Order-27.

Date-03/02/2016.

In this complaint Complainant Prasanta Kumar Biswas by filing this complaint has submitted that complainant for an advance payment of Rs. 2,20,000/- only for the purpose of construction of one storied building measuring 576.12 sq. ft. on or over of land standing on Plot No.8/A, Dag R.S. No. 379, Khatian No. R.S. 73, L.R. 496, L.R.S. 889, Mouza- Teghoria under Bilkanda No. II, Gram Panchayat, P.S.-Ghola, Dist- (N) 24 Pgs.

In respect of that land granted by the op, an Agreement was executed by and between the parties for disbursement of sanction Loan A/C.Op has paid a total sum of Rs. 1,87,000/- only out of the sanctioned amount of Rs. 2,20,000/- vide cheque no. 229011 dated 01.03.2005 for a sum of Rs. 66,000/-, cheque no. 963386 dated 29.04.2005 for a sum of Rs. 66,000/- and cheque no. 170123 dated 13.09.2005 for a sum of Rs. 55,000/- and as per agreement, complainant was required to repay the said loan in 240 equal monthly installment at the rate of Rs.11.02 per thousand and commencing from 01.01.2006, with an interest at the rate of 12 percent per annum and a penal interest of 15 percent p.a. in case of default in payment any installment.

Op did not disburse the balance amount of Rs. 33,000/- only to complainant till date for which in numberable occasion complainant requested the op personally in writing to apprise him about the total amount and EMI so that complainant can take steps in this matter.

Complainant already paid Rs. 9,825/- by cash on various dates on account of interest as well as installment.By a letter No. 1152/V-781 dated 28.01.2009, op has threatened the complainant to take legal steps against complainant for realization of the entire amount of Home Building advance though the op is duty bound to disburse to the whole or total sanctioned loan amount to complainant.Even the deficiency of service on the part of the op but the said op demanded from complainant for interest as well as penalty amount against the whole or total sanctioned loan amount of Rs. 2,20,000/- which is unjust.

Op till date did not disburse the entire loan amount of Rs. 2,20,000/- to complainant and on 01.09.2012 complainant went to the op’s place with an intention to narrate the plight, inability and problem facing by the complainant and requested the op for resolution to reach the full and final settlement in respect of the above said loan amount and the complainant placed his proposal or request to the said op that complainant would be able to pay maximum amount of Rs. 2,00,000/- only towards the full and final settlement against the said receipt of loan amount of Rs.1,87,000/- out of the sanctioned amount of Rs.2,20,000/-.

Complainant already paid Rs. 50,000/- through Demand Draft being No. 156/0/2100/20, Axis Bank, Sodepur Branch dated 21.09.2012 as per the advice given by the op against the proposal and the request of the full and final settlement amount of Rs. 2,00,000/- made by complainant.Complainant sent letter requesting the op to furnish the actual EMI to be paid by complainant through his Ld. Advocate which has been received by them but no step has been taken by the said op and after that complainant had sent a letter on 04.12.2014 and complainant sent another letter for taking the same but no step has been taken with the same till date for the reason and complainant never denied that he was not willing to repay the receipt of loan amount of Rs. 1,87,000/- at the same time and complainant is able to repay the said amount without any interest and penalty.

Complainant stated that if he did not receive the above mentioned sanctioned loan amount of Rs. 2,20,000/- then how op can claim interest over the said amount.So, the claim of the op is completely unlawful and complainant is not liable to repay the said loan amount with interest until the total amount of the said sanctioned loan is not disbursed in favour of complainant and fact remains that complainant already paid hefty amount to the op.

In the above circumstances, considering the deficiency and negligence on the part of the op, complainant should be compensated and necessary order shall be passed to direct the op to furnish details about the actual EMI paid by the complainant in respect of said received loan of Rs. 1,87,000/- out of total sanctioned loan and also direct the op to receive out of the settlement and other reliefs etc.

On the other hand op by filing written statement submitted that the present Forum has no jurisdiction to try the instant complaint against the West Bengal State Co-operative Housing Federation Ltd. because complainant is a member of that society and as per provision of 102 of West Bengal Co-operative Society Act, 2006 amended upto Consumer Forum has no legal validity to settle this matter and it is barred u/s 102 of WBCS Act, 2006 as amended up.

Fact remains that complainant admitted that agreement was executed by and between which he has annexed and as per terms and conditions of the said agreement, the complainant has to complete the construction of building before submitting prayer for release of last installment of his loan amounting to Rs. 33,000/- by op out of total Loan of Rs. 2,20,000/- and further in the letter of the complainant dated 27.09.2012 addressed to op, complainant admitted that he could not complete construction of the building till that date as such he could not avail of the last installment or his loan.

Further complainant is not entitled to get loan installment of Rs. 33,000/- to be released from the op owing to the laches and deficiencies on the part of the complainant and not of the op.In the above circumstances, further op in letter dated 30.07.2013 of complainant addressed to op to pay Rs. 2,30,000/- within seven days, otherwise the benefit would be treated as cancelled after payment of the same the release of property of the complaint shall be made and mortgage would be released and further denied all other allegations and prayed for dismissal of this case.

Decision with reasons

After hearing the Ld. Lawyer for the both parties and also considering the complaint including the materials on record and the provision of law, it is clear that as per provision of section 4(41) . Member means a person joining by any application for registration of co-operative society or a person admitted to the proprietorship of co-operative society after registration in accordance with the provision of this Act and Rules and the bye Laws made therein and nominal members was given any person admitted to the proprietorship of the co-operative society as nominal member under sub section(3) of Section 63..

As per provision of Section 63/3 a Co-operative Society may admit any person by an application, any association or body or persons (whether incorporated or not) as a nominal member who shall notbe entitled to any share in any form in the assets or profit of the co-operative society and shall not be eligible to be elected as director of the board and shall have no right to attend the general meeting etc.But considering the materials and documents as produced by the op, it is found that complainant filed an application for nominal membership and defence of the West Bengal Co-operative Society Ltd. and also prayed for loan and he was admitted as nominal member of the West Bengal Housing Co-operative Ltd.

Truth is that complainant prayed for a loan of Rs. 2,20,000/- out of which a sum of Rs. 1,87,000/- was released and balance amount would be paid subject to submission of completion of construction of the building but timely that has not been submitted.So, balance amount of the sanctioned loan has not been released by the op and in view of the condition as included in the said application and sanctioned letter, it is found that complainant’s application for nominal member and house building advance was granted and complainant has become a nominal member of society and loan has been granted to the member not any out sider as per agreement and it is found that balance amount of the loan can only be paid if complainant can submit such certificate that construction has been completed but no such certificate has been submitted by the complainant.

But we are now entering into the merit of this case in view of the fact op has challenged the legality of this complaint on the ground as per provision of Section 102 of the West Bengal Co-operative Society Act, 2006 amended upto any Court or any Consumer Disputes Redressal Forum shall have no jurisdiction to try any dispute as mentioned u/s 102(1) and in this regard we have gone through the provision of Section 102(1) and it is found that any dispute concerning management or business or affairs of a Co-operative Society other than the dispute relating to election in a co-operative society as and when such election is conducted by the Co-operative Election Commission and disciplinary action taken by co-operative society against its paid employees regarding the terms and conditions of the service shall be filed before the Registrar for settlement if it arises – among members, past members and persons claiming through members and deceased members or then sureties, any person claiming through a member, past member or deceased member representing through heirs or legal representatives and the co-operative society, its board or any officer, agent or employees of the co-operative society or liquidator, past or present or between the co-operative society or its board and any past board, any officer, agent or employee or any past officer, past employee or the nominee, heirs or legal representatives of any deceased officer or deceased employee of the co-operative society etc. and as per provision of 102(2) any dispute mentioned in sub-section (1) other than a dispute relating to recovery of money shall be filed before the Registrar within three months from the date on which the cause of action arises.

Relying upon the provision of 102 (1) (2) and also sub-section (2), we are convinced to hold that complainant is nominal member of the society and nominal member means a member ofa registered society and as per provision of the Act if there is any dispute in between member or nominal member and co-operative society, regarding business or affairs of co-operative society, such a dispute shall be filed before the Registrar of Co-operative Society for redressal.

When in this case complainant is a member of present co-operative society the op, then there is no other alternative on the part of the complainant but to file such complaint about the business to the RegistrarofCo-operative Society the op and regarding such dispute as per provision of Section 102 of West Bengal Co-operative Society Act, 2006 Registrar is the authority to dispose of and when this dispute is in between the member and op, the Civil Court or any Consumers’ Dispute Redressal Forum shall not have any jurisdiction to try any such dispute as mentioned in sub-section (1) of West Bengal Co-operative Society Act.

But interpretation of the Act, and statutes and provision of loan and status of the complainant, we are convinced that complainant is a nominal member that he is a member of co-operative society and the present dispute is relating to business of the co-operative society because complainant took a loan and loan was granted not to third party but member of the co-operative society and this dispute is regarding non-releasing of last installment of sanctioned loan amount and other matter about interest etc.

So, it is a dispute in between the co-operative member (complainant) and the co-operative society when that is the fact, then this dispute comes under the Purview of section 102 West Bengal Co-operative Society Act, 2006 as amended upto date) and for which we are convinced that this dispute should be filed before the Registrar Co-operative Society for decision as per provision of Section 102(2) and as per provision of Section 102(4) of the Act, the present Forum has no jurisdiction to decide the present dispute.But the present case is already guided by Special Act (West Bengal Co-operative Society Act amended upto date).

In the light of the above observation, we are convinced to hold that this present complaint is not maintainable before this Forum and such a dispute cannot be decided by this Forum as this jurisdiction has been curtailed by the Provision Section 102 (4) of West Bengal Co-operative Act, 2006 amended upto date.

In the result, the present complaint is barred u/s 102(4) of West Bengal Co-operative Act, 2006 amended upto date.So, this complaint fails as same is not maintainable in the eye of law on the ground that is Forum has no jurisdiction to decide such dispute.

Hence, it is

Ordered,

That the complaint be and the same is dismissed on contest without any cost against the op.But complainant shall have his right to file an application before the Registrar within 3 months from the date of this order and Registrar shall entertain such dispute for disposal condoning such delay considering the matter that case has been filed before this Forum but on the ground of non-maintainability it is rejected.So, Registrar shall decide the same on merit as per provision of Law without treating such application of complainant is time barred.