D.O.F:18/04/2016
D.O.O:20/10/2022
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION KASARAGOD
CC.No.124/2016
Dated this, the 20th day of October 2022
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
1.Chandri aged 60 years
W/o Kottan (late), D/o Achu
Koipady Kadappuram,
P.O. Kumbala, Kasaragod – Dt : Complainant
2. Sindhu. (44 yrs)
D/o Late Chandri and W/o Radhakrishnan
Koipady Kadappuram, Kumbala.P.O Kasaragod.
3. Shiju.K (35 Yrs)
S/o Late Chandri & Kottan
Koipady Kadappuram, P.O. Kumbala, Kasaragod.
(Adv: U.S. Balan)
And
1. The Branch Manager,
Syndicate Bank,
Kumbala Branch,
Kasaragod Dt.
2. The Chief Grievance Redressal Office,
General Manager,
Planning and Development Department: Opposite Parties
Bangalore.
3. The General Manager
Syndicate Bank,
Head Office Manipal
Karnataka.
(Adv: M.Narayana Bhat OP 1 and 3)
4. The Secretary
The Kerala Fishermen Debt Relief Commission
Thiruvanathapuram.
ORDER
SRI.RADHAKRISHNAN NAIR.M : MEMBER
The complaint is filed under section 12 of the Consumer Protection Act, 1986 (as amended).
The complaint was originally filed by now deceased Chandri. After the death of Chandri on 09.09.2019, her 2 children, being the legal heirs impleaded themselves as supplemental complainants No. 2 & 3, as per the order in IA No.28/2020.
The facts of the case in brief is that the complainant No.1, now deceased Chandri was a fisher woman , having member ship No.433 and the passbook No.P01695 issued by the Fisheries Officer ,Koipady.
The deceased Chandri obtained a loan of Rs.30,000/-from Opposite Party No.1 in the year 2002, by mortgaging the Regd. Release Deed No.2110/2002 of SRO Kasaragod, Dated 08.07.2002 for an extent of 4 cents land in RS No.17/7 in Koipady Village.
Thereafter the Government was pleased to extend the debt relief benefit to all the bonafide fishermen and accordingly moratorium orders were issued from the year 2007 onwards and the same was extended up to 31.12.2016 and by enacting the Fishermen Debt Relief Commission Act 18 of 2008.
The complainant had submitted an application before the Opposite party No:4, for getting the benefit of the Debt Relief Act, which was accepted and the complainant was summoned at the Dist. Collector’s conference Hall on 18.09.2012, to waive off the loan amount.
Even though the Opposite Party No.4 had agreed in principle on 18.09.2012 that the loan would be waived off, the Opposite Party No1 compelled the complainant by harassing and playing fraud to renew the loan and accordingly the complainant renewed the loan on 25.02.2011 by depositing Rs.50,000/-. The Opposite Party No.4 as per letter Ref No.909/94 dated 21.03.2014 requested the Opposite Party No.1 as to know whether the loan of the complainant was renewed or not, for which the Opposite Party No.1 played fraud and did not send any reply. The Opposite Party No.1 was knowingly suppressed the fact that the loan taken by the complainant was falling within the ambit of the Fisher men Debt relief Act. The Opposite Party No.1 illegally and arbitrarily adjusted the pigmi collections paid by the complainant the towards the loan amount of Rs,30,000/- when the debt relief was in existence. After renewing the loan amount, the Opposite Party No.1 had issued Adalath notices on18.02.2014,19.08.2014,18.11.2014 ,and 09.06. 2015, which are the outcome of the fraud . When the complainant was selling fish at Kumbla fish market, Opposite Party No.1 came there and threatened in public that her residential house would be sold and because of these, the complainant agreed to close the loan account by paying Rs.30,000/-being the settled amount. On 03.07.2015, when the complainant went to the Opposite Party No.1 and offered Rs. 29,000/-along with the balance amount in her SB account for closing the loan as per the settlement, it was informed that the title deed mortgaged was missing and not traceable.
Hence this complaint is filed for a direction to the Opposite Parties to pay Rs.5,900/-the amount adjusted from pigmi account with interest, to pay Rs. 50,000/-collected as refund of the loan, to return the original title deed dated 08.07.2002, and to pay compensation and costs.
The opposite parties entered appearance and filed written Version.
As per the written version of the Opposite Party No.1 and 3, the complaint is false, frivolous, vexatious and not maintainable in law or facts and is liable to be dismissed.
That the averment in the complaint that the complainant had taken a loan of Rs.30,000/- etc. are incorrect and denied. It is admitted that the complainant had been taking loans from them since 1997 and she had been remitting loans and availing fresh loans. The complainant availed a loan of Rs.35,000/- on 06.01.2005, for business purpose, for which Smt. Susheela ,W/o Sreedhara was the co-obligant. The loan was not a mortgage loan and no title deed was deposited with the Opposite Party No.1 as stated by the complainant. The complainant closed the above loan and took another loan of Rs.50,000/-on 25.05.2011, from the Opposite Party No.1 for improvement of fish business.
The loan was repayable in monthly EMIs of Rs.1,145/-starting from 31.03.2011.The complainant has opened Pigmi deposit account exclusively to repay the loan. The amount paid to the pigmi deposit was adjusted to the loan as per the loan agreement executed by the complainant. The official of the Opposite Party No.1 never went to the market for recovery of loan. The Opposite Party issued recovery notices , since the loan was classified as NPA and the Opposite Party has offered interest concession. The loan was granted not on creating any mortgage properties and no title deed relating to the property was taken as security. The complainant has settled the loan account out of her free will. There was no any compulsion on the part of Opposite Party. The loan granted to the complainant is for improvement of fish business falls under priority sector of advance. The provision of the Fishermen Debt relief Act 18 of 2008 or moratorium by the government are not applicable to the facts of the case.
There is no service deficiency on the part of the Opposite Party No.1 to 3. The complaint is liable to be dismissed with compensatory costs.
The complainant filed IA 4/2017 to direct the opposite party No.1 to cause production of certain documents, which was allowed and the OPNo.1 produced the documents except the Original title deed No. 2 110 / 2002 of SR0 Kasaragod, along with an affidavit stating that the bank is not in a position to produce such a document as the complainant had not availed any Ioan by mortgaging the same.
The opposite party produced true copy of the Equitable Mortgage Register for the year 2002. The original E M Register and other loan files also produced for verification and return.
After production of the documents the complainant filed an IA 270 / 17 , alleging that the page 97 of the register relating to the mortgage deed of the complainant in respect of loan No.42067220000518 dated 03- 09-2002 is found missing and the same is torn off by the opposite party No.1 to defraud the complainant, which was objected by the Opposite party No:1 . The above IA was disposed of by directing the Opposite party No:1 to file an affidavit and the Senior Manager filed an affidavit explaining their stand.
The Supplemental complainant No. 2, Sindhu.K, the daughter of late Chandri filed proof affidavit in lieu of chief examination and documents Ext. A 1 to Ext. A 15 (series) and Ext. X1 are marked .The PW1 was cross examined.
The Ext - A1 is the Xerox Copy of the Regd. Release Deed dated 08-07-2002, Ext - A 2 is the Letter issued by the Opposite party No:1 dated 24-06-2010, Ext A3 is the copy of Fishermen Pass book Ext. A 4 is the Letter dated 15-12-2015 issued by Opposite party No:4 to the complainant. Ext. A 5 is the is the copy of Letter dated 15-12-2015 issued by Opposite party No:4 to Opposite party No:1 , Ext. A 6 is the copy of Moratorium order extending the period up to 31.12.2016 , Ext. A 7 is the copy of Pigmi collection slip, Ext. A 8 is SB account pass book No.203839 , Ext. A 9 is the copy of LA No.636/2015 issued by TLS committee to the complainant. Ext. A 10 is the Adalath Letter Dated 18.05.2015 issued by the Opposite party No:1 , Ext. A 11 is the Adalath Letter dated 01.11.2014 issued by the Opposite party No:1, Ext. A 12 is the Adalath Letter Dated 02.08.2014 issued by the Opposite party No:1 Ext. A 13 is the Adalath Letter Dated 30.01.2014 issued by the Opposite party No:1., Ext. A 14 is the Letter Dated 24.12.2013 issued by the Opposite party No:.4, Ext. A 15 ( series) is a Reply under RTI Act consisting of copies of the Moratorium orders issued by the Opposite party No:.4, Ext X1 is the file of documents produced by the Opposite party No:1 and 3 as per the order in the IA No.4/2017.
The complainant No. 2 was Cross -examined as PW - 1. Another witness Smt. Susheela also examined as PW2 who filed proof affidavit in lieu of chief examination. PW2 was also cross examined.
The opposite parties didn’t adduce any oral evidence. The Opposite party No:1 and 3 produced certain documents, which are marked as Ext. B1 to Ext. B16.
Ext B1 is a copy of the Loan Application dated 23.12. 2004 filed by the complainant, Ext.B 2 is a copy of the Stamped Receipt dated 06.01.2005 issued by the complainant. Ext B3 is the Copy of the Composite Hypothecation agreement . Ext B4 is a copy of the Guarantee Agreement dated 06.01.2005, Ext B5 is a copy of the Request dated 03.01.2005 for business loan submitted by the complainant. Ext B6 is a copy of the E.M. Register of the Opposite party No:1 bank for the period from 10.01 2002 to17.01.2002., Ext.A7 is an Affidavit Dated19.09.2017 signed by Senior Branch Manager of Opposite Party No.1, Ext B8 is a copy of the Loan application dated 23.02 2011 submitted by the complainant, Ext B9 is the Stamped Receipt dated 25.02.2011 issued by the Complainant, Ext.B 10 is the General Agreement dated 23.02 2011, Ext.B 11 is the Guarantee agreement dated 25.02.2011, Ext.B 12 is the Particulars of Assets and liabilities of the complainant dated 23. 02. 2001, Ext.B 13 is Particulars of assets and liabilities of the Guarantor of the complainant dated 23/02/2011, Ext.B14 is the Statement of Account for general advance for the period 01.01.2000 to 27. 08 .2021, Ext.B15 is the Statement of Account for general advance for the period 01.01.2000 to 27. 08 .2021, Ext B16 is the Statement of account of the A/C No.42062200040714 of the complainant for the period 01.01 2001 to 31.12 2019.
Based on the pleadings and evidence of the rival parties in this case the following issues are framed for consideration.
1. Whether there is any service deficiency on the part of any of the opposite party?
2. If so, what is the relief?
For convenience, all these issues are considered together.
Here the specific case of the complainant is that as per the provision of Fisherman Debt Relief Act of 2008 they were entitled for the benefits of Fishermen debt relief scheme and even though the Opposite Party No.4, the Debt Relief commissioner had agreed in principle on 18.09.2012 that the loan arrears of the complainant would waived off, the Opposite Party No.1 compelled the complainant by harassing and playing fraud to renew the loan and accordingly the complainant renewed the loan on 25.02.2011 by depositing Rs. 50,000/-.
The complainants submitted that the Opposite Party No.4, the Secretary, Fisher men Debt Relief Commission as per letter Ref No.909/94 dated 21.03.2014 requested the Opposite Party No.1 as to know whether the loan of the complainant was renewed or not, for which , the Opposite Party No.1 played fraud and did not sent any reply. The complainant submit that the Opposite Party NO.1 was knowingly suppressed the fact that the loan taken by the complainant was falling within the ambit of the Fisher men Debt relief Act. The Opposite Party No.1 illegally and arbitrarily adjusted the pigmi collections paid by the complainant towards the loan amount of Rs.30,000/- when the debt relief was in existence.
The opposite party submit that they issued recovery notices since the loan was classified as NPA and the Opposite Party has offered interest concession. There was no any compulsion on the part of Opposite Party. The loan granted to the complainant is for improvement of fish business which falls under priority sector of advance. The provision of the Fisher men Debt relief Act 18 of 2008 or moratorium by the government are not applicable to the facts of the case.
It is pertinent to note that simply filing an application and getting a notice for enquiry would not mean that the applicant’s loan would be waived off. There are several criteria to be fulfilled to entitle a fisherman for benefit of the Debt Relief. All types of debt are not coming under the ambit of the Fishermen Debt Relief Act. The Section (v) of the Fishermen Debt Relief Act, 2008 reads that. " 'debt' means any liability, in money, whether secured or unsecured, due from a fisherman whether payable under a contract, or under a decree or order of any Court or Tribunal, or otherwise and includes,- (a) any sum payable to; (i) an institutional creditor; (ii) a co-operative society; (iii) a Fishermen society; (b) any sum received from a creditor by a fisherman; (c) any type of loan taken by a fisherman from financial institutions and specified by the Government by Notification; but does not include any loan amount taken by a fisherman for commercial purposes or luxury other than fishing purposes to augment his income and the amount payable to Central or State Governments' or other State Governments or Governments of Union Territories and the amount due to Local Self Government Institutions, Statutory bodies, Central or State Public Sector Undertakings or other Institutions as may be specified by the Government by notification. "
So the Act itself clarify that the debt or any loan amount taken by a fisherman for commercial purpose would not come within the purview of the Act.
The PW 1 would depose during cross examination (Page - 4) that "so also on 6.1.2005 she (mother Chandri) availed a loan of Rs.35,000/- for business purpose.
The Document Ext. X1, the file of documents produced by the Opposite Party as per the order in the IA No.4/2017 would show that the loan was applied for improvement of existing fish business.
The Loan Application Form (Ext.B1) and the Composite Hypothecation Agreement (Ext.B3), and the Guarantee Agreement (Ext.B4 ) would show that aspect. The Ext. B5, the request was for the sanctioning of business loan signed by the complainant would also endorse the same.
Another issue raised by the complainant is that she had deposited the title deed of her property with the Opposite party No:1 bank for obtaining loan and when she went to the Opposite Party No.1 on 03.07.2015 and offered Rs. 29,000/-along with the balance amount in her SB account for closing the loan as per the settlement, it was informed that the title deed mortgaged was missing and not traceable.
The opposite party argue that the complainant availed a loan of Rs. 35,000/- on 06.01.2005 , for which Smt. Susheela ,W/o Sreedhara was the co-obligant. The loan was not a mortgage loan and no title deed was deposited with the Opposite Party No.1 as stated by the complainant. The complainant closed the above loan and took another loan of Rs.50,000/-on 25.05.2011, from the Opposite Party No.1 for improvement of fish business.
Here regarding the deposit of title deed, no reliable evidence is adduced to show that the Opposite Party received such a title deed from the complainant as security for advancing any loan. The Document Ext. X1, the file of documents produced by the Opposite Party as per the order in the IA No.4/2017 does not contain any mentioning about such a document. Either in the Loan Application Form ( Ext.B1)or in the Composite Hypothecation Agreement ( Ext.B3 ), or in the Guarantee Agreement (Ext.B4 ) no mentioning of any deposit of Title Deed . In the Ext.B5 , the request for the sanctioning of business loan signed by the complainant ,no such mentioning or offer regarding the deposit of any title deed document. The complainant did not produce any document to show that she had deposited such a title deed as a security for advancing the loan and the opposite party had received the same.
As mentioned earlier, the complainant filed IA 4/2017 to direct the opposite party No.1 to cause production of certain documents, which was allowed and the Opposite party No:1 produced the documents, except the Original title deed No. 2110 / 2002 of SR0 Kasaragod, along with an affidavit stating that the bank is not in a position to produce such a document as the complainant had not availed any Ioan by mortgaging the same. The opposite party produced true copy of the Equitable Mortgage Register for the year 2002. The original E. M. Register also produced for verification and return.
After production of the documents the complainant filed an IA 270 / 17 alleging that the page 97 relating to the mortgage deed of the complainant in respect of loan No.42067220000518 dated 03- 09-2002 is found missing, which is torn off by the opposite party No.1 to defraud the complainant, which was objected by the Opposite party No:1 . The above IA was disposed of by directing the Opposite party No:1 to file an affidavit and the Senior Manager filed the Ext - B7 affidavit explaining their stand.
It is stated that the date of loan of complainant is claimed to be on 03.09.2002 and therefore the Page No. 97 does not relates to her loan. Page No 97 was damaged even prior to the writing the entry in EM Register No.29/2002 and hence the page was removed. In the said page entry for one Prasad was entered in the Page No.96 and his title details written in page No. 98 as per EM 41/2003 dated 22.05 2003. On verification of the original book it is found to be convincing and the commission hold that there is no reason to disbelieve the affidavit.
The PW 1 the daughter of Chandri would depose during cross examination (Page - 4) that "No evidence to show that my mother has deposited the title deed before the opposite party".
In the absence of any conclusive proof, this commission is not inclined to hold that such a title deed is deposited with the opposite party and the opposite party is to liable to return the same.
Here admittedly the complainant defaulted the loan repayment and as per the loan agreement the Opposite party No:.1 bank was entitled to take steps to recover the same. Issuing Adalath notices for settlement of the loan by offering deductions by a bank cannot be considered as service deficiency.
The complainant argue that the Opposite Party No.4 , the secretary of the Fishermen Debt relief Commission, as per letter Ref No.909/94 dated 21.03.2014 requested the Opposite Party No.1 as to know whether the loan of the complainant was renewed or not, for which the Opposite Party No.1 played fraud and did not send any reply. The Opposite Party No.1 was knowingly suppressed the fact that the loan taken by the complainant was falling within the ambit of the Fishermen Debt relief Act.
The Fishermen Debt relief Commission is an authority, having the power of a civil court and it can pass orders and take necessary coercive steps to cause production of any document and entire loan files, for enquiry of any case pending before them. Here in this case there is no evidence to hold that the Opposite party No:1 has not produced the details regarding the loan of the complainant.
Therefore it cannot be said that the complainant’s loss of any benefit from the Fishermen Debt Relief scheme, if any, is solely due to the acts or omissions of the Opposite party No:1.
So considering the facts and circumstance of the case, this commission is of the considered view that the complainant failed to establish any service deficiency on the part of opposite parties.
ln the result , the complaint is dismissed without costs.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1- Xerox copy of the Regd. Release deed.
A2- Letter issued by the OP No:1 Dt: 24/06/2010
A3- Copy of Fishermen Pass book
A4- A letter Dt: 5/09/2012
A5- Letter Dt: 21/03/2014
A6- Copy of Moratorium order
A7- Copy of Pigmi collection slip
A8- SB account pass book No. 203839
A9- The copy of LA No.636/2015
A10 to A14- Adalath letters
B1- Copy of loan application Dt: 23/12/2004
B2- Copy of the stamped Receipt Dt: 06/01/2005
B3 – copy of the Composite Hypothecation agreement.
B4- copy of the Guarantee agreement
B5- Copy of the Request dt: 03/01/2005
B6- Copy of the E.M Register
B7- Affidavit Dt: 19/09/2017 signed by Senior Branch Manager
B8- Copy of the loan application Dt: 23/02/2011
B9- Stamped Receipt Dt: 25/02/2011
B10- General agreement Dt. 23/02/2011
B11 – Guarantee agreement Dt: 25/02/2011
B12- Particulars of assets and liabilities of the complainant Dt : 23/02/2001
B13- Particulars of assets and liabilities of the guarantor of the complainant.
B14- Statement of account
B15- Statement of account
B16- Statement of account
X1- File of documents
Witness Examined
Pw1- Sindhu.K
Pw2- Susheela
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
