PARIWAR CO-OPERATIVE HNG.STY.LTD. Vs CHANDRASHEKAR M.VIRKUD
Bench: H.L. GOKHALE,KURIAN JOSEPH
Case number: C.A. No.-010240-010240 / 2013
Diary number: 24568 / 2008
Advocates: ANAGHA S. DESAI Vs
M. J. PAUL
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10240 OF 2013
(Arising out of SLP(C) No.27607/2008)
PARIWAR CO-OPERATIVE HOUSING SOCIETY LTD. Appellant(s)
VERSUS
CHANDRASHEKAR M. VIRKUD & ANR. Respondent(s)
O R D E R
Leave granted.
2. Heard Mr. Satyajit Desai, learned counsel in
support of this appeal, Mr. Santosh Paul, learned
counsel appearing for the first respondent and Mr.
Vinay Navare, learned counsel appearing for the
second respondent. The appellant Pariwar Co-
operative Housing Society Ltd. (“Society” for short)
has challenged the order dated 16.5.2008 passed by
the National Consumer Disputes Redressal Commission
in First Appeal No.69 of 2006 by filing this appeal.
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3. The short facts leading to this appeal are
this wise. One Mr. Vitthal G. Kapuskar was the
Chief Promoter of the appellant Society which has
constructed a housing complex at Kanjur Marg (East)
in Mumbai. It so transpires that though the
aforesaid Mr. Kapuskar, respondent No.2 herein, was
the Chief Promoter, subsequently there were certain
allegations against him with respect to the
management of the funds of the Society and not
taking necessary steps with respect to construction.
Thereafter, another Managing Committee has taken
over which has presently filed this appeal.
4. Respondent No.1 was one of the members of the
Society. It was his case that he paid all necessary
amounts as a member to get an apartment in the said
Society but he was not allotted any apartment. He,
therefore, applied for refund of the amount which he
had paid to the Society. The amount not having been
refunded to him, he moved the Consumer Disputes
Redressal Commission of the State of Maharashtra
under the Consumer Protection Act, 1986 by filing a
complaint being Consumer Complaint No.388 of 2001.
An order came to be passed in that proceeding on
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17.6.2005 holding the appellant Society responsible
for neither giving him possession of any apartment
nor returning the amount that was payable to him.
Therefore, an order was passed against the appellant
Society as well as against respondent No.2.
5. The appellant Society carried the matter in
appeal before the National Disputes Redressal
Commission pointing out that it was respondent No.2
who was responsible for non-payment of the amount
because of the mismanagement on his part of the
Society's funds. The National Commission had passed
an interim order on 23.2.2006 directing the
appellant Society to deposit the entire amount
payable to the second respondent, in the State
Commission out of which 50% amount was allowed to be
withdrawn by respondent No.1 on furnishing personal
bonds. Accordingly, respondent No.1 has withdrawn
that amount. The appeal was ultimately heard and
disposed of by the National Commission by its order
dated 16.5.2008 and under that order, the appellant
Society and respondent No.2 were directed to pay to
respondent No.1, the amount as awarded by the State
Commission along with interest at 9% per annum.
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6. The submission of the appellant Society, as
stated earlier, is that the appellant Society was
not responsible for the misdeeds of respondent No.2
and the Society was being unnecessarily held to pay
this amount. We have heard the learned counsel for
the parties. The order passed by the State
Commission was an ex-parte order and that was
because at that particular point of time, respondent
No.2 was in jail. In any case, by the time the
matter was heard in the National Commission, a
notice was published in the newspaper for respondent
No.2 to appear before the National Commission but he
did not appear before the National Commission and
this order came to be passed.
7. Mr. Desai, learned counsel appearing for the
appellant pointed out that the appellant Society is
consisting of middle class people and they are now
being made to suffer for the actions/misdeeds of
respondent No.2. Mr. Navare, learned counsel
appearing for respondent No.2 on the other hand,
submitted that the members of the present Managing
Committee were also along with respondent No.2 in
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all these transactions which took place from time to
time.
8. Having noted these facts, however, we are of
the view that as far as the present case is
concerned, respondent No.1 had made the payment when
respondent No.2 was incharge of the Society and the
present Managing Committee was not in the picture.
That being so, the responsibility to refund the
amount primarily lies on the respondent No.2 and in
the event of his failure, on the appellant Society.
In the circumstances, we modify the order passed by
the National Commission as well as the State
Commission and hold respondent No.2 primarily
responsible for paying the amount of Rs.4,02,382/-.
We allow this appeal to that extent.
9. We had asked Mr. Navare on the last date of
hearing to seek instructions from respondent No.2
whether he would be agreeable to make the payment.
He has informed that he does not have any such
instructions. In the circumstances, we direct the
respondent No.2 to make the payment of Rs.4,02,382/-
in eight weeks' time, failing which it would be open
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to respondent No.1 to take further action by moving
the State Commission under Section 27 of the
Consumer Protection Act, 1986 against respondent
No.2 Kapuskar. In the event respondent No.2 makes
the payment in the course of those proceedings, well
and good. However, in the event of his failing to
make payment, the consequences will follow. In the
event respondent No.2 deposits the entire amount,
half of the amount therefrom will be paid to
respondent No.1 and the remaining half would be
permitted to be withdrawn by the appellant. The 50%
amount which is presently lying in the State
Commission will continue to remain there until then.
However, in the event of respondent No.2 being sent
to imprisonment on his failing to make payment, this
50% amount which is deposited in the State
Commission will be permitted to be withdrawn by
respondent No.1.
10. We are informed that there are many other
proceedings which are pending between the appellant
Society and respondent No.2, and many cases are
filed by the depositors against respondent No.2. We,
therefore, make it clear that this order will be
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confined to the facts of this case.
11. Appeal is disposed of as above. No order as
to costs.
..........................J (H.L. GOKHALE)
.........................J (KURIAN JOSEPH)
New Delhi; November 12, 2013.