Date of Filling : 20.03.2013.
Date of Disposal : 25.02.2016.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.
PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M., … PRESIDENT
TMT. S. SUJATHA, B.Sc., … MEMBER - I
C.C.14/2013
(Thursday the 25th day of February 2016)
1. Mrs. Sampoornammal,
W/o. Late Jayarama Reddy.
2. Mr. J. Sivakumar,
S/o. Late Jayarama Reddy.
3. Mr. J. Vinayagam,
S/o. Late Jayarama Reddy.
4. Mr. J. Srinivasan,
S/o. Late Jayarama Reddy.
5. Selvi . Lakshmi,
D/o. Late Jayarama Reddy.
6. Mr. J. Ayyappan,
S/o. Late Jayarama Reddy.
7. Mrs. Kamalammal,
W/o. Late Chinnasamy Reddy,
Vengamapuram Kandigia Village,
Poondi Post,
Uthukottai Taluk,
Thiruvallur District. … Complainants.
/ Versus /
The Branch Manager,
Indian Bank,
Poondi Branch,
Poondi,
Thiruvallur Taluk and District. … Opposite Party.
This complaint is coming upon before us finally on 03.02.2016, Thiru. A. Satheesh, Counsel for the Complainants and Thiru. T.V. Suresh, Counsel for the Opposite Party and having perused the documents and evidences on both the sides, this Forum delivered the following,
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT
This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite party for seeking compensation of Rs.2,00,000/- towards mental agony and loss for non returning of the jewels by the opposite party with cost.
- The brief averments of the complaint is as follows:-
While the husband of the 1st complainant was alive, pledged the Jewel weighing 31.700 grams in the opposite party’s Bank on 26.03.2005 in JL.No.8690 and borrowed a sum of Rs.11,200/- as Jewel Loan. Again Jayarama Reddy pledged 4 items of Jewels weighing 64.400 grams in the said Bank on 12.09.2005 in JL. No.9006 and borrowed a sum of Rs.23,000/- and again he pledged the Jewel weighing 23.700 grams on 28.09.2005 in J.L.No.9040 and borrowed a sum of Rs.8,500/- as Jewel Loan.
2. The said Jayarama Reddy died on 13.10.2006 leaving the complainants as his only legal heirs. After the demise of the said Jayarama Reddy the complainants repaid a sum of Rs.11,724/- with interest on 27.10.2009 towards the 1st Jewel Loan No.8690 dated 26.03.2005. They also re-paid a sum of Rs.28,512/- on 27.10.2009 towards the 2nd Jewel Loan No.9006 dated 12.09.2005 and also repaid the 3rd Jewel Loan No.9040 of Rs.9,764/- with interest on 27.10.2009. As such the complainants repaid the entire amount with accrued interest, though they are entitled the waiver of agricultural as well as agri-gold loan, towards the said Jewel loan availed by Mr. Jayarama Reddy and there was no amount is due on towards the Jewel Loans. After payment the Manager failed to return the pledged Jewel for the reasons best known to him and he insisted the complainants to re-pay the Agricultural Loan borrowed by Jayarama Reddy which was waived by the Union Government loan waiver scheme.
3. That even the agricultural loan is not waived, the opposite party has no right to withheld the Jewels pledged in the Jewel Loan account, since the agricultural loan is granted by the opposite party by getting mortgage of the agricultural lands. The opposite party can very well collect the agricultural loan by taking action against the property hypothecated. In fact, on 18.01.2012 the opposite party’s counsel issued notice to the 3rd complainant asking to pay the agricultural loan. The complainants issued suitable reply dated 20.02.2012 to the opposite party explaining the facts that the loan borrowed by Jayarama Reddy has been waived by the loan waiver scheme by the Government as seen from the letter dated 02.02.2012 issued by the Public Information Officer & Deputy General Manager, Indian Bank.
4. The act of opposite party of non- returning the pledged jewel even after payment of the entire loan amount is unlawful and arbitrary and also attracted Criminal action. Hence the complainants issued legal notice dated 31.03.2012 to the opposite party explaining the said facts and also to return the pledged Jewels. The opposite party received the notice. But the opposite party neither reply nor returned the pledged Jewels. The opposite party committed a great deficiency in service in non-returning the pledged jewels which caused lot of mental agony and hardship. Hence, this complaint.
- The contention of the written version by the opposite party as brief as follows:-
The complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed on merits.The claims arising under the present petition and that from the aforesaid definitions, the complainants are not consumers and the alleged claim involved in the complaint is not a consumer dispute.The said C. Jayaraman died on 13.10.2013.The 2nd complainant stood as guarantor for the above said loan and as such he can not be termed as consumer under the Act.There was a collateral security for the loan by deposit of title deeds and creating a mortgage thereon.The repayment program was agreed to be 10 half yearly installments of Rs.21,000/- and the due date of 1st instalment fixed on Dec. 2006.Soon after the death of C. Jayaraman, the complainants changed their colors and whenever the manager of the opposite party called on them to repay the loan as per schedule, they evaded and fraudulently neglected from repayment.The allegations of their inability to repay the loan stated in the complaint are specifically denied as they are not true. The complainants have large extent of land and are capable of clearing the loan in no time.But in order to evade and getaway from the repayment of loan, relying on the false proposition of law and rules, the complainants choose to file this frivolous complaint.As per the norms of the waiver scheme, a sum of Rs.94,614/- had been credited to the loan A/c. No.569736747 (Agri loan) in 2009, a sum of Rs.3,290/- for the first jewel loan under A/c. 569727212, a sum of Rs.7,320/- for the second jewel loan under A/c.569728012 and a sum of Rs.2,433/- for the third jewel loan under A/c.569728023.The complainants repaid the balance amount outstanding after waiver adjustment for the jewel loans only on 22.12.2009 and left unattended the medium term loan which stand at Rs.1,91,066/- as on 16.02.2012 after the due waiver adjustment.The complainants knowing fully well that the recovery of the loan is not that much easy as jewel loan and the procedure involved is lengthy and expensive are making false claim by filing this vexatious complaint.
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7. In order to prove the case, on the side of the complainants, the proof affidavit submitted by the 2nd complainant for their evidence and Exhibit A1 to A15 were marked. While so, on the side of the opposite party, the proof affidavit was filed for his evidence. No documents filed on the side of the opposite party.
8. At this juncture, the point for consideration before this Forum is:-
- Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?
- To what other reliefs, the complainants are entitled to?
9. Written arguments filed on the side of the opposite party and oral arguments adduced.
10. Point no.1:
According to the case of the complainant is that after the demise of Jayarama Reddy, the complainants had repaid the entire Jewel Loan amount to the Bank as on 27.10.2009. But the opposite party failed to return the pledged Jewels for the reason best known to him and thereafter the complainant issued notice to the opposite party on 31.03.2012 to return the pledged jewels but the opposite party failed to return the same and therefore, the complainant had come forward with this complaint.
11. At the outset, the duty of this Forum is to decide as to whether the complainant has proved their case with relevant evidence, since the initial burden of proof is on the shoulders of the complainant. In this regard, on perusal of the proof affidavit of the complainant it is learnt that when Jayarama Reddy was alive, had pledged Jewels in the opposite party’s bank in three times viz dated 26.03.2005 Jewel No.8690, 12.09.2005 Jewel.No.9006 & 28.09.2005 Jewel No.9040 and for the said loan Identity card was issued by the opposite party’s are marked as Ex.A1 to A3. After his demise, the complainants have repaid the loan with interest in different dates. On 27.10.2009 the entire Jewel loan with interest had been paid, the payment slips are marked as Exhibit A4 to Ex.A6.
12. It is further seen from the evidences of the complainant that they have produced Ex.A7 the death Certificate of Jeyarama Reddy dated 13.10.2006 and Ex. A8 the Legal Heir Certificate dated 11.05.2007, which have been submitted to the opposite party and requested to return the pledged Jewels. The opposite party issued a legal notice to the 3rd complainant to settle the agricultural loan obtained by the deceased Jayarama Reddy and the said notice is marked as Ex.A10 and for which the counsel for the 3rd complainant had issued proper reply notice which is marked as Ex.A12 and acknowledgement card for the receipt of the same is marked as Ex.A13. In the mean time 2nd complainant sent a petition under Right information Act to the District Collector dated 12.12.2011 and the reply letter for the same issued by the Public Information Officer of the opposite party’s bank to the 2nd complainant dated 02.02.2012 which are marked as Ex.A9 & Ex.A11 respectively. Further, it is stated that Ex.A14 legal notice issued by the complainants to the opposite party for return of Jewels which are pledged in the bank and the Ex.A15 is the acknowledgement card for the receipt of the same.
13. In such circumstances, on going through the written version as well the proof affidavit of the opposite party, it is crystal clear that all the facts regarding the pledging of Jewels, the repayment of the entire Jewel loan amount with interest are all admitted by the opposite party except the contention raised by the opposite party that as per the terms and conditions of the Jewel loan agreement, as per column No. 7 had been clearly agreed by the loanee, the deceased Jayarama Reddy that the bank shall have a lien on the ornaments pledged in respect of any other sum or sums of money with the borrower may be liable to pay to the bank either solely or jointly with any persons any office of the bank which is a well settled position under law. That under section 171 of Indian Contract Act, the opposite party has the right to have a general lien over the securities held and therefore the allegations made in the complaint are not maintainable.
14. At this juncture, on careful perusal of the rival submissions put forth on either side, it is crystal clear that there is no amount pending in respect spite of the three Jewel loans pledged by the deceased Jayarama Reddy, who is the husband of the 1st complainant. Furthermore, as per the averments made by the complainants both in the complaint as well as the proof affidavit that the agricultural loan borrowed by the deceased Jayarama Reddy has been waived by the loan waiver scheme by the Government and even not otherwise the opposite party can very well collect the agricultural loan by taking auction against the property hypothecated.
15. At the outset, in spite of the waiver of the above said agricultural loan and the general lien with the bank has to be proved by the opposite party only. Since the other facts have been admitted by the opposite party immediately the burden of proof of the above said facts is shifted to the opposite party. Therefore, with this regard to be looked into the matter whether the opposite party has proved the same before this Forum by means of relevant and acceptable evidence. In fact, no documents produced except the averment made only in the written version and proof affidavit. At this point of time, it is pertinent to note that the opposite party clearly mentioned in the written version as well as proof affidavit that as per the terms and conditions of the Jewel loan agreement the deceased Jayarama Reddy has clearly agreed in the contract of the opposite party has a right to have a general lien to the bankers. Similarly, it is noted that certain amounts deducted on the order of Waiver both on the agricultural loan and agricultural jewel loan. But in spite of repeated opportunities and several adjournments provided by this Forum to clarify the said fact are for causing production of documents. The opposite party has not come forward to utilize the opportunities given by this Forum. From this, it is crystal clear that this Forum can easily presume that there is no such document on the side of the opposite party to prove their side. Therefore, the adverse inference can easily be drawn against the opposite party.
16. Regarding the next point of waiving of the agricultural loan obtained by the deceased Jayarama Reddy Ex. A11is the vital document to be seen. On careful perusal of Ex.A11 it reads as follows:- “We inform you that the Bank has sanctioned waiver for the agricultural Jewel loan agricultural MTL and STPL availed by their Father Late Jayarama Reddy. From this above recitals, it is seen that the opposite party’s bank has sanctioned waiver of other agricultural Jewel loan etc. In this aspect also the opposite party has not come forward to prove with cogent and consistent evidence. Moreover, there is no document produced on that score also.
17. In the light of the above facts and circumstances and observations made above this Forum has come to the conclusion that the complainant has proved their case with consistent and relevant evidence. But at the same time, the opposite party has not fulfilled his burden of proof and thereby it can be easily to arrive without any hesitation that there is deficiency in service on the part of the opposite party. Thus point no.1 is answered accordingly.
18. Point no.2:-
As per the conclusion arrived in the point no.1 it is certainly that the complainants have incurred much loss for not returning the pledged Jewels immediately by the opposite party after the entire loan amount with interest have been cleared and thereby suffered mental agony and hardship and the same has to be compensated by this Forum. Hence the complaints are entitled for the return of Jewels pledged with the bank and for reasonable compensation with cost. Thus point no.2 is answered accordingly.
19. In the result, the complaint is allowed in part. Accordingly, the opposite party is directed to return all the jewels as mentioned in the complaint within a month and to pay compensation for causing mental agony due to the deficiency of service on the part of the opposite party of Rs.10,000/- (Rupees Ten Thousand only) with interest of 9% from the date of filing of this complaint (20.03.2013) to till date (25.02.2016) and to pay Rs.5,000/- towards cost of litigation of this complaint.
The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which the said amount shall carry interest at the rate of 9.5% till the date of payment.
Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 25th February 2016.
Sd/-*** Sd/-***
MEMBER - I PRESIDENT
List of documents filed by the complainant:-
Ex.A1 / Dt.26.03.2005 Xerox copy of the Jewel loan identity card for JL No. 8690 in the name of Jayaraman.
Ex.A2 / Dt.12.09.2005 Xerox copy of the Jewel loan identity card for JL No.9006 in the name of Jayaraman.
Ex.A3 / 28.09.2005 Xerox copy of the Jewel loan identity card for JL No. 9040 in the name of Jayaraman.
Ex.A4 / 27.10.2009 Payment slip issued by the opposite party towards the JL No.8690.
Ex.A5 / 27.10.2009 Payment slip issued by the opposite party towards the JL No.9006.
Ex.A6 / 27.10.2009 Payment slip issued by the opposite party towards the JL No.9040.
Ex.A7 / 27.02.2007 Xerox copy of the death certificate of Jayaraman.
Ex.A8 / 11.05.2007 Xerox copy of the legal heir certificate of Jayaraman.
Ex.A9 / 12.12.2011 Xerox copy of the petition under right to information act given by the 2nd complainant to the District Collector.
Ex.A10 / 18.01.2012 Legal notice issued by the opposite party’s counsel to the 3rd complainant.
Ex.A11 / 02.02.2012 Letter issued by the Public Information officer of the opposite Party’s Bank to the 3rd complainant.
Ex.A12 / 20.02.2012 Reply notice issued by the complainant’s counsel to the opposite party’s counsel.
Ex.A13 / 23.02.2012 Acknowledgment card addressed to opposite party’s counsel.
Ex.A14 / 31.03.2012 Legal notice issued by the complainant’s counsel to the opposite party.
Ex.A15 / 02.04.2012 Acknowledgment card addressed to opposite party’s counsel.
List of documents filed by the opposite party-
Nil.
Sd/-*** Sd/-***
MEMBER - I PRESIDENT
