KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISISON VAZHUTHACAD, THIURVANANTHAPURAM FIRST APPEAL 126/09 JUDGMENT DATED: 7.7.2010 PRESENT SMT.VALSALA SARANGADHARAN : MEMBER SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.M.K.ABDULLA SONA : MEMBER The Malanadu Co-operative : APPELLANT Agricultural and Rural Development Bank Ltd. No.K.352, H.O.Nedumkandam, Idukki District, Represented by the Secretary. (By Adv.R.Krishnappan Nair) Vs. C.K.Kuttiyamma, : RESPONDENT Valiaveettil House, Pushpakandam.P.O., Anakkara, Kallar, Idukki district. JUDGMENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER Appellant was the opposite party and respondent was the complainant in CC.143/08. The complaint therein was filed alleging deficiency in service on the part of the opposite party in collecting excess amount of Rs.73,400/- for effecting repurchase of the property which was pledged for an earlier agricultural loan availed on 20.3.1994. The opposite party entered appearance and filed written version denying the alleged deficiency in service. It was contended that the agricultural loan transaction was closed by auction sale of the mortgaged property and the same was taken place on 30.6.1999. Thereafter on 25.4.07 the complainant approached the opposite party bank for repurchasing the property which was sold in auction sale. Thereby the complainant paid a total of Rs.2,07,400/- for repurchasing the property. So the opposite party prayed for dismissal of the complaint in OP.143/08. 2. Before the Forum below the complainant was examined as PW1 and Exts.P1 to P6 documents were marked on her side. No evidence was adduced from the side of the opposite party. On an appreciation of the evidence on record, the Forum below passed the impugned order directing the opposite party to give back penal interest recovered from the complainant as per Ext.P2 and P3 at the time of repurchase of the property and also to pay cost of Rs.1000/-. Hence the present appeal. 3. When this appeal taken up for hearing, there was no representation for the respondent/complainant. So, this Commission was pleased to appoint Advoate Mr.Krishnakumar.B.A. as amicus curiae in the matter. We heard the learned counsel for the appellant and the learned counsel Adv.Mr.Krishnakumar who acted as Amicus curiae. It is submitted by the counsel for the appellant that the agricultural loan transaction was closed as early as in the year 1999 and that after lapse of 7 years and 10 months the complainant approached the opposite party bank to get back his property which was sold in auction sale and that by an understanding the complainant agreed to remit 2,07,400/- for effecting repurchase of the property; and so, the Forum below cannot be justified in finding fault with the opposite party bank in realizing the aforesaid sum of Rs.2,07,400/-. On the other hand, the learned Amicus curiae Adv.Mr.Krishnakumar.B.A. supported the impugned order passed by the Forum below. He also relied on the circular referred to by the Forum below and argued for the position that the amount collected by the opposite party bank is to be treated as excess amount of Rs.73,000/-. Thus the Amicus curiae prayed for dismissal of the present appeal. 4. There is no dispute that the respondent/complainant availed agricultural loan of Rs.72000/- on 20.3.94 and thereby he mortgaged his property having an extent of 3 acres and 67 ¾ cents. It is an admitted fact that the respondent/complainant defaulted repayment of the loan amount with interest as agreed thereon and that ultimately the mortgaged property was sold in auction sale. The said auction sale was concluded on 30.6.99 for Rs.1,21,700/-. Thereby the appellant/opposite party bank became the absolute owner in possession of the said property which was sold in auction sale. Admittedly the respondent/complainant approached the appellant/ opposite party bank for repurchasing her property which was sold in auction sale. It is also to be noted that the aforesaid repurchase was effected after the lapse of 7 years and 10 months. Thereby on 25.4.07 the respondent/complainant expressed her readiness to repurchase the property on remitting auction amount of Rs.1,21,700/- with 9% interest from 30.6.99. Thereby the total amount was fixed at Rs.2,07,400/-. It can be concluded that the repurchase was effected on a sale consideration of Rs.2,07,400/-. So the complaint filed by the complainant in OP.143/08 alleging deficiency in service on the part of the appellant/opposite party bank can not be upheld. The repurchase was effected by the readiness and willingness of the complainant to pay the aforesaid sale consideration of Rs.2,07,400/- and the complainant had also remitted the said amount and got the property repurchased. It is thereafter the complainant has alleged deficiency in service on the part of the appellant/opposite party bank. The aforesaid method or procedure adopted by the respondent/ complainant cannot be entertained and encouraged. In fact, the respondent/complainant misused the beneficiary provisions provided under the Consumer Protection Act,1986. The Forum below has not appreciated the facts, circumstances and the evidence of the case in the correct perspective. We have no hesitation to set aside the impugned order passed by the Forum below. In fact there was no such penal interest collected by the appellant/opposite party bank. But the bank had only collected the consideration for sale of its property. The present appeal is to be allowed and the impugned order passed by the Forum below is to be quashed. Hence we do. 5. In the result the appeal is allowed. The impugned dated 29th November 2008 passed by CDRF, Idukki in CC.143/08 is set aside. Parties to this appeal are directed to suffer their respective costs. Advocate Mr.B.A. Krishnkumar who performed his role as an Amicus curiae is honoured by allowing remuneration of Rs.1500/-. This amount is to be drawn from the legal aid fund of this Commission. SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SMT.VALSALA SARANGADHARAN : MEMBER SRI.M.K.ABDULLA SONA : MEMBER ps | 
