D.O.F. 02.07.2011
D.O.O. 12.12.2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K. Gopalan : President
Smt. K.P.Preethakumari : Member
Smt. M.D. Jessy : Member
Dated this the 12th day of December, 2011.
C.C.No.206/2011
Kattukuzhi Dasan,
S/o. Chellappan,
‘Kattukuzhiyil House’, : Complainant
Valathode, P.O. Edapuzha,
Kannur (Dist.) 670 704
(Rep. by Adv. John Joseph)
1. The Secretary,
Tellicherry Primary Co-operative
Agricultural Development Bank Ltd.,
Thiruvangad, Thalassery.
(Rep. by Adv. B.P. Saseendran) : Opposite parties
2. The Manager,
Tellicherry Primary Co-operative
Agricultural Development Bank Ltd.,
Iritty Branch, P.O. Iritty.
O R D E R
Smt. K.P. Preethakumari, Member.
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to release the title deed belonging to the complainant deposited with opposite party at the time of availing loan No. P.H. Coconut 495 by way of mortgage immediately on payment of `17,240 on or before 30.12.2011 and to register the necessary mortgage deed in favour of complainant within 10 days of payment along with `10,000 as compensation with 12% interest from date of filing of complaint with cost.
The case in brief of the complainant is that he is an agriculturist and has availed a loan for coconut cultivation and the opposite party has released `23,620 by way of 5 instalments during 94-98. Since the opposite parties impose interest, penal interest, miscellaneous expenses etc in the loan account and failed to credit agricultural debt relief to the complainant as per the Agricultural Debt Relief Act 2001 and 2004 and in view of other deficiency of service on part of the respondents the complainant was constrained to file a complaint C.C.18/09 before the Forum. The complainant had also preferred an application before the Kerala Agricultural Debt Relief Commission for debt relief and the said commission has granted a debt relief of `30,000 to the complainant and directed to pay the balance amount of `17,240 on or before 30.12.11 as per the calculation statement furnished by the opposite party bank. The opposite party and the complainant have reached a settlement. Accordingly the terms of the settlement was informed before the Forum and accordingly the Forum was pleased to pass an order directing the respondent to release the title deeds of the complainant and execute the mortgage to release deed infavour of the complainant on payment of the said amount soon after the order the complainant approached 2nd opposite party on 14.03.2011, 22.03.2011 and on 28.03.2011 and expressed his willingness to pay the amount and to close the loan account. But 2nd opposite party resiled from the assurance before the Forum in C.C. 18/09 and took an adamant attitude that if the complainant is paying the amount of `17,240, the same would be credited in the loan account and the loan account cannot be closed unless and until the bank receives the relief amount of `30,000 from Government of Kerala and the mortgage release deed cannot be executed till the bank received the payment from Government. So the complainant has issued a registered lawyer notice dated 28.04.11 calling upon the 1st opposite party to execute the release deed and for release of title deed in favour of complainant against payment of the above amount, with a request to intimate the complainant regarding readiness of 1st opposite party. Eventhough the opposite party has acknowledged the same, there is no positive response from 1st opposite party. So there is grave deficiency of service on the part of opposite parties. The opposite parties are not entitled to deny statutory right conferred on the complainant as per Section 5(3) of Kerala Farmers debt relief Act and also bound to honour the order passed by the Forum passed in CC 18/09 due to these illegal Act, the complainant suffered much mental pain and agony. The complainant has arranged the amount by availing a loan from a private money lender and has suffered loss of `1000 as interest. So the complainant is entitled to get `10,000 also as compensation. Hence this complaint.
In pursuance to the notice issued by the Forum both opposite parties appeared and filed their version contending that the Forum has no jurisdiction to try the complaint. The opposite parties admit that the complainant availed loan as PH coconut NO.495 and was disbursed with 5 instalments and the terms and conditions of the loan and all financial activities of the bank is as per the direction of NABARD and such other financial institution. The opposite party further admits that the CC 18/09 was filed and was settled. In the settlement talk complainant agreed to pay a sum of `47,240 towards their liability and assured that 30,000 will be paid to the bank by Government as per debt relief. But till the time no debt relief amount was credited towards the bank from the Government and has not even get any intimation from Government as to debt relief. The bank was ready to return the title deed and release the mortgage on payment of above amount. The complainant was frequently requested to take action to release debt relief from the
Government and pay the balance amount of `17,240. There is no deficiency of service on the part of opposite party and hence this complaint is liable to be dismissed.
Upon the above contention the following issues have been raised for consideration.
1. Whether the Forum has jurisdiction to try the case?
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 consists of oral testimony of PW1, and Exts. A1 to A4 and Ext.X1.
Issue No.1 :
The opposite parties contended that the Forum has no jurisdiction to entertain the complaint since the dispute is touching the business of the bank and is to file before the co-operative tribunal or Arbitration Court. But in Secretary, Thirumugham Co-operative Agricultural Credit Society Vs. M. Lalitha, the Hon’ble Supreme Court, held that the provisions of co-operative societies Act has not ousted jurisdiction of Consumer Fora and complaint filed before CDRF is maintainable, which was reported in 2004(I) CPR 35 S.C. So we are of the opinion that the Forum has ample jurisdiction to try the case and hence issue No.1 is found in favour of the complainant.
Issues No.2 to 4 :
The further case of the complainant is that the opposite party has not ready to close the loan account even after they had informed by the complainant his readiness to pay `17,240 as per the order of Agricultural debt relief commission and the order of the Forum in CC.18/09. In order to prove his case he has produced the order of Kerala Farmer’s Debt Relief Commission, true copy of lawyer notice, postal receipt, acknowledgment card and the file in CC 18/09 before the Forum. As per the documents produced before the Forum, there was an order by the Forum dated 2.03.2011 in CC.18/09, which was based on the settlement terms reached by the both parities in accordance with the order of the Kerala State Farmer’s Debt Relief Commission, Thiruvananthapuram dated 10.12.2010. As per the above stated order of Debt Relief Commission, the complainant is entitled to debt relief of `30,000 since the complainant is a distressed Farmer and these amount shall be taken over by Government and the complainant has to remit `17,240 to opposite party on or before 30.12.11. This also admitted by opposite party. But according to opposite party, they can close the loan account only after getting the above said amount of `30,000 from the Government. But the opposite party has not produced any document before the Forum to convince the Forum that they can close the account only after receiving the amount from the Government and not produced any document with respect to accounting procedure. The opposite parties have no case that the complainant has not approached them with the balance amount. The only contention of the opposite party is with respect to the receipt of debt relief amount. Ext.A2 also admitted by opposite party and they have kept mum with respect to the reply or the follow up action taken by the opposite parties in response to the notice. This shows that there is deficiency of service on the part of opposite party. Moreover the opposite parties are bound to act in accordance with the order of Debt Relief Commission and that of the Forum. Moreover it is a settlement order and the opposite party has no case that they have approached appellate authority. So the order of the Forum is a final order and the opposite parties are bound to act according to the order. The complainant submitted that he has shown his willingness, but the opposite parties are not ready to accept by saying that they can accept the same only after receiving the amount. So we are of the opinion that there is grave deficiency of service on the part of opposite parties. So the opposite parties are liable to close the loan on or before 30.11.2011 after receiving `17,240 from the complainant. The complainant is entitled to get `2000 as cost of the proceedings. Considering the circumstances, we are not awarding any compensation. The opposite parties are liable to release the mortgage deed with connected documents and to execute the release deed in favour of the complaint within 15 days of closing of the account and passed order accordingly.
In the result, the complaint is allowed partly directing the opposite parties to close the loan account having No. P.H.Coconut 495 of the complainant after receiving ` 17,240 (Rupees Seventeen Thousand two hundred and forty only) on or before 30.12.11 and to execute the release deed and to release the mortgage deed with related documents within 30 days of closing of the loan and to pay ` 2000 (Rupees Two Thousand only) as cost. In default the complainant can execute the order as per the provisions of Consumer Protection Act after 30 days from the date of receipt of the order.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Copy of the order of KFDRC.
A2. True copy of lawyer notice.
A3. Postal receipt.
A4. Acknowledgment.
Exhibits for the opposite parties
Nil.
Exhibits for the Court
X1. File in C.C.18/09.
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
Nil
/forwarded by order/
SENIOR SUPERINTENDENT
