Chandigarh

StateCommission

CC/153/2016

Rajeev Sharma - Complainant(s)

Versus

Emaar MGF - Opp.Party(s)

sh. A.S.Walia, Adv.

30 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	153 of 2016
Date of Institution	:	21.04.2016
Date of Decision	:	30.08.2016

 

1. Rajeev Sharma son of Late Sh. V.K.Sharma, resident of 9 Loseley Court, Great Holm, Milton Keynee, MK89 HJ, United Kingdom.

 

2. Mrs. Vidushi Sharma wife of Rajeev Sharma resident of 9 Loseley Court, Great Holm, Milton Keynee, MK89 HJ, United Kingdom.

 

……Complainants

V e r s u s

Emaar MGF Land Limited, SCO No. 120-122, Sector 17-C, Chandigarh.

 

                                                    .... Opposite Party

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  A.S.Walia, Advocate for the complainants.

Sh.  Sanjeev Sharma, Advocate for the Opposite Party.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainants were allotted a residential unit bearing No. TVM H2-F08-802, tower No. H2, The Views in township being developed by the Opposite Party having super built area 1350 sq. ft. in Mohali for the sum of Rs.40,88,429.26. Thereafter, Unit Buyer’s Agreement dated 09.04.2012 was executed between the parties, at Chandigarh (Annexure C-1). It was stated that the complainants paid the total amount of Rs.39,66,944/- i.e. 95% of the total sale price, vide receipts Annexures C-2 to C-4. As per Clause 21.1 of the Agreement, the Opposite Party was to complete the unit within a period of 36 months from the date of allotment. It was further stated that the date of allotment in the present case is 14.02.2012 and, thus, there is delay of more than one year in completion of the unit. It was further stated that the complainants contacted the Opposite Party on 18.09.2015 and asked about possession of the unit and in response of the said mail, the complainants were informed that process of finishing the units was in progress and after the receipt of Occupation Certificate, the process of issuing letters of intimation of possession would begin. It was further stated that complainant No.1 vide email dated 23.09.2015 requested the Opposite Party to refund his amount with interest, which was duly replied by the Opposite Party on 24.09.2015, in which, it accepted the delay and said that compensation for the delay would be given to the complainants. Copies of the emails are Annexure C-6. It was further stated that the Opposite Party failed to develop the unit and even not applied for the Occupation Certificate. It was further stated that as per Clause 23.1 of the Agreement, the Opposite Party was liable to pay compensation @Rs.5/- per sq. ft. per month of the super area. It was further stated that the  complainants also sent an email dated 11.02.2016 to the Opposite Party and demanded refund of his money with interest, which was duly replied by the Opposite Party vide email dated 12.02.2016 and stated that finishing work of the units was in progress and likely to be completed in the third quarter of this year and, thereafter, the Opposite Party would apply for the Occupation Certificate and thereafter, intimation of possession would commence. Copies of the emails dated 11.02.2016 and 12.02.2016 are Annexure C-7. It was further stated that the aforesaid acts, on the part of the Opposite Party, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2.           The Opposite Party, in its written version, has taken objection regarding arbitration clause in the Agreement, and it separately, moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement. It was stated that the complainants did not fall within the definition of “Consumer”, as defined in the Consumer Protection Act, 1986, as they booked two units in the project of the Opposite Party. It was further stated that the complainants are resident of UK/England and have no intention to settle in India and their sole motive to earn profit, as such, the said unit was purchased by them for speculation purposes only. It was further stated that in case of seeking refund by the complainants, forfeiture clause would be applicable. It was further stated that this Commission had no territorial jurisdiction to entertain and try the complaint. It was further stated that Buyer’s Agreement was executed between the parties on 09.04.2012 and total sale consideration mentioned in the allotment letter was Rs.41,94,977.89 (including service tax).  It was further stated that the Opposite Party received an amount of Rs.39,66,944/- towards the unit, in question, as is evident from statement of account (Annexure R-1). It was further stated that as per the Agreement, possession is expected to be handed over within 36 months from the allotment plus a grace period of 90 days for getting Occupation Certificate and in case of delay, compensation clause should be applicable and payable as per terms of the Agreement. It was further stated that the structure work of Tower H is complete and internal finishing works of flat is being undertaken and possession of the flat should be offered soon after completion. It was further stated that the Company has not applied for the Occupation Certificate since the tower H is not ready yet in all respects, as internal finishing of flats is being carried out. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice.

3.           The Parties led evidence, in support of their case.

4.           We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

5.           Admittedly, Unit Buyer’s Agreement in respect of unit No.TVM H2-F08-802, Tower H2, was executed between the parties on 09.04.2012 (Annexure C-1) and as per the Agreement, total consideration of the unit, was Rs.40,88,429.26, out of which, the complainants paid an amount of Rs.39,66,944/-, as is evident from statement of account (Annexure R-1). It is also the admitted fact that provisional allotment letter in respect of the unit, in question, was issued to the complainants on 14.02.2012 (at page no.87 of the file). It is also the admitted fact that the Opposite Party failed to offer/deliver possession of the unit, in question, to the complainant, as stipulated in the Agreement, despite repeated requests.

7.             The first question that falls for consideration is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by the Opposite Party, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.” 

            In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for the Opposite Party, stands rejected.

8.           The next question, that falls for consideration, is, as to whether, the complainants fell within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here that the mere objection of the Opposite Party that since the complainants are resident of UK/England (NRI) and they booked two units in the project of the Opposite Party, by way of investment, to gain huge profits, by selling the same, as and when there was escalation in prices, does not carry any weight and is liable to be rejected. It has been mentioned by the complainants, in para no.8 of their complaint that the said unit has been used by them on their visits to India and for the residence of mother of complainant No.1. Even otherwise, the mere fact that it was a residential unit, which was allotted, in favour of the complainants, was sufficient to prove that it was to be used for the purpose of residence for the mother of complainant No.1 and might be on or off while he/they visits to India or their family. There is nothing, on the record, that the complainants are property dealers, and deal in the sale and purchase of property. Even, no law debars an NRI, who basically belonged to India, to purchase a residential property in India. Under similar circumstances, the Hon'ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016, held as under:-

“We are unable to clap any significance with these faint arguments.  It must  be borne in mind that after selling the property at Bangalore, and  in order  to save  the money from riggers  of capital gain tax, under  Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India.  There is not even an iota of evidence that they are going to earn anything from the flat in dispute.  From the evidence, it is apparent that the same had been  purchased  for  the residence of  the complainants.  Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India.  NRIs do come to India, every now and then.  Most of the NRIs have to return to their native land. Each NRI wants a house in India.  He is an independent  person  and  can  purchase any  house in India,  in his own name.”

                   Thus, in the absence of any cogent evidence, in support of the objection raised by the Opposite Party, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that, being NRI, the unit, in question, was purchased by the complainants, for speculation. The complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Party, therefore, being devoid of merit, is rejected.  

9.           Another frivolous objection was taken by the Opposite Party, by stating this Commission has no territorial Jurisdiction to entertain and decide the complaint. According to Section 17 of the Act, a consumer complaint can be filed, by the complainant(s), before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction, whereof a part of cause of action arose to them. In the instant case, Unit Buyer’s Agreement, in respect of the unit bearing No.TVM H2-F08-802, Tower No. H2, was executed between the complainants and the Opposite Party, at Chandigarh on  09.04.2012 (Annexure C-1).  Not only this, perusal of record reveals that the receipts (Annexure C-2 to C-4), Agreement Reminder-I dated 16.03.2012, letter dated 09.04.2012, welcome letter dated 14.02.2012, provisional allotment letter dated 14.02.2012, schedule of payment – Down Payment Plan (Annexure C-5), were sent by Chandigarh office of the Opposite Party, as the same had the address “Emaar MGF Land Limited, SCO 120-122, First Floor, Sector 17-C, Chandigarh-160017”. It means that a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission. This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the Opposite Party, also stands rejected.

10.          As regards objection raised by the Counsel for the Opposite Party, that as per Clause 21.1 of the Unit Buyer’s Agreement, the Opposite Party had “proposed” to hand over possession of the unit within a period of 36 months from the allotment with a further grace period of 90 days for applying and obtaining occupation certificate. He further submitted that the term ‘proposes’ duly indicated that there was no definitive commitment to hand over possession within 36 months. It is, no doubt, true that Unit Buyer’s Agreement was also executed between the parties on 09.04.2012 (Annexure C-1) and it is evident from Clause 21.1 of the Agreement that  the Opposite Party was to hand over possession of the said unit, in favour of the complainants, within a period of 36 months from the date of allotment. Moreover, the provisional allotment letter dated 14.02.2012 (at page No.87 of the file) was issued to the complainants. So, it is clearly proved that possession was to be delivered within a period of 36 months from the date of allotment (14.02.2012) i.e. latest by 13.02.2015. Thus, once a specific period of 36 months was mentioned in the Agreement, the Opposite Party was bound to deliver possession in the said 36 months i.e. latest by 13.02.2015 and not beyond that.  It is not the case of the Opposite Party that it encounted any force majeure circumstances, as no document has been placed on record in this regard. Therefore, the objection taken by the Counsel for the Opposite Party, being devoid of merit, must fail, and the same stands rejected.

12.          The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the complainants. According to Clause 21.1 of the  Unit Buyer’s Agreement (Annexure C-1), subject to force majeure conditions and reasons, beyond the control of the Company, it was to deliver possession of the unit, in question, within a period of 36 months, from the date of allotment i.e. 14.02.2012 and the said period has already expired on 13.02.2015. However, till the date of filing of the complaint i.e. 21.04.2016, the Opposite Party neither offered/delivered possession of the unit to the complainants, despite repeated requests. Moreover,  the Opposite Party already received a huge amount of Rs.39,66,944/-, towards the said unit, as is evident from the statement of account (Annexure R-1). By making a misleading statement, that possession of the unit, was to be delivered within a period of 36 months, from the date of the allotment, the Opposite Party failed to abide the commitments, as such, it was not only deficient, in rendering service, but also indulged into unfair trade practice.

13.          The next question, that falls for consideration, is, as to whether, the complainants are entitled for refund of the amount of Rs.39,66,944/-, as claimed by them,  towards the unit, in question. It is, no doubt, true that the complainants deposited an amount of Rs.39,66,944/- in respect of the unit, in question, as is evident from the statement of account (Annexure R-1). The provisional allotment letter was issued to the complainants on 14.02.2012 and as per Unit Buyer’s Agreement, possession of the unit was to be delivered within a period of 36 months from the date of allotment i.e. latest by 13.02.2015 and more than 4 years had passed from the date of issuance of allotment letter but the Opposite Party failed to deliver physical possession of the unit, in question, to the complainants.  The Opposite Party in its written statement clearly stated that the structure work of Tower H is complete and internal finishing works of flat is being undertaken and possession of the flat should be offered soon after completion.   Even the Opposite Party had no right, to retain the hard earned money of the complainants, without rendering them, any service. Therefore, it is clearly proved that the Opposite Party was not in a position to deliver possession of the unit to the complainants.  In our considered opinion, the complainants are entitled to refund of amount of Rs.39,66,944/-, deposited by them.

              At the time of arguments, Counsel for the Opposite Party stated that when complainants sought refund of the amount, forfeiture clause is applicable upon them. In a similar case relating to delayed possession, titled as Guninder Jeet Singh Salh Vs M/s Emaar MGF Land Limited and another, Consumer Complaint No. 113 of 2015, decided by this Commission on 23.09.2015, noting ratio of the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), it was said that the consumer can claim refund. The National Commission was dealing with a similar situation, in the above case. In that case also, possession was not offered within the stipulated period. The consumer complaint was filed by the complainant, before this Commission, claiming refund of the amount paid by him. This Commission took it as a case of rescinding of contract and allowed the Opposite Parties to forfeit 10% of the deposited amount. The above named builder went in appeal, which was dismissed, by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, holding as under:-

 

 “It is apparent from the above clause, that possession of the apartment was to be handed over within a period of 36 months from the date of allotment,  with  grace period of 3 months. Admittedly, no possession was offered to the original allottee or to the respondent, till 26.11.2011 when she stepped into the shoes of original allottee. Thus, on the date of accepting the present respondent as allottee on 26.11.2011, the apartment in question was not complete.

 

23.    As appellants did not offer possession within the period prescribed under Clause 21 of the ‘Apartment Buyer Agreement’, the deficiency on the part of appellants,  started right from that very moment. It is an admitted fact, that while offering the possession even in the year 2013, appellants sent letter dated 13.5.2013 and  respondent was asked to deposit sum of Rs.3,05,969.70, within 30 days. When payment of the instalments is construction linked,  then we fail to understand as to how  before completing the construction appellants demanded the aforesaid amount.  This act of appellants goes on to show, that even on 13.5.2013 construction of apartment was not complete. It was only vide letter dated 16.8.2013, appellants offered possession of the apartment,  subject to certain payments.

24.    Thus, appellants themselves have violated the material conditions with regard to handing over of the possession, now it does not lie in their mouth to demand further payment from  the respondent. Even assuming for arguments sake, that payment as demanded vide letter dated 16.8.2013 was due, but the respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period.  Appellants could not force the respondent, after having accepting money from the original allottee in the year 2006 and  part payment from present respondent in the year 2011, to accept possession of the apartment in the year 2013,  which was against the terms of the Agreement.  The above facts clearly goes on to show, that appellants have been enjoying the substantial amount of money received by them in the year 2006, till 2013.  Therefore, this plea of appellants, that they have done their part of the duty and it is the respondent who is defaulter, does not hold any water.

25.    The deficiency on the part of appellants is writ large in this case. We may note, that under such circumstances there was no occasion for the State Commission to have deducted 10% of the deposited amount as respondent was not at fault at all. On the other hand, appellants were deficient when they themselves have violated the terms and conditions of ‘Apartment Buyer Agreement’, The case law relied by ld. counsel for appellants are not applicable at all to the facts of the present case.”

It was clearly stated by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill’s case (supra), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. Moreover, the Opposite Party in its written statement clearly stated the structure work of Tower H is complete and internal finishing works of flat is being undertaken and possession of the flat should be offered soon after completion. It is clearly proved that the Opposite Party has not fulfilled its part of the Agreement and failed to develop the infrastructure alongwith other amenities and failed to offer possession of the unit to the complainants, within the stipulated period, as mentioned in the Agreement. So, it is clearly proved that the Opposite Party is, thus, in breach of its part of the obligation and is deficient in providing services even after receipt of the huge amount and, as such, the Opposite Party is not entitled to forfeit any amount, and refund the deposited amount to the complainants.

14.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to interest, on the deposited amount of Rs.39,66,944/-, if so, at what rate. The complainants were deprived of their hard earned money, to the tune of Rs.39,66,944/-, on the basis of misleading information, given by the Opposite Party, that it would be handed over legal physical possession of the unit, in question, within a period of 36 months from the date of allotment i.e. latest by 13.02.2015. However, the Opposite Party failed to deliver physical possession of the unit to the complainants, despite receipt of the huge amount. The complainants were, thus, caused financial loss.  Hard earned money, deposited by the complainants, towards price of unit, in question, was utilized by the Opposite Party, for a number of years. Had this amount been deposited by the complainants, in some bank, or had they invested the same, in some business, they would have earned handsome returns thereon. It is therefore, held that the Opposite Party, by neither offering/delivering possession of the unit, by the stipulated date, nor refunding the amount to the complainants was not only deficient, in rendering service, but also indulged into unfair trade practice. No doubt, as per Clause 20.1 of the Unit Buyer’s Agreement, the Opposite Party was charging interest @15% per annum compounded from the complainants. Under these circumstances, in our considered opinion, if  interest  @15% P.A. compounded, on the amount deposited by the complainants, from the respective dates of deposits, is granted, that will serve the ends of justice.  

15.          The next question, that falls for consideration, is, as to whether, the  complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment caused to them. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainant(s). The word ‘compensation’ is again of very wide connotation.  It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainant(s). The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. In the instant case, the complainants suffered a lot of mental agony and harassment, at the hands of the Opposite Party, for a number of years, as it neither offered/delivered physical possession of unit nor refunded the amount to them, despite repeated requests. The complainants, thus, underwent a lot of mental agony and harassment, on account of the acts of omission and commission of the Opposite Party. Compensation to the tune of Rs.3,00,000/- if granted, shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.3,00,000/-.

16.          Since we are refunding the whole deposited amount alongwith interest @15% p.a. compounded, compensation and litigation expenses to the complainants, therefore, they are not entitled to claim any compensation @Rs.5/- per sq. ft. per month of the super area, as sought by them.

17.          No other point, was urged, by the Counsel for the parties.

18.          For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Party is directed, as under:-

1. To  refund   the  amount of Rs.39,66,944/-, to  the complainants, alongwith interest compounded @ 15% per annum, from the respective  dates of deposits onwards, within 45 days, from   the  date of receipt of a certified copy of  this   order.
2. To pay compensation, in the sum of Rs.3,00,000/- for causing mental agony and harassment, to the complainants, within 45 days, from the date of receipt of a certified copy of this order.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainants.
4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Party shall be liable to pay the amount mentioned in Clause (i) with interest compounded     @18% P.A., instead of interest compounded @ 15% P.A., from the respective dates of deposits, till realization, and interest compounded @15% P.A., on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.

 

19.          Certified Copies of this order be sent to the parties, free of charge.

20.          The file be consigned to Record Room, after completion.

Pronounced.

August 30, 2016.                                           Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

rb