KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.376/07 JUDGMENT DATED.30/7/2009 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER K.M.Thomas, S/0 late Mathew, Koodathinal House, Thenidukku, Vadakkancherry Post, -- APPELLANT Palakkad District. (By Adv.Viju K.Raphel) Vs. 1. KeralaState Housing Board Thiruvananthapuram Rep. by Managing Director. 2. The Asst.Secretary, -- RESPONDENTS KeralaState Housing Board, Sunshine Complex, T.B.Road, Palakkad. 3. The Executive Engineer, KeralaState Housing Board, Sunshine Complex, T.B.Road, Palakkad. (By Adv.Saji.S.L) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The appellant herein is the complainant in CCNo.54/06 on the file of CDRF, Palakkad. The respondents herein are the opposite parties in the said CC.No.54/06. The aforesaid consumer complaint was filed for getting the documents released from the possession of the opposite parties and also for compensation of Rs.50,000/- for the deficiency in service on the part of the opposite parties. The opposite parties resisted the complaint by filing written version. They contended that the complainant failed to discharge the entire outstanding balance loan amount due to the opposite party/Kerala State Housing board and so the complainant is not entitled to get back the title deeds which were deposited with opposite party/Kerala State Housing Board at the time of availing the housing loan of Rs.1 lakh. They also denied the alleged deficiency of service on their part. Thus, the opposite parties prayed for dismissal of the complaint. 2. Before the Forum below, both parties filed proof affidavits and produced and marked documents as Exts.A1 to A8 and B1 to B4. On an appreciation of the evidence on record, the Forum below accepted the case of the opposite parties to some extent and thereby passed the impugned order dated 16th July 07 by dismissing the complaint in CC.No.54/06. Hence the present appeal by the complainant. 3. This State Commission heard the arguments advanced by both parties. The learned counsel for the appellant/complainant much relied on Ext.A1 receipt dated 18.3.99 issued by the opposite party and argued for the position that by making payment of Rs.45,000/- by way of one time settlement, the loan transaction was closed and that the opposite parties were bound to release the documents which were pledged with the opposite party/Kerala state Housing Board. He also much argued for the position based on the grounds urged in the memorandum of the present appeal. Thus, the appellant/complainant requested to set aside the impugned order passed by the forum below and to allow the complaint in CC.No.54/06 on the file of CDRF, Palakkad. On the other hand, the learned counsel for the opposite parties supported the impugned order passed by the forum below. He relied on B4 statement of accounts maintained by KeralaState housing board in the name of the appellant/complainant and argued for the position that the loan account was not closed and balance is outstanding. He also relied on the terms and conditions incorporated in B1 mortgage deed and requested for dismissal of the present appeal. 4. The points that arise for consideration are:- 1. Whether the appellant/complainant has succeeded in establishing the alleged deficiency in service on the part of the opposite parties in not releasing the title deeds, which were pledged with the Kerala State Housing Board at the time of availing the loan by executing B1 mortgage deed? 2. Whether the appellant/complainant was entitled to get back the title deeds with respect to his property on payment of Rs.45,000/- covered by A1 receipt dated 18.3.99? 3. Whether the case of the appellant/complainant that there was an offer from the opposite party/Kerala State Housing Board for one time settlement of the claim by making payment of Rs.45,000/-can be up-held? 4. Whether the Forum below can be justified in holding that there was no deficiency in service on the part of the opposite parties in retaining the title deeds with respect to the property of the complainant? 5. Is there any sustainable ground to interfere with the impugned order dated 16.7.07 passed by CDRF, Palakkad in CC No.54/06? 5. POINTS 1 TO 5:- The execution of the original of B1 mortgage deed by the complainant/appellant in favour of the first opposite party/Kerala State Housing Board is not in dispute. It is an admitted fact that the complainant availed a loan of Rs.1 lakh from the opposite party/Kerala State Housing Board by mortgaging his property and thereby the complainant agreed to repay the loan amount of Rs.1 lakh with interest thereon by way of monthly instalments. There is also stipulation to pay penal interest in the event of default in paying the monthly instalments. The definite case of the complainant is that he paid a total of Rs.1,64,800/- towards the loan transaction. According to the opposite parties the complainant has remitted a total of Rs.1,14,800/- as on 18.3.99 and the balance of the principal amount as on 18.3.99 was Rs.49,433/-. The aforesaid calculation was made by taking into consideration the payment of Rs.45,000/- on 18.3.99 covered by A1 receipt. The B4 statement of accounts would support the said contention of the opposite parties that the principal amount outstanding as balance on 18.3.99 was Rs.49,433/-. As per B4 statement of accounts the total instalments paid by the complainant would come to 48 instalments and that Rs.50,567.71 paid towards the principal amount and a sum of Rs.64,152.09 towards the interest. The B4 statement of accounts is up to 10.11.02. The receipts produced from the side of the complainant would not support his case that he paid a total of Rs.1,64,800/-. No evidence has been adduced from the side of the complainant to discredit the entries in B4 statement of accounts. As per B4 statement of accounts the total amount to be paid by the complainant for closing the loan account is Rs.1,41,450.83. There can be no doubt about the fact that a sum of Rs.49,432.29 (for Rs.49,433/-) is due from the complainant towards the principal amount. If that be so, the opposite party/Kerala State Housing board is justified in retaining the title deeds which were plugged by the complainant at the time of availing the housing loan. 6. The B4 statement of accounts would show that a sum of Rs.9693/- is calculated by way of penal interest due and a sum of Rs.64,945/- is calculated towards default interest due and a further sum of Rs.17,288.80 is calculated by way of interest due. It is to be noted that the outstanding principal amount due from the complainant to the opposite party/Kerala State Housing board as on 18.3.99 was only Rs.49,432.29. The complainant is only liable to pay interest on the said principal amount from 18.3.99. A perusal of A1 receipt issued by the opposite party/Kerala State Housing Board would show that a sum of Rs.45,000/- was paid by the complainant for closing the loan account. The opposite parties admit issuance of A1 receipt dated 18.3.99. As per A1 receipt, the complainant paid a total of Rs.45,000/- towards the loan closing. The issuance of A1 receipt on 18.3.99 would make it clear that the opposite party/Kerala State Housing Board received the said sum of Rs.45,000/- on 18.3.99 towards the loan closing. This would give an indication that the said payment was received towards loan closing. So, it is not fair on the part of the opposite party/Kerala State Housing board in claiming penal interest or penalty interest from 18.3.99 onwards. There can be no doubt that the opposite party/Kerala State Housing Board is entitled to get the interest on the said principal balance amount of Rs.49,432.29. By issuing A1 receipt for Rs.45,000/- towards the loan closing the other terms and conditions incorporated in B1 mortgage deed have been given a goby. So, on 18.3.99 there was a loan closing transaction and thereby the principal amount outstanding has been calculated as 49,432.29. Thereafter, the opposite party is only entitled to get interest on the said principal amount of Rs.49,432.29. So, the claim of the opposite parties for a total of Rs.1,41,450.83 cannot be accepted. The complainant is liable to pay the outstanding principal amount of Rs.49,432.29 with interest thereon till the date of payment of the principal amount of Rs.49,432.29. 7. The complainant has got a case that he paid Rs.45,000/- on 18.3.99 by accepting the offer made by the opposite party/Kerala State Housing Board by way of one time settlement. But, there is nothing on record to show that there was such an offer for one time settlement of the loan transaction by making payment of Rs.45,000/-. The case of the complainant that he paid Rs.45,000/- on 18.3.99 by way of full and final settlement of the loan transaction cannot be believed or accepted. The A1 receipt dated 18.3.99 issued by the opposite party/Kerala State Housing Board for receiving Rs.45,000/- would not give any indication that by accepting the said amount of Rs.45,000/- the loan transaction was closed or that the said amount was received by way of full and final settlement of the loan transaction. The A1 receipt would only show that the said amount of Rs.45,000/- was received towards the loan closing. The aforesaid wording “loan closing” would only indicate that the said sum of Rs.45,000/- was received towards the closing of the loan. It would give another indication that some more amounts are due for the final closure of the loan transaction. So, the case of the complainant that by making payment of Rs.45,000/- the entire loan transaction was closed on 18.3.99 cannot be believed or accepted. The Forum below has rightly rejected the case of the complainant that the entire loan outstanding was cleared or discharged by making payment of Rs.45,000/- on 18.3.99. The forum below is justified in dismissing the complaint seeking the relief to get the title deeds released and also for compensation on the ground of deficiency in service. The opposite party/Kerala State Housing Board could not be held as deficient in service because of the fact that there was principal amount of Rs.49,432.29 due from the complainant as on 18.3.99, after adjusting the sum of Rs.45,000/-remitted on 18.3.99. So, the opposite party/Kerala State Housing Board is justified in retaining the title deeds. 8. The forgoing discussions and the findings therein would make it clear that the Forum below has rightly rejected the case of the complainant that he remitted Rs.45,000/- as one time settlement and that the loan transaction was closed on 18.3.99 by accepting Rs.45,000/- by the opposite party/Kerala State Housing Board. The Forum below is also justified in holding that there was no deficiency in service on the part of the opposite parties in not releasing the title deeds which were pledged by the complainant at the time of availing the housing loan, as the principal amount of Rs.49,432.29 was due from the complainant as on 18.3.99. Thus, in all respects, the order passed by the forum below is to be upheld. The present appeal is liable to be dismissed. These points are answered accordingly. In the result, the above appeal is dismissed. The impugned order dated 16.7.07 passed by CDRF, Palakkad in CC.54/06 is confirmed. There will be no order as to costs. M.V.VISWANATHAN -- JUDICIAL MEMBER S.CHANDRAMOHAN NAIR -- MEMBER
......................SRI.M.V.VISWANATHAN | | 
