O R D E R
(Delivered by Hon’ble President (FAC) Smt N. Tripura Sundari)
This complaint is filed under Section 12 of the Consumer Protection Act, 1986.
The averments of the complaint are in brief:
1. The complainant availed loan facility of Rs.5,50,000/- from the opposite party on 24.5.2005 on mortgage of his land documents as security. The complainant agreed to pay interest at Rs.2/- per 100. The complainant paid various amounts to the opposite party and requested them to provide statement of account so as to enable him to repay the balance amount due with an intention to get the mortgage redeemed. The opposite party did not provide the statement of loan account. Therefore the complainant obtained a demand draft for Rs.7,50,000/- in favour of the opposite party on 1.3.2013. But the opposite party either received the demand draft or provided the statement of loan account. In spite of repeated requests made by the complainant the opposite party did not come forward to perform their part of contract. The complainant was constrain to cancel the said demand draft drawn in favour of the opposite party and got issued a legal notice on 20.6.2013 demanding the opposite party to settle his account, redeem the mortgage and deliver the original title deeds to him. The opposite party received the said notice and issued a reply with all false allegations stating that the complainant in all paid a sum of Rs.2,60,000/- and directed the complainant to repay the balance amount and then to seek the remaining formalities regarding redemption of mortgage etc. The opposite party did not mention in their notice a specific amount to be paid by the complainant and threatening the complainant in vague manner to sue for not paying the amount. The complainant again approached the opposite party and requested to furnish the statement of account so as to enable him to repay the same. But the opposite party did not come forward to do so. The complainant is under apprehensive that the opposite party is a partnership firm and it might be gone into disputes and enable to respond to perform its duty thereby put the complainant into irreparable hardship. Hence the complainant is constrained to file this complaint against the opposite party praying the Forum to direct the opposite party to furnish the statement of account pertaining to the loan account of the complainant taking into consideration the amount of Rs.7,50,000/- offer to pay on 1.3.2013 and adjusting to the interest and to receive the balance amount and execute reconveyance deed in favour of the complainant thereby returning the original title deeds of the complainant: to pay Rs.1,00,000/- towards compensation for mental agony and to pay costs.
2. The version of the opposite party is in brief:
The opposite party denied all the allegations of the complaint and submitted that the complainant borrowed an amount of Rs.5,50,000/- from the opposite party and executed the registered mortgage in its favour and delivered the original documents of the title deed. Inspite of repeated demands of the opposite party the complainant made only payments of Rs.2,60,000/- by way of cheques. The complainant agreed that he will pay interest every month but he did not comply the same. The complainant is aware about the rate of interest and process of repayment as well as the amount paid by him. Obtaining the alleged D.D. for an amount of Rs.7,50,000/- in favour of the opposite party is false. The said fact was not reveal in the notice issued by the complainant. There is no specific request of the demand to provide statement of account in the legal notice dated 20.6.2014. The opposite party is ready to receive the amount and execute a registered sale deed in favour of the complainant if the mortgage debt is discharged. If really the complainant is ready to pay the amount he has to deposit the amount with calculation memo in this Forum at the time of filing the complaint. There is no deficiency in service on the part of the opposite party towards the complainant and prayed to dismiss the complaint with costs.
3. On behalf of the complainant he gave his affidavit and got marked Ex.A.1 to Ex.A.6. On behalf of the opposite party he himself filed affidavit and no document is marked.
4. Heard and perused
5. Now the points that arise for consideration in the complaint are:
1. Whether there is any deficiency in service on the part of the opposite party
towards the complainant in not redeeming the mortgage property even though
the complainant is ready to repay the loan amount?
2. if so is the complainant entitled for any relief?
3. To what relief the complainant is entitled?
POINTS 1 AND 2:-
6. On perusing the material on hand the complainant availed loan facility of Rs.5,50,000/- from the opposite party on 24.5.2005 on mortgage of his property documents as security under Ex.A.1. As per Ex.A.1 the complainant agreed to pay interest on every month at the rate of Rs.2/- per Rs.100/- per month. The complainant says that he paid various amounts to the opposite party and requested the opposite party to provide statement of account copy of the loan so as to enable him to repay the balance amount due with an intention to get the mortgage redeem. But the opposite party failed to furnish the same. The complainant obtained a demand draft Ex.A.2 for Rs.7,50,000/- in favour of the opposite party on 1.3.2013. But the opposite party neither received the demand draft nor provided the statement of loan account. In spite of repeated requests made by the complainant the opposite party did not come forward to perform their part of contract. The complainant was constrained to cancel the said demand draft drawn in favour of the opposite party and got issued legal notice Ex.A.3 dated 20.6.2013 demanding the opposite party to settle the account and redeem the mortgage on deliver the original title deeds to him. The opposite party received the said notice and got issued a reply notice under Ex.A.4 dated 26.6.2013 denying the allegations of the legal notice and requested the complainant’s advocate to advise the complainant to tender the balance amount first and then receive the remaining formalities regarding prevention of mortgage etc. The complainant again approached the opposite party and requested to furnish the statement of account so as to enable him to repay the same. But the opposite party did not come forward to do so. Ex.A.5 is un-registered general power of attorney executed by his son who obtained the loan from the opposite party by mortgaging title deeds. Ex.A.6 is invalid document issued on anothers names who are showing not the party for the issue. The cancellation of demand draft for Rs.7,50,000/- on 1.3.2013.
7. On perusing these above documents we the Forum came to know that the above loan was obtained by the son of the complainant on 24.5.2005 under Ex.A.1 and the complaint is filed after lapse of nine years. To create the limitation to file the C.C. he showed the demand draft for Rs.7,50,000/- dated 1.3.2013 in favour of the opposite party and cancellation of the same in anothers account. He also issued notice Ex.A.3 dated 20.6.2013 to create limitation. To file the complaint under the Consumer Protection Act, 1986 the limitation period is within two years from the date of cause of action. Mere issuance of legal notice cannot create limitation for filing the C.C. The above statements of the complainant are not supported by any documentary evidence except Ex.A.1. Therefore we cannot attribute deficiency in service on the part of the opposite party after lapse of nine years. The complainant is not entitled for any relief without any documentary evidence and also the complaint is barred by limitation. Accordingly these points are answered.
POINT No.3:-
8. In the result, the complaint is dismissed in view of the limitation point, without costs.
Dictated to the Stenographer K.Sivaram Prasad, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 9th day of February, 2015.
PRESIDENT(FAC) MEMBER
Appendix of evidence
Witnesses examined
For the complainant: For the opposite party:
P.W.1 Kasaraneni Yatish D.W.1 Y.Srinivas
Complainant, opposite party
(by affidavit) (by affidavit)
Documents marked
On behalf of the complainant:
Ex.A.1 24.05.2005 Photocopy of mortgage deed.
Ex.A.,2 01.03.2013 Photocopy of demand draft.
Ex.A.3 20.06.2013 Office copy of legal notice.
Ex.A.4 26.06.2013 Reply notice.
Ex.A.5 27.03.2012 Photocopy of General power of attorney.
Ex.A.6 . . Photocopy of statement of account.
On behalf of the opposite party:
Nil.
PRESIDENT(FAC)
