CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM.
Present
Sri. Santhosh Kesavanath P. President
Sri. K.N. Radhakrishnan, Member
CC No.318/09
Wednesday the 28th day of March, 2012
Petitioners : Usha Sasikumar
Saranniya Nivas,(Athithanathu)
Kuzhimattom PO
Kottayam.
(Ptnr repted.through her husband as
authorized agent)
Vs.
Opposite party : Secretary,
Panachikad Regional Service
Co-Op.Bank Ltd3959
H.O Channanikkadu,
Kottayam.
2) President,
-do-
3) Branch Manager
Paruthumpara Branch,
-do-
(Adv. C.A. Jose)
ORDER
Sri. K.N. Radhakrishnan, Member
Case of the petitioner, filed on 12/10/09, is as follows:-
Petitioner on 25/8//09 availed a loan from opposite party bank. At the time of disbursing the loan amount, opposite party bank had taken an amount of Rs.9013/- from the loan amount of petitioner, being dues which are liable to be paid by P.G.Sasikumar husband of the petitioner. According to petitioner she is not at all a defaulter to the opposite party bank either as a loanee or as a surety. According to the petitioner due to act of deficiency in service committed by the opposite party, petitioner is entitled for refund of amount detained by the opposite party. Petitioner claims compensation and cost.
Opposite party filed version contenting that petition is not maintainable. According to opposite party petitioner approached 1st opposite party for a loan of Rs. 2,00,000/- and offered his landed property as security for loan transaction. In the said loan agreement petitioner and her husband are borrowers. Further more 2nd party of loan transaction is P.G.Sasikumar and 1st party is petitioner herself. In the said loan, with vide No 430/07-10, petitioner and her husband are jointly and severally liable for the subsisting dues while disbursing the amount. The 2nd party of the loan agreement Sri. Sasikumar P.G had subsisting liability to the 1st opposite party bank in loan
no.385/98-99. Petitioner’s husband is the 2nd surety in the loan sanctioned infavour of one Jayanthy T.A. More over Sasikumar P.G husband of the petitioner, himself is a loanee with vide loan no. 384/98-99 and said T.A. Jayanthi is the surety. According to the opposite party they are entitled for a lien to the offered sanctioned loan and there is no deficiency in service on the part. Opposite party prays for dismissal of the petition with their costs
Points for determinations are:
i) Whether there is any deficiency in service on the part of opposite parties?
ii) Reliefs and costs?
Evidence in this case consists of affidavit filed by both parties Ext A1 to A5 documents on the side of the petitioner and Ext.B1 document on the side of opposite party. Deposition of PW1, DW1 and DW2.
Point No.1
Crux of the case of petitioner is that opposite party bank at the time of disbursing the loan amount availed by the petitioner illegally retained an amount of Rs.9301/- from sanctioned loan amount. According to petitioner said act of the opposite party amounts to deficiency in service.
Opposite party produced a gehan mortgage hypothecation deed executed by the petitioner and P.G. Sasikumar infavour of the bank. Said document is marked as Ext.B1. From Ext.B1 document it can be seen that petitioner and P.G.Sasikumar were borrowers of the said loan transaction and the hypothecation is executed by Usha Sasikumar and P.G.Sasikumar infavour of the opposite party bank. Admittedly P.G.Sasikumar is a defaulter in the bank as a loanee and as a surety. Petitioner produced a copy of award under Section 73 of Co-Operative Societies Rule. Said document is marked as Ext.A3. In Ext.A3 P.G.Sasikumar is mentioned as 3rd defendant in the proceedings and the award is passed against T.A. Jayanthi, Rajamma Mohan and P.G.Sasikumar. Ext.B1 is executed on 18/8/09 so admittedly an award is passed against P.G. Sasikumar at the time of availing loan.
Section 171 of the Indian Contract Act states that banker’s may in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them. So bank has a general lien over the securities which came into its hands. It may be in the form of money, negotiable instrument or any form of security or it may be goods.
In Halsbury’s law of England, volume 20 2nd editions page 552, Para 695 lien is defined as follows. “Lien is its primary sense is a right in one man to retain that which is in his possession belonging to another until certain demands of the person in possession are satisfied. In this primary sense it is given by law and not by contract”. So opposite party have a banker’s lien to be exercised for the debt of P.G.Sasikumar in a subsequent in which P.G.Sasikumar is a borrower. Petitioner has a specific case that opposite party at the time of availing the loan had write off the liability of T.A. Vasanthi. But nothing has placed on record to prove that the loan of Vasanthi was write off by the bank. In our view there is no deficiency in service on the part of opposite party bank in exercising banker’s lien over the debt of P.G.Sasikumar. Point no.1 is found accordingly.
Point No.2
In view of the findings in point no.1 the petition is dismissed. Considering the facts and circumstances of the case no cost and compensation is ordered.
Sri. K.N. Radhakrishnan, Member Sd/-
Sri. Santhosh Kesavanath P. President Sd/-
Appendix
Documents of the petitioner
Ext.A1series receipts issued by the opposite party bank
Ext.A2-Copy of notice issued by the LDF dtd 1/8/09
Ext A3- copy of Award dtd 23/6/06
Ext.A4-copy of letter No.F/7103/09(2) dtd 7/10/09 issued by Joint Registrar
Ext.A5-is the copy of audit report
Document of the opposite party
Ext.B1-Gehan executed by petitioner and P.G.Sasikumar
infavour of opposite party bank
Witness
Deposition PW1-Usah Sasikumar
DW1-C.B.Purushothaman Nair
DW2- A.R. Aniyan
By Order,
Senior Superintendent
