COMMON JUDGEMENT FOR CC NOS. 42/2011, 59/2011, 39/2011, 43/2011, 58/2011 & 60/2011

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 31^st day of August, 2011

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.BINDHU SOMAN MEMBER

DATE OF FILING : 25.2.2011

CC NO. 42/2011

Between

Complainant : C.K. Narayanan, S/o Kunjan,

Cholottu House,

14^th Mile,

Valara P.O.,

Idukki District.

(By Adv: Pratheesh Prabha)

And

Opposite Parties : 1. The Manager,

State Bank of Travancore,

Adimali Branch,

Adimali P.O.,

Idukki District.

(By Adv: Babichen V. George)

2. The Area/Unit Committee, Adimali,

Kerala State Vyapari Vyavasayi Samithi,

Adimali, Reg. No. 72/89,

Adimali P.O.,

Idukki District.

(C/o Benny Immatty, State President,

Kerala Vyapari Vyavasaya Samithi,

Immatty Beauty Centre,

Post Office Road, Thrissur.)

3. C.V. Thampi, S/o Velayudhan,

Cheruparambil House,

Machiplavu, Idukii District.

(The Secretary,

Area/Unit Committee, Adimali,

Kerala Vyapari Vyavasaya Samithi,

Adimali, Reg. No. 72/89,

Adimali P.O., Idukki District.

(cont......2)

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O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

The opposite parties introduced a new scheme for the traders at Adimali in the name and style “S.B.T.-V.V.S Traders Special Banking Loan Scheme”. The complainant is conducting a business for his livelihood at Adimali, he filed an application for Rs.30,000/- as loan from the scheme and it was sanctioned in the month of November, 2004. The processing charge and collection charge were given to the 1^st and 2^nd opposite parties respectively and the loan amount was disbursed after the same. The repayment was in daily with minimum amount of Rs.75/- and it was done by the agent of the 2^nd and 3^rd opposite parties. As per the direction of the 1^st opposite party, the complainant has repaid a total amount of Rs.26,400/- to the opposite parties. But without any reason, the 2^nd opposite party discontinued the daily collection. It was directed by the 1^st opposite party that the repayment of the loan was only through 2^nd and 3^rd opposite parties. So the loan became due. On 3.9.2010, a notice received by the complainant stating that an adalath is conducting at Valiyaparambil Tourist Home auditorium, Adimali on 23.9.2010, which is conducting by the 1^st and 2^nd opposite parties, their responsible officials and it is for the repayment of the said loan and if it is not settled at the adalath, the 1^st opposite party will start recovery proceedings against the complainant. A heavy amount was also demanded by the opposite party. On receiving that notice, the complainant understood that the opposite parties never paid any amount to the bank which was paid by the complainant and they cheated the complainant. But the 2^nd and 3^rd opposite parties never appeared at the adalath and so the 1^st opposite party directed the complainant to pay the balance of the amount which is not received at the 1^st opposite party. It should be paid with interest and penal interest. If the 1^st opposite party intimated the complainant about the due of the loan, the complainant would have paid to the bank itself and not to the 2^nd and 3^rd opposite parties. The then manager and the field officer of the 1^st opposite party and 2^nd and 3^rd opposite parties deliberately not revealed this matter to the complainant and so they have cheated the complainant. So the 1^st opposite party is fully responsible for the same. The scheme was introduced in the year 2004 and it was assured that there is no security for the loan, disbursing on the guarantee of the other loanees, the period of the loan was three years and it was offered to the small scale traders at Adimali. The 1^st and 2^nd opposite parties together called a meeting with the traders at Adimali for explaining about the new scheme. The repayment of the loan was through daily collection and it is initialling in the chart prepared by the 1^st to 3^rd opposite parties and the amount is deposited in the account of the 2^nd opposite party at the 1^st opposite party. After that it is transferred to the account of the consumers once in a month. The collection charge was 6% of the loan amount and it was to be paid to the 2^nd opposite party and processing charge Rs.600/- to the 1^st opposite party, both the amount should be paid at the time of disbursing the loan amount. Because there is no security for the loan, the loan should not be due for more than two instalments and notice will be issued for (cont......3)

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the same. All the transactions of the loan should be through the 2^nd opposite party only. The complainant's loan became due because of the above said rules and regulations of the opposite party and the opposite party discontinued the daily collection of the scheme. On 5.10.2010, the complainant applied for the statement of account of the loan with a written request and several times orally requested for the same, but the opposite party never supplied the same. The major portion of the amount paid by the complainant was not repaid by the 2^nd opposite party to the loan account. But the 1^st opposite party never issued any notice to the complainant for repayment of the loan, but they only issued a notice for attachment of property of the complainant. Hence this petition is filed for directing the 1^st opposite party to close the loan account by receiving the balance amount deducting the amount paid through the 2^nd and 3^rd opposite parties and also for compensation.

2. The 1^st opposite party filed written version stating that there is no loan scheme for the 1^st opposite party in the name and style “SBT VVS Traders Special”. There is a “Traders Special Loan Scheme” for the 1^st opposite party and it is for the benefit of the self-employing traders and not only at Adimali branch and in all other branches of SBT and the loan availed by the complainant was from that scheme. What ever amount paid by the complainant and all other loanees are duly entered in the opposite party bank and it is also intimated about the dues of the loan to the loanee. It is common thing that if a loan is received by a person and if it is not repaid for 3 months, it will become due. The 1^st opposite party never called application for the loan with the help of the 2^nd and 3^rd opposite parties in SBT VVS Traders Special loan scheme. But the 2^nd opposite party introduced the traders at the 1^st opposite party and also explained about the scheme to the traders. The 2^nd opposite party is only a mediator for the smooth transaction of the loan. In other places there are different merchant associations co-operates with the bank for the advertisement of the loan. So the bank never joined with any traders association for the disbursement of the loan. The bank called each applicants of the loan and verified whether they are eligible for the loan and after that the loan was disbursed. The complainant is a member of the 2^nd opposite party and the 2^nd opposite party is a union of the traders and they formed a union named Kerala Vyapari Vyavasaya Samithi. The 3^rd opposite party is the secretary of the same. The 2^nd opposite party introduced the traders to the 1^st opposite party for availing loan and the loan scheme “Traders Special” was introduced by the bank itself. The 2^nd opposite party helped the loanee for the allotment of the loan. The bank has given the loan directly to the customers. The daily collection, 6% collection charge and collection chart are the matters between the 2^nd and 3^rd opposite parties and the complainant. The 1^st opposite party is not

the loan which is only as per the law. The 1^st opposite party never knows about the amount paid by the complainant to the 2^nd opposite party and the bank is not responsible for the same. The bank has disbursed the loan to several traders including the complainant. It was a project of the SBT in Kerala and the 2^nd opposite

aware of the same. The bank is receiving only processing charge and the interest for (cont....4)

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party introduced the merchants and also assured the help of the repayment of the loan, for that the 2^nd opposite party introduced daily collection scheme. The amount paid by the loanee directly to the bank and also to the 2^nd opposite party are also entered in the bank account. The bank never directed the customers to pay the loan through the 2^nd opposite party only. The pass book has been issued to each loanee. If the complainant approached the 1^st opposite party in order to enter the amount in the pass book, the non-payment of the 2^nd opposite party would be revealed to them. The 2^nd and 3^rd opposite parties are not the representatives of the 1^st opposite party, but they are the representatives of the merchants and the 2^nd and 3^rd opposite parties are not the guarantors of the loan. So the bank is liable to recover the loan from the merchants only. The complainant never applied for the statement of account directly and the statement of account of the loan of he complainant cannot be given to any other persons because the transaction of the account is having a secret nature. Notices are issued to the complainant directly and also to the traders. More of them are sent through ordinary post. The loan has availed with the joint sureties of three merchants and if one person making due in the loan, it will affect the three persons. The 1^st opposite party a public sector bank and the amount disbursed was Rs.25,000/- to Rs.2 lakhs to several persons which was deposited by the public. About 3 crores were given as loan by the bank and it will affect the bank and also the public. This petition is filed without any cause of action and there is no deficiency from the part of the bank.

3. As per the written version filed by the 2^nd opposite party, the 2^nd opposite party is not at all a party to this litigation. The original 2^nd opposite party is the Area Unit Committee of the merchant association, Adimali. But the letter was redirected to C/o Benny Immatty, State President, Kerala Vyapari Vyavasayi Samithi, Immatty Beauty Centre, Post Office Road, Thrissur. The 2^nd opposite party is not a person in the SBT VVS Traders Special Bank loan scheme. The dispute is between the Adimaly unit and the complainant, for the loans availed by the complainant with joint traders. The 2^nd opposite party is no way connected for this case and the petition is not at all maintainable.

4. The 3^rd opposite party was absent and so made exparte.

5. The counsel for the 1^st opposite party filed an application for considering the evidence of DW1 as common in CC Nos. 42/2011, 59/2011, 39/2011, 43/2011, 58/2011 and 60/2011.

6. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

7. The evidence consists of oral testimony of PW1 and Exts. P1 to P13 marked on the side of the complainant and oral testimony of DW1 and Exts. R1 to R11(series) marked on the side of the opposite parties. (cont.....5)

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8. The POINT :- The complainant produced evidence as PW1. The complainant availed a loan of Rs.30,000/- from the 1^st opposite party through the 2^nd and 3^rd opposite parties and repaid an amount of Rs.26,400/- to the 2^nd opposite party. Ext.P1 is the pass book issued by the opposite party bank and no amount has been paid by the complainant through Ext.P1 pass book to the opposite party. The opposite party issued a notice for conducting an adalath when the loan became due and at the time the complainant filed an application at the adalath and copy of the same is marked as Ext.P2. PW1 paid the loan amount to the 2^nd opposite party, but the 2^nd opposite party never paid the amount to the opposite party bank. So the loan became due and the complainant is ready to pay the balance amount to the bank directly and the petition is filed for settling the loan account. While the loan became due, the complainant enquired about the same at the opposite party bank and it is understood that the amount was not entered in the account of the complainant at the bank even though the complainant paid the amount to the 2^nd opposite party. Ext.P3 is the promissory note created between the 1^st and 3^rd opposite parties at the time when the loan became due. Ext.P4 is the written version filed by the 3^rd opposite party in CC No.262/2010 which was a case filed before this Forum in which it is stated that, the 2^nd opposite party has appointed as daily collection agent and the 3^rd opposite party is not a party for the same. All the helps for receiving the loan were done by the 2^nd opposite party and the agent of the 2^nd opposite party collected the amount. Now the 3rdopposite party is not the secretary of the merchant association at Adimali and the 3^rd opposite party is acting as per the decision of the committee, the president and secretary are not liable for the same. There was a fake news spread in between the merchants at Adimali that the dues of the agricultural loans were waived and the loan availed by the traders which are due will also be waived by the Government, there will be a one time settlement and the bank will close the loan account as per the OTS facility. So that the merchants were not repaid the loan promptly. The letter of undertaking cum agreement of the loan is marked as Ext.P5. Ext.P6 is the application given by the complainant to the bank and Ext.P7 is also the application filed by the complainant for getting the loan. The credit facility service issued to the complainant at the time of availing the loan is marked as Ext.P8 in which the sureties of the loan are also signed. Ext.P9 is the agreement for hypothecation and guarantee for the loan in which the complainant and guarantors are signed. Ext.P10 is the statement of account of the complainant at the opposite party bank in which the due amount is Rs.36220/-. The statement of account of the Vyapari Vyavasayi Samithi is marked as Ext.P11(series). The circulars which are two in numbers about the Traders Special Loan, issued from the Head Office of the SBT, Thiruvananthapuram are marked as Ext.P12(series). On cross examination of the

learned counsel for the opposite party, PW1 deposed that in Ext.P9 application for the loan, only the complainant and the traders are signed. All the documents were given to the bank through the Vyapari Vyavasiayi Samithi. It is also deposed by PW1 that the loan has been given directly by the bank and the Vyapari Vyavasayi unit (cont.....6)

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has introduced the complainant for the same. There is no objection for the PW1 for paying the amount in the bank. The PW1 never given an application for getting statement of account from the bank.

The opposite party produced evidence as DW1. DW1 is the manager of the opposite party bank. Ext.R1 is the application given by the 2^nd opposite party to the 1^st opposite party bank introducing the complainant and the traders. The promissory note executed by the complainant to the1^st opposite party bank is marked as Ext.R2. The promissory note of the sureties to the bank is marked as Ext.R3. The revival letter for the loan given to the bank by the complainant and traders are marked as Ext.R4(series). On cross examination of the learned counsel for the complainant, DW1 deposed that in Ext.P12(series) circular it is written that 'Traders Special' a scheme with the tie up arrangement of Vyapari Vyavasayi Ekopana Samithi. But the DW1 deposed that there is no such a tie up with the 3^rd opposite party and they only introduced the complainant to the bank. The letter of undertaking given by the 1^st and 3^rd opposite parties and not a tie up agreement. But it is written in Ext.P5 that it is a letter of undertaking cum agreement. After the Ext.P5 undertaking letter, the loan was disbursed and hypothecation was made and it is also written in Ext.P12(series) circular that the loan which is about Rs.50,000/- or of payment of loan upto Rs.50,000/-, the Vyapari Vyavasayi Ekopana Samithi will collect the remittance on a daily basis and the branches also permits the traders for remitting directly to the loan account. DW1 is not aware of he collection card of the loan even it is printed in the card that “SBT Traders Scheme”and it is made by the 2^nd and 3^rd opposite parties. The 2^nd and 3^rd opposite parties are not the agents of the 1^st opposite party. The notice issued by the 1^st opposite party in the loan availed by the complainant in CC No.59/2011 is marked as Ext.R5(series) and Ext.R6 is the legal notice issued by the 1^st opposite party to the complainant in this case. The notice issued to the complainant in CC No.60/2011 is marked as Ext.R7. The notices issued to the complainant in CC No.43/2011 is marked as Ext.R10(series) and the notice issued to the complainant in CC No.58/2011 is marked as Ext.R9. But no receipt or no postal acknowledgement card has been produced by the opposite party to show that the notices were served to the complainants in the series of cases CC Nos. 39/11, 42/11, 43/11, 58/11 and 60/11.

As per the complainant, the 1^st, 2^nd and 3^rd opposite parties jointly introduced the loan scheme in the name 'SBT VVS Traders Special' and they have joined the complainant in the loan scheme, so the complainant availed Rs.30,000/- from the 1^st opposite party. But the repayment of the loan was through a collection agent of the 2^nd opposite party. The complainant repaid an amount of Rs.26,400/-, but it was not at all remitted in the account of the complainant's loan by the 2^nd and 3^rd opposite parties. But the 1^st opposite party never issued any notice for the due of the instalments of the loan. The period of the loan was 3 years and the repayment was on (cont.....7)

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daily collection of minimum Rs.75/- and the amount was collected through the agent of the 2^nd opposite party. 6% was the commission for the agent and it was received by the 2^nd opposite party and processing charge was Rs.600/- and it is received by the 1^st opposite party before disbursing the loan amount. While the adalath notice was issued by the 1^st opposite party, the complainant revealed that the loan was not at all paid by the 2^nd and 3^rd opposite parties to the 1^st opposite party. So the complainant already paid an amount to the 2^nd and 3^rd opposite parties but the 1^st, 2^nd and 3^rd opposite parties jointly cheated the complainant, because the 2^nd and 3^rd opposite parties are the representatives of the 1^st opposite party and so that the 2^nd and 3^rd opposite parties assisted the 1^st opposite party for disbursing the loan. The 2^nd and 3^rd opposite parties had misappropriated the amount paid by the complainant and the 1^st opposite party is liable for the amount paid by the complainant and the complainant is ready to pay the balance amount to the 1^st opposite party. The loan scheme was disbursed as a tie up between 1^st, 2^nd and 3^rd opposite parties. Ext.P12(series) circular issued from the Head Office of the 1^st opposite party also shows the same. The repayment of the loan was only through the 2^nd opposite party and it is also written in Ext.P12(series) circular. The complainant revealed about the non-repayment only after receiving the adalath notice.

As per the 1^st opposite party, they are disbursing the loan directly to the traders/merchants, the 2^nd and 3^rd opposite parties only introduced them to the opposite party because the bank do not know the persons or the traders directly. The hypothecation agreement is created between the complainant and two of the joint sureties and not with the 2^nd and 3^rd opposite parties. The 2^nd and 3^rd opposite parties recommended the traders to the bank and after conducting interview and if eligible for the repayment, then only the loan was disbursed to the traders. The bank rejects the application if they are not eligible for repayment. Ext.R2 and R3 are the promissory notes created by the complainant and the sureties to the bank and Ext.P9 hypothecation agreement also shows the same. Ext.P5 is only a letter of undertaking given by the 2^nd and 3^rd opposite parties. The 2^nd and 3^rd opposite parties are not at all representatives of the 1^st opposite party and they are not liable for the non-payment of the loan to the bank. The 1^st opposite party is not at all aware of the collection card issued by the 2^nd opposite party to the complainant for the repayment of the loan.

So we think that there is a scheme named 'SBT Traders Special' introduced by the SBT with the help of the Vyapari Vyavasayi Ekopana Samithi Adimali Unit in which the 2^nd opposite party is the unit committee, Adimali and the 3^rd opposite party

is the secretary. The 2^nd and 3^rd opposite parties introduces and recommends thetraders to the 1^st opposite party for availing the loan and repaying the loan, but the loan has been disbursed by the bank directly to the traders who are the members of the 2^nd opposite party. Ext.P9 agreement for hypothecation and guarantee shows that the loan was given to the complainant with two of the sureties. Ext.R2 promissory (cont....8)

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note is also created by the complainant with the opposite party. Ext.R3 is the promissory note in which the complainant and the sureties were signed. The loan revival letter which is created by the complainant and signed by the complainant only. The loan has been availed by the complainant directly from the bank and the 2^nd and 3^rd opposite parties assisted the complainant and the bank for disbursing and also repaying the amount. Ext.P12 circular shows that the repayment can be done by the collection agent of the 2^nd opposite party and also by the traders directly. Ext.P5 is a letter of guarantee undertaking cum agreement.

Another argument of the complainant, the 2^nd and 3^rd opposite parties are the representatives of the 1^st opposite party. But we think that the 1^st opposite party is a Public Sector Bank and disburses the loan to the traders who are members of the traders association and introduced by the association for the welfare of the traders. In PMRY Scheme, the Industrial Department assists the bank and also the customers for availing the loan and also gives training to the merchants for availing the loan and also assists the bank for giving the loan to the unemployed youths. It is also a tie up and a joint venture of the Industrial Department and the bank. But while the customers are not paying the loan account, the bank directly realise the amount from the customers and not from the Industrial Department. So it never reveals that the Industrial Department is an agent of the bank.

The next contention of the complainant is that the bank never issued any notice to the loan availed persons in, CC No.39/2011, 42/2011, 43/2011, 58/2011, 59/2011 and 60/2011, while there was due in the loan, they only issued an adalath notice to them. The opposite party produced copy of notices issued by the bank, but there is no evidence to show that the notices were served to the customers. Eventhough there is no notice issued by the bank to the customers, they are aware that they have availed loan and they have to repay the loan. PW1 also deposed that while he approached the opposite party bank for initialling the amount in the pass book, there was no amount deposited in his account by the 2^nd opposite party, but even after that, the complainant made payments to the 2^nd and 3^rd opposite parties. There is no objection for the complainant to pay any amount to the bank directly.

Another important dispute raised by the complainant is that 1^st, 2^nd and 3^rd opposite parties jointly cheated the complainant by misappropriation of money. The 2^nd and 3^rd opposite parties deliberately cheated the complainant by misappropriation

of money, and that was not paid to the 1^st opposite party and so that they were colluded and did the same, the 1^st opposite party was also aware of the same and that

is the reason why the 1^st opposite party never issued any notice for the due of the amount. But it was the duty of the complainant to enquire about the loan account at the opposite party bank. In this case, the complainant never produced any receipt or any collection card to show that he paid some amount to any of the opposite party. (cont....9)

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Even if the 2^nd and 3^rd opposite parties collected any amount from the complainant and it is not paid to the bank and if they have misappropriated the amount received from the complainant, the complainant ought to have filed a criminal case before the appropriate authority for the same. The repayment amount was not remitted to the 1^st opposite party bank and the bank initiated recovery proceedings against the complainant and there is no deficiency has proved against the bank.

The 2^nd opposite party one Mr. Benny Immatty appeared through counsel before the Forum and submitted that he is the President of Kerala Vyapari Vyavasaya Samithi and is no way connected to this case. The dispute is between the unit committee, Adimali and traders. PW1 himself deposed that he never knows Benny. While the notice of the 2^nd opposite party returned, the complainant produced the address of the Benny Immatty, President, Kerala Vyapari Vyavasaya Samithi, Immatty Beauty Centre, P.O. Road, Thrissur and the said Benny Immatty appeared and filed written version stating that he is not at all aware with the case. The 3^rd opposite party was absent and no written version has been filed.

As per the complainant, 2^nd and 3^rd opposite parties received a consideration which is the commission charge for the daily collection of the amount from the complainant and they never paid the collection amount to the bank but colluded with the 1^st opposite party, they had misappropriated the amount and cheated the complainant. But there is no evidence produced by the complainant to show that the 2^nd and 3^rd opposite parties received commission amount from the complainant as a consideration and the complainant availed the service from the 2^nd and 3^rd opposite parties. DW1 deposed that the bank receives service charge for the loan and they are not aware of the commission charge collected by the 2^nd and 3^rd opposite parties. That is an internal matter of the 2^nd and 3^rd opposite parties and the complainant which are the members of the Vyapari Vyavasayi Ekopana Samithi. The main prayer of the complaint is that a direction may be given to the 1^st opposite party to receive the due amount of the loan after deducting the amount paid to the 2^nd and 3^rd opposite parties.

The 2^nd prayer is that to direct the 1^st opposite party to give instalment facility for the loan and to declare that the amount paid to the 2^nd opposite party is not needed to pay again and the recovery proceedings against the complainant by the 1^st opposite party may be stayed. So we think that all the reliefs are sought against the 1^st opposite party and no deficiency has been proved against the 1^st opposite party. So the main

contention of the complainant is that the 2^nd and 3^rd opposite parties collected the amount and misappropriated the same and not paid to the 1^st opposite party so that the 1^st opposite party colluded with them. But the complainant never produced any

evidence to show that he paid some amount to the 2^nd and 3^rd opposite parties. So the subject matter of this case is, no amount has been deposited by the opposite party in the loan account, which is collected from the complainant and they have cheated the

(cont....10)

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complainant. So we think that the subject matter of this case is absolutely criminal dispute and never comes under Section 2(d) of the Consumer Protection Act, 1986.

Hence the petition dismissed. No cost is ordered against the complainant.

Pronounced in the Open Forum on this the 31st day of August, 2011

Sd/-

SRI. LAIJU RAMAKRISHN (PRESIDENT)

Sd/-

SMT. BINDHU SOMAN (MEMBER)

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - C.K. Narayanan.

On the side of the Opposite Parties :

DW1 - Revi. A.

Exhibits :

On the side of the Complainant :

Ext.P1 - The pass book issued by the opposite party bank.

Ext.P2 - Copy of the notice issued by the opposite party for the adalath.

Ext.P3 - Copy of the promissory note created between the 1^st and 3^rd

opposite parties.

Ext.P4 - Copy of the written version filed by the 3^rd opposite party

in CC No.262/2011.

Ext.P5 - Copy of the letter of undertaking cum agreement of the loan.

Ext.P6 - Copy of the application given by the complainant to the bank.

Ext.P7 - Copy of the loan application given by the complainant to the bank.

Ext.P8 - Copy of the credit facility service issued to the complainant.

Ext.P9 - Copy of agreement for hypothecation and guarantee for the loan.

Ext.P10 - Copy of the statement of account of the complainant at the

opposite party bank.

Ext.P11 - Copy of the statements of account of the Vyapari Vyavasayi Samithi

at SBT, Adimali – 22 Nos.

Ext.P12(a&b) - Copy of the circulars about the Traders Special Loan, issued from

the Head Office of the SBT, Thiruvananthapuram.

Ext.P13 - Copy of the Traders' Special – Bank Adalath notice dated 3.9.2010.

On the side of the Opposite Parties :

Common Documents produced for all cases. (written at the end)

(cont.....11)

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DATE OF FILING : 23.3.2011

CC NO. 59/2011

Between

Complainant : Sujith P. Alias,

Puthiyadathu House,

Adimali P.O.,

Idukki District.

(By Adv: Naiju Raveendranath)

And

Opposite Parties : 1. The Manager,

State Bank of Travancore,

Adimali Branch,

Adimali P.O.,

Idukki District.

(By Adv: Babichen V. George)

2. The Area/Unit Committee, Adimali,

Kerala State Vyapari Vyavasayi Samithi,

Adimali, Reg. No. 72/89,

Adimali P.O.,

Idukki District.

(C/o Benny Immatty, State President,

Kerala Vyapari Vyavasaya Samithi,

Immatty Beauty Centre,

Post Office Road, Thrissur.)

3. C.V. Thampi, S/o Velayudhan,

Cheruparambil House,

Machiplavu, Idukii District.

(The Secretary,

Area/Unit Committee, Adimali,

Kerala Vyapari Vyavasaya Samithi,

Adimali, Reg. No. 72/89,

Adimali P.O., Idukki District.

O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

The complainant availed a loan of Rs.2 lakhs from the 1^st opposite party as per the scheme introduced by them “SBT VVS Traders Special” banking loan on 18.8.2006, the processing charge and collection charge for the loan were received by the 1^st and 2^nd opposite parties respectively. The balance amount was to be repaid

(cont.....12)

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with interest in daily collection basis of Rs.300/- each and the collection was made by the agents of the 2^nd and 3^rd opposite parties. So the complainant repaid Rs.45,000/- to the opposite parties as per the daily collection scheme. After that the 2^nd opposite party has discontinued the daily collection and so the complainant has not repaid the loan, because it was directed by the opposite parties to repay the loan only through the 2^nd and 3^rd opposite parties. A notice was received from the 1^st opposite party on 3.9.2010 for an adalath conducted at Valiyaparambil Tourist Home on 23.9.2010 and it was also stated that the officers of the 2^nd and 3^rd opposite parties and the 1^st opposite party would also to present there. The recovery proceedings also will be initiated if the matter is not settled before the adalath and that was also informed in the notice. Only after receiving the same, the complainant revealed that the amount paid by the complainant were not at all paid in the bank account of the complainant's loan, but the amount was misappropriated by the opposite parties. If the 1^st opposite party would have issued a notice for the dues amount, while the 2^nd and 3^rd opposite party never paid the amount, the complainant would have paid the amount at the 1^st opposite party itself. So this petition is filed for directing the 1^st opposite party to receive the dues amount of the loan after deducting the amount paid to the 2^nd and 3^rd opposite parties, also for getting instalment facility for the loan and to cancel the revenue recovery proceedings.

2. The 1^st opposite party filed written version as in CC No.42/2011.

3. The 3^rd opposite party is absent and so made exparte.

4. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

5. No oral evidence adduced by both the parties. Exts. P1 to P3(series) marked on the side of the complainant and the opposite party's counsel submitted that the common documents produced in CC No.42/2011 can also considered in this case.

6. The POINT :- The complainant produced Ext.P1 document which is the daily collection card in which it is written that SBT/SBI Traders Scheme, VVS Adimali Unit. Rs.300/- was paid by the complainant as daily collection basis from 21.8.2006 onwards and paid for 120 days. Another payment was done by the complainant to the 1^st opposite party directly on 31.32009 and it is Rs.1000/- and copy of the receipt of the same is marked as Ext.P2. Ext.P3(series) are receipts issued by the Mannamkandam Village office for the payment of Rs.45,188/- while the revenue recovery proceedings initiated against the complainant, for the loan. So as per the complainant, he has paid Rs.36,000/- to the 1^st opposite party through 2^nd

(cont....13)

- 13 -

and 3^rd opposite parties as per Ext.P1 collection card issued by the 2^nd and 3^rd opposite parties. But the payment was not at all received in the account of the complainant at the 1^st opposite party. The complainant was aware the matter only when the adalath notice was received from the 1^st opposite party and it is revealed by the complainant that the amount paid by the complainant were misappropriated by the 1^st to 3^rd opposite parties without paying in the account of the complainant. But the 1^st opposite party denied the Ext.P1 collection chart produced by the complainant that they had not issued such a chart and they are not aware of the said daily collection chart issued by the 2^nd opposite party. The complainant never produced the person who collected the amount, who is the agent of the 2^nd and 3^rd opposite parties as witness to prove that he had collected the amount and paid the same to the 1^st opposite party. There is no evidence to show that the 1^st opposite party received such an amount collected by the 2^nd and 3^rd opposite parties, and also the amount collected by the 2^nd and 3^rd opposite parties through the agent has paid in the bank account. The complainant directly paid some amount to the bank and also paid through the village office only when he revealed that the 2^nd and 3^rd opposite parties never paid the amount received from the complainant to the 1^st opposite party.

So the absolute contention of the complainant is that the 2^nd and 3^rd opposite parties misappropriated the amount collected from the complainant through their agent, without remitting at the 1^st opposite party bank and the 1^st opposite party also colluded with them. So 1^st to 3^rd the opposite parties cheated the complainant. The opposite parties have deliberately cheated the complainant. The main prayer of the petition is also to direct the 1^st opposite party to receive the due amount of the loan by deducting the amount paid through the 2^nd and 3^rd opposite parties. And also for directing the 1^st opposite party to give instalment facility to the complainant for paying the same. Revenue recovery proceedings initiated by the 1^st opposite party should be stopped. All the reliefs sought are against the 1^st opposite party and no deficiency in service and unfair trade practice has been proved against the 1^st opposite party by the complainant. As per the complainant, the 2^nd and 3^rd opposite parties are the agent of the 1^st opposite party and the 1^st opposite party is liable for the amount received by the 2^nd and 3^rd opposite parties. But we think that the 2^nd and 3^rd opposite parties had only introduced the traders to the 1^st opposite party and they assisted the 1^st opposite party for availing loan to the traders and also for repayment of the loan for the benefit of the traders. As per the complainant, a commission has been received from the traders by the 2^nd and 3^rd opposite parties for the daily collection. But there is no evidence for the same. If any misappropriation of money and cheating has been done by the opposite parties, that matter has to be held before the appropriate authority. So we think that this Forum lacks the jurisdiction to entertain the same because the complaint never comes under Section 2(d) of the Consumer Protection Act, 1986 and the subject matter of this complaint is absolutely a criminal dispute.

(cont.....14)

- 14 -

Hence the petition dismissed. No cost is ordered against the complainant.

Pronounced in the Open Forum on this the 31st day of August, 2011

Sd/-

SRI. LAIJU RAMAKRISHN (PRESIDENT)

Sd/-

SMT. BINDHU SOMAN (MEMBER)

APPENDIX

Depositions : Nil.

Exhibits :

On the side of the Complainant :

Ext.P1 - The daily collection card of the loan.

Ext.P2 - Copy of the receipt issued by the 1^st Opposite party dated 31.3.2009.

Ext.P3(series) - The receipts issued by the Mannamkandam Village office for

the payments dated 4.5.2011, 4.8.2011 and 18.3.2011.

On the side of the Opposite Parties :

Common Documents produced for all cases. (written at the end)

DATE OF FILING : 16.2.2011

CC NO. 39/2011

Between

Complainant : Vilasini Balachandran,

Kanjirathinkal House,

Machiplavu P.O.,

Idukki District.

(By Adv: Naiju Raveendranath)

And

Opposite Parties : 1. The Manager,

State Bank of Travancore,

Adimali Branch,

Adimali P.O.,

Idukki District.

(By Adv: Babichen V. George)

2. The Area/Unit Committee, Adimali,

Kerala State Vyapari Vyavasayi Samithi,

Adimali, Reg. No. 72/89,

Adimali P.O.,

Idukki District.

(cont....15)

- 15 -

(C/o Benny Immatty, State President,

Kerala Vyapari Vyavasaya Samithi,

Immatty Beauty Centre,

Post Office Road, Thrissur.)

3. C.V. Thampi, S/o Velayudhan,

Cheruparambil House,

Machiplavu, Idukii District.

(The Secretary,

Area/Unit Committee, Adimali,

Kerala Vyapari Vyavasaya Samithi,

Adimali, Reg. No. 72/89,

Adimali P.O., Idukki District.

O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

The complainant availed a loan of Rs.20,000/- from the 1^st opposite party as per the scheme introduced by them “SBT VVS Traders Special” banking loan on 27.6.2006, the processing charge and collection charge for the loan were received by the 1^st and 2^nd opposite parties respectively. The balance amount was to be repaid with interest in daily collection basis of Rs.50/- each and the collection was made by the agents of the 2^nd and 3^rd opposite parties. So the complainant repaid Rs.22,850/- to the opposite parties as per the daily collection scheme After that the 2^nd opposite party has discontinued the daily collection and so the complainant has not repaid the loan because it was directed by the opposite parties to repay the loan only through the 2^nd and 3^rd opposite parties. A notice was received from the 1^st opposite party on 3.9.2010 for an adalath conducted at Valiyaparambil Tourist Home on 23.9.2010 and it was also stated that the officers of the 2^nd and 3^rd opposite parties and the 1^st opposite party will be present there. The recovery proceedings also be initiated if the matter is not settled before the adalath and that was also informed in the notice. Only after receiving the same, the complainant was revealed that the amount paid by the complainant were not at all paid in the bank account of the complainant's loan, but the amount was misappropriated by the opposite parties. If the 1^st opposite party would have issued a notice for the dues amount, while the 2^nd and 3^rd opposite party never paid the amount, the complainant would have paid the amount in the 1^st opposite party itself. So this petition is filed for directing the 1^st opposite party to receive the dues amount of the loan after deducting the amount paid to the 2^nd and 3^rd opposite parties and also for getting instalment facility for the loan and to cancel the revenue recovery proceedings.

2. The 1^st opposite party filed written version as in CC No.42/2011.

(cont....16)

- 16 -

3. The 3^rd opposite party filed written version stating that there is no relationship with the consumer and the 3^rd opposite party. The petitioner was the 20^th complainant in CC No.262/2010 filed before this Forum and that petition was already dismissed by this Forum and the petitioner is not at all entitled to file this complaint. The daily collection was introduced and agents were appointed, collection were made by the 2^nd opposite party and there is no personal relationship with the 2^nd opposite party and 3^rd opposite party. The 3^rd opposite party never received any amount from the complainant and now the 3^rd opposite party is not the secretary of the Vyapara Samithi. P.N. Salimon, Chempothinkal, Adimali is the secretary of the same. This opposite party never appointed any agent for collecting the money from the complainant. The collection agent is not a party to this litigation. The 1^st opposite party never colluded with the 2^nd and 3^rd opposite parties for the misappropriation of money. This petition is also barred by limitation because the loan was availed in the year 2006.

4. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

5. No oral evidence adduced by both the parties in this case. Counsel for the complainant submitted that the common documents produced in CC No.42/2011 can also be considered in this case and the opposite party's counsel submitted that the common documents produced in CC No.42/2011 can also considered in this case. Heard both sides.

6. The POINT :- The learned counsel for the complainant argued that the 2^nd and 3^rd opposite parties colluded with the 1^st opposite party and misappropriated the amount paid by the complainant through the 2^nd and 3^rd opposite parties and so cheated the complainant without paying the amount in the bank account of the complainant. Eventhough the complainant availed a loan of Rs.20,000/-, he had repaid Rs.22,850/- through the opposite parties. The opposite party bank never issued a notice to the complainant while the loan became due, but an adalath notice was issued by the 1^st opposite party stating that 2^nd and 3^rd opposite parties are also participating in the adalath in which it is also stated that revenue recovery proceedings will be initiated against the complainant if he loan is not at all settled in the adalath. So the complainant was became aware of the due of the loan only when the adalath notice was received. The opposite parties directed the complainant at the time of availing the loan that the amount should be repaid through the 2^nd and 3^rd opposite parties. So that the complainant was not able to repay the loan directly to the 1^st opposite party.

(cont.....17)

- 17 -

As per the 1^st opposite party, the 2^nd and 3^rd opposite parties are not the agents of the 1^st opposite party. They had disbursed the loan directly to the traders or merchants and the 2^nd and 3^rd opposite parties only introduced them to the 1^st opposite party bank because the bank did not know the persons. The hypothecation agreement is created between the complainant and two of the joint sureties and not with the 2^nd and 3^rd opposite parties. The 2^nd and 3^rd opposite parties recommended the traders to the bank and after conducting interview and if eligible for the repayment, then only the loan disbursed to the traders. The bank rejects the application if they are not eligible for repayment. The promissory note created between the complainant and the sureties to the bank and the hypothecation agreement also shows the same. There is only a letter of undertaking given by the 2^nd and 3^rd opposite parties with the complainant. The 2^nd and 3^rd opposite parties are not at all representatives of the 1^st opposite party and they are not liable for the non-repayment of the loan to the bank. The 1^st opposite party is not at all issuing a collection chart for the daily collection and the 1^st opposite party is not at all aware of the collection card issued by the 2^nd opposite party to the complainant for the repayment of the loan.

So we think that the complainant availed the loan directly from the 1^st opposite party after the introduction of the 2^nd and 3^rd opposite parties and the 2^nd and 3^rd opposite parties assisted the complainant for availing the loan and they also assisted the 1^st opposite party for disbursing the loan. There is no evidence produced by the complainant to show that the complainant paid some amount to the 2^nd and 3^rd opposite parties as commission or the consideration for arranging the loan to them. 1^st opposite party is a Government undertaking and they disbursed the loan directly to the complainant with hypothecation agreement of two other sureties. Two other traders are the sureties for the loan of the complainant. There is no evidence produced by the complainant to show that the 2^nd and 3^rd opposite parties are the representatives of the 1^st opposite party and moreover, the complainant never produced any evidence to show that the complainant paid some amount to the 2^nd and 3^rd opposite parties as the repayment of the loan at the 1^st opposite party bank. No receipt issued by 1^st opposite party or the 2^nd opposite party or the 3^rd opposite party has been produced by the complainant to substantiate the same. The complainant is not at all restricted to repay the loan directly to the 1^st opposite party and for the convenience of the repayment the complainant paid the loan through the 2^nd and 3^rd opposite parties. So the main contention of the complainant is that the 2^nd and 3^rd opposite parties colluded with the 1^st opposite party and cheated the complainant and the money has been misappropriated. No deficiency in service and no unfair trade practice has been proved against the 1^st opposite party. The main relief of the complainant is also to direct the 1^st opposite party to receive the due amount of the loan by deducting the amount paid through the 2^nd and 3^rd opposite parties and also for directing the 1^st opposite party to give instalment facility to the complainant for paying the same. The revenue recovery proceedings initiated by the 1^st opposite party

(cont...18)

- 18 -

should be stopped. All the reliefs sought are against the 1^st opposite party. It is also argued by the learned counsel for the opposite party that the complainant is a petitioner in the case CC No.262/2010 filed before this Forum against the same opposite parties with the same cause of action and that matter has been disposed by this Forum on 24.1.2011. So this petition is not at maintainable. Even if any misappropriation of the money or cheating has been done by the opposite parties, that matter is to be adjudicated before the appropriate authority. So we think that this Forum lacks jurisdiction to entertain the same because the petition filed by the complainant never comes under Section 2(d) of the Consumer Protection Act, 1986.

Hence the petition dismissed. No cost is ordered against the complainant.

Pronounced in the Open Forum on this the 31^st day of August, 2011

Sd/-

SRI. LAIJU RAMAKRISHN (PRESIDENT)

Sd/-

SMT. BINDHU SOMAN (MEMBER)

APPENDIX

Depositions : Nil.

Exhibits :

On the side of the Complainant :

Common Documents produced in CC No.42/2011.

On the side of the Opposite Parties :

Common Documents produced for all cases. (written at the end)

DATE OF FILING : 25.2.2011

CC NO. 43/2011

Between

Complainant : Santhosh A.S. Sekharan,

Asharikudiyil House,

Valara P.O.,

Idukki District.

(By Adv: Pratheesh Prabha)

And

Opposite Parties : 1. The Manager,

State Bank of Travancore,

Adimali Branch,

Adimali P.O.,

(cont.....19)

- 19 -

Idukki District.

(By Adv: Babichen V. George)

2. The Area/Unit Committee, Adimali,

Kerala State Vyapari Vyavasayi Samithi,

Adimali, Reg. No. 72/89,

Adimali P.O.,

Idukki District.

(C/o Benny Immatty, State President,

Kerala Vyapari Vyavasaya Samithi,

Immatty Beauty Centre,

Post Office Road, Thrissur.)

3. C.V. Thampi, S/o Velayudhan,

Cheruparambil House,

Machiplavu, Idukii District.

(The Secretary,

Area/Unit Committee, Adimali,

Kerala Vyapari Vyavasaya Samithi,

Adimali, Reg. No. 72/89,

Adimali P.O., Idukki District.

O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

The complainant availed a loan of Rs.1 lakh from the 1^st opposite party as per the scheme introduced by them “SBT VVS Traders Special” banking loan on 5.5.2006, the processing charge and collection charge for the loan were received by the 1^st and 2^nd opposite parties respectively. The balance amount was to be repaid with interest in daily collection basis of Rs.150/- each and the collection was made by the agents of the 2^nd and 3^rd opposite parties. So the complainant repaid Rs.65,000/- to the opposite parties as per the daily collection scheme. After that the 2^nd opposite party has discontinued the daily collection and so the complainant had not repaid the loan because it was directed by the opposite parties to repay the loan only through the 2^nd and 3^rd opposite parties. A notice was received from the 1^st opposite party on 2.8.2010 for an adalath conducted at Valiyaparambil Tourist Home on 23.9.2010, demanding an amount of Rs1,61,900/- and it was also stated that the officers of the 2^nd and 3^rd opposite parties and the 1^st opposite party also will be present there. The recovery proceedings also will be initiated if the matter is not settled before the adalath and that was also informed in the notice. Only after receiving the same, the complainant was revealed that the amount paid by the complainant were not at all paid in the bank account of the complainant's loan, but the amount was misappropriated by the opposite parties. If the 1^st opposite party

(cont....20)

- 20 -

would have issued a notice for the dues amount, while the 2^nd and 3^rd opposite party never paid the amount, the complainant would have paid the amount in the 1^st opposite party itself. So this petition is filed for directing the 1^st opposite party to receive the dues amount of the loan after deducting the amount paid to the 2^nd and 3^rd opposite parties and also for getting instalment facility for the loan and to cancel the revenue recovery proceedings.

2. The 1^st opposite party filed written version as in CC No.42/2011.

3. No written version filed by the 2^nd and 3^rd opposite parties.

4. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

5. No oral evidence adduced by both the parties in this case. Counsel for the complainant and the opposite party submitted that the common documents produced in CC No.42/2011 can also be considered in this case. Heard both sides.

6. The POINT :- The learned counsel for the complainant argued that the 2^nd and 3^rd opposite parties colluded with the 1^st opposite party and misappropriated the amount paid by the complainant through the 2^nd and 3^rd opposite parties and so cheated the complainant without paying the amount in the bank account of the complainant at the 1^st opposite party bank. Eventhough the complainant availed a loan of Rs.1 lakh, he had repaid an amount of Rs.65,000/- through the opposite parties. The opposite party bank never issued a notice to the complainant while the loan became due, but an adalath notice was issued by the 1^st opposite party stating that 2^nd and 3^rd opposite parties are also participated in the adalath in which it is also stated that revenue recovery proceedings will be initiated against the complainant if he loan is not at all settled in the adalath. So the complainant was aware of the due of the loan only when the adalath notice was received. The opposite parties directed the complainant at the time of availing the loan that the amount should be repaid through the 2^nd and 3^rd opposite parties. So that the complainant was not able to repay the loan directly to the 1^st opposite party. As per the 1^st opposite party, the 2^nd and 3^rd opposite parties are not the agents of the 1^st opposite party. They had disbursed the loan directly to the traders or merchants and the 2^nd and 3^rd opposite parties only introduced them to the 1^st opposite party bank because the bank did not know the persons. The hypothecation agreement is created between the complainant and two of the joint sureties and not with the 2^nd and 3^rd opposite parties. The 2^nd and 3^rd opposite parties recommended the traders to the bank and after conducting interview and if eligible for the repayment, then only the loan was disbursed to the traders. The bank rejects the application if they are not eligible for repayment. The promissory

(cont....21)

- 21 -

note was created between the complainant and the sureties to the bank and the hypothecation agreement also shows the same. There is only a letter of undertaking given by the 2^nd and 3^rd opposite parties with the complainant. The 2^nd and 3^rd opposite parties are not at all representatives of the 1^st opposite party and the 1^st opposite party is not liable for the non-repayment of the loan to the bank. The 1^st opposite party is not at all issuing collection chart for the daily collection and the 1^st opposite party is not at all aware of the collection card issued by the 2^nd opposite party to the complainant for the repayment of the loan.

So we think that the complainant availed the loan directly from the 1^st opposite party after the introduction of the 2^nd and 3^rd opposite parties and the 2^nd and 3^rd opposite parties assisted the complainant for availing the loan and they also assisted the 1^st opposite party for disbursing the loan. There is no evidence produced by the complainant to show that the complainant paid some amount to the 2^nd and 3^rd opposite parties as commission or the consideration for arranging the loan to them. 1^st opposite party is a Government undertaking and they disbursed the loan directly to the complainant with hypothecation agreement of two other sureties. Two other traders are the sureties for the loan of the complainant. There is no evidence produced by the complainant to show that the 2^nd and 3^rd opposite parties are the representatives of the 1^st opposite party and moreover, the complainant never produced any evidence to show that the complainant paid some amount to the 2^nd and 3^rd opposite parties for the repayment of the loan at the 1^st opposite party bank. No receipt issued by 1^st opposite party or the 2^nd opposite party or the 3^rd opposite party has been produced by the complainant to substantiate the same. The complainant is not at all restricted to repay the loan directly to the 1^st opposite party and for the convenience of the repayment the complainant paid the loan through the 2^nd and 3^rd opposite parties. So the main contention of the complainant is that the 2^nd and 3^rd opposite parties colluded with the 1^st opposite party and cheated the complainant and the money has been misappropriated. No deficiency in service and no unfair trade practice has been proved against the 1^st opposite party. The main relief of the complainant is also to direct the 1^st opposite party to receive the due amount of the loan by deducting the amount paid through the 2^nd and 3^rd opposite parties and also for directing the 1^st opposite party to give instalment facility to the complainant for paying the same. The revenue recovery proceedings initiated by the 1^st opposite party should be stopped. All the reliefs are sought against the 1^st opposite party. It is also argued by the learned counsel for the opposite party that the complainant is a petitioner in the case CC No.262/2010 filed before this Forum against the same opposite parties with the same cause of action and that matter has been disposed by this Forum on 24.1.2011. So this petition is not at maintainable. Even if any misappropriation of the money or cheating has been done by the opposite parties, that matter is to be adjudicated before the appropriate authority. So we think that this Forum lacks jurisdiction to entertain the same because the complaint filed by the

(cont.....22)

- 22 -

complainant never comes under the Section 2(d) of the Consumer Protection Act, 1986 and a complaint should be filed before an appropriate authority.

Hence the petition dismissed. No cost is ordered against the complainant.

Pronounced in the Open Forum on this the 31st day of August, 2011

Sd/-

SRI. LAIJU RAMAKRISHN (PRESIDENT)

Sd/-

SMT. BINDHU SOMAN (MEMBER)

APPENDIX

Depositions : Nil.

Exhibits :

On the side of the Complainant :

Common Documents produced in CC No.42/2011.

On the side of the Opposite Parties :

Common Documents produced for all cases. (written at the end)

DATE OF FILING : 23.3.2011

CC NO. 58/2011

Between

Complainant : Prasad G.,

Pookkattil House,

Deviyar Colony, Valara P.O.,

Idukki District.

(By Adv: Naiju Raveendranath)

And

Opposite Parties : 1. The Manager,

State Bank of Travancore,

Adimali Branch,

Adimali P.O.,

Idukki District.

(By Adv: Babichen V. George)

2. The Area/Unit Committee, Adimali,

Kerala State Vyapari Vyavasayi Samithi,

Adimali, Reg. No. 72/89,

Adimali P.O.,

Idukki District.

(cont...23)

- 23 -

(C/o Benny Immatty, State President,

Kerala Vyapari Vyavasaya Samithi,

Immatty Beauty Centre,

Post Office Road, Thrissur.)

3. C.V. Thampi, S/o Velayudhan,

Cheruparambil House,

Machiplavu, Idukii District.

(The Secretary,

Area/Unit Committee, Adimali,

Kerala Vyapari Vyavasaya Samithi,

Adimali, Reg. No. 72/89,

Adimali P.O., Idukki District.

O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

The complainant availed a loan of Rs.2 lakhs from the 1^st opposite party as per the scheme introduced by them “SBT VVS Traders Special” banking loan in the month of October, 2006, the processing charge and collection charge for the loan were received by the 1^st and 2^nd opposite parties respectively and the balance amount was to be repaid with interest in daily collection basis of Rs.200/- each and the collection was made by the agents of the 2^nd and 3^rd opposite parties. The complainant repaid the entire amount to the opposite parties as per the daily collection scheme. But a notice was received from the 1^st opposite party dated 4.2.2008 demanding an amount of Rs.59,000/- as due of the loan account. Then the complainant approached the opposite party bank. The 1^st opposite party told that if it was paid to the 2^nd opposite party, there is no further action will be taken against the complainant. After that the complainant enquired about the same and it was told by the 1^st opposite party that the amount has been included in the bank account of the complainant and all the other traders' accounts will also be corrected soon. On 3.9.2010, a notice was received from the 1^st opposite party stating that there is an adalath conducted at Valiyaparambil Tourist Home on 23.9.2010, demanding an amount of Rs.2,03,117/- otherwise revenue recovery proceeding will be initiated against the complainant. It was also stated that the officers of the 2^nd and 3^rd opposite parties and the 1^st opposite party will be present there. Only after receiving the same, the complainant was revealed that the amount paid by the complainant were not at all paid in the bank account of the complainant's loan, but the amount was misappropriated by the opposite parties. If the 1^st opposite party would have issued a notice for the dues amount,while the 2^nd and 3^rd opposite party never paid the amount, the complainant would have paid the amount at the 1^st opposite party itself. So this petition is filed for directing the 1^st opposite party to receive the dues amount of the loan after deducting the amount paid to the 2^nd and 3^rd opposite parties and also for

(cont....24)

- 24 -

getting instalment facility for the loan and to cancel the revenue recovery proceedings.

2. The 1^st opposite party filed written version as in CC No.42/2011.

3. No written version filed by the 2^nd and 3^rd opposite parties.

4. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

5. The evidence consists of oral testimony of PW1 and Exts. P1 to P17 marked on the side of the complainant and the opposite party's counsel submitted that the common documents produced in CC No.42/2011 can also considered in this case.

6. The POINT :- The complainant produced evidence as PW1. Ext.P1(a) is the collection chart issued by the opposite parties which is for the daily collection. Ext.P1(b) to Ext.P1(e) are the receipts issued by the 1^st opposite party bank for the payments of Rs.10,000/- Rs.19,000/- Rs.5,000/- and Rs.5,000/-. A notice was issued by the opposite party bank on 3.9.2010 demanding an amount of Rs.2,03,117/- is marked as Ext.P2. The promissory note created by the Vyapari Vyavasayi Samithi, Adimali area unit President, Mr. M.S. Vinod, promising to pay Rs.12 lakhs within 15.2.2009 is marked as Ext.P4. Copy of the written version filed by the 3^rd opposite party before this Forum in CC No.262/2010 is marked as Ext.P5. The loan application of the complainant is marked as Ext.P7.

As per the complainant, he availed the loan from the 1^st opposite party for an amount of Rs.2 lakhs. Ext.P7 is the loan application signed by the complainant himself with the personal guarantee of Mr.T.K. Shaji and Mrs.Nizeema Binoy. A letter of undertaking cum agreement had given by the Vyapari Vyavasayi Samithi, Adimali unit President and Secretary stating the loan application is forwarding through them is marked as Ext.P8. On cross examination by the learned counsel for the opposite party, the complainant admitted that he repaid Rs.2 lakhs to the opposite parties . The amount has been paid at the bank and also through the 2^nd and 3^rd opposite parties. The 2^nd and 3^rd opposite parties are not the sureties of the loan. It is also admitted by the PW1 that the bank is having only responsible for the loan repaid to the bank directly by the complainant.

Counsels for the complainant and the opposite party submitted that the common evidence adduced in CC No.42/2011 can be considered in this case also. PW1 also deposed that he has no direct connection with 2^nd opposite party Benny

(cont.....25)

- 25 -

Immatty and no relief is sought against him. Ext.P1(b to e) are the receipts issued by the 1^st opposite party for the payment directly done by the complainant to the 1^st opposite party and the total amount is Rs.39,000/-. So it means that the complainant directly paid Rs.39,000/- to the 1^st opposite party after the payment of the amount through the 2^nd and 3^rd opposite parties and it means that there is no restriction for the complainant to pay the amount to the 1^st opposite party directly. But PW1 deposed that in the initial stage, the opposite parties were not allowed to pay the amount directly to the 1^st opposite party bank. Ext.P7 loan application has been signed by the complainant himself and the Ext.P15 promissory note also signed by the complainant and the two of the sureties. Credit facility was also signed by the complainant and the sureties of the other two traders. Hypothecation agreement also signed by the complainant and two of the sureties. Guarantee agreement was also signed by the complainant and the sureties. An undertaking-cum-agreement was obtained from the Vyapari Vyavasayi Samithi by the bank stating that they are forwarding the application of the complainant. So we think that the complainant directly availed the loan from the 1^st opposite party and the 2^nd and 3^rd opposite parties had assisted the complainant and the 1^st opposite party for availing and disbursing the loan. But the main allegation of the complainant is that the 2^nd and 3^rd opposite parties misappropriated the amount collected from the complainant through the collection agent and the 1^st opposite party also colluded with them. If the 1^st opposite party also colluded with the 2^nd and 3^rd opposite parties for the misappropriation of the money, what prevented the complainant to file a criminal complaint against the 1^st to 3^rd opposite parties. But the complainant directly paid some amount to the 1^st opposite party without doing the same. The main prayer of the complainant is also to direct the 1^st opposite party to receive the due amount of the loan by deducting the amount paid to the 2^nd and 3^rd opposite parties. And also for directing the 1^st opposite party to give instalment facility for the balance loan amount and also for stopping the revenue recovery proceeding. But the documents produced by the complainant and the opposite parties shows that the 2^nd and 3^rd opposite parties only introduced the complainant to the 1^st opposite party and there is no evidence to show that the 2^nd and 3^rd opposite parties are the representatives of the 1^st opposite party. The 1^st opposite party is an undertaking of the Government, acting as per the direction of the RBI. The 2^nd and 3^rd opposite parties are the association of the traders and the complainant is also a trader. As per the 1^st opposite party, they are not issuing any collection card as Ext.P1(a) produced by the PW1 and they are not aware of the same, eventhough it is stated in it as SBT Traders Scheme. Ext.P3(series) circular shows that the repayment of the loan can be done through the collection agent and also by the traders directly. The collection agent is not at all made a witness.

So we think that the main contention of the petitioner is that the 2^nd and 3^rd opposite parties misappropriated the loan repaid by the complainant without paying the amount at the bank and thereby cheated the complainant and the 1^st opposite

(cont...26)

- 26 -

party also colluded with them. If any misappropriation of money and cheating has been done by the opposite parties, that matter is to be adjudicated before the appropriate authority. So we think that this Forum lacks jurisdiction to entertain the same because the complaint filed by the complainant never comes under the Section 2(d) of the Consumer Protection Act, 1986.

Hence the petition dismissed. No cost is ordered against the complainant.

Pronounced in the Open Forum on this the 31st day of August, 2011

Sd/-

SRI. LAIJU RAMAKRISHN (PRESIDENT)

Sd/-

SMT. BINDHU SOMAN (MEMBER)

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Prasad G.

On the side of the Opposite Parties :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1(a) - The collection chart issued by the opposite parties.

Ext.P1(b to e) - The receipts issued by the 1^st opposite party bank.

Ext.P1(f) - The receipts of SBT Traders Scheme, VVS Adimali Unit.

Ext.P2 - Adalath notice issued by the bank dated 3.9.2010.

Ext.P3 - Copy of the complaint filed by the traders to the Regional Manager

of SBT.

Ext.P4 - Copy of the promissory note created by the Vyapari Vyavasayi

Samithi, Adimali area unit President, Mr. M.S. Vinod.

Ext.P5 - Copy of the written version filed by the 3^rd opposite party in

CC No.262/2010.

Ext.P6 - The loan application form of P.V. Rajan.

Ext.P7 - Copy of the loan application of the complainant.

Ext.P8 - Copy of the letter of undertaking cum agreement of the loan.

Ext.P9 - Copy of the credit facility given by the bank for the loan.

Ext.P10 - Copy of the agreement for hypothecation and guarantee.

Ext.P11 - Copy of the statement of account of the loan of the complainant.

Ext.P12 - Copy of the statements of account of the Vyapari Vyavasayi

Samithi, Adimali.

(cont...27)

- 27 -

Ext.P13(series) - Copy of the circulars of the Head office of the 1^st opposite party.

Ext.P14 - Copy of the loan application of the complainant.

Ext.P15 - Copy of the promissory note signed by the complainant.

Ext.P16 - Copy of the guarantee agreement.

Ext.P17 - Copy of the guarantee agreement.

On the side of the Opposite Parties :

Common Documents produced for all cases. (written at the end)

DATE OF FILING : 23.3.2011

CC NO. 60/2011

Between

Complainant : Ajayakumar M.,

Mattathil House,

Adimali P.O.,

Idukki District.

(By Adv: Naiju Raveendranath)

And

Opposite Parties : 1. The Manager,

State Bank of Travancore,

Adimali Branch,

Adimali P.O.,

Idukki District.

(By Adv: Babichen V. George)

2. The Area/Unit Committee, Adimali,

Kerala State Vyapari Vyavasayi Samithi,

Adimali, Reg. No. 72/89,

Adimali P.O.,

Idukki District.

(C/o Benny Immatty, State President,

Kerala Vyapari Vyavasaya Samithi,

Immatty Beauty Centre,

Post Office Road, Thrissur.)

3. C.V. Thampi, S/o Velayudhan,

Cheruparambil House,

Machiplavu, Idukii District.

(The Secretary,

Area/Unit Committee, Adimali,

Kerala Vyapari Vyavasaya Samithi,

Adimali, Reg. No. 72/89,

Adimali P.O., Idukki District.

(cont....28)

- 28 -

O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

The complainant availed a loan of Rs.1 lakh from the 1^st opposite party as per the scheme introduced by them “SBT VVS Traders Special” banking loan on 29.9.2006, the processing charge and collection charge for the loan were received by the 1^st and 2^nd opposite parties respectively and the balance amount was to be repaid with interest in daily collection basis of Rs.150/- each and the collection was made by the agents of the 2^nd and 3^rd opposite parties. So the complainant repaid Rs.22,300/- to the opposite parties as per the daily collection scheme After that the 2^nd opposite party had discontinued the daily collection and so the complainant has not repaid the loan because it was directed by the opposite parties to repay the loan only through the 2^nd and 3^rd opposite parties. A notice was received from the 1^st opposite party on 3.9.2010 for an adalath conducted at Valiyaparambil Tourist Home, Adimali on 23.9.2010 and it was also stated that the officers of the 2^nd and 3^rd opposite parties and the 1^st opposite party will be present there. The recovery proceedings also will be initiated if the matter is not settled before the adalath and that was also informed in the notice. Only after receiving the same, the complainant was revealed that the amount paid by the complainant were not at all paid in the bank account of the complainant's loan, but the amount was misappropriated by the opposite parties. If the 1^st opposite party would have issued a notice for the dues amount, while the 2^nd and 3^rd opposite party never paid the amount, the complainant would have paid the amount in the 1^st opposite party itself. So this petition is filed for directing the 1^st opposite party to receive the dues amount of the loan after deducting the amount paid to the 2^nd and 3^rd opposite parties and also for getting instalment facility for the loan and to cancel the revenue recovery proceedings.

2. The 1^st opposite party filed written version as in CC No.42/2011.

3. No written version filed by the 2^nd and 3^rd opposite parties.

4. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

5. No oral evidence adduced by both the parties in this case. Exts. P1 to P3(series) marked on the side of the complainant and the opposite party's counsel submitted that the common documents produced in CC No.42/2011 can also considered in this case..

6. The POINT:- The complainant produced the daily collection chart of the opposite party which is marked as Ext.P1 for the payment of Rs.150/- per day. (cont....29)

- 29 -

Ext.P2(series) are the receipts issued by the opposite party bank for the repayment of loan at the 1^st opposite party and Ext.P3(series) are the receipts issued by the Mannamkandam Village Office for payment of the due amount of the loan at the time of revenue recovery proceeding initiated. The learned counsel for the complainant submitted that the complainant had repaid an amount of Rs.18,000/- to the 1^st opposite party through the 2^nd and 3^rd opposite parties. Ext.P2(series) receipts shows that the complainant paid Rs.2,900/- to the 1^st opposite party bank and an amount of Rs.26,507/- through the Village Office. But the absolute contention of the complainant is that the 2^nd and 3^rd opposite parties misappropriated the money paid by the complainant without remitting at the 1^st opposite party bank and the 1^st opposite party also colluded with them. So the opposite parties cheated the complainant. The main prayer of the complainant is also to direct the 1^st opposite party to receive the due amount of the complainant by deducting the amount paid through the 2^nd and 3^rd opposite parties. And also for directing to give instalment facility for the balance loan amount. It is also requested for stopping the revenue recovery proceeding. But we think that the 2^nd and 3^rd opposite parties only introduced the traders of the 1^st opposite party and assisted the 1^st opposite party for disbursing the loan to the traders and also assisted the in the repayment of the loan for the benefit of the traders. A commission has been received from the complainant for the daily collection by the collection agent of the 2^nd and 3^rd opposite parties but there is no evidence for the same. There is no evidence produced to show that the 2^nd and 3^rd opposite parties are the agents of the 1^st opposite party. The collection agent is also not made a witness. If any misappropriation of money and cheating has been done by the opposite parties, that matter is to be adjudicated before the appropriate authority. So we think that this Forum lacks jurisdiction to entertain the same because the complaint filed by the complainant never comes under the Section 2(d) of the Consumer Protection Act, 1986 and a complaint should be filed before an appropriate authority.

Hence the petition dismissed. No cost is ordered against the complainant.

Pronounced in the Open Forum on this the 31st day of August, 2011

Sd/-

SRI. LAIJU RAMAKRISHN (PRESIDENT)

Sd/-

SMT. BINDHU SOMAN (MEMBER)

(cont.....30)

- 30 -

APPENDIX

Depositions : Nil.

Exhibits :

On the side of the Complainant :

Ext.P1 - The daily collection card issued by the opposite party.

Ext.P2(series) - The receipts issued by the opposite party bank – 7 Nos.

Ext.P3(series) - The receipts issued by the Mannamkandam Village Office – 4 Nos.

On the side of the Opposite Parties :

Ext.R1 - Copy the application given by the 2^nd opposite party to the

1^st opposite party bank introducing the complainant and the traders.

Ext.R2 - Copy of the promissory note executed by the complainant to the

1^st opposite party bank.

Ext.R3 - Copy of the promissory note of the sureties to the bank.

Ext.R4(series) - Copy of the revival letter for the loan given to the bank by

the complainant and traders.

Ext.R5(series) - Copy of the notice issued by the 1^st opposite party in the loan

availed by the complainant in CC No.59/2011.

Ext.R6 - Copy of the legal notice issued by the 1^st opposite party to the

complainant in CC No.59/2011.

Ext.R7(series) - Copy of the notice issued by the 1^st opposite party in the loan

availed by the complainant in CC No.60/2011.

Ext.R8(series) - Copy of the notice issued by the 1^st opposite party in the loan

availed by the complainant in CC No.60/2011.

Ext.R9(series) - Copy of the notice issued by the 1^st opposite party in the loan

availed by the complainant in CC No.58/2011.

Ext.R10(series)- Copy of the notices and legal notice issued by the 1^st opposite party

in the loan availed by the complainant in CC No.43/2011.

Ext.R11(series)- Copy of the statements of accounts of the complainants in

CC No.59/2011 and CC No.60/2011.