IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA. Dated this the 25th day of May, 2010 Present:- Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) O.P. Nos. 36/05 & O.P. No.37/05 (Filed on 09.03.2005) 1. O.P. No. 36/05 Between: P. Santhamma, Rajani Nivas, Palamaroor Muri, Pramadom Village. Addl.2 N.P. Sasidharan Pillai, --do-- --do— Addl.3 Jihesh Kumar, --do-- --do— Addl.4 Rajani. S. –do-- --do-- (By Adv. G. Ajith Kumar) .... Complainants. And: The Kumbazha Service Co-operative Bank Ltd. No. 330, represented by its Secretary, V.K. Mohanakumari. (By Adv.K.G. Muraleedharan Unnithan) .... Opposite party. 2. O.P. No. 37/05 Between: N.P. Sasidharan Pillai, Rajani Nivas, Palamaroor Muri, Pramadom Village. (By Adv. G. Ajith Kumar) .... Complainant. And: The Kumbazha Service Co-operative Bank Ltd. No. 330, represented by its Secretary, V.K. Mohanakumari. (By Adv. K.G. Muraleedharan Unnithan) .... Opposite party. COMMON ORDER Sri. N. Premkumar (Member): These 2 petitions were jointly heard and disposed of by way of common order. 1. O.P. No.36/05: Fact of the case in brief is as follows: The complainant is a member of opposite party, the Kumbazha Service Co-operative Bank. The opposite party was conducting chitty business and complainant was the subscriber in chitty No.3/2000 as chittal No.2. The complainant was became a defaulter in the chitty and opposite party filed suit for realising a sum of Rs.5,798/-. After receiving the suit notice, complainant paid the entire defaulted amount. Thereafter, complainant came to know that the interest calculated for the defaulted instalments is more than what is agreed to between the parties. As per the chitty agreement, the opposite party is entitled to get 12% interest rate for the defaulted amount. But opposite party collected exorbitant rate, i.e. 30% per annum. This is against the agreement entered into between the parties. 2. Complainant defaulted payment from 16th instalment onwards. An amount of Rs.280/- is the interest due from the complainant, but an amount of Rs.1,172-50 is collected by the opposite party. An amount of Rs.922-50 was collected in excess by the opposite party. Even though notice was issued with regard to the excess amount paid by the complainant, no reply till date. Hence, this complaint for getting Rs.922-50 with interest, compensation and cost. 3. The opposite party filed version and contended inter alia as follows:- The above complaint is not maintainable either in law or on facts. The allegations in the complaint against the opposite party are baseless and hence denied. The complainant was not a subscriber to the chitty No.3/2000. But a subscriber of the Members’ Mutual Benefit Fund. This complaint is instituted on a misconceived notion that the complainant is a subscriber of the chitty. Moreover, this complaint is not a consumer and if any dispute has arisen the remedy available is under the Kerala Co-operative Societies Act, 1969. The matter was already adjudicated before the competent Forum and it is not subjected to further scrutiny. 4. The complainant is a member of the Mutual Benefit Fund and executed an agreement under which the opposite party is entitled to realise the admitted rate of interest. The opposite party had collected only the said admitted rate of interest. The statement that an amount of Rs.922-50 was received in excess from the complainant is baseless. The complainant has not suffered any inconvenience or they have not committed any deficiency in service. Therefore, opposite party canvassed for the dismissal of the complaint with cost. 5. From the above pleadings, following points are raised for consideration: (1) Whether the complaint is maintainable before the Forum? (2) Whether the reliefs sought for in the complaint are allowable? (3) Relief and Cost? 6. Evidence of the complaint consists of the proof affidvit filed by the second complainant along with certain documents. He was examined as PW1 and the documents produced were marked as Exts.A1 to A6. 7. Evidence of the opposite party consists of the proof affidavit filed by the opposite party along with certain documents. He was examined as DW1 and the documents produced were marked as Exts.B1 to B6. 2. O.P. No.37/05: The case of the complainant in brief is as follows: The complainant was the subscriber to chitty No.3/2000 as chittal No.2. He became a defaulter. Opposite party filed a suit for realising Rs.5,778/-. After receiving the suit notice, the complainant settled the matter by paying the defaulted amount. After that, he learnt that the interest calculated is more than what is agreed to between the parties. As per the chitty agreement, the opposite party is entitled to realise only 12% interest per annum. The complainant defaulted from 16th instalment onwards. An amount of Rs.280/- is the interest due from 16th instalment, but an amount of Rs.1,075-50 was collected by the opposite party. An amount of Rs.795-50 was collected in excess by the opposite party. Complainant was issued notice with regard to the excess amount paid by the complainant. But no response till date. Hence this complaint. 2. The opposite party filed version and took the same contentions as raised in the connected O.P. No.36/05. The opposite party is not liable to pay any amount to the complainant. Hence it is prayed for the dismissal of the above complaint. 3. The point raised in O.P.36/05 is settled in this case also. 4. The complainant was examined as PW1 and marked exhibits A1 and A2. On opposite party’s side, Exts.B1 to B6 were marked. These two complaints were jointly heard. 5. Point No.1 in O.P.36/05 & 37/05: According to opposite party, these cases are triable only as per Kerala Co-operative Societies Act, 1969. But as per Consumer Protection Act, it is specially constituted for the benefit of the consumers. It is enacted as a special law in addition to, and not derogation with any other law in force. Therefore, the dispute herein is a consumer dispute and complainants are the consumers of the opposite party. First point is answered not in favour of opposite parties. 6. Point Nos.2 & 3 in O.P.36/05: The second complainant was examined as PW1 and marked Exts.A1 to A6. Ext.A1 is the power of attorney executed by the complainant. Ext.A2 is the copy of the plaint filed before the Arbitration proceedings. Ext.A3 is the 7 chitty receipts issued by the opposite party. Ext.A4 is the office copy of Advocate Notice dated 22.07.2004. Ext.A5 is the acknowledgment card of Ext.A4. Ext.A6 is the statement of account of interest prepared and submitted by the complainant. PW1 was cross-examined by the opposite party. 7. Evidence of the opposite party consists of the proof affidavit filed by the opposite party along with certain documents. He was examined as DW1 and marked as Exts.B1 to B6. Ext.B1 is the agreement executed by the complainant and opposite party. Ext.A2 is the receipt of accepting Rs.16,000/- from opposite party’s Mutual Benefit Fund. Ext.B3 is the application for the amount from Mutual Benefit Fund dated 28.02.2001. Ext.B4 is the attested copy of Members’ Mutual Benefit Fund Ledger. Ext.B5 is the statement of account of complainant produced by opposite party. Ext.B6 series are the reply notice, postal receipt and acknowledgment card. Opposite party was cross-examined by the complainant. 8. On the basis of the averment and contention of the parties, we have perused the entire materials on record. It is pertinent to note that as per Ext.B1, complainant has entered into an agreement to pay 18% interest for the defaulted instalments of Members’ Mutual Benefit Fund. Complainant admitted the execution of Ext.B1. Therefore, there is no basis in complainant’s claim for 12% interest rate. 9. It is seen that Ext.A6 calculation is not convincing in the light of Ext.B5. It is also noted that as per Ext.B5, opposite party realised only Rs.1,255/- even though the actual calculated interest amount at the rate of 18% is Rs.1,503-65. Therefore, an amount of Rs.248-65 is deducted from the interest amount. But this deduction is not mentioned either in version or Ext.B6 reply notice. It is presumed that the deduction stated in Ext.B5 is an after thought for tallying the interest amount. Therefore, the actual interest rate is not based on Ext.B1. The opposite party has not authorised to fix the rate of interest arbitrarily. The rate of interest is determined by the Co-operative Department as per the direction and policy of Reserve Bank of India and Government. This fact is also clear in DW1’s deposition, which is as follows: “Department AwKoImct¯msSbmWv ]eni \nn¡p¶Xv. ]enisb kw_¨ Department k#161;peDv. BbXv lmPcm¡mw. ]eni \nc¡v ImemIme§fn amdns¡mncn¡pw. Reserve Bank sâ Xocpam\§{]ImcamWv C§s\ ]eni \nn¡p¶Xv.” 10. Even though complainant has serious dispute regarding the rate of interest, he has not taken any step for directing the opposite party to produce the circular regarding the guidelines for imposing the rate of interest in times of defaulting the Mutual Benefit Fund. In the absence of such material, we are inclined to find that whether the interest rate realised by opposite party is excess or not. Therefore, in the absence of better evidence, we cannot find any deficiency on opposite party. Hence complaint is not allowable. 11. Point Nos. 2 & 3 in O.P.37/05: The complainant was examined as PW1 and marked Exts.A1 and A2. Ext.A1 is the copy of the plaint filed before the Arbitration proceedings. Ext.A2 is the statement of account of interest prepared and submitted by the complainant. Complainant was cross-examined by opposite party. 12. Evidence of the opposite party consists of the proof affidavit filed by the opposite party along with certain documents. The documents produced were marked as Exts.B1 to b6. Ext.B1 is the agreement executed by the complainant and opposite party. Ext.B2 is the receipt of accepting Rs.14,000/-. Ext.B3 is the application for the amount from Mutual Benefit Fund dated 06.08.2001. Ext.B4 is the returned envelope of reply notice. Ext.B5 is the attested copy of Members’ Mutual Benefit Fund Ledger. Ext.B6 is the statement of account of complainant produced by opposite party. 13. On the basis of the averment and contention of the parties, we have perused the entire materials on records. It is pertinent to note that as per Ext.B1, complainant has entered into an agreement to pay 18% interest at the time of defaulting the instalment of Members’ Mutual Benefit Fund. The complainant also admitted the execution of Ext.B1. Therefore, there is no basis in complainant’s claim for 12% interest. 14. It is seen that Ext.A2 calculation is not convincing in the light of Ext.A6. It is also noted that as per Ext.B6, opposite party realised only Rs.1,413-15 even though the actual calculated interest amount at the rate of 18% is Rs.1,158/-. Therefore, an amount of Rs.355/- is deducted from the interest amount. But this deduction is not mentioned in version. It is presumed that the deduction stated in Ext.B6 is an after thought for tallying the interest amount. Therefore, the actual interest rate is not based on Ext.B1. The opposite party has not authorised to fix the rate of interest arbitrarily. The rate of interest is determined by the Co-operative department as per the direction and policy of Reserve Bank of India and Government. This fact is clear in DW1’s deposition, which is stated in O.P.36/05. 15. Even though complainant has serious dispute regarding the rate of interest, he has not taken any step for directing the opposite party to produce the circular regarding the guidelines for imposing the rate of interest in times of defaulting the Mutual Benefit Fund. In the absence of such material, we are unable to find that whether the interest realised by opposite party is excess or not. Therefore, in the absence of better evidence, we cannot find any deficiency on opposite party. Hence complaint is not allowable. 16. In the result, the above two complaints are dismissed. No cost. Pronounced in the Open Forum on this the 25th day of May, 2010. (Sd/-) N. Premkumar, (Member) Sri. Jacob Stephen (President) : (Sd/-) Smt. C. Lathika Bhai (Member) : (Sd/-) Appendix: 1. O.P. 36/05: Witness examined on the side of the complainant: PW1 : P.N. Sasidharan Pillai. Exhibits marked on the side of the complainant. A1 : Power of Attorney executed by the complainant in favour of Sri. N.P. Sasidharan Pillai dated 22.06.2006. A2 : Plaint filed by the opposite party before the Asst. Registrar of Co- operative Societies, Pathanamthitta dated 23.03.2004. A3 : } A3(a) : } A3(b) : } A3(c) : } Mutual Fund Receipts (7 in number) A3(d) : } A3(e) : } A3(f) : } A4` : Photocopy of the Advocate Notice dated 22.07.2004 issued by the complainant to the opposite party. A5 : Acknowledgment card of Ext.A4. A6 : Statement of account of interest prepared and submitted by the complainant. Witness examined on the side of the opposite party. DW1 : A.G. Purushothaman. Exhibits marked on the side of the opposite party. B1 : Agreement dated 23.03.2001 executed by the complainant and opposite party. B2 : Receipt of accepting Rs.14,000/-. B3 : Application for the amount from Mutual Benefit Fund dated 28.02.2001. B4 : Photocopy of the Members’ Mutual Benefit Fund Ledger. B5 : Statement of account of complainant produced by opposite party. B6 : Copy of reply notice dated 11.08.2004 issued by the opposite party to the complainant’s counsel. B6(a) : Postal receipt of Ext.B6. 2. O.P.37/05 Witness examined on the side of the complainant: PW1 : N.P. Sasidharan Pillai. Exhibits marked on the side of the complainant. A1 : Plaint filed by the opposite party before the Asst. Registrar of Co- operative Societies, Pathanamthitta dated 23.03.2004. A2 : Statement of account of interest prepared and submitted by the complainant. Witness examined on the side of the opposite party : Nil. Exhibits marked on the side of the opposite party. B1 : Agreement dated 04.09.2001 executed by the complainant and opposite party. B2 : Receipt dated 04.09.2001 for accepting Rs.14,000/-. B3 : Application for the amount from Mutual Benefit Fund dated 06.08.2001. B4 : Returned envelope of reply notice. B5 : Photocopy of Members’ Mutual Benefit Fund Ledger. B6 : Statement of account of complainant produced by opposite party. (By Order) Senior Superintendent. Copy to:- (1) P. Santhamma, Rajani Nivas, Palamaroor Muri, Pramadom Village. (2) N.P. Sasidharan Pillai, -do. –do. (3) Secretary, Kumbazha Service Co-operative Bank Ltd. No. 330, Kumbazha, Pathanamthitta. (4) The Stock File.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
