State Consumer Disputes Redressal Commission
Dr. Waman Kawaduji Hepat, vs Maharashtra Coop. Housing Finance ... on 23 January, 2015
A/02/1110 & A/02/1408 1/11
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA NAGPUR CIRCUIT BENCH
NAGPUR
First Appeal No. A/02/1110
(Arisen out of Order Dated 29/07/2002 in Case No. CC/99/02 of District Yavatmal)
Pushpakunj Co-operative
Housing Society Ltd,
R/o Wadgaon Road, Yavatmal
Tq & Dist. Yavatmal. ...........Appellant(s)
Versus
1. Dr. Waman Kawaduji Hepat
R/o 29-B Pushpakunj Co-operative
Houswing Society Wadgaon Road
Yavatmal, Tq.Dist. Yavatmal
2. Maharashtra State Co-operative
Housing Finance Corporation Ltd
Mumbai, Through its Branch Manager
Yavatmal, Griha Vitta Bhawan
Shrikrishna Nagar, Darwha Road
Yavatmal, Tq. & Dist.Yavatmal ...........Respondent(s)
BEFORE: Hon'able Mr. B.A.Shaikh Presiding Member
Hon'able Mrs. Jayshree Yengal Member
For the Appellant: Adv. Mr K S Motwani
For the Respondent: Adv. Mr S M Jain for Respondent No.1
Adv. Mr U K Pande for Respondent No.2
First Appeal No. A/02/1408
(Arisen out of Order Dated 29/07/2002 in Case No. cc/2/99 of District Yavatmal)
Dr. Waman Kawaduji Hepat,
R/o 27-B, Pushapkunj Society
Wadgaon Road, Yavatmal
Tq. and Distt. Yavatmal ...........Appellant(s)
A/02/1110 & A/02/1408 2/11
Versus
1. Maharashtra State Co-operative
Housing Finance Corporation Ltd
Mumbai, Through its Branch Manager
Yavatmal, Griha Vitta Bhawan
Shrikrishna Nagar, Darwha Road
Yavatmal, Tq. & Dist.Yavatmal
2. Pushpakunj Co-operative
Housing Society Ltd,
R/o Wadgaon Road,
Yavatmal, Tq & Dist. Yavatmal. ...........Respondent(s)
BEFORE: Hon'able Mr. B.A.Shaikh Presiding Member
Hon'able Mrs. Jayshree Yengal Member
For the Appellant: Adv. Mr S M Jain
For the Respondent: Adv. Mr U K Pande for Respondent No.1
Adv. Mr K S Motwani for Respondent No.2
ORDER
(Passed on 23.01.2015) Per Mr B A Shaikh, Hon'ble Presiding Member
1. Both these appeals bearing Nos. A/02/1110 & A/02/1408 are preferred against the same order dtd.29.07.2002, passed by District Consumer Forum, Yavatmal in consumer complaint No.CC/02/99, by which the said complaint has been partly allowed.
2. Appeal bearing No.A/02/1110 is preferred by original opposite party (for short O.P.) No.2 and the appeal bearing A/02/1110 & A/02/1408 3/11 No.A/02/1408 is preferred by the original complainant. Parties in both the appeals are being referred by their original status in the complaint as the complainant and O.P. Nos.1 & 2.
3. The case of the complainant is set out in the complaint in brief is that the O.P.No.1 is a Housing Finance Corporation and O.P.No.2 is Co-operative Housing Society. The complainant is the member of O.P.No.2 housing society and O.P.No.1 Finance Corporation provides loans to the O.P.No.2 for construction of houses by its members. As the complainant was the member of O.P.No.2 Housing Society, he was allotted Plot No.29 by O.P.No.2 and O.P.NO.2 obtained from O.P.No.1 housing loan of Rs.37,400/- for construction of B-Type house on the said plot through authorised contractor. The Loan of Rs.37,400/- was sanctioned in the name of the complainant through O.P.No.2 by O.P.No.1, but loan sanctioned was of Rs.33,600/- only. First instalment of loan of Rs.7,400/- was disbursed on 29.03.1982. Second instalment of Rs.10,800/- was disbursed on 03.11.1982. On 08.03.1983 third instalment of Rs.500/- was disbursed. Fourth instalment of Rs.14,900/- was shown to be disbursed on 10.06.1985 in the account book, but the said fourth instalment was directly adjusted in the loan account of O.P.No.1. Therefore, there was no use of said instalment of Rs.14,900/-. In all Rs.33,600/- were shown in the loan account of the complainant as disbursed through O.P.No.2. But actually three instalments of total amount of Rs.18,700/- were only utilised for the complainant. Therefore, Rs.14,900/- cannot be A/02/1110 & A/02/1408 4/11 considered as loan disbursed to the complainant. The initial three instalments were received by O.P.No.2 directly from O.P.No.1 but the complainant paid regularly loan instalments to O.P.No.1 some time through O.P.No.2 and some time directly to O.P.No.1. O.P.No.2 always compelled the complainant to pay exorbitant amount on account of interest and penalty by serving recovery notices and showing property seizure orders. The complainant demanded from O.P.No.2 loan account extract from time to time but it was never supplied to him. The complainant repaid four times of the loan amount actually utilised for his house. The O.P.No.1 is also issuing recovery notices and seizure orders without giving opportunity of hearing the complainant. The recovery to be made shown is of Rs.1,00,941/- but no account statement was supplied to the complainant thereof. The complainant paid Rs.3,000/- vide cheque dtd.28.12.1998 and issued post dated cheque of Rs.7,000/- under protest subject to settlement of the disputed loan amount. Therefore, the complainant filed consumer complaint against the O.P.Nos.1 & 2 alleging deficiency in service rendered by them and unfair trade practice adopted by them. He prayed that direction be given to O.P. Nos. 1 & 2 to furnish to him complete loan account and to reschedule the loan account taking into consideration of fourth instalment of Rs.14,900/- as not used for his house, penal interest and surcharge thereof and give final balance loan amount and to pay him compensation of Rs.1.00 Lac towards physical & mental harassment and cost of Rs.3,000/-.
A/02/1110 & A/02/1408 5/114. The O.P.Nos.1 & 2 resisted the said complaint by filing their written version separately. The O.P.No.1 raised preliminary objection that as the dispute is in between society and its members, the complaint is not maintainable before the Forum and only the Co-operative Court has got jurisdiction. It submitted that recovery certificates have been issued for the arrears of the loan instalment on 05.03.1991 and 23.03.1998 by the Asstt. Registrar, Co-operative Society (Finance), Amravati, under the provision of Sec. 101 of Maharashtra Co-operative Societies Act (for short MCS Act). Thus, the grievances made by the complainant in the complaint have been already considered by the competent authority under the provisions of law and after considering the dispute, competent authority passed orders, which are not challenged by the complainant and hence, now the said orders cannot be challenged before the Forum by filing the complaint. O.P.No.1 has also submitted that the dispute against O.P.No.2 before the Cooperative Court is pending as regards the recovery of the loan amount from O.P.No.2. Therefore, it is submitted by O.P. No.1 that the complaint may be dismissed.
5. The O.P.No.2 also filed preliminary objection to the effect that the dispute is in between it & its members and hence, the complaint before the Forum is not maintainable vide Sec. 91 of MCS Act. It is also submitted that recovery certificates have been also issued against the complainant by the Asstt. Registrar in case Nos. 527 of 1990-91 and 640 of 1997-98 and A/02/1110 & A/02/1408 6/11 therefore, the complaint before the Forum is not maintainable.
6. The Forum below after hearing both the parties and considering evidence brought on record, passed impugned order on 29.07.2002, thereby directed the O.P.No.2 to get audited the account of the complainant from Chartered Accountant (for short CA) as per well established practice of maintenance of account and the amounts deposited by the complainant be adjusted against the arrears and interest be applied and then the accounts statement be provided to the complainant and it will be then responsibility of the complainant to pay the same. The Forum also directed the O.P.No.2 to pay to the complainant compensation of Rs.5,000/- towards mental harassment and cost of Rs.1,000/-.
7. The Forum dismissed the complaint as regards the part of claim of the complainant towards exclusion of amount of Rs.14,900/-.
8. The Forum observed in the impugned order that the real dispute in between the complainant and the O.P.No.2 as regards the accounts only and the Forum cannot enter into the question about the validity about recovery certificate issued u/S 101 (3) of MCS Act by the Asstt. Registrar, but on the dispute about other aspects can be considered by the Forum. The Forum also observed in the impugned order that the accounts statement produced before it, shows that the accounts are not properly maintained.
A/02/1110 & A/02/1408 7/119. As observed above, the original complainant as well as the original O.P.No.2 have preferred these appeals. We have heard learned advocates of both the parties and perused the copies of the complaint, written version of O.P.Nos.1 & 2, documents and Written Notes of Arguments filed by both the parties in both these appeals. It is seen that during the pendency of the appeals, the original O.P.No.2 complied with one of the direction given under the impugned order about getting examined the accounts from the CA and furnishing the account statement to the complainant.
10. However, the learned advocate of the complainant submitted that the said certificate issued by the CA is a very vague and is not in accordance with the impugned order. He further submitted that the Forum erred in not granting relief sought for in the complaint. He also argued that the Forum below erred in holding that the claim about exclusion of amount of Rs.14,900/- is barred by the limitation. He thus, requested that the impugned order may be modified and the relief claimed in the complaint may be allowed.
11. On the other hand, the learned advocate of the O.P.No.1 submitted that no relief is granted by the Forum against the O.P.No.1 and that even otherwise the O.P.No.1 has already recovered amount due from the O.P.No.2 and therefore both the appeals against O.P.No.1 have become in fructuous and hence, they may be dismissed.
A/02/1110 & A/02/1408 8/1112. The learned advocate of O.P.No.2 / appellant in appeal No. A/02/1100 submitted that the part of the impugned order has already been complied with by the O.P.No.2 by submitting audited account from CA. He further submitted that the Forum below has erred in holding the O.P.No.2 responsible in giving direction to pay compensation and cost. He has invited our attention to the certificates issued u/S 101 of MCS Act against the complainant and submitted that the recovery was being made on the basis of those certificates. Therefore, the O.P.No.2 cannot be held guilty in rendering deficient service to the complainant. Therefore, he requested that the impugned order may be set aside and the complaint may be dismissed.
13. The learned advocate of the complainant relied upon the decisions given in the following two cases:-
i. Haryana Urban Development Authority & Anr. Vs. Kaur Singh, III (2006) CPJ 372 (NC).
In that case housing charge compound interest on enhanced price and it was found unjustified. The Forum had directed the recalculation of amount on the basis of simply contractual rate of interest. Hon'ble National Commission observed that the Hon'ble Supreme court of the National Commission consistently held that the rate of interest chargeable from allottees would be on simple interest basis and not on compound interest basis.
ii. Secretary, Thirumurugan Co-operative Agricultural Credit A/02/1110 & A/02/1408 9/11 Society Vs. M Lalitha (Dead) Through LRs & Ors. ((2004) CPJ - 1 (SC).
In that complaint the contention was raised that the jurisdiction of all Courts including Consumer Forum is decided by the Provision Tamil Nadu Co-operative Societies Act 1983. It is observed by Hon'ble Supreme Court that the contention is not acceptable as the remedy under the Provisions of CPA 1986 is in addition to and not in derogation of other remedies available. It is further observed that the rights and liabilities created in between members and management of Society under Tamil Nadu Co-operative Societies Act 1983 can not exclude jurisdiction under CPA 1986.
14. The learned advocate of O.P.Nos.1 & 2 submitted that both the decisions are not applicable to the present case, since the facts & circumstances of the present case are totally different from those of both the cases.
15. It is not disputed that the complainant had obtained loan from the O.P. No.1, which was paid by O.P.No.2. It is the simple case of the complainant that though he demanded extract of loan account, the same was not provided to him by O.P.Nos.1 & 2. The complainant in Para No.5 of the complaint made following averments:
"Therefore, it is very necessary to direct the opposite parties to produce the complete loan account before this Hon'ble Forum, A/02/1110 & A/02/1408 10/11 so that the dispute can be settled properly and the complainant can pay further instalment if any, due towards him amicably and without further physical and mental harassment."
16. It is pertinent to note that after passing of the impugned order, admittedly, the O.P.No.2 audited account of the complaint from CA and submitted the audited account statement in appeal and furnish copy thereof to the complainant also. However, the complainant has disputed the said audited account of the CA. It is also pertinent to note that two recovery certificates were issued by the Asst. Registrar of Co-operative Society u/S 101 of MCS Act against the complainant. It is also not disputed that on the basis of those recovery certificates only the O.P.No.2 wanted to recover the amount from the complainant. In our view, when such recovery certificates under law have already been issued against the complainant, it cannot said by any stretch of imagination that the O.P.No.2 has rendered deficient service by trying to make recovery on the basis of those certificates.
17. Moreover, the remedy is available to the complainant to file Revision against those recovery certificates before the competent authority under MCS Act. In our view, both the aforesaid decisions relied upon by the learned advocate of the complainant, are not applicable to the present case, since in none of those cases, recovery certificates were issued by the competent authority under the provisions of law. Though we A/02/1110 & A/02/1408 11/11 find that the Forum had jurisdiction to decide the complaint, it cannot be said that the O.P.No.2 rendered deficient service to the complainant as it had duly obtained the recovery certificates against the complainant as per provisions of law. Therefore, we hold that the Forum below erred in partly allowing the complaint and giving direction to O.P.No.2 as above. Therefore, impugned order deserves to be set aside and the complaint deserves to be dismissed.
ORDER i. Appeal No.A/02/1110 filed by the O.P.No.2 is allowed.
ii. Impugned order dtd.29.07.2002 is set aside.
iii. The complaint bearing No. CC/02/99 stands dismissed.
iv. Appeal bearing No.A/02/1408 filed by the original complainant is dismissed.
v. No order as to costs.
vi. Copy of the order be furnished to both the parties free of cost.
[ B. A. SHAIKH]
PRESIDING MEMBER
[ SMT.JAYSHREE YENGAL]
MEMBER
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