State Consumer Disputes Redressal Commission
Sutlej Cooperative House Building ... vs Nirmal Singh Degun on 30 September, 2010
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No. 991 of 2008
Date of institution : 10.09.2008.
Date of Decision : 30.09.2010.
Sutlej Cooperative House Building Society Limited, Flat no.1, Mai Harkrishan Kaur
Trust Building, Bank Street, Civil Lines, Ludhiana.
...Appellant
Versus
Nirmal Singh Degun son of Sh. Dharam Singh, Resident of 73, Nethans Road, North
Wembley, Middlesex HAO 3RU, U.K. through his General Power of Attorney Sh.
Harbhajan Singh s/o of Sh. Charan Singh, Resident of 1576, Sector 32-A, Chandigarh
Road, Ludhiana.
...Respondent
First Appeal against the order dated 25.07.2008
of the District Consumer Disputes Redressal
Forum, Ludhiana.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Mrs. Amarpreet Sharma, Member.
Present:-
For the appellant : Sh. B.S. Shera, Advocate.
For the respondent : Sh. Nirmal Singh Degun, in person.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
Sutlej Cooperative House Building Society Limited (in short, "the appellant") has filed the present appeal against the order dated 25.07.2008 passed by the learned District Consumer Disputes Redressal Forum, Ludhiana (in short "the District Forum").
2. Facts in brief facts are that the respondent Sh. Nirmal Singh Degun (hereinafter to be called "the complainant") filed the complaint, seeking directions against the appellant to execute the sale deed of plot no.213 measuring 500 sq.yds. in Friends Colony, Chandigarh Road, Ludhiana, or in the alternative to allot and execute sale deed of another plot of the same size and dimensions as well as to 2 deliver the possession and to pay compensation of Rs.2.00 lacs due to escalation of building material as well as Rs.1.00 lac on account of mental agony and harassment.
3. It was pleaded by the complainant that he is member of the appellant Society and his membership number is 456. A plot was allotted vide letter dated 20.12.1985 and the complainant has paid the development charges and other charges to the appellant. The complainant was not given possession immediately, but was put in possession in 1991. Thereafter, the complainant constructed a boundary wall but the appellant failed to execute the sale deed in his favour. The appellant also failed to develop the colony, by not providing roads, street lights, water and sewerage facilities, which amounts deficiency in service on the part of the appellant.
4. In the reply filed on behalf of the appellant, it was admitted that the complainant is a consumer and member of the Society and that a plot was allotted to him. It was further pleaded that the said plot was cancelled and the complainant was expelled from the Society on 03.08.1995. Cancellation of the plot was conveyed to him vide letter dated 18.09.1995. The complainant has not challenged his expulsion by way of filing appeal and the complaint now is not maintainable. The complainant was a defaulter in making payment of Rs.20,000/- on account of development charges and vide letter dated 07.11.1992, he was requested to pay the same upto 31.03.1993 and it was intimated that in case of failure to pay the amount, the plot would be cancelled. Inspite of receipt of notice, the complainant failed to make the payment and another letter dated 14.04.1993 was issued which was also not complied. Thereafter, letters dated 22.07.1993 and 27.12.1993 were written to the complainant, requiring him to pay the development charges and another registered notice dated 01.02.1994 was issued, intimating that the plot would be cancelled, if the development charges were not deposited. Despite all this, the complainant failed to comply with the notices and the allotment of plot was cancelled on 29.03.1994. The complainant remained silent for six years and 09.11.2001, made representation praying for restoration of the plot which was rejected. The complaint is time barred and is not maintainable.
5. Parties led evidence in support of their respective versions by way of affidavits and documents.
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6. Having heard the learned counsel for the parties and having gone through the documents and material brought on record, the learned District Forum directed the appellant to restore plot no.213 of the complainant, subject to payment of development charges along with interest as assessed by the appellant and the complainant should pay the same within 15 days of the receipt of the communication from the appellant. It was further directed to restore his membership on payment of membership fee or any other dues.
7. Aggrieved by the impugned order dated 25.07.2008, the appellant has come up in appeal.
8. Learned counsel for the appellant has argued that the complainant has not come to the Forum, with clean hands and he has not filed the copy of the terms and conditions along with the allotment letter Ex.P3. Condition No.3 of the allotment letter provides that if the development charges are not deposited, the allotment of the plot shall stand cancelled. Vide letter Ex.R4, last and final notice was given to the complainant, to deposit the development charges of Rs.20,000/- upto 21.02.1994, failing which the allotment was to be cancelled. But the complainant did not pay the development charges and vide Ex.R3, the complainant was intimated that his membership has been cancelled. The complainant filed application Ex.R5 for restoration of the plot on 09.11.2001, after more than six years and that was declined. The complainant is not entitled to any re-allotment of the plot, as he has not complied with the terms and conditions of the allotment letter.
9. On the other hand, on behalf of the complainant, it was contended that the appellant in the reply has mentioned that letters were sent on various dates, but nothing has been placed on the file. The notice Ex.R4 does not contain correct address of the complainant and no intimation was given for demanding the development charges, as such, the cancellation is illegal. It was further contended that the dispute is between the management of the Society as well as the member and it should be referred to the arbitrator U/s 55 of the Punjab Co-operative Societies Act. Earlier also, the development charges were paid and had the intimation reached, the complainant must have paid the development charges of Rs.20,000/-. So, the appeal should be dismissed.
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10. We have considered the respective submissions of both the parties.
11. The principle of equity demands that whosoever seeks equity, must do equity and a person seeking the relief, must come to the court with clean hands. Complainant Nirmal Singh Degun has filed the present complaint through his attorney Sh. Harbhajan Singh. The copy of general power of attorney is Ex.P1. Complainant was registered as member on 21st January, 1984. His registration number is 1587 dated 23.11.1981 and the membership number is 456, as is clear from Ex.P2. On 20.12.1985, allotment letter Ex.P3 was issued in favour of the complainant and a plot no.213, measuring 500 sq.yds. was allotted to him. This allotment was subject to conditions overleaf and the other conditions imposed by the Society from time to time. The complainant/attorney of the complainant has filed the copy of the allotment letter, but the conditions overleaf are missing, whereas the copy of the allotment letter along with conditions overleaf, has been supplied by the counsel for the appellant. Conditions No.3 and 8 are relevant and the same are reproduced as under:-
"Condition No.3: The development charges of land and further amount if any, required in this behalf, will be paid by you as and when asked by the Society, otherwise, the allotment of the plot shall stand cancelled.
Condition No.8: Violation of any of the above rules will result in the cancellation of allotment of house/plot".
12. Neither the complainant nor his attorney paid the requisite development charges and ultimately, vide Ex.R2 dated 11.8.1995, the notice for cancellation of the membership was given to the complainant and 15 days time was granted to file the statement of defence, but the same was not filed and vide Ex.R3 dated 18.9.1995, the membership of the complainant was cancelled. The complainant after about 6 years, on 9.11.2001 filed the application for restoration of the plot no.213 of 500 sq.yds. relating to his membership no.456. In this application, the complainant mentioned that he could not deposit with the Society, the development charges of his above said plot and the Society cancelled his plot, due to non payment of development charges, despite various letters written by the Society on his old address. He could not change his correspondence address because he shifted to England. This application was rejected. The complainant has filed the present complaint on 27.10.2006 after about 5 five years of rejection of the application and after about 11 (Eleven) years of the cancellation of membership which was cancelled way back on 18.9.1995. The argument that the notice Ex.R4 was not sent on the correct address, does not cut much ice because once the complainant has not supplied the correct correspondence address to the appellant, then it was not possible for the appellant to send the letters/notices on the new address. The general power of attorney of complainant, namely Sh. Harbhajan Singh never bothered to contact the appellant or to find out the status of the plot. He also never intimated any correspondence address to the appellant and now, when the prices of the land/plot have increased manifold, then the complainant woke up from a long slumber and thought of filing the present complaint, which is absolutely time barred. The argument of the complainant that the dispute is between the management of the Society as well as the member and it is required to be referred to the arbitrator U/s 55 of the Punjab Co-operative Societies Act, again has no force because U/s 3 of the Consumer Protection Act, 1986, in clear terms, it has been mentioned that "the provisions of the Consumer Protection Act, are in addition to and not in derogation of the provisions of any law for the time being in force". Hon'ble Supreme Court in case "Secretary Thirumurugan Cooperative Society Vs Lalitha (dead) through L.Rs. & Others", 1(2004) CLT-200 (SC), observed as follows:-
"Merely because the rights and liabilities are created between the members and the management of the Society under the Act and Forums are provided, it cannot take away or exclude the jurisdiction conferred on the Forums under the 1986 Act expressly and intentionally, to serve a definite cause in terms of the objects and reasons of the Act, reference to which is already made above".
13. The Hon'ble National Commission in a very recent judgment reported as "Talagang Cooperative G/H Limited Vs Vandana Sharma", 2010 (1) CLT-264(NC), relying upon the above authority of the Hon'ble Supreme Court, also held that "the provisions of the Consumer Protection Act, are in addition to and not in derogation of the provisions of any law for the time being in force".
14. The learned District Forum lost sight of these facts and erroneously allowed the complaint, which is hopelessly time barred and directed the appellant to restore the membership of the complainant and also ordered to restore the plot 6 no.213 subject to payment of development charges etc. The said order is not sustainable in the eyes of law.
15. Accordingly, the appeal is accepted and the impugned order dated 25.7.2008 under appeal, is set aside. Consequently, the complaint filed by the complainant, is dismissed. Parties are left to bear their own costs.
16. Arguments in this appeal were heard on 20.09.2010 and the order was reserved. Now the order be communicated to the parties.
17. The appeal could be decided within the stipulated timeframe due to heavy pendency of Court cases.
(Inderjit Kaushik) Presiding Member (Amarpreet Sharma) Member September 30, 2010.
(Gurmeet Singh)