Date of Disposal:  22.03.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:     THIRU.J.JUSTIN DAVID M.A., M.L.,                                       :   PRESIDENT

                        TMT.K.PRAMEELA, M.COM.,                                     :   MEMBER I

                   THIRU.D.BABU VARADHARAJAN                     :   MEMBER-II

CC.No.06/2018

FRIDAY, THE 22  DAY OF MARCH 2019

D.Janakiraman,

S/o.Late Dhandapani,

Residing at

Senji Agaram Village,

Tharakshi Post,

Uthukottai Taluk,

Thiruvallur District.                                                    ….. Complainant.                            

                                           //Vs//

The Manager,

Indian Bank,

Palavakkam Branch,

Uthukottai Taluk,

Thiruvallur District.                                                 …….. Opposite party.

This complaint is coming on for final hearing before us on 15.03.2019 in the presence of N.Madhavi, counsel for the complainant, opposite party called absent and set ex-parte for non appearance, perused complainant’s side documents and hearing  arguments on the side of the complainant and the case having stood over this day for consideration, this forum passed the following:-

ORDER

PRONOUNCED BY THIRU J.JUSTIN DAVID, PRESIDENT.

 This complaint has been preferred by the complainant under section 12 of the consumer protection act -1986 against the opposite party for seeking direction to clear the encumbrance through the concerned SRO and to issue the clearance certificate to the complainant and to pay a sum of Rs.1,00,000/- towards compensation for mental agony and strain due to the deficiency in service on the part of the opposite party.

2. The averments of the complaint is brief as follows:-

The complainant’s father Mr.Dhandapani had availed a short term paddy loan from the opposite party bank in the year 1989 and subsequently the complainant’s father committed default in repaying the loan.  For which the opposite party had filed a civil suit in O.S.No.48/1995 on the file of District Munsif, Thiruvallur for recovery of loan amount with interest of Rs.9,695/.  The above suit was decreed in favour of the opposite party on 06.09.1995.  Based on the decree dated 06.09.1995, the opposite party had filed an execution petition in E.P.No.173/1996 before the District Munsif Court, Thiruvallur for attachment of complainant’s family properties and later the complainant had paid the entire E.P. amount.  Therefore the above said EP was dismissed. On 08.02.2016, when the complainant applied for encumbrance certificate, the complainant came to know about the attachment of his family properties by the opposite party and due to the attachment the complainant was unable to sell his family properties for his family expenses.  The opposite party ought to have been cleared the attachment of complainant’s family properties made in the above E.P. through the concerned SRO.  But the opposite party had not cleared the encumbrance.  The complainant several times requested the opposite party in person and by letters to clear the encumbrance, but the opposite party failed and neglected to do the same and the complainant efforts were ended in vain and therefore the complainant issued a legal notice to the opposite party on 12.07.2016, though the opposite party received the legal notice did not given any reply or response to the complainant The above attitude of the opposite party caused mental agony and hardship to the complainant.  Therefore the complainant filed this complaint for remedy.

3. In spite of notice duly served to the opposite party from this forum, he did not turn up before this Forum even on receipt of the notice. Hence the opposite party is set ex-parte.

4. On the side of the complainant, the complainant filed proof affidavit in order to substantiate his case and Ex.A1 to Ex.A7 are marked on his side and also filed written argument.

5. In such circumstances, this forum decided to conclude this matter fully on merit with available evidence and documents putforth before this forum, though the opposite party is set ex-parte.

6. At this juncture, the point for determination before this forum is :-

(1) Whether there is any deficiency in service on the part of the opposite party as narrated in the complaint?

(2) Whether the complainant is entitled for compensation and cost of proceedings?

(3) Whether the opposite party is liable to clear the encumbrance of the complainant’s property?

(4) To what other reliefs, the complainant is entitled to?

7. Point Nos.1 and 2:-

The case of the complainant is that the complainant approached the opposite party to clear the encumbrance of the complainant’s properties after payment of the entire loan dues, but the opposite party has not given clearance certificate to the complainant and therefore the complainant sustained mental agony due to the deficiency of service on the part of the opposite party.

8. According to the complainant, the complainant’s father availed short terms loan from the opposite party in the year 1989 and he had committed default in repayment of the loan.  Subsequently he was dead and therefore the opposite party had filed a civil suit in O.S.No.48/1995 before the District Munsif Court, Thiruvallur and the Hon’ble court passed an order on 06.09.1995 against the complainant to pay a sum of Rs.9695/- with 12.5% interest per annum.  Since the complainant failed to pay the amount, the opposite party filed E.P.No.173/1996 before the District Munsif Court, Thiruvallur and the Hon’ble Court passed an order attachment of immoveable properties of the complainant/J.D on 19.07.1996.   Thereafter the complainant had paid all the EP amounts and therefore the EP was dismissed on 15.07.2003.  Ex.A1 is the copy of the judgment passed by the District Munsif Court, Thiruvallur dated 06.09.1995 and Ex.A3 is the copy of the suit register in O.S.No.48/1995.  The above said documents confirm the averments of the complainant.  The complainant paid entire decree amount to the opposite party, but the opposite party has not taken any steps to raise the order of judgment.

9. The complainant paid all the decree amounts and EP also dismissed by the civil court. But there is an order of attachment against the family properties of the complainant.  Ex.A2 is the copy of encumbrance certificate regarding immoveable properties in survey No.326/9A, Senji Agaram Village.  In Ex.A2 there is an endorsement as follows:-

Nfhu;l; ml;lr;nkz;l; &.15022/- X.V];.vz;.48

 Therefore the complainant’s properties in survey No.326/9A was attached by the civil court order passed in OS.No.48/1995.  With regard to the above attachment order, the opposite party has not filed any petition to raise the order of attachment.  The complainant had paid the entire decree amount and therefore it is the duty of the opposite party to take steps to clear the encumbrance but the opposite party failed to do their duty and committed deficiency in service and therefore the complainant suffered mental agony.

 10.  It is the duty of the opposite party to take steps to raise the order of attachment of immovable properties after receipt of entire decree amount.  But in this complaint the opposite party has not taken any steps to raise the order of attachment through court and to issue clearance certificate to the complainant.  The complainant has written a letter dated 07.05.2016 to the opposite party to issue clearance certificate which has been marked as Ex.A4. Thereafter the complainant issued a legal notice through his counsel to the opposite party on 12.07.2016 which has been marked as Ex.A5 and the same was received by the opposite party.  The opposite party neither sent any reply to the legal notice nor taken any steps to raise the order of court attachment.

 11. In such circumstances, from the evidence of the complainant it is crystal clear that the complainant has proved the allegations made in the complaint against the opposite party by means of acceptable and reliable documents.  Whereas, in spite of Ex.A5 notice sent to the opposite party, the opposite party kept silent and not come forward to comply the demand of the complainant nor to sent any reply in order to deny the allegation made in Ex.A5.  Moreover, after filing of this complaint before this forum, though the notice sent from this forum and the same was received by the opposite party, he is not chosen neither to appear before this forum nor to represent  through any person and therefore he was set ex-parte.  From the non appearance of the opposite party it can be clearly understand that the opposite party has no valid reason to rebut the claim of the complainant.

12. From the above facts and evidence it goes without saying that the allegations made in the complaint by the complainant against the opposite party with regard to the deficiency of service has been clearly proved.  Thus the point No.1 and 2 is answered accordingly.

13. Point No.3:-

With respect to clear the encumbrance in the properties, the encumbrance certificate shows that the Sub Registrar Office made an endorsement in the encumbrance stating that the immoveable properties of the complainant was attached by court order as per passed in OS.No.48/1995 and therefore the court which passed the order of attachment only have the power to pass an order to direct the SRO to raise the order of attachment.  To that effect the opposite party can file an application before concerned court to raise the order of attachment.  This forum has no power to pass an order to direct the opposite party to clear the encumbrance.  At the same time Sub Registrar Office only has power to clear the encumbrance as per the civil court order.  Further the concerned Sub Registrar Office is also not a party in this complaint. Hence this forum is unable to direct the opposite party to clear the encumbrance.  On the other hand the opposite party is directed to take steps to clear the encumbrance since the complainant has paid the entire decree amount.  Thus the point no.3 is answered accordingly.

14. Point No.4:-

In the result, this complaint is allowed in part.  Accordingly the opposite party is directed to pay a sum of Rs.20,000/- (Rupees Twenty thousand only) towards compensation for causing mental agony and loss to the complainant due to the deficiency in service on the part of the opposite party and also to pay a sum of Rs.5000/- (Rupees five thousand only) towards cost of this litigation to the complainant.  The opposite party further directed to take steps to clear the encumbrance in the complainant immoveable property through the concerned civil court.

The above said amount shall be payable by the opposite party within two months from the date of receipt of this copy of the order, failing which, the said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open forum of this 22 March 2019.

  MEMBER-II                          MEMBER-I                          PRESIDENT

List of document filed by the complainant:-

               -Sd-                                            -Sd-                                                -Sd-

            MEMBER-II                             MEMBER-I                                 PRESIDENT