Dhanraj Khamatkar, Member
[1] This appeal filed by the Appellant/original Complainant takes an exception to an order dated 31/12/2007 passed by the Mumbai Suburban District Consumer Disputes Redressal Forum (hereinafter referred to as âthe District Forum for the sake of brevity) in Consumer Complaint No.440 of 2004, Smt. Vaibhavi A. Khot Vs. Vithaldham Co-operative Housing Society Ltd.
[2]Â Facts leading to this appeal can be summarized as under:-
The Appellant/original Complainant had requested the Respondent/original Opponent Society to make her a member of the Society in place of her mother who died on 10/8/1996 who, was an original member and who had been allotted a flat bearing No.101 in the Respondent/original Opponent Society. Accordingly, the Respondent/original Opponent Society had placed the subject before its general body and the general body had accorded permission on 21/12/1997 to the proposal of making the Appellant/original Complainant a member of the Society in place of her deceased mother. As the land belonged to the Government the proposal was submitted for sanction to the District Collector and the District Collector accorded his approval to the membership of the Appellant/original Complainant vide a letter dated 29/2/2000. Thereafter, the Respondent/original Opponent Society vide a letter dated 7/11/2000 informed the Appellant/original Complainant to deposit an amount of Rs.7,58,000/- and take over the possession of the flat. Accordingly, the Appellant/original Complainant paid required amount of Rs.7,19,700/- and the Respondent/original Opponent had issued a receipt dated 26/4/2001 therefor. Similarly, the Appellant/original Complainant deposited an amount of Rs.41,164/- towards maintenance on 1/6/2001 and requested the Respondent/original Opponent Society vide a letter dated 29/7/2001 to hand-over possession of the flat. The Respondent/original Opponent Society had informed the Appellant/original Complainant to deposit an amount of Rs.4,00,000/- by way of interest accumulated on account of non-payment of calls on the part of her deceased mother and the Respondent/original Opponent Society had initiated a proceeding against the Appellant/original Complainant under Section-101 of the Maharashtra Co-operative Societies Act, 1960 before the District Deputy Registrar of Co-operative Societies. The District Deputy Registrar of Co-operative Societies vide his order dated 9/4/2000 dismissed the said proceeding. The Respondent/original Opponent Society filed a revision application before the Joint Registrar of Co-operative Societies and the Joint Registrar of Co-operative Societies had remanded the matter back to the District Deputy Registrar of Co-operative Societies. The District Deputy Registrar of Co-operative Societies in turn, set aside proceeding under Section-101 of the Maharashtra Co-operative Societies Act, 1960. The Respondent/original Opponent Society challenged the said order and there is a status-quo in respect of the flat of the Appellant/original Complainant. Hence, the Appellant/original Complainant filed a consumer complaint alleging deficiency in service on the part of the Respondent/original Opponent Society and sought direction as against the Respondent/original Opponent Society to hand-over possession of the flat. Appellant/original Complainant also claimed interest @ 18% p.a. on the amount of Rs.7,58,000/- from the month of May-2001 till the date of actual possession of the flat. Appellant/original Complainant also sought an amount of Rs.23,062/- from the Respondent/original Opponent Society towards reimbursement of rent for present accommodation. The Appellant/original Complainant also claimed an amount of Rs.1,00,000/- by way of compensation towards harassment and hardship caused besides costs of the complaint.
[3]Â Pursuant to the notice issued by the District Forum the Respondent/original Opponent Society appeared and contested the complaint by filing its written version inter-alia contending that the complaint is false, fabricated, vague, unspecific, and lacking in material particulars. The Respondent/original Opponent Society further contended that the complaint is filed with an ulterior motive of making a wrongful gain. It is further contended that the Appellant/original Complainant is a defaulter in payment of Appellant/original Opponent Societys dues and the matter is subjudice before the Joint Registrar of Co-operative Societies. Further, the Respondent/original Opponent Society raised a contention to the effect that the Appellant/original Complainant is not a âconsumer within the meaning of provisions of the Consumer Protection Act, 1986 and the action on the part of the Respondent/original Opponent Society does not fall within the ambit of definition of deficiency in service as the Appellant/original Complainant herself is a defaulter of the Respondent/original Opponent Societys dues. The Respondent/original Opponent Society contended that as per the resolution passed by the general body of the Society, the possession of the flat was to be given only on full payment of the construction cost and interest for the overdue installments. The Respondent/original Opponent Society further contended that Consumer Forum has no jurisdiction to supercede, set-aside or cancel the said order dated 24/12/2003. On these grounds, the Respondent/original Opponent Society prayed that the complaint may be dismissed.
[4]Â The District Forum after going through the complaint, written version filed by the Respondent/original Opponent Society, evidence filed on affidavits by both the parties and pleadings of the advocates came to a conclusion that there is no deficiency in service on the part of the Respondent/original Opponent Society and mainly relying on the proceedings under Section-101 of the Maharashtra Co-operative Societies Act, 1960 had dismissed the complaint. Being aggrieved by the impugned order passed by the District Forum, the Appellant/original Complainant has filed this appeal.
[5]Â We heard Adv. Smt. Bindu Jain on behalf of the Appellant/original Complainant and Adv. Subhash Yadav on behalf of the Respondent/original Opponent Society.
[6]Â Admittedly, the Appellant/original Complainant is a flat-owner and also a member of the Respondent/original Opponent Society. Originally, deceased mother of the Appellant/original Complainant was a member of the Respondent/original Opponent Society and in her capacity as a member a flat bearing No.101 was allotted to the Appellant/original Complainants deceased mother. After the demise of the Appellant/original Complainants mother on 10/8/1996, the Appellant/original Complainant had applied to the Respondent/original Opponent Society to make her a member of the Society in place of her deceased mother. Admittedly, the general body of the Respondent/original Opponent Society vide its resolution dated 21/12/1997 had given a sanction to admit the Appellant/original Complainant as a member of the Society. As the land belonged to the Government, the Respondent/original Opponent Society had taken an approval from the District Collector to the membership of the Appellant/original Complainant vide a letter dated 29/2/2000. The Respondent/original Opponent Society vide a letter dated 7/11/2000 had informed the Appellant/original Complainant to pay an amount of Rs.7,58,000/- and take the possession of the flat. In the said letter, there are details of payments for land cost, wall compound construction and security, I.C.D. and others, pilling and others, construction cost and the total amount comes to Rs.7,57,866/-. The Appellant/original Complainant had paid an amount of Rs.7,19,700/- by a cheque and the Respondent/original Opponent Society had issued a receipt dated 26/5/2001 in realization of the amount. Apart from this, the Appellant/original Complainant has paid an amount of Rs.41,164/- and the Respondent/original Opponent Society had issued a receipt dated 1/6/2001. On the record, there are two letters both dated 16/3/2000. In the letter at Exhibit-D, the Respondent/original Opponent Society had communicated to the Appellant/original Complainant that she has been allotted a flat bearing No.101, admeasuring 898.50 sq. ft. as approved by Special General Body Meeting held on 21/12/1997. In another letter which is also at Exhibit-D, it is stated that flat No.101 is allotted to the Appellant/original Complainant and the cost of construction is stated as Rs.7,58,000/- and the interest of Rs.4,00,000/- was demanded from the Appellant/original Complainant. In the said letter also, it is specifically mentioned that the decision is taken on 21/12/1997 in the Special General Body Meeting of the Respondent/original Opponent Society. Now, the question arises when the Respondent/original Opponent Society had communicated vide a letter dated 7/11/2000 that the Appellant/original Complainant should pay an amount of Rs.7,58,000/- and gave details of payments to be made by the Appellant/original Complainant why the Respondent/original Opponent Society issued two different letters on the same date viz. 16/3/2000 of which one letter is styled as âLetter of Allotment and the other letter is styled as âAllotment Letter?
[7] In one letter, there is no mention of the interest to be paid while in another letter there is mention of interest to be paid and which is shown as approximate. Letter dated 7/11/2000 is a subsequent letter and which does not specify anything about the interest to be paid by the Appellant/original Complainant. In view of the subsequent letter dated 7/11/2000 both the earlier letters dated 16/3/2000 become redundant. So called alleged resolution dated 21/12/1997 is not coming forward. The Respondent/original Opponent Society miserably failed to bring alleged resolution of Special General Body dated 21/12/1997 on the record.
[8]Â We find that the case has a chequered history. Poor Appellant/original Complainant had paid the construction cost of the flat of which she has become a lawful member and which the Respondent/original Opponent Society has communicated to the Appellant/original Complainant vide a letter dated 7/11/2000. Alleged Special General Body Resolution dated 21/12/1997 of the Respondent/original Opponent Society on the basis of which the Respondent/original Opponent Society is claiming interest is not coming forward. Not only this but without giving possession of the flat the Respondent/original Opponent Society is collecting maintenance charges from the Appellant/original Complainant regularly. Despite of having once flat, the Appellant/original Complainant is staying in rental accommodation. This case is a best example as to how the process of law can be misused.
[9]Â The Appellant/original Complainant is a lawful member of the Respondent/original Opponent Society. Appellant/original Complainant had also paid entire construction cost of the flat. Still, the Respondent/original Opponent Society is not handing over possession of the flat lawfully belonging to the Appellant/original Complainant. Respondent/original Opponent being a cooperative housing society is a âservice provider to the Appellant/original Complainant and this is a âconsumer dispute and there is a clear-cut case of deficiency in service on the part of the Respondent/original Opponent Society.
[10] The District Forum miserably failed to interpret the facts in its proper perspective. What-ever that is challenged before the District Deputy Registrar of Co-operative Societies is the alleged outstanding dues against the Appellant/original Complainant and that proceeding will not prohibit the Complainant/Appellant to file a consumer complaint. There is no co-relation between the proceeding pending before the Joint-Registrar of Co-operative Societies and the present complaint.
[11] Looking to the facts and circumstances of the case, the District Forum had miserably failed to appreciate the facts and arrived at a perverse conclusion. A lawful member of the Society who had paid the entire construction cost is deprived of her lawful right of occupying the flat. Not only this, but without occupying the flat the Appellant/original Complainant is paying the maintenance charges to the Respondent/original Opponent Society. The action on the part of the Respondent/original Opponent Society is totally arbitrary and cannot be supported. The Respondent/original Opponent Society cannot revert back to its letter dated 7/11/2000 and the Appellant/original Complainant has complied with the same. The Respondent/original Opponent Society has harassed the Appellant/original Complainant since the year 2001 onwards. We cannot imagine the mental harassment and inconvenience suffered by the Appellant/original Complainant and we are of the opinion that the Appellant/original Complainant needs to be compensated for the injustice suffered from 26/5/2001 onwards. The Appellant/original Complainant has sought possession of the flat besides consequential relief of interest, compensation and reimbursement of rental charges. Looking to the facts and circumstances of the case we are of the opinion that the Respondent/original Opponent Society should hand-over possession of the flat forthwith and pay lumpsum compensation of Rs.2,00,000/- to the Appellant/original Complainant. We hold accordingly and pass the following order:-
ORDER
Appeal is allowed.
Impugned order dated 31/Dec/2007 passed by the Mumbai Suburban District Consumer Disputes Redressal Forum in Consumer Complaint No.440 of 2004 is hereby quashed and set aside. Consequently, consumer complaint is partly allowed.
The Respondent/original Opponent Society is hereby directed to hand-over vacant and peaceful possession of a flat bearing 101, admeasuring 898.50 sq. ft., in super built-up area (690 sq. ft. in carpet area) to the Appellant/original Complainant forthwith.
The Respondent/original Opponent Society shall also pay to the Appellant/original Complainant an amount of Rs.2,00,000/- by way of lumpsum compensation towards mental harassment and inconvenience caused to the Appellant/original Complainant, within a period of two months from the date of this order and failing which said amount shall carry interest @ 12% p.a., as from the date of this order till realization of entire amount by the Appellant/original Complainant.
The Respondent/original Opponent Society shall also pay costs of Rs.25,000/- to the Appellant/original Complainant.
Inform the parties accordingly.