BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.

F.A.No.143/2011 against C.C.No.36/2010 District Forum, Kadapa.

Between

N.Lakshmaiah S/o.Yerraiah,

Aged about 54 years,

R/at Sreeramulupeta, Chapadu

Mandal and Post, Obulreddypeta,

Kadapa District.                                                           …Appellant/

                                                                                         Complainant

          And

The Manager, The Proddatur

Co-operative Town Bank Ltd.,

Proddatur, Kadapa District.                                       Respondent/

                                                                                      Opp.party.

Counsel for the Appellant      :  M/s.M.Hari Babu

Counsel for the Respondent:   M/s.J.Seshagiri Rao.

QUORUM:  SMT.M.SHREESHA, HON’BLE Incharge President

AND

SRI S.BHUJANGA RAO, HON’BLE MEMBER.

TUESDAY, THE NINTH DAY OF APRIL,

TWO THOUSAND THIRTEEN

Order (Per Smt.M.Shreesha, Hon’ble Incharge President)

***

        Aggrieved by the order in C.C.No.36/2010 on the file of District Forum, Kadapa, the complainant preferred this appeal.

        The brief facts as set out in the complaint are that the complainant

obtained loan under loan account No.368 for a sum of Rs.85,000/- from the opposite party bank by keeping 12 Kisan Vikas Bonds worth Rs.10,000/- each totalling to Rs.1,20,000/-.  The particulars of the bonds are as follows:

        The complainant submitted that the maturity date of deposit receipts is 07-11-2007 and the complainant paid Rs.4,258/- towards principal and

Rs.1,742/- towards interest and altogether paid Rs.6,009/- on 27-11-2002 for which the opposite party issued receipt.  The complainant submitted that due to financial problems, he could not pay the loan amount and in the year 2007, he approached the opposite party and enquired about the outstanding amount to be paid under the loan account and the opposite party issued a receipt indicating that the outstanding loan amount is Rs.1,80,333/- as on 09-3-2007.  The complainant submitted that after maturity of the above said bonds on 07-11-2007, the opposite party has encashed and adjusted the said amount to the loan account of the complainant and the opposite party received Rs.2,40,000/- towards the maturity value of the bonds and this amount exceeds the outstanding loan amount.  The complainant submitted that in May, 2008 the complainant enquired about balance of loan amount and on that he came to know that without any prior intimation, the opposite party has encashed the Kisan Vikas bonds and adjusted the amount and misappropriated the remaining excessive balance of Rs.59,667/- and when the complainant questioned about the balance, it gave evasive reply that the maturity amount has been adjusted to the loan account and there is no remaining excessive balance and refused to furnish any calculation.   The complainant therefore got issued a legal notice to the opposite party calling to pay the excessive remaining balance of Rs.59,677/- with interest at 24% from the date of maturity of Kisan Vikas bonds till date and the opposite party failed to give any reply.  Hence the complaint for a direction to the opposite party to pay Rs.59,677/- together with interest at 24% p.a. from the date of receiving the maturity amount of Kisan Vikas bonds till the date of realization together with Rs.30,000/- towards compensation and costs of Rs.2,000/-.

        Opposite party filed counter resisting the complaint.  It submitted that it is a Co-operative society and does not come within the purview of Consumer Protection Act and the jurisdiction of this Forum is barred under Section 121 of A.P.Co-op.Societies Act, 1964 and submitted that the complainant is not a consumer.  It admitted that the complainant had obtained a loan of Rs.85,000/- under loan account No.368 from  it by keeping 12 Vikas Patras dated 7-11-2001 each of face value of Rs.10,000/- and that the date of maturity of the said Kisan Vikas bonds is 07-11-2007.  It also admitted that the complainant on 27-11-2002 paid Rs.4,258 towards principal and Rs.1,742/- towards interest and altogether he paid Rs.6,000/- and a receipt was also issued to that effect.  Opposite party denied that as on 09-3-2007 the outstanding loan amount is Rs.1,80,333/- and that after maturity of the bonds, it has adjusted the maturity value of the same to the outstanding loan account and that  there is an excess of Rs.59,667/-.  It denied that without any prior intimation, it adjusted the amount and misappropriated the alleged remaining balance of Rs.59,667/- and  that the complainant also questioned about remaining balance and it has given  evasive reply and also failed to give any calculation for adjusting the entire maturity amount.  It admitted that the complainant got issued a legal notice  and before it gave a reply, he rushed to the Forum and submitted that the complainant and his wife N.Subbamma availed loan of Rs.85,000/- against N.Sc. bonds and the same is repayable together with interest at 17% p.a. and his wife was not made a party to the complaint and therefore the complaint is bad for non joinder of necessary party.  Except Rs.4,258/- towards principal and Rs.1,742/- towards interest, the complainant and his wife failed to repay the said loan amount and became defaulters and as per the terms and conditions, it has lien over the N.Sc. bonds.  Opposite party submitted on the complainant’s failure to repay the dues, it has right to exercise its general lien without any specific notice and as per the terms and conditions it is at liberty to collect penalty of interest of 2% p.a. in addition to normal interest at 17% p.a. and as on 31/7/2006 the outstanding balance is Rs.1,60,910/- and it has issued a notice to the complainant demanding payment of the same and also included cost of postage.  Opposite party submitted that as on 09-3-2007, the outstanding balance is Rs.1,80,333/- and the N.Sc. bonds matured on 07-11-2007 but it did not encash the same immediately and waited for repayment of the loan by the borrower and inspite of the same, the complainant did not repay.  On 09-2-2008 it submitted that it issued another notice to the complainant for payment of the loan amount but in vain and thereafter filed Execution petition before the Deputy District Registrar of Co-op. Societies Proddatur and on 06-6-2008, the Deputy District Registrar of Co-op. Societies Proddatur passed an award against the complainant for recovery of the aforesaid loan and accordingly on 06-3-2009, it had encahsed the aforesaid N.Sc. and credited the maturity amount of Rs.2,40,000/- to the loan account of the complainant and as on 06-3-2009 the outstanding loan account is Rs.2,61,772/- and after adjustment of the maturity amount still there is a balance of loan of Rs.21,772/-.  On 18-3-2009 the dividend of Rs.1,203/- and 1,354/- have been credited and still there is a balance of Rs.19,215/- and finally as on 28-3-2009 the balance is Rs.11,789/- and the said loan account has been closed by writing off the said loan of Rs.11,789/- as bad debt and submitted that there is no deficiency in service and prayed for dismissal of the complaint with costs.

        Based on the evidence adduced i.e. Exs.A1 to A4 and B1 to B4 and pleadings put forward, the District Forum dismissed the complaint.

        The respondent filed written arguments.

        The facts not in dispute are that the complainant obtained loan under account No.368 for a sum of Rs.85,000/- from the respondent bank on 18-10-2002 evidenced under Ex.A2 and kept 12 Kisan Vikas bonds of Rs.10,000/- each totalling to Rs.1,20,000/- as security and the maturity date is 7-11-2007.  On 27-11-2002 the complainant paid Rs.4,258/- towards principal and Rs.1,742/- towards interest.  It is the respondent bank’s case that the loan amount outstanding as on 09-3-2007 for an amount of Rs.1,80,333/- and as the bank can exercise lien over the said bonds as per the terms and conditions of the said loan, the bank issued a notice but the complainant did not opt to repay the loan and a reminder notice was also issued on 09-2-2008. The Deputy Registrar of the Co-op Societies was approached on 06-6-2008 and an award was passed on 06-3-2009 and the respondent bank encashed the N.Sc. bonds and the maturity amount of Rs.2,40,000/- was credited as the outstanding balance as on 06-3-2009 was Rs.2,61,772/-.  The dividend amounts were credited to the loan account as on 28-3-2009 there was a balance of Rs.11,789/- which was written off as bad debt.  Ex.B2 is the certificate issued U/s.71 (1) of A.P.Co-op. Societies Act in Case No7/2008-2009 for recovery of loan amount and an order was passed and the complainant is having knowledge of that order has filed this complaint instead of availing the right of appeal to the Co-op. Tribunal.  The Hon’ble High Court of Andhra Pradesh in Cr.P.No.4613/1994 between Warangal District Co-operative Central Bank Limited V. District Consumer Forum, Warangal and another reported in 2000 (1) ALD 273 held that the remedies available under the  Act should necessarily be exhausted before approaching the Consumer Fora.  The member has to pursue the remedy of appeal U/s. 76 of A.P.Co-op Societies Act.  Keeping in view that an award has already been passed, we are of the considered view that the complainant should exhaust the remedy available by way of an appeal as observed by the Hon’ble High Court.  The complainant is at liberty to raise all his contentions before the appellate authority, if so advised and can seek limitation of time spent before this Commission for the purpose of limitation, if the complainant chooses to approach the appellate authority. 

        For the aforementioned reasons, this  appeal is dismissed.  No costs.

                                                        I/c. PRESIDENT.

                                                                   MEMBER.

JM                                                              Dt. 09-4-2013.