BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 100/2003 Filed on 06.03.2003

Dated : 15.01.2009

Complainant:

Essayel, residing at Bindu Bhavan, Patharimoola, Kulappada P.O.

(By adv. S.A. Nagappan)

Opposite parties :

1. Kerala State Housing Board, Thiruvananthapuram.

    

2. The Assistant Secretary, Kerala State Housing Board, Thiruvananthapuram.

(By adv. G. Nissar)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 02.02.2005, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 15.12.2008, the Forum on 15.01.2009 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant had applied for a housing loan from the opposite parties in the year 1997 and furnished the requested documents before 01.03.2000. Complainant applied for a loan of Rs. 100000/- and complainant was informed through a notice dated 19.04.2001 that the Housing Board meeting had decided to grant a loan of Rs. 100000/- in favour of the complainant and complainant was instructed to file some more documents in connection with the previously submitted documents. As per the request of the opposite parties complainant furnished documents. Complainant was requested to mortgage his property to Housing Board for an amount of Rs. 100000/-. In that respect complainant had to spend 14%+2% as documents charge and registration charge. Complainant had also incurred other expenses while running after the process of registration. Totally complainant had spent Rs. 26,000/- for meeting the expenses of registration of documents, registration charges, written charge and other expenses. On 15.03.2001, opposite party insisted the complainant to pay an amount of Rs. 180/- as per receipt No. 296780 and complainant paid the said amount. Complainant was instructed to submit a signed paper in order to withdraw the first instalment of Rs. 66000/- to start the works. Complainant started the process of construction with borrowed funds from the local money-lenders. But complainant didn't get the loan due to the reasons of Housing Board. Hence there is deficiency of service and negligence on the part of the Housing Board. Complainant did as per the directions received from the Housing Board and believing the assurance complainant borrowed funds to construct his house. Hence this complaint claiming an amount of Rs. 60000/-, Rs. 32000/-+ Rs. 10,000/- as mortgage registration charge etc. and Rs. 25000/- towards compensation.

Opposite parties entered appearance and filed version contending that the complaint is not maintainable either in law or on facts. There is absolutely no consumer relationship between the complainant and the opposite parties. There is no negligence or deficiency in service on the part of the opposite parties. The complaint is with regard to the agreement as well as mortgage deed entered into between the complainant and opposite parties which requires voluminous evidence and of civil nature and hence this Forum lacks jurisdiction. Complainant had submitted an application for an amount of Rs. 100000/- under repairs and maintenance loan on 03.02.2000 and the same was registered on 15.03.2001 after rectifying the defects found during scrutiny. Complainant had submitted the ownership certificate only on 15.03.2001and had sent the panel of advocates for legal clearance and on 19.04.2001 opposite party issued letter to the complainant after obtaining preliminary clearance from the advocate. The delay was caused due to the negligence on the part of the complainant. As per para 12(4) of the conditions stipulated in the application form and as per clause 17 of the mortgage deed executed by the complainant, stamp duty and other expenses in connection with the loan shall be met by the complainant himself. Complainant had remitted Rs. 180/- on 15.03.2001 towards registration and legal scrutiny. The allegation that the complainant was instructed to submit a paper affix with a revenue stamp worth Re.1 in his name and signature on the stamp in the paper in order to withdraw the first instalment are false, fictitious and without any bonafides. The allegation that complainant borrowed funds from the local money lenders for higher rate of interest are all figments of the imagination of the complainant. Opposite parties never committed negligence or deficiency in service. Complainant never submitted documents in 1997 as alleged in the complaint. Opposite parties have not received any request from the complainant to return his property, the title deed which could be given to the complainant only at his request. Complainant is not entitled to any of the reliefs claimed. Hence opposite parties prayed for dismissal of the complaint with costs.

The points that would arise for consideration are:-

1. Whether there has been deficiency in service on the part of opposite parties?

2. Reliefs and costs.

In support of the complaint, complainant has filed affidavit and marked Exts. P1 to P5. In rebuttal, the 2^nd opposite party has filed affidavit and marked Exts. D1 to D8.

Point (i):- Admittedly the complainant had applied for a housing loan from the opposite parties. It has been the case of the complainant, that the application for the said loan was submitted in the year 1997. It has been rebutted by the opposite party by submitting that the application for the said loan was submitted by the complainant on 03.02.2000 and the same was registered on 15.03.2001 after rectifying the defects found during scrutiny. Submission urged by the complainant is that the complainant applied for a loan of Rs. 1,00,000/- and it was informed through a notice dated 19.04.2001 that housing board meeting decided to grant a loan of Rs. 1,00,000/- in favour of the complainant and complainant was instructed to file some more documents in connection with the previously submitted documents. It has been contended by the complainant, that the documents demanded by the opposite parties were furnished by the complainant that complainant was requested by opposite parties to mortgage his property to Housing Board for an amount of Rs. One lakh and that complainant had incurred Rs. 26000/- towards registration related expenses. Ext. P1 is the letter dated 19.04.2001 issued by the 2^nd opposite

party to the complainant instructing him to submit the required documents within two months from the date of receipt of Ext.P1. Ext. P2 is the receipt dated 15.03.2004 issued by the opposite parties for Rs. 180/-. Ext. P3 is the copy of the promissory note executed by the complainant in favour of Rajam. Ext. P4 is the attested copy of the sale deed executed by the complainant in favour of Rajaram. Ext. P5 is the copy of the promissory note executed by the complainant in favour of Ajayakumar. Main thrust of argument advanced by the opposite party was to the effect that there was absolutely no consumer relationship between the complainant and the opposite parties and that complaint was of civil nature as it relates to the agreement as well as mortgage deed that the complainant had submitted the ownership certificate belatedly which caused delay in legal clearance. A perusal of Ext. D1 application form for house loan would disclose the fact that the said application was seen moved by the complainant on 25.01.2000 and not in 1997 as averred in the complaint. Ext. D3 is the residential/ownership certificate issued by the secretary, Uzhamalakkal Grama Panchayat. Ext. D4 is the complainant's income certificate issued by the Village Officer. Ext. D5 is the mortgage deed for repairs and maintenance. Ext. D6 is the location map and certificate issued by the village officer. Ext. D7 is the tax receipt and Ext. D8 is the circular dated 08.04.2003. It is pertinent to note that as per Ext. P1 letter dated 19.04.2001, no stamp paper is required to register the mortgage deed and registration fee is to be met by the complainant, but no document has been furnished by the complainant to show the cost of registration. As per note (1) of Ext. P1, the final decision of the granting of the said loan will be taken on verification of title deed and other documents submitted by the complainant. Complainant never produced any material on record showing that the final decision regarding the granting of the said loan was taken by the opposite parties. On perusal of Ext. D8 circular dated 08.04.2003, it would appear that from 08.05.2003 onwards Kerala State Housing Board would restart the granting of the various loans to those beneficiaries including those who had executed bond. As per clause (12) of the loan instructions issued along with Ext. D1, opposite parties would never assure granting of loan to those who had applied for them. As per clause 14 of the loan instructions, Housing Board accepts loan application in anticipation of loan from financial institutions and in case if the applicants could not get loan by any reasons, Housing Board could not grant them for which applicants could not claim any compensation from the Board. In this case complainant's allegation is that his right to get the loan amount was defected due to the deficiency of service and negligence on the part of opposite parties. At this juncture, it should be mentioned that so far, opposite parties never took any decision either to grant the loan or not to grant them, nor did opposite parties reject the loan application of the complainant. Before instituting a complaint before this Forum it would be mandatory to issue notice against Board as stipulated under Sec. 139 of the Housing Board Act. Sec. 139 of the Housing Board Act reads as under:

No such suit be instituted against the Board, or any member or any officer or subordinate of the Board, any person acting under the direction of the Board or of Chairman or of any officer or subordinate of the Board in respect of any act done of intended to be done under this Act, or any registration made thereunder, until expiration of sixty days next after written notice has been delivered or left at the Board's office or the place of abode of such member, officer, subordinate or person stating the cause of action, he name and place of abode of the intending plaintiff and the relief which he claims, and the plaint must contain a statement that such notice has been so delivered or left. In view of the above we are of the considered opinion that the suit would imply complaint or other legal proceedings also. In the instant case, there is no material on record showing notice as required under Sec. 139 stating the cause of action for filing the complaint and the relief which he claims has been delivered or left at Board's office, nor did complaint contain a statement that such notice has been so delivered or left. In view of the foregoing discussions, we find no deficiency in service on the part of opposite parties.

In the result, complaint is dismissed. There will be no order as to costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15^th January 2009.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

O.P. No. 100/2003

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Letter dated 19.04.2001 issued by Assistant Secretary,KSHB.

P2 - Receipt No. 296780 dated 15.03.2001 for Rs. 180/- issued by

opposite party.

P3 - Photocopy of promissory note dated 14.07.2001.

P4 - Sale deed No. 2285/02 dated 20.12.2003 from Sub Registrar,

Aryanad, Tvpm.

P5 - Photocopy of promissory note dated 30.04.2001.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Filled application of loan for maintenance and repair advance issued by KSHB.

D2 - Agreement dated 25.01.2000 of loan scheme for maintenance and repair.

D3 - Residential/ownership certificate issued by Secretary, Uzhamalakkal Grama Panchayat.

D4 - Income certificate No. 1309/00 dated 21.10.2000 issued by Village Officer, Uzhamalakkal.

D5 - Mortgage deed for repairs and maintenance No. 1489/01.

D6 - Location map and certificate of property.

D7 - Tax receipt of Book No. 1174 dated 21.10.00.

D8 - Copy of circular from the Deputy Secretary, KSHB.

PRESIDENT