IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MADIKERI

SRI. C.V. MARGOOR, PRESIDENT

O R D E R

1. This complaint has filed by Smt.Buvadira Lalitha W/o late B.Machaiah aged 61 years resident of Eachoor Village, Virajpet Taluk, Kodagu District to direct the opposite party Nos.1 and 2 the Secretary and President of the Merchant’s Credit Co-operative Society, Gonikoppal, Kodagu District to release the pledged jewels pertaining to the loan accounts and also to pay the damages a sum of Rs.30,000/- and Rs.10,000/- towards cost of the proceedings.
2. It is the case of complainant that her husband late B.Manchaiah was working as Secretary in the opposite party society and retired in the year 2006.  Later, the husband of the complainant was died on 13.07.2009 leaving behind him, her and children as legal heirs to succeed the properties and assets left by him.  Late Machaiah during his life time by pledging gold with the opposite parties has obtained four gold loans total a sum of Rs.1,79,000/- on 22.04.2008,  The complainant has also obtained loan from the opposite party society by pledging her gold jewels on 22.04.2008 and 24.04.2008 a sum of Rs.78,000/-.  Due to unavoidable circumstances, the complainant and her husband could not repay the said loan to the bank.  It is further case of complainant that she requested the opposite parties to release the gold and gold ornaments by receiving amount with interest.  But the opposite parties did not accept the repayment and failed to release the pledged gold.  Then the complainant has got issued legal notice dated 01.10.2010 calling upon the opposite parties to release the jewels by accepting the loan amount.  But the opposite parties neither released the pledged jewels nor replied the same. The opposite party No.1 has issued notice dated 19.06.2018 calling upon the complainant to pay the loan amount and gold loan amount as they are overdue otherwise they are going to auction the pledged jewels for the recovery of loan amount.  Again the complainant has got issued another notice dated 18.03.2019 calling upon the opposite parties to release the jewels by accepting the loan amount.  On the contrary, the opposite parties instead of accepting the loan amount again sent notice stating that they are going to auction the pledged gold to recover the loan amount.  Hence, due to negligence and deficiency in service on the part of opposite parties, the complainant has compelled to file this complaint.
3. The opposite parties appeared through its learned counsel and resisted the complaint contending that the complainant has filed false and frivolous case suppressing the material facts.  The opposite parties admitted that the complainant and her husband have availed loan by pledging gold in the year 2008.  The husband of complainant served as Secretary of the opposite party society from 2001 to 2006 and on his retirement in the year 2006 he was appointed as recovery officer by the Board of Management and he worked till 2008.  Late Machaiah on 26.02.2005 has barrowed over draft loan of Rs.2,00,000/- and the complainant is gaurantor for the said loan.  The complainant herself borrowed a sum of Rs.2,00,000/- as over draft loan on 26.02.2005.  The complainant and her husband kept renewing the over draft amount till 24.05.2008 by paying only interest. Thereafter the opposite parties by filing disputed case before the Deputy Registrar of Co-operative Society, Madikeri in No.79 and 80/2011-2012 has got decrees / award against the complainant and her husband on 21.12.2018.  The said authority has held that the complainant and her husband are liable to pay a sum of Rs.2,00,000/- each with interest at the rate of 17% P.A. from 24.05.2008 till payment.  The complainant has not satisfied said decrees.
4. It is further case of opposite parties that Late Machaiah husband of complainant has mis-appropriated the funds of society to the tune of Rs.21,63,900/- and the said fact came to the light in the audit report submitted to the society for the year 2007-2008 and 2008-2009.  The opposite parties have initiated recovery legal proceedings before the Deputy Registrar of Co-operative Society, Madikeri and the said authority has attached properties of complainant and her husband by issuing an order of attachment  before judgement and same is confirmed by the KAT, Bangalore.  The opposite parties repeatedly told the complainant to repay the loan dues pertaining to over draft and jewels loans but she did not satisfy said dues to the society.  If the jewels pledged by complainant and her husband  auctioned will not satisfy the decrees obtained by the society.  On the amongst other grounds, the opposite parties asked to dismiss the complaint with costs.

5. The complainant filed her affidavit evidence and got marked Exhibits P.1 to 8 documents.  On behalf of opposite parties society one B.E.Kiran In-charge CEO filed affidavit evidence and got marked Exhibits R.1 to R.8 documents.

6.  We have heard the oral arguments advanced by the learned counsel for the complainant and opposite parties in addition to written brief submitted by the complainant and the points that would arise for determination are as under;

1. Whether the complainant proves that the opposite parties in spite of her willingness to repay the gold loan amount rejected her offer to receive the loan amount and release the gold jewels amounts to deficiency in service?

2. Is complainant entitled to the relief sought for?

7. Our findings on the above points is as under;

• Point No.1:-In the negative.
• Point No.2:-In the negative for the below;

R E A S O N S

8. Point No.1 and 2:-The learned counsel for the complainant has vehemently argued that though the complainant has been ready to repay the gold loan since 01.10.2010 the opposite parties have been refusing to release the gold jewels by accepting loan amount. As against this the learned counsel representing the opposite parties have submitted that the complainant has suppressed material facts with regard to over draft loan due by her and her late husband and mis-appreciation  funds of the society by late Machaiah.  The learned counsel for the opposite parties further submitted that if pledged gold is auctioned, the auction amount will not satisfied to adjust six gold loans and over draft loan amount.
9. The opposite parties have not disputed the availment of gold loan by deceased husband of complainant on 22.04.2008 to the tune of Rs.1,79,000/- by pledging gold and availment of loan of Rs.78,000/- by the complainant on 22^nd and 24^th April, 2008 by pledging gold ornaments. The opposite parties have produced Exhibits R.2 and R.3 decrees/award passed by the Deputy Registrar of Co-operative Society, Madikeri against the complainant and her family members in dispute Nos.79 and 80/2011-12 on 21.12.2018 directing the opposite parties to recover Rs.2,00,000/- in each case from the complainant herein and her family members with interest at the rate of 17% p.a. from 24.05.2018 till payment.  It is further ordered that in case the complainant fails to pay the said amount, the opposite parties are at liberty to recover the said amount by sale of movable and immovable properties of complainant in accordance with law.  These two disputed decrees amount + interest works out more than Rs.10,00,000/-.  According to the complainant gold pledged by her and her husband valued nearly Rs.5,00,000/-. 

10. The opposite party society has produced Exhibits R.6 and 7 death note left by the husband of complainant for non-payment of loan and mis-appropriation of the fund of society.  Exhibit R.8 copy of proceedings initiated by opposite parties against the complainant and her son before the Deputy Registrar Co-operative Society, Madikeri for recovery of mis-appropriated amount of Rs.21,63,900/-.  Exhibit R.8 has been filed by the opposite party society on 07.02.2011.  The learned counsel for the opposite party submitted that the opposite parties bank has general lien over the property of complainant as per Section 171 of the Indian Contract Act, 1872.  Section 171 says general lien of bankers, factors, whar-fingers, attorneys and policy brokers. According to this Section bankers have a general lien on all securities deposited with them as bankers by a customer, unless there be an express contract or circumstances showing an implied contract inconsistence with a lien. The learned counsel for the opposite parties have further argued that detail enquiry is required with regard to how much amount due by complainant and her late husband as such this Forum cannot decide this case as simple case of deficiency in service.
11. The complainant has not disputed by filing an additional affidavit in respect of decrees obtained by opposite party society in dispute Nos.79 and 80/2011-12 dated 21.12.2018 for recovery of Rs.4,00,000/- with interest at the rate of 17% p.a. from 24.05.2008.  It shows that though there are decrees against the complainant by suppressing the said decrees, the complainant has come up with allegation against the opposite party that though they are ready to pay the gold loan amount, the society is not ready to release the gold jewels.  In view of the plenty of documents or materials produced by the opposite party it can be said that there is no deficiency in service on it part.  On the contrary, the complainant by suppressing material facts with regard to their non-payment of over draft loan amount in spite of decrees passed by the Deputy Registrar, Co-operative Society, Madikeri has approached this Forum by filing false and frivolous complaint.  The complainant is not stranger to the loan but she has also taken over draft loan in the year 2005 and not repaid the same.  The overdraft loan of the complainant and her husband with interest is due to the society more than Rs.10,00,000/-.  Therefore, this is a fit case to award cost against the complainant for filing frivolous complaint.  The complainant shall pay cost of Rs.8,000/- under Section 26 of the C.P.Act and out of that Rs.4,000/- be remitted to the Consumer Legal Aid Account and remaining Rs.4,000/- payable to opposite party.  Accordingly, we proceed to pass the following;

O R D E R

1. The complaint filed by Smt.Buvadira Lalitha Machaiah is dismissed with cost of Rs.8,000/-.
2. The complainant shall pay the said cost within 30 days from the date of order.  Otherwise it carries interest at the rate of 10% p.a. from the date of filing complaint till realization.
3. Out of Rs.8,000/-, Rs.4,000/- payable to the opposite party and remaining amount of Rs.4,000/- shall be remitted to the Consumer Legal Aid Account including interest.
4. AR/AAO of this office shall initiate recovery proceedings in case the complainant fails to pay the cost after 30 days from the date of order.
5. Furnish copy of order to the complainant and opposite party at free of cost.

(Dictated to the Stenographer, got it transcribed, corrected and pronounced in the open Forum on this 28^thDAY OF FEBRUARY, 2020)

                                                   (C.V. MARGOOR)

                                                        PRESIDENT 

                                                 (M.C. DEVAKUMAR)