DOF.15.5.2009 DOO3./ 8/2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 3rd day of August 2010 CC.127/2009 Kuriakose, S/o.Varghese Ayathumkudi, P.O.Chettiyamparamba, Kelakam . Complainant Secretary, Chettiyamparamba S.C.Bank, P.O.Chettiyamparamba, Kelakam. (Rep. by Adv.E.G.Roy) Opposite Parties O R D E R Smt.K.P.Preethakumari, Member This is a complaint filed under sectin12 of consumer protection act for an order directing the opposite party to pay Rs.10, 000/- as compensation. The case of the complainant is that the opposite party had promised to give Rs.1, 00,000/- as loan amount after mortgaging one acres of his land comprising in RS.472 of Kelakam Amsom and Desom in Thalassery Taluk and he had executed the mortgage deed in favour of the bank on 10.12.98 But the bank was not ready to release the loan amount even after repeated request of the complainant. He had approached the bank on 10.12.08 and after that on 19.1.09 he had issued a notice to the bank. But the bank was not ready to allow the loan to the complainant by saying that the bank is in financial crisis and hence they were not in a position to allow the loan amount. The complainant had incurred an expense of Rs.10, 000/- for executing the mortgage deed etc. So this was caused to the complainant due to the deficient service of the bank and hence the opposite party is liable to compensate the complainant. Hence the complaint. In pursuance to the notice issued by the Forum, the opposite parties appeared and filed their version. The opposite party admits that the complainant is a member of the bank and he had approached the bank for loan and the bank was agreed to give the same after executing a mortgage deed and hence the complainant had executed a deed in faovur of the bank. Even though the bank was ready to give the loan amount at any time, the complainant on21.1.99 approached the bank and he had obtained back his document from the bank by saying that he had decided to sold his property. It is not correct to say that the bank is in financial crisis during that time. The bank had given loans to some other persons during that period. So the averment that the bank was in financial crisis is not correct. Usually for availing loan from co. operative service banks the person has to meet all the expense for availing the loan. So there is no deficiency on the part of opposite party. More over the complaint is filed after the limitation period and hence the complaint is barred by limitation. Hence the complaint is liable to be dismissed. Upon the above pleadings the following issues have been raised for consideration:- 1. Whether the complaint is barred by limitation? 2. Whether there is any deficiency of service on the part of opposite parties? 3. Whether the complainant is entitled to any relief? 4. Relief and cost. The evidence consists of the oral testimony of PW1, DW1 and Exts.A1 to A5 and B1 to B11. Issue No.1 The case of the complainant is that even though he had applied for a loan from the opposite party and mortgaged his property, the opposite party was not willing to give loan even after his repeated request and hence he had suffered so much of mental as well as physical hardship and all these was caused due to the deficiency of service and unfair trade practice of the opposite party. In order to prove his case he had produced documents Exts.A1 to A5 i.e. copy of mortgage deed, copy of release deed, notice dt.19.1.09, copy of notice issued to sub registrar, Peravoor and receipts 5 in numbers issued by opposite party. To disprove the case opposite party also produced Exts.B1 to B11 documents such as ledger, loan ledger, liability ledger, and loan ledgers through which loan was disbursed to different persons. According to the opposite party, the complaint is barred by limitation and the complaint is not maintainable before the Forum, since the complainant is a member of the society. Admittedly the mortgage deed i.e. Ext.A1 is on 10.12.98 i.e. the complaint had mortgaged his property to the bank on 1012.98 for the loan mount. According to the opposite party the complaint has filed after 11 years from the mortgage deed and hence the complaint is barred by limitation. The complainant deposed before the Forum that:” 10.12.98 \mWv Rm³ ]W-bm-[mcT sN¿p-¶-Xv. ]W-bm-[m-cT \S-¯n-b-Xnsâ ]ntä Znh-kT tem¬ Bh-i-y-¯n-\mbn _m¦n sN¶p. _m¦n ]W-an-Ãm-¯-Xn-\m Xcm³ Ign-bn-söp ]dªv aS-¡n. 21-.1-.99-\p-Rm³ _m¦n \n¶p Fsâ-]-W-bm-[m-c-hp-ambn _Ô-s¸« tcJ-IÄ Hgn-apdn Hgn¨v _m¡n tcJ-IÄ apgp-h³ hm§n-bn-«p-v. Cu tcJ-IÄ aS¡n In«p-T-t]mÄ tem¬ In«n-Ã-sb¶p a\-Ên-em-bn-cp¶p“. So from these it is seen that even though the complainant had mortgaged the property to the bank he had taken back his documents and at the time of taking back the same, he realized that he cannot get the loan. But according to the complainant the opposite party had given the release deed only on 3.1.09 and hence causes of action is arise only on 3.1.09. But as per the evidence of the complainant, it is clear that he has the knowledge that the loan amount will not be disbursed to him. Since the case is for compensation for not released loan amount, the cause for the complaint arose on the date of knowledge that the loan amount will not be disbursed to him. In Narayan Givaji Vs. Gurunath Gouda AIR 1939, Bombay, the Bombay High Court gave meaning of cause of action as “ A cause of action briefly means right and the infringement of that right” where a party has an undoubted right and that right is infringed, a cause of action at once accrues to him. So in this case the cause of action arises on the date of knowledge itself. As per section 24A(1) of the Consumer protection act the District Forum, State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. So in this case, the cause of action arises on 21.1.99 and hence the complaint should be field within 21.1.2001. But this complaint was filed during 2009. So it is clear that the complaint is filed after the limitation period. So we are of the view that the complaint is filed after the limitation period and hence the complaint is barred by limitation. Since issue No.1 is found against the complainant, we are not going deep into the merit of the case and the complaint is liable to be dismissed and order passed accordingly. In the result, the complaint is dismissed. No order as to costs. Sd/- Sd/- Sd/- President Member Member. APPENDIX Exhibits for the complainant A1.Copy of mortgage deed A2.Agreement A3. Copy of the letter sent to OP dt. 19.1.09 A4.Copy of the letter sent by OP to Registrar. A5.Receipts issued by OP Exhibits for the opposite party B1.Copy of the ledger maintained by OP for return of pledged deed B2.Copy of the loan ledger B3.Copy of the transaction made by the complainant and OP B4 to B11. Copy of the loan ledger maintained by OP Exhibits for the court C1.Commisison report Witness examined for the complainant PW1.Complainant Witness examined for the opposite party DW1.K.V.Maniyan /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
