KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 319/2023
JUDGMENT DATED: 24.07.2023
(Against the Order in C.C. 400/2021 of CDRC, Thiruvananthapuram)
PRESENT:
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
SMT. BEENA KUMARY. A : MEMBER
SRI. RADHAKRISHNAN K.R. : MEMBER
APPELLANTS:
- State Bank of India, Vellayambalam Branch, Sasthamangalam Road, Thiruvananthapuram-695 010 represented by its Manager.
- State Bank of India, Stress Assets and Recovery Branch, LMS Compound, Opp: to Museum, West Gate, Vikas Bhavan P.O., Thiruvananthapuram-695 010 represented by its Manager.
(By Adv. Maya R. Mani)
Vs.
RESPONDENT:
Sijo John Thoppil, S/o T.M. Yohannan, T.C. 8/271, Rose Villa, Puthenkada, Thirumala P.O., Thiruvananthapuram-695 032 represented by its Power of Attorney Holder T.M. Yohannan.
JUDGMENT
SRI. RADHAKRISHNAN. K.R: MEMBER
This is an appeal filed under section 41 of the Consumer Protection Act, 2019, against the order in C.C. No. 400/2021 before the District Consumer Disputes Redressal Commission, Thiruvananthapuram (District Commission for short). The appellants are the opposite parties before the District Commission. The District Commission by its order dated 06.06.2022 partly allowed the complaint and directed the opposite parties to pay Rs. 50,000/- as compensation and Rs. 2,500/- as costs of the proceedings to the complainant within 30 days of the receipt of the order, failing which the compensation amount shall carry interest @ 9% per annum.
2. The complaint was filed for compensation for deficiency in service on the part of the opposite parties on account of the alleged discrepancy in the repayment of loans. The complainant had taken two loans from the opposite parties for the construction of a residential building – one home loan for Rs. 23,00,000/- and another home plus loan for Rs 5,00,000/-. According to him he cleared all the dues of the EMIs with interest before 19.10.2019. On 04.03.2020 he was asked to remit a further amount of Rs. 650,000/- to avoid recovery actions. He has paid a total amount of Rs. 35,00,000/- towards repayment of the loans till 2021 and no dues are pending. He has paid an amount of Rs. 5,00,000/- on 29.10.2021 as per the conditional stay order passed by the Hon’ble High Court of Kerala. His main complaint is that exorbitant amount was shown as due from him to the bank without providing any details regarding the due amount. In spite of specific requests, he was not given correct statements of the two loan accounts. The complainant had to suffer mental agony, waste of time and financial loss and hence he filed the complaint alleging deficiency in service and unfair trade practice on the part of the opposite parties.
3. Complainant was examined as PW1 and Exts. A1 to A3 were marked on his side. Though notice was served on the opposite parties they did not appear before the District commission and file their version. Hence they were declared ex-parte. As the opposite parties were declared ex-parte, there was no oral or documentary evidence on their side. Hence the complaint has been allowed by the District Commission placing reliance on the unchallenged evidence available in this case against them. Aggrieved by the said order opposite parties have filed this appeal.
4. We have heard the counsel for the appellants and perused the records. The learned counsel for the appellants submitted that they were not served with proper notice of the complaint and hence could not appear before the District Commission. They came to know about the case only when the warrant notice in E.P. No. 36/2023 was received by them on 25.04.2023. The learned counsel submitted that there was some delay in appointing a lawyer because of the delay in complying with the internal procedure. Statements of accounts in both the accounts were given to the complainant/respondent and so there is no deficiency in service on their part. It was submitted that public money is involved in this case and as they have a strong case they prayed for admitting the appeal.
5. The crucial issue in this case is regarding service of notice to the opposite parties and their non-appearance before the District Commission. The District Commission has stated in paragraph 2 of the order appealed against that though notice had been served on the opposite party they did not turn up and hence they were set ex-parte on 03.03.2022. The said paragraph is reproduced below:
“2. After admitting the complaint notice was issued to the opposite parties. After accepting the notice from this Commission, both the opposite parties failed to appear before this commission as directed. Hence on 03.03.2022 the opposite parties were called absent and set ex parte.”
6. According to the appellants concerned officer of the appellant bank was not served with proper notice from the District Commission. Absolutely, no evidence has been produced by the opposite parties to show that the observation of the District Commission is erroneous in any manner. The order of the District commission is as per section 38(3) (b)(ii) of the Consumer Protection Act, 2019, which is reproduced below:
“38 (3) The District commission shall, if the complaint admitted by it under sub-section (2) of section 36 relates to goods in respect of which the procedure specified in sub-section (2) cannot be followed, or if the complaint relates to any services,-
(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District commission;
(b): if the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District commission, it shall proceed to settle the consumer dispute –
- on the basis of evidence brought to its notice by the complainant and the opposite party, if the opposite party denies or disputes the allegations contained in the complaint, or
- ex-parte on the basis of evidence brought to its notice by the complainant, where the opposite party omits or fails to take any action to represent his case within the time given by the Commission.”
In view of the above specific provision, we do not find any error in the order of the District Commission.
7. As already discussed, this is a case in which no version has been filed by the appellant, though they had received notice from the District Commission. Therefore, in view of the dictum laid down by the Constitution Bench of the Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757, it is not possible for them to file a written version now. For the above reason, there is no point in admitting this appeal or calling for the Lower Court Records. This appeal is therefore dismissed.
The amount of statutory deposit made by the appellant shall be refunded to them, on proper acknowledgment.
JUSTICE K. SURENDRA MOHAN : PRESIDENT
AJITH KUMARD. : JUDICIAL MEMBER
BEENA KUMARY. A : MEMBER
RADHAKRISHNAN K.R. : MEMBER
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