IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Monday the 30th day of November, 2015
Filed on 19.11.2008
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier (Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.268/2008
between
Complainant:- Opposite Parties:-
Sri. V.K. Prabash 1. The Special Sale Officer
Veluthamparambil Cherthala Co-operative Urban Kadakkarappally P.O. Society Ltd. No.2655, Cherthala
Cherthala, Alappuzha
(By Adv. Bijily Joseph) 2. Cherthala Urban Co-operative Society Ltd. No.2655, Cherthala
Represented by its Secretary
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant had availed a loan for purchasing a property from the second opposite party and the above loan was repaying by installments. The second opposite party received the original sale deed of property comprised in Sy. No. 233/4 of Vayalar west village as a security of the above transaction. The second opposite party did not account the installment amounts, which paid by him properly. The opposite parties did not furnish the settlements of accounts to the complainant as per his repeated requests. Thereby the second opposite party committed willful deficiency in service it ought to have given to him. Without giving proper notice to the complainant, the second opposite party obtained an award from Assistant Registrar General of Co-operative Societies, Cherthala for a total amount of Rs.78,230/-. Now the first opposite party issued auction notice to the complainant for conducting sale of the above property on 11.12.2008. The above notice and demand is illegal. Issuance of sale notice against the property without giving sufficient opportunity to settle the matter is illegally. Hence the complaint is filed.
2. The version of the opposite parties is as follows:-
It is true that the complainant availed a loan of Rs.60,000/- from the second opposite party by executing mortgage deed No.2914/2000 of SRO., Cherthala for the purpose of reconstruction of residential house. Since he had defaulted repayment of the loan and committed breach of the terms of the loan the second opposite party was forced to foreclose the loan and has filed arbitration suit before the Assistant Registrar of Co-operative Societies as file No.1809/2002. After complying with the legal formalities and taking evidence the Arbitrator passed an award on 12.3.2003 for a specific amount of Rs.78,230/- with future interest and cost. Since the complainant has not preferred any appeal against the award, the same has become final. Since the complainant has not cared to close the transaction even after the award, the second opposite party was again forced to file execution petition EA/188/2004 and the same is pending. In the EA notice is issued to the complainant and notice for measuring the property as part of sale proceedings is also issued and thereafter sale notice as per the statute is also issued and published as required under law. After the filing of the said execution application though five years have elapsed the complainant has not cared to settle and close the matter and now he came before this Hon’ble Forum with a complaint raising false, vexatious and untenable contentions.
3.Complainant was examined as PW1.The documents produced were marked as Ext.A1.No oral or documentary evidence produced from the side of the opposite parties.
4. The points that arose for consideration are as follows:-
- Whether there is any deficiency in service on the side of the opposite party?
- If so the compensation and costs?
5.Along with the complaint, complainant filed an IA for an order staying the further proceedings of the sale on the basis of notice dated 5.11.2008.After hearing the complainant an interim order was passed restraining the opposite parties from taking the further proceedings of the sale of the property schedule in the complaint till the disposal of the complaint.At the time of hearing so many opportunities were granted to the complainant for arguing the matter, since there was continuous prayer for adjourning the case, the matter was taken for orders.
6. It is an admitted fact that complainant had availed a loan of Rs.60,000/- from the second opposite party by executing a mortgage deed No.2914/2000 of SRO., Cherthala for the purpose of reconstruction of the residential house. According to the opposite party, since the complainant had defaulted repayment of the loan and committed breach of the terms of the loan, the second opposite party was forced to foreclose, and has filed an arbitration suit before the Assistant Registrar of Co-operative Societies as file No.11809/2002 and after completing with the legal formalities and taking evidence, the Arbitrator passed an award on 12.3.2003 for a specific amount of Rs.78,230/- with future interest and costs. While cross examining the complainant he stated that he was not remembering whether he filed appeal against the order of the Arbitrator. To the question put by the learned counsel of the opposite party that, “ ” The opposite parties stated in the version that after completing with the legal formalities and taking evidence, the Arbitrator passed an award on 12.3.2003. There is no evidence adduced from the side of the complainant to controvert the contention of the opposite parties. The complaint is filed in the year 2008, it has come out in evidence that the complaint is filed after 5 years of award of the Arbitrator. Moreover the complainant admitted that he has contested before the Arbitrator. An award was passed and so far no appeal is preferred. Admittedly execution proceedings were also initiated. The only complaint of the complainant is that in the execution proceedings auction is going to be conducted without proper notice. In such cases the remedy available to the complainant is elsewhere. In the nature of the alleged non issuance of the notice of auction, it can’t be treated as a defect or deficiency in service from the part of the opposite party as envisaged in the Consumer Protection Act. Hence the complaint is without any merit and is dismissed.
In the result, complaint is dismissed.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the 30th day of November, 2015. Sd/- Smt.Elizabeth George (President)
Sd/- Sri. Antony Xavier (Member)
Sd/- Smt.Jasmine.D. (Member)
Appendix:-
Evidence of the complainant:-
PW1 - V.K. Prabash (Witness)
Ext.A1 - Copy of the auction notice
Evidence of the opposite parties:- Nil
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite party/S.F.
Typed by:- pr/-
Compared by:-
