Kerala

Idukki

CC/204/2019

Tomy Sebastin - Complainant(s)

Versus

Fdral bank ltd - Opp.Party(s)

26 Jul 2022

ORDER

DATE OF FILING : 21/11/2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 26^th day of July 2022

Present :

SRI.C.SURESHKUMAR PRESIDENT

SMT.ASAMOL P. MEMBER

SRI.AMPADY K.S. MEMBER

CC NO. 204/2019

Between

Complainant : Tomy Sebastian,

Nedunganal,

Thoprankudy P.O.

(By Adv.Sibi Thomas)

And

Opposite Party : The Federal Bank Ltd.,

Represented by its Branch Manager,

Thoprankudy.

(By Adv.Babichen V.George)

 

O R D E R

SRI.AMPADY K.S., MEMBER

This complaint is filed raising the following allegations against opposite party.

 

1 . This complaint is filed alleging deficiency in service on the part of opposite party in not filing application for lifting the attachment ordered by Sub Court, Kattappana IA No.455/2005 in O.S.No. 47/2005 filed before that court even after paying all dues to the opposite party. Complainant's allegations are that he obtained loan from opposite party bank for expansion of agriculture and business and when the loan became overdue, opposite party bank filed OS No.47/2005 before Sub Court, Kattappana and obtained order attaching property of complainant by filing IA.455/2005 in above original suit.

 

 

2 . Complainant repaid full amount with interest, legal fee and court fee and at the time of closure of loan amount as above, opposite party informed the complainant that necessary petition will be filed before the Sub Court for lifting the attachment done. But opposite party has not done so.

(Cont....2)

 

-2-

 

3 . On 10/10/2019, complainant approached UBI, Thopramkudy for availing an agricultural loan. For that he approached SRO, Rajakumari and recently established SRO at Thopramkudy for obtaining EC. But it is known that attachment in above IA still exists in records. He had already paid the dues to the bank as early as 14 years back but opposite party did not take any steps for lifting attachment order. On enquiry it is found that records of the Sub Court are destroyed.

 

4 . Since the attachment order was obtained by opposite party, they alone can file petition for lifting the attachment. Opposite party is bound to do so. Non filing of above petition is deficiency in service on the part of opposite party.

 

Hence he prayed for following reliefs.

a . Direct the opposite party to produce encumbrance free certificate showing lifting of attachment order in I.A.455/2005 in O.S.47/2005 Sub Court, Kattappana.

 

b . Award compensation of one Lakh for the mental pain and inconvenience and difficulty caused to the complainant.

 

c . Allow cost of Rs.10,000/- from the opposite party.

 

Opposite party filed written version as follows .

 

1 . The complaint is not maintainable either in law or on facts.

 

2 . The complainant is not a consumer as defined under the Act. No deficiency can be attributed to the opposite party for the alleged acts.

 

3 . All averments in the complaint, except to the extent specifically admitted hereunder, are denied as false and baseless.

 

 

(Cont....3)

 

-3-

 

4 . It is true that the complainant was a defaulter in the loan advanced by the opposite party, whereupon a suit as O.S.47/05 was filed before the Sub Court, Kattappana. An attachment of the immovable property of the complainant was also obtained. The suit was decreed in favour of the opposite party too. The complainant was in the know of the factum of attachment, as the same was effected through court. The complainant remitted the decree amount on 26/09/2006. However, he did not take any steps to proclaim the withdrawal of attachment or make any attempt to see that the attachment was withdrawn.

 

5 . The allegation that the opposite party should have taken steps for lifting the attachment is incorrect. In fact it is the complainant who ought to have moved the court for lifting the attachment at his own expenses. The complainant did not opt for the same. The complainant could have very well moved the court for lifting the attachment. Nothing prevented him from doing so. He alone can be blamed for the same. The opposite party cannot be penalized for the said fact. As per law, the attachment shall be deemed to be withdrawn on payment of the decree amount into court. In case of immovable property the withdrawal shall be proclaimed at the expenses of the Judgement Debtor/complainant if he so desires.

 

Hence it is humbly prayed that this Honourable Forum may be pleased to dismiss the complaint, with the cost of this opposite party.

 

No documents were produced by either side.

 

On several posting dates, counsels for both sides either seeks time or not present in Commission even though contention is raised with regard to maintainability. On 11/07/2022 also complainant was represented by a another counsel of the Bar. There was no representation for opposite party. Hence the case was taken for orders.

 

We have examined the contentions raised in the complaint and written version. On going through the complaint, the only allegation is with regard to non-filing of petition by opposite party for lifting the attachment order pressed by Sub Court, Kattappana in above mentioned case. There is no law or rule of

(Cont....4)

-4-

procedure that plaintiff should take steps to lift attachment when defendant satisfies his claim in court. Normally, courts at the time of passing final orders, dispose of pending interim application also. If not, it is for the concerned parties to move the court. In the present one there is no contract or agreement between the parties that attachment will be lifted upon motion by opposite party when full amount is paid. Non filing of attachment lifting application by opposite party will not amount to deficiency in service on his part. It will be worthwhile to note that opposite party had to resort to legal proceedings for getting the money due from complainant. Suit has filed in 2005 and it was only after this that complainant had paid the amount due and that too in 2006. Complainant cannot allege deficiency in service in the present matter. Both sides can file petition for lifting the attachment which is not done. Complainant ought to have been more vigilant while closing the above case. The court can also done it while settling the case. Attachment was done by another court through due process of law, which is to be resolved there itself. In these circumstances this Commission cannot grant any relief as prayed for in the complaint.

 

In the above circumstances, we find that complaint is not sustainable. Hence the complaint is dismissed without any order as to costs.

 

Pronounced by this Commission on this the 26^th day of July 2022.

 

Sd/-

SRI.AMPADY K.S., MEMBER

Sd/-

SRI.C.SURESHKUMAR, PRESIDENT

Sd/-

SMT.ASAMOL P., MEMBER

 

APPENDIX

 

Nil

Forwarded by Order

 

 

ASSISTANT REGISTRAR