State Consumer Disputes Redressal Commission
Sunder Nagar Grih Nirman Sahkari Samiti ... vs Gopinath Mall, & Anr. on 5 January, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
(A/11/2509)
Appeal No. 228/2011
Instituted on 13.04.11
Gopinath Maal, S/o: Shri Baleshwar Maal,
R/o: Nehru Nagar, Nr. Amarnath Aata Chakki,
RAIPUR (C.G.) ... Appellant.
Vs.
1. Kshetriya Adhikari,
C.G. Rajya Sahkari Awas Sangh Maryadit,
C - 191, 1st Floor, Taigore Nagar,
Nr. Vyavsayik Pariksha Mandal,
RAIPUR (C.G.)
2. Adhyaksh,
Sunder Nagar Grih Nirman Sahkari Samiti Maryadit,
RAIPUR (C.G.) ... Respondents.
(A/11/2531)
Appeal No. 250/2011
Instituted on 25.04.11
Sunder Nagar Grih Nirman Sahkari Samiti Maryadit,
Mahadev Ghat Road, Sunder Nagar,
RAIPUR (C.G.) ... Appellant.
Vs.
1. Gopinath Mall, S/o: Shri Baleshwar Maal,
R/o: Nehrunagar, Nr. Amarnath Aata Chakki,
RAIPUR (C.G.)
2. Kshetriya Adhikari,
C.G. Rajya Sahkari Awas Sangh Maryadit,
C - 191, 1st Floor, Taigore Nagar,
Nr. Vyavsayik Pariksha Mandal,
RAIPUR (C.G.) ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K.PATIL, MEMBER
COUNSEL FOR THE PARTIES IN BOTH APPEALS: -
Smt. Indrani Choudhari, for Gopinath Maal / complainant.
None for Kshetriya Adhikari, C.G. Rajya Sahkari Awas Sangh Maryadit / OP no.1.
Shri C.S.Pandey, Sunder Nagar Grih Nirman Sahkari Samiti Maryadit / OP no.2.
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ORDER
Dated: 05/01/2012 PER: - HON'BLE SHRI V.K.PATIL, MEMBER This order will govern disposal of Appeal Nos. 250/2011 & 228/2011, which have been filed by the appellants having been aggrieved by the order dated 15.03.2011 of District Consumer Disputes Redressal Forum, Raipur (C.G.) (hereinafter referred for short as "District Forum") in Complaint Case No.435/2010, whereby the complaint was disposed off, giving direction to OPs to return original documents to the complainant if full loan had been repaid. Complainant has filed appeal for modification of the award seeking compensation also, whereas O.P.No.2 has filed appeal for setting aside the order. For convenience parties will be referred hereinafter in this order as complainant and O.P.No.2 as per their status before the District Forum. Original of this order will be retained in the record of Appeal No.228/2011 and its copy be placed in the record of Appeal No.250/2011.
2. Briefly stated facts of the case are that OP-1 is a State cooperative housing federation and OP-2 is a primary housing society, both registered under M.P.Cooperative Societies Act, 1960. Complainant averred that he had taken loan of Rs.50,000/- from O.P.No.2 'Sundar Nagar Grih Nirman Sahkari Samiti Limited, Raipur' for the purpose of house construction and thereafter he started // 3 // repayment of the loan from 13.08.1984 onward by way of installments to O.P. No.2 and in all he had deposited total 44 installments amounting to Rs.94,992.92. Complainant averred that on the direction of an officer of O.P.No.2, who was also Zonal Officer of O.P.No.1 'Chhattisgarh Rajya Awas Sangh Maryadit' he started depositing further instalments with O.P.No.1 & collected its receipts, since reportedly O.P.No.2 had not been remitting the amount being deposited by him to O.P.No.1. Complainant further averred that O.P.No.1 informed him on 24.12.2008 that out of the total amount collected by O.P.No.2, only Rs.39,115.66 was remitted to it ,whereas complainant had deposited in all total amount Rs.1,54,728.92 against the loan A/c with both the OPs .Complainant averred that since he had repaid the loan fully & timely, he was entitled to get back his original title deed, but according to letter dated 24.12.2008 of O.P.No.1, still more amount was demanded. Complainant averred that he had reminded OPs verbally and also in writing but finding no response, he got mentally upset, so he sent a notice dated 30.09.2009 through an advocate to OPs but it was of no avail. Complainant averred that the act of OPs amounted to deficiency in service so prayed before the District Forum, seeking direction to OPs to provide him original title deed and also to pay compensation of Rs.50,000/- towards mental & physical harassment and also to pay cost.
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3. O.P. No.1 in its written version averred that the complainant had taken house loan from O.P.No.2 after having mortgaged his plot no.111-153 of 1457 sq. ft situated at Tikrapara, Raipur on 18.03.1983 by depositing the title deed. O.P. No.1 further averred that the complainant did not repay loan installments regularly and as per its record, Rs.98,851/- was only deposited by him directly with it and amount Rs.39,115.66 was remitted by O.P.No.2 to it thus total amount of Rs.1,37,967.32 was only collected under the loan A/c. of the complainant thereby as on 31.12.1999 Rs.9,39,658/- was still recoverable . O.P.No.1 has further averred that O.P.No.2 is a Housing Society, which has non of its own income and it gets fund financed from O.P.No.1 under agreement and in turn O.P.No.2 provides loan to its members and in that process O.P.No.2 had collected Rs.2,90,000/- on 02.04.1983 from O.P.No.1 and the same was distributed amongst 5 of its member including the complainant. O.P.No.1 further averred that as per agreement, O.P.No.2 had to collect principal amount Rs.2,90,000/- from the concerned loanee members with interest and remit the same with it. O.P.No.1 further averred that the complainant neither had repaid the outstanding loan dues nor had ever applied to it for releasing original title deed. O.P.No1 further averred that OPs are cooperative bodies formed under M.P. cooperative society's Act, 1960 and any dispute related thereto, could be referred to the Registrar of the Co-operative Society, as such the complaint of the complainant was // 5 // not entertainable before a Consumer Fora. O.P.No.1 prayed for dismissal of the complaint.
4. O.P.No.2 in its written version averred that, as per documents produced by the complainant, he had deposited installments with it till 12.12.1995 and it had remitted entire amount collected from the complainant to O.P.No.1 and if any difference was there between the amount collected and the amount outstanding, then for that the complainant and O.P.No.1 were responsible. O.P.No.2 further averred that though it had received notice from the complainant but due to non availability of original documents in its possession, no help could be provided to him. O.P.No.2 further averred that no transaction was made with it by the complainant after 12.12.1995, so the complaint was time barred, not having been filed within a period of 2 years. O.P.No.2 further averred that it had not committed any deficiency in service, so prayed for dismissal of the complaint.
5. Learned District Forum observed no deficiency in service on the part of OPs and disposed off the complaint with a direction that if the complaint had deposited entire amount then OPs to return the original title deed.
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6. We have minutely perused the documents on record and heard arguments advanced by all the parties.
7. Contention of O.P.No.2 is that complaint of the complainant was entertainable only as per provisions of C.G. Cooperative Societies Act and not as per Consumer Protection Act, 1986.
8. It is to be mentioned here that Section 3 of Consumer Protection Act, 1986 lays down as :-
"The provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force".
Therefore the remedy under Consumer Protection Act, 1986 is an additional remedy, unless it is in derogation of the provisions of any other law. In the case of Smt. Laxmi Devi Choudhary vs. Sunder Nagar Grah Nirman Sahkari Samiti Ltd. decided by this Commission in Appeal No.583/2004 complaint was allowed against the same housing society & federation. That order was also upheld by Hon'ble National Commission in Revision Petition No.02631/2005 with slight modification, facts therein rested with almost similar facts as that of the instant case. In view of foregoing, the contention of O.P.No.2, is of no avail.
// 7 // 9 Another contention of O.P.No.2 is that the complainant had deposited installment with it lastly on 12.03.1996 and thereafter started paying subsequent installments with O.P.No.1. Complainant had never raised any grievance/protest about non remittance of the amount collected from him to O.P.No.1 which establishes that all the amount collected from him was remitted to O.P.No.1 and if at all any dispute was there then he could have filed complaint before a Consumer Fora within a period of 2 years, as per provisions of Consumer protection Act, 1986 but he filed complaint against OP-2 after about 13 years period, which was barred by limitation.
10. We do not agree with the contentions of O.P.No.2 since it had advanced loan to the complainant on mortgage of immovable property by deposit of title deeds in the year 1983 with repayment period of 20 years so cause of action could arise only after expiry of 20 years period i.e. 2003, and will be continued, so long as the title deeds are not returned, on repayment of full loan with OPs which had been providing services to the complainant, jointly.
11. The only question remained to be decided is whether the complainant has repaid entire loan dues entitling him to get back his original title deed?
// 8 // 11(i). As per documents available on record, there is no clear evidence like Loan Agreement executed with the complainant or any sort of loan sanction letter issued to the complainant so as to clarify as to what were the actual terms & conditions agreed between the parties such as the amount of repayment instalment, mode of repayment, repayment period of loan, rate of penal interest, insurance amount etc. From the documents available on record, the only clear position emerges out is that the complainant was paid loan of Rs.50,000/- in the year 1983 by O.P.No.1 through O.P.No.2 with interest rate @ 13% p.a. after depositing his original title deed by way of equitable mortgage. Complainant repaid a substantial amount towards repayment of loan by way of quarterly instalments with O.P.No.2 for some period initially and thereafter with O.P.No.1 till the year 2004. 11 (ii). We find that as per "assignment Deed' (document at page nos.106 to 111) which is an Indenture executed on 02.04.1983 between O.P.No.1 & O.P.No.2, O.P.No.1 is a Housing Finance Cooperative Society and O.P.No.2 is a primary housing society which gets amount financed from O.P.No.1 and advances loan to its members. Both O.P.No.1 & O.P. No. 2 were registered under Madhya Pradesh Cooperative Societies Act, 1960. In the concluding lines of second para of aforesaid document, it is // 9 // mentioned that members had authorized O.P.No.2 to obtain loan from O.P.No.1 financing agency and to execute Mortgage Deeds and to do all other necessary actions and deeds on this behalf. Accordingly O.P.No.2 had collected an amount of Rs.2,90,000/- from O.P.No.1 for five of its members and advanced loan of Rs.50,000/- to the complainant at interest rate of 13% p.a. after having mortgaged his property on 18.03.1983 (document at page nos.101 to 105) etc. As per 'Assignment Deed' (document at page no.107) in clause 3 there is however an evidence that the period of loan was fixed up between O.P.No.1 & O.P.No.2 for 20 years period and repayment mode of loan was fixed up by way of 4 equal instalments each year due on 1st July, 1st Oct, 1st January and 1st April every year. 11 (iii). Complainant has filed details of amount Rs.94,992.92 deposited with O.P.No.2 (documents on back of page nos.38 &
39) supported by copies of receipts in respect of instalments deposited (documents at page nos.53 to 77) and also details of amount Rs.59,736/-deposited with O.P.No.1 (documents on page nos.39 & 40 ) supported by copies of receipts (documents at page nos.78 to 94 ). The total of the amount deposited by the complainant with O.P.No.1 & O.P.No.2 as aforementioned together works out to Rs.1, 54,728.92.
// 10 // 11(iv). We find that the complainant had been depositing sincerely repayment installments on quarterly basis during the span of 20 years loan repayment period from August 1984 to June 2004 and some times he was charged penal interest also. From December 2003 till 29.06.2004 (detail on back of page Nos..39 &
40) he had been paying instalments @ Rs.1,756/- every quarter with O.P.No.1 and some times he had deposited more amounts in round figure. During the entire loan repayment period from August 1984 to June 2004 when the complainant went on depositing instalments sincerely, both O.P.No.1 & O.P.No.2 had never raised any querry about penal interest or any other charges rather collected the amount without any objection or demand so it was implied that they condoned the delay if any, and also waived other earlier dues. Both O.P.Nos.1 & O.P.No.2 are Co-operative bodies, which are subject to periodical statutory audit and if there was any discrepancy or irregularity ever pointed out in respect of the questioned loan Account, then it could have been intimated to the complainant. We find that O.P.No.1 after expiry of loan period of 20 years issued demand letters dated 28.02.2005, 13.05.2005, 4.11.2008, 18.11.2008 (documents at page nos.96 to 99) asking for huge loan dues from the complainant ranging Rs.4,83,891/-to Rs.8,20,427/-
// 11 // without any base. In the aforesaid demand letters there appears no consistency in respect of the amount demanded and it was also not mentioned therein as to which period the interest was related. A financing agency should point out at the earliest any shortcoming/ default in respect of payment of instalments to its customer so as to provide him an opportunity for preventing further loss due to accumulation of penal interest in future. Practice of accumulating penal interest by a financer for a longer period so as to accumulate to a huge amount is unjust and improper which at times may exceed the repaying capacity of a borrower. OPs never bothered to give any intimation to the complainant about any default during the span of 20 years loan period and remained silent about any dues. Both O.P.No.1 & O.P.No.2 have not produced proper statement of A/c in respect of the questioned loan. As against loan of Rs.50,000/-when the complainant has repaid total amount Rs.1,54,728.92 by way of instalments regularly in a span of about 20 years without receiving any objection or demand from OPs whether on account of penal interest for delay or previous outstanding dues if any , then demand of huge outstanding loan dues to the tune of Rs.8,20,427/- made by O.P.No.1, appears highly unjustified and speaks of its callous attitude and high handedness against the complainant, who is about 75 years aged person. For any // 12 // dispute about non remittance of amount by O.P.No.2 to O.P.No.1 in respect of the amount collected from the complainant, it was their internal matter for which the complainant can not be let helpless to suffer monetarily & mentally. We are therefore of considered view that the complainant had performed his duty to repay entire loan dues whereas OPs did not perform its duties as prudent service provider and caused the dispute to arise . O.P.No.1 had actually financed the loan amount and it had been collecting entire repayment dues from the complainant to which O.P.No.2 was also a Co- Coordinator so they both have committed deficiency in service. The complainant is therefore entitled to get back his original title deed holding that he has repaid entire loan dues. In this connection case law cited in para no.8, as aforementioned, is pertinent.
12. Under the foregoing discussion and facts of the case, appeal of the complainant is allowed and the impugned order is set aside. It is directed that :-
(i) O.P.No1 shall return relevant title deed to the complainant within a period of two months from the date of this order failing which it will be liable to pay compensation @ Rs.500/- per month thereafter till delivery of original title.
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(ii) O.P.No.1 & O.P.No.2 shall also pay compensation of Rs.3,000/-
and Rs.2,000/- respectively towards mental agony to the complainant.
(iii) O.P.No.1 & O.P.No.2 shall also pay jointly cost of the proceedings, quantified as Rs.1,000/- to the complainant.
(Justice S.C. Vyas) (V.K. Patil)
President Member
/01/2012 /01/2012