Kerala

Idukki

CC/214/2019

Francies - Complainant(s)

Versus

Service co-operative Bank - Opp.Party(s)

Eaby thomas

28 Oct 2022

ORDER

 

DATE OF FILING : 28/11/2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 28^th day of October 2022

Present :

              SRI.C.SURESHKUMAR                                               PRESIDENT

              SMT.ASAMOL P.                                                          MEMBER

              SRI.AMPADY K.S.                                                        MEMBER

CC NO.214/2019

Between

Complainant                            :   Francis Mathew,

                                                     Kulangarathottiyil,

                                                     Keetithodu P.O.,

                                                     Kanjikkuzhi Village, Idukki Taluk.

                                                     (By Adv.Eby Thomas)

                                                           And

Opposite Party                        :     The Service Co-Operative Bank,

                                                      Kanjikkuzhi P.O., Kanjikkuzhi Ltd.,  No.I-90,

                                                      Kanjikkuzhi Village, Idukki Taluk.

                                                      (By Adv.C.K.Babu)    

 

O R D E R

SRI.AMPADY K.S., MEMBER

 

Complainant raised the following allegations against opposite party and sought for the following reliefs:-

 

1 . Complainant  availed loan of Rs.2,98,000/- for construction of house as per loan No.HL/06/06 dated 10/06/2006.  As per terms 9% interest to be paid with loan amount within 10 years.  He had paid Rs.1,79,391/- till date.

 

2 . He was engaged in the job of collecting and sale of sand with  permission of Panchayath.  Due to Gadgil and Kasthurirangan report, he could not do the above job and he was forced to sell the tools used for it.  He was forced to give his house for rent and shift his residence to another small house.  So vehicle loan and above housing loan was in arrears.

 

 

                                                                                                         (Cont.......2)

 

 

-2-

 

3 . He requested the opposite party to give time for payment of dues and he agreed for the same.  At that time, opposite party  had obtained signature of him and his wife on certain papers.  On 07/10/2016, opposite party sent notice to complainant and from this he understood that housing loan was changed to OLC loan with 15% interest.  He understood from the notice that his housing loan Rs.4,33,000/- was changed to OLC loan at higher rate of interest.  Above act of opposite party is unfair trade practice and deficiency in service.

 

4 . In order to close the loan he approached opposite party and enquired about the dues.  It is informed that Rs.10 Lakhs in arrears and Rs.1 Lakh may be reduced from it.  Due to change of nature of loan with high interest rate without consent of complainant he is forced to pay huge amount.

 

Hence, he prayed for following reliefs.

 

1 . Direction may be issued to opposite party to close the loan after deducting payments already made Rs.1,79,391/- with 9% interest.

 

2 . Compensation of Rs.25,000/- may be allowed for his mental and economical difficulties caused by opposite party.

 

3 . Costs of Rs.10,000/- may be allowed.

 

Opposite party filed written version in the following lines.

 

The complaint is not maintainable either in law or on facts. Para 1 is not fully correct hence denied.  It is true that the complainant has availed a housing loan on 10/10/2006.  But it was closed in 2011.  After a lapse of 9 years the complainant has no reason to raise any complaint with regard to that loan.

 

Para 3 is not fully correct hence denied.  The complainant has availed another loan of Rs.4,33,000/- on 07/10/2011.  The above loan is due since 07/10/2016.  ARC 05/17 is pending against the complainant before the Joint Registrar of Co-Operative Society Painavu for recovering the above amount.  So this complaint is hit by section 100 of Co-Operative Societies Act.  Hence this Hon’ble Forum has

                                                                                                         (Cont.......3)

 

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no jurisdiction  to entertain this case.  The complainant is pretending ignorance with regard to the loan.  The complainant has submitted an application for a loan of Rs.4.5 Lakh with the recommendation of Bank’s Board Member K.K.Peethambaran on 27/09/2011.  Rs.4.33 Lakh was sanctioned as loan vide resolution No.23 on 08/10/2011.  Copy of the application is produced as Ext.1.  Consequently loan agreement and promissory note were executed by the complainant.  Copy produced as Ext.2 and 3 respectively.  In para 3 the complainant admits that he received a notice from the bank issued on 07/10/2016.  The complainant could have filed this complaint before the limitation period of 2 years. Now this complaint is hopelessly time barred.

 

All the averments in para 4 and 5 are incorporated only to suit this case.  At the risk of repetition it is submitted that all the averments contrary to the above facts are false and hence denied.

 

The complainant is bound to repay the loan.  Now the complainant is making an effort to wriggle out from this liability.  The complainant has sufficient opportunity to appear before the joint registrar and to contest that case.  There is no deficiency on the part of this opposite party.  The petitioner is not entitled for any reliefs.  The opposite party is dragged on for an unnecessary litigation.

 

Opposite party prayed for dismissal of complaint.  Opposite party filed memo in IA 76/19  stay application stating that contentions raised in written version are adopted in IA also.

 

Even though several adjournments were sought by complainant stating one or another reason, he had not appeared before this Commission to give evidence.  He produced copy of 3 documents and marked as Ext.P1 to Ext.P3.

 

Ext.P1 – Notice dated 25/10/2016 issued by opposite party to complainant.

Ext.P2 – Notice dated 25/10/2016 issued by opposite party to Smt.Moly Francis, wife of complainant (Guarantor).

Ext.P3 – Plaint filed by opposite party before Joint Registrar of Co-Operative  Societies, Idukki for recovery of balance amount under OLC 1474.  Total amount claimed is Rs.6,57,509/-.  No oral evidence on the part of opposite party also.

                                                                                                         (Cont.......4)

 

 

-4-

 Opposite party filed copy of 6 documents which were marked as Exts.R1 to R6.

 

Ext.R1 – Loan application dated 27/09/2011 signed by complainant and his wife Smt.Moly Francis.

Ext.R2 – Affidavit dated 27/09/2011 filed by above persons before opposite party

Ext.R3 – Affidavit dated 27/09/2011 filed by complainant before opposite party bank stating the details of 3.64 Ares  property offered as mortgage.

Ext.R4- Consent letter dated 27/09/2011 signed by above persons before opposite party bank.

Ext.R5 – Loan agreement signed by above persons.

Ext.R6 – Promissory note dated 07/10/2011 signed by above persons in favour of opposite party bank.

 

Heard the counsels.

 

          We have examined the contentions and perused documents produced.  On a perusal of the same following points arise for consideration.

 

1 . Whether the complaint is time barred?

2 . Whether there is any deficiency in service or unfair trade practice on the part of opposite party?

3 . If so, for what reliefs the complainant is entitled to?

4 . Costs.

 

Point No.1

 

 Documents produced by complainant reveal that actions for recovery of loan amount was started by October, 2016.  This complaint was filed on 28/11/2019.  So it is filed after a period of 3 years.  But the complainant had not filed application for condoning the delay.  Opposite party has contended that complaint is time barred.  As per S.24A of Consumer Protection Act, 1986 complaint to be filed  within 2 years from the date on which cause of action has arisen.  In these circumstances, we hold that complaint filed without application for condoning delay is not maintainable and is time barred.  Hence point No.1 is answered accordingly.

                                                                                                         (Cont.......5)

 

 

-5-

 

Point No.2

 

With regard to merits of the complaint, documents produced and contentions raised by opposite party is found to have force.  As stated in Point No.1, Exts. P1 to P3 itself show that it relates to loan No.OLC 1474.  Complainant had made a futile attempt to transform the easier housing loan to OLC stating flimsy reasons. Amount stated in the complaint is Rs.2,98,000/- with regard to so called housing loan.  But as per Ext.P5 loan agreement loan amount is Rs.4,33,000/- with interest @ 15%.  Even though, complainant alleged that housing loan was taken on 16/06/2006, and subsequently changed the nature of loan as OLC with 15% interest by obtaining their signature on certain papers is not proved by him.  In Ext.R1 loan application, earlier loan taken by complainant and his wife is shown which shows that it was for a new loan.  As the complainant has utterly failed to establish his contentions, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of opposite party.  We find that complaint is frivolous and vexatious for which complainant is liable under S.26 of Consumer Protection Act, 1986.  As the complaint is found to be frivolous and vexatious, same is dismissed.  Point No.2 is answered as above.

 

Point No.3

 

          We have already found that complaint is not maintainable being barred by limitation.  On merits also, complaint is unsustainable for reasons stated above.  Hence, we find that complainant is not entitled to any reliefs.  Point No.3 is answered accordingly.

 

Point No.4

 

As the complaint is found to be frivolous and vexatious, same is dismissed with direction to the complainant to pay Rs.2000/- as costs to opposite party.  Point No.4 is decided as shown above.

 

 

                                                                                                         (Cont.......6)

 

 

-6-

 

 

In the result, complaint is dismissed with direction to the complainant to pay Rs.2000/- as costs to opposite party.  This shall be paid within 30 days of receipt of this order, failing which opposite party is entitled to recover the same from him.  Extra copies to be taken back by parties without delay.

 

       Pronounced by this Commission on this the 28^th day of October, 2022.

 

 

                                                                             Sd/-

                                                                   SRI.AMPADY K.S., MEMBER

                                                                                                Sd/-

                                                                    SRI.C.SURESHKUMAR, PRESIDENT 

                                                                             Sd/-

                                                                            SMT.ASAMOL P., MEMBER 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                                                         (Cont.......7)

 

 

-7-

 

 

APPENDIX

Depositions :

On the side of the Complainant :

Nil

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1 – Notice dated 25/10/2016 issued by opposite party to complainant.

Ext.P2 – Notice dated 25/10/2016 issued by opposite party to Smt.Moly Francis, wife of complainant (Guarantor).

Ext.P3 – Plaint filed by opposite party before Joint Registrar of Co-Operative  Societies, Idukki for recovery of balance amount under OLC 1474.

On the side of the Opposite Party :

Ext.R1 –  Loan application dated 27/09/2011 signed by complainant and his wife 

                Smt.Moly Francis.

Ext.R2 – Affidavit dated 27/09/2011 filed by above persons before opposite party

Ext.R3 – Affidavit dated 27/09/2011 filed by complainant before opposite party  

               bank stating the details of 3.64 Acres  property offered as mortgage.

Ext.R4-  Consent letter dated 27/09/2011 signed above persons before opposite

               party bank.

Ext.R5 – Loan agreement signed by above persons.

Ext.R6 – Promissory note dated 07/10/2011 signed by above persons in favour of

              opposite party bank.

                                                                    

                                                                                               Forwarded by Order

 

 

                                                                                         ASSISTANT REGISTRAR