KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUANANTHAPURAM APPEAL NO.572/09 JUDGMENT DATED 18.6.2010 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER State Bank of Travancore Thiruvarpu Branch, Kiliroor north P.O, -- APPELLANT Kottayam, rep by the Branch Manager. (By Adv.G.S.Kalkura) Vs. 1. P.K.Sugunan, Pullasseril, Thiruvarpu.P.O, Kottayam. 2. Remya.P.S. -- RESPONDENTS D/0 Sugunan, Pallasseril, Thiruvarpu.P.O, Kottayam. (By Adv.K.R.Haridas) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER Appellant was the opposite party and respondents were the complainants in CC.11/07 on the file of CDRF, Kottayam. The aforesaid complaint was filed alleging deficiency in service on the part of the opposite parties in disbursing the educational loan (Gyan Jyothi) to the second complainant Remya.P.S. who joined the nursing course by availing the educational loan from the opposite party/ bank. The opposite party/bank entered appearance and filed written version denying the alleged deficiency in service. It was contended that the complainants were not ready to execute the revival agreement to get the educational loan for 4th year of the course. Thus, the opposite party/bank prayed for dismissal of the complaint. 2. Before the Forum below, both the complainant and the opposite party filed proof affidavit in lieu of examination in chief. Exts. A1 to A4 and A4 (a) documents were produced and marked on the side of the complainants and B1 to B4 documents on the side of the opposite party. On an appreciation of the documentary evidence on record, the Forum below passed the impugned order dated 29th August 2009 directing the opposite party/bank to pay compensation of Rs.20,000/- with cost of Rs.1000/-. It was also directed to return the title deed deposited in the bank by the complainant. There is also a default to clause for payment of interest at the rate of 9% per annum. Aggrieved by the said order, the present appeal is filed by the opposite party/bank. 3. When this appeal was taken up for final hearing, there was no representation for Respondents 1 and 2 (complainants), though vakalath filed for respondents 1 and 2. We heard the learned counsel for the appellant/opposite party/bank. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He vehemently argued for the position that there was no deficiency in service on the part of the opposite party/bank in disbursing the educational loan for the 4th year and that the complainants were not prepared to execute the necessary revival agreements to get the educational loan disbursed. He much relied on the order dated 5/12/07 passed by this State Commission in Revision Petition No.8/07 and further submitted that the complainants who were the respondents in the said revision were not prepared to comply with the directions contained in the said Revision petition dated 5.12.07 passed in Revision petition No.8/07. It is also submitted that the Forum below passed the impugned order without considering the order dated 5.12.07 passed by this State Commission in Revision petition No.8/07. Thus, the appellant prayed for setting aside the impugned order passed by the Forum below in CC.No.11/07. 4. There can be no doubt about the fact that the appellant/opposite party/bank disbursed the educational loan to the second respondent/second complainant for her nursing course and thereby the educational loan for 3 years was disbursed. The case of the respondents/complainants is that there occurred failure on the part of the appellant/opposite party/bank in disbursing the educational loan for the 4th year. 5. During the pendency of CC.11/07, the complainants filed an interlocutory application as IA.No. 5/07, and the Forum below passed an order dated 12th February 2007 in the said IA 5/07 directing the opposite party/bank to disburse the 4th year fees of the second complainant to the KKEGS College, Karnataka within one week from the date of receipt of the aforesaid order. It was also directed to take lenient view in the matter by the opposite party/bank. Against the aforesaid order passed by the Forum below on IA.5/07, the opposite party/bank preferred Revision petition No.8/07. After hearing both parties, this State Commission passed the order dated 5.12.07 in the aforesaid Revision petition No.8/07 and thereby the Revision petitioner/ (opposite party) bank was directed to disburse the balance amount and tuition fee immediately on furnishing the documents by the complainants. In the said order, the complainants were also directed to execute a revival letter and furnish bonafide course certificate for the 4th year and the Progress Report through the College if not already furnished. It is the definite case of the appellant/opposite party/ bank that the complainants were not ready to execute the revival letter and to produce the course certificate and progress report through the concerned College. It is also submitted that the opposite party/bank filed an affidavit regarding their readiness to disburse the educational loan for the 4th year provided the complainants are ready to execute the revival letter and the connected papers. It is specifically averred in the proof counter affidavit filed by the Branch Manger of the opposite party/bank at Para 5 of the said affidavit as follows:- “There is an interim order passed by in this case by the Hon.appellate authority which is to the following effect. “All the same, the complainants are directed to execute a revival letter and furnish bonafide course certificate for the 4th year and the progress report through the College if not already furnished. The bank shall disburse the balance amount and tuition fee immediately on furnishing the above document. Revision petition is disposed of accordingly”. 6. The definite case of the appellant/opposite party/bank is that the complainants never complied with the directions contained in the order passed by this State Commission in Revision petition No.8/07, and only because of the failure of the complainants, the opposite party/bank could not disburse the course fee for the 4th year. It is to be noted that there is nothing on record to show that the complainants executed the revival letter as directed in the order dated 5.12.07 passed by this State Commission in Revision Petition No.8/07. It was the bounden duty of the complainants to execute the revival letter as directed in the order passed by this State Commission in Revision petition No.8/07. The available materials would show that the complainants failed to execute the revival letter. If that be so, the appellant/opposite party/bank can be justified in not disbursing the balance of the educational loan to the complainants especially, the tuition fee for the 4th year. Thus, the material evidence on record would show that the complainants themselves were at fault. It would also give an indication that the complainants have been insisting opposite party/bank to disburse the balance of the educational loan without executing the revival letter. So, the finding of the Forum below that there was deficiency in service on the part of the opposite party/bank in disbursing the educational loan amount cannot be upheld. The Forum below failed to appreciate the direction given by this State Commission in the order dated 5.12.07 passed in Revision petition No.8/07. So, the impugned order passed by the Forum below is liable to be quashed. Hence we do so. In the result, the appeal is allowed. The impugned order dated 29th August 2009 passed by CDRF, Kottayam in CC.11/07 is set aside. The parties to this appeal are directed to suffer their respective costs through out. M.V.VISWANATHAN -- JUDICIAL MEMBER S.CHANDRAMOHAN NAIR -- MEMBER | 
