BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM ::
KADAPA Y.S.R DISTRICT
PRESENT SRI V.C. GUNNAIAH, B.Com., M.L., PRESIDENT
SMT. K. SIREESHA, B.L., LADY MEMBER
M.V.R. SHARMA, B.A. MEMBER
Tuesday, 9th February 2016
CONSUMER COMPLAINT No. 42 / 2015
S. Noorjahan Begum, W/o S. Nazeer Ahmad,
aged about 55 years, House wife, D.No. 7/929,
Dasthagiri Peta, Kadapa City. ….. Complainant.
Vs.
1. The Managing Director,
A.P. Co-operative Housing Societies Federation Ltd.,
H.No. 1-8-1-B/26, Housefed Bhavan,
Bhaghlingampalli, Hyderabad.
2. The President, Kadapa Cooperative House Building Society,
R.K. Nagar, Kadapa City. ….. Opposite parties.
This complaint is coming before us for final hearing on 03-2-2016 and perusing complaint and other material papers on record and on hearing the arguments of Sri P. Anwar Basha, Advocate for complainant and Sri M. Suresh Kumar, Advocate for O.P.1 and Sri P.S. Balasubramanyam, Advocate for O.P.2 and the matter is having stood over for consideration this day, the Forum made the following:-
O R D E R
(Per Sri M.V.R. Sharma, Member),
1. This Complaint is filed under section 12 of the Consumer Protection Act 1986 requesting this forum to direct the Opposite parties:-
(a) To direct the R1 and R2 to release the schedule mentioned property from mortgage and redeem the mortgage deed executed in favour of R2.
(b) The respondents to return the original documents of the complainant and pay ₹ 2,00,000/- for their keeping the same and harassing the complainant.
(c) To pay compensation of ₹ 1,00,000/- towards deficiency of service on their part and harassing the complainant since years together and
(d) To pay the cost of ₹ 10,000/-towards the complaint and the expenses incurred by the complainant and such other reliefs as the Hon’ble District forum deems fit and proper in the interest of justice.
2. The averments of the complaint in brevity are that the complainant joined as a Member in the opposite party No. 2 (for short herein called as O.Ps) society to get house loan to the house existing in the name of her and submitted all required documents to O.P.2 for onward transmission to O.P.1, who is the sanctioning authority and also stated that in the mean while even before the sanctioning of house loan by O.P.1, from O.P.2 she received an amount of ₹ 50,000/- on 29-6-2001 vide cheque No. 0233775, ₹ 40,000/- on 13-8-2001 vide cheque No. 0253640 and ₹ 20,000/- on 4-10-2001 vide cheque No. 0253695, total amount of ₹ 1,10,000/-. After that the O.P.2 received sanction of loan letter from O.P.1 on 29-1-2001 for an amount of ₹ 1,25,000/- on mortgage of the property. The O.P.2 on 29-10-2001 collected the share capital from complainant on loan ₹ 6,300/- membership fee of ₹ 200/- entrance fee of ₹ 90/-, LIC fee of ₹ 750/-, building fund ₹ 100/- followed by recovery of advance taken by the complainant of ₹ 50,000/- ₹ 40,000/- and ₹ 20,000/-. As said in the above along with interest of ₹ 1,10,000/- an amount of ₹ 4828/- which in total become ₹ 1,22,268/- as per bill No. 685, dt. 29-10-2001, which clearly shows that on 29-10-2001 itself the O.P.2 has collected entire amount, which he had given to the complainant. Even then she unknowingly paid ₹ 750/-, ₹ 8,695/- and ₹ 8755/-, ₹ 9,181/- ₹ 16,266/-, ₹ 9,500/- and ₹ 7,000/- as per bills issued by O.P.2 totalling amount of ₹ 60,147/-.
3. The complainant further stated that, she wants to settle the matter in full and final settlement of the said loan and approached O.P.2 and the O.P.2 is directed to settle the matter with O.P.1. Basing on this she paid ₹ 1,00,000/- and ₹ 75,460/- through demand draft bearing Nos. 032782 and 032780, dt. 22-3-2010 and 23-3-2010. After that the O.P.2 has issued a clearance certificate and sent all the original documents to O.P.2 with a direction to release the schedule mentioned property from mortgage, after receiving 1% margin money and also directed O.P.2 to return the share capital amount and also she is ready to pay 1% of margin money to release her house from mortgage. But time to time O.P.2 postponing the matter for some reasons and she rounded the office of O.P.2 since, the years 2010 to 2015. But they gave evasive replies and she issued a legal notice dt. 01-2-2012 to O.P.2 to implement the proceedings of O.P.1, after receipt of the said legal notice the O.P.2 responded and given reply with all false and untenable allegations. Recently she received letter from O.P.2 dt. 01-3-2015 demanding to pay a sum of ₹ 64,226/-. After receipt of the notice she consulted O.P.2 and narrated the excess amount collected by showing the original receipts paid by her and requested O.P.2 release the original house documents from mortgage but O.P.2 bluntly refused. Hence, the complaint.
4. Opposite parties 1 & 2 filed separate counters.
5. The O.P.1 filed counter and stated that the present complaint is liable to dismiss or reject as required under order 7 R.11 (d) of C.P.C. The cooperative Tribunal is constituted at Hyderabad to resolve the disputes between a cooperative society and its members or any dispute touching the same. In view of section 76 of APCS Act that the appellate authority regarding execution of decrees in cooperative societies vide section 70 lies with A.P. Cooperative Tribunals only. Hence, she seek the remedy before the cooperative tribunal only and not before this forum. Hence, the complaint is liable to be rejected in limini.
6. The O.P.1 further stated that the loan amount was sanctioned and the complainant obtained loan from O.P.2 financed by this O.P. for ₹ 1,25,000/- and also stated that in fact that there are no allegations attributed against this O.P. and also this O.P. unnecessary party but as could be ascertained from the records that there was a notice caused by the O.P.2 dt. 01-3-2015 requiring the complainant to pay ₹ 64,226/- due as on the said date. The complainant has engineered the present complaint to evade the said amount due payable by the complainant. Hence, this O.P. prays to dismiss the complaint with costs.
7. The O.P.2 filed counter and stated that the complainant do not come under the purview of the term ‘Consumer’ as defined under the provisions of the C.P. Act 1986 and also stated that the society is an autonomous body it has its own bylaws, articles and memorandum etc., It is also having own rules and regulations. This O.P. not at all a branch office of the O.P.1. Both are independent organization. The complainant is a member of this O.P. she had applied for housing loan of ₹ 1,25,000/- through the O.P.2, from O.P.1. Even before sanctioning of the said loan by O.P.1 this O.P paid an advance of ₹ 1,10,000/-. The said aspect is admitted even by the complainant after sanctioning of the loan by O.P.1 balance amount also paid to the complainant and also stated that the O.P.1 furnished every year extract showing the particulars of the loan. The quantum of amount due as principal, interest, outstanding due etc., after receiving such extract this O.P. repays the loan as per the amounts given by the debtors. Even if the debtors do not give any amount this O.P paid amount as per the demands of the O.P.1. In the present case also this O.P. had paid several amounts on behalf of the complainant taking advantage of the said payments the complainant has entered into one time settlement with O.P.1, without making any payment to the O.P.2.
8. It is also stated that the general procedure for repayment of the loan is that after sanctioning of loan by the O.P.1 the debtor will pay amount to credit the account of O.P.2 and after repayment of the entire amount the O.P.2 will inform the same to the O.P.1, who will execute a release deed and direct this O.P. to release the original documents kept with the O.P.2. in the present case without even informing this O.P. she had approached O.P.1 and sought for one time settlement and repaid amount as one time settlement due to which the O.P.1 had agreed to execute release deed and addressed a letter dt. 27-5-2010 to this O.P. to release the original documents on payment of 1% by the complainant prior to the accepting the one time settlement. The O.P.1 did not even enquire this O.P. about the quantum of amount payable by the complainant to this O.Ps society. The allegations of the complaint that the O.P.1 and 2 are informed the credit balance as ₹ 1,75,451/- is not correct. The O.P.1 did not follow the procedure in respect of the repayment and settlement of the loan given to the numbers of O.P.2 society. The procedure followed by the O.P.1 in accepting the one time settlement does not entitled the complainant for automatic release of the original documents as the loan of this O.P. society was outstanding as on the date of payment by the complainant as one time settlement of the O.P.1. She cannot take advantage of the direction of the O.P.1 for release of the documents and claim of the same.
9. The O.P.2 further stated that when she sought for release of her original documents vide letter dt. 21-10-2011 informing to the complainant the above said procedure and demanded to pay the outstanding due of ₹ 48,194/- as on 1-1-2011 and obtain receipt and no due certificate for getting the return of original documents for the reasons best known to the complainant she had remained silent in that regard without paying the same. The issuance of the said letter by this O.P. was intentionally suppressed by her after that this O.P. received a legal notice issued by the complainant dt. 1-2-2012 by demanding return of original documents. This O.P. issued a suitable reply notice dt. 22-2-2012 even then the complainant not paid any amount and remained silent for a period of three years when the O.P. had issued a demand notice dt. 1-3-2015 and demanded for payment of ₹ 64,226/- outstanding due as on 31-3-2014. This O.P. demanded her to pay the amount payable her to this O.P. and get back the original documents. Even now this O.P. is ready to return the original documents to her, if she ready to pay the outstanding balance and further stated that the O.P. 1 has no concern with the mortgage executed by the complainant in favour of this O.P. Hence, the Hon’ble forum may be pleased to dismiss the complaint with costs.
10. To prove his case the complainant filed an affidavit along with documents and got marked Exs. A1 to A13 and on behalf of the opposite parties Exs. B1 to B11 documents were marked.
11. On the basis of the above pleadings the following points are settled for determination.
i. Whether the complainant is eligible for compensation as prayed by her?
- Whether there is negligence or deficiency of service on the part of opposite parties?
- To what relief?
12. Point Nos. 1 & 2. The complainant contended that she has paid entire amount to O.P.1, due to the O.P.2 and the O.P.1 directed the O.P.2 to redeem the mortgage and deliver the title deeds. But the O.P.2 did not redeem the mortgage and return the title deeds of the house. Thus there is deficiency of service on the part of the opposite parties. Hence, the complainant is entitled for the reliefs.
13. On the other hand it is contended on behalf of O.P.1, the O.P.2 was directed to release the mortgage of the complainant after paying the dues to O.P.2.
14. However, O.P.2 contended that the complainant is due an amount of ₹ 64,226/- to redeem the mortgage and deliver the title deeds. But in spite of intimation the complainant not paid the amount to O.P.2 and without knowledge of O.P.2 the complainant paid only principle amount to O.P.1 which is not correct to redeem the mortgage. Therefore, the complainant’s claim is not genuine and no deficiency of service by the O.P.2. Hence, complaint is liable to be dismissed.
15. Having heard I carefully perused the documents filed by both parties. It is no doubt true that the complainant had paid ₹ 1,20,000/- to the O.P.1 towards mortgage debt with O.P.2 but further perusal of documents shows that the complainant not verified the amount due to O.P.2 to redeem the mortgage and paid the total amount to O.P.1. The O.P.1 also not verified from the O.P.2 from whom the complainant obtained the mortgage loan regarding the total amount payable. If neither the complainant nor the O.P.1 verified the amount due to the O.P.2 how the complainant paid the entire due amount on the mortgage to O.P.1 is doubtful. It is also not explained by the complainant to the satisfaction of this forum how she redeemed the mortgage debt and she is entitled to return the title deed. The complainant appears as not approached this forum with clean hands. The overall consideration of the pleas of both parties reveal the complainant paid the amount to O.P.1 without knowledge of O.P.2 in collusion with O.P.1 only to avoid full payment of the mortgage debt, due to O.P.2. There is no reason assigned by the complainant to pay the amount O.P.1 bypassing O.P.2 with whom the complainant mortgaged the property and obtained loan.
16. Therefore, we hold that there is no deficiency of service on the part of the opposite parties and the complainant is not entitled for the reliefs against the opposite parties and the complaint is liable to be dismissed. Thus the points 1 & 2 are answered against the complainant.
17. Point No. 3 In the result, the complaint is dismissed without costs.
Typed to my dictation, corrected and pronounced by us in the open Forum, this the 9th February 2016
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses examined.
For Complainant NIL For Opposite parties : NIL
Exhibits marked for Complainant: -
Ex: A1 Original Receipt issued by R2 bearing No.1575,Dt. 16-6-2001.
Ex: A2 Original Receipt issued by R2 bearing No.685, Dt. 29-10-2001.
Ex: A3 Original Receipt issued by R2 bearing no.1701, Dt. 30-3-2002.
Ex: A4 Original Receipt issued by R2 bearing No.63, Dt. 28-2-2003.
Ex: A5 Original Receipt issued by R2 bearing No.386, Dt. 31-3-2003.
Ex: A6 Original Receipt issued byR2 bearing No.4329,Dt. Original Receipt
issued By R2 bearing No.4329, Dt. 31-3-2004.
Ex: A7 Original Receipt issued by R2 bearing No.396, Dt. 22-9-2007.
Ex: A8 Original Receipt issued by R2 bearing No.4139,Dt. 19-3-2009.
Ex: A9 P/c of proposals issued by the R1 to R2 and the sub-Registrar
Kadapa to redeem the schedule mentioned property.
Ex: A10 P/c of letter given by the complainant to R1 on 24-3-2010.
Ex: A11 P/c of legal notice dt. 1-2-2012.
Ex: A12 Reply notice given by R2 to the complainants counsel on 22-2-2012.
Ex: A13 Demand notice given by the R2 on 1-3-2015.
Exhibits marked on behalf of the Opposite parties : -
Ex: B1 P/c of the loan application of the complainant.
Ex: B2 P/c of the Admission Book of the complainant.
Ex: B3 P/c of the letter dated 21-10-2011 issued by the Respondent to the
complainant.
Ex: B4 P/c of the Demand Notice for the payment of installment to the
society, issued by the Federation.
Ex: B5 P/c of the statement of the amount paid by the complainant to the
Respondents.
Ex: B6 P/c of the statement showing the amount paid by the Respondents
Society to the Federation (Respondent no.1).
Ex: B7 P/c of the letter dated 27-5-2010 issued by the Respondent No.1 to
the Sub-Registrar, Kadapa.
Ex: B8 P/c of the Letter dated 30-4-2010 issued by the Respondent no.1 to
the Respondent no.2.
Ex: B9 P/c of the statement showing the amount paid by the complainant to the Society i.e., the respondent no.2, and the society (Respondent no.2) paid to the Federation (Respondent no.1).
Ex: B10 P/c of the statement of the Loan Balance of the complainant dated 12-6-2015.
Ex: B11 P/c of the Bye Laws of the Society i.e., the Respondent no.2.
MEMBER MEMBER PRESIDENT
Copy to :-
- Sri P. Answar Basha, Advocate for complainant.
- Sri M. Suresh Kumar, Advocate for O.P.1
- Sri P.S. Balasubramanyam, Advocate for O.P.2.
B.V.P.
