SRI.K. VIJAYAKUMARAN, PRESIDENT.

            Complaint seeking realization of amount collected as interest, compensation and costs.

          The averments in the complaint can be briefly summarized as follows:

          The complainant was an employee of the opp.party bank.   While he was working in the bank he availed a housing  loan of Rs.2,50,000/-.  The loan amount was being recovered from his salary till 1998.  On 29.2..2008 he remitted Rs.2,00,000/- and on 8.3.2008 he  remitted Rs.2,50,000/- to the opp.party bank.  He has remitted Rs. 6,85,319/- as per the calculation of the opp.party bank when the  property offered as security was  about to be auctioned. Thereby the complainant has remitted the entire amount of loan with interest.   At the time of availing loan the interest was at the rate of  5-10% but the opp.party has realized 14.5% interest from the complainant which is much more than the interest at the time of availing the loan.   Thereupon the complainant filed  Writ Petition No.33295 before the High Court of Kerala and High Court considering the Writ Petition directed the opp.party to settle the loan under One Time Settlement Scheme. The complainant has  requested to  include his loan  also under the One Time Settlement Scheme.  But without considering these the opp.party collected exorbitant interest without giving the benefits under the One Time Settlement which amounts to deficiency in service and unfair trade practice.  Hence the complaint.

          The opp.party filed version contending, interalia, that the complaint is not maintainable either in law or on facts and is liable to be dismissed inlimine.   The complainant is not a consumer as defined under Section 2[1][d] of the Consumer Protection Act 1986.  The subject matter involved in the complaint is housing loan sanctioned by the opp.party bank to the complainant in specific terms and conditions stipulated in an agreement executed by the complainant in favour of the opp.party.   The subject matter  involved herein is neither  a good nor service rendered  for consideration.  The complainant was an employee of the opp.party bank.   While he was in service  he was granted a house loan of Rs.1,50,000/- on 2.1.1995 under the scheme of housing loan to the employees which he has availed of.  He was granted a further loan of Rs.1,00,000/-  on the same day under the bank’s supplementary scheme  to the employees for housing purposes  which was also  availed off  by him after executing security documents. Towards collateral security the complainant has created equitable mortgage on his property having an extent of 5.070 cents in Sakthikulangara Village.  The employment of the complainant with the opp.party was terminated on 6.6.1998  due to major misconducts.  He has  made chronic default regarding the repayment of the loan amount.  So the opp.party instituted OS No.425/2000 before the Sub Court, Kollam for realizing  an amount of Rs.3,83,290/- The complainant has actively contested  the suit.  But the siot was decreed on 6.12.2003 allowing the opp.party  to realize  the claim with interest at the rate of 14.75% per annum.   The complainant  do not prefer any appeal against the judgement .  Thereafter the opp.party filed Execution Petition  for realizing  an amount of Rs.7,77,457/- and steps were taken for the   sale of  the property  offered as security, invoking Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002  Thereupon the complainant approached the opp.party bank  and remitted Rs.7,86,958.69 on 5.11.2008 and accordingly the suit was withdrawn   The complainant with malafide intentions did not turn up for receiving  the documents.  Since the complainant has contested the above suit he is estopped from taking a contention regarding interest in this case and the  contention is barred by constructive resjudicated.   The complaint is also barred by resjudicata, since  all the issues involved in this complaint  are already decided on  merit by a competent court.  Hence the opp.party prays to dismiss the complaint

Points that would arise for consideration are:

1.     Whether there is any deficiency in service on the part of the opp.party

2.     Reliefs and costs.

For the complainant PW.1 is examined.  Exts. P1 to P3 are marked.

D1 to D4 are marked through the complainant on the side of opp.party..

No oral  evidence for the opp.party

          The following facts are admitted ie. the complainant was an employee of the opp.party bank, that the complainant was sanctioned a housing loan of Rs.2,50,000/- under the scheme of housing loan  of the employee, that the complainant has been terminated from the service of the opp.party bank and the complainant defaulted repayment of loan amount.   There was a suit as OS No.425/2000 before the Sub Court Kollam filed by the opp.party against the complainant for realization of the loan amount sanctioned to the complainant while he was an employee of the opp.party which has been suppressed by the complainant in his complaint.  However,  Ext. D2 and 3 would show that the above suit was decree in favour of the opp.party and Ext. D1 is the written statement filed by the complainant in the above suit,  which would show that the complainant has vehemently contended the suit.   However the court has  granted  decree infavour of the opp.party for realization of the loan amount with interest at the rate of 14.75% per annum.   The complainant has not filed any appeal from the above decree and as such the decree has become final.  When the opp.party has taken steps for the sale of the property offered as security by the complainant, the complainant has paid the entire loan amount with interest it was after repayment of the loan amount on 5.11.2008, this complaint was filed alleging deficiency in service and unfair trade practice on the side of the opp.party on the ground that the opp,.party has collected interest much more than what  was at the time of sanctioning the loan.  It is to be noted that the interest  of 14.75% was allowed by the Civil Court  in the decree and as argued by the opp.party the complainant ought to have  challenged  the above  decree if he was really aggrieved by the percentage of interest granted by the court.  It is to be noted that interest rate of 5 to 10% was available only to the employee of the bank under a scheme of housing loan to the employees of the bank.   When the service of the complainant was terminated for misconduct the complainant is not entitled to get the above  rate of interest as contended by him.     Since the rate of interest now challenged by the complainant was allowed by a competent Civil Court it cannot be said that there is any deficiency in service on the part of the opp.party.

          According to the complainant he has filed Ext.P5 Writ Petition and in the judgement in  that Writ Petition the High Court has directed the opp.party to settle the claim of the complainant under One Time Settlement Scheme or any other beneficial scheme.  But the opp.party did not comply with  the order of High Court despite the fact that he filed an application for the same.  However the complainant has failed to establish that the scheme of one time settlement was in vogue.  One time settlement schemes are declared by the Government for settlement of arrears of loan  which will be in force only for specific period.  In the absence of any material to show that the scheme of one time settlement was in vogue  at the time when the complainant applied, it cannot be said that the opp.party has not extended the benefit to the complaint.   The High Court has also made in clear that the complainant will be at liberty  to apply for the benefit of the scheme if the same is in vogue.   When such scheme is not in vogue the opp.party cannot be  said  to have committed ant deficiency in service.  The learned counsel for the opp.party would argue that though the opp.party was entitled to realize Rs.9,59,025 from the complainant  as on 5.11.2008 they have settled the case  and collected only Rs.7,86,958.69 thereby granting a concession of Rs.1,72,000.69 to the complainant.   As a matter of fact the complainant has filed the complaint suppressing these aspects.   Therefore,  no deficiency in service or unfair trade practice can be attributed on the opp.party.  Point found accordingly.

          In the result the complaint fails and the same is hereby dismissed.  No costs.

            Dated this the     28TH   day of December, 2010.

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I N D E X

List of witnesses for the complainant

PW.1. –Sajilal

List of documents for the complainant

P1. – Notice sent to Canara Bank

P2. – Notice sent to CanaraBank dt. 10.3.2008

P3. – Advocate notice

D1. – Written Statement

D2. – Copy of Order

D3. – Copy of Decree

D4. –Certified copy of EP