Karnataka

StateCommission

A/229/2021

Grama Shakthi Fullerton India Credit Co. Ltd. - Complainant(s)

Versus

Shivaji Rao - Opp.Party(s)

Mohan Malge

21 Apr 2021

ORDER

                                  Date of Filing: 08.03.2021

Date of Disposal: 21.04.2021

 

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

 

DATED: 21^st APRIL 2021

 

PRESENT

 

HON’BLE Mr. JUSTICE HULUVADI G. RAMESH : PRESIDENT

 

Mr KRISHNAMURTHY B. SANGANNANAVAR: JUDICIAL MEMBER

 

Mrs DIVYASHREE M: LADY MEMBER

 

APPEAL NO.229/2021

 

The Manager

Gram Shakti Fullerton

India Credit Company Ltd.,

Opp: Hutta Colony Bus Stand

Bhadravathi

Rep. by its Manger Legal

Mr.Hussain Basha                                                            Appellant

(By Mr.Mohan Malge)                                                                                                            

 

-Versus-

Mr.Shivaji Rao

S/o Durgoji Rao

Aged about 28 years

R/at Tattehalli Camp

Holehonnur Hobli

Bhadravathi Taluk                                                     Respondent                                                                                                        

   -:ORDER:-

 

Mr. JUSTICE HULUVADI G. RAMESH : PRESIDENT

 

1.       This is an Appeal filed under Section 41 of Consumer Protection Act, 2019 by OP aggrieved by order dated 03.02.2021 passed in Consumer Complaint No.172/2020 by District Consumer Disputes Redressal Commission, Shimoga.

 

2.       The facts in brief as stated by the Complainant before the District Commission raising Consumer Complaint No.172/2020 under section 35 of CP Act 2019 are stated as below:

          The site measuring 16 feet X 70 feet was granted in favour of his mother by Marashettihalli Grama Panchayath and in the said site, his mother has constructed the house. Complainant approached the OP for home loan at Branch Office of Bhadravathi.  Accordingly, OP sanctioned the loan amount of Rs.4,86,120/- on 23.08.2019 on interest at 10% p.a fixing the EMI at Rs.13,530/- and he paid EMI from September 2019 to June 2020.  Inspite of regular payment, OP issued a legal notice dated 06.11.2020 and asked him to pay current outstanding balance of Rs.28,740/- and in the said legal notice he expressed his willingness to pay Rs.28,740/- and requested to return the property documents.  However, OP neither ready to receive Rs.28,740/- nor return the documents.  In this regard, he raised consumer complaint to direct the OP to receive Rs.28,740/- to return the property document  and to pay Rs.2 lakhs for mental agony and damages etc.,.

 

          Since OP has remained absent and as such he placed ex-parte.  Commission below held an enquiry by receiving affidavit evidence of complainant and received two documents thereby directed OP to accept arrears of dues and return the original documents to the Complainant which were collated at the time of sanctioning of loan which is now impugned in this Appeal on the ground Smt. Yallubai D is a co-obligant is not made a party in Consumer Complaint.  The loan availed by the Complainant was a mortgage loan. Smt.Yallubai. D is owner to the said property.  The complaint is bad for non-joinder of necessary party.  The impugned order is erroneous since the conclusion of the Commission below to accept Rs.28,740/- and return documents is contrary to the facts and law is liable to be set aside.

 

3.       We heard learned counsel for Appellant.

 

4.       We have perused the impugned order passed by the Commission below and found satisfied to dispense with issuance of notice of this Appeal on Respondent/Complainant to avoid further delay.

 

5.       Now, we have to examine whether impugned order passed by Commission below suffers from any legal infirmity?

 

6.       In this regard, at the very outset, we have to make mention that Complainant Shivaji Rao raised consumer complaint and sought a direction to the OP/Appellant herein to take balance amount of Rs.28,740/- from him and to return the property documents to him. We have to examine whether such relief could be passed by the Commission below considering the fact that loan availed by the complainant is not availed by him alone but, availed by mortgaging the property of his mother Smt.Yallubai D who is not a party to the consumer complaint?  Whether as on the date of complaint, complainant and his mother is due only to the tune of Rs.28,740/- or as found in account statement produced at Annexure-D before this Appeal is not examined?  It may be true that since OP has failed to participate in the complaint proceedings. Commission below could have conveniently ordered directing the OP to accept the arrears of dues and return the original documents to the complaint. In other words, Commission below has not mentioned the amount as stated in the complaint at Rs.28,740/-.  In other words, order appears to be vague, when his mother is owner to the mortgage property which is mortgaged in favour of OP after discharge of the loan, documents has to be returned to such mortgager and not in favour of complainant.  It is found from the impugned order that mother of the complainant is a co-obligant.  If according to complainant, on 06.11.2020 in the legal notice he was informed to pay current outstanding balance of Rs.28,740/- could be said towards instalment and not the outstanding due to the entire loan in such situation, Commission to opine it is nothing but mischief of complainant to seek such relief before Commission below to accept Rs.28,740/- and to return documents in his favour.  In such view of the matter, impugned order in our opinion suffers from factual and legal infirmity.  In loan application form mortgages found names of the complainant and his mother Smt. Yallubai, all the particulars are filled up, the amount to avail mortgage property of Yallubai D.  The amount sanctioned Rs. 5 lakhs, the rate of interest is 21%.  The rate of interest applicable to the loan as on the date of execution of the loan agreement is mentioned in loan summary schedule. Liability to be joint and several, we could see the signature and LTM of complainant and his mother in these documents, they have executed DP Note in favour of OP, jointly promising to pay Rs.5 lakhs along with interest @ 24% p.a as on 17.08.2019 executed the simple mortgage deed. In the legal notice dated 06.11.2020 at Para No.3 as a result thereof, the current outstanding level is Rs.28,740/-, it does mean that default in payment of instalment raised from 13,580/- per month (EMI) to level of Rs.28,740/- per month and not that this amount was outstanding as on 06.11.2020.  It is therefore, complaint of the complainant before the Commission below is raised mischievously, which has to be deprecated and at the very same time for non-participating to assist Commission below, OPs are held lethargic for the reason best known to them are also to be penalised with cost payable to consumer welfare fund of Shimoga DCDRC. 

 

7.       In such view of the matter, we proceed to allow the Appeal filed under section 41 of CP Act, 2019. Consequently, set aside the impugned order dated 03.02.2021 passed in Consumer Complaint No.72/2020 by DCDRC, Shimoga with cost of Rs.10,000/- payable by the Appellant/OP to the welfare fund of Shimoga DCDRC.  Accordingly, complaint filed by the complainant under section 35 of Consumer Protection Act, 2019 is dismissed with cost of Rs.5,000/- payable to legal aid account.

 

8.       Send a copy of this Order to the District Commission as well as to the parties concerned, immediately.

 

Lady Member                Judicial Member                       President

*S