Haryana

Yamunanagar

CC/813/2012

Subhash Chand S/o Kharati Lal - Complainant(s)

Versus

Rama Shankar Secretary,The Shiv Om Co-Operative Housing Building Society Ltd - Opp.Party(s)

Vikas Kamboj

31 May 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                          Complaint No. 813 of  2012.

                                                                                          Date of institution: 30.07.2012

                                                                                          Date of decision: 31.05.2017.

Subhash Chand aged about 65 years son of Shri Kharaiti Lal, resident of Jammu Colony B, Camp, Yamuna Nagar.                                                                                                                                                                            

                                                                                                                                    …Complainant.

                                                    Versus

1. Rama Shankar, Secretary, The Shiv Om Cooperative Housing Building Society Ltd. Jagadhri, (Yamuna Nagar) 1151, Jammu Colony B, Camp Yamuna Nagar (Name of respondent No.1 deleted due to death of Rama Shankar vide order dated 13.02.2017).
2. The Shiv Om Co-operative Housing Building Society Ltd, Jagadhri, (Yamuna Nagar) 1151, Jammu Colony B, Camp Yamuna Nagar, through its President/Secretary.
3. Haryana State Co-operative Housing Federation Limited, Bays No. 49-52, Sector-2, Panchkula, through its Managing Director.

                                                   

                                                                                                                                    ... Respondents

BEFORE:  SH. ASHOK KUMAR GARG, PRESIDENT

                   SH. S.C.SHARMA, MEMBER.

                   SMT. VEENA RANI SHEOKAND, MEMBER  

 

Present:Sh. Vikas Kamboj, Advocate, counsel for complainant.   

              Ms. Sonia Rohilla, Advocate, counsel for respondent No.2.

              Sh. Nirman Kapoor, Advocate, counsel for respondent No.3.

              Respondent No.1 deleted vide order dated 13.02.2017.

ORDER (ASHOK KUMAR GARG, PRESIDENT)

1.                            Complainant Subhash Chand filed the present complaint under section 12 of the Consumer Protection Act 1986 amended up to date.

 2.                    Brief facts, of the present complaint, as alleged by the complainant, are that the complainant is member of Shiv Om Cooperative Housing Building Society Ltd. Jagadhri i.e. respondent No.2(hereinafter respondents will be referred as OPs) and he applied for housing loan and was given loan amounting to Rs. 2,00,000/- in installments in the year 2000 and 2001. The complainant paid loan installments to the OP No.1 being secretary of the OP No.2 Society from February 2001 to October, 2011 on different dates. As such, the complainant had paid a total sum of Rs. 1,63,135/- till date. In the year 2012,the Op No.3 launched a one time settlement scheme on behalf of State Government and as per the scheme the federation has to wave the penal interest etc. and the balance amount was to be paid by the loanee to settle the loan account. The complainant various times approached the OP No.1 for putting his case in the said one time settlement scheme but he put off the matter on one pretext or the other. Thereafter, the complainant approached the Op No.3 and came to know that the OP No.1 has not deposited the amount in the account of complainant. After that, the complainant approached the OPNo.1 and enquired about the matter and requested him to deposit the total amount worth Rs. 1,63,135/- received by him from the complainant but Op No.1 did not pay any heed to his genuine request. Finding no other alternate the complainant served a legal notice dated 20.06.2012 directing him to deposit the balance amount in the loan account of complainant but despite  receipt of notice OP No.1 neither paid the amount so received by him nor replied the same rather served a false and frivolous notice dated Nil upon the complainant. The complainant is interesting in settling his loan account with the OP No.3 but due to hostile action of OP No.1, the complainant could not settle his loan account. Lastly, prayed for directing the OPs to settle the loan account of the complainant as per the scheme floated by OP No.3 after adjusting the actual amount worth Rs. 1,63,135/- actually paid by him and received by OP No.1 on behalf of Ops No.2 & 3 and also to pay compensation as well as litigation expenses. Hence, this complaint.

3.                     Upon notice, OPs appeared and filed its written statement separately. OPs No.1 & 2 filed their written statement jointly by taking some preliminary objections such as there is no relationship of consumer and supplier between the complainant and Ops No.1 & 2; the complainant has got no locus standi or cause of action to file and maintain the present complaint. The Op No.1 Rama Shankar has been wrongly and intentionally impleaded as party in the present complaint by falsely mentioned him the Secretary of Shiv Om Housing Building Society Limited, Jagadhri. However, he is the President of said Society and the complainant has misguided to this Forum from actual facts. The complainant has concealed the true and material facts from this Forum; hence the complaint of the complainant is liable to be dismissed with costs. However, as per record of the society the outstanding debit amounting to Rs. 10,26,444/- is standing in the name of complainant as on 01.12.2013 and the complainant is a big defaulter in making the payment as he has mortgaged his property with the society and had obtained a loan of Rs. 2,00,000/- and the copy of account statement is attached herewith. The present complaint is not maintainable as the same is barred by the provisions of sections 102, 112, 124 and 128  of the Co-operative Societies Act and on merit it has been admitted that the loan amount was disbursed to the complainant. However, the complainant has mentioned the wrong facts of payment of installments and loan amount of Rs. 1,63,135/-, as till date, he has paid only a sum of Rs. 43,495/- and an outstanding amount of Rs. 10,26,444/- is still due towards the complainant and controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint qua Ops No.1 & 2.  

4.                     OP No.3 filed its written statement by taking some preliminary objections such as complaint is legally not maintainable; there is no relationship of consumer and supplier; no cause of action; complainant has concealed the true and material facts from this Forum; a huge outstanding debt of Rs. 9,92,122.51 including interest is standing against the complainant which is unpaid till date; the present complaint is legally and technically not maintainable, as the same is barred by provision of section 102, 112, 124 and 128 of the Haryana Cooperative Societies Act and on merit it has been admitted that the OP No.3 had launched one time settlement scheme in the year 2012 which is still valid up to 31.12.2012 but in that scheme there is a provision of waiving off 75% penal interest out of total penal interest but the complainant had never settled his loan amount as per this scheme. It has been admitted to the extent that the complainant has only paid a sum of Rs. 12,698/- which has been reflected in the statements of account and remaining all the allegations mentioned in the complaint have been denied and controverted the plea taken in the complaint. Lastly, prayed for dismissal of complaint being no deficiency in service on the part of the OP No.3.

5.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and documents such as Photo copy of receipts as Annexure C-1 to C-7, Photocopy of detail of loan release receipt as Annexure C-8 & C-9, Photo copy of registered AD Legal Notice as Annexure C-10,Photo copy of postal receipt as Annexure C-11, Photo copy of acknowledgment as Annexure C-12,  Photo copy of notice issued by Shiv Om Cooperative Housing Society as Annexure C-13 and closed the evidence on behalf of complainant.

6.                     On the other hand, OP No.1&2 tendered into evidence their affidavit  as Annexure RW/A and documents such as Photo copy of registered AD legal notice as Annexure R-1, Photo copy of letter dated 01.02.2000 for sanction of loan as Annexure R-2, Photo copy of letter dated 19.12.2000 for sanction of loan as Annexure R-3, Photo copy of statement of account as Annexure R-4 & R-5, Photo copy of manual account statement of Shiv Om Cooperative Housing Building society as Annexure R-6 and closed the evidence on behalf of OPs No.1 & 2.

7.                     Counsel for the OP No.3 tendered into evidence affidavit of Satibir Singh Development Officer, Haryana State Coop. Housing Federation as Annexure RW3/A and documents such as statement of account as Annexure R3/1 and closed the evidence on behalf of OP No.3.

8.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

9.                     It is not disputed that complainant Subhash Chand obtained a housing loan facility of Rs. 2,00,000/- from the OP No.1and 2 in the month of February, 2001 to October 2001 on different dates.  As per version of the complainant, he had paid a total sum of Rs. 1,63,135/- against receipts and in the year 2012 the Op No.3 housing federation launched one time settlement scheme on behalf of State Government and as per the scheme the federation has to waive the penal interest etc. and the balance amount was to be paid by the loanee to settle the loan account. Accordingly, complainant went to settle his loan account as per scheme floated by the OP No.3 after adjusting the actual amount worth of Rs. 1,63,135/- paid by him but due to hostile action of Op No.1, complainant could not settle his account which constitute the deficiency in service and unfair trade practice on the part of OPs No.1 to 3. Learned  counsel for the complainant referred the case law titled as Mukhtiar Singh Versus Malwinder Singh Battu & Others, 2011(1) CPJ page 284.  

10.                   On the other hand, the plea of the OPs No.1 &2 is that as per their account statement Annexure R-6, consisting of 5 pages, an amount of Rs. 10,26,444/- is due alongwith interest up to 01.02.2013 against the complainant. Learned counsel for the OPs No.1 to 3 argued that the complainant is chronic defaulter of the Ops No.1 to 3, hence he is not entitled to get any relief and complaint  out rightly deserve dismissal. Learned counsel for the OP No.3 also argued that as per provision of Section 102, 112, 124 and 128 of the Haryana Cooperative Societies Act, the complaint is not maintainable. Learned counsel for the Ops referred the case law titled as  Anjana Abraham Versus Koothattukulam Farmers Service C-Operative Bank Ltd. 2013(IV) CPJ page 33 NC and another case law titled as Raj Kumar Devidas Ghayal Versus Tata Motors Ltd. & Another 2013(1) CPJ page 60.

11.                   After hearing both the parties, we are of the considered view that the present complaint is not maintainable before the Forum firstly on the ground that as per provision of section 102, 112, 124 and 128 of the Haryana Co-operative Society Act, 1984 this Forum have no jurisdiction to entertain and try the present complaint as the complainant had not issued two months mandatory notice to the OPs before filing the present complaint as provided under section 124 of the said Act and without serving two months’ notice, no suit shall be instituted against the Cooperative Societies or any of its officer in respect of any act touching the business of Society and the jurisdiction of this Forum is barred under section 128 of the said Act. Furthermore, as per section112 of the said Act the Registrar, or the persons empowered by him to be treated as Civil Court.  The same view has been held in case titled as Anjana Abraham Versus Koothattukulam Farmers Service Co-operative Bank Ltd. 2013(IV) CPJ page 333 (NC) wherein it has been held that “Consumer Protection Act,1986- Sections 2(1)€, 21(b)- Co-operative Societies Act, 1969- Section 69- Consumer Dispute- Conflict of member with Co-operative Society- Jurisdiction- Dispute of this nature is not consumer dispute under Act, 1986 and right Forum was to have ones remedy under Co-operative Societies Act”.

            From the perusal of written statement filed by OPs No.1 to 2 an amount of Rs. 43,495/- had been paid and an amount of Rs. 10,26,444/- is outstanding against the complainant as on 01.02.2013. As per written statement filed by Op No.3 an amount of Rs. 12,698/- had been deposited against the total outstanding amount of Rs. 9,92,122/- whereas, as per version of the complainant he had deposited Rs. 1,63,135/- with the Ops No.1 & 2, so either the account of the complainant is wrong or the account of the OPs No.1 to 3 is not correct. Meaning thereby, that the matter involved in the present complaint is relating to the account and a complicated question of facts is involved which cannot be decided by this Forum in a summary way in the absence of any cogent evidence which require elaborate evidence from both the sides. The same view has been held in case titled as Raj Kumar Devidas Ghayal Versus TATA Motors Ltd. & Another, 2013(1) CPJ page 60 wherein it has been held that “ Consumer Protection Act, 1986- Sections 2(1)€, 15- Consumer Dispute- Loan transaction- Correctness of accounts cannot be said to be consumer dispute- Hence, it is a civil dispute- Complaint not maintainable”.  

12.                   Resultantly, in the circumstances noted above, we are of the considered view that the complaint is not maintainable before this Forum and the same is hereby dismissed with no order as to costs.  However, the complainant is at liberty to approach the appropriate court of law/ authority to redress his grievances, if so advised. Exemption of time spent before this Forum is granted in terms of judgment of the Hon’ble Supreme Court of India in case titled as Luxmi Engineering Works vs. P.S.G. Industrial Institute (1995)III SCC page 583. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 31.05.2017

 

                                                                                                                                                                                                                      

                                                                                    (ASHOK KUMAR GARG)

                                                                                    PRESIDENT

                                                                                    DCDRF,YAMUNANAGAR

 

                                               

                        (VEENA RANI SHEOKAND)         (S.C.SHARMA   )

                         MEMBER                                          MEMBER