DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE
PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB: PRESIDENT
Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER
Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER
Wednesday the 29th day of March 2023
C.C. 145/2013
Complainant
Sudheer Kumar,
Yeroth House,
Palayatt Nada (P.O),
Vadakara Taluk,
Kozhikode.
Opposite Party
Secretary,
Vadakara Housing Society LL.140,
Adakkatheru (P.O),
Vadakara Taluk,
Kozhikode.
ORDER
By Sri. Sri.V. BALAKRISHNAN– MEMBER
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
The case of the complainant, in brief, is as follows:
The complainant had taken a loan of Rs.1,25,000/- on 08-01-2004 fromopposite party. Some delay was there in payment due to his financial constraints. He approached the Kerala State Farmers Debt Relief Commission for relief. In the sitting held at Govt. Guest House, Kozhikode it was ordered to grant relief of Rs.80,000/-. The opposite party agreed to write-off Rs.7,779/- from their side. The Farmers’ Debt Relief Commission directed the complainant to remit the balance amount of Rs.1,00,000/- to the opposite party on or before 30-09-2011.
3. As per the order of the Debt Relief Commission Rs.56,000/- was paid on 23-09-2011. Hence the total payment including the share value of 10,000/- was Rs.66,000/- and the remaining amount was only Rs.34,000. On verifying the passbook, it was seen the opposite party had claimed interest on interest. Against this procedure, the Assistant Registrar of Co-operative department was contacted. As per the order dated 30-11-2010 of the Assistant Registrar it is clear that interest on interest should not be taken and the opposite party was informed by the Assistant Registrar accordingly. On 29-06-2011 the opposite party informed that he is awaiting reply and legal advice from Kerala State Co-Operative Housing Federation. There was no reply from the side of the opposite party further. Later a letter was received asking to make payment of Rs.1,68,190/- and if not paid, the property given as security for the loan would be sold in public auction. A notice to that effect was affixed on his house.
4. Actually the pending payment is Rs.34,000/- whereas the opposite party has claimed Rs.1,68,190/- as a new claim.
5. The complainant has approached this Commission to give a direction to the opposite party to close the loan and return the security documents. He also prays for compensation from the opposite party for the monetary loss and mental agony.
6. The opposite party has filed the version. Almost all the averments and allegations and statements made in the complaint are denied in the version. According to the opposite party the complainant is not a consumer under section 2 (d) of the Consumer Protection Act. As per section 69 of the Kerala Co-operative Societies Act, if any dispute arises between the society and the members of the society, the same has to be decided by Co-operative arbitration court or Registrar and no other court or other authority shall have jurisdiction to entertain any suit or other proceeding in respect of such disputes and hence the Commission is having no jurisdiction.
7. The complainant is the member of the society and he has availed a loan of Rs.1,25,000/- after signing necessary documents which stipulate the repayment conditions. The repayment period of the loan is 15 years from the date of sanction of the loan. The interest rate is 11.5% and in the case of default, the rate of penal interest is 2%. The complainant had availed the loan by knowing all the details with regard to interest, penal interest, terms of loan, period of repayment etc and he cannot take a stand in contra to the conditions stated in the loan agreement. After availing the loan in the year 2004 the petitioner has paid only Rs.4,000/- within 2 years. In the said period alone there is a default of Rs.35,000/-.
8. The opposite party is granting loan by using the funds availed from the Kerala State Co-operative Housing Federation. The opposite party is bound to obey the stipulations and conditions issued by the Federation. The complaint is filed without impleading necessary party. It is admitted that the Kerala State Farmers’ Debt Relief Commission had passed the order dated 04-10-2010 by granting a debt relief of Rs.80,000/- out of Rs.1,87,749/-. It is stated in the said order that the balance amount of Rs.1,00,000/- should be remitted by the complainant on or before 30-09-2011. But complainant paid only Rs.56,000/- during the stipulated period. The complainant has committed willful default in payment of the amount ordered by the Debt Relief Commission. So he is liable to pay interest and penal interest in case of default of payment. The complainant has availed the loan by knowing all the terms and conditions. Without realizing the amount from the borrowers it is not possible to repay the loan amount to Kerala State Co-operative Housing Federation. The complainant has committed willful default in repayment of the loan. So the complainant is liable to pay interest, penal interest and other expense in addition to the principal amount. The opposite party is also having right to recover the due amount from the complainant as per the law laid down by the Co-operative Societies Act. The opposite party prays to dismiss the complaint with costs.
9. The points that arise for determination in the case are:
1. Whether the complainant is a consumer under section 2(d) of the Consumer Protection Act, 1986 and whether the complaint is maintainable.
2. Whether there was any deficiency of service or unfair trade practice on the part of the opposite party?
3. Reliefs and costs.
10. Evidence of the complainant consists of the oral evidence of PW1 and Exts A1 to A16. From the side of the opposite party, the Secretary of the society was examined as RW1. Exts B1 to B6 were marked.
11. Heard. Argument note was submitted by both sides.
12. Point No.1– The Opposite party has taken a contention that the complainant herein is not a consumer as defined under section 2(1) (d) of the Consumer Protection Act, 1986. A person who hires or avails of any service for consideration is a consumer falling under section 2(1) (d) of Consumer Protection Act, 1986. As complainant has availed service of the opposite party by availing loan, the consideration whereof is the interest that would be payable including the processing charges, he is definitely a consumer.
13. The opposite party has also taken the contention that dispute between Co-operative society and its members is to be decided by co-operative arbitration court or Registrar of Co-operative department and not by this Commission. Section 3 of the Consumer Protection Act, 1986 clearly specifies that the provisions of act are in addition to and not in derogation of the provisions of any other law for the time being in force. In Trans Mediterranean Airways Vs. Universal Export and Another 2011 KHC 4862 The Hon’ble Supreme Court has held that “Remedies under the Consumer Protection Act are in addition to the remedies available under any other statute”. So it is held that this Commission has the jurisdiction to entertain the complainant and the complaint is perfectly maintainable.
14. Point No: 2 –
It is well settled that in consumer case, the onus of providing unfair trade practice or deficiency of service is on the complainant. It is not disputed that the complainant had availed the loan of Rs.1,25,000/- from the opposite party vide loan No.1307 on 08-01-2004. The complainant approached the Kerala State Farmers’ Debt Relief Commission for relief. Ext.A1 is the order of Debt Relief Commission. The Debt Relief Commission passed the order on 04-10-2010 granting a debt relief of Rs.80,000/- . Further he was directed to remit Rs.1,00,000/- on or before 30-09-2011. But he had paid only an amount of Rs.56,000/- on 23-09-2011.
15. The grievance of the complainant is that compound interest and penal interest was levied by the opposite party which is against Ext A6 circular issued by the Registrar, Sahakarana Sangam. Going by Ext A6 there is a direction that compound interest should not be levied. But the complainant could not show that compound interest was levied by the opposite party at any point of time for the loan availed by him. Apart from a vague allegation in the complaint and repeated in the affidavit, there is no proof that compound interest was charged by the opposite party. A perusal of Ext A6 further shows that it does not prohibit levying penal interest in case of default. Levying of penal interest is further authorized by Ext B1 loan agreement. Ext B1 is admitted by the complainant and is binding on him. So there is no scope for any such grievance for the complainant.
16. The case of the complainant is that only an amount of Rs.34,000/- is the balance outstanding in the loan account. But he could not show the details. The pleadings are not clear and specific, on the other hand, the same is vague. The complainant has claimed that the share amount of Rs.10,000/- is to be adjusted to the loan account. The share amount cannot be adjusted to the loan account as long as he is continuing as a shareholder. It is up to the complainant to prove that excess amount other than what was actually due from him was demanded by the opposite party, by adducing convincing evidence. But the complainant utterly failed to do so. The complainant availed the loan after fully knowing the terms and conditions and executing Ext B1 loan agreement. He was fully aware that he is bound to pay interest and penal interest agreed by him. The complainant could not show that any interest was levied by the opposite party in contravention of the terms and conditions in Ext A6 and the circulars governing the same.
17. To sum up, we find that there is no proof of any unfair trade practice or deficiency of service on the part of the opposite party and consequently the complaint must fail.
18. Point No.3:
In view of the finding on the above points, the complainant is not eligible to claim and get any relief.
In the result, the complaint is dismissed. No order as to costs.
Pronounced in open Commission on this the 29thday of March 2023.
Date of Filing: 08-04-2013.
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PRESIDENT
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MEMBER
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MEMBER
APPENDIX
Exhibits for the Complainant :
Ext. A1 – Copy of the Final Order dated 04-10-2010 of Kerala State Farmers’ Debt Relief Commission, Thiruvananthapuram.
Ext. A2 – Copy of the Letter No.1247/2010/B dated 30-11-2010 of Assistant Registrar, Vadakara Sahakarana Sangam.
Ext. A3 – Copy of the letter of Sudheer Kumar to Vadakara Co-Operative Housing Society.
Ext. A4 – Reply issued by the opposite party to the complainant.
Ext. A5 – Forum No.8 (Rule 81 E)-immovable property sale notice of Senior Inspector of Co-operative Societies/Arbitrator Cum-Spl Officer, Kerala Co-operative Housing Federation, Kozhikode-6.
Ext. A6 – Circular dated 24-08-2009 of Registrar, Sahakarana Sangam, Govt.of Kerala.
Ext. A7 – Copy of the letter dated 23-09-2011 of Sudheer Kumar to the opposite party.
Ext. A8– Copy of the Receipt Number 425.
Ext. A9– Copy of the bank pass book issued by the opposite party to the complainant.
Ext. A10– Copy of the Receipt Number 266.
Ext. A11– Copy of the Receipt Number 452.
Ext. A12– Copy of the Receipt Number 1158.
Ext. A13– Copy of the Receipt Number 852.
Ext. A14– Copy of the Receipt Number 3102.
Ext. A15– Copy of the Receipt Number 8568.
Ext. A16– Copy of the Receipt Number 3708.
Exhibits for the Opposite Party
Ext. B1 – Loan agreement.
Ext.B2 – Copy of Mortgaged deed.
Ext.B3- Copy of loan sanction order.
Ext. B4– Copy of directions to collect penal interest of Kerala Co-operative Housing Federation Ltd.
Ext. B5– Copy of final order in Application No.464030/09/KK dated 04-10-2010 of Kerala State Farmers Debt Relief Commission.
Ext. B6– Copy of Ledger of opposite party.
Witnesses for the Complainant
PW1 Sudheer Kumar C. T
Witnesses for the opposite parties
RW1 – Arun K.R.
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PRESIDENT
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MEMBER
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MEMBER
Forwarded/ By Order
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Assistant Registrar
