State Consumer Disputes Redressal Commission
Retreat Cghs Ltd. vs Sandeep Khurana on 20 July, 2015
Daily Order IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision:20.07.2015 Revision Petition- 6/2014 (Arising out of the order dated 03.01.2014 passed in complaint case no. 42/13 by the District Forum(East), Saini Evclave Delhi) Retreat Cooperative Group Housing Society Ltd. (Through President/Vice President/Secretary) Retreat Apartments, Plot No. 20, I.P. Extension Delhi-110092 .....Appellant Versus Sh. Sandeep Khurana R/o A-36, Retreat Apartments, Plot No. 20, I.P. Extension Delhi-110092 .....Respondent CORAM Justice Veena Birbal, President Salma Noor, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
Justice Veena Birbal, President
1. This is a revision petition under section 17 of the Consumer Protection Act, 1986 (in short 'The Act') wherein challenge is made to order dated 03.01.2014 passed by the District Consumer Disputes Redressal Forum (East), Saini Enclave, Delhi (in short the 'District Forum') in Complaint Case no. 42/2013.
2. Brief facts relevant for the disposal of the present petition are as under:
The respondent herein is the complainant before the District Forum. A complaint under section 12 of the Act is filed by him alleging therein that he had purchased a flat no. A-36, Retreat Apartments, Plot No.20, I.P. Extension, Delhi-110092 in appellant's society on free hold basis from Mrs. Poonam Kudesiya in May 2004. Husband of Smt. Poonam Kudesiya i.e. Sh. Mohan Kudesiya was the original allottee of the said flat who had expired on 05.01.2000. After his death his wife Smt. Poonam Kudesiya got mutated the flat said in her name after clearance of the all the dues relating to maintenance and repayment of DCHFC loan in full and final. It is alleged that Smt. Poonam Kudesiya had obtained NOC from the management committee of the appellant society on 17.08.2001. It is alleged that the facts of clearance of DCHFC loan was also corroborated by the DCHFC vide its letter dated 04.03.2004 addressed to DDA and copy to the Secretary of appellant society and to Mrs. Poonem Kudesiya wherein DCHFC had certified that the member had repaid the full loan amount sanctioned and disbursed to him through the society. The DCHFC had also given NOC for conversion of the above flat from lease hold to free hold which was conveyed to the DDA as well as to the appellant society and to Mrs. Poonam Kudesiya and thereafter only Mrs. Poonam Kudesiya had executed a registered sale deed in favour of respondent. It is alleged that despite the above position, the respondent was shocked to receive a demand notice on 02.02.2008 from the appellant society for payment of Rs. 7,32,035/- towards outstanding loan of DCHFC. It is alleged that all the dues were settled by Smt. Poonem Kudesiya wife of the original allottee before sale of the flat to the respondent. The respondent visited the office of appellant and discussed the matter and was assured that she would not face any problem in future. Despite assurances given, again demands of different amounts were raised in 2009, August 2011 and in 2012. The respondent had alleged that the respondent/OP society was causing harassment to him by issuing demand notices as such approached the District Forum for withdrawal of demand notice and awarding compensation and litigation expenses to him.
3. A notice was issued to the appellant/OP in respect of the aforesaid complaint case filed by the respondent. The appellant/OP instead of filing written statement had moved an application seeking directions to the respondent to submit documents of transaction with the original allotee and/ or his successor and other documents relating to membership of the respondent with the appellant society.
4. In response to above, respondent furnished certain documents.
5. Thereupon, appellant moved another application about the maintainability of the complaint under section 12 of the Act on the ground that the same is barred under section 83 of the Delhi Co-operative Society Act, 2003 (in short, the "DCS Act"). It was alleged that the appellant/OP society stood attached due to default in repayment of loan by the members/occupants. The appellant also alleged that the question of jurisdiction be decided first as the same was going to the root of the matter.
6. On the other hand the stand of the respondent/complainant before the District Forum was that as per section 3 of the Act, the provisions of the Act are in addition to and not in derogation of the provisions of any other law for the time being in force as such it can't be said that the dispute is explicitly barred under Section 83(1) of the DCS Act as is alleged.
7. After hearing the Ld. Counsel for parties and considering the material on record the District Forum held that final view on the maintainability of the complaint will be taken after the full facts are brought before the Forum and accordingly, the District Forum directed the appellant to file written statement.
8. Aggrieved with the aforesaid order present petition is filed.
9. Ld. Counsel for the appellant has contended that the District Forum has no jurisdiction to deal with the matter in view of the explicit bar under section 83(1) of the DCS Act. Ld. Counsel has relied upon the judgment of this Commission in FA No. 593/09 in the matter of Narwana Cooperative Society vs. Manoj Kumar decided on 28.05.2012.
10. On the other hand, counsel for the respondent/complainant has contended that there is no illegality or error of jurisdiction in the impugned order. It is submitted that present dispute is not covered u/s 83(1) of the DCS Act as is contended.
11. We have heard Counsel for the parties.
12. The matter is in mid stream before the Ld. District Forum. The issue of maintainability of the complaint is yet to be decided. The District Forum has only ordered the appellant to file written statement so that the full facts are brought on record and a final view on the maintainability could be taken thereafter. The issue of maintainability is left open to be considered at appropriate stage. The aforesaid directions have been given keeping in view the material on record given by the complainant/respondent in support of the complaint case. As per stand of the respondent, the original allottee had paid all the dues relating to the maintenance and DCHFC loan. The respondent has placed reliance on NOC given by the management committee of the appellant on 17.8.01. As per stand of the respondent/complainant, factum of clearance of loan of DCHFC was certified by DCHFC letter dated 4.3.04 addressed to DDA with a copy of Secretary of Respondent society and to Mrs. Kudiya, Wife of original allottee wherein it is alleged that the member had repaid the loan. It is alleged that appellant was also given NOC by DCHFC for conversion of flat in question from lease hold to free hold which was also conveyed to DDA and thereafter the previous owner had executed sale deed in favour of the respondent/complainant. The stand of the respondent is that the appellant society is harassing her by raising the alleged demands. Prima facie the respondent/complainant has put material on record to substantiate his stand.
13. Appellant did not file written statement rather moved aforesaid application whereby issue of non-maintainability of complaint is raised. As per respondent, he had not taken any loan from DCHFC. It is the original allottee who had taken the loan and after clearance of loan, the flat was sold to him by a registered sale deed. The respondent has placed on record various documents as are discussed above. After taking the relevant material on record, the District Forum prima facie found merit in the contention of the respondent that it was not a case of payment of dues of a member of society and has directed the appellant/OP to file written statement so that the view on the maintainability of complaint could be taken thereafter. The impugned order is passed after considering the facts and circumstances of the case. In these circumstances, there is no error of jurisdiction or material irregularity in the impugned order which calls for interference of this Commission.
14. The judgement cited by Counsel for appellant/OP has also been considered while passing the aforesaid order.
15. The revision petition stands dismissed.
It is clarified that any observation made hereinabove shall have no bearing on the final view on the maintainability of complaint which the District Forum has yet to take. The District Forum shall be free to decide the same in accordance with law.
A copy of this order be given to the parties and to the concerned District Forum. The record of District Forum be sent back. Thereafter the file be consigned to record room.
(Justice Veena Birbal) President (Salma Noor) Member