By Sri. A.S. Subhagan, Member:

            This is a Complaint preferred under Section 12 of the Consumer Protection Act 1986.

            2. Fact of the case:-  The Complainant availed education loan from the  first Opposite Party and as per the settlement arrived in TLSC 140/2014 filed before the Hon’ble Sulthan Bathery, Taluk, Legal Services Authority, the dispute was settled for Rs.1,75,000/- and the Complainant had agreed to pay the amount in 7 instalments on or before 30.04.2014.  The Complainant had remitted the first instalment of Rs.25,000/- each on 30.04.2014 and further remitted 4 more instalments of Rs.25,000/- and altogether paid Rs.1,25,000/- out of Rs.1,75,000/- and the balance outstanding is Rs.50,000/-.  The second Opposite Party under the instruction from the first Opposite Party sent a demand notice to Complainant on 10.08.2018 demanding of Rs.97,658/- as principal amount and Rs.65,344/- as interest.  As per the award passed in TLSC 140/2014, the first Opposite Party can recover only the defaulted amount with 6% interest.  The Complainant has defaulted only Rs.50,000/- due to financial difficulty and the Complainant is ready to pay the defaulted amount of Rs.50,000/- with 6% interest.  The Complainant has also filed another petition before Hon’ble Sulthan Bathery Taluk, Legal Service Authority and it is not settled due to the illegal demand from Opposite Party.  The Opposite Parties have no right to claim any exorbitant amount from the Complainant.  The demands of Opposite Parties are purely unfair with malicious intention for illegal enrichment.  The act of Opposite Parties is illegal and part of unfair trade practice.  The Opposite Parties have caused mental agony and loss to Complainant and the Opposite Parties are liable to compensate the loss suffered by the Complainant.  Hence  this complaint with the following prayers

            (a)  To direct the Opposite Parties to receive Rs.50,000/- with 6% interest from Complainant and close the loan liability of Complainant.

            (b)  To Direct the Opposite Parties to pay Rs.5,000/- as compensation

            (c) To Direct the Opposite parties to pay Rs.5,000/- as cost of this

                   proceeding.

            (d)  To grant any other reliefs that this Hon’ble Commission deems fit to

                   Grant.

            3.  Notices were served on the Opposite Parties for appearance.  The first Opposite Party appeared before the Commission and filed version.  The second Opposite Party did not appear and therefore, they were set ex-parte.

            4.  Contents of the version filed by the first Opposite Party:-

The first Opposite Party submits that the Complaint is not maintainable either in law or on facts of the case and is liable to be dismissed. The Complainants are not consumers as defined in the act and they cannot' maintain a complaint under Consumer Protection Act. The complaint is on a Trial basis only to harass the first Opposite Party and for the complainant to escape from his liability.  The Opposite Party No.1 submits that the Complaint is not maintainable before this Commission since it is filed after the period of limitation. The first Opposite Party submits that the complainant has nowhere mentioned deficiency of services against the first Opposite Party hence the complaint will not come under section 12 of the Consumer Protection Act· and will not fall under the term  "complaint" as defined in the consumer Protection Act. The first Opposite Party submits that the settlement arrived at the Adalath and the award passed by the Adalath has no legal validity at present since the complainant didn't comply the conditions stipulated in the award and didn't pay the amount as shown in the award within the specified time. The first Opposite Party submits that now the complainant is not entitled to get any benefit of the award passed by Taluk Legal  Service Authority, Bathery and has to pay/clear the liability as to the terms and conditions of the loan agreement. The first Opposite Party submits that the award passed by Taluk Legal Service Authority was valid only up to 30^th April 2014 and the payment made if any after 30^th  April 2014 will not be considered as the payment made in compliance of the award of the Taluk Legal Service Authority. The first Opposite Party submits that the notice send by second Opposite Party was for the amount payable by the complainant, since the decree/award was assigned/transferred to second Opposite Party along with several other dues payable to the first Opposite Party.  It is not correct to say that the complainant has defaulted only Rupees Rs.50,000/- as contended in para 3 of the complaint.  The first Opposite Party submits that since the settlement fails, the complainant is liable to pay the amount claimed by the second Opposite Party in accordance with law. The first Opposite Party submits that there was no illegal demand by the Opposite Party as alleged in the complaint; no exorbitant amount was claimed by the Opposite Party; there was no malicious intention or unfair demand for illegal enrichments as shown in the complaint. The first Opposite Party submits that no illegal act or unfair trade practice was there on the part of the Opposite Party. The first Opposite Party submits that no. mental agony or loss was caused to the complainant due to any act of the Opposite Party. The first Opposite Party submits that the complainant is not entitled to get any compensation or any amount claimed in the complaint. The complainant is not entitled to get a direction against the Opposite Parties to receive Rs.50,000/- and to close the loan account. The complainant is liable to oblige to the contractual liability to the Opposite Parties and this matter falls within the jurisdiction of a competent civil court. The first Opposite Party submits that this Commission has no jurisdiction to entertain the complaint for the reasons stated above. The first Opposite Party submits that the complainant can approach the second Opposite Party to ascertain actual amount payable as per loan agreement and the loan account and to clear the liability. The first Opposite Party submits that the opposite party is not liable to pay any amount to the complainant as claimed. The Opposite Party is dragged to the Commission without any reason and put to hardship and loss due to the act of the Complainant.  The first Opposite Party submits that the Complainant is not entitled to get any compensation from the Opposite party. The Opposite Party is not liable to pay any compensation to the Complainant. The first Opposite Party submits that absolutely there is no deficiency of service on the part of the Opposite Party. The Complainant is not entitled to get any relief as claimed and the Opposite Party is not liable to pay any amount of compensation to the Complainant or to give any other relief.  The Complaint is liable to be dismissed awarding cost to the Opposite Party.

5.  Proof affidavit was filed by the Complainant.  Ext.A1 to A5 were marked from his side and he was examined as PW1.  Though version filed, the first Opposite Party had no evidence to adduce.

            6.  Considering the complaint, version, affidavit, documents marked, oral deposition of the Complainant and arguments in hearing Commission raised the following points for consideration:-

   1.     Whether the complaint is maintainable?

              2.    Whether there has been deficiency in service or unfair trade

                     Practice from the side of the Opposite Parties?

1. If so, whether the Complainant has the rights to get relief as prayed
2.  

            7.  Point No.1:-  (a) The first Opposite Party in version has contented that the Complainant is not a consumer as defined in the Act and he cannot maintain a complaint under the Consumer Protection Act  (b) Another contention of the first Opposite Party is that the complaint is not maintainable since it is filed after the period of limitation  (c )  Another contention of the first Opposite Party in this regard is that the Complainant has nowhere has mentioned deficiency of services against the first Opposite Party and hence the Complaint will not come under section 12 of the Consumer Protection Act and will not fall under the term “consumer’’ as defined in the Consumer Protection Act.

            8. On perusal of complaint (a) the Complainant has seen stated that he had availed education loan from the first Opposite Party, which has not been denied anywhere in the version by the first Opposite Party.  So, any person who avails education loan from a Bank shall be a consumer as defined under section 2(d) (ii) of the Consumer Protection Act 1986. (b) In the complaint the Complainant has stated that a demand notice was received by him dated 10.08.2018 with a demand of Rs.97,658/- as principal amount and Rs.65,344/- as interest.  This demand notice has been marked as Ext.A3.  So the cause of action for the complaint has arisen only on 10.08.2018 and hence the complaint is needed to be filed within two years from that date as per section 24-A of the Consumer Protection Act 1986.  Here, the complaint is seen filed on 03.11.2018, which is well within the period of limitation. (c )  The complaint is seen headed as COMPLAINT FILED U/S 12 OF THE CONSUMER PROTECTION ACT 1986.  A complaint under section 12 of the Consumer Protection can be filed either against deficiency in service or unfair trade practice.  So, as it is stated that this complaint is filed under section 12 of the Consumer Protection Act 1986, it is deemed to be a complaint filed against deficiency in service/unfair trade practice and therefore, the allegation of the first Opposite Party that the Complainant has nowhere mentioned deficiency of services against the first Opposite Party is not sustainable.  Moreover, the provisions of the Consumer Protection Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, as per section ‘3’ of the Consumer Protection Act 1986.  Therefore, the contention of the first Opposite Party that ‘’the Complainant is liable to oblige to the contractual liability to the Opposite Parties and this matter falls within the jurisdiction of a competent civil court and this Commission has no jurisdiction to entertain the complaint is also not sustainable as per section ‘3’ of the Consumer Protection Act 1986.  Therefore, the complaint is legally maintainable considering Section 2(d) ii Section 24 A and Section ‘3’ of the Consumer Protection Act 1986.

            9. Point No.2:-  The allegation of the Complainant is that the Complainant had availed education loan from the first Opposite Party and as per settlement arrived in TLSC 140/2014, filed before the Sulthan Bathery Taluk Legal Service Authority and as the dispute is settled for Rs.1,75,000/- and the Complainant had agreed to pay it in  seven instalments on or before 30.04.2014 and as the Complainant had remitted the first instalment on 30.04.2014 and further remitted four more instalments of Rs.25,000/- and as altogether paid Rs.1,25,000/- the balance of Rs.50,000/- only is outstanding.  The settlement and payment made by the Complainant is admitted by the first Opposite Party.  So the contention of the first Opposite Party that the payment made after 30.04.2014 would not be considered as the payment made in compliance of the award of the Taluk Legal Services Authority, is not maintainable.  The first Opposite Party also contents that the notice sent by the second Opposite Party was for the amount payable by the Complainant since the decree/award was signed/transferred to the second Opposite Party along with several other dues payable to the first Opposite Party and it is not correct to say that the Complainant has defaulted only Rs.50,000/- as contented by the Complainant.  But the Opposite Party has not adduced any evidence as to the other dues or other amounts due from the Complainant as contented by the first Opposite Party.  Hence this contention of the first Opposite Party cannot be accepted.  In Ext.A2, which is the “AWARD” passed by the LOK ADALATH, it is clearly stated that “That the Respondents agrees to pay to the Petitioner Bank a sum of Rs.1,75,000/- only on or before 12.11.2014, in default the Petitioner is entitled to recover the amount of Rs.1,75,000/- only with interest at the rate of 6% per annum from this date till realization from the defendant/s.  The Respondent is also agreed to pay the amount ie Rs.1,75,000/- in seven monthly instalments and the first instalment on or before 30.04.2014”. As per the award, the first instalment was remitted by the Complainant on 30.04.2014 and subsequently four more instalments @ Rs.25,000/- were also remitted.  As the AWARD is very clear the Opposite Parties can recover the remaining balance of Rs.50,000/- and interest @ 6% thereon only from the Complainant.  On the other hand, as stated in version the Opposite Party claims “several other dues” also from the Complainant which is against the terms of the AWARD passed by the LOK ADALATH.  So demanding and compelling the Complainant for payment of any amount over and above the loan amount outstanding Rs.50,000/- and interest thereon @ 6% per annum is deficiency in service/unfair trade practice from the side of the Opposite Party for which the Opposite Parties are responsible and liable.  So Point No.1 is proved against the Opposite Parties.

            10.  Point No.3:-  As Point No.2 is proved against the Opposite Parties, they are liable to pay compensation, cost etc to the Complainant.

            In the result, the complaint is allowed and the Opposite Parties are ordered

1. To receive Rs.50,000/- (Rupees Fifty Thousand Only) with interest @ 6% per annum from the Complainant and cost the loan liability of the Complainant
2. To pay compensation of Rs.5,000/- (Rupees Five Thousand Only) and
3. To pay cost of this complaint Rs.5,000/- (Rupees Five Thousand Only).

The above amounts as per the Order number ‘2’and ‘3’shall be paid jointly and severally by the Opposite Parties to the Complainant within one month from the date of this Order, failing which the amount will carry interest @ 8% per annum from the date of this Order.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 23^rd day of November 2022.

Date of Filing:-01.11.2018.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

APPENDIX.

Witness for the Complainant:-

PW1.              Hassan. K.                                                    

Witness for the Opposite Parties:-

Nil.

Exhibits for the Complainant:

A1.                  Copy of Pre Litigation Petition.              Dt:03.03.2014.

A2.                  Award from Lok Adalath.                                    Dt:12.04.2014.

A3.                  Copy of Letter.                                            Dt:10.08.2018.

A4.                  Copy of complaint filed before TLSA, Sulthan Bathery.

                        Dt:19.09.2018.      

A5.                  Legal Demand Notice.                               Dt:30.09.2022.

Exhibits for the Opposite Parties:-

                        Nil.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

/True Copy/

                                                                                 Sd/-

                                                                                             ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.