Mrs. Mangala N. Lokhande, District-thane Vs. Ms. Prathama P. Mahajan, Promoter of M/S. Prathamesh Co-operative Housing Society Limited, Mumbai - Court Judgment

Oral Order:

Per Mr. P.N. Kashalkar, Honble Presiding Judicial Member

1) This is an appeal filed by the original complainant whose complaint was dismissed by the District Consumer Forum Mumbai Suburban of Bandra by its judgment dated 16/10/2007.

2) Facts to the extent material may be stated as under:

3) The complainant pleaded in the complaint that O.P. Smt.Prathma P.Mahajan was Chief Promoter of the proposed Prathamesh Co-operative Housing Society Limited. On behalf of the society she had received from her amount of Rs.2,90,000/- but no construction was made. No agreement was executed and refund was not given and therefore she filed consumer complaint claiming refund of amount paid by her to the Chief Promoter and also claimed interest at the rate of 18% per annum and also Rs.50,000/- by way of compensation and Rs.10,000/- towards cost.

4) The O.P. filed written statement and pleaded that in the year 1996, on the eve of womens year, some ladies including complainant came together and formed M/s.Prathamesh Co-operative Housing Society (proposed) and she was made Chief Promoter though she was unwilling. Thereafter, members paid contribution and for construction she had contacted some person. However, society as a whole was cheated by persons like Chandrakant Surve and others. Hence, society could not make further headway for obtaining land and construction of building. Ultimately on behalf of the society, she had lodged police complaint on 8/5/2000 against Chandrakant Surve of M/s.Yamuna Developers and also against P.S.Patil who had made threatening call to the complainant. They had also filed criminal case against them in Borivali court. She pleaded that the society was cheated by these unscrupulous persons which is to the knowledge of complainant herself. Still complainant thought it fit to file consumer complaint against her simply because she happened to be Chief Promoter of the proposed society. She pleaded that the complaint as filed by the complainant was absolutely false and barred by limitation. Hence, she prayed that complaint should be dismissed with cost.

5) Both the parties filed affidavits and documents on record and on considering the same, the Forum below held that O.P. as such Chief Promoter of the proposed society can not be held to be a service provider qua complainant. The Forum below noted in its judgment that in womens year some ladies came together and formed Prathamesh Co-operative Housing Society (proposed) and O.P. was under pressure made as Chief Promoter of the said society. The elections were held, resolutions were passed and the acquisition of land and construction was entrusted to M/s.Yamuna Developers of which Chandrakant Surve was the Proprietor. The said developer cheated the society formed by the complainant, O.P. and others. Some threatening calls were received by the Chief Promoter/O.P. for which police complaint was lodged. Notice was sent on behalf of Prathemesh Co-operative Society to Chandrakant Surve of M/s.Yamuna Developer on 3/7/1999 asking him to return the amount paid by the members of the society since M/s.Yamuna Developer is not in a position to develop the property. This being the position it can not be said that O.P./respondent Prathama P.Mahajan was a builder/developer a service provider of the complainant. So, there is no consumer dispute between the complainant on one side and O.P. who was Chief Promoter of the proposed society of the ladies who were intending to form co-operative housing society to construct flats for its members. Promoter contemplated under Maharashtra Ownership Flats Act, 1963 is a person who constructs and intends to construct such block or building or flats but a Chief Promoter of proposed housing society can not be said to be a ‘promoter within a meaning of Sec.2(c) of Maharashtra ownership Flats Act, 1963. A proposed society who simply collects monies from the members and entrusts the job of construction or development to some other person can not be said to be a ‘promoter vis a vis members and member as such of such co-operative society can not be permitted to sue chief promoter if society is unable to get constructed houses or flats from the developer to whom society has paid substantial monies for the development of a housing project. Here developer was M/s.Yamuna Developer. He was given monies collected by Chief Promoter. He cheated the society as a whole and therefore respondent who was holding the post of Chief Promoter of the proposed society can not be held to be a ‘Promoter so as to fasten liability on her U/s 3 of Maharashtra Ownership Flats Act, 1963. She herself along with other members has been cheated by the builder/developer and against whom as such Chief Promoter she had taken legal action. She had even sent letter to Chandrakant Surve of M/s.Yamuna Developers asking him to refund the monies of her society members, a copy of which is already placed on record by the O.P. In the circumstances, agreeing with the finding recorded by the District Forum, we hold that respondent was not builder/developer or service provider of the appellant and appellants consumer complaint was not involving consumer dispute and the Forum below rightly dismissed the complaint. The said dismissal order is legal, proper and sustainable in law. As such, we pass following order.

Order:

1) Appeal stands dismissed,

2) Parties are left to bear their own costs.

3) Copy of this order be sent to the parties free of cost.