DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24-PARGANAS, JUDGES’ COURT,
ALIPORE, KOLKATA-700 027
>> C.C. CASE NO.: 11 OF 2008 <<
DATE OF FILING: 18.1.2008
DATE OF PASSING JUDGEMENT: 31.07.2009
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Present : President : Dipak Shyam Roy
Member(s) : Amitabha Roy Chowdhury & Sharmi Basu
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COMPLAINANT : Gokul Chandra Chatterjee,s/o late Kumar Krishna
Chatterjee of Flat no.4B, &4C, Gangatri Apartment,
Garia, P.S. Sonarpur,Kolkata-84
- >> : versus : << -
O. P. / O. PS : 1. Mr. K.K. Nath, President of flat no.2D, 2nd floor,
Gangatri Apartment, P.S. Sonarpur,Kol-84
2. Dilip Kumar Dey, The Secretary, Flat no.4A, Gangatri
Apartment, P.S. Sonarpur,Garia, Kol-84
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>> J U D G E M E N T <<
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This application under Section 12 of the C.P Act has been filed by the complainant Sri Gokul Chandra Chatterjee against the O.P-1 K.K. Nath and O.P-2 Dilip Kumar Dey who are said to be the President and Secretary of Gangotri Apartment on the allegation of deficiency in service. This complaint has been filed by the complainant by virtue of a letter of authority issued by his son Bijon Chatterjee in his favour.
The fact of the case in brief is that complainant has purchased two flats being 4B and 4C on the 3rd floor of Gangatri Apartment , Garia within P.S. Sonarpur. After purchasing the aforesaid two flats he stayed there for some days. He left the flats under the care of his father who is now living there with his wife. At the time of purchase the complainant’s son paid Rs. 10,000/-to K.P Construction for giving electricity in the said two flats through a Generator at the time of emergency. For maintenance of the said Gangatri Apartment, one unregistered corporate body has been formed by the owners of the flat and the O.Ps are President and Secretary of the said corporate body. It has been alleged that it was found on 9.4.2007 that without giving notice to the complainant his electric connection from the Generator was disconnected by the then Secretary of the said corporate body of Gantatri Apartment and on repeated request the line was not restored by the then Secretary as well as by the body of the corporate. One GD was lodged with Sonarpur P.S but no action was taken by Police. It is further alleged that O.Ps are also creating disturbance to the complainant and his wife and they have stopped the lift to the complainant and his wife who are 70-78 years old. The complainant has now prayed for a direction upon the O.Ps to restore the electric connection from the Generator line in his two flats and also for a further direction not to disturb the complainant and his wife from using the lift.
The O.P nos. 1 and 2 have contested the case filing written version . They have denied that there is an unregistered body corporate in the management of the whole complex. They have contended that there is a self help group of flat owners in the Gangatri Apartment which takes care of the management of the entire housing complex. They have also denied that they are the President and Secretary of the alleged body corporate or of any other Association. The O.P -1 is an ordinary flat owner of the Gangatri Apartment and the O.P-2 is not the owner of any flat in the said Gangatri Apartment. Their further contention is that they are in no way connected with the alleged disconnection of electricity from the Generator. They have also denied the allegation of causing any disturbance to the complainant and his family members in using the lift. It has also been pleaded that the complainant has not hired any services from the O.Ps in lieu of consideration and he is not a consumer. They have alleged that the complainant is an habitual defaulter from June, 2006 in making payment towards maintenance charges of his flat and he was also defaulted in making payment of Rs.700/- towards the cost of boring a new tube well for the flat owners. They have alleged that the complainant earlier filed a civil suit before the Civil Judge, Jr. Division at Alipore on the selfsame ground and the said suit has been dismissed for default and as such the present case is barred by the principles of resjudicata. They have also challenged the maintainability of the case on the ground of not impleading the alleged body corporate. They have prayed for dismissal of this case. Evidence was also adduced by filing affidavit on behalf of both parties. Subsequently parties were directed to furnish certain informations by this Forum and the parties submitted those informations on affidavit.
Point for consideration in this case is (i) whether the case is maintainable (ii) whether the complainant’s son is a consumer (iii) whether the complainant is entitled to get reliefs as prayed (iv) what other reliefs the complainant is entitled to.
Finding of the Forum:-
The Ld. Advocate appearing for the O.Ps challenges the maintainability of the case on the ground that the complainant is not a consumer and he did not hire any services of the O.Ps and as such the case is not maintainable. He also submits that the allegation of existence of body corporate for the maintenance of Gangatri Apartment is not correct and without impleading the said body corporate the present case is not maintainable .
After going through the materials on record we find that the O>Ps have not challenged that the complainant’s son is the owner of two flats in the sid Gangatri Apartment and they admitted that there is a self styled Association of the owners of the flats who looks after the maintenance of that Gangatri Apartment and the said Association is neither registered under the Cooperative Societies Act nor is it registered under the West Bengal Apartment Ownership Act. The O.Ps have however stated that they are governed by the Apartment Ownership Act. Admittedly complainant’s son was to pay monthly maintenance charges for the flats to its Treasurer. Therefore, the complainant’s is consumer and the said maintenance Association is the service provider. It is a settled principles of law that no case is maintainable against only office bearers of any Association without impleading the said Association itself. However here the maintenance association is a self styled association and not a registered body and as such we are not inclined to go into the aforesaid technicalities. In this case no document has been furnished to show that on the date of alleged cause of action who were the President and Secretary of the said self styled maintenance association. Th complainant has stated that on 18.1.2008 Mr. K.K. Nath was the President and Mr. Dilip Kumar Dey was the Secretary and Smt. Papiya Achariya was the treasurer of the said Association of members of Gangatri Apartment. He has further stated that at present Sri C.P. Dutta is the Secretary and Smt. Papiya Achariya is the Treasurer and there is no President. The O.Ps have also stated in reply to the queries of this Forum that C.P Dutta is the present Secretary and Smt. Papiya Acharya is the Treasurer and they are not aware of the president of the Association. They have also disclosed that the aforesaid persons were the Secretary and Treasurer on around 18.1.2008. The present case has been filed against A.K. Nath as President and Dilip Kumar Dey as the Secretary and the case was instituted on 18.1.2008 . If this Forum is required to give any direction that direction should be given against the owners’ Association of Gangatri Apartment and the said Association has not been impleaded and admittedly at present there is no President and as per complainant MR. C.P Dutta is the present Secretary and as per O.Ps also, Mr. C.P Dutta is the present Secretary. But surprisingly no case has been filed against C.P Dutta , the Secretary of the Association and Smt. Papiya Acharya who admittedly is the cashier and receives the maintenance charges. The complainant took no step for impleading the present office bearer of the said association. In that view of the matter we cannot pass any direction upon any person who is not a party to this complaint. In such circumstances we hold that the case not filed against the service provider is not maintainable. In absence of plaint, written statement and judgement of the Civil Suit, it cannot be held that the case is barred by resjudicata. So far as the allegation of disconnection of Generator line and causing disturbance to the complainant to his use of the lift , besides the complainant’s evidence no other corroborative evidence has been adduced by the complainant. The O>Ps have denied the aforesaid allegation . On the other hand they have alleged that the complainant is not paying the maintenance charge which includes the charge for supply of electricity for the Generator in case of load shading. The receipt of Rs. 10,000/- paid to K.P. Construction for supply of electricity from the Generator cannot force the Association to supply electricity without paying maintenance charges. The complainant cannot get benefit of Generator line and he cannot use the lift unless he pays the regular maintenance charges to the self styled association formed by the owners of that Apartment. However, in absence of the association and the present Secretary and the President ,we refuse to pass any relief as prayed for.
We are therefore of the opinion that the case is not maintainable and the complainant is not entitled to get any relief as prayed for.
Hence Ordered
That the case be and the same is dismissed on contest without cost.
Member Member President
Dictated and corrected by me
President
Tags: K.K. Nath