KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION  VAZHUTHACADU  THIRUVANANTHAPURAM

                                  APPEAL  NO:645/2009

      JUDGMENT DATED:27-10-2010

  PRESENT

SMT. VALSALA SARANGADHARAN              : MEMBER

SHRI. S. CHANDRAMOHAN NAIR                  : MEMBER

Theyyamma George,

Proprietor,

Thoppil Hollow Bricks,                                                     : APPELLANT

Thoppil house,

Kaliyar.P.O, Vannappuram.

(By Adv.Sri.Lakshmanan)

            Vs.

1.         The Manager,

Kerala Financial Corporation.

District Office,

Pulimoottil Shopping Arcade,

Thodupuzha.

                                                                                    : RESPONDENTS

2.         The Managing Director,

Kerala Financial Corporation,

Head Office, Vellayambalam,

Thiruvananthapuram-685 033.

                                                JUDGMENT

SHRI.S. CHANDRAMOHAN NAIR:MEMBER

The order dated:30/10/2009 in CC.50/09  of CDRF, Idukki is being assailed in this appeal by the complainant who is aggrieved by the disposal of the Forum below with the observation that as the complainant has already approached the Hon’ble High Court of Kerala, it is not proper for the Forum to decide the case put forth by the complainant.

2. The complainant has approached the Forum stating that she is running a small scale industry in the name and style Thopppil Hollow Bricks and that she had availed a loan from the opposite party/Financial Corporation amounting to Rs.9.5lakhs by mortgaging 50 cents of land comprising survey No.1478/I-A of Karikode village and that at the time of execution of the agreement the rate was 20.5 towards the interest and 2% towards additional interest in case of default.  The complainant’s case is that the Idukki district in which the complainant’s unit is situated had been notified as industrially backward area in Kerala and as per the norms alleged by the IDBI, the opposite parties ought to have collected interest only @ 12.5% for the loan and though the complainant demanded the opposite parties to recalculate the interest at 12.5% per annum, the opposite parties were not ready to do so.  Alleging deficiency of service and unfair trade practice, the complaint was filed praying for direction to the opposite parties to recalculate the loan amount with interest @ 12.5% per annum.

3. The opposite parties in their version admitted the loan transaction but contended that the rate of interest for the first 5.15lakhs was 20.5% and the interest rate for the remaining 4 lakhs was also 20.5% which were reduced from time to time.  Further it was their main contention that the complainant could not be placed as a consumer as per the provisions of the Consumer Protection Act.  It was also submitted that as the Hon’ble High Court had directed the complainant to remit Rs.2.lakhs and to consider the application for one time settlement.  As the said direction was complied with the complainant was restrained from approaching the Forum with new claims and they prayed for the dismissal of the complaint with cost.

4. The evidence consisted of the oral testimony of the complainant as PW1 and Exts.P1 to P6 on her side.  On the side of the opposite parties Exts.R1 to R3 were marked.

5. We heard both sides.

6. The learned counsel for the appellant vehemently argued before us that the Forum was incorrect in disposing the complaint with an observation that the Hon’ble High Court had considered the matter and hence the Forum was not competent or disabled from hearing the matter.  It is also argued that the main case put forth by the complainant before the Forum was regarding the deficiency of service and unfair trade practice committed by the opposite parties in considering the claim of the complainant that the interest rate can only be 12.5% as the area in which the complainant’s unit is situated is within the Idukki District which had been declared as industrially backward district in Kerala State.  The learned counsel for the appellant submitted before us that the matter is to be remanded to the Forum below for fresh disposal considering the contentions and evidence adduced by the complainant.

7. On the other hand, the officer who represented the respondents/opposite parties submitted before us that the claim of the complainant was considered by them and that as she had approached the Hon’ble High Court and obtained an order, the said order was complied with by the opposite parties/respondents.  It is also submitted by him that the opposite parties were ready and willing to waive 50% of the penal interest which would come to more than a lakh if the loan was closed on or before 10/3/2008 and it was the complainant who did not come forward to accept the said offer.  He has also submitted before us that the appeal is also liable to be dismissed with compensatory cost.

8. On hearing the learned counsel for the appellant and also the representative of the respondents, we find that it is the admitted case of both the parties that the complainant had availed a loan of Rs.9.5lakhs from the opposite parties for running the small scale industrial unit named as Thoppil Hollow Bricks and that the agreed rate of interest was 20.5% and additional 2% towards the penal interest in case of default of the payment of instalments.  The appellant’s case is regarding the interest rate which according to her is 12.5% as per the norms laid down by the IDBI for small scale units in the backward areas.  We find that as per a document dated:22/1/2010 issued by the Idukki District Industrial Centre it is noted that Idukki and Wayanadu are declared as industrially backward areas and that the same situation is still continuing.  It is also found that the complainant’s case is with regard to the rate of interest collected by the opposite parties.  We find force in the argument of the learned counsel for the appellant that when there is a stipulation that the opposite parties are entitled to collect only at the rate of 12.5%, the Forum below ought to have considered the said aspect and ought to have passed an order on merits.  It is also seen that the Forum below had taken evidence and marked documents from both sides.  In such a situation it is our impeccable impression that the Forum below had gone wrong in disposing the matter with the observation that the Hon’ble High Court had considered the matter and had passed orders.  It is also seen that the petition filed by the complainant before the Hon’ble High Court had been withdrawn and the earlier petition was only to include the complainant in the O.T.S scheme and for that the Hon’ble High Court had directed the complainant to remit Rs.2.lakhs and the complainant had complied with the said direction.  It is only just and proper that the Forum below pass an order on merits considering all the aspects of the case and also considering the rival contentions of both the complainant and the opposite parties.  For the above purpose we feel that the matter is to be remitted back to the Forum below for fresh disposal.

In the result the appeal is allowed.  The order dated:30/10/2009 in CC.50/09 of CDRF, Idukki is set aside.  The Forum is directed to dispose of the matter on merits.  The parties are directed to appear before the Forum on 29/11/2010.

Office is directed to send back the case records to the Forum below along with the copy of this order.

S. CHANDRAMOHAN NAIR : MEMBER

VALSALA SARANGADHARAN: MEMBER

VL.