BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  MANGALORE

Dated this the 25^th March 2017

PRESENT

  SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SMT.LAVANYA M. RAI                   : HON’BLE MEMBER

ORDERS IN

C.C.No.251/2015

(Admitted on 1.8.2015)

1. Hamsa, S/o Late Usman Beary,

Aged about 37 years.

2. Aisamma, W/o Late Usman Beary.

Aged about 60 years.

3. Beefathumma, D/o late Usman beary,

Aged about 44 years,

4. Nebisa, D/o Late Usman Beary,

Aged about 42 years.

5. Hameed, S/o Late usman Beary,

Aged about 38 years.

6. Saramma, W/o Late Usman Beary,

Aged about 56 years.

7. Hajira, D/o Late Usman Beary,

aged about 34 years.

8. Maimuna, D/o Late Usman Beary,

Aged about 32 years.

9. Jamila, D/o Late Usman Beary,

Aged about 28 years,

All are residing at kallimar,

102 Nekkilady Village, Mardhala Post,

Puttur Taluk D.K and No.2 to No.9 are

Represented through their GPA holder

No.1 Hamsa.

                                                       ……… Complainants

(Advocate for Complainant by Sri. TP)

                            VERSUS

The Kadaba Primary Agricultural Credit

Co-operative society ltd,

Kadaba Village and Post,

Puttur Taluk, D.K.574221,

Represented by its Chief Executive Officer.

                                                                         …. Opposite Party

        (Advocate for Opposite Party by Sri. SD)

ORDER DELIVERED BY HON’BLE MEMBER

SMT. LAVANYA M. RAI

1.  This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service against the opposite party claiming certain reliefs.

The brief facts of the case are as under:

          The complainants are joint owners of the Agricultural land of 3 acres situated at Puttur Taluk.  The property was inherited by the complainants after death of Usman.   The complainants are enjoying the property jointly as absolute joint owners. The complainants are the members of the Opposite Party society.  For the purpose of renovate and extend the old family house they have approached the Opposite Party with a request to sanction a loan of Rs.10,00,000.00.  The Opposite Party has requested the complainants to furnish certain documents along with the estimate about the renovation of house.  Opposite Party has further advised the complainant for avoid to come all complainants to his office and to Puttur for execute the Registered Mortgage deed to obtain the GPA of others in the name of one of the shareholder.  The complainant No.2 to 9 executed GPA by authorizing the complainant No.1 for obtain loan form the Opposite Party and also execute necessary documents and deeds through G.P.A. After obtaining necessary documents the Opposite Party has sanctioned the loan of Rs.10,00,000/ and requested the complainants to execute registered Mortgage Deed.  Hence on 11.2.2015 the complainants had executed registered Mortgage deed of Deposit of title deeds document No.PUT.1.06291.2014.2015, CD No.PUTD 297 Book No.1 before the Senior Sub Registrar of Puttur.  The Opposite Party has paid a sum of Rs.5,45,000/ and obtained a sum of Rs.55,000/ towards the shares.  After release of Rs.5,45,000/ by the Opposite Party the complainant No.1 demolished the old house and started the construction work and finished up to the slab level.  For continue the further work complainant No.1 approached the Opposite Party and requested him for release balance amount of Rs.4,00,000/.  But the Opposite Party has postponed for release the balance loan amount said that the complainant No.2, 4 and 5 objected to release the balance loan amount and refused to release sum of Rs.4,00,000/.  The complainant No.1 requested to give the copy of the objection.  The Opposite Party has gave xerox copy of the letter and on perusal the said letter the complainant No.1 got surprise and came to know that the Opposite Party has created the said letter.  Till today no body filed objection as alleged by the Opposite Party and the GPA is still valid and legal.  Unless the GPA is cancelled there is no legal rights to file objection as alleged by the Opposite Party and hence the Opposite Party has created a false story for grab the money sanctioned by him in the name of the complainants after obtaining mortgage deed for Rs.10,00,000/ 

          Due to non release of the entire the loan amounts the complainants was not able to continue the construction work and hence the complainants repeatedly requested the Opposite Party for release the balance loan amount of 4 lakh but Opposite Party not released.  Hence the complainants were got issued legal notice to the Opposite Party on 3.6.2015 but Opposite Party not replied.  Hence the above complaint filed by the complainant before this forum under  section 12 of the C.P.Act 1986(here in after referred to as the Act) seeking direction from this Fora to  the Opposite Parties to  release the balance loan amount of Rs.4,00,000.00 as per the mortgaged deed dated 11.2.2015, and refund Rs.55,000.00 which was illegally deducted as share from the sanctioned loan amount, to pay Rs.25,000/ towards compensation and to pay Rs.5,000/ towards the cost of this proceedings and other reliefs.

II. Version Notice served to the opposite party by RPAD and filed version stating that the complainants have applied for a loan of Rs.10,00,000/ for the purpose of renovation and to extend their old family house.  It is false to state that the Opposite Party has advised the 1^st complainant to get GPA of other complainants in order to register the Mortgage Deed. It is true that after obtaining necessary documents this Opposite Party has sanctioned the loan of Rs.10,00,000/ and the complainant has executed register Mortgage deed.          Opposite Party has released Rs.6,00,000/- to the complainants.  It is submitted that this Opposite Party not aware as to the construction work of the house.  It is  denied that this Opposite Party has postponed the release of balance loan amount and refused release the balance amount of Rs.4,00,000/ it is submitted that complainants No.2, 4 and 5 have addressed letter dated 20.2.2015 to this Opposite Party and objected for release of the balance loan amount to the 1^st complainant.  In this background this Opposite Party did not release the balance amount to the 1^st complainant.  It is submitted that Supervisor of S.C.D.C.C Bank Ltd, Punja Circle has conducted spot inspection of the house under construction and by report dated10.6.2015 stated that only 30% of the construction is over even though 60% of the amount was released.  Further the Supervisor has recommended that no objection letter from the above complainants should be obtained and progress report of the construction should b obtained from the 1^st complainant and if it is not submitted the loan should limited to 6,00,000/ only.  In this background the further loan was not released to the 1^st complainant.  Thereafter the 5 the complainant has cancelled the GPA given to the complainant by register Notice dated 29.9.2015.  hence 1^st complainant cannot claim the balance loan amount from this Opposite Party.

          The GPA executed in favour of the 1^st complainant cannot be relied in view of the objections raise d by complainant No.2,4, and 5.  the 1^st complainant was required to submit the progress report of the house construction from time to time.  But the 1^st complainant has failed to submit the progress report to this Opposite Party.  In this regard the Supervisor of S.C.D.C.C Bank Ltd Punja Circle has clearly stated that the house construction work is completed to the extent of 30% only.  Hence the 1^st complainant is responsible for the present situation. Further there is a complication between the complainants with regarding the above loan.  The Opposite Party has already released the excess loan amount to the 1^st complainant, even though only 30% of the construction work is complete and prays for dismissal.

III.     In support of the above complaint the complainant Hamsa,  filed affidavit evidence as CW1 and answered the interrogatories served on him and documents produced got marked Ex.C1 to C6. On behalf of the opposite parties Mr.Chacko, (RW1) C.E.O Kadaba Primary Agricultural Credit Co-Operative Society, of opposite party also filed affidavit evidence and answered the interrogatories served on him and documents produced got marked Ex.R1 to R5.

IV.     In view of the above said facts, the points for arise for our consideration in the case are:

1. Whether the Complainant proved that the Opposite Party committed deficiency in service?
2. If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

        We have considered the arguments submitted by the complainant and Opposite Party and also considered the materials that was placed before the Fora and answered the points are as follows:

                                 Point No. (i) and (ii): Negative.

                                 Point No. (iii): As per the final order.

REASONS

V.   POINTS No. (i) and (ii): 

          In order to substantiate the 1^st complainant filed evidence by affidavit and produced documents Ex.C1 to C6 as listed in the annexure. After perusal of the evidence and documents, the 1^st complainant approached Opposite Party for sanction of loan of Rs.10,00,000/ in renovation of family house and executed registered mortgage deed i.e Ex.C1 by obtaining G.P.A (i.e. Ex.C5) from complainant no.2 to 9. After receiving documents from the 1^st complainant Opposite Party has sanctioned the loan of Rs.10,00,000/. Initially Opposite Party paid Rs.5,45,000/ and Rs.55,000/ towards shares and it is not disputed by the parties.  Thereafter complainant started to construction of house and finished up to the slab level.  After that the complainant approached the Opposite Party for release the balance amount of Rs.4,00,000/ for further work but Opposite Party told 1^st complainant that the complainant no.2,4,and 5 objected to release the balance loan amount hence refused. The allegation of the 1^st complainant that the copy of the objection letter is created by the Opposite Party no one filed objection as alleged by the Opposite Party and the G.P.A is still valid and legal hence complainant issued legal notice as per Ex.C3.  Due to non payment of the entire loan amount the complainants are not finished the house.

          The contention of the Opposite Party that as per Ex.R1 letter issued by the complainant No.2 ,4 and 5 the Opposite Party refused to release the balance amount, and the supervisor of SCDCC bank Punja Circle conducted spot inspection of the house under construction and submitted report as per Ex,R3 the 30% of the construction is over even though 60% of the amount was released.  The supervisor has recommended that no objection letter from the complainants who objected to release the amount and also produce progress report of the construction, but 1^st complainant not to do so hence the Opposite Party not release the balance amount and also observed that the 5^th complainant has issued notice on 29.9.2015 as per Ex.R5 to the 1^st complainant to cancellation of the G.P.A hence all this above grounds are made Opposite Party to not release the balance amount of loan. After the perusal of documents Ex.C5 which reveals that the complainant No.2 to 9 are given G.P.A to 1^st complainant for avail the loan and the Opposite Party sanctioned the loan of Rs.10,00,000/  it is not disputed.  Now the disputed fact that the Opposite Party has not release the amount of Rs.4,00,000/.  As per Ex.R1 and Ex.R3 reveals that the objection letter issued to the Opposite Party for not release the balance amount once the objection raised from the other complainants then how could be possible to release the balance amount to the 1^st complainant the Opposite Party herein is the credit co operative society not individual personality and also the mortgaged property belong to eight other members. Further, we also noted the report submitted by the supervisor of SCDCC bank as per Ex.R3 1^st complainant not completed the construction only the 30% of the construction is over even though 60% of the amount was released.

          Apart from the above, as per Ex.R4 the complainant have no local stand to file complaint before this fora against Opposite Party once the notice issued for cancellation of G.P.A. otherwise the 1^st complainant would should have examined the complainant No.2,4 and 5. because the complainant himself stated that Opposite Party has created the letter i.e. Ex.R1 but not done to establish the case. Hence burden of proof lies on complainant not Opposite Party that the complainant should have examined the aforesaid persons who gave objection letter to escape from his burden and also if the document Ex.R1 created by Opposite Party then the complainant had got every right to approach the appropriate authority to that effect but not this fora. However we also noted that Ex.R4 registered letter issued by the 5^th complainant to 1^st complainant for cancellation of G.P.A.  Once the objection is raised from one of the principal’s then complainant No.1 cannot claim right to institute complaint on his behalf.  A holder of a power of attorney is an agent can not go beyond the principal.  Ex.R1 objection letter mentioned not to release the fund in favour of 1^st complainant. Therefore Opposite Party bank is justified in not releasing the balance amount. Therefore we are of the opinion that the complainant not proved that the Opposite Party committed deficiency in service hence the point No.1 and 2 in the negative.

          In the result, accordingly we pass the following Order.

ORDER

                                The complaint is dismissed.  No order as to cost.

 Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 10 directly dictated by Member to the Stenographer typed by him, revised and pronounced in the open court on this the 25^th March 2017)

             MEMBER                                        PRESIDENT

      (LAVANYA M RAI)                    (VISHWESHWARA BHAT D)

D.K. District Consumer Forum          D.K. District Consumer Forum

             Mangalore                                       Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1 Hamsa,  

Documents marked on behalf of the Complainants:

Ex.C1: 11.2.2015: Certified copy of the Mortgage deed executed by  the complainants.

Ex.C2: 28.5.2015: Original RTC where in charge is entered by the Opposite Party.

Ex.C3: 3.6.2015: Office copy of the legal notice issued to the Opposite Party.

Ex.C4: 5.6.2015: Postal Acknowledgement for having received the legal notice by the Opposite Party.

Ex.C5: Certified copy of the GPA.

Ex.C6: 2 Photos

Witnesses examined on behalf of the Opposite Party:

RW.1: Mr.Chacko, C.E.O Kadaba Primary Agricultural Credit Co Operative Society,

Documents marked on behalf of the Opposite Party:

Ex.R1: 20.2.2015: Original letter addressed by complainant No.2,4 and 5 to the Opposite Party.

Ex.R2: 03.6.2015: Lawyers’ notice issued by the complainants.

Ex.R3: 10.6.2015: Report submitted by the Supervisor of S.C.D.C.C Bank Ltd.

Ex.R4: 29.9.2015: Copy of the regd letter addressed by 5^th complainant to the 1^st complainant.

Ex.R5: 29.9.2015: Copy of the Postal Acknowledgment.

Dated: 25.03.2017                                    MEMBER