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Lt Col U B Dhaiya vs. Haryana Officers & Public Enterprises dated 2014-09-12

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 2590 OF 2012

(From the order dated 21.05.2012 in First Appeal no. 3660 of 2001 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

 

Lt Col U B Dhaiya                                                                            Petitioner

Son of Shri Suraj Bhab

Resident of Flat no. 139

Hope Apartments

Sector 15 II

Gurgaon (Haryana)

 

Vs.

                                                              

Haryana Officers & Public Enterprises                                        Respondent

Employees Welfare & Cooperative Group

Housing Society

Hope Apartments

Sector 15 II

Gurgaon (Haryana)

                                                                       

BEFORE:

 

       HON'BLE MR. JUSTICE AJIT BHARIHOKE   PRESIDING MEMBER 

      

For the Petitioner                             Mr H G R Khattar, Advocate

 

For the Respondent                        Mr Ashish Aggarwal, Advocate

 

PRONOUNCED ON :  12th  SEPTEMBER, 2014

ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

 

            This revision petition is directed against the order dated 21.05.2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula (‘the State Commission’) in First Appeal no. 3660 of 2001, whereby the State Commission has allowed the appeal filed by the respondent against the order of the District Forum on the ground of limitation.

2.         Briefly put the facts relevant for disposal of the revision petition are that the respondent – Cooperative Society was engaged in the development and construction of flat in Hope Apartments in Pocket X, Sector 15, Urban Estate, Gurgaon for its members. The petitioner originally was not a Member of the Cooperative Society which commenced the development and construction work in 1993. The petitioner in the year 1995 approached the respondent – Society for becoming a Member, the respondent Society vide letter dated 28.07.1995 acceded to the request of the petitioner for enrollment as a member, subject to certain conditions. The relevant portion of the letter is reproduced below:

 

“We are pleased to accept your request for enrolment as Member of the Society for allotment of a flat in Hope Apartments at Gurgaon on the following terms and conditions:

(i)                      That you are a domicile/ resident of Haryana or Chandigarh

(ii)                    That you will submit an affidavit to the effect that you do not own any residential house or plot within municipal limit of Gurgaon and you are not a Member of any other Cooperative Group Housing Society in Haryana;

(iii)                  That you would pay upto date installments towards the cost of flat along with interest @ 30% compounded  six monthly on old installments paid by old members within one month of issue of this letter, failing which it would be presumed that you are not interested in the membership/ allotment of flat and this offer shall stand withdrawn without any further communication.

The estimated cost of a flat works out to Rs.9.50 lakhs including the cost of       land, power sub-station and other common facilities, like health club, swimming pool, shopping arcade, etc. Thus you are required to pay an amount of Rs.9.50 lakh as principal amount for a flat plus Rs.4,75,643/- as interest which has been calculated on the above-mentioned rate upto 31st July 1995. You are requested to take necessary action in the matter at the earliest.”

 

3.         The petitioner completed the formalities and paid the demanded sum of Rs. 9.5 lakh along with interest of Rs.4,75,643/- calculated at the rate of 30% on the principal amount and he was enrolled as a Member. Subsequent to the enrollment flat no. 139 Hope Apartments, Pocket X, Sector 15 II, Gurgaon was allotted to the petitioner.

4.         Subsequently, in view of the order of the State Commission in the matter of one original Member Mr B K Aggarwal, Additional District and Sessions Judge, Haryana vs Haryana Officer and Public Enterprises Employees Welfare Cooperative Group Housing Society, the respondent held General Body meeting on 15.03.1998, to consider the revised rate of interest in the context of the decision of the State Commission and passed the following resolution:

“It was discussed and unanimously decided that rate of interest to be charged in late payment by members to be reduced from 24% to 30% to 12% to be compounded after six months. The amount becoming due to the members as a result of above reduction of rate of interest will be refunded to the members after expiry of one year i.e., 15.03.2009”.

 

5.         In view of the above the revision petitioner sought refund of the excess interest charged from him at the time of enrollment as a Member. The request wasdeclined, claiming deficiency of service petitioner approached the District Forum, Gurgaon.

6.         The complaint was resisted by the respondent. In the written statement the respondent took the plea of limitation as also locus standi of the complaint to file consumer complaint. On merits the respondent opposite party admitted that the above noted resolution passed in the General Body meeting held on 15.03.1998. It was however, pleaded that the benefit of the aforesaid resolution was not available to the petitioner and this fact was clarified and modified vide resolution dated 11.02.2001.

7.         Learned District Forum on consideration of the pleadings of the parties and the evidence, allowed the complaint and directed the petitioner to pay to the respondent a sum of Rs.4,64,812/-.

8.         Being aggrieved by the order of the District Forum the respondent preferred an appeal and the State Commission vide its impugned order dismissed the complaint as barred by limitation.

9.         Mr.H.G.R.Khattar, Advocate for the petitioner has contended that the State Commission has committed an error in dismissing the appeal preferred by the petitioner on the ground of limitation ignoring the fact that as per the General Body Resolution of the opposite party   Society dated 15.03.1998, the refund of the excess interest charge was to be made after the expiry of one year w.e.f.15.03.1999.  Therefore, the cause of action arose on 15.03.2000.  As such, the consumer complaint was filed within the period of two years as prescribed under section 24-A of the Consumer Protection Act, 1986. 

10.       There is merit in the contention of the petitioner.  On perusal of the impugned order it transpires that the State Commission has proceeded on the premise that cause of action for filing of complaint arose in year 1996 when the petitioner received letter dated 12/13.04.1996, declining the request of the petitioner for refund of excess amount paid by him.  This observation is against the facts.  As per the complaint, the complainant was aggrieved because of failure of the respondent Society to refund him the excess interest charged in terms of the resolution of General Body Meeting dated 15.03.1998.  On perusal of the resolution, it transpires that general body had decided that excess interest charged on account of late payment of the member would be refunded after the expiry of one year from the date of resolution dated 15.03.1998.  Thus, it is obvious that cause of action for filing of the consumer complaint arose on 15.03.1999.  As per section 24-A of the Consumer Protection Act, 1986, the period of limitation for filing a consumer complaint is two years from the date of cause of action.  The instant case was filed by the petitioner on 15.01.2001, which is well within the prescribed period of two years.  Thus, the order of the State Commission holding that the complaint filed by the petitioner is barred by limitation, is not sustainable.

11.       The State Commission has no touched the merits of the case in the impugned order.  Ordinarily, we would have remanded the matter back to the State Commission for deciding the appeal on merits but taking note of the fact that consumer complaint was filed more than 13 years back, we have taken upon ourselves to look into the merits of the case and dispose of the case finally.  Thus, we have heard learned counsel for the parties on merit.   

12.       On merits, it is contended on behalf of the petitioner that the order of the District Forum cannot be faulted because the General Body Resolution dated 15.03.1998 is equally applicable to all the members of the society.  Learned counsel has thus urged to allow the revision, set aside the order of the State Commission and restore the order of the District Forum.

13.       Mr. Ashish Aggarwal, Advocate for the respondent on the contrary has contended that  order of the District Forum is not sustainable because it is based upon incorrect interpretation of General Body Resolution dated 15.03.1998.

14.       I have heard considered the rival contentions.  So far as merits of the case is concerned, the question which needs determination is whether the petitioner can claim benefit of General Body Resolution of the respondent Society dated 15.03.1998?  The text of the resolution is reproduced herein before.

15.       On reading of the said resolution, it is clear that the general body had decided to reduce the rate of interest to be charged in case of late payment by the members to 12% and also to refund the excess interest received on account of late payment from a member.  Now the question is whether the petitioner paid 30% interest on the principal amount of Rs.9.5 lakhs to the respondent Society in his capacity as a member?  Answer to this question in my opinion is in the negative. Undisputedly, the petitioner was inducted as a member in the respondent Society at a later stage.  On perusal of the copy of the letter dated 28.07.1995, it is clear that request of the petitioner for enrolment as a member of the Society was contingent upon his fulfilling certain formalities and also paying estimated cost of the flat i.e. Rs.9.5 lakhs including the cost of land and other facilities plus 30% interest thereon compounded on six monthly basis.  Admittedly, the petitioner paid said amount and thereafter became member.  Thus 30% interest alongwith the principal amount was paid by the petitioner as consideration amount for becoming member of the Society and not as a member of the Society on account of late payment of any instalmentdue from him.  Thus, in my view, the above resolution dated 15.03.1998 is of no avail to the petitioner.  As such the Society cannot be held deficient in service in declining to refund the interest component over and above the 12% interest.

 

16.       In view of the discussion above, the order of the State Commission dismissing the complaint as barred by limitation is not sustainable.  However, on merits, it is found that the order of the District Forum is not sustainable.  Therefore, revision petition is disposed of with the observation that order of the District Forum is set aside and complaint is dismissed.  No order as to costs. 

 

 

…………………..………..

     [ Ajit Bharihoke J. ]

      Presiding Member

 

 


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