C.F. CASE No. : CC/10/49
COMPLAINANT : Sri Chandranath Bandopadhyay,
S/o Sri Durgyadas Bandopadhyay
6, P.K. Ghatak Road,
Bhangrapara, Ranaghat, Nadia 741201
OPPOSITE PARTIES/OPs : 1) State of West Bengal through Secretary
Department of Co-operative
Writers’ Buildings, Kolkata – 1
2) West Bengal Co-operative Housing Federation Ltd. P-15,
India Exchange Place Extension, Todi Mansion (3rd Floor),
P.S. Barabazar, Kolkata 700073.
3) West Bengal State Co-operative Housing Federation Ltd.
through Chairman,
P-15, India Exchange Place Extension,
Todi Mansion (3rd Floor), P.S. Barabazar,
Kolkata – 700073
4) The Chief Executive Officer, W.B.S.C.H.F. Ltd.
P- 15, India Exchange Place Extension,
Todi Mansion 3rd Floor, P.S. Barabazar,
Kolkata – 700073
5) The Branch Manager, /In Charge
West Bengal State Co-operative Housing Fenderation Ltd.
93, Subhas Avenue, P.O. Ranaghat, Dist. Nadia - 741201
6) Registrar of Co-operative Societies
Government of West Bengal,
New Secretariat Building,
1, Kiran Sankar Roy Road, Kolkata 700001
7) Deputy Registrar of Co-operative Societies House & Law,
60 A, Kolutola Street, Kolkata 700073 (Control Zone)
8) Niva Co-operative Housing Society Ltd.
6, Pandit Kalimoy Ghatak Road,
Bhangrapara, P.O. Ranaghat, Dist. Nadia, 741201
9) The Director,
Niva Co-operative Housing Society Ltd.
6, Pandit Kalimoy Ghatak Road,
Bhangrapara, P.O. Ranaghat, Dist. Nadia, 741201
- Smt Banani (Das) Chakraborty,
Co-operative Development Officer, (Hqrs) Chairperson,
P.O. Krishnagar Collectorate Building P.S. Kotwali,
Dist. Nadia
- Sri Suman Das Gupta,
Co-operative Development Officer ( Hqrs.),
Member, P.O. Krishnagar, Collectorate Building,
P.S. Kotwali, Dist. Nadia
12) Sri Shyamal Kumar Pal,
Inspector of Co-operative Society, Ranaghat -1,
Dev. Block, Convenor, Member
P.O. & P.S. Ranaghat, Nadia,
13) Sri Ajit Chakraborty
S/o Late Krishnadas Chakraborty
53/3, Dey Chowdhurypara Lane,
P.O. & P.S. Ranaghat, Dist. Nadia
Pin – 741201,
14) Sri Partha Sarathi Chakraborty,
S/o Unknown,
Niva Co-operative Housing Society Ltd.
Flat No. T-3 (2nd Floor),
6, Pandit Kalimoy Ghatak Road,
Bhangrapara, P.O. & P.S. Ranaghat, Dist. Nadia, 741201
15) Sri Pradip Kumar Banerjee,
S/o Late Promod Kumar Banerjee
34/A Mukherjeepara Lane,
P.O. & P.S. Shirampore, Hooghly.
16) Sri Arup Saha,
S/o Unknown,
Niva Co-operative Housing Society Ltd.,
Flat No. T-4 (3rd Floor)
6, Pandit Kalimoy Ghatak Road,
Bhangrapara, P.O. & P.S. Ranaghat, Dist. Nadia, 741201
17) Sri Subodh Ranjan Saha,
S/O Lt. Mohan Lal Saha,
Niva Co-operative Housing Society Ltd.
Flat No. T-2 (2nd Floor),
6, Pandit Kalimoy Ghatak Road,
Bhangrapara, P.O. & P.S. Ranaghat, Dist. Nadia, 741201
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 11th March, 2011
: J U D G M E N T :
In brief, the case of the complainant is that the opposite party No. 8 is a registered co-operative society of which the complainant along with others are the members and beneficiaries of this scheme launched by the society. The OP No. 8 took a loan of Rs. 39,47,000/- from the OP No. 2 by executing a registered mortgage deed with regard to its land situated at 6, Pandit Kalimoy Ghatak Road, Ranaghat, Nadia on 13.08.99 and the said loan was sanctioned for the purpose of construction of houses or apartments or flats for the 18 members of the OP No. 8. It was the condition that the OP No. 8 would have to repay the entire loan amount along with interest by 80 quarterly instalments which would be completed by 31.12.20. As per resolution of the OP No. 8 the said amount of loan was disbursed among the members of the OP No. 8 including the complainant also and the complainant was allotted a flat being No. 1-B on the ground floor on the said apartment against a loan amount of Rs. 2,29,000/- out of the loan amount sanctioned by the OP No. 2. This complainant further submits that he paid Rs. 1,44,660/- towards instalment of loan amount of 33 regular instalments and he also paid Rs. 1,86,404.86 towards final repayment of loan by cheque which was duly received by the OP No. 2 who also issued a receipt in his favour. He was asked to pay a sum of Rs. 9040/- as final reconciliation of the loan amount and the said amount was also paid by him to the OP No. 2 by a cheque dtd. 01.09.09. Thus this complainant has repaid the entire loan amount on his part to the OP No. 2 and nothing is due from him. To that extent “No due” certificate was issued on 03.02.09 by the OP No. 8 & 9. Thereafter, he wrote a letter to the OP No. 2 dtd. 25.09.09 intimating the fact of repayment of his entire loan amount and getting the reconciliation statement by him with a request to de-mortgage his property in his favour by the OP No. 2, but to no effect. This is a gross deficiency in service on the part of the OPs which has caused his mental sufferings and irreparable loss also. So having no other alternative he has filed this case praying for the reliefs as stated in the petition of complaint.
OP No. 2, 3, 4 & 5 have contested this case by filing a written version, inter alia, stating that the OP No. 8 is a registered co-operative society under the name and style Niva Co-operative Housing Society Ltd. and they sanctioned loan in favour of the Housing Society Ltd. and not its individual member. They also submit that their federation release mortgaged property only after full recovery of loan advance, penal interest etc. and also after reconciliation of accounts. The Co-operative Society did not turn up for reconciliation of accounts on repeated requests though the present OPs are always ready to release / de-mortgage property forthwith after full repayment by the Society and not by the individual member as the loan account is kept only in the name of the society. So the complainant has no cause of action to file this case and the same is liable to be dismissed against him.
OP No. 10, 11 & 12 have filed separate written version in this case. It is their contention that they were appointed as board of administrators on 12.07.10 for reinstitution of the board within 6 months. Therefore, for proper relief the petitioner’s case may be referred to the court of arbitrator of the Office of the Registrar of the Co-operative Society, West Bengal in accordance with Section – 95 of West Bengal Co-operative Society’s Act, 1983. In view of this aforesaid provision of Law the case is not maintainable in this Forum and so it is liable to be dismissed.
OP No. 6 & 7 have filed a separate written version in this case, inter alia, stating that they are administrator authorities in the control of Co-operative Society as laid down in the WBCA Acts and Rules. The OP No. 2 and 8 executed agreement which is not disclosed to them. So the matter be redressed as per their agreement within the periphery of Co-operative Acts and rules
OP No. 16 and 17 have filed a separate written version in this case, inter alia, stating that this case is not maintainable according to law and its present form and it is bad for non-joinder and mis-joinder of the parties. Besides this the complainant is not a consumer within the definition of Section 2(d) of the CP Act, 1986. So this Forum has no jurisdiction to entertain this case. They also submit that they are not necessary parties in this case as they were the members of the society at the time of taking loan. So no question of requesting them to de-mortgage the property in favour of the complainant does arise. They have also stated that after dissolution of the board of the OP No. 8 dtd. 12.07.10 these two OPs are not members of the said board. At the same time it is submitted that the present complainant Chandra Nath Bondopadhyay made full payment of loan amount on 30.09.09. All the documents of the society (OP No. 8) were maintained by the Secretary of the Society and not by them. So no question of de-mortgaging of property in favour of the complainant by them does arise. Hence, the complainant has no cause of action to file this case against them and it is liable to be dismissed.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
Point No.3: Is the case barred by Section 95 of the Co-operative Act?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint along with the annexed documents and the written versions filed by the OPs along with the documents and also after hearing the arguments advanced by the ld. lawyers for all the parties it is available on record that the OP No. 8, Niva Co-operative Housing Society Ltd. took a loan of Rs. 39,47,000/- from the OP No. 2, West Bengal State Co-operative Housing Federation Ltd. by executing a registered mortgage deed with regard to its land situated at 6, Pandit Kalimoy Ghatak Road, Ranaghat, Nadia on 13.08.99 and the said loan was sanctioned for the purpose of construction of houses / flats for 18 members of the Co-operative Society. The complainant was a member of the Co-operative Society at that time who was allotted a flat being No. 1-B on the ground floor of the said apartment against the loan amount of Rs. 2,29,000/- out of the total loan sanctioned by the OP No. 2. It is the specific contention of the complainant that he repaid the entire loan amount to the OP No. 2 on different dates and accordingly ‘no due’ certificate was issued in his favour on 03.02.09 by the OP No. 8 & 9. Thereafter he wrote a letter to the OP No. 2 intimating the fact of the repayment of loan amount with a request to supply him a reconciliation statement and to de-mortgage the property in his favour. Admittedly, that loan was taken by the OP No. 8, Niva Co-operative Housing Society Ltd. from the OP No. 2 by executing a registered mortgage deed with regard to the loan belonging to the OP No. 8 in order to construct flats for its 18 members. So we find that the mortgage deed was executed by the OP No. 8 in favour of the OP No. 2 prior to taking the loan. No individual member of the Co-operative Society signed on the mortgage deed. Rather the Co-operative society (OP No. 8) was the mortgagor and the OP No. 2 was the mortgagee of that mortgaged deed. In the mortgaged deed there is a condition that the entire loan amount would be repaid by the OP No. 8 within 2020. The OP No. 2 has categorically stated in its written version that the entire loan amount is not yet repaid by the Co-operative society i.e., the OP No. 8 and according to his estimate an amount of 71,42,115.52 is still unpaid up to 31.03.10 to him. Naturally, no question of de-mortgaging the property in favour of the complainant does arise. It is also argued that this complainant has no locus standi to file this case against him as he was not the mortgagor. Rather Co-operative society is the mortgager and this OP No. 2 is the mortgagee. So this complainant is no longer a consumer under him. Ld. lawyer for the complainant has cited a decision from III (2005) CPJ page 62 where the Hon'ble Delhi State Commission has decided “Consumer Protection Act, 1986, Section 2(1)(d) - Consumer member of housing Co-operative society and the persons who allowed flat or house by society – Consumer”. So relying on this decision, we find that the complainant is a consumer under the OP No. 8 and not under the OP No. 2 as because the mortgage deed was executed by and between the OP No. 8 & 2 in which he is not a signatory at all. The mortgaged property exclusively belongs to the Co-operative society and not to its individual member. Ld. lawyer has also cited another ruling from 1 (2004) CNT page 20 SC. We have carefully gone through the decision and we hold that this complainant is not entitled to get any benefit from this decision also. The OP No. 8 allotted flat No. 1-B on the ground floor in favour of the complainant and not this OP No. 2. From the annexed documents filed by the complainant it is also available that receipts were issued by the OP No. 2 in favour of OP No. 8, Niva Co-operative Housing Society Ltd. on account of payment of money on the part of this complainant on different dates. In the receipts dtd. 03.09.09/15.10.09 it is clearly mentioned that advance recovery of loan in respect of the complainant, but the receipt stands in the name of OP No. 8. So considering all these documents, we find that in no way the complainant is related to the OP No. 2 and there is no mortgagor and mortgagee relationship between the complainant and the OP No. 2. The OP No. 2 has categorically stated that he is ready to de-mortgage the property after full payment of the loan amount along with the statutory and penal interest by the OP No. 8 which is still unpaid to him and the said amount according to him stands at Rs. 71,42,115.52. The OP No. 8 has not contested this case by filing any written version, inter alia, denying the claim of the OP No. 2. The executive body of the OP No. 2 is dissolved and in that place at present OP No. 10, 11 & 12 are in-charge of the society as they were appointed board of administrator on 12.07.10. It is their contention that the petitioner should move before the court of arbitrator of the Office of the Registrar of Co-operative society Act, West Bengal as per provision of section 95 of the Co-operative Society Act, West Bengal 1983. From a document filed by the OPs dtd. 01.01.07 it is available that after dissolution of the board of the society, the Assistant Registrar of the Co-operative Society nominated 6 members to manage the affairs of the society till new Board of Directors was elected and among those 6 members, the present complainant was the secretary. By suppressing the fact, he has filed this case.
Ld. lawyer for the OPs have argued that the case is barred under section 95 to the West Bengal Co-operative Society Act, 1983 which provides “Any dispute concerning the business of a co-operative society capable of being the subject of civil litigation or any dispute relating to the affairs of co-operative society (Other than a dispute relating to the disciplinary action taken by a Co-operative society against the paid employees of the co-operative society or the terms and conditions of the service of the paid employees of the co-operative society) shall be referred in the prescribed manner to the Registrar, if the parties thereto are among the following:
“Any other Co-operative society or any person including any financing bank having transaction with a co-operative society or any liquidation of a co-operative society.” On a careful perusal of this provision of law we find that this Co-operative Act is a special act. So if any dispute arises to the members of the society and the financial institutions the dispute should be referred to the Registrar of co-operative society as per terms of section 95. Ld. lawyer for the OPs have cited a ruling from West Bengal SC case No. 42/B/98 in which it is decided “It appears that the dispute ought to have been referred to the Registrar of Co-operative Society and the Consumer Forum was not justified in taking cognizance of the dispute.” This decision was passed relying on a decision of the Hon'ble High Court, Calcutta. From the fore corners of the petition complaint filed by the complainant, we find that the complainant has raised his case before the Registrar of Co-operative Society. From the mortgage deed it is also available that the OP No. 8 had to repay the loan amount within 2020 and that period is not yet over though the complainant has repaid the loan amount before that period. Other members of the society are still defaulters. So the complainant has filed this case before the period of the agreement to repay the loan is completed.
The complainant has also made 2 other members of the erstwhile board as parties in this case who are OP No. 16 & 17. They were also allotted flat as members of the co-operative society at that time. They have no power to de-mortgage the flat in favour of the complainant as they did not hold any executive post of the society at the relevant time. Considering the fact of this case, we hold that they are not necessary parties in this case and no relief can be sought against them by this complainant.
In view of the above discussions and considering the facts of this case and after hearing the arguments advanced by the ld. lawyers for all sides our considered view is that the complainant has no cause of action to file this case before this Forum. We do also hold that this case is not maintainable in its present form and nature also. So the complainant is entitled to get any reliefs as prayed for. In result the case fails.
Hence,
Ordered,
That the case, CC/10/49 be and the same is dismissed on contest against the OPs without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
