Dt. 14.09.2015

DEBASIS BHATTACHARYA, PRESIDING MEMBER

          The present appeal is directed against the Order dated 09.10.2013,  passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II , in CC No. 30 of 2013 , whereby the complaint  was allowed in part with cost against OP No.1.

          The Complainant’s case, in brief, is as follows:

          The Complainant’s husband was a member of the Ispat Pally Co-operative Housing Colony Society Ltd., Durgapur/Op No.2 . He took a house building loan of Rs.36,000/- from the West Bengal State Co-operative Housing Federation Ltd. (HOUSEFED) / OP No. 1 through OP No.2 in 1993, but the loanee husband of the Complainant died on 30.04.1999. Though she was told by her neighbours and well-wishers  that the loan was waived by the HOUSEFED ,  the dues on account of the loan increased .  Later the Complainant became a member of the Ispat Pally Co-operative Housing Colony Society Ltd. vide membership No. 256 and sent an appeal to HOUSEFED on 02.07.2010  for waiving off all the dues of her husband’s loan along with interest. She was advised to contact the Secretary of Ispat Pally Co-operative Housing Colony Society Ltd. After repeated follow up she came to know that a total sum of Rs. 2,23,217.39 was to be paid as total dues up to 31.12.2010. She paid an amount of Rs. 2,07,069.45 towards the demanded amount with deduction of 15 % penal interest. She was asked to deposit the balance amount of penal interest. Accordingly, she deposited the balance amount of Rs.16,147.95 by cheque No. 803712 dated 28.12.2010 . Thereafter, she prayed for rebate on penal interest of the accumulated loan account to the Chairman, HOUSEFED , Kolkata, through the Secretary, Ispat Pally Co-operative Housing Colony Society Ltd. on 09.01.2011 . The CEO of HOUSEFED  Kolkata, informed that a sum of Rs. 16,148/- has been exempted from her accrued penal interest.  When she approached the Secretary of the Ispat Pally Co-operative Housing Colony Society Ltd., she was told that the refund would be made by HOUSEFED. The Chairman and the Branch In-charge of HOUSEFED were approached for refund of the exempted amount, but to no effect. In the said circumstances, the complaint petition was filed before the Ld. Forum below with prayer for refund of Rs.16,148/- along with interest , refund of total penal interest paid by her along with interest and also for payment of compensation of Rs. 50,000/- and litigation cost of Rs.10,000/-.

          The complaint has been contested by OP No.1 / Appellant herein . It has been contended , inter alia, that on the basis of application of the Complainant, penal interest @ 15 % of the outstanding dues being Rs.16,148/- was considered in their Board meeting and exempted . The said amount was to be refunded by OP No. 2 for which necessary direction for adjustment of waiver amount was sent. It was also stated that under the provision of law, i.e., under Section 102 (4) of the West Bengal Co-operative Societies Act, 2006, a dispute between a Co-operative society and its members was to be settled by the Registrar of Co-operative Societies and the complaint was not maintainable before the Ld. Forum .

        Ld. Forum below observed that late Bhabesh Chandra Acharya being the husband of the Complainant was a member of the Co-operative Society, that is , OP No.2 and after his death the Complainant cleared the entire loan amount along with accrued interest. It was also observed that OP No.1 admitted the admissibility of refund of rebate amount of Rs. 16,148/-. Upon consideration of  the materials on record including all documents as filed by both parties, OP No.1 was found to be liable to pay the amount of Rs.16,148/- , though OP No.1 shifted their liability to OP No. 2. Ld. Forum also examined the question of maintainability of the complaint with reference to Section 102 (4) of the West Bengal Co-operative Societies Act, 2006, and was of the view that the provision of the said Section was not applicable in the complaint case , ‘because late Bhabesh Chandra Acharya was not member of the OP no.1  however  he took loan form OP No.1 and no loan was given by OP No. 2 to him and for which no way  the provision of Sec. 102 (4) of the Act, 2006 was attracted’.

        Accordingly, the Ld. Forum below allowed the complaint with direction upon OP No.1 to refund a sum of Rs.16,148/- and also a composite interest of Rs.4,500/- over that amount , i.e., total Rs.20,648/- to the Complainant, apart from punitive damages of Rs. 5,000/- , in default, Rs.  300/- per day would have to be paid by the OP No.1 and its CEO .

          Being aggrieved by and dissatisfied with the order of the Ld. Forum below,  the OP No.1 - turned - Appellant has come up before this Commission with a prayer for setting aside the impugned order.

          Ld. Advocate appearing for the Appellant submitted that the husband of the Respondent / Complainant took loan from the Proforma Respondent/OP No.2 by virtue of his being member of the said OP Co-operative Society. Such transaction having taken place between a Co-operative Society and its member and the present dispute of refund of a sum of Rs.16,148/- having originated from the disbursement of loan by the OP No.2 should have been referred to the Registrar of Co-operative Societies as provided under Section 102(2) of the West Bengal Co-operative Societies Act. Ld. Forum’s observation that late Bhabesh Chandra Acharya was not a member of OP No.1, i.e., The West Bengal State Cooperative Housing Federation Ltd., is a fact but Ld. Forum’s observation that the said Bhabesh Chandra Acharya  took loan from OP No.1 is wholly misconceived in so far as a Co-operative Society can not extend such house building  loan to a person who is not a member of the Society. The Complainant took the loan from the OP-2 and repaid the same to the OP No.2 / Proforma Respondent . The Appellant/OP No.1 did not issue any loan directly to the husband of the Complainant. Actually, the loan was given by OP No. 2/Proforma Respondent as the Respondent/Complainant was their member.

         It was also submitted by the Ld. Advocate  that the relationship between the Appellant and the Respondent is not that of service provider and consumer. The fact is that  the OP No.2 as a member of OP-1 took necessary fund as  loan from OP No.1 and released loan to the late husband of the Complainant . The  Ispat Pally Co-operative Housing Colony Society was a member of the West Bengal State Co-operative Housing Federation Ltd., (HOUSEFED) . The loan dues were deposited  by the Complainant after the death of her husband on behalf of the said Ispat Pally Co-operative Housing Colony Society. The receipts issued by the West Bengal State Co-operative Housing Federation Ltd. dated 28.12.2010 / 29.12.2010 and 29.12.2010 / 30.12.2010 clearly show that the amounts of Rs. 2,0769.45 and Rs. 16,147.95 were issued against Ispat Pally Co-operative Housing Society Ltd. in respect of  the outstanding dues of Late Bhabesh Chandra Acharya. It was evident that the  transaction in regard to payment of  of Rs. 16,147.95, i.e., 16,148/- was between the Complainant and a Co-operative Society . Accordingly, the dispute in question was to be referred to the Registrar of Cooperative Societies under Section 102/(1)(d) of the West Bengal Co-operative Societies Act, 2006 .

          Ld. Advocate also referred to the judgment of the Hon’ble Calcutta High Court , Special Branch in Civil Division No. 1173 of 1984 reported in AIR (Cal) 1990, Page 380, holding that dispute concerning the business and relating to the affairs of a Co-operative Society shall be referred to the Registrar of Co-operative Societies, if the dispute is between a Co-operative Society and a person having transaction with the Co-operative Society. Considering the fact that the Complainant / Respondent made a transaction with the West Bengal State Co-operative Housing Federation Ltd. and it  was a  transaction by a person with a Co-operative Society, the impugned order suffers from illegality and jurisdictional error. Another order of this State Commission in SC Case No. FA/404/2012 was also referred to holding a similar view . Accordingly, it was emphasized  that the  appeal should  be allowed and the impugned order set aside.

          The authorized representative of the Respondent /Complainant submitted that after the death of her husband as it was learnt that the loan amount was not waived by the Appellant, the entire amount was repaid and on the basis of the prayer of the Complainant/Respondent, the Appellant society waived the penal interest amounting to Rs. 16,148/- which should have been refunded by them. Instead of refunding the same they harassed the Respondent /Complainant and asked the Ispat Pally Co-operative Housing Colony Society  to pay the amount to the Respondent/Complainant, though  the transaction of payment  of the sum of Rs.16,148/- was not made with them. In that view of the fact, the Appellant should have refunded the said sum. Our attention was drawn to the letter No. 1227/III /35 /7 dated 26.08.2011 issued by the West Bengal State Co-operative Housing Federation Ltd., whereby the Secretary,  Ispat Pally Co-operative Housing Colony Society  Ltd., was intimated that the federation would adjust the amount from the overdue amount payable by the later.  In any case no refund  has been made by either of the OPs. Ld. Forum below has rightly observed that the transaction between the Complainant and the Appellant is beyond the purview of Section 102 of the West Bengal Co-operative Societies Act, 2006, and therefore  the Appellant must pay the amount together with interest  and cost as ordered by the Ld. Forum below.

          The proforma Respondent/OP No.2 remained absent during hearing.

          The point for consideration is whether the impugned order suffers from any illegality or jurisdictional error.

                                      Decision with Reasons

          We have gone through the memorandum of appeal together with copies of the impugned order , the petition of complaint , the W.V. filed by the OP No.1 before the Ld. Forum below and other documents including the letter of the Chief Executive Officer West Bengal State Co-operative Housing Federation Ltd. dated 04.12.92, whereby sanction of loan towards the construction of 13 members of Ispat Pally Co-operative Housing Colony Society Ltd. was conveyed and other documents.

         There is no dispute that the husband of the Respondent/Complainant had taken a housing loan from the OP No.2 while he was a member of OP No. 2 . The Respondent / Complainant after the death of her husband paid a total sum of Rs. 2,23,217 /- , out of which a sum of Rs. 16,148/- was paid as penal interest . There is also no dispute that the penal amount of Rs. 16,148/- was decided to be exempted by the Appellant / OP No.1 . As the Respondent / Complainant prayed for refund of the exempted penal interest of Rs. 16,148/-,  neither of the OPs refunded the said amount. The Appellant / OP No.1 argued that since the Respondent /OP No.2  had taken a huge amount of loan from them and since outstanding dues remained unpaid , they should refund the money to the Respondent / Complainant and the said money would stand adjusted against their outstanding dues. The Proforma Respondent/ OP No.2, on the other hand, in their correspondence with the Appellant /OP No.1 pointed out that the Respondent/Complainant  paid back the dues to the West Bengal State Co-operative Housing Federation Ltd. by account payee cheques, so the said Housing Federation/Appellant should refund the sum of Rs. 16,148/- .  The Respondent / Complainant having no fruitful result in view of refusal by both the parties, i.e., the Appellant/OP No.1 and the Proforma  Respondent / OP No.2 approached the Ld. Forum below with a consumer complaint. Ld. Forum below observed that no loan was given by OP No.2 to the late husband of the Complainant. Such observation is not exactly what is revealed from record. The loanee was actually a member of OP No.2 Co-operative society and it was only upon sanction and release of necessary fund to the OP No.2 that the latter gave the loan to the Complainant’s husband . It is therefore evident that the Complainant’s husband took the loan directly from the Proforma Respondent/OP No. 2 .

        Again Ld. Forum’s observation that Section 102 of the West Bengal Co-operative Societies Act was not applicable in the complaint case does  not appear to be convincing in so far as the fact goes that both OP No. 1 and OP No.2 are Co-operative Societies and the Consumer Complaint has been brought up against both of them. The transaction of payment of Rs. 16,148/-  by an account payee cheque in favour of the Appellant was a transaction with a Co-operative Society under Section 102 (1) (d). If any dispute concerning business or affairs of a Co-operative Society arises between a Co-operative Society and a person having transaction with it , the dispute shall be filed before the Registrar of Co-operative Societies . In respect of such dispute , the jurisdiction of the Consumer Disputes Redressal Forum, has been barred.

        In view of the above discussion, we are inclined to hold that the impugned order suffers from illegality and jurisdictional error. The appeal , in the result, succeeds. Hence,

                             Ordered

That the appeal be and the same is allowed. The impugned order is set aside. Consequently, the complaint is dismissed. There shall be no order as to costs.