Smt. K.P. Preethakumari, Member.

          Since the subject matter and opposite parties are one and the same, the above two complaints have taken up for consideration together for the sake of convenience.

C.C.No.126/2010

This is a complaint filed under Section 12 of Consumer Protection Act for getting an order directing the opposite party to refund ` 6,384 the balance amount with current account No. 0014521000004178 after repayment of loan along with current account interest upto the date of complaint and thereafter at 12% interest with ` 50,000 as compensation and cost.

          The case in brief of the complainant is that he had availed `1,00,000 as loan with an interest rate of 10%  with a promise to repay the amount within three years ie on or before 31.05.09 and the E.M.I. is `3322.  For the purpose of the repayment of loan the complainant has opened a current account having No.001401000009761 and the complainant  has given instruction to opposite party to adjust the amount in the account on the last day of every month towards loan account and accordingly the complainant was used to deposit money in his current account.  But the complainant came to know that the opposite party has been used to adjust only the EMI amount of ` 3,322 every month from the current account when he had an occasion to examine the repayment statement.  Actually the complainant had deposited ` 52,000 in his current account towards the last day of October, 2006, but the opposite party had adjusted only ` 16,936.52 as five EMI towards loan and hence there is a balance amount of                  ` 35,063.48.  The opposite party has done such an act only to get interest for getting unlawful gain and hence it is deficiency of service and unfair practice later on the complainant had issued a request to adjust the amount towards the laon during every month and the opposite party had informed that they had adjusted the amount.   The complainant continued to deposit the amount in the current account for adjusting towards the loan during 2007, March, the opposite party represented to the complainant that the loan account can be closed during April and advised to pay the amount only upto and inclusive of April, 2007 and accordingly he stoped the payment towards current account.   Later on the complainant approached the opposite party for the loan clearance certificate and statement. At that time the opposite party told the complainant that after adjusting the amount in current account there will be a balance amount of `7000 and instructed the complainant to came after the busy days.  But during July the complainant approached the bank for withdrawing balance amount and for loan closure certificate, and then he came to know that his loan account was not closed and the opposite party have adjusted only the EMI amount of `3332 towards the account.   According to the complainant, the opposite party had done so for getting unlawful gain by way of interest.  On 07.09.09 the opposite party had given a statement showing `579.74 as credit balance.   So the complainant had suffered so much of mental, physical and financial hardship.  According to the complainant he had deposited ` 1,12,000 towards 30^th April, 2007 and if it is adjusted as per the instruction of the complainant, there will be a balance amount of `6384 in his current account towards the end of April, 2007 and hence the complainant is entitled to get that amount with interest from 01.04.07.  The complainant has issued a notice on 08.12.2009 and the opposite party issued reply stating untenable contention. So there is grave deficiency of service and unfair practice on the part of opposite party and had suffered lot of physical, financial and mental hardships. Hence this complaint.

In pursuance to the notice issued by the Forum opposite party appeared and filed his version contending that the complaint is not maintainable before the Forum.  The opposite party admits that the complainant had availed ` 1,00,000 as loan with 3 years repayment period and the EMI is `3,322 and the loan was availed as per mutual guarantee agreement scheme.  The complainant has opened the current account according to the terms and conditions of loan and not as per the whim and fancies of the complainant.  It is not correct to say that the complainant had given instruction to the effect that the total accrued amount in the current account of the complainant during last day of every month has to be adjusted towards the loan account.  As per the 4^th para of the loan condition the opposite party is liable to transfer only the EMI.  But as per the request of the complainant, the opposite party has transferred the entire amount in the current account towards loan.  Such an act cannot be done without the written consent of opposite party and the opposite party cannot transfer `52,000 accrued in the current account towards loan account.  It is not correct to say that the opposite party has purposefully not transferred the amount in the current account to loan account for unlawful gain.  It is also incorrect to say that the opposite party had assured that the balance amount in the current account will be refund after closing the loan account.  The opposite party can only transfer ` 3332 towards the loan account. The opposite party has no need to show any unfair practice, since it is one of the important Scheduled Bank in Kerala.  The case is filed with some imagination and contradictory in nature.  The opposite party had issued a reply to notice.  There is no post of secretary and the post in the Kannur branch is Senior Manager.  The complaint is not maintainable and hence the complaint is liable to be dismissed.

On the above contradictory pleadings the following issues have been raised for consideration.

          1.  Whether the complaint is maintainable?

2. Whether there is any deficiency in service on the part of opposite  

    party?

3. Whether the complainant is entitled to any relief.

4.  Relief and cost.

The evidence in the above case consists of the oral testimony of PW1 and DW1 and Ext.A1 to A7 and B1.

C.C.No.129/2010

          This is a complaint filed under Section 12 of Consumer Protection Act for getting an order directing the opposite party to refund ` 6,384, the balance amount in the current account No.0014521000009761 after repayment of loan with current account interest of 12% with ` 50,000 as compensation and cost.

          The facts of the case are same as that of CC 126/10 and hence we are not repeating the same again.  The complainant in the case also availed loan with a condition to open current account and for adjusting the loan amount from the current account and for adjusting the loan amount from the current account and the opposite parties has not adjusted the entire amount, eventhough the complainant has given written instruction and not refund the balance amount in the current account.  She also claimed balance amount of ` 6,384 with 12% interest and ` 50,000 as compensation.

          The opposite party filed version by reiterating the same contentions raised in the version of CC 126/2010.

          Upon the above contention the following issues have been taken for consideration. 

1.     Whether the complaint is maintainable?

2.     Whether there is any deficiency of service on the part of opposite party?

3.     Whether the complainant is entitled to any relief?

4.     Relief and cost.

The evidence in the above case consist of the oral testimony of PW1 (complainant in C.C.126/10), DW1 and Exts. A1 to A7 and B2. 

Issue No.1 in CC 126/10 and CC 129/10 :

          The opposite parties in the above both cases contended that the complaint is not maintainable as per sec. 69 of Kerala Co-operative Societies Act.  But our Hon’ble Apex Court n Secretary, Thirumugham Co-opertive Agricultural Credit Society Vs. M. Lalitha, it was held that the provisions of co-operative societies Act has not ousted jurisdiction of Consumer Forum and hence complaint filed before the Forum is maintainable which was reported in 2004(I)CPR 35 SC.   So we are one of the opinion that complaint is maintainable before the Forum and issue No.1 is found in favour of the complainant in both cases.

Issues No. 2 to 4 in CC 126/10 and 129/10 :

          The issue No.2 with both complaints have been taken up together for consideration for the sake of convenience and to avoid repetition of discussion of evidence in the both complaints.  Both the complainants have the same grievances.  According to the complainants they had availed ` 1,00,000 each as loan and had opened a current account with the bank, as per the direction of the bank for the purpose of transacting Co-Bank Vyapar loan.  The complainant had given instruction to the bank for adjusting the entire amount accrued in the current account towards the loan amount during the last day of every month.  But the bank has not acted as per his instruction and he was forced to pay the interest and the act of the bank is an intentional one to get unlawful gain.  The complainant contended that towards the last day of October, 2006 there was an amount of `52,000 in the currenet account and had credited towards the loan account only ` 16,936.52.   So the complainant again given written instruction and as a result bank had adjusted the accrued amount with current account upto and inclusive of October, 2006.  The opposite party also admits that they have transferred the entire amount accrued in the current account towards the loan during October, 2006 as per the request of the complainant.  The opposite party has produced Ext.B1 and B2 terms and conditions of the loan.  The clause(3) says that the loan amount will be repay in 36 monthly instalments commencing from the succeeding month of drawal of the amount.  The repayment must be in equated monthly instalments.  The borrower has to remit the daily collection as prescribed by the bank in the account maintained with the bank through the collection agent appointed by the bank.  A service charge at the rate of 2% will be realized from the account as remuneration for the agent.  The clause (4) of Ext.B1 and B2 says that “the bank will transfer the instalment amount to the loan account as well as the saving component to the Recurring account from the current account.  You should also aware the current account is opened only for the purpose of transacting co-bank.  Vyapar loan and no other transaction is permitted through the account till the loan account is closed.”  So as per clause (3) and (4) of the agreement the opposite party will collect the EMI and the balance amount of savings will be kept in the recurring account.  But the opposite party has no case that the balance amount is kept in the recurring account of the complainant.  Moreover no documents are seen produced to this effect.  So admittedly balance amount of savings is in the current account of the complainant.  Opposite party themselves says that the current account was opened only for the purpose of repaying the loan.   Moreover opposite party admits that they have adjusted the entire amount in the current account of the complainant once as per the request of the complainant and according to opposite party this was done as per the written request made by the complainant for the same.  But the complainant contended that he had made written request for the entire period of repayment of loan.  But the opposite party has not produced this request made by the complainant.  So the non-production of the document helps to  draw an inference in favour of the complainant that he had made request for adjusting the entire amount accrued in the last day of every month towards the repayment.  So we are of the opinion that there is deficiency of service on the part of opposite party in adjusting the accrued amount in the current account of the complainant towards the loan amount and we are also accepting the calculation made by the complainant by adjusting the accrued amount in current account towards the loan account of the complainant.

          So in the light of the above discussions and the perusal of the documents produced, we hold that there is deficiency of service on the part of opposite party.  So the opposite party is liable to refund ` 6,384 with 12% interest from 01.04.07 upto date of realization with `2000 as cost of the proceedings.  Thus issues No.2 to 4 are found in favour of the complainants in CC 126/10 and 129/10 and passed order accordingly.

          In the result CC 126/10 is allowed partly directing the opposite party to refund `6384 (Rupees Six Thousand Three Hundred and Eighty four only) with 12% interest from 01.04.07 till realization with `2000  (Rupees Two Thousand only) as cost of the proceedings within one month from the date of receipt of this order, failing which the complainant can execute the order as per the provisions of Consumer Protection Act.

          In the result CC129/10 is allowed partly directing the opposite party to refund `6384 (Rupees Six Thousand Three Hundred and Eighty four only) with 12% interest from 01.04.07 till realization with `2000  (Rupees Two Thousand only) as cost of the proceedings within one month from the date of receipt of this order, failing which the complainant can execute the order as per the provisions of Consumer Protection Act.

          Sd/-                             Sd/-

     President                       Member   

APPENDIX

C.C.No.126/2010

Exhibits for the Complainant

A1.  Lawyer notice

A2.  Acknowledgment card

A3.  Statement of account dated 08.07.2009.

A4.  Statement of account dated 07.09.2009.

A5.  Statement of account dated 07.09.2009.

A6.  Reply notice by OP dated 12.01.2010.

A7.  Bill collection cards. (11 in numbers)

Exhibits for the opposite party

B1.  Terms and conditions of loan

Witness examined for the complainant

PW1.  Complainant

Witness examined for the opposite party

DW1.  K. Kunhiraman

C.C.No.129/2010

Exhibits for the Complainant

A1.  Lawyer notice

A2.  Acknowledgment card

A3.  Statement of account dated 08.07.2009.

A4.  Statement of account dated 07.09.2009.

A5.  Statement of account dated 07.09.2009.

A6.  Reply notice by OP dated 12.01.2010.

A7. Bill collection card. (11 in numbers)

Exhibits for the opposite party

B2.  Terms and conditions of loan

Witness examined for the complainant

PW1.  M.P. Roopesh

Witness examined for the opposite party

DW1.  K. Kunhiraman

   /forwarded by order/

                                                                     SENIOR SUPERINTENDENT