KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No. 468/2004

JUDGMENT DATED:  11..02..2010

PRESENT:

SMT. VALSALA SARANGADHARAN   :  MEMBER

SHRI. M.V. VISWANATHAN                    :  JUDICIAL MEMBER

SHRI. S. CHANDRA MOHAN NAIR        : MEMBER

1.                Thidanad Service Co-operative

Bank Ltd., President C.A.Abraham    

Chalil, Thidanadukara.

2.                C.A.Abraham Chalil (H),

Thidanadu, Kondoor President,                    :        APPELLANTS

Thidanadu Service Co-operative

Bank Ltd.

3.                P.J.Thomas Poriyathu,

Chemmanamattom kondoor

Secretary, Thidanad Service

Co-op. Bank Ltd.

                                                Vs

P.P.Sureshkumar                                               :        RESPONDENT

Perumpallil (H), Keezhampara,

Kondoor.

JUDGMENT

SHRI.S. CHANDRA MOHAN NAIR :  MEMBER

This appeal is preferred by the opposite parties in OP:165/02 before the CDRF, Kottayam who have assailed the order dated:20..2..2004 whereby they are under directions to pay compensation of Rs.10,000/- and cost of Rs.1000/- to the complainant within 45 days from the date of receipt of the order.

2.      The complainant has approached the Forum alleging that though he had closed the loan on 14..5..2001, the opposite parties did not release the document for the loan of Rs.15,000/- taken by him.  It is his further case that he was only a surety in another loan and the opposite parties have no authority or right to detain the document pledged by him.  He has also submitted before the Forum that he had entered into an agreement for sale with one M.J.Mathew on 10..5..2001 and had obtained an advance of Rs.10,000/-.  As the opposite parties failed in releasing the document he had suffered great loss and the complaint was filed praying for directions to the opposite party to pay him Rs.1,00,000/- as compensation for the mental agony, inconvenience and pecuniary loss suffered by him.

3.      The opposite parties in their joint version contended that the Forum had no jurisdiction to entertain the petition as the Co-operative society was not made a party in the party array.  They had also contended that as the complainant was a member of the society he was barred from filing a complaint before the Forum.  It was further submitted that though the complainant had closed his loan the document could not be released due to the fact that he was a surety in another loan and the principal debtor in that loan had defaulted the payments to the society and in such a situation the demand notices were sent to principal debtors and sureties by which act it could be seen that the complainant was a debtor to the society and the bank had exercised only the general lien available to the bankers in such circumstances.  Contending that there was no deficiency of service in withholding the document they prayed for the dismissal of the complaint.

4.      The evidence consisted of the affidavits filed by both sides and Exts.A1 to A15 on the side of the complainant.

5.      The learned counsel for the appellants/opposite parties submitted before us that the Forum below had gone wrong in awarding compensation and costs and the said order is per-se illegal and unsustainable.  He has advanced the contention that the Forum had no jurisdiction as the Co-operative Societies Act and Rules clearly bar a member of the society to file a complaint before the Forum and that the complainant had not made the Co-operative Society as a proper party in the party array.  He has also submitted before us that the complainant was a defaulter in another loan being the surety to that loan and in such circumstances the bank had every right to retain the document with them.  It is also his contention that the Forum had awarded compensation without any basis and the same is liable to be set aside.

6.      On the other hand the learned counsel for the respondent/ complainant supported the findings and conclusions of the Forum below and submitted before us that the opposite parties had failed in releasing the document as soon as the complainant had cleared his loan with the bank.  He has also submitted that the bank could not contend they have a general lien over the property because the deed was executed specifically as guarantee for the loan taken by the complainant.  It is also his case that the Forum was right in awarding compensation as the complainant had entered into an agreement for sale and consequent to the non release of the document, the complainant had to suffer monetary loss and other difficulties.  He has also advanced the contention that the opposite parties withheld the document without valid reasons and that the order of the Forum below is liable to be upheld and the appeal dismissed.

7.      On hearing the learned counsel for the appellants and the respondent we find that it is the admitted case of both the parties that the complainant had taken a loan and that he had cleared the dues on 14..5..2001.  It is also the admitted case that the complainant was a surety to another loan and that the opposite parties had delayed the release of the document.  The appellants would contend that the document was not released due to the fact that there was arrears in the loan in which the complainant was a surety.  It is also the case of  the appellants that the appellants had every right to retain the document in order to pressurise the parties to clear the loan taken from them. As the learned counsel for the appellants has argued, it is seen that the opposite party bank has a general lien on the property of its debtors.  In the instant case the short question to be considered is whether the complainant can be treated as a debtor.  It is the admitted case that he was a surety to another loan and being a surety it is his bounden duty to clear the arrears in case the principal loanee/debtor defaults payment to the opposite party bank.  The complainant/respondent has no case that there was no arrears in the other loan and that he was not a surety to the said loan.  In such circumstances we are inclined to accept the contention of the appellants/opposite parties that the banker had every right to detain the document executed by the complainant/respondent.  In such a situation we cannot support the findings and conclusions of the Forum below in awarding Rs.10,000/- as compensation.  However the contention of the appellants that the complainant is barred from approaching the Forum is not accepted.  The complainant has every right to approach the Forum under Section-3 of the Consumer Protection Act.  Though Sec.69 of the Co-operative Societies Act empowers the complainant to approach the arbitrator he has also the alternate remedy to approach the Forum. 

In the result the appeal is allowed.  The order of the Forum below in OP:165/02 of CDRF, Kottayam is set aside.  In the facts and circumstances of the present appeal, the parties are directed to suffer their respective costs.

S. CHANDRA MOHAN NAIR         : MEMBER

VALSALA SARANGADHARAN    :  MEMBER

M.V. VISWANATHAN  :  JUDICIAL MEMBER

VL.