Kerala

Idukki

CC/63/2020

Frances mathew - Complainant(s)

Versus

K S F E muttam - Opp.Party(s)

Adv: km Sanu

25 Feb 2022

ORDER

DATE OF FILING : 11.3.2020

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 25^th day of February, 2022

Present :

SRI. C. SURESHKUMAR PRESIDENT

SMT. ASAMOL P. MEMBER

SRI. AMPADY K.S. MEMBER

CC NO.63/2020

Between

Complainant : Francis Mathew,

Thannickal House,

Maryland P.O.,

Kadanadu, Pala.

(By Adv: K.M. Sanu)

And

Opposite Parties : 1. The Manager,

KSFE Muttam Branch,

Muttam P.O.,

Thodupuzha.

(By Adv: N.K. Vinodkumar)

2. The Special Tahsildar (RR),

KSFE, Kottayam,

Kottayam – 686 001.

3. The Village Officer,

Kadanadu Village,

Kadanadu P.O.

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This complaint is filed under Section 12 of the Consumer Protection Act of 1986. Complaint averments are briefly discussed here under :

 

2. Complainant has 50 cents of immovable property situated in Sy. No.387/3-3, 113/2-1 of Kadanadu Village in Pala. 1^st opposite party is Manager of KSFE Muttam (cont….2)

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branch and 2^nd opposite party is Special Tahsildar (RR), KSFE, Kottayam and 3^rd opposite party is Village Officer of Kadanadu Village. Above said property was given as security for withdrawing/getting auction amount in chitty No.16/10-39 of one Thomas A.V., chitty being conducted by 1^st opposite party. Above said Thomas has sufficient property to cover the amount repayable to 1^st opposite party in connection with the auction of chitty. Thomas had another chitty, namely chitty No.16/10-38 of 1^st opposite party. Property mentioned above, owned by complainant was given as security for this chitty also. Thomas had remitted 25 instalments and 16 instalments respectively in both chitties. Thereafter owing to dispute between 1^st opposite party and the said Thomas, chitty instalments were not remitted. Recovery proceedings were initiated by opposite parties for an amount of Rs.5,88,475/-. Upon coming to know about this, complainant had approached opposite parties and informed them that Thomas had sufficient property and income to pay the amount due as per chitties. However, without proceeding against the property of Thomas, opposite parties have initiated recovery proceedings against the property of complainant. According to complainant, his property can be proceeded with only if the principal debtor, Mr. Thomas does not have sufficient property or income to clear the dues. Therefore, complainant submits that attempt to proceed against the property of complainant would amount to deficiency in service and unfair trade practice. Complainant prays for a direction against respondents to the effect that his property can be proceeded against only if the principal debtor is found to be not having sufficient property or income to discharge the debt. He also prays for a compensation of Rs.50,000/- for deficiency in service and litigation cost of Rs.10,000/-.

 

3. Complaint was taken on file. Since opposite parties have not appeared even after service of notice, they were called absent and set exparte. Then, case was posted for complainant’s evidence. Though it was represented that complainant had filed chief affidavit, no such affidavit is seen filed. The only affidavit filed is the one appended to the application for Interim Stay. i.e., I.A.29/2020. Document produced is a demand notice issued before attachment of property in Form 10. We have also heard the learned counsel for the complainant. Now the points which arise for consideration are :

1) Whether there is any deficiency in service on the part of opposite parties ?

2) Whether complainant is entitled for the reliefs prayed for ?

3) Costs ?

 

4. Point Nos.1 and 2 are considered together :

 

Admittedly, complainant is a surety in connection with 2 chitties subscribed by one Thomas, conducted by 1^st opposite party. 2^nd opposite party is Special Tahsildar (cont…..3)

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(RR) and 3^rd opposite party is Village Officer of Kadanadu Village. Both 2^nd and 3^rd opposite parties are formal parties as such involved in connection with the recovery proceedings attempted to be initiated against the property of complainant. 1^st opposite party runs the chitty, being its foreman. Upon a perusal of the complaint and affidavit filed along with I.A., we do not find any relationship resembling one between consumer and a service provider as enumerated in the Act. Though complainant contends that his property can be proceeded against, only if, the principal debtor is found to be not in a position of sufficient property or income, to discharge his dues, he has not produced chitty passbook or had sought process for summoning chitty document. Ordinarily, liability of the surety is joint and several along with that of principal debtor. For these reasons, we find that there is no deficiency in service as alleged and also that complainant is not entitled for the reliefs claimed in this complaint. Point Nos.1 and 2 are answered accordingly.

 

5. Point No.3 :

 

In view of our findings in above Point Nos.1 and 2, we dismiss the complaint, under the circumstances, without costs.

 

Pronounced by this Commission on this the 25^th day of February, 2022

 

 

Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

Sd/-

SMT. ASAMOL P., MEMBER

Sd/-

SRI. AMPADY K.S., MEMBER

 

 

 

Appendix : Nil.

 

Forwarded by Order,

 

 

SENIOR SUPERINTENDENT