BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE.
PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT
THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II
CC. 28 / 2004
TUESDAY THE 27TH DAY OF DECEMBER 2011.
Manikandan,
S/o. Balu Chettiar,
No.196, Phase II, TNHB,
Sathuvachari, Vellore -9. … Complainant.
- Vs –
1. The Branch Manager,
Catholic Syrian Bank,
No.384, Main Bazaar,
Vellore -4.
2. The General Manager,
Regd Office,
The Catholic Syrian Bank Limited,
Thrissur,
Kerala State. … Opposite parties.
. . . .
This petition coming on for final hearing before us on 20.12..2011, in the presence of Thiru. J. Venkatramanii Advocate for the complainant and Thiru.S. Varadhan, Advocate for the opposite parties and having stood over for consideration till this day, the Forum made the following:
O R D E R
Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District.
1. The brief facts of the case of the complainant is as follows:
One G. Narasiman who was having a spare parts in Auto Mobile shop at Bye-pass Road, Vellore Town named M/s. Lakshmi Auto Mobiles. The said Narasimman has obtained a loan from the opposite party No.1 Bank. For the above said loan the complainant father Balu Chettiar stood as surety. The property of Balu Chettiar was Hypothecated for the above said loan. After the death of the said Balu Chettiar the complainant family is in dire need of monty and wanted to sell the mortgaged property. The complainant has approached the 1st opposite party for the settlement of the above loan. The complainant was directed to appear before the Zonal office at Coimbatore for settlement. Accordingly a settlement was arrived at by making a payment of Rs.5,40,000/- and he was directed to pay the above said sum on or before 30.9.03. The complainant has remitted the above said sum on 27.9.03 vide challan No.313882. On 27.9.03 after remitting the amount he wanted the mortgaged property document to be return to him. The 1st opposite party has informed the complainant that the documents were handed over the Panel Advocate for filing suit against the complainant and others. The complainant was directed to appear two days later to know about the petition of the case on 29.9.03 when the complainant visited the bank the 1st opposite party has informed the complainant that suit was already filed and directed the complainant to pay a sum of Rs.66,100/- as court fee and expenses. The said amount was remitted by the complainant on 29.9.03. When the complainant wanted to know whether he will be get back the amount since the matter is settled out of court. The 1st opposite party has informed the complainant that whatever be the return of the court fee amount will be paid back to the complainant. The complainant was directed to meet the Panel lawyer Mr.V.C. Sundram with a letter of withdrawal of the suit. The suit was withdrawn and the court fee was returned by the Sub-Judge, Vellore as per the proceedings. The Branch Manager is behaving indifferently and not wiling to refund the court fee amount which was returned by the Court.
2. The terms of the agreement stipulates an amount of Rs.5,40,000/- and the amount was paid and suit is withdrawn. Whatever be the excess payment by the complainant will have to be returned to the complainant. Failure on the part of the bank for the return of the document and excess amount paid will attract the provisions of C.P. Act under deficiency of service. The complainant issued notice on 20.12.03 for the mental agony and for the return of the amount The reply by the opposite parties are not satisfactory. The opposite parties are also bound to return amount remitted by the complainant towards court fee of RS.55,799.20. The act of the 1st opposite party amounts to deficiency of service and both the opposite parties are bound to pay the damages for the deficiency of service. Therefore the complainant prays this Forum for directing the opposite parties to pay a sum of Rs.55,790.20 the Court fee paid by the complainant together with interest @ 12% p.a. from the date of filing of this complaint and to return the documents mortgaged in this case to the complainant and to pay a sum of Rs.1,00,000/- as compensation for the deficiency of service on the part of the opposite parties and to pay a sum of Rs.2000/- as cost of this proceedings.
3. The averments in the counter filed by the 1st, opposite party and adopted by the 2nd opposite party are as follows:
The opposite party denies all the allegations in the complaint except those that are expressly admitted herein and puts the petitioner to strict proof of those not so admitted. It is true that the father of the complainant stood as a guarantor to one Narasiman of Lakshmi Auto Mobiles, Velloe and created an E.M. by deposit of title deeds in respect of this property, on the strength of which alone the loan was granted since the property is worth more than 17 lakhs. It is also true subsequently the petitioner and others approached for a settlement and there was an offer by the petitioner which of course was under certain circumstances and conditions stipulated as would be evident from the letter dt. 24.9.03. It has been specifically informed since the property is worth more than 15 lakhs and the amount due is Rs.7,83,139/- an amount very near to the amount due alone will be accepted. The offer by the petitioner was only Rs.5,40,000/- but the bank informed the petitioner this was excluding the court fees and the Advocate fees incurred or to be incurred. It is also true that the petitioner deposited a sum of Rs.5,40,000/- which was of course after the entrustment of the case to the lawyer and the amount paid towards expenses and fees. As admitted by the petitioner himself, he was informed of the aforesaid facts and was directed to deposit a sum of Rs.66,100/- paid to the lawyer by the bank towards court fee and expenses which was accordingly deposited. The petitioner was informed that the said amount is as per the agreement, apart from the amount arrived at and is also not refundable. Even otherwise as per the banking rules and regulations any amount in the account of a debtor the bank has lien over the said amount towards the amount due. Even after our repeated request the borrower and the guarantor have not signed revival letters in order to lapse time limit of documents. Hence bank constrained to file suit against them in order to keep the documents alive.
4. After the deposit the petitioner received all the documents deposited by his father. Inspite of all these the petitioner started laying claim over the amount of court fee and expenses to which is not entitled to. The complainant issued a notice on 20.12.03 to which a suitable reply was sent on 5.1.04. This is not a case which comes under the provisions of the consumer protection Act on the other hand it is a pure civil nature and the remedy of the opposite party if any can be only before a civil court and on this ground alone the petition has to be dismissed.
5. Now the points for consideration are:
a) ) Whether this Forum has got no jurisdiction to try this case?
b) Whether there is any deficiency in service, on
the part of the opposite parties?
c) Whether the complainants are entitled to the
reliefs asked for?.
6. Ex.A1 to Ex.A9 were marked on the side of the complainant and no documents were marked on the side of the opposite party. Proof affidavit of the complainant and Proof affidavit of the opposite parties have been filed. No oral evidence let in by either side.
7. POINT No. a) & b)
It is admitted case of the parties that the father of the complainant stood as a guarantor to one Narasimban of Lakshmi Auto Mobiles, Vellore and created an E.M. by deposit of title deeds in respect of his property, on the strength of which alone the loan was granted. Thereafter the complainant has approached the 1st opposite party for the settlement of the said loan. Accordingly a settlement was arrived at by making a payment of Rs.5,40,000/- and the complainant has remitted the above said sum on 27.9.03 vide challan No.313882. Then the 1st opposite party has informed the complainant that the suit was already filed and directed the complainant to pay a sum of Rs.66,100/-as court fee and expenses. The said amount was remitted by the complainant on 29.9.03.
8. The complainant contended that at the time of settlement the 1st opposite party informed the complainant that he will be get back the court fee after the case is withdrawn. Accordingly, the complainant was directed to deposit a sum of Rs.66,100/- and paid to the lawyer by the back towards court fee and expenses which was accordingly deposited. The terms of the agreement stipulates an amount of Rs.5,40,000/- and the amount was paid and suit is withdrawn the court fee returned by the Sub-Judge Vellore, but the opposite parties did not pay the said amount to the complainant. The above said acts is amounts to deficiency in service on the part of the opposite parties.
9. The opposite parties contented that during the settlement, the offer by the complainant was only Rs.5,40,000/- but the bank informed the petitioner this was excluding the court fees and the Advocate fees incurred or to be incurred. As admitted by the complainant himself, he was informed of the above said facts and was directed to deposit a sum of Rs.66,100/- paid to the lawyer by the bank towards court fee and expenses which was accordingly deposited. The complainant was informed that as per the agreement, the said court fees and expenses amount not refundable. It is further contended that according to the complainant at the time of settlement the 1st opposite party has informed the complainant that whatever be the return of the court fee amount will be paid back to the complainant. Hence this is one of the breach of agreement according to the complainant. Therefore this is not a case which comes under the provisions of the Consumer Protection Act on the other hand it is a pure civil nature and the remedy of the opposite party if any can be only before a Civil Court and not before this Forum.
10. Admittedly when the complainant approached the 1st opposite party for settlement of the said loan, the 1st opposite party has informed the complainant that the suit was already filed for the said loan amount. However a settlement was arrived at making payment of Rs.5,40,000/-. The complainant was directed to pay the above said sum on or before 30.9.03. Accordingly the complainant has remitted the above said sum on 27.9.03 vide challan No.313882. Thereafter the suit was withdrawn and the court fee was returned to the 1st opposite party. According to the complainant at the time of settlement, the 1st opposite party has informed the complainant that whatever be the return of the court fee amount will be paid back to the complainant. But the 1st opposite party stated in his proof affidavit that at the time of settlement as admitted by the complainant himself, he was informed of the above said facts, and was directed to deposit a sum of Rs.66,100/- paid to the lawyer by the bank towards court fee and expenses which was accordingly deposited. The complainant was also informed that the said amount is as per the agreement, apart from the amount arrived at an is also not refundable. The complainant has stated that based on the agreement arrived by both parties the 1st opposite party informed the complainant that the court fee amount will be paid back to the complainant. But the 1st opposite party has stated that the complainant was informed that the said amount is as per agreement is not refundable. Therefore, it is clear that it is a pure civil nature and the remedy of the opposite party if any can be only before the Civil Court hence, this Forum has got no Jurisdiction to try this complaint.
11. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the complainant, and from the documents Ex.A1 to A9 we have come to the conclusion that the complaint is not maintainable before this Forum and this Forum cannot have any jurisdiction to entertain the same. We have also come to the conclusion, that the complainant has not clearly proved the deficiency in service, on the part of the opposite parties. Hence we answer this point (a) & (b) as against the complainant herein.
12. POINT NO; (c) :
In view of our findings on point No.(a) & (b) since we have come to the conclusion that the this complaint is not maintainable before this Forum cannot have any jurisdiction to entertain the same and we have also come to the conclusion that the complainant is not at all entitled to any relief asked by him in this complaint. Hence, we answer this point (c) also as against the complainant herein.
13. In the result this complaint is dismissed. No costs.
Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 27th day of December 2011.
MEMBER-II PRESIDENT.
List of Documents:
Complainant’s Exhibits:
Ex.A1- 7.10.03 - X-copy of letter to the 2nd opposite party.
Ex.A2- 24.9.03 - X-copy of letter to the complainant in the form of an
Agreement for the settlement of the case.
Ex.A3- 27.9.03 - X-copy of challan for Rs.5,40,000/-
Ex.A4- 27.9.03 - X-copy of Challan for Rs.66,100/-
Ex.A5- 20.12.03 - X-copy of Notice to the Regional Manger, The Catholic Syrian
Bank Ltd., Coimbatore.
Ex.A6- -- - X-copy of Ack. Card.
Ex.A7- 20.12.03 - X-copy of Notice to the General Manager, The Catholic Syrian
Bank Ltd. Thrissur.
Ex.A8- -- - X-copy of Ack. Card.
Ex.A9- 5.1.04 - X-copy of Reply notice.
Opposite parties’ Exhibits: .. Nil..
MEMBER-II PRESIDENT.
