IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

               Monday  the 14^th day of  February, 2022.

                              Filed on: 13.02.2020

Present

                    1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )

                     2. Smt.P.R Sholy, B.A.L, LLB (Member)In

                                       CC/No.42/2020

Between

Complainant:-                                                            Opposite parties:-

 Thilakan, S/o Madhavan,                                       1. Gandhi Smaraka Seva Kendram,

  717,(10/816),Attiveliyil,                                        SL Puram,Alappuzha 

  Mararikulam Tmhekku Panchayath,                       rep by President.                

  Pathirappally Village,.                                                    (Adv. Sreelekshmi.S)

  Ambalappuzha taluk,                                         2.  The District Collector,

  Alappuzha.                                                               O/o the District Collector, 

                                                                                    Alappuzha.

(Rep.by Adv.Sri.R.Rinosh)                                            (Exparte)                                                         

                                                                               3. Tahsildar, (RR),

                                                                       Ambalappuzha Taluk,

                                                                                   Alappuzha.

                                                                                4. The Village Officer,                       

                                                                                     Pathirappally Village Office,

                       Alappuzha.

O R D E R

SRI. S.SANTHOSH KUMAR (PRESIDENT)

Complaint filed under Sec.12 of the Consumer Protection Act, 1986.

1.       Material averments briefly discussed are as follows: -

Complainant is doing business of dairy farm.  During 2008 he had some monitory transaction with the 1^st opposite party and it was cleared during 2019.  On 4.12.2019 complainant received a letter from the 2^nd opposite party the District Collector, Alappuzha calling upon to pay an amount of Rs.4,22,150/- as per RRC No.2018/797/2004.

2.       There is no debtor-creditor relationship between complainant and 1^st opposite party. Further it is noticed that the alleged claim under the impugned  RR is barred by limitation.  The acts of the 1^st opposite party is capricious, illegal and tainted with malpractice.  There is unfair trade practice in the matter of issuance of requisition against the complainant by the 1^st opposite party.  Though complainant appraised the real facts to the 1st opposite party and requested to withdraw the requisition it was not done.  It is learned that officials of 1^st opposite party are influencing the 4^th opposite party village officer to achieve their illegal and malafide action.  Hence the complaint is filed for giving a direction to drop further proceedings pursuing the notice dated 4-12-19 and seeking compensation of Rs.25,000/- for mental agony and suffering.

3.       1^st opposite party field a version mainly contenting as follows:-

1^st opposite party M/s Gandhi Smaraka grama seva kendram is a non-governmental organization registered under Travancore, Cochin Charitable Societies Registration Act and working for the up lift of the down trodden sector of the community.  As a part of the poverty alleviation and women empowerment scheme introduced by the Government of India micro finance service system was encouraged by the NABARD, and the 1^st opposite party was selected as the nodal agency to organize self help group in Alappuzha District.  A large amount was lent to the 1^st opposite party by the nationalized and scheduled banks for being distributed among the SH groups.  Entire amounts lent to the SH groups were repaid promptly within the time schedule prescribed by the bank.  Unfortunately some of the groups were reluctant to repay the loan amount and as a result 1^st opposite party became a debtor to the banks and the bank authorities began to take action.  At this juncture the Government of Kerala authorized 1^st opposite party to initiate Revenue Recovery proceedings against the willful defaulters.

4.       The complainant herein is a member of joint liability group “mari dairy Ksheera Karshaka Kootayma” with 7 members who had availed a loan of Rs.15 lakhs and defaulted repayment.The averment in the complaint that monitory transaction of the complainant was closed in the year 2009 is false.   On the basis of application filed by the complainant and certain others a loan of Rs.15 lakhs was granted.  The members of the JLG defaulted repayment after receiving the loan amount and the arrears with interest due to the bank was calculated to be Rs.31,65,050/- as on 31-03-15.  The above amount was equally apportioned among members and the individual share of liability came to Rs.4,52,150/-.  Out of the above amount the complaint had repaid the total amount of Rs.30,000/- only so far leaving a balance of Rs.4,22,150/-.  RR steps were initiated to realise the above amount from the complainant. 

5.       The amount of loan was availed on the basis of agreement executed by the 7 members of the group and all of them are jointly and severally liable to repay the amount.  In spite of several opportunities including one time settlement the amount was not repaid.  On 07-06-11 complainant had agreed to remit hisshare of arrears in one installment provided the interest portion is waived.  He was also allowed to remit the amount @ Rs.10,000/- per month. But he willfully evaded from clearing the arrears.  The complaint is filed with malafide intention to evade from the payment.  The other 6 members of the group approached the District Collector Alappuzha with similar argument.  However after hearing both sides the District Collector was convinced and on a mutual agreement it was decided to settle the matter by waving a portion of interest and accordingly they have started repayment.  Steps initiated against the complainant to recover the amount of Rs.4,22,150/- with future interest from 1-4-15 is on the basis of valid documents.  Hence the complaint may be dismissed with cost.

6.       On the above pleadings following points were raised for consideration:-

1. Whether the amount claimed in the RR proceedings is barred by limitation ?
2. Whether there is any deficiency of service and unfair trade practice from the part of opposite parties as alleged?
3. Whether the complainant is entitled to realize an amount of Rs.25,000/- as compensation ?
4. Reliefs and cost?

7.       Evidence in this case consists of the oral evidence of PW1 and Exts.A1 from the side of the complainant and the oral evidence of RW1 to RW3 and Ext.B1 & B2series  from the side of opposite parties. 

8.       Point No.1 to 3:-

          PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext. A1.  During cross examination Ext.B1 and B2 series were marked.

9.       RW1 is the president of the 1^st opposite party.  PW1 is a member of the group known as Mari Ksheera Sangam of 1^st opposite party.  PW1 had availed loan.

10.     RW2 is the general secretary of 1^st opposite party.  She is familiar with PW1 from 2014 onwards.  PW1 was a member of mari dairy kootayma and had availed the loan from the 1^st opposite party.  The loan was availed from the bank and it was not repaid.

11.     RW3 was the secretary of mari diary society. They had availed loan from the 1^st opposite party.  There were several members in the society and the loan was distributed equally.  It was not repaid and he has to pay an amount of Rs.1 lakh more.

12.     PW1, the complainant has filed this complaint to drop further proceedings pursuant to the notice dated 4-12-19and claiming an amount of Rs.25,000/- as compensation.  The case advanced by PW1 is that he had some monitory transaction with the 1^st opposite party during the year 2008 and the entire debt was cleared during the year 2009.  He received a letter dated 4-12-19 from the 2^nd opposite party District Collector, Alappuzha to pay an amount of Rs.4,22,150/- along with interest.  Since there is no debtor-creditor relationship between the complainant and opposite parties he is not liable to pay the amount.  Further the alleged claim if any is barred by limitation.  Hence he has filed this complaint to set aside the notice.  1^st opposite party filed a version contenting that complainant was a member of a group of dairy farmers by name mari dairy ksheera karshaka kootayma.  The said group availed a loan of Rs.15,00,000/- from the 1^st opposite party and defaulted payment.  As on 31-3-15 a total amount of Rs.31,65,050/- was due to them and the individual share of each members was calculated as Rs.4,52,150/-.  Out of the same complainant had paid an amount of Rs.30,000/- leaving a balance of Rs.4,22,150/-.  Steps were initiated under RR Act to realise the amount and when notice was issued the complaint is filed.  Complainant got examined as PW1 and Ext.A1 was marked.  RW1 to RW3 were examined from the side of1^stopposite party and Ext.B1 and B2 series were marked.

13.     According to PW1 he had some monitory transaction during 2008 with the 1^st opposite party and it was cleared during 2009.  He received Ext.A1 notice dated 24-01-18 which is a requisition for recovery of amount addressed to the District Collector, Alappuzha and on the basis of the same recovery proceedings were initiated against him by opposite parties 2 to 4.  According to him he had cleared the debt during 2009 and even if any amount is due it is barred by limitation.  Per contra it was contented by the 1^st opposite party that PW1 was a member of a group who had availed a loan of Rs.15,00,000/- from them during 2008.  There was no regular repayment and on 31-3-15 Rs.31,65,050/- was due.  The share of PW1 was calculated as Rs.4,52,150/- and out of the same PW1 had paid an amount of Rs.30,000/- and the balance to be recovered is Rs.4,22,150/- for which revenue recovery steps were initiated.  RW1 is the president of 1^st opposite party.  He admitted that the loan was granted during 2008 and the last date of repayment was 2012.  Though records are available with them none of the documents are produced to prove the transaction between PW1 and them.  RW2 is the secretary of 1^st opposite party. She stated that the loan was disbursed during 2008 as 3 installments and the repayment period ended during 2012.  According to her during 2012, 2015 and 2017 there was a written acknowledgment that if they make deductions in the interest the party will repay the amount.  However for the best reason known to them the said acknowledgment is not seen produced.  RW3 was the secretary of the society.  According to him he had to pay Rs.1 lakh balance. The loan was availed during 2008 and he is not aware whether it is hit by limitation.

14.     Admittedly the loan was availed during 2008 and it was to be repaid before 2012.  1^st opposite party is relying upon Ext.B2 loan recovery register to prove that there is an acknowledgment of debt so as to exclude the limitation.  Ext.B2 (a) is the relevant page of meeting dated 11-3-16.  In Ext.B2 (a) there is an admission by the parties including PW1 that they are ready to repay the amount if some discount is made in the interest.  but it is noticed that the year 2015 is corrected to 2016.  There is over writing in the year.  Further it will be more clear since the notice for the meeting was given on 1-3-15.  For the meeting to be held on 11-3-16, it is unlikely that the notice will be given on 1-3-15.  So it is pellucid that the meeting was held on 11-3-15 and not on 11-3-16.   Ext.B1 is the notice dated 20-12-17 issued to PW1 to appear before an Adalath on 31-10-17.  It is not relevant in this case since 1^st opposite party has no case that PW1 attended the Adalat and made any acknowledgment.  Ext.A1 is dated 24-1-18 which is a requisition letter issued by RW2 to the District Collector.  According to learned counsel appearing for the 1^st opposite party since there is an acknowledgement of debt as per Ext.B2 (a) they can realize the same.  But as stated earlier the year in Ext.B2 (a) is seen corrected from2015 to 2016.  No order can be passed on the basis of such a forged document.  It is true that during cross examination PW1 admitted that he signed the document on 11-3-2016.  But it is crystal clear that there is over writing in the year (2015 is corrected to 2016).  This will be more clear since the notice was issued on 1-3-15 for the meeting which is described in the body of the minutes.Though RW1 and RW2 stated that records are available regarding the acknowledgment and payment of loan no document is seen produced to substantiate their claim.  We are of the view that no order can be passed on the basis of Ext.B2(a) forged document.  According to PW1 the entire debts were cleared during 2009.  Admittedly the loan was availed during 2008 and it was to be repaid by 2012.  Account statement of PW1 is not produced by the 1^st opposite party though it is available with them.  The learned counsel appearing for the complainant relied upon a ruling of the

“Hon’ble Supreme Court in State of Kerala Vs. V.R. Kalliyanikutty (1999 (2) KLT 146 (SC)- it was held The Kerala Revenue Recovery Act does not create any new right.  It merely provides a process for speedy recovery of moneys due.  Since this Act does not create any new right, the person claiming recovery cannot claim recovery of amounts which are not legally recoverable nor can a defence of limitation available to a debtor in a suit or other legal proceeding be taken away under the provisions of the Kerala Revenue Recovery Act.  The provisions in the present case are statutory provisions for coercive recovery of amount due.  Therefore, all claims which are legally recoverable and are not time-barred on that date can be recovered under the Kerala Revenue Recovery Act.  Under Section 71 of the Kerala Revenue Recovery Actclaims which are time-barred on the date when a requisition is issued under section 69(2) of the said Act are not amounts due under Section 71 and cannot be recovered under the said Act.”

15.     So from the evidence on record it appears that there is no proper acknowledgment of debt as claimed by RW1.  In such circumstances we have no hesitation to hold that the claim of 1^st opposite party is barred by limitation and so it cannot be recovered.  Hence PW1 is entitled to get an order to set aside the notice.  PW1 is claiming an amount of Rs.25,000/- as compensation for mental agony and sufferings.  The fact that PW1 had availed the loan from the 1^st opposite party for dairy farming is not in dispute.  According to RW1 Rs.4,22,150/- is due from PW1 though it is denied by him.  As a matter of fact even if the loan is time barred, only the remedy is barred and  the right will remain.  Though according to RW1 documents are available regarding acknowledgment of debt they failed to produce them and Ext.B2 (a) is a forged document.  Hence we had to take a decision in favour of complainant.  In such circumstances there is no question of awarding compensation on account of mental agony.  These points are found in favour of the complainant.

16.     Point No.4:-

In the result complaint is allowed.

1.  Revenue Recovery notice dated 04-12-2019 issued to PW1 is set aside and opposite parties are directed to drop further proceedings pursuant to the said notice.
2.  Parties are directed to bear their respective cost.

The order shall be complied within one month from the date of receipt of the copy of this order.

Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 14^th day of February, 2022.

Sd/-Sri.S.Santhosh Kumar (President)

Sd/-Smt.P.R. Sholy (Member)

Appendix:-Evidence of the complainant:-

PW1                    -   A.M.Thilakan (Complainant)

Ext.A1                -   Form -24- Requisition for recovery of amount.

Evidence of the opposite parties:-           

 RW1                      -  Ravi Palathunkal, President, Gandhi Smaraka Seva Kendram

 RW2                      -  Rema Ravindra Menon, General Secretary,    - do -

 RW3                     -  C.N.Narayana Pillai, Former Secretary, Mari Dairy Milk Society.

Ext.B1                   -   Notice from Grandhi Smaraka Seva Kendram.

Ext.B2 series         -    Register- (kept in Court Almirah)        

                                                ///True Copy ///

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                 Assistant Registrar

Typed by:- Br/-

Comp.by: