DATE OF FILING : 23.11.2020 

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION IDUKKI

Dated this the 12th  day of  August, 2021

Present :

SRI. C. SURESHKUMAR PRESIDENT

SMT. ASAMOL. P.                                           MEMBER

SRI. AMPADY.  K.S. MEMBER

CC NO.163/2020 

Between

Complainant :   Rajan K.S.,

     Konattu House,

    Thopramkudy P.O.,

    Vathikkudy, Idukki

    (By Adv: K.B. Selvam )

And

Opposite Party :  The Manager,

     Idukki District Co-operative Bank,

    Murickassery Branch,

    Vathikkudy, Idukki.

      (By Adv: C.K. Babu)

 

(cont.....2)

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O R D E R

 

SRI. C. SURESHKUMAR,  PRESIDENT

1.This is a complaint purportedly filed under Section 35(1) of Consumer Protection Act, 2019.  Facts enumerated are briefly discussed hereunder :

Complainant claims that he is an agricultural labourer and that he availed a loan from the opposite party bank, which fell in arrears due to repeated calamities since the last 2 years.  When the opposite party proceeded to recover loan arrears, despite moratorium declared by Government, he had filed CC No.57/2020 before this Commission and had obtained an interim stay against the recovery.  Subsequently he had cleared the outstanding loan amount along with interest and incidental charges and an additional amount  of Rs.8,925/- towards legal charges payable to counsel of opposite party and had sought for stoppage of recovery proceedings. Since no counsel had appeared for opposite party, he had also requested for reimbursement of legal charges which were unduly collected from him.  At that time, opposite party directed him to withdraw CC No.57/2020. Accordingly, complainant had withdrawn the case and had again approached the opposite party.  However, money collected as legal charges from him  was not returned.  Complainant submits that this is ‘an injustice and an unjust practice’.  He prays for realization of Rs.8,925/-  recovered from him by the opposite party and compensation of Rs.10,000/- for the sufferings undergone by him.

2.Opposite party had appeared and filed a written version disputing the claim.  It’s contentions are briefly narrated hereunder :

According to the opposite party, petition is not maintainable.  It does not disclose a cause of action.  Earlier case was filed raising frivolous  contentions, only for buying more time to clear  outstanding loan amount.  Complainant was legally bound to pay  loan arrears with interest and incidental charges for processing the loan and also legal expenses incurred  in defending CC No.57/2020 filed by  petitioner against the bank.  It is not for the complainant to decide (cont.....3)

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whether any legal fee should be paid by the bank to its counsel or not.  Complainant is not entitled for realizing any amount from the bank or any compensation as such.  Petition is to be dismissed with costs. 

3.Able counsel appearing for opposite party insisted for preliminary hearing on the point of maintainability raised in the written version and accordingly it was decided to hear the question  of  maintainability as a preliminary one   Both sides were heard.  

4.Now the points which raised for consideration are :   

1.  Whether petition is maintainable ?  

2.  Order to be passed?

Findings on Point No.1:

5.Able counsel for the petitioner would contend that present counsel who is appearing for the opposite party has not  filed any vakalath in the earlier case.  Proceedings of that case would reveal that he has not made a representation on a single posting in the said case.  That being so,  bank was not liable to pay any fees or legal charges to the counsel.  Hence it was not entitled to recover any legal charges payable to the counsel of the opposite party from the complainant either.  An oral assurance was given by the officers of the bank at the time of closure of earlier loan that if the petitioner brings copy of order pertaining to closure of earlier case, legal charges realized from him, which are payable to their counsel, would be reimbursed to him.  Acting upon the assurance, petitioner  had unilaterally withdrawn the complaint after clearing the loan dues and approached the bank for reimbursement of legal charges unauthorisedly  recovered from him.  However, contrary to assurances made, legal charges were not reimbursed. Thus there is deficiency in service and therefore present complaint is maintainable.   Learned counsel further contended that his party wants to produce copies of proceedings in earlier case to prove that no counsel had entered appearance on behalf of opposite party in earlier case.  Therefore, case should be  posted for evidence.

(cont.....4)

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6.Per Contra learned counsel for opposite party submitted that petitioner has no say in the matter of  payment of legal fee due to him from the opposite party in this case or in the earlier case. He is not the person to decide these matters. Non filing of vakalath or authority for appearance will not ipso facto  bar/disentitle claim of legal charges by the counsel of opposite party from the bank and neither could bank refuse to pay legal charges for the service including legal opinion rendered by the counsel.  That apart petitioner has no locus standi to say whether any legal fee can be claimed by the counsel of opposite party from the said party. Counsel further submitted that there is nothing to show that any assurance  was given by the officers of opposite party to return any amount already paid as due by the complainant to the bank towards outstanding loan amount.  Contentions raised that an oral assurance was given are totally false and as per rules no bank officials can make any oral commitment on behalf of bank in it’s transactions with its customers.  Present case is nothing but an offshoot of professional jealousy as ordinarily no customer of the bank would go to the  extension of  finding out as to whether any appearance or vakalath was made/filed on behalf of the opposite party by its counsel in a proceedings initiated by him.  Petition is a frivolous one  and is to be dismissed.

7.Thus these are the rival contentions.  It is an admitted fact that CC No.57/2020 was filed by the present complainant against opposite party herein alleging service deficiency in connection with a loan advanced to him by opposite party.  It is also admitted that during the pendency of that case, entire  amounts due from the petitioner was paid by him thereafter he had withdrawn the earlier case also.  Document No.1 produced is a receipt issued from the opposite party to the petitioner for payment of Rs.2,95,183/- in discharge of outstanding loan dues from him.  Document No.2 is certified copy of an order passed by this Forum (as it was then) closing the complaint as settled.  No reservation with regard to return of any legal or other charges are mentioned in this order.  Document No.3 is a pass book pertaining to the loan amount.  Able counsel for the petitioner has no case that  any reservations regarding  return of  legal fees  is mentioned in the memo filed  seeking withdrawal of earlier case either.   As rightly contended by the learned counsel for opposite party, petitioner cannot contend that opposite party was not supposed to pay any legal charges to their standing counsel in connection with earlier case for the reason  that no appearance was put in by him in that case. (cont…..5)

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It may be that legal advice was given to the opposite party by its counsel in the earlier case.  At  any rate payment of legal charges for the previous case by the opposite party to its counsel is a matter between them which cannot be challenged or questioned by the petitioner herein.  As far as claim of oral assurance given are concerned, even the name of bank official who had given such assurance is not mentioned in the complaint.  Ordinarily there is no possibility of petitioner paying entire loan amount including incidental charges and interest as claimed by the opposite party from him in full, if he has any claim for adjustment or reimbursement of a portion.   To sustain a complaint under the Act, complainant should not only allege, but also make out a case with regard to deficiency in service or goods.  This is  made clear by the Hon’ble Supreme Court in the decision rendered in Secretary, Bhubaneswar Development Authority Vs. Susanthkumar Mishra (2009(4) SCC 684).  In the present case, no such case has been made out by the petitioner.   Therefore, I found that the complaint is not maintainable as it does not pertain to  any unfair or restrictive trade practice by a trader, or defects in the goods sold or regarding any deficiency in service rendered.  To put it shortly, the complaint does not fit in the definition of a complaint as given under Section 2(6) of the Act.  Therefore it is not maintainable. Point No.1 is answered accordingly.

Point No.2.

8.In the result, this  complaint is rejected.

            Pronounced by this Commission on this the 12th day of August, 2021

         Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

Sd/-

       SMT. ASAMOL.  P., MEMBER

Forwarded by Order, Sd/-

                 SRI. AMPADY  K.S., MEMBER          SENIOR SUPERINTENDENT