By. Sri. Jose. V. Thannikode, President:
The complaint is filed under section 12 of the Consumer Protection Act against the opposite parties to get back her document pledged in the opposite party bank and to get cost and compensation due to the non return of the document.
2. Brief of the complaint:- The complainant's husband availed an Agricultural loan of Rs.55,000/- from opposite party bank in the year 2000 and the government has write off the above said loan. But the opposite party told the complainant that only Rs.36,000/- is write off by the government and directed to remit the remaining loan due, otherwise they will recover the dues after recovery proceedings. So this widow remitted Rs.58,700/- on various dates and on 23.03.2015 the complainant remitted the full remaining loan dues on 23.03.2015. The loan number was DCL 14/2000 and the complainant further says that even after remittance of the entire loan dues as per the direction of opposite party, the opposite party was not ready to return back the document of the property telling one or other lame excuses. At last the opposite party has stated that this documents is burned at the time of disposal of waste papers after using fire. Even though the opposite party has collected exorbitant amount from the complainant, not return back of the pledged document by the husband of the complainant is a gross deficiency of service from the side of opposite party and due to the complainant caused much difficulty, pain and sufferings and grate loss also.
3. Hence prayed before the Forum to direct the opposite party to return back the pledged document and to pay Rs.15,000/- for the difficulty caused and to pay Rs.20,000/- as compensation and Rs.5,000/- as cost of the proceedings.
4. On receipt of complaint, notice were served to opposite party on 17.11.2015 and the case is posted to 01.12.2015 for version. On 01.12.2015 opposite party represented and sought time for version. Hence opposite party is directed to serve copy of version to the complainant within 10.12.2015 to the complainant and complainant is also directed to file proof affidavit and case is posted to 16.12.2015 for proof affidavit of complainant. On 16.12.2015 both parties represented but opposite party not complied the order of the Forum dated 01.12.2015. Opposite party was ready with version but the complainant vehemently objected in receiving the version stating that the opposite party has not complied the Order of the Forum and complainant complied the Order of the Forum and complainant also filed affidavit to the effect that he has not received the version as directed by the Forum. In the circumstances the Forum cannot go beyond the Order. Hence the version filed by opposite party today is not received and he is declared ex-parte
5. Complainant filed proof affidavit and he is examined as PW1 and Ext.A1 to A6 documents were marked. Ext.A1 is the receipt for Rs.15,000/- as One Time settlement (OTS) amount given by the opposite party to the complainant dated 27.10.2014. Ext.A2 is the receipt for Rs.15,000/- as One Time settlement (OTS) amount given by the opposite party to the complainant. Ext.A3 is the receipt for Rs.15,000/- as One Time settlement (OTS) amount given by the opposite party to the complainant dated 24.01.2015. Ext.A4 is the receipt for Rs.10,000/- as One Time settlement (OTS) amount given by the opposite party to the complainant dated 24.02.2015. Ext.A5 is the receipt for Rs.3,700/- as One Time settlement (OTS) amount given by the opposite party to the complainant dated 23.03.2015. Ext.A6 is the Notice for OTS (One Time Settlement Scheme) dated 16.02.2013 issued by the opposite party to the complainant. Since the opposite party is declared ex-parte, heard the complainant in detail.
6. On considering the complaint and documents the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the side of opposite party?
2. Relief and cost.
7. Point No.1:- Even if the opposite party is ex-parte, the Forum perused the version filed by the opposite party seen in the bundle. In the version it is stated that the original title deeds of the property is produced in Civil Court in O.S.246/04. The suit is decreed, subsequently OTS is applied and original of the documents were not taken back from the bank. It is stated that the original deed is destroyed by the court. Hence opposite party is not the custodian and opposite party is not liable to return documents. Such a contention cannot be justified according to the Forum because it is the duty of opposite party to get back the document from the court in time and handover the same to the complainant on remittance of loan amount. Here the opposite party received the money in OTS. So it is the obligation of opposite party to give back the title deeds to the complainant. Hence the Forum is of the view that there is deficiency of service from the part of opposite party. Hence the Point No.1 is found accordingly.
8. Point No.2:- Since the Point No.1 is found against the opposite party and in favour of complainant, the opposite party is liable either to return back the document if it is available or to give a certificate regarding destruction and also liable to pay cost and compensation and the complainant is entitled for the same.
In the result, the complaint is partly allowed and the opposite party is directed either to return the documents if it is available or to give a Certificate to the complainant regarding the destruction of title deed by Court in order to enable the complainant to apply for certified copy for future needs. The opposite party is also directed to pay Rs.20,000/- (Rupees Twenty Thousand) as compensation and Rs.5,000/- (Rupees Five Thousand) as cost of the proceedings within one month from the date of receipt of this Order. Failing which the complainant is entitled for an interest at the rate of 12% per annum for the whole amount.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 23rd day of December 2015.
Date of Filing:06.11.2015.
PRESIDENT :Sd/-
MEMBER :Different Opinion.
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
DISSENTING ORDER.
Dated this the 23rd day of December 2015.
By. Smt. Renimol Mathew, Member:
I have different opinion in this case. In this case Opposite parties notice served on 17.11.2015. The case is posted for appearance of the parties on 01.12.2015 on that day opposite party filed vakalath and sought time to file version. The same day itself the case is posted for proof affidavit of complainant to 16.12.2015 with a direction to the opposite party to serve the copy of version to the complainant within 10.12.2015. On 16.12.2015 opposite party filed written version and submitted that copy of version sent to the complainant by post. But complainant filed an affidavit stating that he had not received the copy of version within 10.12.2015. Hence version filed by the opposite party was rejected and they set ex-parte and complainant was examined as PW1 and exhibits marked, and heard the complainant on 16.12.2015 itself, and the case is posted for orders to 23.12.2015. But on 18.12.2015 opposite party filed I.A.618/2015 to set aside the ex-parte order dated 16.12.2015 but after rejecting this I.A. Final order was pronounced on 23.12.2015.
2. In my view there is illegality in the order dated 16.12.2015 that opposite party set ex-parte. Opposite party filed vakalath on 01.12.2015 itself and represented the matter with his version on 16.12.2015. But Forum rejected the version and opposite parties set ex-parte section 13(2) (ii) of Consumer Protection Act 1986 reads as follows.
(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 Forum).
3. In this case opposite party field version before the Forum within statutory period his vakalath and representation was there from 01.12.2014 onwards. Hence opposite party was prevented from getting an opportunity to defend his case. In my view for a fair and proper disposal of the matter it is essential to hear both the parties.
4. Here Forum shut down the doors of justice before opposite party due to hurry to dispose the matter in order to render speedy justice that resulted “justice hurried is justice buried”.
Hence in my view this ex-parte order is injust, improper and against the rule of law.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 23rd day of December 2015.
Date of Filing:06.11.2015.
MEMBER:- Sd/-
APPENDIX.
Witness for the complainant:-
PW1. Anandavally (Affidavit). Complainant.
Witness for the Opposite Parties:-
Nil.
Exhibits for the complainant:
A1. Receipt. Dt:27.10.2014.
A2. Receipt. Dt:24.11.2014.
A3. Receipt. Dt:24.01.2015.
A4. Receipt. Dt:24.02.2014.
A5. Receipt. Dt:23.03.2015.
A6. Notice for OTS. Dt:16.02.2013.
Exhibits for the opposite parties:-
Nil.
Since the first part of the Order have the majority opinion the first part of the Order will prevail.
Sd/-
PRESIDENT, CDRF, WAYANAD.
a/-
