The complaint U/s 12 of the Consumer Protection Act 1986.

1.The complaint in short is as follows: -   

                 The first complainant is the son of deceased Kunhathan S/o Neelandan and second complainant is the wife of the first complainant. On 20/09/2013 the deceased Kunhathan availed a loan of Rs. 25000/- from first opposite party after producing documents of the property belongs to the complainants. The deceased repaid some amounts towards the loan account.  On 19/12/2013 the first opposite party impleaded complainants as parties to the loan transactions. According to complainants, they are not at all necessary parties to the loan transaction. The act of the first opposite party was ill motivated one.  The first opposite party made the complainants as parties to the transactions before the demise of principal loanee Mr. Kunhathan.  The contention of the complainant is that the opposite party was bound to exonerate deceased Kunhathan from the liability after his death as per the circular of State Government of Kerala dated 25/2015. As per letter of first opposite party dated 17/07/2015 the document to prove the caste of the principal loanee had produced before the 1^st opposite party and the first opposite party ignored the same.   Thereafter the first opposite party preferred ARC 263,264,265 of 2016 before the Assistant Registrar of Co-operative Societies, Manjeri on 30/06/2016 against the deceased Kunhathan and the complainants.  As per orders in the matter Mr.Kunhathan was directed to pay Rs.39,168/-, the first complainant directed to pay Rs. 33,793/- and the second complainant directed to pay Rs. 16,275/-. The complainants submit, that they are belongs to scheduled caste community and hailing from poor family and the opposite party willfully acted against the government order by not considering the complainants to the benefit declared by the State Government.  The act of the opposite parties amounts deficiency in service and they pray for the write off the liabilities and also to pay compensation of Rs. 50,000/- to the complainants.  The act of the opposite parties caused mental agony, inconveniences and hardships to the complainants. 

2.      The submission of the complaint is that as per the government order they are entitled to exonerate from the liabilities, hence the prayer of the complaint is to give direction to the first opposite party to include the loan involved in this complaint as exempted from the payment as per the government order and also to direct to pay compensation of Rs.50,000/- and cost of Rs. 2000/-.

3.      On admission of the complaint notice was issued to the opposite parties and they entered appearance.  The first and second opposite parties filed detailed version denying the entire averments and allegations contained in the complaint.

4.       The first opposite party submitted that the averment in the complaint that the deceased Kunhathan had availed a loan from the Bank is correct.  But he has not paid the loan amount except a nominal amount on a single occasion.  The averment that the deceased paid installments on several occasions is not correct.  The allegation that, the first opposite party willfully with malicious intention impleaded complainants as parties to the loan transaction is not correct.  The statement of the complainant that they were entitled for exception of payment of loan as per circular 25/2015 of State Government of Kerala and the non-inclusion of the loan by the first opposite party caused losing the benefit is not correct.  It is also denied that the first opposite party filed ARC complaints and the opposite party willfully denied the benefit.

5.        The first opposite party submitted that the deceased Kunhathan availed loan from

the opposite party Bank on 20/09/2013 and due to default  in payment  the opposite party  initiated  legal proceedings  complying all the formalities  and thereby  there was an order against  deceased Kunhathan  and the complainants.  The complainants have not taken any legal action against the order of Assistant Registrar of Co-operative societies and the Consumer Disputes Redressal Commission has no power to entertain any complaint against the order of Assistant Registrar of Co-operative Societies.   The first opposite party also submitted that the deceased Kunhathan availed a loan on 24/5/2005 from the opposite party and on 20/09/2013 the deceased Kunhathan was paid the loan amount with interest.  It is submitted that the present loan was new one and not taken for repayment of the earlier loan.  At present the document shows that   the complainants and late Kunhathan received a loan of Rs. 62,000/- from the Bank. 

6.       As per circular of State Government of Kerala 25/2015 a loan which is pending defaulted on or before 31/03/2010 and the loan transaction closed before 30/03/2015, the opposite party was directed to furnish details to the Government.  As per the circular the late Kunhathan is also entitled for the benefit.  The opposite party has intimated same to the government on 13/08/2015 and the name of late Kunhathan is included in the list.  But the government has decided to consider the benefits which are pending and not considered the benefits for the loans which has been paid on or before 30/03/2015.  The opposite parties prepared to pay the benefit to the complainants on the basis of government decision. The opposite party has included the name of late Kunhathan in the list of beneficiaries as per Government circular and so the allegation of deficiency in service against opposite party is baseless.  The late Kunhathan was above seventy years at the time of availing loan and so he was not eligible to cover under risk fund loan scheme and he is not entitled for the same. 

7.        The contention of the first opposite party is that the complainants are bound to repay the loan and for escaping the liability this complaint has been filed which is liable to be dismissed with the cost of the opposite parties.

8.     The second opposite party filed version and stated that  late Kunhathan availed loan from the first opposite party on 24/05/2005 as NAST 4487 Rs. 25,000/-. The loan repayment period was up to 23/05/2006.  He renewed his loan on 20/09/2013 as NAST 10975.  The second opposite party submitted that even if a loan is renewed it is to be treated as new loan and accordingly the first opposite party filed ARC before Co-operative Assistant Registrar Court, Manjeri and after hearing an award was passed on 29/11/2016. The proceedings before ARC was properly conducted after do service of parties irrespective of whether the parties belong to scheduled caste or not. 

9.      The second opposite party submitted that as per Circular No.25/2015 dated 25/05/2015 of Co-operative Registrar, the defaulted loans which are pending before 31/03/2010 and which was closed before 31/03/2015 are entitled for the benefit.  As per the scheme to consider the name of late Kunhathan and including his loan in the list a letter was sent to the parties to prove the caste which belongs to them. The parties produced documents as per the letter.  The first opposite party included the name of the loanees in the list and it was forwarded to the government.  As per the circular 25/2015 the government considered defaulted loans up to 31/03/2010 only and so loan of Kunhathan was not considered. The loan of the late Kunhathan was renewed on 20/09/2013 as NAST 10975 and so the late Kunhathan was disentitled for the benefit.  The ARC was filed in the light of above facts and the award was passed accordingly.  The second opposite party submitted that a loan which was taken on 24/05/2005 NAST 4487 which was due on 31/03/2010 is entitled for the benefit even if it was repaid subsequently. 

10.     The complainant and opposite parties filed affidavits and documents. The document on the side of complainant marked as Ext. A1 to A6. The document on the side of opposite parties marked as Ext. B1 to B3. Ext. A1 is counterfoil of postal order for Rs. 100/- dated 24/08/2017, Ext. A2 is copy of summons issued to Kunhanthan S/o Neelandan.  Ext. A3 is copy of summons issued to Krishnan S/o Kunhathan, Ext. A4 is copy of summons issued to Sajini W/o Krishnan, Ext. A5 is copy of Death Certificate of Kunhathan who died on 21/09/2014 and certificate issued on 10/12/2014, Ext.A6 is copy of letter issued by first opposite party to the loanee NAST 4487 dated 17/7/2015.  Ext. B1 is copy of Circular No.25/2015 issued by Co-operative Registrar dated 25/5/2015, Ext. B2 is the copy of proforma of Scheduled Caste Debt Reliefs Scheme, Ext. B3 is copy of order issued by Co-operative Department as 96/2014 dated 24/07/2014.

11.     Heard complainant and opposite parties, perused affidavit and documents. The following points arise for consideration: -

1. Whether the complainant entitled to the benefit of debt relief scheme 

declared by the Government as per Circular No.25/2015.

2.   Whether there is deficiency in service on the part of opposite parties.
3.  Relief and cost.

12. Point No.1 &2:-

         The case of the complainants is that late Kunhathan S/o Neelandan availed a loan    of Rs. 25,000/-from the first opposite party bank on 20/09/2013.They submitted that late Kunhathan had remitted some amounts towards the loan account on various occasions.  The complainants also submit that the documents belong to them were also produced before first opposite party as part of loan transactions.  The claim of the complaint is that they are entitled to write off the loan on account of death of principal loanee as per the Government circular dated 25/05/2015 as 25/2015.    The complainant had produced community certificate to establish that the loanee belongs to scheduled caste.  The allegation of the complainants is that the first opposite party ignored the claim of the complainants and so they were not considered for the benefit under the scheme.

13.            The first opposite party and second opposite party filed versions and affidavits having different stories. The first opposite party submitted that the late Kunhathan had availed a loan from the Bank on 24/05/2005 and he repaid the loan with interest on 20/09/2013.  It is also submitted that the present loan in dispute was not availed by the Late Kunhathan or the complainants for the repayment of loan taken on 24/05/2005. It is also submitted as per account the present loan amount is Rs. 62,000/-. The Late Kunhathan availed loan on 20/09/2013 and due to default, they initiated for the recovery procedure and accordingly an award was obtained from the Assistant Registrar of Co-operative Societies, Manjeri.  It is definite that the late Kunhathan availed loan on 24/05/2005 and it was paid along with interest on 20/09/2013.  It is also pertinent to note that late Kunhathan availed the present on 20/09/2013. In short, closing of seven-year-old loan and availing of fresh loan took place simultaneously.

14.      The second opposite party submitted that late Kunhathan availed loan Rs.25000/- on 24/05/2005 NAST 4487 and the repayment period of the loan was on 23/05/2006.  Late Kunhathan renewed the loan NAST 4487 on 20/09/2013 as NAST 10975. It is stated that even though a loan is renewed it will be treated as a new loan.  The first opposite party filed complaints before Assistant Registrar of Co-operative Society, Manjeri to realize the loan and an award was passed on 29/11/2016.  The ARC cases were disposed following the legal formalities

15.           It can be seen from the affidavit of opposite parties that the late Kunhathan had availed a loan on 24/05/2005 and that has to be repaid on or before 23/05/2006.  The first opposite party has not taken any steps to realize the loan amount from the late Kunhathan till 20/09/2013.  So, it can be seen that 2005 loan was due up to 2013.  There is no evidence to establish the first opposite party has taken any steps to acknowledge the loan or to realize the loan amount.   In the light of the facts loan dated 24/05/2005 NAST4487 was time barred one.  The first opposite party submit that a loan was issued to the late Kunhathan on 20/09/2013 as NAST 10975 and on the same day the complainant remitted the loan with interest availed by him on 24/05/2005 NAST 4487.  It is pertinent to note that the first opposite party has not stated what was the amount remitted by the late Kunhathan on 20/09/2013 towards loan and interest.  On the other hand, the first opposite party definitely stated that the loan availed on 20/09/2013 was not to repay the loan availed by the late Kunhathan on 24/05/2005.  So, it is definite that a time barred debt of late Kunhathan was realized by the first opposite party in an unfair way of service.  The second opposite party has stated that late Kunhathan availed a loan in the year 2013 and as part of realization of the same approached the first opposite party before second opposite party and considering the legal formalities an award was passed also.  Considering the legal aspects there is nothing illegal on the side of second opposite party.  But the fact remains the complainant was availed a loan in the year 2005 and which has been renewed after seven years by the first opposite party through an unfair way of service. 

16.           The case of complainant is that   they are entitled to the benefit of government order circulated by Co-operative Registrar through circular No.25/2015 dated 25/05/2015.  The allegation of the complaint is that the first opposite party even though the complainants are entitled for the benefit has not included in the list of beneficiaries of the scheme.  But the first opposite party submitted that the benefit under the government order available to the defaulted loans up to 31/03/2010 and which are considered defaulted loan before 31/03/2015. According first opposite party the complainant is entitled to the benefit under the scheme. The first opposite party also submitted that the name of the late Kunhathan was also included in the list of beneficiaries and he has produced Ext. B2 to establish the same.    The second opposite party also submitted that the loan of the complainant was renewed on 20/09/2013 as NAST 10975 and so the loan of Late Kunhathan was not entitled for the benefit.  At the same time the loan issued to the complainant on 24/05/2005 NAST 4487 was defaulted one and which was pending on 31/03/2010, in such case also even if it was repaid, the loanee is entitled   for the benefit under scheme. 

17.     At present from the averments in the affidavits and pleading from the complainant it can be seen that there was a loan in the name of late Kunhathan which was pending as due, to be considered as per the government order to write off is the issue of the complaint.  The opposite parties waiting for the appropriate decision from the government. No doubt it will be a process, will take its own time.  But in this complaint, it can be seen that all the inconvenience and proceedings caused due to the improper, irregular rather unfair service on the part of first opposite party. Hence, we find that there is merit in this complaint and there is deficiency in service on the part of first opposite party.  The Commission find accordingly.

18.Point No.3

          The first complainant is the S/o late Kunhathan and the second complainant is his wife.  Late Kunhathan availed the loan in the year 2005 and it was renewed by him in the year 2013.  It is already found that it was an unfair practice on the part of first opposite party and as part of that transaction the complainants were dragged in to the loan transaction. The complainant submitted that the documents belong to them were produced before the first opposite party as part of the loan transaction. It is to be noted that the first opposite party had taken a contention that the matter was considered by Assistant Registrar of Co-operative Society and so Consumer Disputes Redressal Commission has no jurisdiction to entertain the complaint. But it can be seen that the complainant has not raised any allegation or illegality against the order passed by the Assistant Registrar of Co-operative Societies.  The complainant is not challenging the order of Assistant Registrar of Co-operative Societies.  The grievance of a complainant is against the first opposite party who did not care to see the name of the late Kunhathan and his loan included in the list of beneficiaries under the government order.  But the same stands disproved by the Ext. B2 document.  At the same time, it has come to the notice of the Commission that there was defective service on the part of the first opposite party   in making records of loan on 20/09/2013.

19.          The prayer of the complainants is that to declare that there is no liability to pay Rs. 89,236/- to the opposite parties and also to allow compensation of Rs 50,000/- and cost of Rs. 2000/-.

20.   In the light of above facts and circumstances we allow the complaint is as follows: -

1.  The first opposite party is restrained from realizing Rs. 89,236/-(Rupees Eighty nine thousand two hundred and thirty six only) from the complainant  involved  as part of  loan transactions  in this complaint. 
2. The first opposite party is allowed to credit the benefits of the loan covered under the Government order 25/2015 dated 25/05/2015 towards the loan account in dispute whenever it is approved by the government.
3. The first opposite party is also directed to pay Rs. 10,000/-(Rupees Ten thousand only) as cost of the  proceedings to the complainants. 

The complaint is disposed accordingly and the first opposite party is directed to pay Rs. 10,000/-(Rupees Ten thousand only) to the complainant towards the cost of the proceedings within one month from the date of receipt of copy of this order, failing which the complainant will be entitled for the interest on above amount at the rate of 12% per annum from the date of complaint till realization.

            Dated this 18^thday of March, 2022.