Karnataka

Chitradurga

CC/43/2017

S. Govinda Reddy - Complainant(s)

Versus

The Authorised Signatory, - Opp.Party(s)

C.M. Veeranna

10 Jan 2018

ORDER

COMPLAINT FILED ON:27.04.2016

DISPOSED      ON:10.01.2018

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO: 43/2017

 

DATED:  10^th JANUARY 2017

PRESENT: - SRI. T.N. SREENIVASAIAH  : PRESIDENT                                   B.A., LL.B.,

                   SRI.N. THIPPESWAMY                :MEMBER

                                 B.A., LL.B.,   

 

……COMPLAINANT	S. Govinda Reddy, S/o Venkata Reddy, Auditor, Chowdeshwari Layout, Malappanahatti road, Chitradurga.      (Rep by Sri. C.M. Veeranna, Advocate)
V/S
…..OPPOSITE PARTIES	1. The Authorized Signatory, Sri Vasavi Vividhodesha Sahakara Sangha Niyamita, Vasavi Mahal road, Hosadurga-577 527.   2. Puttaswamy Gowda, S/o Krishne Gowda, Businessman, “Mathrushree Nilaya” Near MLA Chandrappa’s House, Prashanth Nagar, Chitradurga.   3. T. Manjappa, S/o Thimmappa, Businessman, Ajjampura road, Hosadurga Town.   (Rep by Sri.C.J. Lakshminarasimha, Advocate for OP No.1, OP No.2 and 3 ex-parte)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OPs to recover the loan amount by conducting auction sale of assets belongs to original loan borrower instead of joint guarantor, Rs.4,50,000/- toward compensation, Rs.20,000/- towards mental agony and torture and such other reliefs.

2.     The brief facts of the case of the above complainant are that, he and Mr. Puttaswamy Gowda S/o Krishne Gowda are close friends since from very long time.  The said Puttaswamy Gowda has availed term loan of Rs.50,00,000/- from the OP No.1 to develop his business in Hosadurga town.  The complainant and T.Manjappa S/o Thimmappa r/o Ajjampura road, Hosadurga Town have stood as joint guarantors for the said loan.  Accordingly, the complainant has given blank cheque of SBM, Hosadurga to the OP as a loan security purpose.  It is further submitted that, it is learn from OP that, the said Puttaswamy Gowda was a chronic defaulter in payment of loan installment to the OP.  These facts are not informed to the guarantors by the OP.  The complainant has approached original borrower Puttaswamy Gowda and told him to pay the loan amount to the OP regularly.  But the said Puttaswamy Gowda keep quiet and not paid any amount to the OP.  But the OP has not taken any steps against the loanee.  At the time of obtaining the loan, the loanee was mortgaged some property to the OP.  Those properties are worth more than the loan amount.  It is further submitted that, the OP has presented a cheque to the concerned Bank for encashment.  By that time, the balance is very less.  Then the OP Bank has obtained a memo from the concerned Bank for funds insufficient.  Then the OP has filed a complaint against the complainant before the competent Court of law u/Sec.138 of N.I Act.  It is further submitted that, the loanee was having other moveable and immovable property is also situated at Chitradurga city.  The complainant has lost his reputation, name and fame in their profess as well as in the society.  The loanee is having the house property measuring 40 X 40 situated at Prashanth Nagar, MLA Chandrappa’s house, Jogimatti road, Chitradurga.  But the OP has not taken any steps against the loanee to recover the loan amount.  It is further submitted that, the complainant has issued the legal notice to the OP on 30.11.2016 through RPAD and requested the OP to cancel the guarantor ship for the loan and further on 03.02.2017 also issued another legal notice to the OP and requested to take immediate necessary action against the loanee for recovery of the loan amount but, I don’t know why the OP has not taken any steps against the loanee.  Because the loanee is having sufficient moveable and immovable properties other than the mortgaged property.  It is further submitted that, the OP has taken steps against the loanee first if the loan amount is not recovered from the mortgaged property sold by the OP then only the OP has to approach the guarantor for loan.  The cause of action for this complaint has arisen at Chitradurga within the jurisdiction of this Forum on 30.11.2016 and on 03.02.2017 when the legal notice issued to the OP.  Hence, this complaint and prayed for allow the complaint.                

 3.    On service of notice to the OPs, one Sri.C.J. Lakshminarasimha, Advocate appeared on behalf of OP No.1 and filed version.  But, the OP No.2 and 3 did not appear before this Forum hence, they placed ex-parte. 

As per the version filed by OP No.1, OP No.1 has taken a contention stating that this Forum has no right to entertain this complaint and this no jurisdiction to entertain this complaint and the same is liable to be dismissed.  It is further submitted that, the facts and law involved in this case is comes before the Civil Court not before this Forum.  The averments made in para 2 to 7 of the complaint is a matter of record and strict proof of the same and further stated that the complainant has given blank cheque of SBM, Hosadurga as a loan security purpose.  The complainant has issued cheque in favour of OP No.1 for discharge of the loan amount was due to the OP No.1.  It is further submitted that the legal action against the complainant and also OP No.2 and 3 is left open to the OP No.1 only, the OP No.1 will take necessary action against them in due course.  It is submitted that, as per loan documents and also the loan, the guarantors are co-obligant are all as good as borrowers.  Hence, all the persons who stood as a guarantors are co-obligant are having equal responsibility till the clearance or repayment of the loan amount to the OP No.1.  The complainant has filed this complaint before this Forum though there is a clear bar of jurisdiction to try the same.  The complainant and OP No.2 and 3 are the joint borrowers, hence they are jointly and severally liable to repay the entire dues which is pending with the OP No.1.  The complainant has filed this complaint by colluding with the OP No.2 and 3 with an intention to escape from the liability.  The complainant is facing the criminal case u/Sec.138 of the N.I. Act before the Civil Judge and JMFC at Hosadurga in respect of part and parcel of the subject matter of the complaint.  To avoid the same, the complainant has filed this false complaint against OP No.1.  There is no deficiency in service, negligence and defective service at any point of time from the OP No.1 and prayed for dismissal of the complaint.        

4.     Complainant himself has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 and A-2 were got marked.   OP No.1 has examined one Sri. R.G. Prasanna Kumar, CEO of the OP society and relied upon Ex. B-1 to B-4 documents.

5.     Arguments heard. 

6.     Now the points that arise for our consideration for decision of above complaints are that;

(1)  Whether the complainant proves that the OP No.1 has committed deficiency of service instead of taking steps against the borrower by taking steps against him?

              (2) What order?

        7.     Our findings on the above points are as follows:-

        Point No.1:- Partly in affirmative.

        Point No.2:- As per final order.

REASONS

8.     It is not in dispute that, the complainant has filed this complaint against the OP No.1 stating that, he stood as a guarantor to the loan obtained by Mr. Puttaswamy Gowda from OP No.1.  According to the complainant, he is only a guarantor.  The loanee has obtained Rs.50,00,000/- from OP No.1 by mortgaging his immovable property and the barrower also having moveable and immovable properties.  According to the complainant, OP No.1 colluded with the OP No.2 has not taken any steps against the loanee to recover the loan due.  The complainant has given blank cheques drawn on SBM, Hosadurga and by taking the advantage, OP No.1 has filed the complaint before the concerned Court u/Sec.138 of N.I. Act.  Here the OP No.1 has filed a version.  According to the OP No.1 this Forum has no jurisdiction to entertain this complaint.  Further the OP No.1 has stated that, guarantor also same responsibility for the loan obtained by the borrower.  Here the documents and exhibits furnished by both the parties clearly shows that, one Puttaswamy Gowda has obtained the loan from the OP No.1 by mortgaging the property.  But the OP No.2 and 3 are only the guarantors for the said loan.  According to the complainant, the loanee is having sufficient property and on the basis of mortgaging the property belongs to the borrower, the OP No.1 has sanctioned the loan.  The mortgaged property is worth of more than the loan amount.  But, the OP No.1 has not taken any steps against said Puttaswamy Gowda and if the property sold by the OP No.1 which were mortgaged by him and if that amount is shortage, then only the OP No.1 has to take recovery proceedings against the complainant and OP No.3.  The decision submitted by OP No.1 is that, after the decree the Bank authority is at liberty to file recovery proceedings against the guarantor also. 

9.   We have gone through the entire documents and exhibits, affidavit and written arguments filed by the complainant and OP No.1.  According to the complainant, one Puttaswamy Gowda has borrowed a loan for Rs.50,00,000/- from the OP No.1 by mortgaging his property to the said loan.  The complainant and OP No.2 and 3 are the guarantor of the said loan.  As per the documents produced by the complainant, the loan borrower i.e., Puttaswamy Gowda is also having sufficient means to repay the loan obtained from the OP No.1.  But, in this case, the OP No.1 already initiated recovery proceedings against the complainant before the Civil Court u/Sec.138 of N.I Act, is not correct.  OP No.1 has to proceed recovery proceedings against the borrower first.  After selling the mortgaged property by the OP No.1 and if the amount will become shortage towards the loan obtained by the borrower, then only the OP No.1 is at liberty to file a recovery proceedings against the guarantor.  In this case, the borrower is having sufficient income and having and sufficient property other than the mortgaged property.   Accordingly, point No.1 is helf partly affirmative.

 

          10.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

 

ORDER

 

          The complaint filed by the complainant U/s 12 of CP Act 1986 is hereby partly allowed.

 

          It is ordered that, the OP No.1 is hereby directed to file a recovery proceedings against the principal borrower by taking necessary steps to auction the mortgaged property and also other property belongs to him. 

          (This order is made with the consent of Member after the correction of the draft on 10/01/2018 and it is pronounced in the open Court after our signatures)        

 

 

                                     

          MEMBER                                                   PRESIDENT

 

 

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OPs:

DW-1:- Sri. R.G. Prasanna Kumar, CEO of OP No.1 by filing affidavit evidence.

 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Reply to the notice dated 30.11.2016
02	Ex-A-2:-	Reply to the notice dated 03.02.2017

 

Documents marked on behalf of OP/s:

01	Ex-B-1:-	Certified copy of the entire order sheet in C.C.No.10/17
02	Ex-B-2:-	Certified copy of the P.C No.10/17
03	Ex-B-3:-	Certified copy of the affidavit in P.C No.10/17
04	Ex-B-4:-	Rules and Regulations u/Sec.138 of N.I.Act

 

 

MEMBER                                                            PRESIDENT

Rhr**