DATE OF FILING : 27.08.2009

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 25th day of February, 2010

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.161/2009

Between

Complainant :

Mathew Jacob,

Poriyathu House,

Udumbannoor P.O,

Thodupuzha,

Idukki District.

(By Advs:P.S.Saiju & K.M.Sanu)

And

Opposite Party :

The Manager,

Housing Development Finance Corporation

Limited,

Regional Office, HDFC House,

Ravipuram Junction,

M.G Road, Cochin. (By Advs: Lal.K.Joseph & K.J.Thomas)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)
 

The petitioner is a timber merchant in Idukki District and he is very much popular in his locality. He is hailing from a reputed aristocratic family. On 15.02.2002 the petitioner availed a housing loan of Rs.18,00,000/- from the opposite party by executing a loan agreement and also by creating an equitable mortgage in respect of his property having an extent of 25.20 Ares in Re-Sy.No.70/15/3 in Udumbannoor Village, Thodupuzha Taluk as loan account No.869808. He had been remitting the EMIs promptly till closing the same. Since the interest of the loan was exorbitant, the petitioner decided to close the loan. On 30.06.2006, the petitioner redeemed the outstanding liability in full by making a total payment of Rs.23,00,000/- towards the above referred loan account with the opposite party. On the same day the opposite party had issued a release certificate in favour of the petitioner, acknowledging the full repayment of the loan amount and its entire dues, and the opposite party had also acknowledged the redemption of the mortgage created as a collateral security. In the second half of 2006, a summons from the Judicial First Class Magistrate Court I, Adoor received to the complainant and thereby requested him to appear before the Court in CC NO.635/2006. This was a case instituted by the opposite party through one Mr.Arunkumar, Junior Officer, Recovery, for prosecuting the petitioner for an offence punishable under Section 138 of the Negotiable Instruments Act. Immediately the petitioner contacted the officers of the opposite party and informed the wrong and mischief committed by them. They assured that CC No.635/2006 would be withdrawn on the first posting date itself and by believing this words, the petitioner did not appear before the Hon'ble JFCM Court-I, Adoor on the posting date. On 1.05.2009, one Police Constable from the office of S.P, Idukki inspected the residence of the petitioner and affixed a proclamation notice in CC No.63/2009 on the file of JFCM I, Adoor on the door and informed that the petitioner is an absconding proclaimed offender, he will be arrested at any time. Then the police officer inspected the Village Office, Udumbannoor and thereafter the petitioner's property has been brought under attachment. Later the police officer inspected the ration shop wherein the petitioner is holding ration card and affixed another notice therein. It is revealed that CC No.635/2006 is renumbered as CC No.63/2009 and it was posted to 2.05.2009. Immediately the petitioner contacted a lawyer and informed about the real state of affairs and it is revealed that the case instituted by the opposite party has been transferred to JFMC II, Adoor and which is renumbered as CC No.63/2009. There upon the petitioner and his counsel contacted the office bearers of the opposite party and conveyed that if the case is not withdrawn immediately, the petitioner will initiate legal proceedings against the opposite party. In pursuance of that request, on 4.05.2009 the opposite party has withdrawn the case and thereby acquitted the petitioner. The institution of the case and withdrawal of the same even after the payment of the entire dues is a clear deficiency in service on the part of the opposite party. The case was filed at Judicial Ist Class Magistrate Court, Adoor only for harassing the petitioner. The case was pending for a long period of 3 ½ years. Due to institution of the above case and execution of the proclamation against the petitioner, he sustained much hardships and mental agony for which the opposite party is liable. For defending the case, the petitioner has spent Rs.25,000/- as the legal fee and conveyance to Adoor. So the petition is filed for getting compensation under various heads to the tune of Rs.5,00,000/-.
 

2. The opposite party filed a written version and admitted that the housing loan availed by the complainant was closed on 30.06.2006 by way of final settlement of Rs.23 lakhs. Before the above mentioned payment itself, the opposite party had filed a complaint against the complainant, before the Judicial First Class Magistrate Court I, Adoor, as CC No.635/2006 under Section 138 of the Negotiable Instruments Act, as his EMI cheque for repayment of housing loan was dishonoured. It is admitted that immediately after the final settlement of the loan, the opposite party had promised the complainant that the case filed against him, as above mentioned will be withdrawn. The opposite party intimated and instructed their counsel at Cochin, who was dealing with the case through their associates at Adoor, to withdraw the case from the court. But when the counsel at Cochin intimated the fact to their associate lawyer at Adoor, the case number was mistakenly understood by the counsel and hence could not withdraw the case as instructed also on the next hearing date. This facts were realised when the counsel of the opposite party at Cochin enquired with the counsel at Adoor about this, while collecting the updates of the proceedings of the total cases entrusted. In the meantime, CC No.635/2006 got transferred to Judicial First Class Magistrate Court II, Adoor. The transfer of the case from one court to another court due to the administrative reasons of the court, further delayed the matter in finding its new number and posting date. The case was renumbered as CC 63/2009, without getting the new number and posting date, the withdrawal of the case was not possible. Later on when the new number was found, on 4.05.2009, the case was withdrawn by the opposite party. All the delay above mentioned was caused only due to an inadvertent mistake of noting the number of the case and due to the transfer of the case from one Court to another. So there is no wilful negligence or latches from the part of the opposite party.
 

3. The point for consideration is whether there was any deficiency in service on the part of the opposite party, and if so, for what relief the complainant is entitled to ?
 

4. The evidence consists of the oral testimony of PW1 and Exts.P1 to P7 marked on the side of the complainant and the oral testimony of DW1 on the part of the opposite party.
 

5. The POINT :- The petitioner availed a housing loan from the opposite party. Later it was closed as a way of final settlement. The opposite party again proceeded against the petitioner under Section 138 of Negotiable Instruments Act. The proclamation under Section 82 of Cr.P.C was also initiated against the complainant. The complainant was examined as PW1. The loan account was closed on 30.06.2006. Ext.P1 is the copy of the receipt for the same. The mortgage deed was also released on the same day and Ext.P2 is the copy of the certificate stating the same. But he received a proclamation of arrest from the Judicial First Class Magistrate Court II, Adoor in C.C No.63/2009. On cross examination of the learned counsel for the opposite party, the complainant admitted that he had received summons from Judicial First Class Magistrate Court I, Adoor in C.C No.635/2006. On receiving the summons he approached the opposite party and they assured that the case will be withdrawn, it was because of the mistake happened to the opposite party. Lawyer notice also was received by PW1. But no summons or notice received from the Judicial First Class Magistrate Court II, Adoor in case No.CC.63/2009. The proclamation received from the Judicial First Class Magistrate Court II, Adoor is marked as Ext.P3. After that the complainant approached the opposite party through his counsel and the opposite party has filed a petition under Section 257 of Cr.P.C so PW1 was acquitted. Ext.P4 is the copy of the order from the Judicial First Class Magistrate Court II, Adoor. The opposite party was examined as DW1. DW1 deposed that the case was filed by the opposite party against PW1 under Section 138 of Negotiable Instruments Act, only because the cheque for repayment of the housing loan was dishonoured. Immediately after the final settlement of the loan, the opposite party promised to withdraw the case. The case was then transferred to Judicial First Class Magistrate Court II, Adoor as CC NO.63/2009. The opposite party when enquired about the matter to his counsel, it was revealed that there was a mistake happened to the counsel for collecting the date of the proceedings of the total cases entrusted. After the transfer of the case from Judicial First Class Magistrate Court I to II, the opposite party's counsel was not aware of the posting date of the case, and so the delay was caused for withdrawing the case. It was only due to an inadvertent mistake of noting the number of the case due to the transfer of the case from one court to another.

6. It is admitted by the opposite party that there is a mistake happened to them which caused delay in withdrawing the case against the complainant. It was only because of the mistake happened to the lawyer of the opposite party in collecting the posting dates. The case was filed only because of the dishonour of the EMI cheque issued by the complainant. Ext.P7 is the order sheet in C.C.635/2006 of the Judicial First Class Magistrate Court I, Adoor which has renumbered as 64/2009 before the Judicial First Class Magistrate Court II, Adoor. In that case was represented by the counsel for the opposite party in every posting dates except only one posting date. It means that the counsel was duly appeared before the Court in every posting dates starting from 15.01.2007 to 4.05.2009. So the contention of the opposite party that the counsel was not able to collect the posting date of the case is not believable. The proclamation and 82, 83 steps were also initiated against the complainant on 20.03.2009. On that day the counsel for the opposite party appeared before the Court. Even though the complainant already closed his loan account on 30.06.2006, the opposite party proceeded against the complainant after the same. It is a gross deficiency from the part of the opposite party. As per the complainant he paid Rs.25,000/- for defending the case and travelling from his place to Adoor, but there is no evidence produced by the complainant to show the same. It was the duty of the complainant to make sure that the case filed against him has been withdrawn by the opposite party after when the summons was received from the Judicial First Class Magistrate Court II, Adoor. As per Ext.P7 order sheet from the Judicial First Class Magistrate Court II, Adoor, the counsel for the complainant never appeared before the Court or never argued the matter. So we think that the complainant never entrusted any counsel for representing the case before the Judicial First Class Magistrate Court II, Adoor. The petitioner is claiming for Rs.25,000/- on account of the defamation sustained to the petitioner due to the publication of proclamation on the petitioner's residence, Village Office and Ration shop. But this Forum is considering only deficiency in service. The defamation matters should be filed before the appropriate court. Some mental agony and hardships may have caused to the complainant because of the act of the opposite party and we think that Rs.10,000/-can be awarded for the mental agony caused to the complainant due to the deficiency in service on the part of the opposite party. Rs.2,000/- can be awarded for the cost of this petition.

Hence the petition allowed. The opposite party is directed to pay Rs.10,000/- to the complainant for the mental agony caused to him due to the deficiency in service on the part of the opposite party and Rs.2,000/- as cost of this petition within one month of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 25^th day of February, 2010

Sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

I agree SMT.SHEELA JACOB(MEMBER)

Sd/-

I agree SMT.BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - Mathew Jacob

On the side of Opposite Party :

DW1 - N.Arunkumar

Exhibits:

On the side of Complainant:

Ext.P1 - Letter cum Cash Receipt dated 30.06.2006 for Rs.23,00,000/-

Ext.P2 - Copy of the Certificate dated 30.06.2006 regarding the release of the mortgage Deed

Ext.P3 - Copy of Proclamation received from the Judicial First Class Magistrate Court II, Adoor dated 2.05.2009

Ext.P4 - Copy of the Order in Case No.64/2009 dated 4.05.2009 before the Judicial First Class Magistrate Court II, Adoor

Ext.P5 - Copy of Legal Notice issued by the advocate of the complainant to the opposite party

Ext.P6 - AD Card

Ext.P7 - True copy of Order Sheet in CC No.635/06 of the Judicial First Class Magistrate Court II, Adoor

On the side of Opposite Party :

Nil