State Consumer Disputes Redressal Commission
Raminder Kaur vs Puncham Cooperative House Building ... on 24 March, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
SECTOR 37-A, CHANDIGARH.
First Appeal No. 124 of 2016
Date of institution : 10.02.2016
Date of decision : 24.03.2017
Ms. Raminder Kaur W/o Iqbal Singh, R/o House No. 4837,
Puncham Cooperative House Building Society, Sector 68, Mohali,
Punjab.
....Appellant/Complainant
Versus
1. Puncham Cooperative House Building Society Limited
through its President,
Current office Address:
Office of Society at Puncham Cooperative House Building Society,
Sector 68, Mohali, Punjab.
2. Puncham Cooperative House Building Society Limited
through its Secretary
Current office Address: Office of Society at Puncham Cooperative
House Building Society, Sector 68, Mohali, Punjab.
....Respondents
3. Registrar, Cooperative Societies, Punjab, 17 Bays Building,
Sector 17, Chandigarh.
4. Sh. Hardayal Singh Mann, Former Secretary and now
President,
Current Address : To be disclosed by other OP's
Alternative Address: Office of Society at Puncham Cooperative
House Building Society, Sector 68, Mohali, Punjab.
5. Sh. Sumesh Chawla, Former designated Member of Society
and Partner,
Current Address : House No. 1492, Sector 40 B, Chandigarh.
6. Sh. Gursharan Batra, Former President and Partner,
Known Address : Batra Selections, SCO 18, Sector 20-D,
Chandigarh.
....Performa Respondents
First Appeal No. 124 of 2016 2
First Appeal against the order dated
20.10.2015 of the District Consumer Disputes
Redressal Forum, SAS Nagar (Mohali).
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Gurcharan Singh Saran, Judicial Member.
Present:-
For the appellant : Shri Navneet Jindal, Advocate
For respondents No.1&2: Shri B.S. Sehra, Advocate
For respondent no.3 : Ex.-parte.
For respondent Nos.4,5&6: Service dispensed with.
GURCHARAN SINGH SARAN, JUDICIAL MEMBER
ORDER
The appellant/complainant (hereinafter referred as complainant) has filed the present appeal against the order dated 20.10.2015 passed by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (hereinafter referred as the District Forum) in consumer complaint No. 94 dated 3.3.2015 vide which the complaint filed by complainant was allowed by Hon'ble President against Op Nos. 1 & 2 and dismissed against Op Nos. 3 to 6 and Op Nos. 1 & 2 were directed as under:-
"(a) refund to the complainant Rs. 5,75,000/- (Rs. Five lacs seventy five thousand only) with interest @ 12% per annum from the respective dates of deposit till realization.
(b) pay a lump sum compensation of Rs. 20,000/- (Rs.
Twenty thousand only) for mental agony, tension, harassment and costs of litigation.
First Appeal No. 124 of 2016 3Whereas majority Members dismissed the complaint being hit by Section 11(2)(b) of the Consumer Protection Act.
2. Complaint was filed by complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the respondents/opposite parties (hereinafter referred as Ops) on the averments that Op No. 1 is Cooperative Society having registration No. 977 and had formulated a scheme for construction of residential flats to its members and members were admitted by those Society as per Bye-laws. The Society was to raise construction of the flats as duly approved by the PUDA. The land was allotted by the PUDA vide letter dated 4.2.2000 to the Society. Op Nos. 4 to 6 allured the complainant to opt for flat in the said Society by obtaining its Membership. The complainant was enrolled as a Member on 16.2.2004 and she paid a fee of Rs. 1610/- for obtaining Membership for HIG flats. After the membership fee was confirmed. She paid a sum of Rs. 5,75,000/- out of Rs. 9,18,600/- to the Society in two installments i.e. Rs. 3,50,000/- on 14.5.2004 and Rs. 2,25,000/- on 13.8.2004. Ops issued the share certificate on 2.7.2005. When no further demand was raised, complainant and her husband reached there to pay the amount but Op Nos. 4, 5 & 6 did not accept the payment and stated that they will take as and when demanded. Her husband was also a Member and his share certificate was issued on 8.1.2014 and possession for the same was given on 15.9.2005. The complainant wanted to settle the matter amicably without resorting to legal process but it was not settled. She got issued a First Appeal No. 124 of 2016 4 legal notice to Op on 26.12.2014 but with no result. Alleging deficiency in service on the part of Ops, complaint was filed before the District Forum seeking directions against Ops to deliver the possession of the flat as per share as a Member of the Society, Rs. 50,000/- as cost of litigation and Rs. 5 Lacs as compensation for harassment or in the alternative refund a sum of Rs. 5,75,000/- received by Ops alongwith interest @ 24% p.a., Rs. 5 Lacs as compensation for harassment and Rs. 50,000/- as costs of litigation.
3. Complaint was contested by Ops. Op Nos. 1 & 2 and Op Nos. 4, 5 & 6 filed reply whereas Op No. 3 was ex-parte before the District Forum. Op Nos. 1 & 2 in their written reply, admitted that Op No. 1 is a Society registered under the Punjab Co-op Societies Act, 1961 with registration No. 977. The affairs of the Society are run by the Members and Managing Committee. The concept of role attributed to Op Nos. 4 to 6 by the complainant is alien to concept of Co-op Law. It was admitted that complainant was enrolled as Member of the Society. Her husband Iqbal Singh also became member of the Society. The land was allotted by PUDA to the Society. It is a condition in the allotment letter that the Members before the allotment of flats will furnish an affidavit that he/she or their spouse do not have any house in the Tricity of Chandigarh, Panchkula and Mohali. The possession of the flat was handed over to the complainant. It was denied that any assurance by Op Nos. 4 to 6 was given to the complainant for settlement of the dispute. An application was made by the First Appeal No. 124 of 2016 5 complainant to the President of the Society that a sum of Rs. 1,50,000/- be transferred in favour of husband Iqbal Singh being the Member of the Society and accordingly, a sum of Rs. 1,50,000/- was transferred from the account of the complainant to Sh. Iqbal Singh, Membership No. 956 and the Society is ready and willing to refund a sum of Rs. 5,75,000/- lying in the account of the Society of the complainant. Therefore, there is no merit in the complaint and it be dismissed.
4. Op No. 4 in its written reply took the preliminary objections that the Cooperative Society registered under Section 4 of the Punjab Cooperative Society Act, 1961 had launched the project. The Co-op. Society came into existence for the welfare of the Members. The Co-op Society exist because of its Members and its Members thereafter elect Members from among themselves and delegate powers to them to run the day to day affairs of the Society; the complainant did not fall under the definition of the consumer as the services rendered by the Co-op Society does not fall within the definition of service as defined under Section 2(1)(O) of the Act; the complainant had not paid any consideration for the services but simply paid an amount, which includes land share cost, land development/infrastructure cost, construction share of flat, share of lift installation, land cost interest according to the terms and conditions of the land allotment letter of PUDA dated 4.2.2000. Complainant had not paid any consideration for the activity taken by Op No. 4. The averments made in the complaint are false. Op No. 4 Hardiyal Singh, who is First Appeal No. 124 of 2016 6 not holding any title in the property of the Society and was merely a Member as the complainant. It was denied that Op No. 4 is President of the Society. In parawise reply, it was denied that Op No. 4 allured complainant and her husband to become Members of the Society. In fact the complainant had given a false affidavit that neither she nor any of her dependent is Member of any of the Co-op Society in Mohali, Panchkula or Chandigarh. Complainant never approached this Op on realizing her wrong deed of taking multiple membership under one family. Other averments of the complaint were denied. It was stated that the complaint is without merit, it be dismissed.
5. Op No. 5 in its reply took the preliminary objections that this Op had no relation with the complainant or Op Nos. 1 to 3, 4 & 6. Op No. 5 was not even a member of the Society. No relationship of consumer and service provider. Therefore, Op No. 5 has been wrongly dragged in an unwanted litigation. On merits, averments of the complaint were denied. Preliminary objections were reiterated. It was stated that the complaint was filed without any basis, it be dismissed.
6. Op No. 6 has filed his reply on the same lines as filed by Op No. 4, therefore, the averments made in the written reply filed by Op No. 4 be also read as reply of Op No. 6.
7. Before the District Forum, the parties were allowed to lead their respective evidence.
8. In support of his allegations, the complainant had tendered into evidence her affidavit Ex. CW-1/1 and documents First Appeal No. 124 of 2016 7 Exs. C-1 to C-14. On the other hand, Op Nos. 1 & 2 had tendered into evidence affidavit of Surinder Kumar, Manager Ex. Op-1/1 and documents Exs. Op-1 and 2. OP No. 4, 5 & 6 tendered affidavit of Hardiyal Singh Mann Ex. Op-4/1 and documents Exs. Op-4/2 to Op-4/4, affidavit of Sumesh Chawla Ex. Op-5/1 and affidavit of Gursharan Batra Ex. Op-6/1 and documents Exs. Op-6/2 to Op- 6/4.
9. After going through the allegations in the complaint, written version filed by the OPs, evidence and documents brought on the record, the complaint filed by the complainant was allowed as referred above.
10. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
11. We have heard the learned counsel for the parties.
12. This appeal has been filed by the complainant that majority members have wrongly dismissed the complaint filed by the complainant by virtue of Section 11(2)(b) of the Act. The order passed by the President of the Forum was well reasoned and there is nothing to disagree with the points settled by the Hon'ble President. For ready reference, Section 11 of the Act deals with the jurisdiction of the District Forum, which reads as under:-
"11. Jurisdiction of the District Forum.--(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, First Appeal No. 124 of 2016 8 if any, claimed ''does not exceed rupees twenty lakhs.
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
In case we go through Sub-Clause 2 of the Act, the complaint can be filed above place where Ops actually or voluntarily reside or carry on the business for personal or they have their branch office. First Appeal No. 124 of 2016 9
13. The title of the complaint itself shows that Op No. 1 has their current office in Sector 68, Mohali. Otherwise, permission of the District Forum should be taken. Although the majority Members agreed with the order passed by the learned President with regard to refund of the amount deposited by the complainant but the jurisdiction of the District Forum is barred under Section 11(2) (b) of the Act. However, the majority Members have not discussed how and in what manner, the Ops have not their office or sub-office at Mohali when specifically the address of Op Nos. 1 & 2 is given of Sector 68, Mohali. Otherwise, the property where the flats are constructed is located in Sector 68 of the Mohali and according to Clause 11(2)(c), in case a part of cause of action wholly or in part arises at a place then the District Forum having jurisdiction of that place will have the territorial jurisdiction to entertain the complaint, therefore, a part of cause of action had arisen at Mohali where the property was located and the flats are constructed by Ops, therefore, a part of cause of action according to Section 11(2)(c) of the Act is there within the territorial jurisdiction of the District Forum, Mohali. The District Forum has relied upon the judgment 2008 (1) CPJ (NC) 121 "Rajeshwar Parshad Vs. BCL Financial Services Ltd.". In that case, it was observed by the Hon'ble National Commission that complicated and complex question of law and facts are involved. The matter not adjudicable summarily and it was relegated to the Civil Court. The District Forum has not properly appreciated this judgment. According to this judgment, the matter should be referred to the First Appeal No. 124 of 2016 10 Civil Court whereas they had dismissed the complaint under Section 11(2)(b) of the Act. We are of the opinion that the order passed by the majority Members is not justified and is liable to be set-aside as District Forum, Mohali has the territorial jurisdiction to entertain the complaint.
14. Sequel to the above, we accept the appeal. Order passed by the majority Members dated 20.10.2015 of District Forum, Mohali is set-aside. The complaint is remanded back to the District Forum, Mohali to pass a fresh order on merits.
15. The parties through their counsel are directed to appear before the learned District Forum, Mohali on 24.4.2017.
16. Copy of the order alongwith record of the District Forum be sent back.
17. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
18. Order be communicated to the parties as per rules.
(JUSTICE PARAMJEET SINGH DHALIWAL)
PRESIDENT
March 24, 2017. (GURCHARAN SINGH SARAN)
as JUDICIAL MEMBER