(The complainant filed a complaint before this Commission against the opposite party praying to pay a sum of Rs.2,00,000/- given by M/s.RPG Cellular Services Ltd as deposit and to pay Rs.60,000/- towards interest at 18% p.a from 1.8.2004 and to pay Rs.93,070/- i.e. 18,614/- from November 2005 till March 2006 towards rent and hand over the two individual flats to the complainant and to pay Rs.6,00,000/- towards renovation charges for Gymnasium and to ay Rs.5,00,000/- towards repair charges and to pay Rs.5,00,000/- towards repair work to make the portion and direct the opposite party to get the name transferred in the name of individual flat owners and to pay Rs.5,00,000/- towards compensation for mental agony and costs. This complaint coming before us for final hearing on 16.09.2014 and heard the arguments on either side, perused the records and passed and passed the following order:)
A.K. Annamalai, Presiding Judicial Member
The complaint filed under Sec.17 of the Consumer protection Act, 1986.
The complainant is the Apartments owners Association filed the complaint claiming direction to the opposite party to pay a sum of Rs.2,00,000/- given by one RPG Cellular Services deposits Rs.60,000/- towards interest for the same directing the cellular agency to execute the fresh lease agreement and to pay Rs.93,070/- towards rent already paid by the RPG Cellular and handed over the two individual flats which are converted from common area and to pay Rs.6,00,000/-towards renovation charges for Gymnasium and to pay Rs.5,00,000/- each towards repair charges and to make the portion for repair getting the name transferred particulars in the name of individual flat owners relating to electricity and to pay Rs.5,00,000/- as compensation for mental agony and for costs alleging deficiency of service and negligence by the opposite party in handed over the constructed flats to the member of the association.
2. The gist of the complaint is briefly as follows:
The opposite party constructed 117 residential flats at 55,Arcot Road, Saligramam and the members of the 117 flats owners of the association taken possession of their flats pending works to be executed by the opposite party, believing the promise of the Managing Director of the opposite party and Memorandum of understanding was entered into on 30.07.2004 when the opposite party entrusted 3 cheques for Rs.25,69,673/- being the amount of the corpus fund. On 1.8.2004 the complainant took charge of the maintenance and found out various deficiencies committed by the opposite party the deposit of Rs.2,00,000/- given by M/s.RPG Cellular Services Ltd has not been handed over. The opposite party has provided Gymnasium that can only be used by four families and not for 117 families in the complex. The opposite party has remolded garbage room, meter room and generator room as two individual flats measuring not less than 1320 sq.ft and another 800 sq.ft as hall in which the opposite party has no right and attempted to sell the same to the 3rd parties. A legal notice was sent on 9.3.2006 calling upon to do certain services works and for handing over the converted flats. Further there was leakages in various flats in block 1 to 3 which are required Rs.5,00,000/- for repair and also another sum of Rs.5,00,000/- to make the place in and around the building usable and also the opposite party not effected the name transfer by the Tamil Nadu Electricity Board as per the Memorandum of understanding and also to cancel the lease given to RPG Cellular and make hem to enter lease agreement with the association and thereby the complainant file the complaint claiming the above reliefs.
3. The opposite party denying the allegations in their written version contended that the complainant is not a consumer as the complaint filed by him as Secretary of the Association is not maintainable as he has no locustandi, and on the date of filing the complaint he was removed from the post of secretary at an emergency Residents Meeting held on 31.01.2006 and the members of the complainants Association also submitted their resignations and it was announced fresh elections could be conducted as per the Resolution passed in the Extra Ordinary General Body Meeting since the complaint was filed on 13.4.2006 even prior to that date the secretary was removed from the post on 31.01.2006 itself and he was no locustandi to file this complaint. However in the government Notification dated 28.6.2006 the registration of the complainant’s association was cancelled. The opposite party admitted the construction of flats and handing over the same to the members of the Association and as per the memorandum of understanding relates to some common amenities which were also under process and being complied with none of the flat owners have made any complaint to the opposite party regarding any deficiency. The corpus fund was handed over to the complainant’s association regarding the RPG Cellular the opposite party is willing to hand over the deposit to the newly constituted executive Committee of the complainant at any time. RPG Cellular have been demanding the refund of advance money instead of handing over to the complainant since the complainant create trouble to the RPG Cellular the Gymnasium made ready for use and the key was sent by AD post as nobody wants to take charge of it and alleged conversion of garbage room and other area, the CMDA had inspected the complex and imposed forfeiture of caution deposit of Rs.12 lakhs and the hall has been handed over to the complainant and used by them as Community hall for the notice given reply was sent on 11.1.2004 and the complainant issued by repeating the second notice the building was taken over by the association on 1.8.2004 and it is the responsibility of the complainant association for proper maintenance and there are innumerable complaints against the worst functioning of the Association and the opposite party cannot be made liable for the failures of the complainant. Transfer of electricity is concerned due to non cooperation of the complainant and others opted to get the transfer has to be effected by themselves. Hence the complaint is to be dismissed as not maintainable with costs.
4. Both sides have filed their proof affidavits and documents and on the side of the complainant Ex.A1 to A8 and on the side of the opposite party Ex.B1 to B7 are marked.
5. The following points are for consideration :
1. Whether the complainant is not a consumer having no locustandi on the date of complaint since he was not an authorized person on behalf of the Aparments Owners Association as alleged by the opposite party ?
2. Whether there are deficiency of service on the part of the opposite party as alleged by the complainant in the complaint?
3. Whether the complainant is entitled for the claim as prayed for in the complaint?
4. To what relief ?
6. When the case was posted for arguments both sides have not turned up to submit their written arguments or to advance oral submissions after closing their arguments on the basis of materials and the documents relied upon by either side the order being passed on merits.
7. POINT NO.1 : In the complaint enquiry the complaint as M/s.Sidharth Heights Apartments Owners Association represented by its Secretary Sri Ramakrishna was filed before this Commission which was taken as CC.No.22/2006 on 13.4.2006. The complainant Sri Ramakrishna filed this complaint as representative alleging in the complaint that it is a society registered under the Societies Registration Act Bearing Registration No.46/2004 having its office at 55, Arcot Road, Saligramam, Chennai 600 093 and represented by is Secretary Sri Ramakrishna. The complainant in its complaint contended that the opposite party constructed 117 residential flats for the association members and were all the flats owners occupied them pending completion of work, on the assurance given by the opposite party but the complainant failed to file any letters of authorization from the owners of the association on behalf of them to file the complaint and as well as also failed to file their registration certificate No.46/2004 for the proof as recognized society registered under the Act as per the provision of Consumer Protection Act, 1986. Under Sec.2 (b) a complainant means under Sec.2 (1) (b) (ii) any voluntary consumer association registered under the Companies Act, 1956, or under any other Laws for the time being in force could be considered as the complainant. To prove the same the complainant failed to produce any document to show that it is the recognized voluntary consumer Association. The opposite party objected the complaint on the ground of locustandi stating that eventhough the complainant as a secretary of the Association filed this complaint on 13.4.2006 contended that he was removed from the post of Secretary at an emergency residence meeting held on 31.1.2006 as per the minutes of the meeting under Ex.B1 well before the date of filing the complaint and an Extra Ordinary General Body meeting of the complainant Association was held on 26.02.2006 in which it was decided that fresh election would be held for the post of secretary and others by mentioning election officers names and also Notice for election marking as per Ex.B2 and further the government of Tamil Nadu cancelled the registration of the complainant’s association for non function as per the gazette notification No.25 dated 28.6.2006 in part-6 in Sl.No.278 Registration No.46/2004 as defunct under Ex.B3. The complaints from some other members of the association about the misDeeds of the Secretary / Association marked as Ex.B5. These are also would go to show that the complainant Sidharth Heights apartment owners Association represented by Secretary Ramakrishna is not an authorized person and no locustandi to file the complaint under Sec. 2 (1) (b) (ii) of Consumer Protection Act, 1986 and not a consumer to file the complaint and thereby the complaint filed by him is not maintainable before this Commission and this point is answered accordingly,
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8. POINT NO.2 : In view of the findings in Point No.1 as the complainant is not a consumer having no locustandi to proceed against the opposite party alleging deficiency in service they are not proved. Further the opposite party in their written version already stated that the facilities assured or promised are being complied with and as far as the transfer of EB connections certain flats owners opted for their own arrangements to effect the same for which document Ex.B7 is filed and as far as the other allegations relating to the deficiency of service are concerned in view of the findings in Point No.1 we are not inclined to decide the same. Accordingly this point is answered. 9. POINT NO.3 & 4 : In view of the findings in Point nos.1 & 2 as the complainant is not a consumer having no locustandi to file the complaint and complaint filed by the complainant is not maintainable, the complainant is not entitled for any relief as sought for in the complaint and thereby the complaint is liable to be dismissed. In the result, the complaint is dismissed. However each parties do bear their own costs.