Date of Filing:14.07.2008<br /> Date of Order:26.03.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 26TH DAY OF MARCH 2009<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> COMPLAINT NO: 1565 OF 2008<br /> <br /> Mr. N. Raghunathan,<br /> S/o N. Narayanan,<br /> r/a Eshwar Layout, 7th Cross,<br /> Indiranagar, II Stage, <br /> Bangalore 560 038. Complainant<br /> <br /> V/S<br /> 1. M/s Cam Max Engineers,<br /> A Partnership Firm having its Office at<br /> No.1, Byraveshwara Industrieal Estate,<br /> Andrahalli Main Road,<br /> Vishvanedem Post, Bangalore-560 091,<br /> Represented by its partners 2 to 4.<br /> <br /> 2. Mr. M. Loganathan, <br /> S/o D, Manickam,<br /> R/at No. 905/5, Behind Ayyappa Temple<br /> Ayyappa Nagar, Bangalore-560 015.<br /> <br /> 3. Smt. Sheela Loganathan, <br /> W/o M. Loganathan,<br /> R/at No. 905/5, Behind Ayyappa Temple<br /> Ayyappa Nagar, Bangalore-560 015.<br /> <br /> 4. Miss. Sheja Devi,<br /> D/o Late Prapakaran,<br /> R/at No. 905/5, Behind Ayyappa Temple<br /> Ayyappa Nagar, Bangalore-560 015.<br /> <br /> 5. Syamarao Vithalrao Co-operative Bank Ltd.,<br /> No.49/1, 5th Cross, Malleshwaram, <br /> Bangalore-560 002,<br /> Represented by its Branch Manager. Opposite Parties<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> This is a complaint filed u/Sec. 12 of the Consumer Protection Act, 1986.<br /> The brief facts of the case are that, the opposite party No.1 is a partnership firm, opposite parties No.2 to 4 are partners and opposite party No.5 is Co-operative Bank. Opposite party No.1 availed credit facility from opposite party No.5 for the year 1997. The complainant was one of the partners of the opposite party firm during 1997. He has retired from partnership during 1998. Firm was reconstituted subsequently. Opposite party No.5 informed the complainant that he has mortgaged the immovable property. Complainant disputed the mortgage. Complainant was force to pay the amount to release his title deeds from opposite party No.5. He has paid Rs.14,4,925/- for discharge of loan. Thereafter, the opposite party No.5 releases the title deeds. It is the case of the complainant that, opposite party No.5 illegally collected the amount from the complainant. Opposite party No.5 collected the amount from the complainant on the allegation that complainant is the guarantor and mortgaged the property as security for the loan. Complainant is entitled to recover the amount from opposite party No.1 to 4. Opposite party No.1 to 4 also failed to furnish any particulars of their loan account. Opposite parties are liable to pay interest. Opposite parties are also liable to pay damage of Rs.50,000/- towards mental agony. The complainant prays that opposite parties be directed to pay Rs.17,54,925/- with interest. <br /> 2. Notice issued to opposite parties. Opposite parties put in their appearance through Advocate and filed defense version stating that the complaint is not maintainable either in law or on facts and prayed to dismiss the complaint. If at all the amount was paid by the complainant to opposite party No.5 it was for the loan raised by him as a partner. Opposite party No.1 to 4 submitted that they are not liable to pay any amount to the complainant. Opposite party No.5 in a separate defense version submitted that complaint is not maintainable, complaint is false, frivolous and vexatious. The powers of civil court cannot be invoked by the complainant to obtain money decree. Discharge of loan by the complainant does not attract any deficiency of service. Complainant mortgaged the properties in favour of opposite party No.5 vide registered mortgage deeds dated 19/06/1998 and 16/08/1998. It is false to say that complainant was forced to pay the outstanding amount. Complainant wanted to obtain release of the mortgage volunteered to make payment along with another mortgagor Mr. T. Narayanan and after receipt of the payment, 5th opposite party has duly executed discharge receipt and documents have been released. There was no deficiency of service on the part of the opposite party No.5. The payment made by the complainant to the opposite party No.5 is legal, opposite party No.5 was well within its jurisdiction and powers to demand the payment of outstanding amount. Complainant himself submitted a letter on 31/03/2005 along with T. Narayanan for one time settlement of the loan and opposite party No.5 accepted the proposal and issued letter dated 16/06/2005 confirming one time settlement. For all these reasons stated above, opposite party No.5 prayed to dismiss the complaint with exemplary costs. <br /> 3. Affidavit evidences are filed. Arguments are heard.<br /> 4. The points for consideration are:- <br /> 1. Whether the complainant has proved any deficiency in <br /> service on the part of the opposite parties?<br /> <br /> <br /> 2. Whether the complainant is entitled for an order of amount with interest?<br /> <br /> 3. Whether the complaint is maintainable?<br /> <br /> <br /> REASONS<br /> 5. I have gone through the complaint, defense version and the documents. By reading the entire facts and the pleadings of the complaint, the complaint is either maintainable under law or on facts. It is nothing but an abuse of process of social and benevolent law. It is very unfortunate that the complainant wants a money decree against the opposite parties, though the scope of the Consumer Fora is limited. The complaints shall have to be admitted only if there was any deficiency in service on the part of the opposite parties. By reading the entire complaint the complainant never made allegation of deficiency of service on the part of the opposite parties. Admittedly, the complainant was a partner of opposite party No.1 firm and had obtained loan from opposite party No.5. The complainant had mortgaged the properties and said mortgage deed was a registered mortgage deed. The complainant had given proposal for one time settlement. Accordingly, opposite party No.5 Bank accepted the proposal and sum of Rs.28,00,000/- was due. On account of one time settlement the complainant has paid Rs.14,04,925/- towards discharge of the loan availed by opposite party No.1 firm. The complainant had obtained discharge certificate and received title deeds. The complainant himself has stated in the complaint that on 15/07/2005 the opposite party No.5 had given discharge receipt or letter. The letter of opposite party No.5 dated 15/07/2005 has been produced by the complainant himself. This letter states that the loan accounts are closed in full and final settlement and that the Bank has no claims against the complainant in respect of the loan accounts. When the complainant himself has paid amount and cleared the loan and got released the title deeds and taken the discharge receipt from the Bank, how the complainant can files a complaint before this Forum. If at all there was any dispute between the partners because the complainant submitted that he had retired from the partnership during the year 1998-99 and the firm was reconstituted. If that was the case the remedy for the complainant is to file a civil suit against the present partners of the firm for recovery of the amount paid by him. The complainant cannot file a complaint before this Forum for getting a money decree. This is nothing but in order to avoid Court fee, the complainant had tried his luck in filing the complaint before the Consumer Forum even though the complainant has no right in law to file complaint before the Fora. The complainant cannot convert the Consumer Forum into Civil Court by filing a complaint and avoiding payment of Court fee. Proceedings before the Consumer Forum are being tried in a summary manner. The civil disputes are not liable to be decided in the Forum. The Civil Court is the proper Forum for the parties to get the grievance settled. Secondly, the complaint filed on 14/07/2008 is clearly barred by limitation because on 15/07/2005 the complainant has obtained loan closure letter. Opposite party No.5 had given letter to the complainant that loan amount was fully and finally settled and the Bank has no claims against the complainant. Therefore, the cause of action arose to the complainant on 15/07/2005 if at all he had grievance against the opposite party No.5 in respect of closure of loan account. From that date the complainant could have filed complaint within two years. U/Sec. 24 A of the Consumer Protection Act, the District Forum or State Commission or National Commission shall not admit a complaint unless it is filed within 2 years from the date on which the cause of action arisen. In this case the loan account was closed on 15/07/2005. Therefore, the complaint filed by the complainant on 14/07/2008 is clearly barred by time. On this ground also the complaint is liable to be dismissed. It is very strange that how the complainant has filed the complaint before this Forum claiming money decree against the opposite parties. Admittedly, he has paid more than Rs. 14,00,000/- to the opposite party No.5 towards discharge of loan on account of one time settlement and got released the title deeds. Now the complainant wants that the opposite parties should refund or pay the amount paid by him. This type of complaint is wholly a devoid of merits and where is the question of deficiency in service on the part of the opposite parties. The complainant has miserably failed to establish or prove as to how he is entitled for a money decree in his favour. The complaint having been not maintainable it deserves to be dismissed. In the result, I proceed to pass the following:-<br /> ORDER<br /> 6. The Complaint is dismissed. No order as to costs.<br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> 8. Pronounced in the Open Forum on this 26TH DAY OF MARCH-2009. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> <br /> MEMBER MEMBER<br /> Rhr., <br />