DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD Dated this the 7th day of October 2010 .
Present : Smt. Seena.H, President : Smt. Preetha.G. Nair, Member : Smt. Bhanumathi.A.K, Member
C.C.No.75/2010 Periya Ayyaswami Kounder S/o. Subbanna Kounder Kadukkampallam, Chullimada Attappallam, Pudussery Palakkad Residing at Pichanur Village Raz Koundar thottathil Madukarai Coimbatore. - Complainant (Adv.S. Saviour) Vs The Secretary The Palakkad Primary Co-operative Agricultural and Rural Development Bank Ltd (LM B) Palakkad. - Opposite party (Adv. R.Chenthamarakshan) O R D E R
By Smt. Seena.H, President.
The case of the complainant in brief:
Complaint is for return of documents pertaining to his property deposited as security while availing loan from the opposite party. The case of the complainant is that the complainant through his power of attorney holder one Anirudhan has availed loan from the opposite party Bank by pledging the documents pertaining to his property including back documents. That the power of attorney holder has not handed over the loan amount to the complainant. Further power of attorney holder sold some of the property pledged to his near relative without the permission of the complainant. Suits are pending in this regard before the Honourable Sub Court, Palakkad. Subsequently complainant cancelled the unregistered power of Attorney in the year 2009. On 06/05/2010 the complainant closed the entire loan amount of the opposite party. Thereafter complainant requested for return of his original documents which he has pledged as security. But the opposite party has not returned the same and hence committed deficiency in service on their part. Complainant - 2 -
prays for return of documents along with compensation and cost of the proceedings.
Opposite party contended that the Honourable forum has no jurisdiction to entertain the complaint as there is a clear bar under Section 69 and 100 of Kerala Co-operative Societies Act. Opposite party admitted that a loan application was filed by the power of attorney holder of the complainant and title deeds of the complainants property were also deposited. Opposite party has no knowledge whether the loan amount was paid to the complainant or not. Opposite party contented that complainant ought to have filed a joint application along with the power of attorney holder for return of the documents. Further submits that cases are pending before the Honourable subordinate court, Palakkad, between complainant and the power of Attorney holder for cancellation of sale deeds executed by the power of Attorney holder. Opposite party submits that the property pledged by the complainant was put in auction when the complainant defaulted payment. One Vijayakumar who is said to have purchased some of the properties involved in the auction sale remitted the entire loan amount on 11/05/2010. Opposite party further submits that they have no information regarding the sale of the property to Vijayakumar. Subsequently opposite party received a registered lawyer notice from the said Vijayakumar stating that he has purchased 4.84 acres of land from the complainant by virtue of document No.5404/06 and in the above circumstance sale deed No.3308/89 of Sub Registrar Office, Palakkad of complainant becomes the back document of the sale deed. In the said notice it is stated that the opposite party is liable for the consequences if the documents are transferred to the complainant. Documents were not transferred either to the complainant or to Vijayakumar to avoid legal consequences. Opposite party further submits that they have replied to the notice of the complainant dated 21/05/2010. Opposite party submits that there is no deficiency in service on the part of opposite parties.
Complainant and opposite party filed their respective affidavits. Exhibit A1 to A6 were marked on the side of the complainant. Exhibit B1 to B6 marked on the side of the opposite party.
- 3 - The issues that arise for our consideration are: 1. Whether complaint is maintainable before the forum? 2. Whether there is any deficiency in service on the part of opposite party? 3. If so, what is the reliefs and cost complainant is entitled to?
Opposite party argued for the position that complaint is not maintainable before the forum relying on two points. That there is a clear bar under Section 69 and 100 of the Kerala Co-operative Societies Act to proceed against the opposite party. That suits are pending before the Civil Courts regarding cancellation of sale deed executed between the power of attorney holder of the complainant and one Vijayakumar.
The 1st contention is not maintainable in the light of the decision of the Honourable Apex Court held in Secretary, Thirumurugan Co-operative Agricultural Credit Society Vs M. Lalitha 2004 CTJ 1(SC)CP where in it is specifically held that a dispute between a co-operative society and its members is maintainable before the Consumer Forum. With regard to the 2nd contention the suit before the Honourable Sub Court, Palakkad is not between the parties herein. Moreover the relief sought is that suit is entirely different from the prayer before this Forum. In view of the above circumstances we are of the view that complaint is maintainable before the forum. 1st issue is answered in favour of the complainant.
Issue No.2
It is not in dispute that complainant through his power of Attorney holder has availed a loan from the opposite party by depositing his title deeds in the year 2001. Opposite party has not raised any objection as to the fact of cancellation of power of Attorney in the year 2009. Fact of cancellation is also evident from Exhibit A4. It is seen that opposite party was reluctant to hand over the documents to the complainant on the fear of facing legal consequences based on the lawyer notice dated 14/05/2010 (Ext. B2) of one Vijayakumar who is the purchaser of 4.84 acres of property of the complainant.
- 4 - In our view, the act of opposite party in not returning the documents to the complainant amounts to deficiency in service on their part for the following reasons. Firstly the power of attorney holder is only an agent of the complainant. The authority of the power of Attorney holder is no more after the cancellation of power of Attorney. Hence the stand of the opposite party that they would have delivered the documents on a joint application of both the complainant and power of Attorney holder is unsustainable.
Further opposite party, himself has admitted that the said Vijayakumar has purchased only 4.84 acres of the property of the complainant. Entire property is not sold. Hence in any way right to retain the back documents rests with the complainant. Further opposite party has contented that Vijayakumar has paid the entire loan amount of the complainant when it was about to put in auction. Opposite party has not produced any evidence with respect to that aspect. Even if its is paid by Vijayakumar as contented by opposite party, it is paid for and on behalf of the complainant. Opposite party has not adduced any evidence to show that the said Vijayakumar has purchased any of property of the complainant.
In view of the above stated facts and circumstances of the case we are of the view that opposite party failed to deliver the documents to the complainant fearing legal consequences based on the Exhibit B2 lawyer notice. The act of the opposite party clearly amounts to deficiency in service on their part for which complainant has to be adequately compensated.
In the result, complaint is allowed and we order the following.
Opposite party shall return the entire documents pledged by the complainant at the time of availing loan within one month from the date of receipt of order along with compensation of Rs.10,000/- and cost of Rs.1,000/-. If the opposite party failed to return the documents within the stipulated period, complainant is entitled to an additional amount of Rs.30,000/- along with the cost and compensation earlier ordered.
- 5 - Pronounced in the open court on this the 7th day of October, 2010
PRESIDENT (SD)
MEMBER (SD)
MEMBER (SD) APPENDIX Date of filing: 02/06/2010 Witness examined on the side of Complainant Nil Witness examined on the side of Opposite party Nil Exhibits marked on the side of the complainant Ext. A1 – Receipt dated 11/05/2010 of The Palakkad Primary Co-operative Agricultural & Rural Development Bank Ltd. Ext. A2 – Registered acknowledgment card of Department of posts
3. Ext. A3 - Copy of document 4. Ext. A4 – Copy of letter dated 18/06/2009 5. Ext. A5 – Copy of notice published in news paper dated 18/06/2009 6. Ext. A6 – Receipt issued from Kerala Kaumudi Private limited dated 19/06/2009 Exhibits marked on the side of the Opposite Party 1. Ext. B1 – Copy of Lawyer notice dated 27/05/2010 2. Ext. B2 – Copy of Lawyer notice dated 14/05/2010 3. Ext. B3 – Copy of letter dated 06/05/2010 issued to Secretary, Palakkad Karshika vikasana Bank 4. Ext. B4 – Copy of letter dated 22/06/2009 issued to Secretary, Palakkad Karshika vikasana Bank. 5. Ext. B5 – Copy of letter dated 18/06/2009 6. Ext. B6 – Copy loan application form dated 26/09/01.
Forums Exhibits
Nil
| | [HONORABLE Smt.Bhanumathi.A.K] Member[HONORABLE Smt.Seena.H] PRESIDENT[HONORABLE Smt.Preetha.G.Nair] Member | | 
