State Consumer Disputes Redressal Commission
The Kalyan Janta Sahakari Bank Ltd ... vs Shri Shivram Gopal Kadam on 31 October, 2017
1 (A/15/516)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
FIRST APPEAL NO.A/15/516
The Kalyan Janata Sahakari Bank Ltd. Kalyan
'Kalyanmastu', Om Vijaykrishna Apartment,
Adharwadi, Kalyan (W).
Through its authorized signatory
Shri.Prakash Shankar Ranade
R/at c/o KJSB, 'Kalyanmastu'
Adharwadi, Kalyan (W). Appellant
Versus
1.Shri.Shivram Gopal Kadam
Room No.154, Govandi,
Tata Nagar, Kapileshwar Mandir,
Govandi, Mumbai 400 043.
2.M/s.Galeria Buildcon Construction Co.
Through its Partner
a)Shri.Ishtiaque Israil Khan
D H Patil Colony,
Room No.786, Chinchpada Road,
Ambernath (W), Dist.Thane.
b)Shri.Hanumanta S.Reddy
B-110, Himagiri CHSL,
Atmaram Nagar, Lokgram,
Kalyan East, Dist.Thane. Respondent(s)
BEFORE: Mr.Justice A.P.Bhangale, President
Mr.A.K.Zade, Member
PRESENT:
For the Appellant(s): Advocate Shri.V.N.Biwalkar
For the Respondent (s): Advocate Smt.Poonam Makhijani
2 (A/15/516)
ORDER
Per: Hon'ble Shri.A.K.Zade, Member-
[1] This appeal is filed by the Appellant (original opponent No.2) against the original complainant as respondent No.1 and original opponent No.1 as respondent No.2 against the order dated 30/3/2015 in which the complaint was partly allowed and it was held that the opponent Nos.1 and 2 had caused deficiency in service and have followed unfair trade practice. By clause 3 of the said impugned order the opponent No.1 was directed to give possession of flat No.2, 400 sq.ft on ground floor or in the alternative to pay Rs.2,20,000/- to the complainant with interest @ 21% p.a. from the successive month of date of payment of second cheque of 20% amount by the opponent No.2. It was also directed that if possession is handed over by the opponent No.1 as above the complainant will be responsible to pay balance amount within period of 10 days from the receipt of letter from the opponent No.1. Opponent No.1 was directed to comply the above directions in clause 3 of the order on or before 31/05/2015 failing which opponent No.2 was directed to pay to the complainant compensation of Rs.7,000/- per month w.e.f. 1/5/2003 till compliance of the said order by the opponent no.1. The amount of arrears to be paid before 30/6/2015 and thereafter on 10th of each month. Said compensation amount will be paid till the compliance of the aforesaid order regarding flat. It was also directed that if the amount of arrears is not paid till 30/6/2015 interest @ 12% p.a. will be charged on the said amount w.e.f. 1/7/2015 and if the opponent No.1 complies the directions in clause 3 of the order against him after 1/6/2015 then complainant will be responsible to refund the original amount (excluding interest) paid by the opponent No.2. It was further directed to the opponent Nos.1 and 2 to pay jointly and severally an amount of Rs.50,000/- towards compensation for physical and mental harassment and costs of Rs.10,000/-
3 (A/15/516) to the complainant. The Ld.District Forum refrained from passing any order against the order of Dy.Registrar of Co-operative Societies regarding loan.
[2] As per the Complainant, the facts of the case are as given below-
Complainant is an employee by profession and oppoentn No.1 is a Firm involved in building and construction and opponent No.2 is as Co-operative Bank who has provided loan to Opponent No.1 on the agreement of Complainant. Opponent No.1 has entered into an agreement in respect of flat No.2, 400 sq.ft. area on ground floor to be constructed on S.No.19, Hissa No.1 (P) 1098 sq.yards in the proposed 'Galleria Apartment', village Vaveghar, Tal.Kalyan for consideration of Rs.2,50,000/- and complainant has paid Rs.20,000/- to the opponent No.1 against the same. OpponentNo.1 has arranged loan for the complainant from opponent No.2 - the Appellant herein - for which the signatures of complainant were obtained on agreement and on various documents. Entire formalities were completed and the loan was disbursed to the opponent no.1 directly. Complainant even did not know as to what amount was paid to the opponent No.1. Agreement between the complainant and opponent No.1 dated 4/2/2003 was placed as security with opponent No.2. Complainant pursued with opponent No.1 for completion of the construction but failed. Opponent No.2 started recovery proceeding in respect of the loan amount although the complainant did not even get the possession of the flat. OpponentNo.2 filed suit against complainant. Thus although the possession of the flat was not given to Complainant, the amount of loan to be disbursed to the complainant was instead paid by Opponent No.1 to Opponent No.2 as they are hand-in-glove with each other. Opponent No.2 avoided to give documents relating to the Complainant and have given the said documents only after receiving notice and therefore complainant alleged deficiency in service and unfair trade practice against both the opponents and prayed for direction to Opponent No.1 to handover 4 (A/15/516) possession of the said flat and to pay interest @ 21% p.a. on the sum of Rs.2,50,000/- from the date of payment till realization and also for direction to opponent No.2 not to file any recovery suit against the complainant and allow the complainant for repayment of loan on obtaining possession and to enter into new agreement with more enhanced period after possession of the said flat and also prayed for direction to both Opponent No.1 & 2 to pay compensation of Rs.1 lakh for mental agony and costs of Rs.50,000/-.
[3] Opponent Nos.1 and 2 appeared before the District Forum. As opponent No.1 failed to file written version, complaint was proceeded without its written version. Opponent No.2 filed written version in which it was contended that the Ld.District Forum is not empowered to entertain the present matter and complainant has filed present complaint to counter the recovery proceeding started by the opponent No.2 before the Dy.Registrar, Co-operative Societies as recovery certificate had been obtained from the Dy.Registrar, Co-operative Societies. Opponent No.2 has alleged that the instant complaint have been filed by Complainant in collusion with opponent No.1. It was denied that the possession of the flat was not handed over by the opponent No.1. It was contended by the opponent No.2 that as complainant had filed application for loan and signed necessary documents, the said flat was legally mortgaged and as per the recovery certificate an amount of Rs.3,95,716/- was in arrears from complainant and that there was no agreement between the opponent Nos.1 and 2 regarding the said loan. OpponentNo.2 has denied all the allegations against it. Complainant and opponent No.2 have filed their documents, affidavit of evidence, brief notes of written arguments before the Ld.District Forum. Perusing the documents and evidence on record, hearing arguments on behalf of the Complainant and going through written arguments on behalf of Opponent No.2 and as Opponent No.1 did not appear again before the Ld.District Forum after initial appearance, the Ld.District Forum passed 5 (A/15/516) the impugned order against which appellant /original opponent No.2 has filed the present appeal.
[4] Following points arose for the determination of the Ld.District Forum-
(1) Whether the Ld.District Forum is empowered to conduct the instant complaint?
In this respect, Ld.District Forum found that as the opponent No.2 has filed an application before the Dy.Registrar, Co-operative Societies for recovery against the complainant hence Ld.District Forum does not have any authority to comment regarding the advancement of loan or recovery thereof otherwise it will be as good as scrutiny of the order passed by the Dy.Registrar, Co-operative Societies. As the complainant has filed instant complaint on the ground of deficiency in service and unfair trade practice on the part of the opponents, the Ld.District Forum will pass order on these points as those are within the powers and jurisdiction of the Ld.District Forum and therefore Ld.District Forum held that the Ld.District Forum is empowered to entertain the present complaint. We agree with the findings of the Ld.District Forum as the question of deficiency ins service and unfair trade practice are well within the ambit of the Consumer Protection Act, 1986 (2) The second point for determination was -
Whether the opponent No.1 has given possession of the subject flat.
In this respect the Ld.District Forum has observed that the opponent No.2 has denied the allegations that the possession was not given to the complainant. In this respect the Ld.District Forum has referred to the registered agreement between the complainant and opponent No.1 dated 4/2/2003 wherein the date of giving possession was not mentioned and it was observed by the Ld.District Forum that in 6 (A/15/516) para 8 of the said agreement, the space where the date of giving possession was to be mentioned was left blank. Ld.District Forum also observed that as per para 9 of the said agreement the complainant was to take possession on receipt of letter from opponent No1 to that effect but no such letter from opponent No.1 is on record and therefore the Ld.District Forum held that if possession was given by the opponent No.1 then it is nowhere mentioned as to when it was given and the date of giving such possession is not clear from the documents. OpponentNo.2 filed two letters of complainant asking opponent No.2 to give the concerned cheque to opponent No.1. However, no demand letter from opponent No.1 is filed on record. Letters of complainant do not show that complainant has received any demand letter from opponent No.1. The letter of complainant dated 16/2/2003 states that as 80% of work is complete the cheque to be issued to the complainant should be issued to the opponentNo.1. However, no any letter from opponent No.1 or architect was enclosed with it. It is observed by the Ld.District Forum that it is not clear as to how opponent No.2 has disbursed loan amount to the opponent No.1 and it was the responsibility of opponentNo.2 to protect the interest of its consumer. It is also not clear how the opponent No.2 has disbursed the amount on completion of 80% work and as per agreement there is no such stage of payment on 80% construction. Further it is observed by the Ld.District Forum that in para 2 and on page 8 of the agreement it was clearly mentioned that amount of Rs.2,30,000/- was to be paid at the time of taking possession. In spite of the same the opponent No.2 had disbursed the said amount without any letter from opponent No.1 and without any certificate from architect and although there was no such stage mentioned in the agreement of completion of 80% construction. The Ld.District Forum therefore, held that the opponent No.2 has caused deficiency in service. As per the letter dated 20/4/2003 of complainant although it was mentioned about receiving possession and about disbursement of remaining 20% to Opponent No.1, however, as per the agreement 7 (A/15/516) amount of Rs.2,30,000/- was to be paid at the time of taking possession. Therefore, the Ld.District Forum has observed that Opponent No.2 seems to have disbursed the said amount to Opponent No.1 without ensuring the Completion Certificate and Occupancy Certificate. Also it is nowhere mentioned by opponent No.2 that it has verified the progress of construction or completion of construction by visiting site of construction. No such reports have been filed on record. Ld.District Forum has also observed that from the record it appears that against consideration of Rs.250,000/- to be paid by the complainant to the Opponent No.1, payment of Rs.20,000/- by complainant and payment of Rs.2,00,000/- by opponent No.2 to opponent No.1 aggregating to total Rs.2,20,000/- seems to have been made to opponent No.1. The Ld.District Forum therefore, observed that without receiving balance consideration of Rs.30,000/- it cannot be believed that possession was given to the complainant. It is observed by the Ld.District Forum that if possession would have been handed over to the complainant, then opponent No.2 would have gone for recovery of loan amount on the basis of Securitization Act instead of applying through Dy.Registrar, Co-operative societies and for this reason Ld.District Forum observed that the reason for the same could be that the possession was not with the complainant. The address of the complainant mentioned by the opponent No.2 in application to the Dy.Registrar is also old address of complainant which also show that complainant was not in possession of the disputed flat. Hence, Ld.District Forum held that the complainant has not received possession of the said flat.
(3) The third point for determination of the Ld.District Forum was-
Whether Opponent Nos.1 and 2 have caused deficiency in service and unfair trade practice ?
8 (A/15/516) The Ld.District Forum answered this point in the affirmative as there is no demand letter from the Opponent No.1 to the complainant, there is no proof regarding handing over possession of the said flat to the complainant by the opponent No.1 and there is no mention of date in agreement for giving possession. Without handing over possession, opponent No.1 received amount of Rs.2,00,000/- from opponent No.2. For all these reasons Ld.District Forum held opponent No.1 responsible for deficiency in service and unfair trade practice.
Regarding Opponent No.2 it is observed that on receiving proper application from complainant the Opponent No.2 sanctioned the loan and disbursed it to opponent No.1 as per letter from complainant as contended by opponent No.1. However, as discussed above it was not verified whether the complainant has fulfilled the terms and conditions of loan. It is observed that there was a condition of keeping the original insurance policy with bank and to get it renewed as per condition no.2. But no such insurance policy was deposited with opponent No.2, even then opponent No.2 has sanctioned the said loan. As per condition No.9 of the sanction letter for executing registered legal mortgaged deed, no objection certificate from the builder was necessary and it was also essential to have builder as confirming party but in the instant case opponent No.2 has not taken any such no objection certificate and still without no objection certificate and without mortgage deed, opponent no.2 seem to have disbursed loan directly to opponent No.1 and therefore Ld.District Forum held the opponent No.2 guilty of deficiency in service and unfair trade practice. Opponent No.2 has nowhere mentioned the date of issuing the said two cheques and the cheque numbers and it is not clear from the documents as to when cheques were encashed by the Opponent No.1. Moreover, receipt given by opponent No.1 to opponent No.2 in respect of two cheques do not show any date of receipt of those cheques. Ld.District Forum has observed that it is not understood how opponent No.2 has accepted such receipt 9 (A/15/516) from opponent No.1 when opponent No.2 is a Co-operative Bank. Therefore, Ld.District Forum observed that opponent Nos.1 and 2 might have some unwarranted agreement between them. Ld.District Forum also observed that opponent No.2 had sanctioned loan in Feb.2003 and it was to be recovered from the following month of disbursement of the same. But the record does not show any letter or notice from opponent No.2 to the complainant regarding the same before applying to the Dy.Registrar, Co-operative Societies in the year 2009. No satisfactory explanation was available in record to explain the delay of six years for no action by the opponent No.2. On the basis of above discussion, the Ld.District Forum held opponent Nos.1 and 2 guilty of deficiency in service and unfair trade practice and passed the impugned order.
[5] We have perused the record. Heard arguments on behalf of Appellant and Respondent No.1. Respondent No.2 did not appear although served. It is contended that complainant committed default in repayment of loan. Therefore, appellant/opponent No.2 obtained Recovery Certificate dated 23/4/2009 for Rs.3,25,383/- plus cost of Rs.3714/- from Dy.Registrar, Co-operative Societies, Kalyan u/s 101 of MCS Act, 1960. The Complainant had appeared in the said proceedings before the Dy.Registrar but he did not challenge the recovery certificate and thus it has attained finality. But as complainant nor his guarantors paid the amount mentioned in the recovery certificate, opponent No.2 had initiated appropriate recovery proceedings against the complainant. It is alleged that complainant has filed instant consumer complaint with intention to delay recovery proceedings. Opponent No.1 although appeared before the Ld.District Forum, he did not file written statement nor filed written arguments nor made any pleadings before the Ld.District Forum. During arguments for appellant it is pointed out that the operative part of the impugned order is wrong as the appellant had no control over opponent No.1 and it is total miscarriage of justice as the complainant and 10 (A/15/516) opponent No.1 are in collusion. In reply Advocate for the Respondent No.1 has submitted that it was binding on appellant to satisfy itself before disbursing final installment of loan as to whether construction was complete or not and whether the possession was handed over or not and also that architect certificate was required to be verified. The Ld. Advocate for the appellant relied on the judgment of Hon'ble Supreme Court in Civil Appeal Nos.2848-2849 of 2014 between Lekhraj Bansal versus State of Rajasthan and anr. We have gone through the said judgment. Judgment is regarding production of documents in appeal and it was held by the Hon'ble Supreme Court that parties to appeal shall not be entitled to produce additional evidence in appeal unless the conditions stipulated under Order 41 Rule 27 CPC are satisfied.
In the instant case, additional documents were filed by the appellant in which architect certificate was also filed. However, the same was not filed before the Ld.District Forum and it is not the case of appellant that the trial court had refused to admit it or were not in the knowledge of Appellant. We therefore are of the opinion that additional documents produced by Appellant in appeal cannot be admitted in the instant appeal also. If the appellant had any such document, he should have produced the same before the Ld.District Forum. We therefore are of the opinion that the appellant has not exercised due procedure while disbursing the loan amount which was sanctioned to Complainant directly to Opponent No.1 and therefore hold that the appellant is equally responsible for deficiency in service and unfair trade practice. We therefore find that the findings given by the Ld.District Forum while answering the points for determination are just and proper and do not find any error in the impugned order. We therefore, do not find it necessary to intervene with the impugned order. We therefore proceed to pass the following order-
11 (A/15/516)
ORDER
1] Appeal is dismissed.
2] No order as to costs.
3] Certified copy of this order be supplied to both the parties free
of cost.
Pronounced on
12 th October 2017.
[JUSTICE A.P.BHANGALE]
PRESIDENT
[A.K.ZADE]
MEMBER
rsc/aj