BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 16th August 2010
COMPLAINT NO.64/2010
(Admitted on 20.2.2010)
PRESENT: 1. Smt. Asha Shetty, President 2. Smt.Lavanya M. Rai, Member
BETWEEN:
Sri Sheshappa,
So Kunjappa,
Aged about 70 years,
Rat Nekkaremar House,
Kankanady, Gorigudde,
Mangalore. …….. COMPLAINANT
(Advocate for the Complainant: Sri K.S.N.Rajesh)
VERSUS
The General Manager,
Samudra Vividhodhesha Co operative
Society Ltd.,
Thokkottu, Mangalore. ……. OPPOSITE PARTY
(Advocate for the Opposite Party: Sri U.N.Kandige)
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
It is submitted that, the Complainant obtained a loan from the Opposite Party by mortgaging his immovable property situated at Beluvai Village of Mangalore Taluk, comprised in survey No.504/1A in an extent of 1.90 acres. It is submitted that, there was a total outstanding of Rs.2,04,918/-. The Opposite Party for recovery of the said amount auctioned the aforesaid immovable property of the Complainant for a total sum of Rs.3,50,000/- and the aforesaid property has been transferred in the name of the purchaser. It is stated that, the Complainant had no knowledge about the auction and the Opposite Party not informed the aforesaid auction to the Complainant and contended that the Opposite Party has no right to auction the aforesaid property without intimating the same to the Complainant.
It is also alleged that, the Opposite Party has failed to pay the balance amount of Rs.1,45,082/- to the Complainant after adjustment of the alleged arrears. It is submitted that, the Opposite Party issued a notice dated 19.09.2008 and stated that, they have auctioned the property for Rs.3,50,000/- and out of that an amount Rs.2,04,918/- has been adjusted and the daughter of the Complainant by name Anitha Devadiga i.e., a sum of Rs.69,840/- adjusted and a sum of Rs.75,242/- deposited before the Recovery Officer SCDCC Bank Mangalore.
It is further stated that, the Complainant is not liable to pay the alleged dues of his daughter and the Opposite Party without consent of the Complainant have adjusted the said amount to the alleged dues to his daughter. There is no obligation on the part of the Complainant to pay the dues of her daughter. Thereafter the legal notice was issued calling upon to pay a sum of Rs.1,45,082/- but the same has not been complied and contended that the Opposite Party has committed deficiency in service and filed the above Complaint before this Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay a sum of Rs.1,48,082/- along with interest at 18% p.a. and also pay compensation and cost of the proceedings.
2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version, stated that the Complainant availed the loan with the Opposite Party. The Complainant had failed to clear the said loan as undertaken despite repeated request and hence the Opposite Party has initiated legal action and the award/decree dated 29.12.2003 was passed in dispute No.4590/2003-04 by the Additional Registrar of Co-operative Societies Bangalore, wherein, the liabilities of the Complainant is decreed for a sum of Rs.98,442/- with interest at 24% till payment. The Complainant has challenged the same before the Karnataka Appellate Tribunal Bangalore in appeal No.305/2004 but the same has been dismissed as per order dated 14.03.2007 and the decree passed in dispute No.4590/2003-04 has been confirmed. Thereafter the Opposite Party proceeded to execute the said decree by filing Execution Petition between the Sale Officer constituted under Karnataka Co-operative Societies Act as per E.P. No.500/2007-08. The immovable property that was offered by the Complainant as security was sold in public auction by the Sale Officer for Rs.3,50,000/-. It is denied that the Complainant had no knowledge about the auction.
It is further stated that, the Sale Officer is not a subordinate official or agent under the Opposite Party. He is a Co-operative departmental official who is the authority to execute the awards passed by the courts constituted under Karnataka Co-operative Societies Act. It is stated that, the Sale Officer has proceeded with the execution of the award and decree as per the procedure contemplated under the provisions of Karnataka Co-operative Societies Act. It is stated that, the Anitha Devadiga, daughter of the Complainant availed a loan from the Opposite Party and the same remained outstanding and award was passed and execution petition came to be filed. The Complainant as per his letter dated 29.03.2008 had undertaken to clear his liabilities and also the liabilities of his daughter by selling the aforesaid property. Accordingly, the Opposite Party is entitled to adjust the auction proceeds to the loan account of the Complainant and loan account of his daughter as undertaken by the Complainant and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri Sheshappa (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex.C1 to C10 were marked for the Complainant as listed in the annexure. One Sri.Ananda Shetty, Chief Executive/General Manager of the Opposite Party filed counter affidavit and answered the interrogatories served on him. Ex.R1 to R4 were marked for the Opposite Party as listed in the annexure. Both parties are produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:
Point No.(i): Negative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
It is admitted by the parties before this Forum is that, the Complainant one Sri.Sheshappa and her daughter one Anitha Devadiga availed a loan from the Opposite Party and the same has been remained outstanding and award was passed. After the award, the Execution Petition came to be filed under the Karnataka Co-operative Societies Act and the immovable property that was offered by the Complainant as security was sold in public auction by the Sale Officer contemplated under Karnataka Co-operative Societies Act in accordance with the procedure contemplated under law.
The allegation of the Complainant is that, the auction conducted by the Sale Officer is not intimated and the Complainant had no knowledge about the auction of his property. The another allegation is that, the Opposite Party after auction failed to pay the balance amount of Rs.1,45,082/- after adjusting his loan outstanding of Rs.2,04,980/-. But the Opposite Party adjusted Rs.69,840/- i.e., the loan pertaining to his daughter which amounts to deficiency.
On the other hand, the Opposite Party contended that, the Complainant as well as the daughter Anitha Devadiga both are defaulter and thereafter initiated legal action against the Complainant by filing a dispute No.4590/2003-04 and the dispute has been decreed. Thereafter the Complainant filed an appeal before the Appellate Authority Bangalore and thereafter Execution Petition came to be filed before the Sale Officer contemplated under Karnataka Co-operative Societies Act as per execution Petition No.500/2007-08 as against the Complainant and 499/2007-08 as against the daughter of the Complainant i.e., Anitha Devadiga. The Sale Officer contemplated under Karnataka Co-operative Societies Act in accordance with the procedure contemplated under law auctioned the property and recovered the sale proceeds and adjusted the loan account as well as his daughters loan account as per the undertaking letter issued by the Complainant and produced Ex R1 to R4 in order to substantiate their contention.
On going through the documents as well as oral evidence available on record, it is proved beyond doubt that the Sale Officer of the Karnataka Co-operative Societies Act conducted the auction after the Execution Petition came to be filed before him in accordance with law. When that being the case, it is the burden lies upon the Complainant to show that the Sale Officer contemplated under the Karnataka Co-operative Societies Act proceeded the public auction without following the procedure contemplated under the Act. But no material evidence produced by the Complainant to show that, the Sale Officer not conducted the public auction in accordance with law or there is no material evidence available on record to show that the Complainant has no knowledge of the same. Further the Sale Officer of the Karnataka Co-operative Society also not made as party to the proceedings. On the other hand, the Complainant had a knowledge of the same because the same has been decreed as against the Complainant in dispute No.500/2003-04 and the said order was challenged before the Appellate Authority Tribunal Bangalore. Under that circumstances, the contention raised by the Complainant cannot be accepted.
As far as the adjustment of the sale proceeds i.e., Rs.69,840/- pertaining to the Complainant’s daughter loan amount, the Ex R4 i.e., the letter dated 29.03.2008 issued by the Complainant clearly reveals that, the Complainant gave an undertaking letter that the Complainant is undertaking to pay the loan amount of his daughter Anitha Devadiga. Basing on the above said letter the Opposite Party adjusted the loan amount of Rs.69,840/-. The Complainant himself given an undertaking letter that he is undertaking to pay the above said loan amount after disbursing his property. Under that circumstances, we do not consider that the Opposite Party committed deficiency in service. Since the Complainant issued an undertaking letter, the Opposite Party adjusted the loan amount of his daughter Anitha Devadiga.
In view of the above discussion, we hold that there is no deficiency on the part of the Opposite Party bank and there is no merits in the Complaint. Therefore, the Complaint filed by the Complainant deserves to be dismissed. No order as to costs.
6. In the result, we pass the following:
ORDER
The complaint is dismissed. No order as to costs.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 9 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 16th day of August 2010.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri Sheshappa – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 19.9.2008: Copy of notice issued by the Opposite Party.
Ex C2 – 01.10.2009: Notice issued by the Complainant to the O.P and recovery officer SCDCC Bank, Mangalore.
Ex C3 – 6.10.2009: Postal Acknowledgement duly signed by the Opposite Party.
Ex C4 – 6.10.2009: Postal Acknowledgement duly signed by the recovery officer SCDCC Bank, Mangalore.
Ex C5 – : Copy of notice issued to recovery officer SCDCC Bank, Mangalore by the Complainant.
Ex C6 – 22.12.2009: Legal notice issued to the Opposite Party.
Ex C7 –29.12.2009: Postal Acknowledgement duly signed by the O.P.
Ex C8 –31.12.2009: Postal Acknowledgement duly signed by recovery officer SCDCC Bank, Mangalore.
Ex C9 –30.12.2009: Postal Acknowledgement signed by Assistance Registrar of Co-operative Society, Near State Bank, Mangalore.
Ex C10 – 19.1.2010: Reply by issued by the Opposite Party to aforesaid legal notice, through his advocate.
Witnesses examined on behalf of the Opposite Party:
RW-1 : Sri.Ananda Shetty, Chief Executive/General Manager of O.P.
Documents produced on behalf of the Opposite Party:
Ex R1 – 29.12.2003: Notarized true copy of C.C. of Award passed in Dispute NO.4590/2003-04 by the Hon.Arbitrator and Additional Registrar of Co-Op. Societies (I & M) Bangalore.
Ex R2 – 14.3.2007: Notarized True copy of C.C. of order in Appeal
No.305/2004 before the KAT, Bangalore.
Ex R3 – 18.12.2004: Notarized true copy of C.C. of Award passed in Dispute No.6565/2004-05 by the Hon. Arbitrator and Additional Registrar of Co-Op Societies (I & M), Bangalore.
Ex R4 – 29.3.2008 : Letter of Complainant to the Opposite Party.
Dated:16.08.2010 PRESIDENT
