O R D E R
R.Vijayakumar, Member.
This is a complaint filed Under Section 12 of Consumer Protection Act.
(2)
The complainant’s case is that even after collecting exorbitant amount and penal interest through RR proceedings the first opposite party refused to return the pledged documents demanding additional amounts.
The complainant availed a loan for Rs.1,20,000/- in the year 1993 as per Loan No. 7532. The first opposite party sanctioned the loan under the scheme provided by HUDCO by pledging complainant’s property comprised in SY.No.1148/A-25 in Sakthikulangara Village. Out of the total amount of loan, Rs.18,813/- was effected by the complainant by way of service charges. The complainant had remitted an amount of Rs.1719/- as monthly repayment schedule without any default up to 10.08.2005. Total amount of Rs.3,26,743/- was paid by the complainant as loan amount interest and penal interest up to that time. Later on, due to financial stringency and physical ailment, the complainant committed default, but on all occasions complainant made regular enquiry and intimated the opposite party that the balance loan amount and interest would be intimated to the complainant. But no information was given by the opposite parties. Later on when the complainant approached for remitting arrears, the first opposite party demanded huge amount. The complainant approached first opposite party for settlement through one time settlement scheme. It was replied by opposite parties that OTS can be performed only through the
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Government Orders. The complainant sent letters to the concerned Minister, but no reply was received.
Later on first opposite party sent a notice directing the complainant to remit Rs.46,843/- within 7 days of receipt of the notice. With the assistance of second and third opposite parties the first opposite party initiated Revenue Recovery Proceedings. The complainant sent notice to the concerned Minister. There was no response from the department. Hence fearing RR proceedings the complainant was forced to remit Rs.50491/- before the second opposite party. An excess amount of Rs.1111/- also was effected from the complainant. The complainant is entitled to recover an amount of Rs.27840/- which was effected from the complainant by way of penal interest and service charge. After effecting huge amount the first opposite party refused to return the pledged documents to the complaint.
On 25.07.07 the complainant approached the first opposite party for releasing her pledged documents and also demanding excess amount effected from her. The opposite party again demanded a huge amount by way of loan arrears. Hence as a last resort the complainant filed the complaint before the Forum seeking direction to release the complainant’s pledged documents and to refund Rs.27840/- which was effected from the complainant by way of penal interest and service charges. The
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complainant further seeks refund of Rs.11,111/-which was effected from the complainant, compensation and cost.
The first opposite party filed version contenting the allegations of the complainant. The complaint is not maintainable under the law or on facts. The Forum has no jurisdiction to entertain the case as opposite parties has already taken RR steps.
The housing loan was availed by the complainant in the year 91-92 under HIG category. Housing loan schemes of first opposite party, are implemented on the basis of government policy and financial assistance from HUDCO with govt guarantee. The statement that the complainant was remitting installments without fault up to 2005 is false. The loan is repayable in 168 consecutive installments of Rs.1719/- each. The complainant had remitted Rs.272581/- up to 02/06/05 by 54 remittances. This amount was credited to 150 installments and balance amount of Rs.14931/- was taken to interest, penal interest for the previously defaulted amount. The complainant never approached the opposite parties to clear the dues. One time settlement scheme was ordered by the government to the loanees under EWS category and XI9 category. Hence the complainant will not get the benefit of that scheme.
(5)
As no further attempt was made by the complainant to close the loan account, a registered notice was issued on 19/12/06 informing the complainant to clear arrears and to avoid RR proceedings. The complainant failed to respond and at last KDA had recommended for RR steps to realize the amount of 47843/- as on 12/06. This amount includes Rs.30942/- of 18 defaulted installments, Rs.4899 of interest and penal interest for defaulted, installments Rs.8311/- interest and penal interest of previously defaulted installments Rs.165/- towards notice charges, interest and Rs.3376/- towards tax on interest Rs.150/- towards site inspection charge. As on 31/07/07the complainant has to remit Rs.2159/- to close the loan account. It is intimated to the complainant vide notice dated: 02/08/07. But the notice was not received by the complainant. As and when the complainant remits the balance amount, the first opposite party is ready to release the pledged documents. There is no deficiency in service from the part of opposite party. The complaint is liable to be dismissed with compensatory cost.
The complainant filed affidavit. Ext.P1 to P7 marked. From the side of opposite parties, DW1 examined. Ext.D1 marked.
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The points that would arise for consideration are :
(1) Whether the Forum has jurisdiction to entertain the complaint?
(2) Whether there is any deficiency in service from the part of opposite party?
(3) Compensation and cost.
Points (1)
The opposite party has raised the contention in the version that the complaint is not maintainable in the Forum as the complainant is not a consumer as per the provisions of Consumer Protection Act and as the opposite party took RR steps against the complainant.
The complainant herein had availed a housing loan from opposite parties and thereby availed service of opposite parties for consideration of money as deposit, service charges interest etc. Hence the opposite party cannot say that the complainant is not a consumer. As per the provisions under Sec.2 d(1) and (ii) of
Consumer Protection Act, it is clear that the complainant is a consumer.
The contention that the Forum has no jurisdiction to entertain this complaint as RR proceedings has already been initiated will not sustain in this case. As per provisions under Section 72 of Kerala RR Act Civil Court has no jurisdiction in
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respect of a written demand issued under this Act. But this is a case of different nature. In this case the complainant had remitted the entire due amount with other charges. The complaint is not against the RR proceedings. No relief was sought against second and third opposite parties. The complaint is related with deficiency in service. Hence the Forum has ample jurisdiction to entertain the complaint.
Point (ii) and (iii)
Admittedly the complainant had availed a housing loan for Rs.1,20,000/- from the opposite parties in the year 1991-92 HIG category pledging 11.5 cents of land.
The complainant had stated in his complaint that he had remitted a total amount of Rs.3,26,743/- including loan amount, interest and penal interest. The complainant is alleging that the second opposite party had collected an excess amount of Rs.11,111/- by way of penal interest and service charges. The complainant is entitled to recover the same from the opposite parties. It is further submitted that she is also entitled to recover an amount of Rs.27840/-- from the opposite parties which has been effected from the complainant by way of penal interest and excess service charges.
(8)
According to first opposite party, the complainant had remitted a total sum of Rs.272581/- up to 02/06/05 by 54 remittances. This amount was credited to 150 installments and each installment amounts Rs.1719/-. The balance amount Rs.14931/- was credited to interest, penal interest for the previously defaulted amount. While examination PW1 deposed that “ 2006 December ó¨ñ ©ò¡ÿ Ä¢ñ¢µÐó® 18 Äóà ó£ù® óñ¤·¢¨ð¼¤ œúº¡ý ôñ¢ð¿. 16 Äóà ó£ù® óñ¤·¢ð¢ñ¤¼¤.
On perusal of Ext.P2. series in detail, it reveals that the complainant had remitted a total sum of Rs.276240 up to 02/06/2005. He had made 56 remittances. From this it is clear that the complainant is liable to remit only 16 installments.
The first opposite party had included additional two installments, its interest and penal interest and it was also recovered through RR proceedings from the complainant. An excess amount of Rs.3438 is also included in that amount which she is not liable to pay.
As per the statements in the version, the first opposite party calculated Rs.8311/- as interest and penal interest of previous defaulted installments, Rs.165 towards notice charges Rs.3376/-towards tax on interest and 150/- towards inspection charges. After the issuance of notice, the revenue recovery officer also calculated 5% penal interest for the amount. It means that penal
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interest for penal interest is collected from the complainant. It is very interesting to say that the complainant is charged with tax
for interest Rs.3376/-. Penal interest at the rate of 5% was collected by the RR officers for this amount also. Another Rs.150/- was charged as inspection charges. It is not forthcoming which type of inspection was conducted by the opposite parties in these proceedings.
From all these facts we can come to the conclusion that an exorbitant amount was charged against the complainant and the complainant was fated to remit that amount. The second opposite party had collected collection charges for the excess amount also but they are not responsible for this default. The default committed by first opposite party only. As per Kerala Revenue Recovery Rules 1968 the second opposite party is entitled to collect 5% of the arrears when the arrears does not exceed Rs.5 lakhs and demand notice fee. Hence the second and third opposite party are not liable to pay back the amount. But the complainant is entitled to effect the sum from the first opposite party.
The complainant had stated in the complaint that she was liable to pay the balance amount after the deduction of deposit Rs.1000/- and he is entitled to get back the service charges. As per clause 12 of the loan agreement if the loanee or loaner
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violated the condition in the agreement, the first opposite party is entitled to add the deposit and service charges to the fund of first opposite party. Hence as a defaulter the complainant has no right to claim the service charges Rs.18,000/- and deposit Rs.1000/-.
The case of the complainant is that after collecting an exorbitant amount from the complainant the first opposite party refused to return the pledged documents demanding a further huge amount. According to the first opposite party the complainant has to remit an amount of Rs.2159/- for fully closing the loan. The opposite party has stated that it was informed to the complainant. If the complainant remit that amount, first opposite party is ready to return the documents. The first opposite party has admitted that the complainant had paid the amount in full as per the RR notice along with penal interest and other charges. If that be so the opposite party had no right to claim any additional amount or to retain the pledged documents of the complainant or to take legal proceedings against the pledged property.
After filing version first opposite party has appointed an LD clerk for giving evidence on behalf of him as he is laizy with official duties and he is unable to appear before the Forum for examination. The first opposite party had produced only one
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document, related to the said loan transaction and it was marked as Ext.D1. Even though the first opposite party had stated in the version and affidavit that the complainant had paid only Rs.272581/- and 18 installments are to be paid he had not produced even a statement of accounts. No supporting oral or documentary evidence was produced. The examination of DW1 was stopped in the midst as the witness was unable to answer the questions put by the learned counsel for the complainant. He was not aware of the facts of the case. He was an incompetent witness. He has admitted that he do not know how much amount was collected as administrative charges. He has further stated that the amount deducted as interest is also not known to him. By deputing an incompetent person for giving evidence, the first opposite party, the Secretary, Kollam Corporation who is a responsible officer had shown an irresponsible attitude in conducting the case.
In the light of the above stated facts and on verification of all the documents and evidence in detail, we are of the view that there is deficiency in service from the side of first opposite party. The complainant is entitled to get the amount of two installments, illegally collected amount towards tax on interest and inspection charges by the third opposite party upon the direction given by the first opposite party.
(12)
For all the reasons discussed above we are of the view that there is deficiency in service from the part of first opposite party. The points found accordingly.
In the result, the complaint is allowed impart directing the first opposite party to return the pledged documents and to refund Rs.3438+3376+150 along with interest at the rate of 13.5% per annum from 28/03/07 till the date of payment. The opposite party is further directed to pay the complainant compensation of Rs.3500/- and cost Rs.1500/-.
The order is to be complied with within one month of the date of receipt of the order.
Dated this the 29th day of December 2010.
Vijayakumaran :Sd/-
Adv.Ravi Susha :Sd/-
R.Vijayakumar :Sd/-
INDEX
List of witnesses for the complainant
PW1 - Antony Paul Morris
List of documents for the complainant
P1 - Sanctioning Letter (4 in nos.)
P2 - Receipts
P3 - Statement of accounts prepared by complainant
P4 - Complaint sent to the Minister
P5 - Notice
P6 - Complaint before the Minister
P7 - Receipt
P8 - Reply as per RIT
List of witnesses for the opposite party
DW1 - Santhakumar.S
List of documents for the opposite party
D1 - Attested copy of agreement
// Forwarded by Order //
Senior Superintendent
