DOF.23.8.2006

DOO. 10.11.2010

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 10^th day of November      2010

CC.No.202/2006

1. Vettikkattil George,

    Agriculturist,

    “Vettikattil House”,

    Valathode.P.O.,Edapuzha.

2. Narangamurlyil Arunan,               Complainants

    Narangamuriyil.

    Valathode, P.O.Edapuzha.

3.Kattukkuzhiyil Dasan,

   Kattukkuzhiyil House,

   P.O.Edapuzha,  670 704.

  (Rep. by Adv.John Joseph)

   Secretary,

   Aralam SC Bank,                          Opposite party

   H.O.Chedikkulam,

   P.O.Aralam

   (Rep. by Adv.P.T.Joy)

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under section 12 of consumer protection act originally for an order directing the opposite parties to  permit complainants to close the loan account as per one  time settlement scheme and the cost  but amended subsequently restricting the claim for to pay a sum of  ` 5000 to the 1^st complainant towards compensation and cost.

          The case of the complainant in brief is as follows: The 1^st complainant has availed an agricultural loan of `5000 from the opposite party bank on 5.2.01. Complainant Nos. 2 and 3 are sureties. Loan amount could not be paid in time. The entire agriculturists of complainants suffered great loss due to natural calamities and of various diseases which resulted in taking up the matter before the Hon’ble High Court, whereupon order was passed directing District Collector Kannur to pay compensation to complainant and others to pay compensation. While revenue authorities assessing the loss the opposite party bank initiated arbitration proceedings against the complainant and obtained an order. The main case of the complainant therein was that interest levied and other amount levied as miscellaneous charges were illegal and against norms. After the award the complainant intended to close the loan availing one time settlement scheme proposed by co. operative department as per the circular dt.27.2.06 whereby the complainant is entitled to clear off loans, even in cases where an award is already passed by the arbitrator. Complainant is entitled by the scheme to close the said loan account by paying interest on the current rate of 7% on agricultural loans. Expense and litigation expenses, miscellaneous charges etc. are also cannot be taken into account while closing the account. Complainant is also entitled for moratorium benefit promulgated by govt. of Kerala on Agricultural loans in the year 2003 & 2004. Thus the complainant is entitled for exemption from payment of interest for a total period of 1 ½ years. Complainant submitted written request to close the loan account by letter dt.21.6.06. The first opposite party sent reply to approach Keezhpally branch and accordingly complainant approach the branch Manger but he only replied evasively. So complainant send a registered notice requesting him to inform the complainant in writing the settlement  amount as contemplated by one time settlement scheme.  Branch Manger Keezhpally replied on 19.7.06 to the 1<sup>st</sup> complainant stating that the settlement amount is `7, 157. The Bank included the ARC fees of `581 to this amount or else the amount is ` 6,175. Apart from this he is entitled for 6 months moratorium benefit. Entire moratorium benefits are not provided to the complainant while fixing the settlement amount. Hence there is deficiency in service on the part of opposite party bank.

          During the pendency of complaint the opposite party Bank moved writ petition before Hon’ble High Court of Kerala disregarding the dictum laid by the  Hon’ble Apex court in the year 2001, 2003 and 2004. The first complainant was constrained to appear engaging a lawyer and an amount of `  2000 is spent towards Advocate fee and  `500/- for other expenses. During the pendency of writ petition the loan is closed by the Bank as per the loan weaver scheme 2008 promulgated by the central govt. regarding agricultural loan. Hence the first relief claimed has become infructuous. But the first complainant is entitled for compensation and cost for the mental harassment and financial loss suffered by the 1^st complainant. Hence to pray for to be pleased to allow compensation and cost.

          After receiving the complaint notice was issued to both parties. Opposite party obtained interim stay. The W.P. (C) No.3.28341 & 2380 of 2006 disposed of making it clear that the question of maintainability will be decided as a preliminary point after adverting to the contentions taken by the parties. Thereafter opposite party appeared and filed version in the form of counter denying the allegations of the complaint and mainly taking the contentions that the Forum has no jurisdiction to entertain the compliant. The following are the contentions of the opposite party. As per section 69 of Kerala co.operative societies Act a dispute between a society and a member the proper Forum to adjudicate the dispute are the authorities contemplated in the said act. The Consumer Forum is not the competent authority to decide the dispute, as there is special Forum constituted for the purpose; Subsequent to the filing of compliant the loan obtained by the complainant No.1 which is the subject matter of the dispute is written off by the bank in pursuance of the scheme announced by the central Govt. Hence there is no purpose to continue the compliant, since the cause of action is abated. Hence to dismiss the complaint.

            On the above pleadings the following issues have been taken for consideration.

          1. Whether the complaint is maintainable?

2. Whether there is any deficiency in service on the part of

     Opposite party?

3. Whether the complainant is entitled for the relief prayed in the

   Complaint?

4. Relief and cost.

          The evidence consists of the oral evidence adduced by PW1, and documentary evidence Exts.A1 to A9 on the side of the complainant. Opposite party has no evidence either oral or documentary.

Issue No.1

          This is a complaint in which Hon’ble High Court of Kerala directed the Forum to decide the question of maintainability as a preliminary point. As per the above direction both parties were heard and the Forum passed a detailed order with a finding that complaint is maintainable. The order relied upon the land mark judgement of Hon’ble Supreme court relating to the analysis of the scope and ambit of the consumer protection Act, in Lucknow Development Authority Vs.  M.K.Gupta reported in 1993 CTJ 929(SC)(CP) which it is held that the CPA has a very wide reach and the redressal agencies set up there under have very vast jurisdiction to entertain the compliant not only against business or trading activity but even against services rendered by statutory and public authorities.  The preliminary order also depended upon the decision Ram Sitaram Laudge Vs. Sadguru Park Co-op. Housing Society and other reported in 2008 CTJ 593 (CP) (NCDRC) whereby Hon’ble National Commission held that the remedy under Section 3 of Consumer Protection Act is over and above the facilities available under the Co-op. Societies Act or any other Act in force.  Hon’ble Commission fully in agreement that the Consumer Forum has jurisdiction to deal with the case. The view taken by Hon’ble  Supreme Court in Secretary Thirumurugan Co-op. Agricultural Credit Society Vs. M. Lalitha aptly applicable to the case in hand. It is held that merely because the rights and liabilities are created between the members and the management of the society under the Act it cannot take away or exclude the jurisdiction conferred on the Forums under the Consumer Protection Act.  Hence it is clear that it is a well settled position of law that Consumer Forum has ample jurisdiction to entertain a dispute between a Society and a member and we are in full agreement that the above complaint is maintainable.  Issue No.1 is already answered in favour of complainant as preliminary issue and accordingly the finding stands part of this order.

Issued 2 to 4:

          The main allegation of the complainant is that the opposite party Bank did not permit him to settle the loan amount as per the One Time Settlement Scheme promulgated by Co-op. Department, Government of Kerala. So it is necessary to look into the matter whether the complainant was entitled to settle the loan as is alleged by complainant and whether or not that opportunity had been denied to the complainant purposefully by the opposite party.  The circular 09/2006 dated 27.02.2006 issued by Co-op. Department gives directions to implement the One Time Settlement Scheme.  The first three directions in the Circular are as follows:

          “ 1.  31.03.2005-þ ]qÀW-ambn IpSn-Èn-I-bmbn \n¡p¶ FÃm hmbv]-I-fpT Hä- 

              ¯-hW ]²-Xn-bn³ Iogn AS¨p XoÀ¡m-hp-¶-Xm-Wv.

2.        C {]ImcT hmbv] AS-¨p-XoÀ¡pt¼mÄ ]ng¸eni, Iq«p-]-eni, ]en-i¡v

              ]en-i, aäv A\m-a¯p sNe-hp-IÄ F¶nh Hgnhm-t¡-­-Xm-Wv.

          3.  IpSn-ÈnI hmbv]-IÄ Cu ]²Xn  {]Im-cT AS¨p XoÀ¡p-t¼mÄ tUm¡p- 

              saâv \nc-t¡m, kam\ hmbv]-IÄ¡v Ct¸mÄ CuSm-¡p¶ ]en-i-\n-ct¡m   

              Chbn tFXmWv Ipdhp ]eni B \nc-¡n AS¨p XoÀ¡m-hp-¶-Xm-Wv.”

          There are other directions also including installment facility etc in the same circular.  The complainant availed loan of `5000 on 05.02.2001 from opposite party bank.  Complainant sent Ext.A2 letter dated 21.06.2006 to inform the total amount as per the above said One Day Settlement Scheme.  Ext.A3 reply dated 29.06.2006 complainant was informed to approach the Keezhpally Bank Manager.  Complainant says that he had approached the Bank Manager but he did not heeded and thereby sent registered letter.  Ext.A4 dated 13.07.2006 requested the Manager to inform the complainant in writing the settlement amount as contemplated by the One Day Settlement Scheme.  Ext. A5 is the reply to this letter sent by Keezhpally Branch Manager of the opposite party.  Ext. A5 show the amount is `7157 and includes the amount of loan, interest, ARC fees etc.  Complainant pleads that he has to pay only ` 6,175 and alleges that the amount shown in Ext.A5 includes ` 581 as ARC fees and further says that the complainant is also entitled for 6 months moratorium.  Complainant in his cross examination deposed that the amount   ` 6,175 is calculated taking into account the rate of interest at the rate of 51/2%.  But in the pleading complainant admitted that as per the above said scheme he is entitled to close the said loan account by paying interest on the then current rate of 7%.  So it can be seen rate of interest 51/2% to get the amount   `6,175 is lesser than that of the admitted rate of 7%.  However according to the direction No.7 of opposite party is not entitled to get ARC fees   `581.  Hence it is not without reason complainant was constrained to file complaint. 

          It is a fact that the entire due amount of the Complainant’s loan has already been waived by the opposite party Bank as per the Loan Waiver Scheme 2008 by the Central Government.  Though complainant constrained to come before the Forum complainant did not suffered actual economic loss but fortunate enough to obtain benefit under the Loan Waiver Scheme 2008 by waiving the entire loan amount.  Complainant alleged that he was compelled to appear before the Hon’ble High Court engaging a lawyer for which he had spend an amount of  `2500.  But this expense has not been considered by the Hon’ble High Court.  That expense cannot be taken as a ground for allowing compensation, while deciding the case before the Forum.

          It is the basic principle that the actual loss suffered by the party is the basis upon which the damage is decided. In the present case one way or the other complainant became fortunate enough to enjoy the benefit of loan waiver scheme 2008 declared by the central government. After all it is a matter of right and not of a favour or gift out of the generosity of opposite party. It does not also mean that there is no deficiency on the part of opposite party since the complainants’ loan as an agriculturist waived by the special scheme by the government of India. It cannot be ignored that it is the deficiency in service on the part of opposite party that led the complainant to approach the Forum for a remedy against the infringement of his right. It has come in evidence that the complainant is entitled to settle his loan account without any deduction out of expenses and litigation expenses miscellaneous charges etc. as per the one day settlement scheme declared by Govt. of Kerala even if award has been passed by the Arbitrator. Complainant was denied this right including 6 months moratorium benefit. This is certainly a deficiency in service for which opposite party is answerable. Even if complainant had enjoyed benefit under loan waiver scheme 2008 by the Govt. of India, the denial of complainants right under One Time settlement scheme has not been justified. It is not a merely a question of money benefit but a matter of right denial of which certainly creates hardship and mental agony to a consumer. Hence we are of opinion that opposite party is liable for the hardship and mental agony suffered by the complainant. Thus we conclude awarding an amount of   `5000 as compensation and a sum of ` 1000 as cost of these proceedings to the complainant. The issues 2 to 4 are answered in favour of complainant and order passed accordingly.

                    In the result complaint is allowed directing the opposite party to pay   an amount of  `5000 (Rupees Five thousand only) as compensation and a sum of   `1000(Rupees One thousand only) as cost of this proceedings to the complainant No.1 within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of consumer protection Act.

                            Sd/-                   Sd/-                    Sd/-

President           Member               Member

APPENDIX

Exhibits for the complainant

A1.Copy of the circular issued by JRO dt.27.2.06

A2.copy of the letter dt.21.6.06 sent to OP

A3. Reply letter dt.29.6.06.

A4.copy of letter dt.13.7.08 sent to OP

A5. Copy of the reply dt.19.7.06 from OP.

A6.Copy of the order in WPC.28341/2006 of High Court

A7.Letter dt.2.11.07 sent byDepuity Regr.(Admn)

A8. Copy of the circular No.20/07 issued by Regr.of co-op. Societies

A9. Copy of the circular No.27/06 issued by Regr.of co-op. Societies

Exhibits for the opposite party

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite party; Nil

                                          /forwarded by order/

                                           Senior Superintendent