Act for an order directing the opposite party to pay an amount of              ` 1,00,000 as damages.

          The case of the complainant in brief are as follows:  Complainant had availed a personal loan of ` 10,000 from opposite party in the year 1997.  She could not repay the instalment regularly.  Opposite party took legal proceeding against her.  Special officer of Co-op. societies attached the movables of the petitioner.  On that day the opposite party had given the custody of the said properties to one Mr. Thavara Padmanabhan on kachit.  Complainant on 04.03.2010 had closed the loan paying the entire loan amount with interest and thereafter asked the opposite party to return the movables which was taken from her custody.  But opposite party did not give the same.  Legal notice dated 03.09.2010 was sent.  They sent reply with false allegation and of telling legal action taken against Padmanabhan, wherein, complainant was not a party at all.  The value of the property shown by the sale officer is much lesser than the actual market price.  Complainant afterwards filed petition before Assistant Registrar of Co-operative Societies and thereby it was ordered to return the complaint scheduled articles.  But opposite party did not.  The articles were kept in such a way which reduces its value and utility materially and permanently.  It is a matter of heavy loss and thus this complaint.

          Pursuant to the notice the opposite party made appearance and filed version denying the allegation of complaint contending as follows :  Complainant had availed a loan and defaulted the repayment.  Arbitration proceedings initiated against her and an award was passed against her.  Since the decree amount had not been paid execution proceedings were initiated and the sales officer attached the movables on 15.11.2002 and entrusted with the opposite party.  The same was entrusted with Sri. Thavara Padmanabhan upon executing a kychit with an undertaking to produce the movables in favour of the opposite party as and when called for.  Since the above Padmanabhan failed to produce the movable on demand, a complaint was filed U/s. 406 IPC. Search warrant was issued and movables were seized from his custody and produce before JFCM, Payyannur and the same is in the custody of the court.  The opposite party is ready and willing to hand over the same as and when it is received from the court.  The value of property shown in the complaint is exhorbitant. The order of Assistant Registrar is to return back movables after getting the same back from the court.  The allegation that the articles were in the custody of the police is not true.  There is no deficiency in service on the part of opposite party.  Hence to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

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

2.         Whether the complainant is entitled for the remedy as prayed in the complaint?

3.         Relief and cost.

The evidence consists of the oral testimony of PW1, DW1, Ext.A1 to A6 and Ext.B1 to B11.

Issues No.1 to 3 :

          Admittedly complainant had availed loan from the opposite party bank.  Since the repayment was defaulted the special sales officer of co-operative society, as part of legal proceedings attached the movables belonging to complainant and the same was given in custody to one Thavara Padmanabhan on kachit.

          The case of the complainant is that opposite party is not returning the property evenafter clearing the dues and also obtaining order form Sub Registrar.  The case of opposite party on the other hand is that the articles were entrusted with Sri. Thavara Padmanabhan by executing a Kachit with an undertaking to produce articles as and when called.  But he did not returned the movables and as a result the case was filed and the same was seized and produced before JFCM Payyannur.  They are ready and willing to return the article to complainant as and when received from the court.

          Complainant filed chief affidavit adducing evidence  in tune with the pleadings.  As a matter of fact there is no dispute regarding clearance of loan and of the liability to return the movables.  Opposite party has stated in the version itself that they are ready and willing to hand over the articles as and when those movables are received back from the court.  That means evennow the article is not returned back to the complainant and it is also clear that opposite party is not sure when it would be ready for delivery to her.

          It is undoubtedly clear that the complainant is entitled to get back the articles right from clearing the dues.  The discharge of liability to return back the articles cannot be delayed at any cost.  In case opposite party is not able to return back the articles, whatever may be the reason, they are liable to pay the value of the articles.  In the present case in hand opposite party bank did not return the movables evenafter paying the entire due amount.  There is no justification for the same.  If it is difficult to return back the articles the way out open before the opposite party bank is to pay the value of the articles.  The consequence of the case, whatever it may be is not a matter with the complainant but it is a subject matter opposite party is expected to deal with Mr.Padmanabhan, who had failed to implement the undertakings given to opposite party at the time when the articles were taken possession.  The articles were taken possession of by executing a kachit.  Bank has nothing to be worried if the kachit is genuine.  Hence the non-delivery of articles or else payment of the price to the complainant after clearing the dues is a deficiency in service on the part of the opposite party.  Taking into consideration the facts and circumstances the discharge of liability of opposite party is possible by paying the value of articles.  Thus we are of opinion that opposite party is liable to pay the value of the movables that has seized from the complainant irrespective of the fact that the Bank is in litigation with the person to whom the articles had been entrusted by executing the kachit, for which the complainant has nothing do on legal aspect.  The entire picture would have been different if those articles were given in the custody of above said Padmanabhan after obtaining consent from the complainant.  Since opposite party has no such case we have no hesitation to cast deficiency in service on the shoulders of opposite party bank.

          The next point that has to be examined is the quantum of damage.  It is an admitted fact that the value of the property shown in the seizure mahazar is ` 12,000.  That was the amount complainant shown under schedule of property and its actual cost at the time of seizure.  Subsequently the cost was amended and accordingly the value of property at the time of seizure now stands as ` 69,000.  On going through the entire evidence it can be seen that the price of the property, the subject matter of seizure disputed only after lapse of very long period.  No protest with the seizure mahazar had been recorded anywhere.  The attempt is done only for the sake of the complaint in hand.  Moreover, the price of the wood articles would have naturally decreased.  Even if it was good quality there is no chance for increasing the price.  The case of the complainant is that the sale office put only very less price while preparing the mahazar. It may be correct to certain extent but a definite correct assessment is not at all possible at this juncture.  Though the complaint was amended, the complainant was not able to produce evidence to that effect.  Hence we feel that it is not proper to depend up the amended figure without supporting evidence.  The figure in the seizer mahazar is more reliable with a reasonable  increase taking into account the practical trouble to have such articles listed.  Taking into account the entire aspect, including the mental agony and hardship we do feel that an amount of ` 20,000 as compensation will meet the end of justice. Opposite party is also liable to pay an amount of `1500 as cost of this litigation.  Hence the issues No.1 to 3 are found in favour of complainant and order passed accordingly.

          In the result, the complaint is allowed directing the opposite party to pay an amount of ` 20,000 (Rupees Twenty Thousand only) as compensation along with a sum of ` 1500 (Rupees One thousand five hundred only) as litigation cost within one month from the date of receipt of this order failing which the opposite party is liable to pay interest also @ 12% from the date of clearing the dues 01.03.2010 till realization of the amount.  Complainant is at liberty to execute the order after the expiry of 30 days as per the provisions of Consumer Protection Act.

                            Sd/-                  Sd/-                     Sd/-

President              Member               Member

APPENDIX

Exhibits for the Complainant

A1. Form No.V

A2. Receipt showing that loan amount paid.

A3. Lawyer notice.

A4. AD card.

A5. Reply notice sent by the opposite party.

A6. Order passed by A.R. Co-operative Society.

Exhibits for the opposite party

B1.  Loan application

B2.  Award

B3.  Copy of execution petition.

B4.  Kacheetu executed by Padmanabhan in favour of OP’s bank.

B5.  Lawyer notice.

B6.  Copy of postal receipt.

B7.  Copy of AD card.

B8.  Certified copy of complaint in CC.381/05.

B9.  Seizure Mahazar.

B10.Certified copy of petition in C.M.P. 687/11.

B11.Certified copy of order in C.M.P. 687/11.

Witness examined for the complainant

PW1.   Complainant.

Witness examined for opposite party

DW1.  A.P. Narayanan.

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT