This complaint  having come up for final hearing before us on  01.07.2015  on perusal of the material records  and on hearing the  arguments of  Thiru.A.Basheer Ahamed, the counsel for the complainant and  Thiru. A.G.Thangappan, the Government Pleader  for the opposite parties  and having stood  before us for consideration, till this day the Forum  passed the following  

By President, Thiru..P.G.Rajagopal, B.A.B.L., 

                       This complaint is filed by the complainant u/s 12 of the Consumer Protection Act 1986.                    

2) The gist of the  complaint filed  by the complainant  is that  he retired  as Assistant  Manager, Kumbakonam Central Co-operative Bank, Thalaignayar Branch in May  2008 and he had  the sum of Rs.21,990/- as his savings bank deposit and Rs. 5850/- towards his share capital in the Kumbakonam Co-operative Thrift and Credit society Limited and the said amount  is not returned by the opposite party despite his  several  demands therefor. But he has paid only the interest for the deposit and the dividend for his share capital.  For the notice  sent by him on 14.03.2011 the opposite party neither sent a reply  nor paid the amount due to him.  On the notice sent by him through his lawyer the opposite party sent a reply  on 21.03.2011 containing false averments.  The opposite party has stated that as  he was a surety for the loan advanced to his co-worker one Thiru. N.Sivasamy, membership No. 511 and as there was  the  principal of Rs. 3930/- and the interest  of Rs.16,750/- totaling  Rs. 20,680/- due to be paid by the said borrower the complainant is not entitled to get  return of the deposit  and share capital until  the  loan due from the said Sivasamy is discharged.  The opposite party having already obtained  an award against the borrower had  filed an  execution petition  in  306/1991 and it is said to be  not  pending by the reply received by the complainant from the Deputy Registrar, Tiruvarur under the Right to Information Act.  The withholding  of the deposit amount and the share capital of the complainant by the opposite party is  illegal and it is sheer deficiency of service on his part.  The  complainant therefore prays for an order  to direct the opposite party to pay the  deposit  amount of Rs. 21,990/- and  the share capital Rs.5850/- totaling Rs.  27,840/-  with  interest at the rate of 18% per annum , to pay Rs.50,000/-  towards  compensation for  the mental agony and hardship caused to him  and  to grant   such other reliefs  as this Forum  would deem fit.

3) The gist of  the written version filed by the  opposite party  is that it is  true for the complainant paid Rs.500/- towards membership Rs.5850/- towards share capital and  a sum of Rs. 21,990/- towards his savings bank deposit.  The complainant is receiving  the interest on the  deposit and the dividend  on his share capital amount  till date and is not entitled  to get the deposit and the share capital amount till the loan due from another employee one Thiru.Sivasamy for  whom the complainant  has stood as surety  is discharged.  On  the arbitration award passed against the complainant and the  said borrower Sivasamy in arbitration award No. 2996/1989-90 execution proceedings have been initiated by the Deputy Registrar in E.P.No. 306/1990-91 and as the borrower Sivasamy was residing at Kodi Alathur Vallivalam village in Tiruvarur District, the recovery proceedings are taken through the Deputy Registrar, Tiruvarur.  Therefore there is no deficiency of service  on the part of the opposite party who  is  entitled to withhold the amount   due to the complainant by way of his share capital and deposit until the loan due from the Sivasamy is discharged.  The complaint  is therefore liable to be dismissed.

4) The complainant has filed his proof affidavit reiterating all the averments made in his complaint and filed 7 documents which are marked as Ex.A.1 to Ex.A.7. On the side of the opposite party proof affidavit is filed and 3 documents are filed which are marked as Ex.B.1 to Ex.B.3. Written arguments have been submitted by both the sides.

5)   The points for Determination are:

                     1) Whether there is  any deficiency of service on the part of the opposite parties?

                     2) Whether the complainant is entitled to any relief? If so to what relief?

 6)  POINT  NO.1:   The grievance of the complainant is that his share capital amount and deposit amount with the opposite party is not at all returned to him despite his  retirement as Assistant Manager of the Kumbakonam Central Co-operative Bank, Thalainayar Branch in May 2008 and despite his request in writing  made by him and the lawyer’s notice issued by him and  it is sheer deficiency of service on the part of the opposite party.  The contention of the  opposite party is that the complainant has been the surety for the loan  borrowed by  another member one Thiru.N.Sivasamy  and a  principal of Rs. 3930/- and interest Rs.16750/- totalling Rs. 20680/- is due from the said member Sivasamy and the Execution proceedings had also been initiated on the arbitration award obtained against them and the complainant is not entitled to get back the amount until the said  loan is discharged.

7) The complainant has filed Ex.A.1,  the  office copy of the notice sent by the complainant’s counsel  to the opposite party claiming the  refund of the sum of Rs. 5850/-, share capital of Rs.21,990- the savings  deposit amount.  Ex.A.2 is the office copy of  another  notice sent by the complainant’s lawyer to the opposite party claiming the said amount due to the complainant.  Ex.A.3 is the postal acknowledgement card of the opposite party and Ex.A.4 is the reply sent by the opposite party in which it is stated that for the loan amount of Rs. 3930/-  and the interest Rs.16750/- totaling Rs. 20,680/- due from another member Thiru.N.Sivasamy to whom the complainant  stood as surety is yet to be discharged.  The opposite party is entitled to withhold the amount of the complainant until the said loan amount of Sivasamy is discharged.  Ex.A.5 is the  pass book issued by the opposite party to the complainant. Ex.A.6 is the statement of account issued by the Kumbakonam Central Co-operative Bank Limited, Tiruthuraipoondi Branch and Ex.A. 7 is the letter received by the complainant from the Deputy Registrar, Tiruvarur under the Right to Information Act in which it is stated that there is no  such execution petition No. 306/90-91 pending within his jurisdiction.  

8) On the side of the opposite party Ex.B.1 the ledger account of the Kumbakonam  Co-operative Employees Co-operative Thrift and Credit Society Limited is filed.  The ledger account of the opposite party is produced  from which it is  revealed  that the complainant had been  periodically   receiving the interest on the deposit and the dividend amount for his share capital.  Ex.B.2 is the copy of the execution petition  filed  in  306/1991 against one Sivasamy and the complainant. Ex.B.3 is the letter dated  26.05.2015 given by the Deputy Registrar, Kumbakonam  in which it is stated that the Execution petition No.306/1991 filed against N.Sivasamy is pending.

9) It is admitted that the complainant  deposit amount of Rs. 21,990/- and the share capital of Rs. 5850/- is with the opposite party  due to be paid to the complainant who retired in May 2008.  It is also  evident from Ex.B.1 that the principal amount of Rs. 3930/- and interest Rs.16,750/- totaling Rs. 20,680/- due from the  another employee Thiru.N.Sivasamy.  It is also  not disputed that  already arbitration award had been passed against the complainant  and the Sivasamy in award No. 2996/89-90 and the execution petition had been instituted in Execution Petition No. 306/1991 through the Deputy Registrar, Kumbakonam. It is the contention of the opposite party that receovery proceedings had been initiated  through the Deputy Registrar,Tiruvarur  as the  said borrower N.Sivasamy had been residing at Kodi Alathur Vallivalam Village, in  Tiruvarur District. But Ex.A.7 would go to show that no such Execution proceedings are pending before the Deputy Registrar, Tiruvarur. 

10) On the side of the opposite party Ex.B.3 is filed to establish that the execution petition No. 306/1991 is still pending. But even though the said execution petition  is said to have been pending for the past about 24 years no concrete steps have been taken by the opposite party to realize the loan due from the said Sivasamy.  Further in the course of argument                  it is brought to the notice of this Forum that the said  borrower  Sivasamy died long back and he also retired long bank. It is  very strange and surprising that the opposite party had not taken any steps to implead the legal representatives of the deceased Sivasamy in the execution proceedings and further  as the borrower Sivasamy is  said to have retired from service  the emoluments  due to him on his retirement which would have been substantial  amount would have been paid to him  towards retirement benefits. The opposite party ought to have withheld the amount of  Rs.20,680/- due from the said Sivasamy by way of principal and interest from out of the retirement benefits at the time of disbursement of the said emoluments to the said  employee  Sivasamy.  Further the opposite party  has also failed to initiate action against the legal representatives of the Sivasamy  for the recovery of the loan due to him. By their omission the opposite party has wantonly failed in their duty to recover the amount easily from out  of the  emoluments due to the borrower Sivasamy on his retirement. No explanation could be given by the opposite party as  regards their failure and omission to recover the loan amount due from the Sivasamy from out  of  his retirement benefits.  Therefore having failed and omitted  to recover the amount easily from out of the amount due to be paid to the borrower Sivasamy the opposite party is not entitled to withhold  the deposit and the share capital of the complainant who already retired in May 2008 itself.  Therefore the withholding  of the amount due to  the  retired employee by the opposite party is sheer deficiency  of service on the part of the  latter.

11) POINT NO.2:- In the result, the complaint is allowed in part.  The  opposite party is directed to return  the deposit  amount of Rs.21,990/- and  the share capital amount of Rs.5850/- totaling  Rs.27,840/- due to the complainant with interest at the rate of 12% per annum from the date of this order till the date of its payment  within 30 days from the date of this order, failing which the opposite party shall be liable to pay Rs. 15,000/-  towards  compensation to the complainant for the deficiency of service. The opposite party is  further directed to pay  the sum of Rs.1000/- (Rupees  one thousand only) to the complainant towards  the cost of this litigation.

                This order was dictated by me to the Assistant, transcribed by her and corrected and pronounced by me on this 08th day of July 2015.

MEMBER -I                                                                                                 PRESIDENT

List of documents on the side of the complainant:-

List of documents on the side of the   Opposite parties :    

MEMBER -I                                                                                         PRESIDENT