DATE OF FILING : 6.7.2011
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 29th day of November, 2011
Present:
SRI.LAIJU RAMAKRISHNAN PRESIDENT
SMT.BINDHU SOMAN MEMBER
C.C No.151/2011
Between
Complainant : Xavier Joseph,
Kallidikkil House,
Alakkodu P.O.,
Idukki District.
(By Advs: Suraj K.S. & C.K. Babu)
And
Opposite Parties : 1. The President,
Muthalakkodam Service
Co-operative Bank,
Muthalakkodam P.O.,
Idukki District.
2. The Secretary,
Muthalakkodam Service
Co-operative Bank,
Muthalakkodam P.O.,
Idukki District.
(Both by Advs: P.S.Biju & K.M.Sanu)
O R D E R
SRI. LAIJU RAMAKRISHNAN (PRESIDENT)
The complainant purchased 15 cents of land in Sy. No.1446/1/27 (block No.34, Re. Sy. No.278/4) of Thodupuzha Village by virtue of a Sale Deed No.5202/04 of Karikode SRO and it was from Mr.Antony S/o Kuriako, Myladmparayil House, Sathampara Kara, Muthalakkodam P.O. Earlier owner of the property, Mr.Antony had availed a loan of Rs.15,000/- from the Muthalakkodam Service Co-operative Bank. While purchasing the same, the complainant assured that the loan will be repaid by him. While the complainant approached the 2nd opposite party, they have agreed to release the sale deed which is deposited at the Bank immediately after discharging the due amount to the bank. Accordingly, the complainant paid the entire outstanding amount and closed the loan account in 2009. After that the complainant was repeatedly requested for executing the necessary release deed discharging the charge created by the said Antony. But the opposite parties are not agreed so far. So the act of the opposite party is deficiency in service because the
(cont....2)
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complainant had paid the entire amount in the loan, availed by the said Antony. The complainant could not mortgage his property or raise funds even for medical emergencies due to the act of the opposite parties, so that the complainant had sustained damages of Rs.10,000/-. On 28.5.2011, the complainant constrained to issue a lawyer's notice for the same. Though the opposite parties received the same, nothing was done by them so far. So this petition is filed for directing the opposite party to execute release deed in respect of the mortgage created by the said Antony.
2. As per the written version filed by the opposite parties, the complainant is not a consumer as defined under Section 2(d) of the Consumer Protection Act, 1986. The opposite parties neither provided any service nor sold any goods to the complainant and there is no consumer relationship with him and thereby there is no deficiency in service on the part of the opposite parties. Mr. Antony S/o Kuriakose (member No.3630) has availed a loan for Rs.15,000/- from the society by mortgaging his property and also took another loan of Rs.10,000/- in his name and Rs.5,000/- in his wife Brigitha's name. While the loans were pending, the said Antony sold the mortgaged property to the present complainant without the consent of the society in the year 2004. Now the said two loans are outstanding and the total dues comes Rs.47,673/-. After selling the property, the said Antony and Brigitha left the place and residing at some where and nobody knows the whereabouts of them. The society is having general lien over the property mortgaged by the said Antony. The society have every right to realise the outstanding due of the said Antony from the mortgaged property. The transfer of the mortgaged property without the prior consent of the society is a criminal offence and nobody can demand the release deed except the borrower or his legal heirs. So the opposite party is having the right to realise the loan dues from the borrower and from his property and there is no deficiency from the part of the opposite parties.
3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?
4. No oral evidence adduced by the complainant and Exts.P1 and P2 marked on the side of the complainant and oral testimony of DW1 and Exts.R1(series) to R3(series) marked on the side of the opposite parties.
5. The POINT:- The complainant is the absolute owner and in possession of the 15 cents of land in Sy.No.1446/1/27 of Thodupuzha Village. The prior owner of the property has availed a loan of Rs.15,000/- from the Muthalakkodam Service Co-operative Bank. So before purchasing the property, the complainant contacted the 2nd
opposite party and he revealed that there was a loan of Rs.15,000/- availed by the pre-
(cont....3)
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owner and that was became due and on receiving the amount the mortgage will be released. After purchasing the property by the complainant, he closed the said loan availed by the pre-owner which is Rs.15,000/-. But the release deed was not executed in favour of the complainant. So the complainant constrained to issue a lawyer's notice to the opposite party and it was duly received by the opposite party but issued a reply notice stating that the deed was executed in the name of the pre-owner of the property, Mr.Antony. So the release deed can be created in favour of the said Antony and there is no relationship with the complainant. The pre-owner of the property Mr.Antony, who was a member of the society as No.3630 had availed a loan of Rs.15,000/- from the society after mortgaging the disputed property. Moreover, the said Antony and his wife availed loans of Rs.10,000/- and Rs.5,000/- respectively from the opposite party society with their own joint sureties. The said Antony had sold the property without prior sanction of the society. The loan availed by him with the surety of his wife and by his wife with the surety of the said Antony are became due and the entire dues comes to Rs.47,673/-. The ledger extract of the loan availed by the said Antony and his wife Brigitha are marked as Ext.R1(series). So the society is having a general lien on the property because the two other loans are in due. Without the consent of the society, the property was sold out and it is a criminal offence. Ext.R3(series) are the reply notices issued by the opposite party to the complainant for Ext.P1 notice with the postal Acknowledgement Card and postal receipt. As per the complainant, it is admitted that the pre-owner of the property Mr.Antony has availed a loan of Rs.15,000/- and while the complainant purchased the property, the 2nd opposite party told that the mortgage deed of the property will be released after paying the amount. It was duly paid by the complainant, but the release deed was not executed by the opposite party. So he constrained to issue a lawyer's notice to the opposite parties. As per the opposite parties, eventhough there was a loan of Rs.15,000/- availed by the pre-owner of the property Mr.Antony by mortgaging the disputed property, there are two other loans pending before the opposite party society which were availed by the pre-owner of the property Mr.Antony and his wife Brigitha as joint sureties. But that amount was not paid by them. So the society is having a general lien over the property and an entire amount of Rs.47,673/- is due in that loans.
The main contention raised by the opposite party is that the complainant is not a consumer of the opposite party as per the Section 2(d) of the Consumer Protection Act, 1986 because as per the reply notice issued by the opposite party, the Secretary had never agreed to execute the release deed in favour of the complainant because the charge on the property is created by Antony and it is hit by the provisions of Co-operative Societies Act to execute release deed in favour of the complainant. The complainant has not availed any service from the bank nor the bank has not offered any service to the complainant. But it is admitted by the opposite party that the loan
(cont.....4)
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availed by the pre-owner of the property, Mr.Antony by mortgaging the property, which is for an amount of Rs.15,000/- was repaid by this complainant and the amount paid by the complainant was Rs.33,000/-. So the amount was repaid by the complainant to the opposite party was as per the assurance given by the opposite party to the complainant that if the loan availed by the said Antony by mortgaging the property has closed by the complainant, the release deed would be executed. So that the complainant paid the amount to the opposite party. So the opposite party received the amount as consideration for releasing the sale deed of the property mortgaged to the bank while the said Antony availed the loan from the bank. So the contention of the opposite party that there is no transaction between the complainant and the opposite party and no consideration has received by promising any service is not at all sustainable.
The major contention of the opposite party is that two other loans availed by the pre-owner of the property Mr.Antony and his wife with joint sureties was not repaid eventhough the loan availed by them by mortgaging the property has been repaid. The said Antony and his wife are not residing there and they have sold out the property. So the bank is having a lien over the property mortgaged by them. So we think that as per the assurance given by the opposite party, the complainant already repaid the loan availed by the said Antony by mortgaging the property after purchasing the property by him. At the time of closing the loan, the opposite party never revealed to the complainant that two other loans were also pending against the said Antony and his wife. So the bank ought to have executed the release deed in favour of this complainant while the complainant paid the entire amount availed by the said Antony by mortgaging the property. That was not done by the bank and it is the duty of the opposite party bank to trace out the principal loanee and the sureties for the repayment of the loan availed by them before initiating coercial steps against
the property purchased by the complainant. After trying to trace out the principal loanee and the sureties, then only the bank has the right to proceed against the property, because the loanee has not availed the loan by pledging the property. If a person availed a loan with the surety of another person, the bank ought to have proceed against that person and surety first. Here there is no evidence produced by the opposite party to show that they have proceeded against the principal loanee or the surety for the repayment of the loan. Eventhough there is a lien against the property.
Hence the petition closed with a direction to the opposite parties to proceed against the principal loanee and the surety who are Mr.Antony and Mrs.Brigitha, to recover the loans availed by them, from the bank by their personal surety. The
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opposite parties are also directed to enquire whether they have any other property, before initiating coercial proceedings against the property of the complainant.
Pronounced in the Open Forum on this the 29th day of November, 2011
Sd/-
SRI. LAIJU RAMAKRISHNAN (PRESIDENT)
Sd/-
SMT. BINDHU SOMAN (MEMBER)
APPENDIX
Depositions :
On the side of the Complainant :
Nil.
On the side of the Opposite Parties :
DW1 - C.V. George.
Exhibits :
On the side of the Complainant :
Ext.P1 - Copy of the lawyer's notice issued by the complainant.
Ext.P2 - The reply notice issued by the opposite party for Ext.P1 notice.
On the side of the Opposite Parties :
Ext.R1(series) - Copy of the ledger extract of the loan availed by the complainant
Mr. Antony and his wife Brigitha.
Ext.R2 - Copy of the lawyer's notice issued by the complainant.
Ext.R3(series) - Copy ofthe reply notice issued by the opposite party to the
complainant, its postal Acknowledgement Card and postal receipt.
