KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No. 570/2010

ORDER DATED: 20-01-2011

PRESENT:

SHRI. M.V. VISWANATHAN                   :   JUDICIAL MEMBER

SHRI. M.K. ABDULLA SONA        :   MEMBER

Secretary,

Perinthalmanna Taluk Rural-

Housing Society Ltd., No.270,       : APPELLANT

P.O.Perinthalmanna,

Malappuram Dist.

(By Adv.Sri.C.D.Dileep)

          Vs.

1.      Sankaranarayanan,

S/o Raman Ezhuthachan,

Melittil House, P.O. Elad,

Malappuram Dist.

                                                : RESPONDENTS

2.      Leela,

S/o Sankaranarayanan,

S/o Raman Ezhuthachan,

Melittil House, P.O.Elad,

Malappuram District.

                                                JUDGMENT

SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER

Appellant was the opposite party and respondents were the complainants in CC.52/2010.  The said complaint was filed alleging deficiency of service on the part of the opposite party in not returning the title deed with respect to the property which was pledged for availing bank loan from the opposite party, Perinthalmanna, Taluk Rural Housaing Co-operative Society.  The complainants alleged that the loan amounts taken by the complainants from the opposite party were repaid and the loan transactions were closed; but even thereafter the opposite party, the Secretary of the Co-operative Society was not prepared to return the documents and to execute the title deed infavour of the complainants.

2.      Notice in the said complaint in CC.52/10 was served on the opposite party; but the opposite party remained absent.  The Forum below, CDRF, Malappuram declared the opposite party as exparte on 22/4/2010.  Thereafter, the complainant filed affidavit and supporting documents on 19/5/2010.  On the basis of the evidence on record, the Forum below passed the impugned order dated:19/6/2010 directing the opposite party to return the title deed with respect to the property to the complainants and to pay a sum of Rs.6000/- as compensation to the complainants with cost of Rs.1000/-.  The opposite party is further directed to execute the release deed infavour of the complainants at the expense of the complainants and in the event of failure to return the title deeds to the complainants the opposite party is directed to pay a further compensation of Rs.15,000/-.  It is against the said order, the present appeal is filed by the opposite party therein.

3.      We heard the learned counsel for the appellant/opposite party.  He submitted his arguments based on the grounds urged in the memorandum of the present appeal and argued for admitting the present appeal and to remand the matter to the Forum below.

4.      Appellant was the opposite party before the Forum below in CC.52/10.  The respondents herein were the complainants in the said CC.52/10 which was filed alleging deficiency of service on the part of the opposite party, the Secretary, Perinthalmanna Taluk Rural Housing Co-operative Soceity, Perinthalmanna.P.O, Malappuram. It was alleged that the opposite party failed to return the title deeds which were deposited with the society for availing loans.  There is no dispute that the respondents/complainants are the husband and wife and they availed loans from the opposite party society.  It is also not disputed that the loan amounts and other dues were paid by the respondents/complainants and the said loan transactions were closed by 26/5/2009.  Exts.A1 and A3 loan passbooks and A2 and A4 receipts would strengthen the case of the complainants that the loan transactions were closed and no amount was due to the opposite party society from the complainants.  The appellant/opposite party has not disputed the fact that the loan transactions were closed as early as on 26/5/2009 and no amount is due from the respondents under A1 and A3 loan passbooks.

5.      The appellant/opposite party has no case that he returned the title deeds of the property which were deposited for availing the aforesaid loan amounts.  There can be no doubt about the fact that the appellant/opposite party being the secretary of the Co-operative Housing Society was legally bound to return the title deeds on closure of the loan transactions.  Thus, the respondents/complainants established before the Forum below, the alleged deficiency of service on the part of the opposite party, the Secretary, Perinthalmanna Taluk Rural Housing Co-operative Society No.M-270.  The complainant has also filed affidavit in support of the case of the complainants.  The averment in the said affidavit stands unchallenged and uncontroverted.  It is further to be noted that the appellant/opposite party has no case that any amount is due from the respondents/complainants.  There is also no case for the appellant/opposite party that the title deeds which were pledged by the respondents were returned to them.  Thus, the Forum below is perfectly justified in relying on the affidavit and the supporting documents and in finding deficiency of service on the part of the appellant/opposite party.

6.      Appellant has got a case that the CDRF, Malappuram which entertained the complaint in CC.52/10 had no jurisdiction to entertain the dispute involving members of Co-operative society with the Co-operative society.  The learned counsel for the appellant/opposite party much relied on Sec.69 of the Co-operative Societies Act.  It is a well settled position that the bar under Sec.69 of the Co-operative Societies Act will not bind the agencies constituted under the Consumer Protection Act.  It is to be noted that Sec.69 of the Co-operative Societies Act bars the jurisdiction of Civil Courts.  It is to be noted that the Consumer Fora and the Consumer Commissions constituted under the Consumer Protection Act cannot be treated as Courts.  Se.3 of the Consumer Protection Act would make it abundantly clear that the remedies provided under the Consumer Protection Act are additional remedies and those remedies are not in derogation of the provisions of any other law for the time being in force.  It is a well settled position that the arbitration clause or any other remedies as provided under the Co-operative Societies Act would not bar the jurisdiction of the agencies constituted under the Consumer Protection Act.  The mere fact that the dispute involved in CC.52/10 was between the Co-operative society and its members cannot be taken as a ground to oust or bar the jurisdiction of the CDRF, Malappuram.  Thus, the Forum below had the jurisdiction to entertain the complaint in CC.52/10 and there was no jurisdictional error or defect in entertaining the aforesaid complaint in CC.52/10.

7.      Admittedly, the appellant was the opposite party in CC.52/10 on the file of CDRF, Malappuram.  Notice in the said complaint was served on the opposite party; but he remained absent.  No justifiable reason is stated for the failure of the opposite party in appearing before the CDRF, Malappuram in CC.52/10.  It is the case of the appellant that the matter was entrusted with an Advocate and the said Advocate failed to appear on behalf of the opposite party in CC.52/10.  But there is nothing on record to show that the appellant/opposite party had entrusted the matter with an Advocate of his choice.  It is stated in the appeal memorandum that there occurred lapse on the part of the said counsel who was entrusted for appearance in CC.52/10.  No document is forthcoming from the side of the appellant to substantiate his case that he entrusted the matter with an Advocate.  The name of the so called Advocate who was engaged to appear on behalf of the opposite party in CC.52/10 is not mentioned in the appeal memorandum.  The case of the appellant that the matter was entrusted with an Advocate cannot be believed for a moment.  The available materials would only show that the appellant who was the opposite party in CC.52/10 was negligent in defending the case in CC.52/10.  The materials on record would show that the appellant/opposite party was sitting idle and he permitted the Forum below to pass an exparte order in CC.52/10.  The appellant being the opposite party in CC.52/10 had sufficient opportunity to enter appearance before the Forum below and to defend his case.  Thus, the appellant herein was totally negligent in defending the case in CC.52/10 on the file of CDRF, Malappuram.  So, the present appeal preferred by the opposite party in CC.52/10 is devoid of merits and the same is liable to be dismissed at the admission stage itself.

8.      The deficiency of service on the part of the opposite party in CC.52/10 has been established.  The Forum below has only awarded Rs.6,000/- by way of compensation for the deficiency of service.  The quantum of compensation of Rs.6000/- awarded by the Forum below can be treated as reasonable.  The Forum below has only awarded cost of Rs.1000/-. The same can also be treated as reasonable.  Admittedly, the appellant/opposite party is legally bound to return the title deeds to the complainants.  So, the impugned order passed by the Forum below is to be upheld.  The Forum below has also directed the opposite party to return the title deed and execute the release deed at the expense of the complainants.  The time prescribed for compliance of the order is one month and in the event of failure to comply with the said order the opposite party is directed to pay a further compensation of Rs.15,000/-.  Thus, in all respects the impugned order passed by the Forum below is to be confirmed.  Hence we do so.

In the result, the appeal is dismissed at the admission stage itself.  The impugned order dated:19/6/2010 passed by CDRF, Malappuram in CC.52/10 is confirmed.

M.V. VISWANATHAN  :   JUDICIAL MEMBER

M.K. ABDULLA SONA :   MEMBER

VL.