SRI.R.VIJAYAKUMAR, MEMBER.
The complaint is filed Under Section 12 of Consumer Protection Act . seeking return of original documents for getting Rs.50,000/- as compensation for financial loss and Rs.25,000/- as compensation for deficiency in service and costs.
The averments in the complaint can be briefly summarized as under.
The complainant availed a loan for Rs.1,00,000/- from the opp.party society on deposit of the title deed of his property . The complainant remitted the loan amount along with interest in full and the loan was closed on 1..4..2002. Even though the complainant requested repeatedly the opp.parties did not return the title deed. It is explained by the opp.parties that even though the account was maintained by the opp.party society, the accounts and the documents were kept with the State Housing Federation. The complainant filed petition before Kollam District Joint Registrar of Co-operative Societies and Asst. Registrar of Co-operative Societies and before the Minister, Kerala State Co-operative Societies. But those attempts were failed. The complainant approached the Administrator and requested to take necessary actions for the return of title deed. The administrator informed that even though the complainant’s loan was closed the account kept with Housing Federation shows a due amount of Rs.97,372/- as on 31..8..2008.
In the meantime believing that the document will be returned the complainant entered into an agreement for the sale of the said property receiving Rs. One lakh in advance. Due to the non performance of the agreement the complainant sustained a loss of Rs.50,000/- which has been paid as compensation in addition to the advance amount.
The complainant sustained heavy loss and mental agony due to the deficiency in service from the part of opp.parties. Hence the complaint.
Even though sufficient opportunity has been given the 1st opp.party remained absent and hence set exparte. Opp.party 2 has not filed version.
The opp.party 3 filed version contenting the allegations in the complaint. The 3rd opp.party was working in the society only as a honorary secretary for 3years in the absence of a paid secretary and as per the decision of Executive Committee and relieved on 31..12..2002 as the society taken to the management and control of administrator. The complainant was a regular employee in Agricultural Department and the 3rd opp.party has no authority to interfere in the Administration. The loan was not sanctioned by 3rd opp.party. The amount repaid in installment was sent in favour of Managing Director, Kerala Housing Federation, Ernakulum. As the Kerala Housing Federation has given loan to the complainant, the document were kept under the custody of Kerala State Housing Federation. But the complainant has not impleaded the office bearors of Kerala State Housing Federation. The opp.parties 2 and 3 has no relation to the Q.817 Society now. No misappropriation of money was done by the 3rd opp.party . The 3rd opp.party has no knowledge regarding the agreement for the sale of the property of the complainant and it was not informed to the opp.parties . The complainant is a member of the society and hence she could not be a consumer against the opp.party. The 3rd opp.party has nothing to do since he is not holding office and not having any authority to represent the society and to do anything for the return of the documents of the complainant.
The allegation leveled against the 3rd opp.parties is ill motivated and hence it is to be dismissed.
The complainant filed affidavit and she was examined as PW.1 Exts. P1 to P4 marked.
From the part of opp.parties DW.1 examined. Ext. D1 and D2 marked
The points that would arise for consideration are
1. Whether the complaint is maintainable?
2. Whether there is any deficiency in service from the part of opp.parties ?.
3. Reliefs and costs?
Point: 1
The 3rd opp.party contented that the complaint is not maintainable in the Forum as the complainant is a member of opp.party society. It is argued by the learned counsel for the opp.party that a member of society is a beneficiary of the society and the members elect the Executive committee to manage and look after the day to day affairs. Members are owners of society and they contribute capital by way of share and the member gets dividend. The general body consists of members and functioning of the society is based on mutual help.
The case of the complainant is that the complainant availed service from opp.parties by availing a loan for Rs.1,00,000/- . the transaction will come within the definition of the Consumer Protection Act.
As the loan was sanctioned in favour of the complainant by the opp.parties in our view, no doubt the opp.party is a service provide. The opp.party had administrative authority over the said society. On the contrary even though the complainant is a member of the society she had no authority in sanctioning the loan or no right take back the title deed voluntarely. The power to sanction loan on security and return the documents on closure of the loan are vested on secretary, Executive Committee, the office bearers etc.who had administrative control over the society. Hence the complainant is a consumer and the complaint is maintainable in the Forum
Point s 2 and 3
Admittedly the complainant availed a loan for Rs.1,00,000/- from the opp.party society on depositing title deed as security. It is admitted that all the amount paid by the complainant was properly accounted and receipts were given to the complainant. It is also admitted that the loan was closed on 1..4..2002. Further it is admitted that the documents were not returned to the complainant. It is stated in Ext. P1, the letter issued by the Administrator to the complainant that it is recorded in personal Register of the complainant that she had closed the loan on 2..4..2002 . It is also stated that Rs.97,373/- has to be paid to Kerala State Housing Federation in favour of the complainant’s loan account No.114202. From Ext. P1 it is obvious that the loan amount was paid by complainant fully and the loan was closed on 2..4..2002. The complainant is not responsible for any due amount before Kerala State Housing Federation by the opp.party society.
Nothing was brought out in the detailed cross examination of PW.1 to discredit the evidence adduced by the complainant. Ext. P4 reveals that an agreement was executed by the complainant .P.K. Sasidharan, S/o. Kesavan, Palavila Veedu, Mangad village, Kollam for the sale of said property.
It is stated in Ext. D2, the information given by the liquidator,, Asst. Registrar [General] office, Kollam as the reply of letter seeking information by the opp.party’s counsel Adv. Mohan Babu that documents related to Loan NO.114202 is keeping under the custody of Kerala State Housing Federation.
The learned counsel for the 3rd opp.party argued that Kerala State Housing Federation is only responsible to return the documents of the complainant’s property. It is further argued that the agreement was executed by the complainant with Kerala State Housing Federation and the loan was sanctioned by them. Instead of taking action against th responsible persons these opp.parties are unnecessarily impleaded without any valid basis. Ext. D1, Bye Law item 32 [3], 33[1], 33 [c] , 33 [f] clearly speaks about the role of state Federation in granting of the loan and custody of documents.
We have carefully perused that Ext. D1 by-law items 32 [3], 33[3], 33 [c] 33 [f] . The role of State Federation stated in clause 32[3][ is only related to the verification regarding the ownership of the property and title deed by its authorized Advocate. Nothing is stated in the other clauses regarding the role of State Federation
While in cross examination, of DW.1, the learned counsel for the complainant put the question that Housing Federation DT complainant ambn loan kT-_-Ô-amb Hcp Icm-dn tFÀs¸-«n-«nà F¶p ]d-bp¶p DW.1 answered that tFÀs¸-«n-«p-p. Bb-Xn-\p-f-f tcJ H¶pT Ct¸mÄ lmP-cm-¡m³ Ig.n-bn-Ã.The learned counsel further put the question that kT-LT BWv loan provide sN¿p-¶-sX¶v bye-law  ]d-ªn-«p-tÃm DW.1 answered that Dp#v
From the deposition also it is clear that the loan agreement was executed between the complainant and the society.
As the counsel for the opp.parties 2 and 3 argued that they have served the society for short span only and now they have no authority over the opp.party society. It is an admitted fact that the opp.party society is managed by the 1st opp.party, Administrator. The complainant has no case that the opp.party 2 and 3 had not given receipts for her payments and the amounts were not accounted in her favour or had done any misappropriation. It is also admitted by PW.1 the complainant that she had approached the Administrator and enquired about the documents. The 1st opp.party agreed but not returned the documents
Based on the above said facts, circumstances, evidence adduced and considering the arguments, we are of the opinion that there is deficiency in service from the part of 1st opp.party. The case of the complainant stands proved. The points found accordingly.
In the result, the complaint is allowed in part. The 1st opp.party hereby directed to return the title deed of the property deposited as security of loan No.14202 without any delay. The opp.party is further directed to pay compensation for financial loss Rs.50,000/- and compensation of deficiency in service Rs.10,000/- along with cost Rs.1500/-
The order is to be complied with within one month of the date of receipt of this order.
Dated this the 30th day of April, 2012.
I N D E X
List of witnesses for the complainant
PW.1. – Sugandhi
List of documents for the complainant
P1. – Letter
P2. – Copy of complaint
P3. – Acknowledgement
P4. – Agreement of sale of property
List of witnesses for the opp-parties
DW.1. – Rajachandran
List of documents for the opp.parties
D1. – Bye-Law
D2. – Letter sent by Public Information Officer to the Adv. MohanaBabu
