REKHA GUPTA, PRESIDING MEMBER

                The revision petition has been filed against the judgment dated 24.08.2016 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (‘the State Commission’) in Appeal no. 1104 of 2013.

2.     The brief facts of the case as per respondent nos. 1 and 2/ complainant nos. 1 and 2 are that the respondents took a loan of Rs.2,00,000/- @ 14.25% interest for the construction of his house from the petitioner on 10.10.2000 and the repayment was to be done within fifteen years. The instalments were to be paid quarterly. A mortgage deed dated 25.10.2000 was executed between the respondents and the petitioner, which was also registered. The first instalment of the above mentioned loan for Rs.45,900/- after deducting Rs.4,100/- through Bank draft dated 18.12.2000 and the second instalment for Rs.94,800/- after deducting Rs.5,200/- through Bank draft dated 22.02.2001 and the third instalment for Rs.47,400/- after deducting Rs.2,600/- through Bank draft dated 27.03.2001 were provided by the petitioner to the respondent no.1. After receiving the above-mentioned instalments, the respondents constructed the house and all the loan amount was spent on it. The respondents regularly deposited the loan instalments in the office of the petitioner no. 1 and also obtained its receipts. The respondents were paying the loan instalments regularly. In the meanwhile, a notice was issued. The petitioner no. 1/ Samiti had informed that the notice was issued under some confusion. However, on 22.02.1998, the respondents received another notice. In the above said notice, the out-standing amount was mentioned as Rs.43,31,241.23. On 24.12.2008 the respondent no.1 received a letter by which they were informed that their loan account was being reconciled and after reconciling the account and completing the legal formalities the mortgaged property would be released. The respondents wrote many letters and visited the office many times but nothing was done. Hence, they filed a complaint with the District Forum praying for:

*      Petitioners are ordered to release the mortgaged property of the respondents without any delay;

*      Due to the said malicious and negligent behaviour of the petitioners a compensation should be provided to the respondents for the mental and financial loss occurred to them.

*      The complaint expense and any other relief which is justified should also be provided.

3.     In their written statement before the District Forum, petitioner herein, i.e., UP Sahakari Avas Sangh Ltd., Head Office – 6, Sarojini Naidu Marg, Lucknow had stated that the respondent no.3 / OP no.1 was not an institution of the petitioner - Lakhimpur Sahakari Avas Samiti Ltd., Rajgarh and was a registered Samiti of UP Avas Evam Vikas Parishad, Lucknow. The respondents were the members of the above said Samiti. A residential loan for Rs.2,00,000/- was provided by Lakhimpur Sahakari Avas Samiti Ltd., Rajgarh to the respondents.  The formalities for providing the residential loan has been completed by the said Lakhimpur Sahakari Avas Samiti Ltd., Rajgarh Lakhimpur and the same was issued to the petitioner, the payment was done according to the Loan Act of the petitioner. After the acceptance of the residential loan, the above said loan was to be repaid to the petitioner by the respondents in three instalments, through the medium of the Samiti. The respondents have paid the out-standing amount (as per Samiti) of Rs.49,249.10 from 30.12.2000 to 29/31.03.2008 to the Avas Sangh - petitioner. The respondents have not paid the instalments regularly since 01.04.2002 in the office of petitioner for any further payment and no such receipt had been issued by petitioner. If the respondents have deposited any such outstanding amount with respondent 3, i.e. the Lakhimpur Sahakari Avas Samiti Lakhimpur then the payment of such amount has not been done in the office of the petitioner. Consequently, the respondents have paid Rs.1,97,564/- as the principal amount, Rs.2,72,664/- as interest and penalty and Rs.2,012.52 as insurance premium, i.e., a total amount of Rs.4,72,241.42/- outstanding against the petitioner till 29.05.2009. The respondents have intentionally made Lakhimpur Sahakari Avas Samiti Ltd., Lakhimpur as a party in this complaint with a faulty name, whereas the above-mentioned Samiti was not an organisation of the Avas Sangh. Further, the contract between Lakhimpur Sahakari Avas Samiti Ltd., Lakhimpur and UP Avas Evam Vikas Parishad Lucknow was almost ended because it’s Head and Secretary Shri Ganga Prasad Pandey, has defalcated the recovery amounts of many members, whose cases are still pending. The above said facts were well-known to the respondent nos. 1 and 2 and the way they have described the payment amount in their complaint clarifies that the defalcation has been done by Lakhimpur Sahakari Avas Samiti Ltd., Lakhimpur. Petitioner was related on the State level. The respondents were paid the residential loan and the recovery of the loan can be done by auctioning the mortgaged land and flat, for which many notices have been sent, and enquiry was still on.

4.     The District Consumer Disputes Redressal Forum, Lakhimpur Khiri (‘the District Forum’) vide its order dated 11.04.2013 had allowed the complaint and observed as under:

“The respondent no. 2 Nigam has presented the mortgage deed and executed deed in the annexure and on the basis of which it is stated that they have the right to recover the loan. It is stated by the Consumer that the complete loan amount has been repaid to Lakhimpur Sahakari Avas Samiti Ltd., Lakhimpur (respondent no. 1) which the respondent no. 2 cannot reject. But he has to disclose the facts of the irregularity and peculation occurring in its Avas Samities  regarding non-receiving of the respective amount. Under the situation of peculation, the respondent no. 2 has to do necessary legal proceedings against the officers of the Avas Samities for the recovery of the peculation amount and cannot bound the consumers, who have already paid the loan amount, regarding the recovery of the loan amount as per the rights mentioned in the mortgage deed and executed deed. Hence, to provide the approval of such recovery will be contradictory to natural justice and will be the misuse of the rights given by the debtor, under the good faith and trust to the Nigam. According to the above said it is appropriate to accept the compliant of the complainant.

Order

        While accepting the complaint, the respondents are ordered that they will release the mortgage property of the complainant within one month of the date of this order along with Rs.12,000/- as compensation for the trouble to the complainant and Rs.3,000/- as complaint expenses.”

5.     Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission. The State Commission while dismissing the appeal observed as under:

“It is clearly mentioned in the acceptance letter for the loan instalments accepted by the appellant on various dates that the complainant can deposit their instalment to the authorised Samiti of the Managing Committee of the respondent no. 3. It is clear from the evidence that on various dates the complainant has deposited the amount with the respondent no. 3/ Samiti and the final amount with interest for Rs.1,40,000/- was deposited at once in the office of the respondent no.3. On 28.03.2008 Lakhimpur Sahakari Avas Samiti issued receipts for receiving Rs.1,40,000/- and Rs.20,000/-. The appellant has written in the paragraph 6 of her appeal that respondent no. 3 is a primary Samiti and the appellant is the Head Samiti, hence, the appellant cannot deny the amount deposited in the office of respondent no. 3 and the receipts issued by the Samiti. The appellant states that respondent no. 3 has not deposited the amount in the office of the appellant, but this responsibility cannot be put on the complainant whereas the appellant itself ordered that the complainant can deposit the amount in the Samiti. According to the letters of the appellant displayed on the page 79 of this annexure and annexure no.11, the appellant itself has written to the respondent no. 3 to deposit the amount deposited by the complainants in the loan account of the complainant with the appellant or else a FIR will be registered against them for fraud or peculation. Hence, it is clear that the complainants have paid their loan to the respondent no. 1/ respondent no. 3, hence, the appellant is bound to release the mortgaged property.

The District Forum has passed it order after the detailed examination of the evidence, which is legitimate, we does not require any interference in it. Accordingly, the appeal is appropriate to be dismissed.

The present appeal is dismissed. Both the parties will bear their own expenses”.

6.     Hence, the present revision petition.

7.     I have heard the learned counsel for the petitioner. Learned counsel for the petitioner has stated that an identical case has been decided by a coordinate Bench of this Commission in RP no. 3448 of 2016 on 23.12.2016. Learned counsel for the petitioner states that a similar order may be passed in this case also. The Coordinate Bench of this Commission while dismissing the revision petition had observed as under:

It is not in dispute that as per the agreement executed between the complainant, the society, the petitioner Sangh and Lucknow Development Authority, the loan was repayable by the complainant to the society, alongwith agreed interest, in equated monthly installments.  This is also not in dispute that the complainant had been making payment of the monthly installments to the society.  This is also not in dispute that the complainant, after paying 47 monthly installments, paid the balance amount to the society in lump-sum and thereafter, a No Dues Certificate was issued to him by the society.  By making payment to the society, in the aforesaid manner, the complainant discharged his contractual obligations under the agreement between the parties.  Therefore, it was not open to the petitioner Sangh either to demand any amount from the complainant or to issue a certificate for recovery of the loan amount and interest which had accrued on that amount.  If the society despite having taken the loan amount with interest from the complainant did not deposit the same with the petitioner Sangh, the remedy lies in the petitioner Sangh recovering the said amount from the society in accordance with law.  It could not have sought to recover the same from the complainant, despite his having already paid the same to the society as per his contractual obligation. 

8.     For the reasons stated above, I find no good reason to interfere with the decision taken by the Fora below.  The revision petition is therefore, dismissed with no order as to costs.  It is made clear that the petitioner Sangh shall be entitled to recover the amount in question from the society in accordance with law.