T.K.A. Padmanabhan vs Abhiyan CGHS Ltd

Petitioner/Complainant aggrieved by impugned order dated 26.02.2013 passed by State Commission, Delhi (for short, ''State Commission'') has filed present petition under Section 21(b) of the Consumer Protection Act, 1986 (for short, ''Act'').

Respondent/Complainant filed a consumer complaint against Respondent/Opposite Party, on the ground that respondent has made inordinate delay in giving him possession of flat in question.

Respondent in its written statement referred to an Arbitration Agreement executed between the parties with regard to the flat in question. It is stated, that any dispute and differences arising in relation to members of the society and affairs of the society, would be decided by the Registrar of the Cooperative Societies, as per provisions of Cooperative Societies Act, 1972. In this regard, respondent also filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 (for short, ''Arbitration Act'') on 16.09.2005 before the District Forum. This application was contested by the petitioner.

District Consumer Disputes Redressal Forum, Sheikh Sarai-II, New Delhi (for short, '' District Forum'') vide its order dated 27.07.2009, allowed the application and referred the parties to the arbitration and disposed of the complaint accordingly.

Being aggrieved petitioner filed appeal before the State Commission, which endorsed the views of the District Forum and dismissed the appeal vide impugned order.

Hence, this revision.

We have heard the petitioner who argued in person as well as learned counsel for respondent and gone through the record.

It is stated by petitioner, that his complaint was admitted by the District Forum and notice was issued to the respondent. Thereafter, respondent appeared before the District Forum on 21.09.2005 and filed application under Section 8 of the Arbitration Act. After the complaint has been admitted, the matter could not have been referred to the Arbitrator.

On the other hand, it is submitted by learned counsel for respondent, that as per the Cooperative Societies Act, 1972, disputes arising between members and societies are to be referred to the Arbitrator. Hence, there is no ambiguity in the orders passed by the Fora below. In support, learned counsel has relied upon following decision of Apex Court : "Rashtriya Ispat Nigam Ltd. and another v. Verma Transport Co., (2006) 7 Supreme Court Cases 275."

It is an admitted fact, that petitioner had taken the physical possession of the flat on 27.02.2004, though there was delay of 11 months in giving possession on behalf of the respondent. However, the consumer complaint was filed on 08.08.2005, that is, about one and half years, after petitioner got the possession. There is nothing on record to show, that at the time of taking possession of the flat, petitioner had lodged any protest with regard to delay or took conditional possession. When petitioner had taken the possession of the flat on 27.0.2004, unconditionally and without any protest, thereafter he cease to be a Consumer. The agreement executed between the parties, comes to an end. Thus, on the date when Consumer Complaint was filed, there was no privity of contract between the parties. As such, the consumer complaint on the face of it is not maintainable.

Accordingly, in view of the aforesaid discussions, we hold that since the petitioner was not ''Consumer'' at the time of filing of the complaint, consumer complaint is not maintainable. Accordingly, present revision petition stand dismissed.

No order as to cost. Revision petition dismissed.