Date of filing : 06-09-2012
Date of Disposal : 30-05-2013
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.
PRESENT: - Sri S.Niranjan Babu, B.A., B.L., President (FAC).
Smt. M.Sreelatha, B.A., B.L., Lady Member
Thursday, the 30th day of May, 2013
C.C.NO.53/2012
Between:
R.Seshaiah Setty
S/o R.C.Rangaiah Setty
D.No.22, DPL Colony
Maruthinagar, Balanagar,
R.R. District, Hyderabad. … Complainant
Vs.
The Manager,
Indian Overseas Bank
Vidyut Nagar
Anantapur. … Opposite Party
This case coming on this day for final hearing before us in the presence of Sri Allu Narayanappa, Advocate for the complainant and Sri K.L.N.Prasad and Sri A.Raghavendra, Advocates for the opposite party and after perusing the material papers on record and after hearing the arguments on both sides, the Forum delivered the following:
O R D E R
Sri S.Niranjan Babu, Preisdent (FAC): - This complaint has been filed by the complainant under section 12 of Consumer Protection Act, 1986 against the opposite party claiming a sum of Rs.4,78,080/- with future interest and grant such other relief or reliefs.
2. The brief facts of the complaint are that: - The complainant has availed loan from the opposite party by mortgaging his house bearing D.No.12-465 situated at Vidyutnagar, Anantapur and Ac.0.50 cents situated at Gooty N.H.7 Road. Subsequently, due to financial difficulties the complainant failed to discharge the said loan. As a result, the opposite party has taken possession of the mortgaged property and auctioned the same. But after clearing of his loan account, the remaining balance amount from the auctioned amount was not returned to the complainant without any reason or any order from any authorities including the courts. Then the complainant made several requests to the opposite party to refund the excess amount of Rs.3,59,195/- but the opposite party did not care to the complainant’s request. Under those circumstances, the complainant approached the Hon’ble High Court of A.P. and filed a Writ Petition No.1175/2011 against the opposite party seeking remedy and in the said writ petition the Hon’ble High Court was pleased to direct the opposite party to refund the excess amount with interest.
3. While that is so, the opposite party did not pay interest from the date of auction of the property but paid only limited interest. The said action of the opposite party is illegal. At the time of taking possession of the property by the opposite party, some household articles like Almarah, tables, sofa sets which were worth about Rs.1,50,000/- was also sold in the said auction. The opposite party without any right to take over the above said property had auctioned the same. Later on 28-06-2012 the complainant issued legal notice calling upon the opposite party to pay interest and other amount. But the opposite party did not comply to the request of the complainant nor gave any reply. Hence, there is deficiency of service on the part of the opposite party for which the complainant filed this complainant claiming a sum of Rs.2,58,080/- towards interest on Rs.3,59,000/- from 20-06-2006 to 20-06-2012 @ 12 % p.a., Rs.1,50,000/- towards loss of property, Rs.50,000/- towards mental agony and Rs.20,000/- towards loss of High Court expenses in total Rs.4,78,080/- with future interest.
4. The opposite party filed a counter stating that the claim of the complainant is misconceived and the complainant does not fall under the definition of consumer to claim any relief under Consumer Protection Act. The opposite party submits that the complaint is not bonafide and the complainant has suppressed material facts with an intention to make unlawful gain from the opposite party. Further, the opposite party submits that the complainant is a businessman having education cannot claim any relief as there is contributory negligence on the part of the complainant. Further the opposite party submits that the allegation that due to financial difficulties he failed to discharge the loan availed by the complainant. Therefore, the opposite party took possession of the mortgaged property and the further allegation that while taking possession no notice was served on the complainant is blatant lie. In fact, the procedure followed by the opposite party under the provisions of Securitization Act can not be challenged before this Forum and the alleged remedy is elsewhere i.e. before the Debt Recovery Tribunal, Hyderabad under the provisions of Securitization Act and the jurisdiction of civil court and other courts is specifically excluded under the Central Statute and the same can not be challenged in the present case.
5. Further the opposite party submits that the claim of the complainant that the property was sold at a lower price and the said auction was conducted in a wrongful manner can not be agitated before this Forum and the said claim is beyond the scope and jurisdiction of this Forum. Further the allegation that for non return of the balance amount the complainant filed a writ petition in the High Court is true but the orders of the Hon’ble High Court in W.P.No.1175/2011 giving a direction to refund the excess amount along-with interest is not correctly mentioned with regard to rate of interest. In fact the Hon’ble High Court gave a direction “ in case the sale proceeds of auctioned property are in excess, the 1st respondent is under an obligation to refund the same to the petitioner unless the petitioner is due under any other accounts including I.P.No.25/2006, which was withdrawn by the petitioner himself. “ Hence leaving it open to the complainant to approach this opposite party Bank with a representation and if the Bank is satisfied that I.P.is not pending and if there are no other dues to the Bank, the balance sale proceeds shall be refunded to the petitioner within a period of two weeks of the receipt of the High Court order. Subsequently, this opposite party refunded the balance of excess sale amount to the complainant with interest @ 10% as per Banking norms and the same was deposited in the account of the complainant, which was withdrawn by the complainant on 04-05-2012. The opposite party submits that in the above circumstances, the opposite party is not liable to pay any compensation as claimed by the complainant and the complaint is liable to be dismissed.
6. Basing on the above pleadings, the points that arise for consideration are:-
1. Whether there is any deficiency of service on the part of the opposite party?
2. To what relief?
7. In order to prove the case of the complainant, the evidence on affidavit of the complainant has been filed and marked Ex.A1 to A3 documents. On behalf of the opposite party, the evidence on affidavit of the opposite party has been filed and no documents were marked on behalf of the opposite party.
8. Heard arguments on both sides.
9. POINT NO.1: - It is an admitted fact that the complainant has availed loan from the opposite party by mortgauging his house bearing D.No.12-645, Vidyutnagar, Anantapur and also Ac.0.50 cents situated at Gooty, N.H. 7. Due to financial difficulties, the complainant failed to discharge the loan amount to the opposite party. Later the opposite party has taken possession of the property mortgaged by the complainant as per Securitization Act and auctioned the said property.
10. The counsel for the complainant argued that the opposite party has auctioned the mortgauged property at a lower price and after clearing of his loan account, the balance amount of sale proceeds was not returned to the complainant without assigning any reasons. Then the complainant filed Writ Petition in the High Court of A.P. in which the High Court has given direction to the opposite party to refund the excess amount after clearing of the loan with interest to the petitioner unless the petitioner is due under any other account including I.P.No.25/06, which was withdrawn by the petitioner. Further the counsel for the complainant argued that at the time of auction the opposite party also auctioned some household articles, which were worth about Rs.1,50,000/- and hence the opposite party is liable to pay interest on Rs.3,59,000/- from the date of auction i.e. 20-06-2006 to 20-06-2012 at 12% p.a. and also towards the loss of household property worth about Rs.1,50,000/- and Rs.50,000/- towards mental agony and Rs.20,000/- towards High Court expenses in total a sum of Rs.4,78,080/-.
11. The counsel for the opposite party argued that the complainant is a defaulter and he can not claim any compensation under Consumer Protection Act. The counsel for the opposite party argued that the complainant has failed to discharge the loan taken by him. As the complainant has mortgaged his house and open site with an extent of 0.50 cents, the opposite party has taken possession of the said property under Securitization Act as per procedure and later auctioned the said property. The counsel for the opposite party argued that the complainant has suppressed the material fact that he has filed I.P. and filed this complaint in order to make unlawful gain from the opposite party. The counsel for the opposite party further argued that it is true that the complainant filed Writ Petition No.1175/2011 and an order was passed by the Hon’ble High Court directing this opposite party “ in case the sale proceeds of auctioned property are in excess, the 1st respondent is under an obligation to refund the same to the petitioner unless the petitioner is due under any other accounts including I.P.No.25/2006 which was withdrawn by the petitioner himself. “ Hence leaving it to the petitioner to approach the opposite party-Bank with a representation and if the Bank is satisfied that no I.P. is pending and if there are no other dues to the Bank, sale proceeds shall be refunded to the petitioner within two weeks from the receipt of the High Court order. But there is no specific rate of interest in the said direction as claimed by the complainant. Subsequently the opposite party has deposited the balance amount with interest @ 10% p.a. as per Banking norms and the said amount was also withdrawn by the complainant on 04-05-2012. Hence, the opposite party is not at all liable to pay any compensation to the complainant as claimed by him.
12. After hearing the arguments and perusing the documents it is true that the opposite party has withheld the balance amount of Rs.3,59,000/- from the sale proceeds of the complainant’s property, which were mortgaged by him. Later his balance amount was not transferred to the complainant, the complainant filed a Writ Petition and the High Court of A.P. also gave a direction to transfer the excess amount from the sale prodded into the account of the petitioner/complainant with interest but there is no specific direction with regard to rate of interest. Basing on the directions of the High Court, the opposite party has transferred the excess amount, which was held by the opposite party with interest @ 10% p.a. as per Banking norms and the same was also withdrawn by the complainant on 04-05-2012. But subsequently the complainant filed this complaint claiming interest on Rs.3,59,000/- from 20-06-2006 to 20-06-2012 @ 12%p.a. without deducting the interest already received by him. This shows that the complainant has not come with clean hands and he has not deducted the interest already received by him and claimed double interest, which is not justifiable. Further the arguments that the household property was also auctioned which was worth about Rs.1,50,000/- for a meager amount and hence the opposite party has to compensate the said loss and also pay a sum of Rs.50,000/- towards mental agony can not be considered as this is not the proper Forum to agitate for the above claims. Further the arguments of the complainant that he is a consumer of the opposite party can not be taken into consideration as the complainant himself was a defaulter and defaulter can not claim compensation under Consumer Protection Act. In view of the above observation, the opposite party is not liable to pay any compensation and there is no deficiency of service on the part of the opposite party.
13. POINT NO.2 - In the result, the complaint is dismissed without costs.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 30th day of May, 2013.
Sd/- Sd/-
LADY MEMBER PRESIDENT (FAC),
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT: ON BEHALF OF THE OPPOISITE PARTY
-NIL- - NIL-
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 - Office copy of legal notice dt.28-06-2012 got issued by the complainant to the
opposite party.
Ex.A2 - Postal acknowledgment signed by the opposite party.
Ex.A3 - Photo copy of Writ Petition No.1175/2011 on the file of High Court of A.P.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY
- NIL -
Sd/- Sd/-
LADY MEMBER PRESIDENT (FAC),
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR.
Typed by JPNN
