Kerala

Idukki

CC/133/2022

Hari priya Murali - Complainant(s)

Versus

Urban co-operative society - Opp.Party(s)

26 Oct 2023

ORDER

DATE OF FILING : 30/08/2022

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 26^th day of October 2023

Present :

              SRI.C.SURESHKUMAR                                               PRESIDENT

              SMT.ASAMOL P.                                                          MEMBER

              SRI.AMPADY K.S.                                                        MEMBER

CC NO.133/2022

Between

Complainant                       : 1 . Hari Priya Murali, D/o Muraleedharan M.T.,        

                                                   Residing at Murali Sadhanam,

                                                   Karunapuram Kara, Karunapuram Village,

                                                   Udumbanchola Taluk, Idukki District.

                                              2 . Hari Krishnan M., S/o Muraleedharan M.T.,

                                                   Residing at Murali Sadhanam,

                                                   Karunapuram Kara, Karunapuram Village,

                                                   Udumbanchola Taluk, Idukki District.

                                              3 . Sreekala, W/o Muraleedharan M.T.,

                                                   Residing at Murali Sadhanam,

                                                   Karunapuram Kara, Karunapuram Village,

                                                   Udumbanchola Taluk, Idukki District.

                                              4 . Vishnu Priya R., D/o Rejikumar M.T.,

                                                   Residing at Murali Sadhanam,

                                                   Karunapuram Kara, Karunapuram Village,

                                                   Udumbanchola Taluk, Idukki District.

                                              5 . Vishnu Prasad, S/o Rejikumar M.T.,

                                                   Residing at Murali Sadhanam,

                                                   Karunapuram Kara, Karunapuram Village,

                                                   Udumbanchola Taluk, Idukki District.

                                              6 . Shailaja Rejikumar, W/o Rejikumar M.T.,

                                                   Residing at Murali Sadhanam,

                                                   Karunapuram Kara, Karunapuram Village,

                                                   Udumbanchola Taluk, Idukki District.

                                                        (All by Adv.Nikhil Kareth)

 

 

 

 

                                                           And

Opposite Parties                     :  Nedumkandam Urban Co-Operative Society,              

                                                  Nedumkandam Kara, Karunapuram Village,

                                                  Udumbanchola Taluk, Idukki District,

                                                  Represented by its Secretary.

                                                   (By Adv.Shiji Joseph)

                                                         

O R D E R

SMT.ASAMOL P., MEMBER

 

Complainant filed this complaint under Sec.35 of Consumer Protection Act 2019.  Brief facts of this complaint are discussed hereunder:- 

1 . Complainants 1 to 3 are the legal heirs of late Sri.Muraleedharan  M.T., S/o Thankappan Achari and complainants 4 to 6 are the legal heirs of Late Sri.Rejikumar M.T., S/o Thankappan Achari.  Sri.Muraleedharan M.T. and Sri. Rejikumar M.T. before  their death during the year 2005 had availed two loans from the opposite party for Rs.1,00,000/- (One Lakh each only) each by depositing Will Deed No.20/1992 of S.R.O Udumbanchola as security.  The loans of Sri.Muraleedharan M.T. and Sri.Rejikumar M.T. was numbered as 38/05 and 39/05 respectively.

2 . Complainants who are the legal heirs of Sri.Muraleedharan M.T., and Sri.Rejikumar M.T. had paid an amount of Rs.3,00,000/- (Rupees Three Lakh only) to the opposite party on 10/09/2021 towards the above said loans.

3 . Complainants thereafter on 20/06/2022 approached the opposite party for closing the said loans but the opposite party was hesitant to close the said loan due to the reason that they Will Deed No.20/1992 of S.R.O Udumbanchola deposited as security for the loans availed is missing due to the negligence of the opposite party.

4 . Opposite party purposefully for making unlawful gain is not closing the loans bearing No.38/05 and 39/05.  The Will Deed No.20/1992 of S.R.O Udumbanchola deposited as security for the said loans is lost only due to the negligence of the opposite party.  Opposite party is liable to return the said will deed to the complainants after receiving the balance amount due in the loan account.  The act of the opposite party is unfair trade practice and gross deficiency in service.

5 . The act of the opposite party had caused irreparable injury and hardship to the complainants.  The complainants sustained huge loss of money and mental agony due to the illegal act of the opposite party and the opposite party is under liability to compensate the same.  Hence, complainants are prayed the following reliefs.

1 . Allow the complainants to close the loans bearing No.38/05 and 39/05 with the opposite party and to receive the Will Deed No.20/1992 of S.R.O Udumbanchola deposited as security for the loans.

2 . Allow the complainants to receive an acknowledgement from the opposite party that they Will Deed No.20/1992 of S.R.O Udumbanchola deposited as security for the loans bearing No.38/05 and 39/05 with them was lost.

3 . Allow the complainants to realize Rs.2,00,000/- (Rupees Two Lakhs only) towards negligence.

4 . Allow the complainants to realize Rs.1,00,000/- (Rupees One Lakhs only) as compensation towards deficiency in service.

5 . Allow the complainants to realize sum of Rs.25,000/- towards damages and mental agony sustained and Rs.10,000/- towards the cost of this complaint.

 

Upon notice from this Commission, opposite party has entered for appearance. Written version is filed by opposite party.  Their contentions are discussed hereunder:-

1 . All the averments and allegations in the complaint, except those that are specifically admitted or otherwise dealt with hereunder, are denied as false frivolous and vexatious.

2 . All the averments in Para 1 and 2 of the complaint are not fully correct hence denied.  It is true that Sri.Muraleedharan and Sri.Rejikumar availed 2 loans of Rs.1 Lakh each.  Both the loans are in default.

3 . All the averments in Para 3 and 4 are not fully correct hence denied.  It is true that Rs.3 Lakhs was remitted in the loan.  The averment that the complainants approached for closing  the loan and for the reason that the original will is missing hence the opposite party did not allow the complainants to close the loan is false hence denied.

4 . The loan was availed in the year 2005 and for many years the loans were in default.  Hence the opposite party initiated arbitration proceedings in the year 2014.  The opposite party has filed ARC No.3401/2014 and 3403/2014 for recovering the loan.  For filling the Arbitration case, the loan files were sent to the arbitrator.  During the transit of the files, the original will is misplaced.  The opposite party is trying to search it out.

5.  Opposite party told complainants that he would meet the expenses to obtain the certified copy of the will and also bear expenses for giving public notice through newspapers regarding the loss of original will.  The complainants are liable to pay more than Rs.3 Lakhs in both loans and  complainants are not ready to pay the same.

6 . The allegation that will was lost due to the negligence of  opposite party is false.  The will is misplaced and the opposite party hopes it could search it out soon.

7 . The opposite party has not committed any deficiency in service as alleged by the complainants.  Until the loan is fully paid, the complainants have no right to claim the original will.  The complainants filed the complaint as an experimental one.  The intention of the complainants is not to pay the balance loan amount outstanding in the account of Sri.Muraleedharan and Rejikumar.

8 . Hence, it is respectfully prayed that this Hon’ble Commission may be pleased to dismiss the complaint.

Thereafter, this case was posted for evidence of complainants.  1^st complainant has filed proof affidavit.  She was examined as PW1.  3 documents were produced and marked as Exts.P1 to P3.  Complainant was not cross-examined.  Because, opposite party or his counsel was not present.  Even though opposite party has filed written version, no evidence adduced by them.  Heard the counsel for complainants.  Thereafter, it was taken for orders.  Now the points which arise for consideration are:-

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

2 . If so, what reliefs the complainant is entitled for?

3 . Final order and costs?

Points are considered together

Complainants has filed proof affidavit.  She was examined as PW1.  Exts.P1 to P3 were marked on the part of complainant’s evidence.  We have carefully perused proof affidavit and marked documents.  Complainants are six persons who are the legal heirs of Late Sri.Muraleedharan M.T. and Late Sri.Rejikumar M.T.  Two loans were availed by Sri.Muraleedharan M.T. and Sri.Rejikumar M.T. by depositing Will Deed No.20/1992 of SRO, Udumbanchola as security from opposite party.  Complainants allege that after  death of the above said persons, opposite party was hesitant to close the loan due to the reason that  Will Deed is missing.  We have carefully perused Ext.P1 ie, the copy of will deed No.20/1992 of SRO, Udumbanchola. As per this Ext.P1, it finds that Late Sri.Muraleedharan M.T., had received ‘A’ list properties and Late Sri.Rejikumar M.T. had received ‘B’ list properties.  Complainants have produced inheritance certificates.  Ext.P2 is the copy of inheritance certificate of 4^th, 5^th and 6^th complainants.  Ext.P3 is the copy of inheritance certificate of 1^st , 2^nd and 3^rd complainants.  Both the certificates are issued by Thahsildar, Udumbanchola Taluk office.  On the perusal of these Exts.P2 and P3 documents, it is evident that complainants are the legal heirs of Late Sri.Muraleedharan M.T. and Late Sri.Rejikumar M.T.  Opposite party has filed written version.   But, they have not adduced any evidence against the contentions of complainants.  Opposite party stated in written version that the loan was availed in the year 2005 and it was in default, and in the year 2014 arbitration proceedings were initiated against it and the loan files were sent to the arbitrator, during the transit of files, the original will is misplaced.  Opposite party also states that complainants are liable to pay more than 3 Lakhs in the loan.  Moreover, opposite party has not a case that these complainants are not legal heirs of the deceased persons who were availed loan from them.  According to complainants, they are ready to close the loan, but they wanted original will deed which was deposited  in the bank as a security for the loan.   Opposite party has not adduced evidence to prove the contention that complainants are liable to pay more than Rupess 3 lakhs into loan account.  It is not evident that how much amount is to be paid by complainants.  However, complainants have stated that they are ready to pay the balance due in the loan account.  But, since the original of the will deed was missing, closing of loan account was not possible.   If complainants pay the due amount, opposite party is liable to return the original of the said will deed.  Otherwise, complainants are entitled to get compensation from opposite party.  This is a negligent act of opposite party that the missing of original will deed which was deposited in the bank.  We are of the opinion that opposite party bank certainly should have kept the documents which were deposited as a security for the loans.  Here, opposite party has acted carefully and negligently in keeping the original will deed.  This is a service deficiency on the part of them.  However, until the due amount fully paid and close the loan by complainants, opposite party has right to retain the will deed deposited as a security.  Whereas, when complainants demand to close the loan account, opposite party is liable to closing it and return the documents to them.  Under these circumstances, we are of the considered view that complainant is entitled to get the reliefs prayed in the complaint.

 In the result, complaint is allowed in part as hereunder:-

1 . Opposite party is directed to allow complainants for closing the loans bearing No.38/05 and 39/05 and return the Will Deed No.20/1992 of SRO, Udumbanchola to complainants.  After closing these loans, if it is not possible to return the Will Deed since it was lost, opposite party should give an acknowledgement receipt to complainants that the Will was lost from opposite party.

2 . If the original Will is not returned to complainants upon closure of loans, opposite party shall pay Rs.2,00,000/- as compensation to complainants.  Opposite party will also give an amount of Rs.5,000/- as cost of litigation to complainants.  All the directions shall be complied within  45 days from the receipt of copy of this order, failing which, all the amounts except cost of litigation shall carrying 12% per annum from the date of order till its realisation.

Parties shall take back extra copies without delay.

 

       Pronounced by this Commission on this the 26^th day of October 2023.

 

                                                                                                                                                                                                                            

                                                                                               Sd/-                                                          

                                                                         SMT.ASAMOL P., MEMBER

                                                                                               Sd/-

                                                                   SRI.C.SURESHKUMAR, PRESIDENT

                                                                                              Sd/-

                                                                           SRI.AMPADY K.S., MEMBER

 

 

 

 

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1 – Haripriya Murali

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1  -  Copy of will deed No.20/1992 of SRO, Udumbanchola.

Ext.P2  -  Copy of legal heirs of Late Sri.Rejikumar M.T. 

Ext.P3  -  Copy of legal heirs of Late Sri.Muraleedharan M.T.

On the side of the Opposite Party :

Nil

                                           

 

                                                                                                Forwarded by Order  

 

 

                                                                                        ASSISTANT REGISTRAR