Kerala

Idukki

CC/178/2021

Dr , Vishnu - Complainant(s)

Versus

KSFE - Opp.Party(s)

Adv.K M Sanu

15 Oct 2022

ORDER

 

DATE OF FILING : 9.12.2021

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  15^th  day of  October, 2022

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                               MEMBER

SRI. AMPADY K.S.                            MEMBER

CC NO.178/2021

Between

Complainant                                            :   Dr. Vishnu S., S/o. Sethu Babu C.S.,

                                                                     Sandhya Nivas,

                                                                     Thekkumbhagam P.O.,

                                                                     Thodupuzha, Idukki.

         (By Adv: K.M. Sanu)

And

Opposite Parties                                       :  1.  The Manager,

                                                                         KSFE Ltd.,

                                                                        Thodupuzha Main Branch,

                                                                        Thodupuzha P.O.,

            Thodupuzha, Idukki.

        2.  The Assistant General Manager,

                                                                         KSFE Ltd.,

                                                                         Regional Office, Kattappana.

 (Both by Adv: N.K. Vinodkumar)

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

1.  This is a complaint filed under Section 35 of the Consumer Protection Act of 2019 (the Act, for short).  Complaint averments are briefly discussed here under :

 

Complainant is an Ayurveda Doctor residing at Thekkumbhagam, Thodupuzha.  1^st opposite party is Manager of Thodupuzha Main Branch of KSFE Ltd. and 2^nd opposite party is the Assistant General Manager of KSFE at Regional Office, Kattappana.  Complainant had, in 2018, subscribed for a chitty conducted by opposite parties bearing No.123/2018.  Duration of the chitty was 120 months.  Chitty instalments were of Rs.15,000/-  per month and total prize amount was Rs.18 lakhs.  While so, complainant got an opportunity to work abroad on a part time basis in United Kingdom,                                                                                                                 (cont....2)

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simultaneously with an opportunity to do his PG as part of higher studies.  Hence he had bid for the chitty successfully in December, 2020.  After deduction of commission, complainant was to get Rs.11,50,000/- as prize money.  As consented by opposite party, complainant had produced all documents regarding to his immovable property having an extent of 38.97 ares, situtated in Survey 98, block 38 of Neyyasseri Village.  Though documents were produced within 20 days, nothing was done by opposite parties for verifying the documents and   thereafter to release the prize amount to complainant.  Eventually, opposite parties had refused to release  prize amount on the premises that property was not of sufficient value and there was no way to the property.  Hence complainant had obtained a valuation certificate from the Thodupuzha Tahsildar to the effect that the property is worth Rs.18,38,583/-.  Certificate was produced on 21.6.2020 before opposite parties.  A No Objection Certificate obtained from Forest Department for use of ‘coop’ road extending to property through forest land was also submitted before opposite parties.  This road was in use by complainant and other people in the locality since much earlier to 1975.  Though sufficient documents were produced by complainant pertaining to right of way and value of property, opposite party had refused to release the prize amount to him.  As per documents property was worth Rs.24,00,000/-.  Actual market value is nearly Rs.80 lakhs.  Denial of prize amount, despite production of sufficient security amounts to deficiency in service and unfair trade practice on the part of opposite parties.  Due to delay in getting the prize money, complainant fears that he may lose the opportunity to study and work abroad.  Complainant therefore prays for a direction against opposite party to accept his property having  extent of 38.97 ares and to release the prize amount of Rs.11.5 lakhs to him.  He also seeks compensation of Rs.7 lakhs for the difficulties and mental agony caused to him owing to deficiency in service of opposite parties along with Rs.15,000/- as litigation costs.

 

2.  Both opposite parties have filed a joint written version.  Their contentions are briefly discussed here under :

 

Opposite parties admit that complainant had subscribed for chitty No.123/2018 which has a gross prize amount of Rs.18 lakhs.  They also admit that he had successfully bid for the chitty in the auction conducted on 14.12.2020. He was entitled for prize money, less Rs.6,50,000/-, for commission and other charges.  However, he had approached opposite parties only on 14.7.2021 with title document of his property having an extent of 38.97 ares.  Those were forwarded for legal scrutiny by opposite parties, on 16.7.2021 itself.  No inordinate delay was caused in scrutinising the documents submitted by complainant.  As per legal report, road in northern boundary of property, known as ‘coop’ road was forest land coming under the Forest Department.  As per KSFE Circular No.53/2020 (1A & V) dated 20.8.2020, clause 10, if the way to                                                                                                                   (cont....3)

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the property is passing through the property of the same person, even then  a registered consent deed is required for accepting the security.  Complainant was informed accordingly.  Believing that, complainant would rectify the defects, documents were forwarded to valuer of opposite party for further inspection.  Upon physical inspection, more irregularities have surfaced.  Valuation certificate of Tahsildar reveals only  fair price of the property.  Upon inspection along with other documents, it was revealed that the property was not sufficient security for the chitty.  Future liability as per the chitty will be Rs.14,40,000/-.  As per procedure, property worth twice the future liability is to be offered as security.  Complainant was well aware of this fact.  It is incorrect to say that, NOC from Forest Department was produced along with other documents.  In fact, NOC was produced only on 18.11.2021.  Before that, complainant had taken back all the documents on 15.9.2021 itself, as he was convinced that documents were not sufficient for security purposes.  Opposite parties do not have any enmity towards complainant.  No such allegations are raised by complainant.  They can function only in accordance with relevant rules pertaining to conduct of chitty and release of prize mount after accepting security.  It is incorrect to say that the property was worth Rs.80 lakhs.  Location sketch produced by complainant is vague.  The sketch does not reveal survey measurements of the property.  Actually, the way to the property offered as security passes through adjacent property having an extent of 11.85 ares owned by complainant.  A vague location certificate was produced to suppress this fact.  True facts being so, allegations that there was refusal by opposite party to release prize amount, though sufficient security was offered are baseless.  There was no deficiency in service or unfair trade practice from the side of opposite parties.  Complaint is to be dismissed with cost.

 

3.  After filing of written version, case was posted for steps and then for evidence.  On the side of complainant, he himself was examined as PW1.  Initially, Exts.P1 to P6 were marked.  Subsequently, complainant had produced location sketch of the property which was marked without formal proof as Ext.P7.  On the side of opposite parties, 1^st opposite party was examined as RW1 and Exts.R1 and R2 were marked.   Legal opinion pertaining to the property offered as security by the complainant was subsequently produced and marked as Ext.R2 without formal proof.  Thereafter evidence was closed and both sides were heard.  Now the points which arise for consideration are :

1) Whether complainant offered sufficient security for release of prize amount to him ?

2)  Whether there was refusal on the part of opposite parties to release prize amount of chitty to complainant, despite sufficient security being offered by complainant ?

3)  Whether there is any deficiency in service or unfair practices of trade from the side of opposite parties ?

4)  Reliefs and costs ?

 

 

                                                                                                              (cont....4)

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4.  Point Nos.1 to 3 are considered together :

 

          Able counsel appearing for complainant would contend that opposite parties had raised objections with regard to value of property and lack of way to it.  Complainant had submitted a valuation certificate of the property issued by Tahsildar, certifying that the property was worth Rs.18,38,583/-.  As per chitty conditions, future liability is only of Rs.14,40,000/-.  So also, Ext.P2 consent letter from Forest Department was produced to show that the property has access by a coop road belonging to Forest Department.  Therefore, it was incumbent upon the part of opposite parties, to release the prize amount after accepting property offered as security by complainant.  Non-release of prize amount amounts to deficiency in service and unfair trade practice on the part of opposite parties.  Therefore, reliefs prayed for in the complaint are to be granted. 

 

          Learned counsel appearing for opposite parties would contend that as per clause 10 of Ext.R2 circular, if the way to the property is passing through property of other persons, registered consent letter will be necessary.  Such registered letter will be necessary even if other property is owned by the person offering security.  In this case, there is no such registered consent letter.  Admittedly, access is only through the coop road belonging to Forest Department.  It was for these reasons and also for the reason that property was not of the value as per prescribed rules to be accepted as security for a future liability of Rs.14,40,000/-.  Property worth twice such amount is required for security.  This has not been done, even as per Ext.P1, the property is worth only Rs.18,38,583/-.  Opposite parties were ready to release the prize amount to complainant if sufficient security was furnished by him.  Deficiency of there being no proper way, was intimated to complainant.  Ext.P4 letter issued from the office of 2^nd opposite party is produced by complainant himself.  In the complaint itself, he has admitted that opposite parties had raised objections with regard to valuation and lack of way to the property offered as security.  During his cross examination, PW1 had admitted this, but has claimed that he was prepared to offer gold as additional security, if the opposite party was amenable.  Thus, this was an admission that more security was demanded by opposite parties.  Complainant had not offered to give gold or any other security.  No delay was occasioned by opposite parties in releasing of prize amount.  After receiving back the documents produced, on 15.9.2021, complainant had approached opposite parties with consent letter of Forest Department, only on 18.11.2021.  Complainant had admitted this fact during his cross examination.  He has no case that, he had produced other documents also along with consent letter from Forest Department.  Thus, it could be seen that no delay was occasioned by opposite party in considering release of prize amount to complainant.  In fact, chitty amount was not released due to deficiency in the property offered as security, which was not of requisite value and there was no proper way to it either.  There is no deficiency in service and opposite parties have not resorted to unfair trade practices either.  Hence complaint is to be dismissed.                  (cont....5)

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          Thus, these are the rival contentions.  Admittedly, complainant had successfully bid for a chitty with a total prize amount of Rs.18 lakhs conducted by opposite parties.  It is also admitted that prize amount payable in net will be only Rs.11,50,000/-.  Opposite parties would contend that future liability of complainant towards chitty transaction is Rs.14,40,000/-.  This fact is not disputed by complainant.  In this case, main dispute is with regard to the nature of property offered as security.  According to complainant, it is of the requisite value and there is a way to it also.  On the other hand, opposite parties would contend that there is no proper way and secondly the property is not of the requisite value. 

 

          In so far as objections with regard to lack of proper way is concerned, we are of the view that contention addressed by opposite parties in this regard are not at all meritorious.  In Ext.R3 legal report, lawyer of opposite parties has opined that property having an extent of 38.97 ares can be accepted as security, provided the complainant produces consent from Forest Department with regard to use of way, which admittedly passes through forest land.  It is true that  Ext.R3, insists for registered consent letter  with regard to path way passing through other properties.  However, a careful reading of clause 10 of Ext.R2 will clearly show that such a registered consent letter will be necessary only in case of private land held by adjacent neighbours, through which the way passes. Govt. and departments of Govt are exempted from payment of stamp duty and hence P2 consent given by Range Forest Officer appears to us as sufficient for the purpose of opposite parties. More so, when no specific format of consent letter is prescribed in circular.

 

In the instant case, as shown in the location sketch, a coop road extends through forest land till northern boundary of the property.  According to opposite parties, there is another property owned by the complainant having an extent of 11.85 ares adjacent to the 38.97 ares offered as security.  That the coop road is extending only to the northern  boundary of  this 11.85 ares. Therefore without registered consent letter from complainant, adjacent 11.85 ares or it’s portion cannot be considered as access to security property. These contentions are erroneous.  As per location sketch, coop road is shows to extent to northern boundary of 38.97 ares near to the western end.  Location sketch also reveals that the property on the southern side is also belonging to the complainant (X\Xp hI).  In Ext.P7, southern boundary of property offered as security is shown as another plot belonging to complainant himself.  That being so, it is clear that 11.85 ares owned by complainant is on the southern side of the property having an extent of 38.97 ares offered by him as security.  Coop road is extending to 38.97 ares and not to 11.85 ares plot.  Complainant, as mentioned earlier, has produced consent letter issued from Forest Department for use of coop road to access the property.  Hence contentions that there is no proper way to the property which is usable as such will not hold water.                                                                                                       (cont…..6)

• 6  -

         However, we also notice that the complaint is silent with regard to  date or dates on which the complainant had approached opposite parties with necessary documents.  In the complaint he would only say that he had approached them within 20 days (see paragraph 3).  Opposite parties would contend that complainant had come only on 14.7.2021 with documents relating to 38.97 ares property.  This was forwarded for legal opinion, on 16.7.2021. Deposition on these lines contained in proof affidavit of RW1 are not challenged specifically during cross examination.  We also notice that Ext.R3 legal opinion is dated 6.9.2021.  As per receipt appended to Ext.R1, complainant had taken back all the records submitted by him, from opposite parties on 15.9.2021.  It is evident from this that complainant was informed about legal opinion by the bank and there was no delay in further proceedings.  According to complainant, opposite parties had raised objections with regard to valuation of the property and lack of proper way.  We have already considered the objections concerning lack of way raised by opposite parties. Though during cross examination of RW1 it was suggested that P5 related to 38.97 ares and that the document would show that the same property  was accepted as security earlier by opposite parties, a scrutiny of P5 reveals that it pertained to 11.85 ares property and not to 38.97 ares property offered as security.  In so far as valuation part is concerned, according to opposite parties, future liability is Rs.14,40,000/-.  Hence property offered as security should be worth twice that amount which will be Rs.28,80,000/-. Even going through the Tahsildar’s valuation certificate, the property is not worth that much.  During his cross examination, complainant had admitted that he had offered gold as additional security, when objection with regard to property being not of requisite value was brought to his attention, by opposite parties.  A suggestive question was put during cross examination to the effect that prize amount could be released only if property worth Rs.28,80,000/- is offered as security.  Complainant has not denied the suggestion, but would say that he was prepared to give gold as additional security.  Hence the fact that property worth Rs.28,80,000/- was demanded as security by opposite parties appears to be true,  despite the fact that in the notice sent to the complainant, only objections regarding the way was mentioned. We also notice that complainant does not mention in complaint that he had offered gold as additional security for release of chitty prize money.  Apparently, on the day when he went to opposite parties along with consent letter of Forest Department, in all probabilities, opposite parties may have asked him to produce additional security for release of prize amount.  Evidence of PW1 would reveal that he had gone with the consent letter of Forest Department to opposite parties only on 18.11.2021.  Therefore, he had not approached them earlier.  He has no case that he had gone to opposite parties along with other property documents or with gold also along with NOC issued from Forest Department.  This case is thereafter seen filed on 9.12.2021, that is, about 2 weeks after he had approached opposite parties with NOC issued from Forest Department. 

                                                                                                              (cont.....7)

• 7  -

Considering the pleadings and evidence tendered by both sides, we are not inclined to accept the contentions that inordinate delay was occasioned in processing documents relating to property offered as  security for release of prize amount by opposite parties.  Though the objections raised by them that lack of proper way, do not appear to us as sound, we are of the view that objections raised that  property offered was not of required value are sustainable. Apart from having an access without objections, property should be also of sufficient value to be accepted as security. That being so, it cannot be said that opposite parties wrongfully refused to accept the property offered by complainant as security for release of prize amount.  Therefore, we find that there is no deficiency in service or unfair trade practice from the side of opposite parties.  Point Nos.1 to 3 are answered accordingly. 

 

5.  Point No.4 :

 

          In the result, this complaint is dismissed, under the circumstances, without costs.  However, we hasten to add that in case, sufficient security is offered by complainant, opposite parties should consider its acceptability and worth in accordance with law and release prize amount to him, if he is entitled for the same.  Parties are to take back copies submitted by them of pleadings, petitions and documents, except which are admitted in evidence, after expiry of appeal period. 

 

                    Pronounced by this Commission on this the  15^th   day of October, 2022

 

                                                                                Sd/-

            SRI. C. SURESHKUMAR, PRESIDENT

 

                                                                      Sd/-

 SMT. ASAMOL P., MEMBER

 

                                                                                    Sd/-

SRI. AMPADY K.S., MEMBER

 

 

 

 

 

 

 

                                        (cont.....8)

• 8  -

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1         -  Dr. Vishnu. S.

On the side of the Opposite Party :

DW1        - Baby Jacob.

Exhibits :

On the side of the Complainant :

Ext.P1      -   copy of valuation certificate.

Ext.P2      -   copy of consent letter from Forest Department.

Ext.P3      -   copy of letter from opposite party dated 24.9.2021.

Ext.P4      -  copy of letter from opposite party dated 13.9.2021.

Ext.P5      -  copy of certificate issued by opposite party dated 15.9.2021.

Ext.P6      -  copy of call letter issued by the university to complainant dated 4.12.2021.

Ext.P7      - location sketch.

On the side of the Opposite Party :

Ext.R1     -  copy of letter from opposite party dated 13.9.2021

Ext.R2     - copy of Circular No.53/2020 (IA&V), dated 20.8.2020.

Ext.R3     -  copy of report of legal scrutiny.

 

 

 

                                                                                          Forwarded by Order,

 

 

 

                                                                                     ASSISTANT REGISTRAR