CPJ 68 NC , wherein it was held as under:
4..............if the office bearers of the Co-operative Society are not complying with the directions of the Deputy Registrar, Co-operative Societies, the complainants can make complaint to the said officer.
In fact, the complainants have produced letter to show that the Deputy Registrar, Co-operative Societies has issued show-cause notice to the Managing Committee ALLOWED PAGE 10 OF 16 FA/100/2020 D.O.D.: 26.11.2024 PHILIPS COOPERATIVE GROUP HOUSING SOCIETY (REGD NO.1024) VS MR.D.S. KUNDU of the Society about the alleged mismanagement and misappropriation. The complainants themselves have addressed a letter dated 3rd September, 1992 addressed to this Commission to show that the allegations contained in the show-cause notice issued to the Managing Committee of the Society have been proved and the Managing Committee has been dismissed. We have not been able to understand that when the complainants are approaching the Deputy Registrar, Co-operative Societies for taking action against the Managing Committee of the Society, how they can have second recourse to this Commission about the mismanagement of the affairs of the Society by the Managing Committee. In any case this Commission is not concerned with the alleged activities of the Managing Committee.
Lastly, it was argued that the directions issued by the State Commission are not of binding nature. We are of the opinion that that directions had been issued by the State Commission just to help the complainants otherwise under Section 14(1) of the Consumer Protection Act no such directions can be issued. We do no want to dwell upon this matter as the Society has not come before us in appeal.
5. WE have carefully gone through the documents filed in the appeal and we are of the opinion that the complainants are not entitled to any further relief.
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PHILIPS COOPERATIVE GROUP HOUSING SOCIETY (REGD NO.1024) VS MR.D.S. KUNDU
6. TRULY speaking it is not a case of consumer dispute under the Consumer Protection Act. The right forum for a member of a Co-operative Society to agitate his grievance is the Co-operative Court under the Maharashtra Co-operative Societies Act.
Accordingly, the appeal fails and the same is dismissed. In the circumstances of the case, we make no order as to costs. Appeal dismissed."
9. Additionally, we deem it appropriate to refer to the section 132(1)(a) of Delhi Cooperative Societies Act,2003, which provides as under :
"Bar of jurisdiction of civil or revenue courts.
132. (1) Save as provided in this Act, no civil or revenue court shall have any jurisdiction in respect of -
(a) the registration of a co-operative society or its bye- laws or of an amendment of a bye-law;
(b) the removal of the committee;
(c) any dispute required under section 70 to be referred to the Registrar; and
(d) any matter concerning the winding up and the dissolution of a co-operative society. (2) While a co-operative society is being wound up, no suit or other legal proceedings relating to the business of such co-operative society shall be proceeded with or instituted against the liquidator as such or against the co- operative society or any member thereof, except by leave of the Registrar and subject to such terms as he may impose.
ALLOWED PAGE 12 OF 16 FA/100/2020 D.O.D.: 26.11.2024
PHILIPS COOPERATIVE GROUP HOUSING SOCIETY (REGD NO.1024) VS MR.D.S. KUNDU (3) Save as provided in this Act, no order, decision or award made under this Act, shall be questioned in any court on any ground whatsoever."
10. On a combined reading of the aforementioned decisions and the aforesaid statutory position, it is clear that Consumer Commission has no jurisdiction to entertain a dispute between the members and the cooperative society.
11. Furthermore, it is pertinent to mention here that a perusal of the record reflects that, award dated 31.05.2022 has been passed in Arbitration case no.175/2016 on the same facts and between the same parties. The record further reflects that said award dated 31.05.2022 in the matter of 'D.S. Kundu v. Phillips Cooperative Group Housing Society' has been assailed before Delhi Cooperative Tribunal as Appeal no. 27/2022. A perusal of the copy of the award divulges that, in the said award also, similar directions have been given to either allot the parking or refund the deposited amount with 18% interest.
12. We deem it pertinent to remark here that it is an established position of law that two parallel proceedings cannot go on simultaneously as the same shall lead to absurdity and judicial contradictions. Therefore, as the matter is seized by the Delhi Cooperative Tribunal under Delhi Cooperative Societies Act, 2003, the Consumer Commission has no jurisdiction to try the same.
13. The Respondent by way of written submissions has submitted that the remedy under the Consumer Protection Act, 1986 is in addition to other remedies, and as such the Complaint is maintainable before the Consumer Commissions.
14. In this regard, we deem it appropriate to refer to the decision of the Hon'ble National Commission in T. Srinivas v. Srija Construction 1 (2016) CPJ 552 (NC):
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PHILIPS COOPERATIVE GROUP HOUSING SOCIETY (REGD NO.1024) VS MR.D.S. KUNDU "10. It is not in dispute that petitioner themselves have filed a petition u/s 9 of the Arbitration Act in the year 2010, whereas consumer complaint was filed in February, 2011. Thus, Arbitration Petition was filed by the petitioners prior to filing of the consumer complaint. Therefore, two parallel proceedings cannot go on simultaneously. This Commission in Beverly Park Maintenance Services Ltd. Vs. Kashmir Fab Styles Pvt. Ltd., (Revision Petition No.2064 of 2012 decided on 13.3.2014) has observed;
"7. Now the core question is, whether two parallel proceedings for similar relief can be persuaded before two different forums. Learned counsel for the respondent submitted that section 3, Consumer Protection Act enables complaint to file complaint under the Consumer Protection Act in spite of proceedings initiated before the arbitrator for similar relief. I do not agree with the submission of learned counsel for the respondent because two proceedings for similar relief cannot run simultaneously in two forums. This Commission in I (1994) CPJ 1 (NC), Hanuman Prasad vs. The New India Assurance Co. Ltd. held that when a case is pending in a court in which full evidence is to be recorded the Forums constituted under the Consumer Protection Act, 1986 should not entertain the complaint with respect to the same cause of action.
8. Respondent is entitled to prove his claim before the arbitrator by leading evidence, whereas proceedings before the State Commission were to be disposed summarily. Once respondent participated in proceedings before the arbitrator for the same relief, proceedings for similar relief could not have been initiated before the State Commission and the State Commission committed error in holding that both proceedings may go simultaneously. The words 'in addition' appearing in S.3 C.P. Act enables complainant to file complaint before Consumer Fora also if not filed before other forum."
11. Therefore, we do not find any infirmity or ambiguity in the impugned order. Thus, present petition is nothing but gross abuse of process of law and same is required to be dismissed with cost. Accordingly, present revision petition stand dismissed with cost of Rs.5,000/- (Rupees five thousand only)."
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PHILIPS COOPERATIVE GROUP HOUSING SOCIETY (REGD NO.1024) VS MR.D.S. KUNDU
15. A perusal of the aforesaid decision makes it clear that once respondent participated in proceedings before the arbitrator for the same relief, proceedings for similar relief could not have been initiated before the Consumer Commission. Therefore, it is clear that parallel proceedings cannot go simultaneously. The words 'in addition' appearing in Section 3 Consumer Protection Act enables Complainant to file complaint before Consumer Commission also if not filed before other forum.
16. Therefore, it is clear that though Consumer Protection Act provides for additional remedies clause but additional remedies does not imply that parties can go for parallel proceedings on same facts before different courts seeking similar reliefs.
17. Lastly, we deal with the plea raised by the Appellant that due to the renovation work, the Appellant could not appear before the District Commission and as such, there was no willful default and the ex-parte impugned order be set aside.
18. Here, we deem it appropriate to refer to the order of the District Commission dated 15.04.2015, reproduced hereunder for ready reference:
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PHILIPS COOPERATIVE GROUP HOUSING SOCIETY (REGD NO.1024) VS MR.D.S. KUNDU
19. A perusal of the orders dated 09.01.2015 and 05.10.2015 also reflect a similar position that renovation work was being carried out at the District Commission. It is worthwhile to mention here that the Appellant has placed on record complete set of the order sheets passed by the District Commission which further makes it clear that the seat of the District Commission-VII was shifted from Sheikh Sarai to Sector-8, Dwarka. Furthermore, on a through pursual of the record, we fail to find any notice issued to the Appellant for appearing before the District Commission at Dwarka. Thus, we conclude that the sufficient cause has been shown by the Appellant explaining his absence and in the interest of justice, the ex- parte impugned order is set aside.
20. Therefore, in the light of the aforesaid discussion, we allow the present Appeal and set aside the Impugned Order dated 25.01.2019 passed by the District Consumer Disputed Redressal Commission-VII (Sout-West), Sheikh Sarai Phase-II, Delhi-110017 in CC No.627/2014.
21. Consequently, IA-1159/2023 moved by the Respondent praying for dismissal of the present appeal stands disposed of in terms of the aforesaid judgment.
22. The Judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
23. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
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