KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL 863/2004 JUDGMENT DATED : 10.9.09 PRESENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER Appeal filed against the order passed by CDRF, Kollam in OP.69/03 T.K.Vasudevan Achary, : APPELLANT Murali Sadnam, Thazhamel, Anchel. (By Adv.K.P.Ranadive) VS. 1, The General Manager, : RESPONDENTS Kerala State Financial Enterprises Ltd., Regd. Office, Bhadratha, P.B.No.510, Museum Road, Thrissur. 2. The Branch Manager, Kerala State Financial Enterprises Ltd., Anchel, Kollam. JUDGMENT SRI.S.CHANDRAMOHAN NAIR : MEMBER The above appeal is preferred against the order dated 9.7.04 in OP 69/03 of CDRF, Kollam wherein and whereby the complaint stands dismissed. 2. The case of the complainant before the Forum was that he was a subscriber of Chitty No.8/94 of the opposite parties as chital No.9 for a sala of Rs.50000/- and that he had taken a loan of Rs.25,000/- based on the chitty amount. It is his case that though the chitty was prized on the 13th instalment and as he could not procure the sureties as demanded by the opposite parties, the amount was asked to be put in deposit and inspite of the said request the opposite parties failed in doing so and that at the same time he was asked to pay huge amount on the loan without any basis. Alleging deficiency in service the complainant was filed praying for directions to pay sum of Rs.71,981.29/- with interest at 18% per annum from 15.2.02 with compensation and cost. 3. The opposite parties contested the matter by filing version wherein it was submitted that the complainant was a chronic defaulter in repayment of the loan amount. Inspite of notices he had continued to be a defaulter and hence the prized amount was adjusted towards the liabilities. It is also the case of the opposite parties that there was no instruction from the side of the complainant to put the amount in fixed deposit and that when a subscriber becomes a defaulter, the opposite party is at liberty to adjust the deposits standing in the name of the defaulter towards the liabilities. Contending that there was no deficiency in service opposite parties prayed for the dismissal of the complaint. 4. The evidence consisted of the oral testimony of the complainant as PW1 and Ext.P1 to P4 on the side of the complainant. The Branch Manager of the opposite parties was examined as DW1 and the file relating to the chitty and loan transaction in respect to the complainant was marked as Ext.D1 series. 5. We heard both sides. The learned counsel for the appellant/ complainant vehemently argued before us that the order of the Forum below is without any appreciation of the facts and circumstances of the case. It is also argued by the learned counsel that the Forum did not appreciate the evidence and the documents of the complainant in the correct perspective and if the Forum had looked into the matter seriously the complaint would have been allowed. It is also argued that the District Forum ought to have found that the opposite parties have committed grave deficiency in service in not intimating the complainant regarding the adjustment of the amount in deposit by the complainant with the opposite parties. It is also his case that the opposite parties ought to have given interest for the deposited amount as the same was not disbursed to the complainant. The further case of the appellant is that the amount of the prized chitty was with the opposite parties for a long time and when the opposite parties were collecting interest from the complainant the opposite parties were duty bound to give interest for the money of the complainant with the opposite parties. The learned counsel has also invited our attention to the fact that the opposite parties have collected huge interest from the complainant without any basis and that the complainant is entitled to get back the amounts collected illegally from him. 6. On the other hand the learned counsel for the respondents/opposite parties justified the findings and conclusions of the Forum below. He has argued before us that there was no deficiency in service on the part of the opposite parties in adjusting the amount with them towards the defaulted instalments and that they are empowered to do so as per the variyola conditions of the chitty and the loan agreement. It is also argued by him that complainant has never requested the opposite parties to put the prized money in deposit account. It is also his case that even though the opposite parties had directed the complainant to furnish security for releasing the prized money, the complainant was never ready to do so and in such a circumstance the amount was retained with them and they were ready to release the amount as and when sufficient security was furnished by the complainant. It is also submitted by the learned counsel that the complainant. was a defaulter both in the chitty and in the loan and in the circumstances there was no other alternative but to adjust the amount belonging to the complainant and in doing so it cannot be said that there was deficiency in service on the part of the opposite parties. Thus he canvassed for the position that the opposite parties were neither negligent nor there was any unfair trade practice committed by them. 7. On hearing the learned counsel for the appellant and the respondents and on perusing the records we find that it is the admitted case of both the parties that the complainant was a subscriber of the chitty and based on the chitty amount he had availed loan from the bank. It is also noted that the complainant was regular in remitting the instalment for the first few months and thereafter he had defaulted the payments. It is also the admitted case of both the parties that the chitty was prized in favour of the complainant on 6.5.95. However it is also found that the prized amount was not paid to the complainant since sufficient security was not furnished by the complainant. The learned counsel for the appellant/complainant would argue that the complainant had requested the opposite parties to put the prized amount in fixed deposit account as he could not procure sufficient security for getting the prized amount. The learned counsel for the respondents/opposite parties argued before us that there is no evidence to show that the complainant had asked the opposite parties to put the amount in deposit. On a perusal of the records we find that the Branch Manager who is examined as DW1 has categorically stated 8. He has also deposed that there is no specific rule in the chitty rules or loan agreement that amounts belonging to loanees could not be put in deposit. He has further stated that in such kind of deposited amount interest also will be given. The respondents/opposite parties have no case that any amount towards interest was given to the complainant for the prized money even though the amount was with them. They would argue that the amount was adjusted towards the defaulted payments. On a careful examination of the entire facts and circumstances of the case we do not find that the whole amount of Rs.35000/- (prized money) was adjusted at one time itself. It is seen that the same is adjusted towards the instalments till the whole amount has been adjusted . In such a circumstance we do not think it fair that the opposite parties can enjoy the whole amount belonging to the complainant without paying any interest. The opposite parties are liable to pay interest for the amount on a diminishing balance basis from the date of the complainant becoming entitled for the prized money till the amount has been finally adjusted towards the defaulted instalments. In such a circumstance we find that the dismissal of the complaint by Forum below cannot be justified though the complainant claim cannot be allowed in total. Complainant has claimed a sum of Rs.71,981/- including compensation on various accounts. We do not think that he is entitled to get the said sum as he was a defaulter in making payments to the opposite parties. In the result the appeal is allowed in part setting aside the order dated 9.7.04 in OP 69/03 in the file of CDRF, Kollam. Thereby the respondents/opposite parties are directed to pay interest at the rate of 19% per annum from the date on which the prized amount became due to the complainant till the date on which the amount was finally adjusted towards the defaulted payment of the complainant on a diminishing balance scheme. It is noted that the opposite parties have realised 19% interest per annum for the loan amount from the complainant and in such a circumstance the complainant is entitled to get interest at 19% per annum. However in the facts and circumstance of the present appeal there is no order as to costs. SRI.S.CHANDRAMOHAN NAIR : MEMBER SRI.M.V.VISWANATHAN : JUDICIAL MEMBER ps
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