SRI.K.T.SIDHIQ, PRESIDENT

            The grievance of the complainant in brief is as follows:

             Complainant availed a  loan of Rs.75,000/- from opposite party for his house construction after executing and registering mortgage deed in opposite party’s favour.  The documents deposited were his original purchase certificate and Kuzhikanam assignment deed.  He also remitted Rs.5000/- towards the purchase of share in the opposite  party society. Later complainant failed to repay the loan amount.  Hence opposite party initiated recovery proceedings through Assistant Registrar of Co-operative Societies, Kasaragod.  The Assistant Registrar passed an award on 26-09-2001 directing the complainant to pay  balance of loan amount Rs.51,930/- with interest @ 15.7% per annum  w.e.f. 1-4-2001 until realization.  Thereafter complainant offered the exact decreed amount of Rs.60,000/-.  But the opposite party demanded Rs.78,673/- under the pretext of expenses, interest, further costs etc.  Complainant paid the said amount in order to close the loan and get back him title deeds.  But opposite party did not return the documents.  Subsequently complainant approached opposite party several times to get back his documents. But it was  in vain.  In the meanwhile,  opposite party filed Execution Petition before the Munsiff Court as EP 242/2003 in order to realize the amount decreed with interest. Since the complainant had already remitted the amount, he resisted the claim.  Hence opposite party constrained to not press the EP.

2.         After the dismissal of Execution Petition filed before the Munsiff Court also complainant went to the office of opposite party more than 25 times to get back his mortgaged documents.  But was of no result. The lawyer notice caused for the said demand is also went futile. In the reply the opposite party stated that they filed Revision Petition before the Co-Operative Tribunal against the order of the Joint Registrar in ARC 110/2001.

3.         Subsequently on 28-10-2010 the Co-operative Tribunal dismissed the Revision Petition filed by the opposite party confirming the order of the Joint Registrar. Till date opposite party did not return the documents. Complainant is a Chronic diabetic patient and one of his foot is  amputated .

4.         The non-returning of the title deeds and non-execution of mortgage release deed is a deficiency in service on the part of opposite party.  Hence the complaint seeking appropriate relief.

5.         According to opposite party the complainant had availed a loan of Rs.75,000/- for house construction.  But the purposefully evaded the repayment except a small amount in instalments. Therefore Opposite party initiated Arbitration proceedings.   The Arbitrator passed the award on 26-09-2001 directing the complainant  to pay a sum of Rs.51,930/- with interest @ 15.7% from 01-04-2001 till date of  realization.  Thereafter opposite party filed EP 242/03 before Munsiff Court, Hosdurg for the realization of the amount.  Later EP was not presses since there was error in the award. The amount claimed by the opposite party in the ARC petition was Rs.1,22,958/- together with interest @ 17.7% per annum.  But by mistake Joint Registrar has passed the Award for Rs.51,930/-.  The opposite party filed petition before Arbitrator for correcting the error.  But it was disposed  by observing that the remedy is to file Revision  Petition before the Co-operative Tribunal.  Accordingly opposite party filed RP 111/2008 before the Co-operative  Tribunal.  The said RP dismissed on 28-02-2010. Against the said order the opposite party filed Writ Petition before the Hon’ble High Court of Kerala as WP (C ) 7022/2011 and the same is now pending. 

6.         The loan advanced to the complainant by the Societies are financed by the Kerala State Housing Federation Ltd i.e the Apex Society.  The opposite party is liable to pay the amount with interest.  After the Arbitrator’s Award complainant made payment on 30-03-2002.  On that day he paid Rs.23,070/- towards principal and Rs.46,502/- towards the interest.  Considering the payment the opposite party waived the penal interest  of Rs. 9,091/-.  The actual payment made by the complainant on 30-03-2002 was only Rs. 69,527/- and not Rs.78,000/- as alleged in the complaint.  On that day it was specifically informed the complainant regarding the balance payment to the opposite party.  The allegation that the complainant is not liable to pay any further amount is not correct .  Since the complainant has not cleared the entire amount due to opposite party  he is not entitled to get back the title deeds deposited  and also  for the release of mortgage  deed.  As per 69 of the Co-operative Societies, a dispute between a member and the co-operative society has to be adjudicated exclusively before the Arbitrator and hence the complaint is not maintainable legally also.  The complaint is therefore liable to be dismissed.

7.         Complainant filed proof affidavit as PW1. Exts A1 to A8 marked on his side.  He faced cross-examination by the learned counsel for opposite party.  On the side of opposite party the witness filed affidavit as Dw1.  Exts B1 to B4 marked on their side.  Both sides heard and documents perused.

8.         The points arises for consideration are:

            1. Whether the complaint is maintainable before the Forum in view of Sec 69 of the

               Kerala Co-operative Societies Act?

            2. Whether there is any deficiency in service on the part of opposite party in not

               returning the documents and executing release deed after the repayment of loan

               dues?.

            3. What is the order as to relief & costs?   

9.         Point No.1.      Maintainability of the complaint

            This issue has already been considered in IA 103/12 filed by the opposite party challenging the Maintainability.  Any how at the risk of repetition it is discussed below:-

            The contention of the opposite party is that the dispute herein is a dispute between a member and a co-operative society and hence as per Sec 69 of the Kerala Co-operative Societies Act the dispute shall be settled by the Co-operative Arbitration  Court and Registrar and therefore the Consumer Fora constituted under the CP Act 1986 have no jurisdiction to entertain the dispute.  The said contention is not sustainable since Sec 3 of the Consumer Protection Act envisages that the Consumer Protection Act is an addition to and not in derogation of any other laws.  Further Hon’ble Supreme Court in the case of Secretary, Thirumurugan Co-operative Agricultural Credit Society V  M .Lalitha reported in (2004) I SCC 305 has held that the Arbitration clause in the Co-operative Societies Act did not oust the jurisdiction of the Consumer Forum.

            Therefore we hold that complaint is maintainable before the Forum irrespective of the Arbitration clause mentioned in Sec 69 of the Kerala Co-operative Societies Act.

10.       Point No.2 & 3

            The definite case of the complainant is that he repaid all the loan dues as per the award of the arbitrator and in fact he has paid Rs.18,000/- in excess. Ext.A1 is the copy of the award passed by JR in ARC 110/2001.  Ext.A2 is the copy of the cash receipt entering the repayment of Rs.78,673/-.  Ext.A3 is the copy of the EP 242/03 filed by the opposite party before the Munsiff Court, Hosdurg against the complainant for the recovery of Rs.70,288/-. Ext.A4 is the copy of Lawyer notice caused to opposite party.  Ext.A5 is the copy of the order of the Co-operative Tribunal dated 28-08-2010.  Ext.A7 is the copy of lawyer notice issued at the instance of the complainant to opposite party asking for the return of the original title deeds.

11.       From Ext.A2 it is clear that complainant had repaid Rs.78,673/- to the opposite party  In Ext.A2 the Principal Amount, Interest, and penal interest and notice charges etc are specifically mentioned and collected.  But as per Ext.A3 the claim of the opposite party before the Munsiff Court is Rs.51,930/- the amount decreed by the arbitrator with interest @ 15.7% per annum from 1-4-2001 to 30-05-2003 i.e. Rs.17,647/- and advocate fee Rs. 711/-.  Thus the total claim as per Ext.A3 is Rs.70,288/-.  As against this Ext.A2 shows that complainant satisfied the award under execution or the endorsement of the Hon’ble Munsiff shows  that on 21-12-2003 FS memo filed and FS is recorded.

12.       Now the contention of the opposite party is that the award passed by the Arbitrator was not correct. Infact as per their plaint Ext.B2 their claim was for Rs.1,22,958/- and the Arbitrator passed an award by mistake directing the complainant to pay Rs.51,930/- with interest 15.7% per annum w.e.f. 1-4-2001,on the ground of subsequent remittance towards the loan by the respondent (complainant). According to opposite party the complainant has never made any remittance towards the loan dues during the pendency of arbitration proceedings.  It is also his case that against the arbitrator’s award they preferred a Revision Petition before the Co-operative Tribunal which ended in a dismissal and against the said order they approached Hon’ble High Court by preferring WP (C ) 7022/2011 and the same is also dismissed.   According to them as per Ext.B4 they preferred a Writ Appeal against the judgment of the Hon’ble High Court in WP (C ) 7022/2011 and the same is pending.

13.       Learned counsel for opposite party Sri.V.V.Raveendran submitted that since the proceeding before the High Court is not attained a finality, they are not bound return the title deeds or execute release deed against the mortgaged deed executed by the complainant.

14.       On analysing the entire gamut  of the case we are of the view that complainant is entitled for an order in his favour.

            The main grievance of the opposite party is that complainant has not paid the dues to them.  But in their version opposite party has stated that on 30-03-2002 complainant paid Rs.78,673/- towards the loan dues to them including interest and considering the payment the opposite party waived the  penal interest of Rs.9,091/-.  Had there been any further dues from him then opposite party would not have waived the penal interest at that time.  It is further stated in the version that on that day i.e. (30-03-2002) itself it was specifically informed the complainant regarding the balance payment to the opposite party. This statement is quite repugnant to their earlier statement that they have waived the penal interest Rs.9,091/- considering the payment made by the complainant.

15.       The learned counsel for opposite party Sri.V.V.Raveendran argued with much vehemence that the Arbitrators award was incorrect since their claim before the Arbitrator was for Rs.1,22,598/-, but arbitrator  had awarded only Rs.51,930/-with interest and therefore there is patent error or mistake in the award and hence it is not binding on the parties.

16.       But we are not inclined to accept the argument advanced by the learned counsel for opposite party.  Merely because of the fact that the Arbitrator has not allowed the entire claim of  the opposite party in toto one cannot hold that the Arbitrator has committed a mistake. It is the discretion of the Authority to what extent a claim has to be allowed.  Moreover, it is pertinent to note that the opposite party could not obtain a desired result even though they approached the apex authorities including the Hon’ble High Court against the Arbitrators award.

17.       Therefore there is no force in the argument that the opposite party is not liable to return the title deeds or execute release deed in favour of the complainant.

            In the result, complaint is allowed and opposite party is directed to return the title deeds deposited by the complainant before them at the time of availing the loan i.e. the purchase certificate No.SMP 239/1986  and the original Kuzhikanam Assignment deed.  Opposite party is further directed to execute the release deed against the mortgage deed executed by the complainant at the time of availing the loan. Time for compliance of this order is limited to 30 days from the date of receipt of copy of the order.  Failing which they shall further liable to pay Rs.5,000/- by way of compensation to the complainant.  In the circumstances there is no order as to costs.

MEMBER                                                                                                      PRESIDENT

Exts.

A1. True Copy of plaint in ARC No.110/2001

A2. Copy of receipt issued by OP to complainant.

A3. Copy of E.P. Munsiff Court, Hosdurg.

A4.14-12-2007 Copy of lawyer notice.

A5. Copy of reply notice.

A6. Copy of RP.111/2008 Kerala  Co-operative Tribunal, Trivandrum.

A7. 22-11-2011 Copy of lawyer notice.

A8. Postal acknowledgmentcard.

B1. True Copy of loan ledger page No.95.

B2. True Copy of plaint in ARC No.110/2001

B3. 03-12-2011 reply notice.

PW1. E.V.Varghees.

DW1.P.Rameshan Nair.

MEMBER                                                                                               PRESIDENT

Pj/