Date of filing : 19-10-2011
Date of order : 22-06-2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.269/2011
Dated this, the 22nd day of June 2012
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT. K.G.BEENA : MEMBER
M.C.Mohanan, S/o.Late Chellappan, } Complainant
R/at Shivasadana, Kottakkanni,
Kasaragod.Po. Kasaragod.Dt.
(In Person)
Canara Bank, } Opposite party
Bank road branch, Kasaragod,
Represented by its Manager
(Advs. Sadananda Kamath.K.&
Aysha Thasneema.M, Kasaragod)
O R D E R
SRI.K.T.SIDHIQ, PRESIDENT
Complainant filed this complaint seeking the following relief:
1. Directing the opposite party to refund an amount of `2,00,000/- (Rupees two lakhs) with interest that the opposite party mistakenly remitted in the account of Chandravathy and
(2) To adjust the amount received from Khadi board as subsidy in the account of Shameer Plastics and
(3) to pay the cost of these proceedings.
2. The case of the complainant is as follows:
Complainant is the Proprietor of a Small Scale Industry by name Solar Engineering Works. His friend Radhakarishnan was working as Supervisor under him. At about 6 or 7 years back at the instigation of Radhakrishnan he purchased a sick industry by name Cheenamadam Plastics in the name of the wife of Radhakrishnan to avail subsidy from Khadi board towards womans industrial subsidy. The owner of Cheenamadam Plastics agreed to lease out the industrial premises to Radhakrishnan on a condition that he should be paid for the value of machinery. For purchasing the industry Chandravathy approached the opposite party for a loan. At that time opposite party insisted for security. There fore Radhakrishnan requested the complainant to help him. The complainant having 10 cents of land as his share of Tharavad property in which a house situated wherein the mother, brother and his family residing. Since Radhakrishnan is a close friend of the complainant, he agreed to stood as a guarantor by pledging his title deed.
3. Things were smooth initially and Chandravathy was remitting loan instalments. After the purchase, the name of industry changed as Shameer Plastics. Complainant had no involvement in the running of industry. Later Chandravathy purchased 30 cents of land and industrial shed in which the industry was functioning. Later complainant came to know that the loan became arrears. At that time complainant approached Radhakrishnan and asked to clear the loan. Radhakrishnan agreed for the same. Meanwhile Radhakrishnan died about 2 years back. Thereafter the industry was not functioned. As the opposite party find it difficult to realize the loan due from Shameer Plastics, the opposite party started to harass the complainant. The opposite party initiated SARFEASI proceedings also. Against the same complainant approached Hon’ble High Court of Kerala and the Hon’ble High Court granted instalments for the payment and complainant remitted altogether `3,55,000/- towards the pending liability. Later he came to know that only `1,55,000/- is adjusted to the loan of Shameer Plastics and `2,00,000/- is credited in another loan of Chandravathi to which he is not a guarantor. Further `3,00,000/- received as subsidy from Khadi Board is also accounted in the personal account of Chandravathi. The intention of the opposite party was to coerce the complainant to pay the arrears by himself. Hence the complaint.
4. According to opposite party complaint is not maintainable and the complaint is bad for non-joinder of necessary parties. Complainant is having 2 accounts with opposite party Bank. Chandravathy as principal borrower and complainant as guarantor. The complainant has availed a loan of `4,50,000/- as a overdraft facility to the limit of `4,37,000/- and both these loans are outstanding and in the term as on 2-1-2012 an amount of `45381/- and in the overdraft facility an amount of `7,14,385.95 with future interest is due. Complainant is not only a guarantor to aforesaid 2 loans but he is actively managing and administering M/s Shameer Plastics.
5. On going through the pleadings and contentions of complainant and opposite party. It appears that elaborate evidence is required to reach a just conclusion of case and voluminous records from the opposite party Bank and Khadi Board are also to be considered. We are of the view that this case cannot be disposed within the time bound proceedings of the Forum.
6. Most importantly it is to be noted that the Principal borrower, Chandravathi who is actual consumer is not a party to the proceedings and admittedly complainant is only a guarantor of the principal borrower. Complainant has not availed any service from the opposite party. So he cannot to considered as a consumer of Opposite Party.
7. Therefore we relegate the parties to approach the Civil Court for the fair adjudication of this dispute.
If the complainant chooses to file a suit for the relief claimed in this proceedings he can do according to law and in such case, he can claim the benefit of Sec 14 of the Limitation Act to exclude the period spent in prosecuting proceedings under Consumer Protection Act while computing the period of limitation prescribed for such a suit as per law.
MEMBER MEMBER PRESIDENT
Pj/
