IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 30th day of October, 2015
Filed on 04.03.2015
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier (Member)
- Smt. Jasmine.D. (Member)
in
C.C.No.70/2015
between
Complainants:- Opposite Parties:-
- Smt.Nisha, W/o Aji 1. Alappuzha Housing Co-operative
Plackal House Society Ltd. No. A – 111, represented
Pollethai P.O., Ward No.1 of by its Secretary, Sahakarana Nagar
Mararikkulam South Panchayat Thathampally P.O.
Kattoor Muri, Kalavoor Village Alappuzha – 688 013
Ambalappuzha Taluk
- Sri. Aji, S/o Thomas -do- 2. Sri. Manoj. P.G.
(By Adv. E.D. Zachariah) Ragam House, Aryad South P.O.
North Aryad Muri, Komalapuram
Village, Alappuzha
(By Adv. V. Promod – for opposite
parties 1 and 2)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The second complainant has availed a housing loan of Rs.1 lakh from the first opposite party and the second complainant has given his property covered in document No.3238 dated 8.12.2003 as security. At the time of availing the loan, the complainants have given and the opposite parties have accepted the following documents such as original of sale deed No. 3238 dated 08.12.2003, Tax Receipts, non encumbrance certificate, non attachment and possession certificate and also given mortgage deed No. 1709/2004 registered with SRO, Mararikkulam. At the time of availing the loan the opposite parties have offered and assured that all the documents will be returned and also will execute release deed after closing the loan transaction. Accordingly the complainants have closed the loan account on 12.09.2013 and the opposite parties executed the release deed No. 2790 dated 04.10.2013. But not so far issued other documents received by the opposite parties from the complainants at the time of granting the loan. The complainants have contracted the opposite parties directly and over telephone but they evaded from giving the documents, especially the original of sale deed to the complainants for one or other reasons. After closing the loan transaction, the opposite parties have no manner of right to withhold the original of sale deed No. 3238/2003. The complainants have some other liabilities and the original of the sale deed highly in under of availing loan from nationalized banks. The complainants are entitled to get the original of the sale deed at the earliest. The complainants have caused mental agony and frustration due to the illegal act of the opposite parties. In spite of the repeated contacts the opposite parties did not return the original of the title deeds. The act of the opposite parties amounts to deficiency in service on their part, hence the complaint is filed.
2. The version of the opposite parties is as follows:-
The complaint is barred by Section 100 of the Co-operative Societies Act and hence this Forum has no jurisdiction to entertain the complaint. The complainant is the member of the society and the complaint one being related to a loan account, it squarely comes under the ambit of a ‘dispute’ as defined under S.2 (i) of the Co-operative societies Act. Hence it comes within the ambit of S.69 of the said Act and therefore it is barred under S.100 of the Act. The documents and other records of the loanee is kept at the office of and in the custody of Housing Federation. In fact this opposite party is only an agent of the Housing Federation receiving a mere margin of 1% from the former, for its functioning. This opposite party is governed and controlled by the Housing Federation and any repayment made by the loanee is to be remitted with the Housing Federation. The averment that the complainants have contacted the opposite parties directly and over telephone for the documents is false and hence denied. The complainants never requested the opposite parties for the return of the documents before the filing of this complaint before the Hon’ble Forum. The present Secretary is not a custodian of the loan documents submit by the members nor is he in possession of the same. The documents are in the possession and custody of the Housing Federation and the same is being detained by the Federation. There is no deficiency in service on the part of the opposite parties 1 and 2. Since the first opposite party only an agent of the Housing Federation and the second opposite party is the employee of the first opposite party.
3. The first complainant filed proof affidavit in lieu of chief examination along with the documents marked as Ext. A1 & A2.
4. The points came up for considerations are:-
- Whether the complaint is maintainable?
- Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to get relief and cost?
5. Point No. 1 :- According to the opposite parties, complainant is a member of the Society and the complaint being related to loan account it squarely comes under ambit of dispute as defined under Section 21 of the Co-operative Societies Act and hence is barred under Section 100 of the Co-operative societies Act. In a reported decision in 2004 (I) CPJ Part I SC Secretary Thirumurugan Co-operative Agricultural Credit Society Vs. M. Lalitha, Hon’ble Apex Court held that “Remedy under 1986 Act, in addition to, not in derogation of other remedies available – Rights and liabilities created between members and management of Society under 1983 Act cannot exclude jurisdiction under 1986 Act”. In view of the above decision, we have no hesitation to hold that the complainants’ case coming under the purview of Consumer Protection Act.
6. Point Nos. 2 & 3:- It is an admitted that the second complainant has availed a loan for an amount of Rs.1 lakh from the first opposite party. According to the complainant while taking loan from the opposite parties, they had mortgaged their title deeds as security. But even after closing the loan amount opposite parties failed to return the original of the title deeds. Ext.A1 is the true copy of the loan closed receipt dated 12.9.2013 issued by the opposite parties. According to the opposite parties the documents and other records of the loanee is kept at the office of and in the custody of Kerala State Co-operative Housing Federation. The housing federation is detaining the documents of the members because the repayment made by the members has not been remitted to the federation. So that the departmental disciplinary action and criminal proceedings were initiated against the previous Secretary and administrative committee Ext.A2 is the copy of the release deed No.2790 dated 4.10.2013 executed by the Secretary of the first opposite party. As per Ext.A2 the complainant has cleared off all the liabilities with regard to the loan amount. In spite of the repeated requests of the complainant the opposite party failed to return the original title deeds and that amounts to deficiency in service on the part of the opposite parties. The contention that the documents of the 2nd complainant was kept by the housing federation is not applicable in this case. If the documents were kept by the housing federation, it is the bounden duty of the opposite parties to collect the documents and return it to the complainant.
In the result, the complaint is allowed and direct as follows:-
- The opposite parties shall return the original of title deeds and tax receipt within 2 weeks from the date of receipt of this order.
- The opposite parties shall pay Rs.5000/- (Rupees five thousand only) towards compensation and Rs.1000/- (Rupees one thousand only) towards costs of this proceedings to the complainant.
Dictated to the Confidential Assistant transcribed by her corrected by me and
pronounced in open Forum on this the 31st day of October, 2015.
Sd/- Smt.Elizabeth George (President)
Sd/- Sri. Antony Xavier (Member)
Sd/- Smt.Jasmine.D. (Member)
Appendix:-
Evidence of the complainant:-
Ext.A1 - True copy of the loan closed receipt dated 12.9.2013 issued by the opposite parties
Ext.A2 - Copy of the release deed No.2790 dated 4.10.2013 executed by the Secretary of the first opposite party
Evidence of the opposite parties:- Nil
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-
