Sri.K.GOPALAN: PRESIDENT This is a complaint filed under Section 12 of the Consumer Protection Act for an order directing the opposite party to repay the amount of Rs 22,660/- together with a compensation of Rs 3000/- and the cost of this proceedings. The case of the complainant in brief are as follows: Complainant availed a loan from the opposite party bank for a sum of Rs 3,00,000/-under the loan account no.SOD 134/99 on 31.3.2000 . Since the loan amount was not paid within the time scheduled, opposite party bank filed a suit before the Hon: Sub Court Thalassery as O.S.No.76/2003. The complainant withdrawn the contentions raised by him in the written statement during pendency of the matter and submitted before the Hon: Court that he was ready to pay the entire amount. Thus the Hon: Court was pleased to decree the suit in favour of the opposite party and further ordered to refund half of the court fee in his favour out of Rs 45,320/- which he has paid as court fee. The case was decreed on 28.7.2005. Thereafter the opposite party informed the complainant that he can pay the amount under the OTS scheme. As per the information the complainant paid the entire amount Rs 5,03,000/-. It includes Rs 4,69,180 as amount due upto 20.3.2003, Rs 1,32,203/- as interest upto 14.10.04, Rs 45,320/- as court fee paid and Rs 3,891/- as other charges which comes to a total of Rs 6,50,594/- Out of which Rs 1,47,594/-as interest waived under OTS scheme. Thus as per the settlement the complainant paid Rs 5,03,000/- to close the loan. The entire amount of court fee is included in the due amount paid by the complainant. Thus half the amount of court fee that is refunded from the Hon: Court has to be paid to the complainant since he has already paid that amount to the opposite party. Opposite party bank received half the court fee Rs 22,660/- on 10.2.2005. Complainant alone is entitled for the amount since it was already paid and settled the total account by him. The opposite party is not refunding the amount to the complainant even after the repeated request. Hence this complaint. Persuant to the notice issued by this Forum, the opposite party bank filed version. The contention of opposite party in brief are as follows. The complaint is not maintainable. It is well settled that a compromised matter cannot be reopened. On this ground alone the complaint is liable to be dismissed. Non payment of loan amount by the complainant resulted in institution of the suit OS 76/2003 and the same was decreed on 28.7.2005 on consent, with direction to refund to the plaintiff opposite party bank half of the court fee paid. Opposite party agreed for a settlement on a consolidated figure of Rs 5,03,000/- on the basis which was in fact paid by the complainant. As per the scheme the complainant was offered a much reduced figure of settlement at Rs 5,03,000/- than the amount due from him and the same was sanctioned after considering half court fee receivable from the court and further, the complainant had agreed to the figure of settlement and paid the same without demur and therefore complainant cannot now turn round and question the very same settlement. Opposite party submitted that Section 69 of Kerala Court Fees and Suit Valuation Act, the refund of court fee is to be made only to the party to the suit who has paid the court fee at the first instance. Complainant is not entitled to claim a refund. In any case the half the court fee receivable was also considered while arriving at the settlement figure by the opposite party bank. The allegation that the opposite party had agreed to refund an amount of Rs 22,660/- said to be court fee refund is denies as it is not true. So also the allegation that the bank had collected full amount of court fee from the complainant is denied. The settlement arrived at was for a far lesser amount than that which was due from the complainant. The complainant had agreed to the same and remitted the same in full and final settlement. Complainant cannot question now the settlement. The notice of the complainant was replied. The complainant is not entitled to any of the reliefs sought for. On the above pleadings the following issues have taken for consideration. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complainant is entitled for any relief? 3. Relief and cost? The evidence consists of oral testimony of complainant as PW1, DW1 and documentary evidence Exts. A1 to A4 & B1 to B3. ISSUES 1 to 3: Admittedly complainant availed a loan of Rs 3,00,000/- as per the loan account SOD 134/99 dt. 31.3.2000 from the opposite party bank and on failure of repayment of loan resulted to institute suit against complainant. It was also admitted that suit was decreed on consent in favour of the opposite party bank with a direction to refund the half court fee. Complainant closed the loan by paying entire amount as per OTS scheme. Ext.B1 request sent by complainant was considered and the Head Office of opposite party sent settlement proposal Ext. B2. In accordance with the Ext. B2 proposal settlement was arrived at and thereby the entire amount of loan had been paid and loan closed. The complainant detailed the calculation as follows: Total loan amount Rs 3,00,000/- Total amount due to the bank upto 20.3.03. 4,69,180/- Penal interest upt9o 14.10.04 1,32,203/- Court fee paid in OS No.76/03 by the plaintiff 45,320/- Other expenses in the suit 3,891/- Total amount 6,50,594/- Less amount as per the one time scheme 1,47,594/- Amount paid by the complainant 5,03,000/- Opposite party has not denied the calculation, whereas , many of the items has been specifically admitted by opposite party bank. The opposite party has stated that it is not correct to say that the entire amount of court fee has been recovered from the complainant. The opposite party deny the settlement of complainant that he has paid the entire court fee. Even then the calculation has not been challenged. Opposite party has specifically admitted that Rs 5,03,000/- has been paid by the complainant. But opposite party has not explained how did this amount calculated. Complainant has given each and every item of calculation and arrived at the total amount Rs 5,03,000/-which has been admitted by the opposite party. This amount the total sum Rs 5,03,000/- includes RS 45,320/- as per the calculation presented in the pleadings by the complainant. It stands as part of pleadings. If it does not consist of court fee RS 45,320/- opposite party is liable to explain how does what all items are caused to arrive at the total of Rs 5,03,000/- payable by the complainant. It is seen that complainant has paid this amount. Ext. B2 shows the interest concession given is Rs 1,47,594/-. The total amount payable Rs 5,03,000/- is derived by deducting the interest concession Rs 1,47,594 out of total due Rs 6,50,594/-. This total due consist of loan amount due upto 20.3.03, penal interest upto 14.10.04 and court fee paid in OS No.76/03. These items are not specifically denied by the opposite party . If the court fee has not been included the opposite party should have explained how does that much amount Rs 45,320/- has covered within the due amount. Can it be replaced by any other item? What are the other items which could cover this amount ? If this question has not been satisfactorily explained , there is no other go except believing that this tolal due amount undoubtedly consisted of Rs 45,320/- paid as court fee. If that be so the entire court fee paid has been taken from the pocket of complainant and not that of opposite party though upon technical aspect payment before the Hon: Court has been paid by opposite party. So also any amount refundable on that account of court fee the complainant alone is entitled to own the amount, though technically, opposite party is the proper legal person to receive the same from court. Herein half the court fee is refunded and the complainant is entitled to get that half refunded amount Rs 27,660/- since the actual payment has been done by the complainant. Opposite party has raised another legal question that Section 69 of the Kerala Court Fees and Suit Valuation Act ordains that half court fee refunded is to be made only to the party to the suit who has paid the court fee at the first instance. This Section does not prevent complainant to claim the amount since the entire amount is paid out of his pocket. But by this Section fee refunded, is to be made only to the opposite party. Opposite party paid the amount to court. Court will refund it to opposite part alone. But from whose pocket this amount is taken is the actual place where it legally reaches finally. NO section of any law prevents this course. The calculation of total liability of complainant clearly shows that it includes the expense of court fee met by the opposite party bank. Naturally such amounts will be included in the liability of consumer alone. The contention of opposite party bank that court fee amount is not taken from the complainant is a plain lie. Opposite party has never stated specifically anywhere the total liability of the complainant. Why? Because their hands are not clean. Appropriation of refunded half court fee from this complainant is undoubtedly an unfair trade practice which definitely not expected from a reputed leading institution like the opposite party. Hence the complainant is entitled for the half court fee amount that has been refunded and received by the opposite party bank. Opposite party contended that as per the settlement scheme the complainant was offered a much reduced figure of settlement at Rs 5,03,000/- than the amount due from the complainant and the same was sanctioned after considering the half court fee receivable from the court. No evidence adduced to prove this. If that is considered opposite party has to show where it is accounted. It has to be proved that the amount has been properly accounted in the manner of justifiable and accepted procedure. Opposite party is under bounden duty to make clear that the dealings on their part is perfect , which in fact they failed to discharge. Hence we are of opinion that there is deficiency in service on the part of opposite party. Opposite party is liable to repay the amount of Rs 22,660/- to the complainant with interest @ 8% p.a. from the date of filing of this complaint till the date of payment Complainant is also entitled for a cost of Rs 1000/-. Thus the issue Nos. 1 to 3 are found in favour of the complainant. In the result, the complaint is allowed directing the opposite party to pay a sum of Rs 22,660/-( Rupees twenty two thousand six hundred and sixty only) with interest @ 8% p.a. from the date of filing the complaint till the date of payment together with RS 1000/-( Rupees one thousand only) as cost to the complainant within one month from the date of receiving this order, failing which the complainant is allowed to execute the order as per the provisions of the Consumer Protection Act. Sd/-MEMBER Sd/-MEMBER Sd/-PRESIDENT APPENDIX Exhibits for the complainant A1. Copy of the lawyer notice dt. 15.2.2005 sent to the opposite party A2. Acknowledgement card. A3. Postal receipt. A4. Photo copy of the loan account pass book of the complainant. Exhibits for the opposite party B1. Letter dt. 8.7.2004 sent by the complainant. B2. Letter dt. 12.10.2004 sent by the Senior Manager, NMG Bank,Kannur. B3. Copy of the reply lawyer notice dt.19.5.2005 . Witness examined for the complainant. PW1. Complainant Witness examined for the opposite party DW1. Prasanna.N.K. Forwarded/ by order SENIOR SUPERINTENDENT
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