NOBAL HARYANA EMPLOYEES COOPERATIVE GROUP HOUSING SOCIETY LIMITED vs Anil Kumar Sharma

THIS appeal is directed against the judgment and order dated 15.3.2004 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter to be referred as District Forum) vide which the complaint filed by the respondent Sh. Anil Kumar Sharma against the appellants-Nobal Haryana Employees Cooperative Group Housing Society Limited, Panchkula [for short referred to as Housing Society] and Haryana Urban Development Authority, Panchkula through Estate Officer [for short referred to as HUDA] was allowed partly and the appellant/O.P. No. 1 is directed to deliver the possession of Plot No. 405 to the complainant in accordance with law and directed to pay interest to him on the amount of Rs. 7,37,000/- @ 10% per annum w.e.f. 3.3.2001 till the date of delivery of possession. A sum of Rs. 3,000/- was awarded as cost of litigation. The learned Counsel for the complainant made a submission before the District Forum, which is noted in Para 4 of the impugned judgment and order that he did not seek any relief against HUDA/O.P. No. 2 and as such the District Forum treated O.P. No. 2 as a proforma party. The main contest was against the present appellant-Housing Society, impleaded as O.P. No. 1 in the complaint case. The proceedings of the complaint case were ex parte against the O.P. No. 1 - appellant, who as per the impugned judgment and order served and represented by Sh. S.P. Tuteja, Agent of O.P. No. 1. Sh. S.P. Tuteja, however, absented himself on the next date i.e., on 3.7.2003, which was fixed for filing the written reply. The complaint was thus allowed ex parte in so far as O.P. No. 1 is concerned. Mr. Pankaj Chandgothia, Advocate appeared for the appellant-Housing Society. Notice of the appeal was served on the respondent/complainant, who put in appearance through Mr. Mukand Gupta, Advocate. Record of the complaint case was summoned from District Forum-II, U.T., Chandigarh.

WE have heard the learned Counsel for the parties and perused the impugned judgment and order and the record of the complaint case. Mr. Pankaj Chandgothia, Advocate in the first place urged that the notice of the complaint case was not served on the appellant and Mr. S.P. Tuteja, who appeared as agent of O.P. No. 1 has no authority to represent the appellant/O.P. No. 1 as the appellant was, at that time, under the control of the Registrar, Cooperative Societies. It was pointed out that there was no valid document produced by Sh. S.P. Tuteja before the District Forum, which could satisfy the District Forum that he had the due authority to represent the appellant. The service of notice on the appellant was thus seriously disputed and it was contended that due to the non-service of the notice, the appellant as O.P. No. 1 could not put in appearance and filed written statement to the averments made in the complaint case and lead evidence in support of the defence case and thus an opportunity of hearing was denied to the appellant. Mr. Mukand Gupta, Advocate, on the other hand, submitted that the notice had duly been served on the appellant, who put in appearance through the agent namely Sh. S.P. Tuteja. Sh. Roshan Lal, who described himself as a Secretary of the appellant Housing Society had filed an application before the District Forum wherein affidavit of Sh. Roshan Lal, aforesaid, was filed and the comparison of the two signatures bearing in the affidavit dated 10.9.2004 and in the affidavit dated 11.8.2004 clearly differed and as such it was urged that no significance could be attached to the affidavit filed by Sh. Roshan Lal. It may, however, be pointed out that the description and identity of Sh. Roshan Lal as disclosed in the affidavit dated 11.8.2004 filed before the District Forum is same as the one given in the affidavit dated 10.9.2004 filed in appeal. In affidavit dated 11.8.2004 Sh. Roshan Lal described himself as ''son of late Sh. Parshotam Lal, Secretary of The Noble Haryana Employees Co-operative Group Housing Society Ltd., No. 19, Sector-5, Panchkula'' and in the affidavit dated 10.9.2004 the same address has been mentioned as ''Roshan Lal son of late Sh. Parshotam Lal, Secretary of the Nobel Haryana Employees Co-operative Group Housing Society Limited, No. 10, Section-5, Panchkula''. Both the affidavits were signed before the Oath Commissioner and the identity of the deponent can thus be not disputed. In Para 3 of the affidavit dated 11.8.2004 Sh. Roshan Lal deposed that the Society had received a complaint case from the President, District Consumer Forum-II, U.T., Chandigarh in Execution Case No. 163 of 2004. Summon for disposal of complaint case, Anil Kumar Sharma v. Noble Haryana Employees on 24.7.2004 against the order dated 13.7.2004. In Para 4 it was deposed that the present Management body of the society have not received any copy of the order neither with the notice nor earlier. In Para 5 a prayer was made for obtaining certified copy of order dated 15.3.2004 passed by the President, District Consumer Forum-II, U.T., Chandigarh so that the society could file an appeal. It appears from the perusal of this affidavit that the President of District Forum asked the office to report and the office made report "Sir, Certified copy issued w.d. No. 1014 dated 25.3.2004 through courier. But copy received back unserved and envelope attach with the file". The copy of the impugned judgment and order was, however, issued and received by the learned Counsel Mr. Pankaj Chandgothia, Advocate on 19.8.2004. The address of the appellant as mentioned in the complaint case shows that the complainant mentioned two address of the Nobal Haryana Employees Cooperative Group Society Limited, Panchkula. The first addresses stated Registered Office 636, Sector 20-A, Chandigarh through its President and the second address is Nobal Haryana Employees Cooperative Group Housing Society Ltd., Panchkula, Plot No. 19, Sector 5, Mansa Devi Complex, Panchkula. The appellant has in the appeal given the address of the Housing Society as Plot No. 19, Sector-5, Mansa Devi Complex, Panchkula. One of the contentions raised by the learned Counsel for the complainant is that Sh. S.P. Tuteja, who appeared and described himself to be the agent was never appointed as agent by the Housing Society in the complaint case. The Zimni order dated 2nd April, 2003 shows the presence of Sh. S.P. Tuteja, Agent of O.P. No. 1. The Zimni order does not show whether any valid document regarding his being the agent of the appellant Housing Society had been placed on record. The complainant placed on record all the complaint case along with Annexure C-3, which was signed by Sh. S.P. Tuteja as Secretary, however, there is nothing on record to show that the Housing Society passed any resolution authorising Sh. S.P. Tuteja to put in appearance on behalf of the Housing Society before the District Forum. HUDA was represented through Mrs. Suraksha Sharda, Advocate. Unless and until the Housing Society passed a resolution authorising Sh. S.P. Tuteja to be the person authorised to represent the Housing Society, the mere presence of Sh. S.P. Tuteja could not be held to be a valid representation of the Housing Society before the District Forum. In this view of the matter the District Forum went wrong in holding the service on the appellant through Sh. S.P. Tuteja. The District Forum shuld have asked Sh. S.P. Tuteja to place on record the copy of the resolution passed by the Housing Society authorising him to put in appearance before the District Forum. The result is that the District Forum had no valid evidence before it to show service of summons of the complaint case made on the appellant Housing Society. The appellant Housing Society was denied opportunity of hearing and contesting the complaint case. Accordingly, the appeal is allowed and the impugned judgment and order is set aside. The complaint case is remanded to the District Forum-II, U.T., Chandigarh with direction that it shall allow a reasonable opportunity, according to the provisions of the Consumer Protection Act, 1986 as amended upto date, to the appellant Housing Society to file written statement to the averments made in the complaint case and decide the same according to law after receiving the evidence and hearing the parties. The parties are directed to appear before the District Forum-II, U.T., Chandigarh on 30.11.2004. Copies of this order be sent to the parties free of charges. The order be also communicated to the learned Counsel for the parties. Appeal allowed.