By Sri. MOHANDASAN.K, PRESIDENT
1. The complaint in short is as follows: -
The original complainant Mr. Santhosh Kumar who died subsequently was a gold worker and for construction of a house, he pledged his document of 13.5 cents of land along with incidental documents for availing loan from the opposite party. The complainant was laid up and so he could not repay the loan and thereby the opposite party filed ARC 134/2011 before Co-operative Arbitration Court, Ponnani and the same was allowed. Thereafter the opposite party filed EP 91/2015 before the Court of the Munsiff Magistrate of Ponnani to execute the order in ARC 134/2011. The complainant appeared before the court and paid the entire amount. The opposite party reported the same before the Court. On 14/06/2018 the Munsiff court recorded full satisfaction and there by the EP was closed. The complainant approached opposite party for the documents and the employees directed the complainant to meet the President of the opposite party and to pay Rs. 60,000/-(Rupees Sixty thousand only). On enquiry with the employees, it was learned that the documents produced before the opposite party has been lost and that is the reason for demanding payment of further amount of Rs. 60,000/-(Rupees Sixty thousand only). The complainant submits that, he is not liable to pay anything to the opposite party and the opposite party already realized huge amount from the complainant. The complainant submitted that he had repaid Rs. 1,00,000/-(Rupees One lakh only) to the bank and thereafter Rs. 3,50,000/-(Rupees Three lakh and fifty thousand only) paid through the Court. His grievance is that even after recording full satisfaction, the opposite party not issuing the document. Hence the prayer of the complainant is that to return the documents pledged by the complaint before the opposite party along with basic document and other incidental documents.
Complainant also pray for compensation of Rs. 2,00,000/- (Rupees Two lakh only) and also cost.
2. On admission of the complaint notice was issued to the opposite party and he entered appearance, filed version denying the averment in the complaint. According to him the complaint is not maintainable and the complainant is not a consumer as defined under Section 2(1) of the Consumer Protection Act 1986. It is submitted that if there is any disputes in connection with an execution proceedings it is not proper to adjudicate by the Consumer Commission. The contention of the opposite party is that the nature of complaint is to execute an order and an execution petition which is pending before Munsiff Court. The opposite party contented that Consumer Forum is not a competent authority to execute anything regarding dealt by Munsiff court.
3. The opposite party contended that, they approached Co-operative Arbitration Court, Ponnani as ARC 134/2011 for realisation of debt amount of Rs. 2,32,268/-(Rupees Two lakh thirty two thousand two hundred and sixty eight only) and the co-operative Arbitration Court passed an order of award on 4/08/2011 for Rs. 3,04,512/- (Rupees Three lakh four thousand five hundred and twelve only) with 14% of future interest. Thereafter opposite party filed execution petition before the Munsiff Court Ponnani for the realisation of an amount of Rs. 3,04,512/- (Rupees Three lakh four thousand five hundred and twelve only) with future interest of 14%. The complainant had paid Rs. 1,91,244/- (Rupees One lakh ninety one thousand two hundred and forty four only) in execution proceedings and Rs. 98,260/-(Rupees Ninety eight thousand two hundred and sixty only) was directly to the bank. The contention of the opposite party is that, the complainant has to pay balance of decree amount along with future interest at the rate of 14%. The opposite party admitted that, the executing court of Munsiff Ponnani had recorded full satisfaction. But it is submitted that after verification it was found that there was due as per Bank account. The bank has initiated proceedings for realising the amount. As per the records of the bank, loan has not settled. The calculations in the complaint are not correct. The bank has no intention to grab more amounts from the complainant. Hence the prayer of the complainant cannot be allowed and the complaint be dismissed.
4. The complainant filed affidavit and documents. Complainant documents marked as Ext.A1 to A3. Ext. A1 is copy of Proceeding sheet in EP/91/2015 in ARC 134/2011, Ext. A2 is Original Pass Book, Ext. A3 is copy Order in EP 91/2015 in ARC 134/2011 dated 04/06/2018. Then the complaint was posted for the affidavit of the opposite party. From 25/10/2019 onwards the complaint was posted for affidavit of the opposite party and finally on 19/04/2021 no affidavit for the opposite party recorded and thereafter the complainant was heard and taken for orders.
5. The following points arise for consideration: -
- Whether the complaint is maintainable?
- Whether there is deficiency in service on the part of the opposite party?
- Relief and cost.
6. Point No.1
Even though the opposite party not filed affidavit and documents we have perused the version submitted by the opposite party. The contention in the version is that an execution proceeding is spending before the Munsiff Court Ponnani and then the District Consumer disputes Redressal Commission is not a competent Authority to deal with the disputes. The issue between complainant and opposite party is in respect to an execution proceeding. But on perusal of complaint, affidavit and documents the disputes is with respect to non-releasing documents pledged before the opposite party after closing the entire loan amount. Hence we do not filed any merit in the contention of the opposite party in the version and we hold the complaint is maintainable and District Commission has got authority to entertain the complaint.
7. Point No.2
The submission of the complainant is that after pledging documents with the opposite party availed loan for construction of a house. The availed loan amount was Rs. 2,00,000/-(Rupees Two lakh only). The complainant could not repay the loan amount since he was laid up. The opposite party filed ARC 134/2011 before Co-operative Arbitration Court and an order of award passed also. The complainant submit that he paid Rs 100,000/-(Rupees One lakh only) directly to the opposite party. Thereafter the balance amount was paid before the Munsiff Court as part of execution proceedings in EP/91/2015 before Munsiff Court, Ponnani. On 4/06/2018 Execution proceedings were closed recording full satisfaction. The complainant produced Ext. A3 the order of Munsiff Court in EP/91/2015 in ARC 134/2011 which reveals that the opposite party has received entire amount and full satisfaction has been recorded. Ext. A1 is the copy of proceedings sheet in EP/91/2015 which also established that the entire amount has been received by the opposite party. So, it can be seen that the case of the complainant stands proved through the affidavit and documents. There is no contra evidence against the contention of the complainant. The opposite party though contented that there are proceedings pending in the matter but it is not established through documents or through affidavit. Hence there is no merit in the contention of the opposite party.
8. Point No.3.
It can be seen that the complainant availed loan for construction of a house and due to ailment and financial stringency he could not repay the loan amount. The opposite party naturally initiated legal proceedings to realise the loan amount. The complainant paid the entire amount and as per record the loan closed on 4/6/2018 and it is evident from Ext. A3. The prayer of the complainant is to issue documents pledged before the opposite party. The complainant is entitled to get back the document. He approached the opposite party several times. The complainant stated in the affidavit that some of the employees stated that the document has been missed from the opposite party. But the opposite party is silent on the issue of missing of the documents. It cannot be treated as bonafide stand taken by the opposite party in the matter. At present there are no documents or facts before the commission to arrive a conclusion that the documents stand missed. If the allegation of missing of document is correct the opposite party is bound to provide adequate compensation and other reliefs to the complainant. At present in the absence contention from the side of opposite party , the Commission do not treat the documents involved in the complaint as missed or lost. Considering the affidavit and documents of the complainant and also the averment in the version of opposite party, it appears the prayer of the complainant is just and reasonable and so we allow the complaint as follows.-
- The opposite party is directed to return all the documents of the complainant pledged before the opposite party for availing the loan.
- The opposite party is directed to pay Rs. 2,00,000/- (Rupees Two lakh only) as compensation to the complainant on account of deficiency in service and there by caused inconvenience and hardship to the complainant.
- The opposite party is directed to pay Rs. 10,000/-(Rupees Ten thousand only) as cost to the complainant .
The opposite party shall comply this order within 30 days from the date of receipt of copy of this order, failing which the opposite party shall be liable to pay 12% interest per annum for the above said amount from the date of this order till realization.
Dated this 24thday of January, 2022.
