DOF. 28.7.2006 DOO. 14.12. 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 14th day of December 2010 C.C.No.175/2006 V.U.Thomas, Vattamthadathil House, Keezhpally.P.O. Kannur 670 704. (Rep. by Adv.John Joseph) Complainant 1.Secretary, Aralam SC Bank, Chedikulam., P.O.Aralam. 2.Manager, Aralam S.C.Bank, Keezhpally Branch, P.O.Keezhpally. (Rep. by Adv.John Sebastian.K) Opposite parties O R D E R Sri.K.Gopalan,President This is a complaint filed under section 12 of the consumer protection Act for an order directing the opposite parties to execute necessary release deed in favour of the complainant and to refund the amount illegally recovered from the complainant together with compensation of an amount of ` 50,000 and cost of this proceedings. The brief facts of the complainant are as follows: The complainant is a member of opposite party bank. Complainant had availed a non-agricultural loan for his business purpose from opposite party bank through its Keezhpally branch. Complainant could not repay the loan and interest accumulated heavily, 2nd opposite party advised to close the loan, and to avail an agricultural loan by mortgaging his land. Accordingly complainant executed a mortgage deed for the year 1999 and there by sanctioned a sum of `80,000 as agricultural loan by the opposite parties. Opposite party adjusted an amount sanctioned to the complainant towards repayment of the erstwhile non-agricultural loan account and only a sum of `16000was paid to the complainant in cash. The complainant was unable to repay the above said loan due to financial stringency in connection with the treatment of his wife. The opposite party bank initiated arbitration proceedings against the complainant before the Asst. Registrar of co-op. societies, Kuthuparamba and the complainant was constrained to sell his land and property to one Mary, W/O.George and an agreement for sale was executed between them with the consent knowledge of opposite parties. Complainant arranged a total sum of `1, 44,391 and paid the same to opposite party bank on23.2.04 after paying the amount. After paying the amount the complainant received 3 separate receipts for the payment and thus complainant could realize that the opposite party did not sanction the agricultural loan for `80,000 as agreed to in the mortgaged deed. Opposite parties sanctioned only a sum of ` 25000 as agricultural loan and the balance amount of `55000 was sanctioned by 2 separate non-agricultural loans, one for `50000 and the other was for `5000. Opposite party received major portion of interest by way of interest of non-agricultural loans. Complainant was actually cheated by the opposite party and there is grave deficiency in service on the part of opposite parties. The opposite parties have levied a sum of `700 each in the above said loans towards filing of execution petition. There was only one execution petition filed against complainant and a sum of `1400 recovered from the complainant, which is quite illegal and unreasonable. Under the miscellaneous expenses the opposite party recovered a sum of `750/- from the complainant. After discharging the entire amount `1, 44,391 complainant requested to execute the release deed. But opposite party did not heed to this legitimate request. Complainant submitted a written application on 5.5.04 to 2nd opposite party and requested him to issue a detailed statement regarding calculation statement of interest for the loan account sanctioned to him. Opposite party did not care to receive it but insulted the complainant. He then approached 1st opposite party at the same day, but he threatened that release deed would not be given unless and until the loan amount due from the complainant’s wife is fully discharged. Opposite party behaved rudely on the reason that he questioned the illegal levying of interest at par with commercial loans for a loan which is originally sanctioned as an agricultural loan. Opposite party also have not considered the moratorium benefit sanctioned by the government of Kerala from time to time for agricultural loans and one time settlement scheme benefit of the complainant. The opposite parties have capitalized penal interest and interest of interest and accordingly the complainant was forced to pay the illegal demand of opposite parties. Levying of amounts under the heads of E.P charges, miscellaneous expenses etc. also exorbitant. As the complainant is entitled to get the excess amount illegally recovered from him along with interest. OP.124/04 was dismissed on 15.2.06 for default though instructed the counsel did not file the restoration application, hence this instant complaint along with petition under section 24A (2) for condoning delay opposite party did not take any positive steps to execute the release deed. Hence prayed to allow the complaint. Pursuant to the notice opposite party entered appearance and filed version denying the main allegations. The brief facts of the contentions of the opposite party are as follows: Complainant is a member of the society and he has taken loan of `80000 by mortgaging his agricultural land. Complainant discharged loan amount by paying `144391. But it is not correct that opposite party was not ready to give the release deed. Complainant after paying the amount on 23.2.04 did not approach opposite party or applied for release deed. Thus opposite party is ready to give release deed if applied properly. Opposite party did not realize any excess mount towards interest. The complaint is only for defaming this opposite party upon the instigation of some one else and the complainant is not entitled for any remedy. Hence to dismiss the complaint. The opposite party filed petition before Hon’ble High Court and obtained an order to approach the Forum and to file his objection against the maintainability and if it is done Forum is directed to look into the same and to pass a reasoned order. Accordingly opposite party filed additional statement raising the question of maintainability as preliminary issue. Thus preliminary issue was heard and order passed with a finding that the Forum has jurisdiction to decide the dispute between a member and a co. operative society answering the issue in favour of the complainant with respect to the maintainability. Hence upon the rest of the pleadings the following issues were raised for consideration. 1. Whether there is any deficiency in service on the part of opposite parties? 2. Whether the complainant is entitled for remedy as prayed in the complaint? 3. Relief and cost. The evidence consists of the oral evidence of PW1, DW1 and Exts.A1 A17, Exts.B1 to B7. Issue Nos. 1 to 3 Admittedly complainant availed a loan for an amount of `80000 mortgaging his property. Complainant’s case is that he has taken an agricultural loan for `80000 and the opposite party adjusted the amount towards repayment of erstwhile non agricultural loan account and only a sum of `16000 was paid to the complainant in cash. The complainant could not pay the loan amount and thus opposite party has taken arbitration proceedings. As a result of the same complainant constrained to sell his landed property and an agreement to that effect was executed with one Mary. The above transfer was with the knowledge and consent of the opposite party. Complainant arranged a sum of `144391 and paid the entire loan amount on 23.2.04. On payment complainant received 3 separate receipts. Complainant realized that opposite party was issued these 3 receipts because the loan sanctioned to him was not as agreed by mortgage deed. Complainant also alleged that he was sanctioned agricultural loan for only `25000 and other loans sanctioned for him was non agricultural loans namely one for `50000 and the other for `5000.Opposite party admitted in his version that member No.2852, complainant availed a loan of `80000 by mortgaging his property. It is also an admitted fact that the complainant had remitted entire amount of `144391 on 23.2.04. More over opposite party has not denied the allegation of the complainant that opposite party managed to create documents for 2 agricultural loans for `55000 and the balance amount alone is sanctioned as agricultural loan. Any how there is no dispute regarding total liability of `80000.In the affidavit evidence opposite party stated that the bank has sanctioned a nonagricultural loan of `50000 for purchasing home appliance and another business loan for `30000 on 17.11.1999. More over he has availed another agricultural loan for `25000 and the same credited in the business loan of `30000 and `5000 has been retained as balance loan amount in the business loan of `30000. Ext.A16 is the guarantee bond ‘Pma-y-]-W-bm-[m-cT’ proves that complainant has taken an agricultural loan of `80000. If that be so bank is entitled only to take interest of agricultural loan from the complainant and complainant is not liable to pay on the loan of `80000 any interest over and above the rate what has been fixed for agricultural loan since there is only an agricultural loan as per Ext.A16, registered mortgaged deed. Ext.A7 also reveals it is an agricultural loan. Exts.A1 to A4 proves that the amount of `80000 has been splited in different items of loan namely agricultural and non-agricultural loans which naturally caused for the loss of benefit of agricultural loan including moratorium benefit. The main allegation of the complainant is that the agricultural loan of `80000, which is a single loan as per mortgaged deed illegally converted into 3 loans namely, 1 agricultural loan for `25000 and two non-agricultural loans for ` 50000 and 5000 respectively. Difference of interest with agricultural loan is very high. Exts.A11, A13 shows 22% interest and Ext.A15 shows 15% interest. There is a difference of 7% at the total amount collected in excess that comes to `36740. The analysis of calculation shows as follows: Amount of interest legally due on the loan amount of `50000From 17.11.99 to 23.2.04 @12%per anum (4 years and 97 days) :`25594 Amount of interest levied by the respondent bank on the loan amount of `50000 :` 43324 Excess amount imposed on the complainant : `17730 Amount legally payable on the loan amount of `5000 : ` 2559 Amount of interest levied by the respondent bank on`5000 :`4019 Amount illegally imposed by the complainant : `1460 Total amount illegally collected from the complainant by way of excess interest : `19190 Total amount illegally collected from the complainant byway of EP charges ( 2 x 700) :`1400 Total amount illegally collected under the head other expenses( 3 x 250) : `750 Amount of Moratorium benefit which ought to have been credited in the loan amount to the complainant during the year 2001 on the loan amount of`80000(6 months @12%) : `4800 Interest Moratorium benefit which ought to have been credited in the loan amount to the complainant during the year 2003 on`80000 (12 months @ 12%) :`9600 Amount illegally collected by way of ARC charges (2 x 500) : `1000 Total amount illegally collected from complainant : `36740 Since the complainant realized that the opposite parties have defrauded him. The complainant submitted a written application dt.5.5.04 to 2nd opposite party requesting him to issue a detailed statement regarding the calculation of interest for the loan amount sanctioned to him. But that was not heeded by opposite parties. Exts.A1 to A4 receipts issued for different amount shows that the loan granted `80000 was splited into more than one loan. Hence it is definite that opposite party has taken high rate of interest than that of agricultural loan from complainant, which we consider as a clear deficiency in service. Opposite parties are liable to refund the amount of interest as per the calculation shown above. Complainant specifically pleaded that there was one execution petition but execution charge for 3 cases were charged from the complainant. Exts.A5, A6 and A7 Dt.23.2.04 proves that `700 each have been separately charged from the complainant. Opposite parties have no case that there was 3 separate execution cases, if that be so the allegation of the complainant is true that the opposite party has charged `1400 excess towards execution expenses which in our opinion is an unfair trade practice. The opposite party is liable to return back this amount. Thus the case in which the entire amount due by the complainant is already being paid by him. It is admitted that the complainant paid the entire amount due on 23.2.04, but release deed hasn’t yet executed in favour of the complainant. The running complaint lodged in the year 2006 is for the specific purpose for the execution of release deed and there is no justification for the non-execution of the release deed. Even if certain technical objections can be raised for name sake, opposite party could have executed the release deed immediately after paying the entire amount of the loan of complainant. In the light of the above discussion and upon weighing the available evidence on record we are of firm opinion that complainant is able to establish his case successfully casting deficiency in service on the shoulders of opposite party. We have no hesitation to find that opposite parties are liable to execute the release deed and to refund excess interest of `36740 including `1400 charged excess towards execution expenses. Considering the loss and sufferings for the loan availed we are under the impression that the complainant is also entitled for a compensation for an amount of `20000 together with `1000 as litigation expenses. Hence issue Nos. 1 to 3 are found in favour of complainant and order passed accordingly. In the result, complaint is allowed directing the opposite parties to 1. Execute the release deed 2. Refund `36740 (Rupees Thirty six thousand Seven hundred and Forty only) levied as excess amount 3. Pay ` 20000 (Rupees Twenty thousand only) as compensation and `1000 (Rupees One thousand only) as cost of this proceedings to the complainant 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 to A7.Receipts dt.17.11.99 ,23.2.04 (CC124/04) A8. Letter dt.5/5/04 issued by OP (CC124/04) A9. Copy of the order in OP.124/04 of CDRF, Kannur dt.15.2.06. A10 to A15. Notice issued to complainant by Asst. Registrar and OP dt.10.3.03, 18.1.03,10.3.03,18.1.03,31.3.03 and 18.1 .03 A16. Certified copy of mortgage deed in favour of OP and complainant A17. Copy of the mortgage deed executed by complainant and OP Exhibits for the opposite parties: B1 to B3.Copy of the loan ledger page No.283,36 and 29 B4. Copy of the attendance register maintained by OP for the month of May 2004. B5 & 6. Application for loan submitted by complainant B7. Quotation given by Surya Shopping centre dt.17.11.99 Witness examined for Complainant PW1. Complainant Witness examined for the opposite parties DW1. P.C.Scaria /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 | | 
