A.P. Sahi, President

Both these appeals question the correctness of a common order passed by the SCDRC, Maharashtra in CC/241/2001 dated 07.03.2012 whereby the complaint of Mr. Y.K. Mehta, the appellant in FA/263/2012 has been allowed. The said appellant aggrieved by the quantum awarded has filed Appeal No.263/2012.

2. The Housing Society has been directed to pay Rs.50 lacs to the complainant together with other costs imposed that has filed FA/447/2012 assailing the order on the ground that the complainant was not entitled for any relief as he was a defaulter and the Society had in accordance with the Bye-laws appropriately cancelled his allotment and thereafter had re-allotted the premises to Mr. Mohan Joshi, the opposite party No.4. The prayer made by the Society is therefore to set aside the impugned order passed by the State Commission.

3. The background of the case is that undisputedly Mr. Mehta is a member of the Society and was also its Chairperson between 1989 - 1999. He was allotted flat No.702 as per the allotment letter dated 29.04.1999 which is extracted herein under: -

                          'Dated: 29/4/99

                          ALLOTMENT OF FLAT

                          To,

                          Shri Y.K. Mehta

                          106, Babar Road,

                          New Delhi 110001

                          We hereby allot you a flat in the building Mohana 'A' Wing Flat No.702 on Seventh Floor on the prescribed building of our Society.

                          The total cost of the flat is valued Rs.6,55,025/- approx. and the area admeasuring 985 sq. ft.

                          We have received a sum of Rs.1,60,860/- so far by cheque as and by the way of advance payment in respect of the flat.

                          ....Sd/-..

                          SECRETARY'

4. A perusal thereof would indicate that against a total cost of Rs.6,55,025/-, a certain amount had been received by cheque that is stated therein. The Society raised a demand on 12.10.1999 and once again on 25.10.1999 and other reminders with regard to the balance of the payment. Admittedly, the complainant Mr. Mehta wrote a letter on 08.11.1999 praying for extension of six months' time to clear his dues as his son's final year MBA exam and cost of education had intervened. Letter dated 08.11.1999 at page 165 is extracted herein under: -

                   'From:

                   Y.K. Mehta

                   106, Babar Road, New Delhi-110001

                   Date: 8.11.1999

                   To:

                   Shri A.C. Johny,

                   Secretary, Doordarshan Employees' Cop.

                   Group Housing Society Ltd., Bombay-63

                   Sir,

                   In response to your notice dated 25.10.1999, I wish you to request you to kindly allow me six months time to clear my dues in view of my son's Final year MBA cost of education. I shall also be grateful if the Society could arrange suitable loan for me as mentioned in your minutes dated 31.12.1998 (on page 5). If so, I may clear my dues at the earliest.

                   With kind regards,

                   Yours Faithfully

                   ....Sd/-......

                   (Y.K. Mehta)'

5. According to the complainant, the Managing Committee of the Society and the General Body did not entertain the said request of the complainant and instead on 12.11.1999 the Managing Committee made a recommendation to the General Body to cancel the allotment, which recommendation was taken up in the 10th Annual General Body Meeting that was held on 13.11.1999. A resolution was passed by the General Body regarding the allotment of Mr. Y.K. Mehta alongwith other allottees which according to the Society were allegedly defaulters. Resolution No.7 of the General Body is extracted herein under: -

                   "Date: 16.11.1999

                   MINUTES OF THE 10TH ANNUAL GENERAL BODY MEETING

                   The 10th Annual General Body Meeting was held on 13.11.1999 under the Chairmanship of Shri S.C. Bhosle at 5.45 p.m. at the building site, 60 members were present.

                   1. The Chairman asked the body whether to read previous General body meetings minutes or not the members said not necessary, the minutes were passed unanimously.

                   Proposed by Hebber Solomon

                   Seconded by J.N. Keskar.

                   2. The report for the year 1995-99 was read by the Secretary, and passed unanimously.

                   Proposed by D. Venkitachalam

                   Seconded by S.P. Satar.

                   3. Copies of audited Statement of Accounts for the year 1996-97, 1997-98 were distributed to the members who were present, after brief discussion the statement of accounts was passed unanimously.

                   Pronosed by S. L. Sharnia

                   Seconded by D. Venkitachalam.

                   The Secretary explained that due to the family problems of the Statutory Auditor he has gone to Delhi. Hence the Audited Statement of Accounts for the year 199899, could not presented in this meeting. We hope the Auditor will be returned very soon and we convene a Special General Body Meeting and present the Audited report for the year 1998-99 without further delay.

                   4. The Chairman requested the Returning officer Shri P.B. Sarfare to declare the names of the newly elected committee members. The returning officer called the elected members and introduced to the General Body, 3 newly elected members were absent in the meeting.

                   5. The General body appointed M/s. Mahendra Kothari as Internal Auditor for the period of 1999-2000.

                   Proposed by H. Bhaskaran Seconded by W.P. Raju

                   6. The General body appointed M/s. Mahendra & Co. as Solicitors for the period of 1999-2000.

                   Proposed by Krishnan Ramaswamy

                   Seconded by K.V. Venkat.

                   7. The Managing Committee Meeting was held on 12.11.1999 and decided to cancell the allotment of flat in respect of Shri Y.K. Mehta, Miss. Arpana Aggarwal & Manjudevi Gaderiwal because these members are persistent defaulters and not responded to pay their dues so far.

                   Shri P.D. Tulsyan pointed out that each defaulting members payment and percentage work of their flats to be taken into consideration and decide before initiating any action. The Secretary explained that the balance work percentage is less than their dues. Inspite of Several reminders these members are not responded to pay their dues. The managing committee find very difficult to manage such members and brought to the notice of the General Body for necessary action. The General body passed the following resolution.

                   "Resolved that be & hereby accepted the recommendation of the managing committee to cancel the flat allotment Y.K. Mehta, Arpana Aggarwal and Manjudevi Gaderiwal."

                   Proposed by P. D. Shinde

                   Seconded by S.S. Barve.

                   The Secretary also informed that about 32 members are still to pay their outstanding dues. Shri Thakurdas and H. Bhaskaran demanded to read out the names of those members. The Secretary asked that it is necessary to read the names, Shri 1. Chavan opined that instead of reading the names give 10 days time to those defaulters to, pay their dues if they are not responded the flat allotment to be treated as cancelled. The following resolution was passed:

                   "Resolved that be & hereby decided to give 19 days time to the defaulters to pay their dues, if they are not. responded then their flat allotment will be treated as cancelled."

                   Proposed by 1. Chavan

                   Seconded by D. Venkitachalam.

                   8. Shri Hemant Patil Demanded why the Managing Committee not initiated any action against, the Architect, his calculation of percentage submitted in the Special General Body Meeting which was held on 1.2.1998 was. hardly 55% and the amount to pay to the contractor was about Rs.70 lacs only. After the consent terms and Arbitration award we have to pay 3 times more than his certified amount.

                   After brief argument the Secretary asked the body what step to be taken against the Architect, Shri Hemant Patil, S. L. Sharma and the entire body demanded to ask his explanation within 10 days.

                   The Chairman concluded the meeting with a vote/of thanks:

                   ...Sd/-....

                   Chairman'

6. The complainant aggrieved by the action of the Society treating him to be a defaulter filed CC/428/2000 before this Commission but on account of the pecuniary jurisdiction involved the same was withdrawn and the Consumer Complaint giving rise to the present Appeal was filed on 09.06.2001 before the State Commission.

7. The State Commission allowed the complaint on 04.05.2009 directing the Society to give possession of flat N.702 to the complainant on receiving the balance consideration. The complainant is stated to have tendered the balance amount of Rs.1,90,645/- by way of demand draft on 13.05.2009 to satisfy the payments.

8. The Society after the cancellation had allotted the said flat to Mr. Mohan S. Joshi and this subsequent allottee filed FA/278/2009 before this Commission assailing the order dated 04.05.2009 on the ground that the order had been passed without his participation in violation of principles of natural justice. The said appeal was allowed by this Commission and the order of the State Commission dated 04.05.2009 was set aside directing the matter to be heard once again in view of the changed circumstances. However, the observations made by this Commission need to be referred that has already been extracted in paragraph-4 of the impugned order.

9. It is after remand that the matter was once again heard by the State Commission and the complaint has been allowed by holding the Society to be deficient but the Commission did not direct the handing over the possession of the flat and modulated the order by awarding a lumpsum compensation of Rs.50 lacs after calculating a computation based on the total area of the flat, its current market price @ Rs.8000/- per sq. ft. and directed the payment to be made in the ratio of the consideration earlier paid by the complainant.

10. It is this order which has been assailed by both the parties as indicated above. We have heard learned counsel for both the parties in both the appeals.

11. At the outset, we may note that the flat which had been offered to Mr. Mehta for a sum of Rs.6,55,025/-, after its cancellation was re-allotted to Mr. Joshi for a sum of Rs.10,76,000/-.

12. We therefore proceed to consider the action of the Society and the justification of the cancellation of the allotment of the flat. On facts there is no dispute that demand letters had been sent apart from reminders calling upon Mr. Mehta to deposit the balance of the amount against which he made a request on 08.11.1999 for giving him more time to deposit the balance of the amount. Within a short span of a few days his allotment was cancelled on the recommendation of the Managing Committee by the General Body in its meeting held on 13.11.1999 that has already been extracted herein above. We do not find any consideration of the request of Mr. Mehta having been noted and to the contrary several other allottees were extended the benefit of extension of time for depositing their amounts. This treatment to Mr. Mehta therefore was obviously discriminatory and non-consideration of his request does not seem to be based on any justification whatsoever. The Society therefore was deficient and acted unfairly by cancelling the allotment of Mr. Mehta without considering his request for extension and at the same time extending the time for other defaulters to make payments. The State Commission while proceeding to pass the impugned order has taken into consideration all these factors and has arrived at the correct conclusion that there was no justification for not considering the request of Mr. Mehta and that it was incorrect to treat him as a persistent defaulter.

13. The State Commission also appears to be justified in its finding that no notice was given to the complainant that if he did not make the payment, his allotment would be cancelled. The State Commission also referred to the Society Bye-laws and its impact and then held that the action of cancellation was not justified. We entirely agree with the conclusion drawn on this score by the State Commission.

14. Having held that we do not find any merit in the contention raised on behalf of the Society that they were justified in cancelling the allotment by treating the complainant to be a persistent defaulter and as such there is no valid ground for them to question the correctness of the impugned order to that extent and accordingly the appeal filed by the Society FA/447/2012 deserves to be dismissed.

15. Coming to the issue of a lesser payment having been directed by the State Commission as raised by the complainant, we find that the complainant has been compensated after recording findings in paragraph-15 of the impugned order and by making calculations which seem to be justified and adequate. We find the said calculations and the relief granted by the State Commission to be in conformity with the observations made by this Commission in its order passed in Appeal No. 278/2009 while remanding the matter to the State Commission that has been quoted in paragraph-4 of the impugned order. This Commission had observed that the State Commission perhaps could have modulated the relief to the complainant 'by awarding suitable compensation for the illegal termination of his membership, cancellation of allotment and his non-delivery.' The State Commission in our opinion has taken an appropriate and a balanced view of the matter while quantifying compensation inasmuch as the payments made by the complainant upto the stage of the filing of the complaint was Rs. 4,64,380/- as against the total price of Rs. 6,60,025/-. There was therefore a proportionate shortfall in the payment made by the complainant and the fact that the payments were in a slight default stands confirmed by the fact that the complainant himself had moved an application on 08.11.1999 to grant extension of time for making the balance payments.

16. Learned counsel for the complainant has urged that the balance of the payment was made good on 13.05.1999. This payment was obviously made after the complaint had been allowed in the first round of litigation on 04.05.2009. As noted above, the said order had already been set aside in Appeal and therefore any payment made as a consequence of the order dated 04.05.2009 cannot be counted towards the deposit that was payable by the complainant in terms of the allotment. It is for this reason that the State Commission while calculating the amount has extended a proportionate benefit to the complainant as computed in paragraph-15 of the impugned order which we affirm and we find to be justified.

17. Learned counsel for the complainant alleged that the Society had not challenged the order dated 04.05.2009 and therefore they are estopped from raising any issue regarding deficiency in service or defend themselves. We cannot agree to this submission inasmuch as there cannot be any estoppel against statute because the case had been remanded back by this Commission for decision afresh and it is after remand that the impugned order dated 07.03.2012 has been passed. Even if the Society had not earlier challenged the order dated 04.05.2009, and it was only Mr. Joshi who had filed the Appeal, yet the impact is that the earlier order of the State Commission dated 04.5.2009 stood annulled and if a fresh order has been passed by the State Commission thereafter, the Society has a statutory right of Appeal that has been filed as FA/447/2012. The said Appeal is maintainable and therefore there is no estoppel against the Society from challenging the same. Thus the argument of the learned counsel for the complainant - Appellant has no force.

18. We have perused the payment details as provided by the learned counsel for the complainant - Appellant through the calculations mentioned in the written argument filed vide diary No. 879 dated 08.01.2024. There is no dispute on the figures given therein but the fact remains that there was a delay in the payments by the complainant for which he had made a request to the Society for allowing it to be done after some time. We have already discussed the entire facts in this regard and have found that the Society had acted in an unjust manner by cancelling the allotment as such the order impugned finds our affirmance.

19. As discussed hereinabove since the quantum calculated by the State Commission has taken a balanced approach on the facts of the present case, we find no reason to interfere with the same in FA/263/2012 filed by the complainant which also deserves to be dismissed.

20. Accordingly, both the appeals stand dismissed with no order as to costs.