DILIP BAPAT vs PANCHAVATI COOPERATIVE HOUSING SOCIETY LTD.

THE present appellants, D.N. Bapat and Mrs. M.D. Bapat are members of Panchavati Coop. Housing Society Ltd. (respondent herein which is hereinafter referred to as the Society). THE Society is constructing flats for allotment to its members. THEse appellants paid Rs. 60,500/- each as part payment towards the flat allotted to each of them. THE flats were still to be constructed. THE cost of each flat was Rs. 1 lac. Out of the remaining cost of the flat, Rs. 37,000/- were to be paid in instalments and Rs. 2,500/- were to be paid at the time of delivery of possession. THE construction work had to be stopped by the Society in compliance with the notice issued by the Bombay Municipal Corporation. THE Corporation removed the objection on 10th May, 1989 and the work was restarted by the Society. THEre was some dispute between the appellants and the Society about the payment of remaining amount, perhaps, due to the alleged escalation in the cost of construction. THE Society was demanding more amount from each of the appellants. THE appellants filed a complaint before the Consumer Disputes Redressal Commission, Maharashtra State, New Bombay, alleging that they had stopped paying the installments as the construction work was stopped due to certain objections by the Bombay Municipal Corporation and the Society had orally ordered the members not to pay the balance amount. It was also pleaded by the appellants that they wanted to raise loans for the payment of the instalments by the society, but the society was not furnishing them fresh certificates so as to enable them to obtain loan from the financing agencies. THE complainants, therefore, prayed for the grant of Rs. 2,09,100/- as compensation.

THE society contested the complaint petition on many grounds. However, it is not necessary to refer to them because before the State Commission the Society had stated that if the complainants paid the balance with interest the Society can undertake the completion of the remaining construction of the flats at the earliest because no construction could be made by the Society unless the funds were provided by the members (complainants are admittedly members of the Society). THE State Commission remarked that the complainants would cooperate with the Society for payment of their balance amount of Rs. 39,500/- each, which was admitted by them with interest at the permissible rate as decided by the Society by a resolution under bye-law 74 of the Society, from the date of removal of the objection till the date of payment except Rs. 2,500/- which is to be paid on the date of possession. As regards the escalation of prices due to delayed construction, the State Com- mission remarked that the Society has to take into confidence the members of the Society including the complainants (now appellants) to arrive at the actual escalation of prices in relation to a particular item. THE complainants indica led their willingness before the Commission to pay agreed balance amount of Rs. 39,500/- each and requested three months'' time for making that payment. In view of the above concessions by the parties the State Commission passed the following order on 31.1.1991: "THE Complainants shall make the payment of the admitted balance of amount of Rs. 37,000/- with 14% p.a. interest from the date of the commencement of the work after removal of objection by the Municipal Corporation within a period of three months'' from today. THE amount of Rs. 2,500/- shall be retained by the complainants and be paid to the Society at the time of the possession as per the letter of agreement. As regards the escalation of the prices of material we direct the Society to decide this issue in consultation with all the members of the Society including the complainants in their General Body Meeting and then recover from each member the balance amount of escalation. Under these circumstances, we do not find any claim of the complainants just for grant of compensation and for payment of cost. We also direct that the Society shall strictly follow the byelaws in relation to the policy for allotment of flats. THE Society is, therefore, directed to follow the byelaws 78 of the Society and shall issue the letters of allotment of flats to the complainants in the prescribed form which are at Appendix XIII of the byelaws. THE Society is also directed to comply with the byelaws 24 and 29 as regards supply of copies of byelaws and inspection of books and records to the complainants. THE complainants have made a grievance that the management of the Society was not cooperating with them as regards the showing of byelaws and to reply to their querries. We find from the byelaws of the Society that a member of the Society has a right to get the copies of the byelaws of the Society and also has a right of inspection of documents and getting of copies thereof u/ byelaws 24 and 25. Similarly we find that as regards the allotment of flats there is a clear cut provision in the byelaws of the Society. We, therefore, direct that the Society shall follow the relevant byelaws Nos. 26,78 of the Society."

The Complainants were not satisfied with the above order and have filed this appeal. Their complaint is that the Commission was not justified in ordering the appellants to pay interest at the rate of 14% on the sum of Rs. 37,000/- for each flat from May, 1989 to the date of payment because they could not pay this amount to the Society for the fault of the society as it did not issue revised certificates for enabling them to borrow money and pay the instalments. They also objected to the State Commission''s order about the escalation price to be paid by them. According to them they are not liable to pay escalation costs since the construction work was stopped by the Bombay Municipal Corporation due to Society not following the rules. It is also averred that the State Commission has not given any binding order to the Society to complete the flats within some speci fled time and hand over the possession of the two flats to the appellants.

The appeal has been contested by the Society. They pleaded that in spite of reminders the complainant had failed to pay the remaining amount and on the contrary insisted that they would pay full amount only when the possession of flats were given to them. Under the letter of allotment the members were required to pay the full amount except Rs. 2,500/- which was to be paid at the time of taking possession of the flat. They also pleaded that under Section 91 of the Maharashtra Co- operative Societies Act the dispute is exclusively triable by the Co-operative Courts as the dispute is between the appellants who were members of the Society and Co-operative Society.

ALONG with the reply the respondent has also filed a copy of the letter written by it to the complainant-appellants on 25th March, 1991 to the effect that though the question of escalation in the prices had already been decided by the General Body of the Members of the Society, the Managing Committee had again decided to bring this issue before the ensuing General Body Meeting in view of the order of the State Consumer Disputes Redressal Commission. The complainants were also informed that as they were not making payments, possession of any flat cannot be given to them and the possession of complete flats was being given to the other members who had made payments. We have beard the parties and have given our anxious consideration to the disputes between the parties. We have come to the opinion that in the present case the complainants are to be blamed for the whole dispute. It appears from the correspondence filed on the record that the complainants are not prepared to make any payment in spite of their consent having been given before the State Commission. They are insisting that they will make the payment only when the possession of the flats is given to them. Unless the members provide funds to the Society, further construction work cannot be taken by the Society.

ON behalf of the complainants it was also argued before us that there has not been any escalation in the price of the flats as the land and material had been purchased before the construction was brought to standstill on account of the objections raised by the Bombay Municipal Corporation and if there is any escalation of costs it can only be in the costs of labour. This Commission cannot go into such questions that when the material had been purchased and what should be the date of escalation. In compliance of the orders of the State Commission, the Society has already called a meeting of the General Body of its Members to decide the question of escalation in the price. The complainants can raise the objections in that meeting as they being members of the Society can take part in that meeting. The complainants also made a grievance of the fact that the Society was not issuing any revised certificate to them to enable them to borrow money from somewhere to pay the dues of the Society. It has not been shown that the Society is bound to give any such certificate. Moreover, about this grievance of theirs, the complainants have been writing letters to the Deputy Registrar, Co-operative Societies (''K'' East Ward, Bombay I)and were getting directions from the said officer, addressed to the Secretary/Chairman of the respondent Society. If the office bearers of the Co-operative Society are not complying with the directions of the Deputy Registrar, Co-operative Societies, the complainants can make complaint to the said officer. In fact, the complainants have produced letter to show that the Deputy Registrar, Co-operative Societies has issued show-cause notice to the Managing Committee of the Society about the alleged mismanagement and misappropriation. The complainants themselves have addressed a letter dated 3rd September, 1992 addressed to this Commission to show that the allegations contained in the show-cause notice issued to the Managing Committee of the Society have been proved and the Managing Committee has been dismissed. We have not been able to understand that when the complainants are approaching the Deputy Registrar, Co-operative Societies for taking action against the Managing Committee of the Society, how they can have second recourse to this Commission about the mismanagement of the affairs of the Society by the Managing Committee. In any case this Commission is not concerned with the alleged activities of the Managing Committee. Lastly, it was argued that the directions issued by the State Commission are not of binding nature. We are of the opinion that that directions had been issued by the State Commission just to help the complainants otherwise under Section 14(1) of the Consumer Protection Act no such directions can be issued. We do no want to dwell upon this matter as the Society has not come before us in appeal.

WE have carefully gone through the documents filed in the appeal and we are of the opinion that the complainants are not entitled to any further relief.

TRULY speaking it is not a case of consumer dispute under the Consumer Protection Act. The right forum for a member of a Co-operative Society to agitate his grievance is the Co-operative Court under the Maharashtra Co-operative Societies Act. Accordingly, the appeal fails and the same is dismissed. In the circumstances of the case, we make no order as to costs. Appeal dismissed.