DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 1st day of March 2021
Present: Sri.V.P.Anantha Narayanan, Member(President I/c)
: Smt.Vidya.A, Member Date of Filing: 19/01/2019
CC /15/2019
Seeba.K, - Complainant
W/o.Ramesh,
Vallath Veedu,
Thekkeparambu,
Puthupariyaram,
Palakkad – 678 731.
(By Party in Person Only)
V/s
The Manager,
Kerala State Financial Enterprises, - Opposite party
Olavakkode Branch,
Palakkad – 678 002.
(By Adv.Jinju Jose)
O R D E R
By Smt.Vidya.A, Member
Brief facts of the complaint
The complainant was a subscriber of the chitty No.19/2017 of the opposite party(KSFE) with chittal No.30 commenced on 27/09/2017 for an amount of Rs.2,00,000/-. The complainant auctioned the chitty on 20/06/2018 for an amount of Rs.1,69,000/-. As per the conditions of the chitty, the opposite party is bound to give the auctioned amount to the subscriber within 30 – 60 days from the date of auction, if they produce the necessary documents before the opposite party. The complainant had produced all the necessary documents within time, but the opposite party delayed the payment saying one or the other reasons. They have not paid the amount even after 7 months.(At the time of filing the complaint). The actual date for payment of the amount as per the conditions was 18/08/2018. The opposite party demanded the complainant to produce the encumbrance certificate of the security property from the Sub Registrar Office and the complainant produced the encumbrance certificate and the same was received by the opposite party. Then the opposite party again asked the complainant to produce another encumbrance certificate upto the date of signing the agreement to disburse the amount. The opposite party who received the encumbrance certificate produced by the complainant without raising any objection has demanded additional documents for releasing the money.
The complainant was also a subscriber of the opposite party’s earlier chitty No.25/2013 with chittal No.19 and she auctioned that chitty and the property which is offered as security for the amount auctioned was under the custody of opposite party and all the original documents relating to that property were also with them.
The very same property is given as security for the chitty mentioned in this complainant. The complainant produced the encumbrance certificate of the same property which is under the custody of the opposite party for getting the auctioned amount. On receiving that, the opposite party had made the complainant signed the documents relating to the disbursal of the auctioned amount. After signing the document, the complainant approached the opposite party for getting money. Then the opposite party demanded the complainant to produce another encumbrance certificate till the date of signing the document and did not pay the money. So there is a clear deficiency in service on the part of the opposite party in not giving the money even after producing all the documents as required by them.
So this complaint is filed for getting
- The auctioned amount and the interest at 12% from 18/08/2018(60 days from the date of auction) till payment.
- A compensation of Rs.50,000/- for the mental agony, financial loss and other inconveniences suffered by the complainant.
- Rs.10,000/- as cost of the proceedings.
The complaint admitted and notice issued to the opposite party. The opposite party entered appearance and filed their version.
The main contentions raised in the version
The opposite party admits that the complainant was a subscriber of chitty no.19/2017 of KSFE, Olavakkode branch with chittal No.30 for an amount of Rs.2,00,000/-. The complainant participated in the auction held on 20/06/2018 and auctioned the chitty for an amount of Rs.1,69,000/- and the documents relating to that were signed on that day itself. So the allegation in the complaint that, the complainant was not informed about the amount auctioned and other things is not correct and hence denied.
Earlier, the complainant was a subscriber of chitty No.25/2013 of the opposite party with chittal No.19 and for getting the auctioned amount; she deposited the title deeds of the property in the name of her husband as security. As per the opposite party’s policy, the subscriber has to produce the non encumbrance certificate relating to the security property for the past 13 years till the date of signing the agreement for getting that auctioned amount. But the complainant was not ready to produce another encumbrance certificate relating to that property and the opposite party themselves got the encumbrance certificate from the Sub Registrar Office and disbursed the amount in that chitty.
The same property was offered as security for the chitty mentioned in the complaint. For getting the auctioned amount in the present chitty, the complainant had confirmed the security of the same property and submitted necessary application.
But as per the opposite party’s prevailing policy, the subscriber has to produce the encumbrance certificate of the property upto the date of signing the agreement. Eventhough the Branch Manager of the opposite party demanded the complainant to produce that, she was not willing to produce the encumbrance certificate. The opposite party is ready to disburse the amount, as per their norms if the complainant produces the certificate.
Complainant filed chief affidavit and additional affidavit along with documents. Ext.A1 to A5 marked from the side of the complainant. No witness was examined. Complainant filed affidavit along with IA/164/19 to direct the opposite party to pay the auctioned amount to the complainant. In the affidavit the complainant stated that she got a registered letter from the opposite party stating that they are ready to pay the amount. The opposite party did not file any counter and the IA was allowed. After that there was no representation from the opposite party and no affidavit filed. Hence opposite party’s evidence closed.
Main issues arising for consideration are:
- Whether there is any deficiency in service on the part of the opposite party?
- If so, what is the relief as to cost/Compensation?
Issues 1&2
Heard the complainant. We have perused the affidavit and documents produced by the complainant.
It is admitted that the complainant was a subscriber of chitty No.19/2017 of Olavakkode branch of the opposite party with chittal No.30 for an amount of Rs.2,00,000/-. It is also admitted that she participated in the auction conducted on 20/06/2018 and auctioned the amount of Rs.1,69,000/- and signed the documents on that day itself.
The opposite party, in their version also admitted the contention of the complainant that the complainant was also a subscriber of the opposite party’s earlier chitty No.25/2013 of Olavakkode branch of the opposite party with chittal No.19 and she auctioned that chitty and for getting the amount, the property in the name of her husband was given as security and was still in their custody. The same property is given as security for getting the auctioned amount in the present chitty.
As per opposite party’s contention, eventhough the complainant had produced all other documents for getting the auctioned amount, she refused to produce the encumbrance certificate of the property given as security. According to the opposite party’s policy, the subscriber has to produce the non encumbrance certificate of the security property for the past 13 years till the date of signing the agreement for getting the auctioned amount.
The complainant’s contention is that the same property which is offered as security for the earlier chitty is given in the present chitty and all the original documents relating to that property were also with them at the time of auction. Further, the complainant produced the encumbrance certificate relating to that property and the opposite party accepted that and made them sign the documents. It is only when they demanded money, the opposite party asked for another encumbrance certificate.
In this case, the opposite party did not file affidavit and adduce evidence to prove their contention. They also did not take any step to cross examine the complainant.
The complainant filed an IA 164/19 along with affidavit for directing the opposite party to pay the auctioned amount. In that affidavit, the complainant had stated that she got a registered letter from the opposite party dated 23/03/2019 asking her to collect the auctioned amount as all the procedures in connection with that are already completed. This registered letter from the opposite party is marked as Ext.A4. According to the complainant, during the pendency of this complaint, she received this letter and submitted this matter before the Forum. With the permission of this Forum, she approached the opposite party on 13/06/2019 and the opposite party after making them sign certain documents endorsed on the pass book that “Paid on 13/06/2019” “Doc No.13426 property security” and returned it. Further the opposite party’s Manager asked to withdraw the complaint for crediting the auctioned amount to her account. The complainant produced the chitty pass book and the endorsed page is marked as Ext.A5. The opposite party did not file any counter to the IA 164/19 and the IA was allowed directing the opposite party to pay the auctioned amount to the complainant. After that the complainant filed a statement on 16/08/2019 that the amount has been credited to her account on 14/08/2019.
From these facts, it is clear that there was no impediment on the part of the opposite party in transferring the auctioned amount to the complainant’s account. The refusal on the part of the opposite party in paying the auctioned amount to the complainant in time amounts to deficiency in service on their part. According to the opposite party the complainant has to produce the encumbrance certificate upto the date of signing the agreement for getting the auctioned amount. But after the filing of this complaint and on the passing of the Interim Order, the opposite party credited the amount to the complainant’s account. Hence, it is clear that they were delaying the payment merely on some minor technical grounds. It is pertinent to note that the same property was mortgaged with the opposite party and all the original documents relating to that property were also in their custody. Further as per the terms and conditions mentioned in15(a) of the chitty pass book which is marked as Ext.A1, the opposite party company is bound to give the prize money to the subscriber who auctioned the chitty, on production of the necessary security as required by them. The amount shall be disbursed within 30 - 60 days from the date of auction.
As per Clause 16(b), if the subscriber or his nominee produces the necessary security for getting the auctioned amount, the company is bound to give the amount to the subscriber or his nominees after deducting the chitty installment amounts from the date of auction to the date of which the security is produced together with interest thereon.
The opposite party did not adduce any evidence in support of their claim. So the evidence adduced by the complainant stands unchallenged.
Further after making an endorsement on the chitty pass book that “Paid on 13/6/19”, they paid the amount after two months. This amounts to unfair trade practice by the opposite party.
Since during the pendency of this complaint, the opposite party credited the auctioned amount to the complainant’s account, the prayer portion in the complaint for directing the opposite party to pay the auctioned amount is excluded. The complainant also filed an affidavit to that effect.
So the complaint is partly allowed.
We direct the opposite party to pay the interest for the auctioned amount from 18/08/2018 to 13/08/2019 at the rate of 9% per annum amounting to Rs.15,000/-(Rupees Fifteen thousand only).
We further direct the opposite party to pay Rs.3,000/-(Rupees Three Thousand only) as compensation for the deficiency in service on the part of the opposite party for the mental agony and inconvenience suffered by the complainant and Rs.2,000/-(Rupees Two Thousand only) as cost of proceedings.
The order shall be executed within 30 days from the date of receipt of this order; otherwise complainant is also entitled to get interest @ 9% per annum on the total amount due to them from the date of this order till realization.
Pronounced in the open court on this the 1st day of March 2021.
Sd/-
V.P.Anantha Narayanan
Member(President I/c)
Sd/-
Vidya.A
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 – Copy of pass book of chitty No.19/2017 issued by opposite party to complainant.
Ext.A2 – Copy of notice send by Kerala Consumer Protection Centre to the opposite party dated 22/12/18.
Ext.A3 – Reply notice to Kerala Consumer Protection Centre by opposite party dated 01/01/2019.
Ext.A4 – Copy of letter send by opposite party to complainant for receiving the auctioned chitty amount
dated 23/03/2019.
Ext.A5 – Chitty pass book and the endorsed page.
Exhibits marked on the side of Opposite Party
NIL
Witness examined on the side of complainant
NIL
Witness examined on the side of opposite party
NIL
Cost : Rs.2,000/-
