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Judgment
This revision petition has been filed by the petitioner M/s. Gariba Construction Co. against the order dated 30.4.2015 of the State Consumer
Disputes Redressal Commission, Maharashtra, (in short ‘the State Commission’) passed in First Appeal No.FA/08/537.
Brief facts relevant for deciding the present revision petition are that the respondent society filed a complaint case bearing No.243/2006 before the
District Forum, South Mumbai, (in short ‘the District Forum’). The complaint was resisted by the petitioner as opposite party. However, the
District Forum passed the following order allowing the complaint on 17.05.2007:-
“(1) The Opposite party is directed to take immediate steps to handover the ‘Conveyance’ of entire Society Property in favour of M/s.
Malad Dipti Apartment Co-operative Housing Society that bearing Registration No.BOM/W-T-C-9323/96-97 dated 24.10.1996 having its office at
Khoti Village, Malad Mamlatdar Wadu, Road No.5, Malad (Est), Mumbai 400064.
(2) The opposite party is directed to take immediate steps to obtain the occupation certificate of the complainant’s building premises from the
Greater Mumbai Municipal Corporation and handover the same to the complaint.
(3) The opposite party is directed to pay to the complainant Rs.15,000/- towards the costs of the complaint.
(4) The order is to be completed with within the period of two months from the date of receipt of the copy of the order.â€
Opposite party preferred an appeal before State Commission, which was dismissed vide its order dated 21.06.2008.
The petitioner/opposite party preferred a revision petition bearing No.3303 of 2008 before this Commission which was allowed vide order dated
17.09.2013 of this Commission and the matter was remanded to the State Commission to decide the appeal on all points raised in the appeal.
State Commission then vide its impugned order dated 30.04.2015 has again dismissed the appeal.
Hence the present revision petition.
Heard the learned counsel for the parties and perused record.
Learned counsel for the petitioner states that the complainant Society itself was not validly registered and the complainant has played fraud with the
consumer forum by stating that the complainant was a duly registered Society. The learned counsel stated that the petitioner was not aware of this
fact when the matter was heard before the District Forum as well as before the State Commission and even before this Commission when the matter
first came in the revision petition No.3303 of 2008, which was decided on 17.09.2013 by remanding the matter to the State Commission for deciding all
the points taken in the appeal. The State Commission has now decided the appeal filed against the order dated 17.5.2007 of the District Consumer
Disputes Redressal Forum, Mumbai (in short ‘the District Forum’) and the same has been challenged on the ground of misrepresentation by the
complainant. Learned counsel stated that under Section 6(1) of the Maharashtra Co-operative Societies Act, 1960, only 10 or more members could
have registered this kind of Society. However, the constitution of the Society reveals that the same has been registered by only 9 members and
therefore, it was not a validly registered Society under the prevalent law. Learned counsel further stated that as the information under the RTI has
only been received in third week of November, 2015, the revision petition has been filed on 15.12.2015 and therefore, no delay in filing the revision
petition. Learned counsel referred to the following cases of Hon’ble Supreme Court in support of his contentions:-
(1.) United India Insurance Co. Ltd. Vs. Rajendra Singh and others, (2000) 3 SCC 581, wherein the following has been observed:-
“15. It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had
at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction
having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be
possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of
the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.
Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high
degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the
order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.
In the result, we allow these appeals, set aside the impugned orders and quash the awards passed by the Tribunal in favour of the claimants. We
direct the Tribunal to consider the claims put forth by the claimants afresh after affording a reasonable opportunity to the appellant Insurance
Company to substantiate their allegations. Opportunity must be afforded to the claimants also to rebut the allegations.â€
(2.) S.P.Chengalvaraya Naidu (dead) by LRs. Vs. Jagannath (dead) by LRs and others, (1994) 1 SCC , wherein the following has been observed:-
“6. ……………A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation.
If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the
opposite party.â€
Learned counsel referred to Section 17(d) of the Limitation Act and stated that the limitation shall be counted from the date of fraud coming to the
notice of the party and in the present case fraud has been only discovered on 7.11.2015 and therefore, the revision has been filed in time.
Learned counsel for the petitioner further stated that he is in the present revision petition only on the ground of invalid registration of the
complainant society and he has no other ground to raise.
It was further argued by the learned counsel for the petitioner that when the complainant Society itself supplied the information before the District
Forum and did not come with the clean hands by disclosing all the relevant details, the orders obtained by fraud from the District Forum as well as
from the State Commission are nullity and are required to be set aside by this Commission. This Commission has to take into cognizance the fraud
played in the registration of the complainant Society and based on this cognizance, this Commission may pass the order of allowing the revision petition
and setting aside the orders of State Commission as well as of the District Forum.
On the other hand, the learned counsel for the respondent/complainant stated that as per the statement given by the learned counsel for the
petitioner, the petitioner filed an application under RTI Act only in August, 2015 and the reply was obtained on 7.11.2015. The order of the State
Commission is dated 30.4.2015 and therefore, the petitioner moved the RTI application only after the limitation period of 90 days had expired.
Therefore, the petitioner cannot claim that any delay has happened on the ground of RTI question and this cannot be treated as reason for condonation
of delay. The period of limitation had already expired before filing the RTI application and therefore, there is no ground for condoning the huge delay
of 123 days in filing the present revision petition.
On merits, the learned counsel for the respondent stated that in complaint, it was clearly mentioned that the complainant Society was duly
registered under the Maharashtra Co-operative Societies Act, 1960 and the registration certificate was also submitted. This clearly proves that the
Registrar had registered the society under the prevalent law and the petitioner never raised any objection before either District Forum or the State
Commission in respect of the registration of the Society, though, there was enough time to the petitioner to have discovered the fact that he is
narrating now. The learned counsel further stated that it is only the Registrar of the Co-operative Societies of the State, who can decide the question
of valid registration certificate and the same cannot be entered into by this Commission. No fraud has been played on the forum as alleged by the
learned counsel for the petitioner as full information about the registration of the Society was submitted along with the complaint.
I have given a thoughtful consideration to the arguments advanced by the leaned counsel for the parties and have examined the material on record.
It is seen that the revision petition has been filed with a delay of 123 days. The petitioner has explained the delay on the ground that he obtained
information under RTI on 7.11.2015 and the revision petition has been filed on 15.12.2015. It is also a fact that petitioner has not clearly stated the
date of application moved under the RTI Act. However, as stated by the learned counsel for the petitioner the RTI application was filed in August
2015. The impugned order is dated 30.4.2015. Hence, clearly the limitation period had ended only on 30 th July, 2015 itself i.e. before filing of the RTI
application. Hence, huge delay of 123 days cannot be condoned on the ground of filing an RTI application and getting its reply. No other ground has
been taken for condoning the delay. Accordingly, I find that no sufficient cause has been shown for justifying a huge delay of 123 days. Hence, the
application for condonation of delay is dismissed.
Now coming to the merits, it is clear that when the complaint was filed in the year 2006, the complainant had given the full details of the
registration of the Society. It is clear that no information was withheld or suppressed by the complainant in respect of registration of the Society, as
they had valid registration certificate issued by the competent authority. The petitioner has not claimed that the registration certificate was fake i.e. a
fraudulent document or was not issued by the competent authority. The petitioner has also not explained as to what fraud has been played before the
forum. It was not necessary for the complainant to tell to the forum how the registration certificate was obtained.
The complainant was required to state that it was a registered Society with duly issued registration certificate by the competent authority. Even if
there were some procedural defects in registration of the Society, the same could have been raised by the petitioner before the Registrar of the Co-
operative Societies at least after the defects came to the petitioner’s notice. However, petitioner has not produced any record showing that a
complaint has been filed before the Registrar of Co-operative Societies in this regard for de-registration of the Society. Registrar is the competent
authority to look into this matter and not this Commission. As this Commission is required to see whether the complaint has been filed by a person
authorised under the Consumer Protection Act, 1986.
A Cooperative Society can file a complaint so long as the Society is duly registered and a proper registration certificate has been issued by the
competent authority. If there was any defect in the registration, it was open to the petitioner to have taken up the matter with the Registrar of Co-
operative Societies. Moreover, the matter has been litigated since 2006 and the RTI application has been filed in August, 2015. The petitioner had not
taken this ground in the written statement and the proceedings have to be limited to the pleadings.
Thus, prima facie this issue cannot be raised in the revision petition. Moreover, this also does not come under the category of fraud played on the
Forum as the validly issued registration certificate was filed before the District Forum and no issue of its validity was raised by the opposite party.
Even if this is considered as some kind of fraud, it does not have any effect on the very basis of the claim necessitating to set aside the orders of the
fora below and to remand the matter to decide the complaint afresh. The facts of the present case do not meet the requirement observed by the
Hon’ble Apex Court in United India Insurance Co. Ltd. (supra). It seems that the petitioner has filed this revision petition only to linger on the
matter and not to comply with the order of the State Commission.
Based on the above discussion, the revision petition is dismissed on account of being highly barred by limitation as well as on merits.