DATE OF FILING: 28.03.2011
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 25th day of July, 2011
Present:
SRI.LAIJU RAMAKRISHNAN PRESIDENT
SMT.BINDU SOMAN MEMBER
C.C No. 79/2011
Between
Complainant : Joseph S/o Joseph,
Pulickal House,
Upputhodu P.O,
Karikkintholam,
Idukki District.
(By Adv: Fenil Jose)
And
Opposite Parties : 1. The Special Recovery Officer,
Idukki District Co-opv. Bank Limited,
Idukki Colony P.O., Idukki District.
2. The Branch Manager,
Idukki District Co-opv. Bank Limited,
Vazhathoppu Branch, Idukki District.
(Both by Adv: C.K.Babu)
O R D E R
SRI.LAIJU RAMAKRISHNAN(PRESIDENT)
The complainant's son availed a loan of Rs.1,00,000/- from the opposite party bank. The only property of the complainant in Sy.No.1/1 of Upputhodu Village with an area of 1.98 acres was given as security for the above loan. The loan availed by him was for conducting a provision shop. But the business was in failure and so the son of the complainant discontinued the repayment for the same. Eventhough the business was in heavy loss the son of the complainant repaid an amount of Rs.1,20,000/- to the opposite party bank in several occasions. But as per the notice received from the opposite party dated 13.11.2010, the loan became due for an amount of Rs.1,47,916/- and it was demanded to pay Rs.5,62,248/- as total amount to the opposite party. Eventhough the complainant and his son several times approached the Ist and 2nd opposite parties for getting the statement of account of the loan, it was not issued by them. But the opposite parties are trying to attach the property of the complainant and put it in auction sale. So this petition is filed for restraining the opposite parties from the same and also for getting the statement of account of the loan transaction.
2. As per the written version filed by the 2nd opposite party, it is admitted that the son of the complainant availed a loan from the opposite party bank. But it became due and so an Arbitration case was filed as No.2/1998 and a revision petition was filed by the complainant against the arbitration award as No.66/2001. As per the order of the arbitration case, revenue recovery proceedings are initiated against the complainant. So this petition is filed only to delay the proceedings of the opposite party. There was a scheme introduced by the opposite party as "Sahakarana Navarathnam Keraleeyam – Kudissika Nivaranam – Sathasathamanam Keraleeyam 2011" declared by the Government for the Co-operative Societies. Certain benefits were also offered as per the scheme upto 31st March, 2011 and that benefit was also offered to the complainant. If the complainant was ready to repay the loan he ought to have paid the amount at that time. So the petition is not sustainable.
3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to ?
4. The evidence consists of the oral testimony of PW1 and Ext.P1 marked on the side of the complainant and the oral testimony of DW1 and Exts.R1 to R3 marked on the side of the opposite parties.
. The POINT :- The complainant deposed as PW1. As per PW1, a notice was issued by the opposite party demanding to pay an amount of Rs.5,62,248/- stating that the amount was due as on 13.11.2010. It is also stated that securitization proceedings would be initiated against the complainant as per Section 13 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, copy of which is marked as Ext.P1. The loan was availed in the year 1996 and the son of the complainant repaid an amount of Rs.1,20,000/- to the opposite party bank. The opposite party never issued the statement of account to the complainant. The only property owned by the complainant is the security property. The interest calculated by the opposite party is not correct. DW1, who is the Branch Manager of the opposite party bank stated that an ARC award has been passed against the complainant, copy of which is marked as Ext.R1. As per the award the complainant has to pay Rs.1,18,891/- with 24% interest from 26.07.1997 onwards. Eventhough an appeal was filed by the complainant against the arbitration award, it was dismissed. Copy of the same is marked as Ext.R2. The ledger copy with statement of account of the loan transaction of the complainant's son is marked as Ext.R3(series). On cross examination of the learned counsel for the complainant, DW1 deposed that as per Ext.R3 statement of account, the due amount as on 27.07.2010 is Rs.1,47,916/-. But the interest after the award was not at all calculated. It should be calculated as manual. The complainant has repaid an amount of Rs.38,000/- as per the ledger copy produced by the opposite party. DW1 never inspected the property of the complainant and never knows the description of the property.
The complainant is only a surety of the loan availed by his son for conducting a provision shop. The only property of the complainant was given as security for the loan. While a notice was received from the opposite party as Ext.P1 for demanding Rs.5,62,248/-, the complainant and his son several times approached the opposite party bank for getting the statement of account of the loan. But it was denied by the opposite party. The amount calculated as per Ext.P1 demand notice is not correct. But as per the opposite party, the outstanding amount as on 27.07.2010 was Rs.1,47,916/- as per Ext.R3(series) statement produced by them. But it is deposed by DW1 that the interest after the arbitration award was not at all calculated. It is also admitted by DW1 that the amount was calculated manually and arrived at Rs.5,62,248/-. The opposite party never produced any evidence showing how the amount has been arrived by the opposite party. DW1, who is the Manager of the opposite party is not able to say whether they have issued the statement of account to the complainant. She is not able to say about the calculation of interest of the loan. That is available with the Recovery section and not with the opposite party. Even the Manager never inspected the property of the complainant. So it is very clear from the Ext.R3(series) statement of account produced by the opposite party that the due amount as on 27.07.2010 was Rs.1,47,916/-. It is written in Ext.P1 notice also that the outstanding amount as on 13.11.2010 was Rs.1,47,916/-. But in Ext.P1 it is also written that an amount of Rs.5,62,248/- is due to the bank as on 13.11.2010 as principal plus interest and other expenses Rs.5,400/- also entitled to recover from the complainant. The 2nd opposite party, Manager of the bank is also not able to say about the details of the interest of the loan of the complainant's son, she is not able to say the description of the property of the complainant, whether it is an agricultural land or not. As per the complainant the opposite party never issued the statement of account of the loan to the complainant’s son eventhough several times they approached the opposite party bank for the same. The opposite party never produced the exact statement of account before the Forum evenafter the complaint. So we think that there is gross deficiency from the part of the 2nd opposite party.
The complainant who is an age old man mortgaged his only property to the opposite party bank for availing a loan to his son. But the business became failure and so they were not able to repay the loan amount promptly. But eventhough they have already paid Rs.1,20,000/- to the opposite party. But as per the opposite party they have paid only Rs.38,000/- to the opposite party bank. But the opposite party never produced the exact statement of account of the loan to show that what is the exact amount paid by the complainant's son to the opposite party bank. The photocopy of the ledger not at all sufficient to reveal the same. The interest of the loan is not at all mentioned by the manager of the opposite party while examined as DW1. We think that the loan availed by the complainant was a business loan for provision shop. The opposite party has fixed a specific interest rate for the loan and the loan was to be repaid in instalments with interest. The opposite party never produced any evidence to show that a fixed interest has been agreed by both parties for availing this particular loan or the loan agreement has not produced before the Forum. There is no documents produced by the opposite party to show that 24% of interest can be recovered from the complainant for his loan. Any order from the Government or Co-operative Department or RBI has been produced to show that the opposite party can receive such an interest from the complainant for this particular loan. Here the opposite party demanded an amount of Rs.5,62,248/- from the complainant for his loan of Rs.1 lakh even after the complainant paid a certain amount to the opposite party bank. The rate of interest calculated by the opposite party was not produced to show how the amount was arrived by them. Even the manager of the opposite party was not able to say about the details of the interest of the loan while examined as DW1. The opposite party never proceeded against the original loanee for getting repayment of the loan. The opposite party never produced any evidence to show that they have approached the loanee for the recovery of the loan before proceeding against the old man who is only a surety. So we think that the interest rate calculated for the loan availed by the complainant's son is exaggerated. The opposite party is a Government authority acting as per the rules and regulations of the Co-operative Societies Act, it is not proper to charge such a hike interest from the complainant. The complainant's son discontinued the payment of the loan because of heavy loss in his business. The complainant is an old man and his only property is given as the guarantee of the loan. So we fix an interest of 12% for the due instalments of the loan availed by the complainant's son from the date of due.
Hence the petition partially allowed. The opposite parties are directed to settle the loan account of the complainant's son, with 12% interest for the due instalments for the period of due in which the property of the complainant is given as the security, which is 1.98 acres of land in Sy.No.1/1 of Upputhodu Village, and also issue the statement of account of the same to the complainant. The complainant is directed to approach the bank within 30 days of receipt of a copy of
this order for settling the account. Till that further proceedings against the property of the complainant may be kept in abeyance.
Pronounced in the Open Forum on this the 25th day of July, 2011
Sd/-
SRI. LAIJU RAMAKRISHNAN(PRESIDENT)
Sd/-
SMT.BINDU SOMAN(MEMBER)
APPENDIX
Depositions :
On the side of Complainant :
PW1 - Joseph Joseph
On the side of Opposite Parties :
DW1 - Rosamma Sunny
Exhibits:
On the side of Complainant:
Ext.P1 - Demand Notice dated 13.11.2010 issued by the Ist opposite party
On the side of Opposite Parties :
Ext.R1 - Photocopy of Order in A.R.C No.2/98 before the Idukki Co-operative Societies Joint Registrar
Ext.R2 - Photocopy of Order in R.P No.66/2001 filed by the complainant before the Keral Co-operative Tribunal,Tiruvananthapuram
Ext.R3(series) - Photocopy of Ledger and Statement of Account of the loan transaction of the complainant's son
