MANOJ KUMAR vs Narwana Cooperative Group Housing Society Ltd

THIS revision petition no. 3879 of 2012 has been filed against the order dated 28.05.2012 passed by the Delhi State Consumer Disputes Redressal Commission, Delhi ( ''the State Commission '') setting aside the order dated 27.05.2009 of the District Consumer Disputes Redressal Forum (East) Saini Enclave, Delhi ( ''the District Forum '').

THE brief facts of the case given by the petitioner in the complaint are as follows: The petitioner had purchased flat no. C - 112 through General Power of Attorney executed between Shri Krishan Das son of Shri Jai Gopal c/o Sri Durga Provision Store, Shop no. 10 Sarvpriya Vihar, Hauz Khaz, New Delhi - the executants in favour of Shri Rajinder Kumar son of Shri Raj Kumar resident of IX/6778, Shyam Gali, Gandhi Nagar, Delhi. This General Power of Attorney was duly registered by the Sub-Registrar of Seelampur, Delhi dated 31.01.1995. As per terms and conditions of the General Power of Attorney, he claimed to be entitled to file this complaint case against the Narwana Cooperative Group Housing Society Ltd., Delhi.

The Narwana Cooperative Group Housing Society Ltd., Delhi obtained the membership of Delhi Housing Finance Co., to provide the loan to its allottees of flats. For repayment of loan from its allottees of flats, the Narwana Cooperative Group Housing Society Ltd., stood as guarantor on behalf of the allottees. The loan taken by Shri Krishan Das the original allottee of flat no. C - 112 was duly repaid by Shri Rajinder Kumar the General Power of Attorney holder vide receipt no. 2574 dated 18.03.1995 for Rs. 65,548/-. Against the repayment of loan of Rs.65,548/- the share money between Rs.8,000/- to Rs.9,000/- was payable by the respondent society to Shri Krishan Das the original allottee of the flat. But the respondent society has not paid this share money as yet.

THE respondent society has issued a statement of demand for the quarter ending on 30.06.202 (including arrear dues upto 31.03.2002) for Rs.9310/- against paid services charges e.g., common lights, lifts, generator pump house, sweepers, electrician and plumber etc. On the contrary the respondent society is not providing proper service. Petitioner is ready to pay the service charges in future in case the respondent society gives an undertaking in writing to provide proper services in future. The respondents taking objections has stated in their written statement has stated as follows: The present complaint filed by the complainant is not maintainable under law, as the Hon ''ble Consumer Disputes Redressal Forum is barred by jurisdiction under the provisions of Delhi, Co-operative Society Act, 2003 and it was only the Registrar of the Co-operative Society at Delhi, who has the jurisdiction to entertain any dispute inter-se the members of the Society and the Managing Committee of the concerned Co-operative Society. The complaint is liable to be dismissed on this count alone.

THE present complaint is not maintainable before this Hon ''ble Forum as the services rendered on no profit no loss basis are free of cost and thus outside the purview of the Consumer Protection Act. The present complaint is not maintainable under law due to the reason that the complainant was/ is not the owner of the flat in question as per records maintained by either the respondent society or the Registrar Co-operative Society, Delhi and as such could not have demanded for the refund/ share money of the capital which had been paid by the original allottee Shri K D Gupta could only be refunded to the owner on record and not to the occupier of the flat and thus the complaint is liable to be dismissed. That the contents of paragraph no. 1 of the complaint are absolutely wrong and hence denied emphatically. However, it is submitted for kind consideration of this Hon ''ble Forum that the complainant never resided in the Society, hence, the question of availing the services of the society does not arise at all. The District Forum in its order dated 27.05.2009 has stated that while Shri K D Gupta may have been original allottee, "but subsequently, he (the petitioner) has step in the shoe of Shri K D Gupta the original allottee therefore, he shall be treated original allottee and he is entitled to get the benefit of the society towards the residents of the flat in question. However, the version of the OP is liable to be believed that the society is being run on no profit no loss basis. But if anything is due against the society in favour of anybody, he has to pay. The complainant shall be treated as Member of the OP society as the place of Shri K D Gupta original member of the society from whom the complainant has acquired the flat in question. OP has also not filed documentary evidences on record which proves that he has returned the share money to either any of the allottees including Shri K D Gupta ".

HENCE , the District Forum directed the "OP 2 to refund the share money to the complainant Shri Manoj Kumar with the interest @ 6% per annum, from the due date till the payment is made. As regards the quashing bills, the same is quashed at present. However, the OP may raise the proper bill if the proper service is being provided to the complainant in future. The complainant is also entitled for compensation of Rs.5000/- for physical and mental harassment along with Rs.500/- cost of litigation from the OP which shall be paid by him to the complainant ". The State Commission, however, in its order was of the opinion "that Section 83 of the Delhi Cooperative Society Act, 2003 very clearly and categorically places a bar on courts tribunal or authority to decide or settle any dispute between the member and the society. This has not been considered at all by the District Forum.

THE respondent has contended that a finding may be obtained from the District Forum on this legal issue therefore, the case may be remanded back to the District Forum. We do not agree with the contention of the complainant in this regard. The matter is apparently a legal issue, which we are deciding at this stage. It may be pointed out that the complaint was filed in the year 2002 and it is near about a decade that it was decided at present, therefore, no fruitful purpose will be served to remand this case to the District Forum. Under these circumstances, the appeal is allowed and the matter dated 27.05.2009 is hereby set aside, consequently the complaint no. 548 of 2002 filed by the respondent shall stand dismissed ". Hence, this present revision petition. We have heard the learned counsel for the petitioner and have perused the records carefully.

THE main grounds taken are that the Hon ''ble State Commission failed to appreciate that the Central Legislature had consciously conferred a jurisdiction to the forum or the Commission as the case may be which has wide amplitude to mitigate the hardships of all consumers alike cutting across all walks of life. - the State Commission failed to appreciate that deficiency in service provided by a cooperative society would still attract the remedial provisions of the Consumer Protection Act which is a social welfare legislation to the aid even of an occupant or a beneficiary being consumers under the said Act. - the State Commission failed to appreciate that assuming without admitting the allegations of the respondent society to be true to the point that the petitioner herein is not the original allottee but an occupant of the flat in question, the petitioner would still be a consumer under Section 2 (d) (ii) of the Consumer Protection Act, 1986. - the State Commission failed to appreciate that the question as to whether dispute relating to deficiency in service against a cooperative society can be made before and /or disposed of by a Consumers Forum is no more res integra as it is now well settled that Consumer Forums enjoy wide additional jurisdiction even in respect of specific remedies under other Acts.

THE revision petition has been filed with a delay of 24 days. As per the application for condonation of delay, the reasons given for the delay are as follows: "The petitioner states that after hearing was concluded, the judgment was reserved by the Hon ''ble State Commission. The petitioner was appearing before the Hon ''ble State Commission in person and as such was unable to keep track on the daily cause list of the Hon ''ble State Commission. As such the petitioner did not know as to when the impugned judgment and final order was passed. It appears that the registry of the Hon ''ble State Commission despatched the envelope containing the certified copy of the impugned judgment and final order on 04.07.2012 and the same was served upon the petitioner on 07.07.2012. Since the petitioner has at all material times been prosecuting the present case in person and since his complaint was dismissed and the appeal of the respondent society was allowed only on questions of law, the petitioner took some time in trying to comprehend the true purports of the judgment. The petitioner who is otherwise a businessman tried to take time off his busy schedule and study the appropriate remedial measures. The petitioner even tried to draft the pleading but in the whole process lost about a month of precious time. Thereafter the petitioner gave the file to a learned Advocate who took about a month ''s time to study the file and prepare the draft revision petition. Even thereafter, the file was being shown to the present learned counsel of the petitioner who also took about a month ''s time to study the file and redraw the revision petition as it reads now. Thereafter, the learned counsel for the petitioner took necessary steps for filing the revision petition before this Hon ''ble Commission with an application for condonation of delay in filing the revision petition ".

The explanation and justification given for the delay is very general in nature wherein no specific dates or the name of the advocate have been mentioned. The order of the State Commission was received on 07.07.2012 and there are no details to show what happened between the said date and 10.10.2012 the date of filing of the revision petition.

THE petitioner/complainant is supposed to explain the day-to-day delay, but needful has not been done. The petitioner has failed to provide ''sufficient case '' for the delay of 24 days. This view is further supported by the following authorities.

IN AnshulAggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that "It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras . In R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, it has been observed that "We hold that in each and every case the Court has to examine whether delay in filing the Special Appeal Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition. In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed that "It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by Section 5. If ''sufficient cause '' is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If ''sufficient cause '' is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bonafides may fall for consideration; but the scope of the inquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. "

INSOW Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807, it was held that "the expression ''sufficient cause '' cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such ''sufficient cause '' stated in the application and no such interference in the impugned order is called for ".

IN BalwantSingh Vs. Jagdish Singh and Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held: "The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005] ".

The present case is fully covered under the case laws cited above Supra. Accordingly, we find that there is no ''sufficient cause '' to condone the delay of 24 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.5,000/-. (Rupees five thousand only). Petitioner is directed to deposit the cost by way of demand draft in the name of ''Consumer Welfare Fund '' as per Rule 10 A of Consumer Protection Rules, 1987, within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation. List on 10th May 2013 for compliance.