This Complaint coming up before us for hearing on 18-01-12 in the presence of Sri S. Satyanarayana, advocate for complainant and of              Sri M.S.N. Murthy, advocate for 1^st opposite party and of                         Sri S.A. Khadar, advocate for 2^nd opposite party and 3^rd opposite party remained absent and set exparte and upon perusing the material on record and after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao, President:-

        The complainant filed this complaint U/S 12 of Consumer Protection Act, 1986 seeking a direction to the opposite party to return the original registered documents and a sum of Rs.15,000/- as compensation towards mental agony and for costs.

2.     In brief the averments of the complaint are these:

        The complainant obtained a loan of Rs.1,25,000/- from the               1^st opposite party on 13-10-99 and it was spread over for a period of 20 years @ Rs.6,250/- per annum.   The complainant as on 07-03-07 paid a sum of Rs.3,13,066/- to the 1^st opposite party and thus discharged the said loan.  Inspite of that the 1^st opposite party had shown that a sum of Rs.6,300/- was due in the pass book of the complainant.   The said amount represents the complainant’s share capital which will be adjusted at the time of closing account.   The complainant paid Rs.6,300/- on 19-04-11 by way of DD No.516624 dated 18-04-11 through TMB Guntur and another sum of Rs.3,300/- towards penal interest by way of DD No.516674 of TMB, Guntur dated 25-04-11 under registered post acknowledgement due.   The opposite parties 1 and 2 failed to return the documents to the complainant.   The complainant thereupon got issued a notice on 30-04-11 to the opposite parties 1 and 2 seeking return of the documents.   The 2^nd opposite party on 13-05-11 gave a reply with false averments.  The 1^st opposite party failed to give reply.  The complainant filed CC 47 of 2010 before the District Consumer Forum, Guntur without clearing the entire amount and on that ground the complaint was dismissed.   Non returning of the documents by the opposite parties 1 and 2 inspite of  payment of entire loan amount amounted to deficiency of service.   On account of the attitude of the opposite parties 1 and 2 the complainant suffered a lot and estimated the damage at Rs.15,000/-.   The complaint therefore be allowed.

3.     The 3^rd opposite party remained exparte. 

4.     The contention of the 1^st opposite party in brief is hereunder:   

            Being a member of the 1^st opposite party the complainant made an application for sanction of housing  loan of Rs.1,25,000/-.  The 2^nd opposite party sanctioned loan of Rs.1,25,000/-.  The complainant executed an agreement agreeing to the terms and conditions and also to assign the property under equitable mortgage in favour of the 2^nd opposite party.   As per agreement the 1^st opposite party shall receive payment from borrowers and keep 1% interest margin with it for its maintenance and forward the remaining amount to the 2^nd opposite party. The Ex-Business Manager, Ex-President and Ex-Managing Committee of the 1^st opposite party misappropriated about Rs.20 lacks of society funds and caused loss to the society.   The 3^rd opposite party ordered for statutory inspection under Section 52 of Andhra Pradesh Co-operative Societies Act, 1964 and the inspecting authority submitted his report stating that Ex-Management and Ex-Business Manager of the 1^st opposite party misappropriated huge funds of the society.  The case is pending hearing U/S 60 of the said Act for issue of surcharge.  Meanwhile the Ex-President and another of the                  1^st opposite party filed WP.No.10614 of 2007 and got an interim order not to proceed with the inspection report.  Therefore surcharge proceedings are pending with the 3^rd opposite party.  Under those circumstances, the 1^st opposite party is in helpless condition in returning the documents to the complainant.  This Forum has no jurisdiction in view of sections 61 and 62 of APCS Act, 1964.   The 1^st opposite party plays a nominal role, just make resolutions basing on the applications of its members, forward them to the 2^nd opposite party for sanction of loan by collecting meager amount of 1% as margin for maintenance.   If the complainant repaid the loan amount fully to the satisfaction of the 2^nd opposite party, it is the 2^nd opposite party who has to release the documents to the complainant.  The 1^st opposite party has no objection if the Forum directs 2^nd opposite party for return of documents to the complainant.   The complaint therefore be dismissed against the 1^st opposite party.

5.      The contention of the 2^nd opposite party in brief is hereunder:   

          The complainant has to pay a sum of Rs.1,43,224/- as on                  15-02-10 as per records.   The property of loanee is the security for the loan sanctioned to the society by its creditors and AP House Fed has to recover the due amount and repay it to LIC of India.   If the society Management is certain that the complainant had repaid the entire loan together with interest, it is the responsibility of the                   1^st opposite party to see that the original documents are released from the AP House Fed.  Rest of allegations contra mentioned in the complaint are false and are invented to suit her claim.   The complaint therefore be dismissed.      

6.  Exs.A-1 to A-27 on behalf of complainant were marked.  No documents were marked on behalf of opposite parties.

7.   Now the points that arose for consideration in this complaint are:

        1. Whether the complainant is a consumer?

2. Whether this Forum has got jurisdiction to entertain the                               complaint?

3.  Whether the opposite parties committed deficiency of                                 service?

        4. Whether the complainant is entitled to compensation?

        5. To what relief?

8.     POINTS 1&2:-   The complainant taking loan of Rs.1,25,000/- under an equitable mortgage by depositing title deeds from the                   1^st opposite party is not in dispute.   The opposite parties relied on the decision reported in 2000 (1) ALD 273 to oust the jurisdiction of this Forum.  

9.     In Warangal District Co-operative Central Bank Limited vs. District Consumers Forum, Warangal and another 2000 (1) ALD 273 after referring to sections 61, 121 and 76 of APCS Act it was held

        “If the provisions contained under sections 121, 76 and 61 of the Act are read together, the inevitable conclusion is that in the matter of any dispute between the society and its member, the Act is self explanatory and the dispute is necessarily to be resolved as per the provisions of the Act and before the appropriate Forums as specified under the Act and not otherwise.   The remedies available under the Act have unnecessarily to be exhausted before approaching any other Forum.   In this view of the matter, I am convinced that the District Consumer Forum, Warangal has no jurisdiction to entertain the petition filed by the 2^nd respondent claiming damages and the impugned order passed by it is wholly illegal and without jurisdiction and liable to be set aside”.

10.   In Secretary vs. Thiru Murugan Co-operative Agricultural Credit Society vs. M. Lalitha (dead) through LRs and others                               2004 (1) CPJ SC (1)

        “In Dhulabhai case consideration was whether the jurisdiction of the Civil Court was excluded.   Propositions (1) and (2) indicate that where the statute gives a finality to the orders of the special tribunals the jurisdiction of Civil Courts must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Further, where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.   The remedies that are available to an aggrieved party under the 1986 Act are wider. For instance in addition to granting a specific relief the Forums under the 1986 Act have jurisdiction to award compensation for the mental agony, suffering, etc., which possibly could not be given under the Act in relation to dispute under Section 90 of the Act.   Merely because the rights and liabilities are created between the members and the management of the society under the Act and Forums are provided, it cannot take away or exclude the jurisdiction conferred on the Forums under the 1986 Act expressly and intentionally to serve a definite cause in terms of the objects and reasons of the Act reference to which is already made above when the decision of Dhulabhai’s case was rendered the provisions similar to 1986 Act providing additional remedies to parties were neither available nor considered.   If the argument of the learned counsel for the appellant is accepted it leads to taking away the additional remedies and Forums expressly provided under the 1986 Act, which is not acceptable”.

        Taking a clue from the above decision rendered by the Supreme Court we hold that this Forum has jurisdiction to entertain the complaint. 

1. POINT No.3:-    The 1^st opposite party   has not disputed the payments made by the complainant towards discharge of the loan obtained by her.   The contention of the 1^st opposite party is that its Ex-Business Manager, Ex-President and Ex-Managing Committee misappropriated about 20 lakhs of Society Funds and caused loss.  Ex.A-1 copy of pass book issued by the 1^st opposite party revealed that a sum of Rs.6,300/- was due as on 07-03-07.   Under those circumstances, the receipts Exs.A-2 to A-22 need not be considered.   Ex.A-23 receipt dated 19-04-11 revealed that the complainant paid Rs.6,300/- by way of Demand Draft taken on Tamilnadu Mercantile Bank.  Under the original of Ex.A-24 the complainant paid Rs.3,300/- on 25-04-11.   Exchange of notices (Exs.A-25 and A-26) between the complainant and opposite parties 1 and 2 is not in dispute.

12.   Ex.A-27 is copy of order in WA.No.1159 of 2006 against the order passed in WP MP No.18468 of 2005 in WP No.14552 of 2005.   WP.No.14552 of 2005 between M. Seshagiri Rao and the Prl. Secretary to Government, Housing, Municipal Administration and Urban Development Department, Secretariat, Hyderabad and others   was finally disposed on 23-09-10 holding

            “From the counter affidavit of the 5^th respondent and as well as the material on record, it is clear that the petitioners have cleared the loan amounts at the society level.   When the petitioners have duly paid the instalment amounts which the society, it is for the society to remit those amounts with the 2^nd respondent.   Merely because, the society did not remit the same with the 2^nd respondent, and there is diversification of funds by the society, the petitioners cannot be blamed for non payment of loan amounts.   In the circumstances, I am of the opinion that the petitioners are entitled for release of the documents.   The respondents are, therefore, directed to release the documents to the petitioners, forthwith, if not, already released in pursuance of the interim order of this Court, dated 23-08-06.   The respondents are further directed not to insist the petitioners for payment of any further amounts”.   

13.   The contention of the opposite parties 1 and 2 is that the complaint is not maintainable in view of orders passed in CC 47 of 2010. This Forum dismissed CC 47 of 2010 on 25-04-11 as    premature because the complainant did not discharge the loan on the date of filing of the complaint.  As the cause of action for filing this complaint arose subsequent to payment of amount under Exs.A-23 and A-24 we are of the view that the complaint is maintainable.

14.  The complainant is in no way concerned with the internal disputes of the opposite parties 1 and 2 as rightly contended by her.   The complainant is entitled to get her documents returned when once the loan is discharged.  It is not the case of the 1^st opposite party that the complainant is still due in respect of the subject loan.   Taking a clue from the above decisions we are of the view that the opposite parties           1 and 2 are liable to return the documents to the complainant and non returning of documents amounted to deficiency of service.                We therefore answer this point in favour of the complainant. 

15. POINT No.4:-   The complainant claimed Rs.15,000/- as compensation for mental agony.  The contention the 1^st opposite party is that it is unable to return the documents to the complainant in view of surcharge proceedings pending against its Ex-Business Manager, Ex-President and Ex-Managing Committee and WP No.10614 of 2007.  The said contention of the 1^st opposite party is having considerable force.   Therefore we are not inclined to grant any compensation to the complainant under the above circumstances.  We therefore answer this point against the complainant. 

16. POINT No.5:-   In view of above findings in the result the complaint is partly allowed against opposite parties 1 and 2 with costs of Rs.1,000/- (Rupees one thousand only) directing them to release the documents kept by the complainant under equitable mortgage.   The claim against the 3^rd opposite party is dismissed without costs.   The opposite parties 1 and 2 are directed to comply the above order within a period of six weeks from the date of receipt of the copy of the order.

Dictated to Junior Steno, transcribed by her, corrected by me and pronounced in the open Forum dated this the 25th day of  January, 2012.

MEMBER                                             MEMBER                                       PRESIDENT

  APPENDIX OF EVIDENCE

                                        DOCUMENTS MARKED

For Complainant :

For Opposite Parties:   NIL

                                                                                                            PRESIDENT