HARYANA STATE CO-OPERATIVE HOUSING FEDERATION LIMITED vs Ishwar Singh

-THIS appeal is directed against the order dated 17. 10. 2006 passed by the District Consumer Disputes Redressal Forum, Fatehabad whereby while accepting the complaint of the respondent Nos. 1 and 2 complainants directions have been given to the appellant-opposite party No. 2 and the respondent No. 3 opposite party No. 1 to return the original title deeds of the complainants qua their plot mortgaged with the respondent No. 1 as collateral security and to pay Rs. 5,000 as compensation on account of mental agony, harassment and Rs. 1,000 as litigation expenses.

PUT shortly, the facts as can be gathered from the record briefly stated are that the complainants had taken loan of Rs. 22,500 from ''the Tohana Adarsh Cooperative Housing Building Society Limited, Tohana'' for construction of their houses on 9. 6. 1988. They had mortgaged their property as collateral security for repayment of the said loan amount. The complainants had been paying the due instalments amount to the aforesaid society. Later on the said society was merged with ''the Tohana Naveen Cooperative Housing Building Society Limited, Tohana'' arrayd as opposite party No. 1. The balance amount was also paid to the opposite party No. 1. The opposite party No. 1 had also issued ''no Dues Certificate'' in favour of the complainants on 6. 10. 1999. Thereafter, they approached the opposite party No. 1 for return of the title deeds of their mortgaged property but no action was taken by the opposite party No. 1 in this regard which forced the complainants to invoke the jurisdiction of the District Forum by filing the present complaint for return of the documents to them. In addition they claimed compensation of Rs. 10,000 on account of mental agony and harassment caused to them and Rs. 3,000 as litigation expenses. The complaint was contested by the opposite parties who filed their separate written statements. The opposite party No. 1 in its written statement took a preliminary objection with regard to the jurisdiction of the District Forum to try the complaint in terms of the provisions contained in Sections 102, 112 and 124 of the Haryana Cooperative Societies Act, 1984 (hereinafter referred to as the Act, 1984 ). On merits it was stated that the complainants had repaid the entire 80 quarterly equated instalments with interest upto 5. 10. 1999 and ''no Dues Certificate'' was also issued in their favour on 6. 10. 1999. It was further stated that the property of the complainants had been further sub-mortgaged with the opposite party No. 2 with the consent of the complainant and the opposite party in possession of the title deeds of the said property but as per its stand the entire loan amount had not been repaid to it because the amount received by the Secretary of the Society of opposite party No. 1 had been misappropriated and recovery proceedings were also pending against the said Society. Accordingly, it was prayed that the complaint merited dismissal. It has also come on record that initially the complaint was instituted against the opposite party No. 1 but subsequently the opposite party No. 2 was impleaded as party in the complaint. The opposite party No. 2 in his separate written statement did not dispute the stand of the complainants with regard to the loan amount advanced to them on the terms stated in the complaint coupled with the mortgage-deed executed by them in favour of the opposite party No. 1 which permitted the property to be sub-mortgaged with the opposite party No. 2. It was further stated that the opposite party No. 2 had not received the final payment from the opposite party No. 1 in respect of the loan amount of the complainants and a sum of Rs. 1,14,376. 01 was still outstanding and payable by the complainants and after the receipt of the full payment of the loan amount the title deeds would be released to them. Thus it was submitted that the complaint merited dismissal. On examination of the pleadings of the parties and evidence addued on record the District Forum found no substance in the stand of the opposite parties and while accepting the complaint issued the directions in its order dated 17. 10. 2006 noticed above. It is against the said order the present appeal has been filed by the appellant-opposite party No. 2.

Learned Counsel representing the appellant has been heard at length.

THERE is delay of 8 days in filing the appeal and the same is condoned under the circumstances of the case. Learned Counsel representing the appellant while assailing the order of the District Forum has made two-fold submissions before us. Firstly, that the District Forum had totally ignored that it had no jurisdiction to try the complaint as the matter was required to be referred to the arbitration in terms of the arbitration agreement as the dispute related between the members of the Cooperative Society and the Society under the provisions contained in the Act, 1984. Secondly, that the opposite party No. 1 to whom the complainants claimed to have deposited the amount of loan had not deposited the same with the opposite party No. 2 and as per statement of account a sum of Rs. 1,14,376. 01 was outstanding against the complainant as on 30. 4. 2006 and for that reason the District Forum was not justified in accepting the complaint. There is hardly any merit in the submission made. The Hon''ble National Commission in case Bihar State Housing Co-Operative Federation Ltd. v. Sushila Devi, II (2006) CPJ 197 (NC)=2006 (2) CPC 209, had taken notice of the decision by the Hon''ble Supreme Court in case Secretary Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (dead) through legal heirs and Others, I (2004) CPJ 1 (SC)=i (2004) SLT 200= (2004) 1 SCC 305, wherein it was laid down that the remedy under the Consumer Protection Act, 1986 (hereinafter referred to as the Act, 1986) is in addition and not in derogation of other remedy provided under the other Acts. It was also observed that the District Forum had jurisdiction to decide the dispute between the member of the Co-operative Society and in view of the arbitration agreement its jurisdiction was not ousted. That being so, the stand taken from the side of the appellant in this regard is without any foundation and has to be rejected.

COMING to the other submission made it is established on record that the loan amount of Rs. 22,500 advanced to the complainants on 9. 6. 1988 had been repaid and even ''no Dues Certificate'' had been issued to the complainant on 6. 10. 1999 by the opposite party No. 1. It has also come on record that at the time when the complainants had taken the loan, they had executed the mortgage-deed Ex. R2 on 20. 1. 1988 in favour of the opposite party No. 1 and as per terms stated therein the opposite party No. 1 was bound to return the documents after the entire loan amount was paid to it. At the same time, it has also come on record that the said property was sub-mortgaged by the opposite party No. 1 to the opposite party No. 2 to raise further loan. In this case, it is clearly from the admission made by the opposite party No. 1 in the written statement filed that the Secretary of the Society had not deposited the loan amount with interest realised from the complainants with the opposite party No. 2 and for that reason the documents could be released to the complainants. If for any reason the opposite party No. 1 has not been able to satisfy the opposite party No. 2 in this regard, the liability, as such, cannot be sought to be shifted to the complainants on the basis of sub-mortgage-deed executed between the opposite party Nos. 1 and 2 because for the default of their inter se liability or misappropriation of the funds of the society by its employee the complainants have to seek remedy under the law, but it cannot withhold the release of the documents to the complainants after they had repaid the entire loan amount to the opposite party No. 1 as admitted by it. Under the circumstances of the case the District Forum was fully justified in accepting the complaint. For the aforesaid reasons, there is no merit in the appeal and the same is consequently dismissed. Appeal dismissed.