Senbagaraman and Others Vs. Thiru.Anbalagan and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1109640
CourtTamil Nadu State Consumer Disputes Redressal Commission SCDRC Chennai
Decided OnApr-06-2011
Case NumberF.A.Nos.46/2008 & 52/2008 [Against order in C.C.No.23/2006 on the file of the DCDRF, Nagapattinam]
JudgeTHIRU A.K. ANNAMALAI, M.A., M.L., M.PHIL., PRESIDING MEMBER JUDICIAL & TMT. VASUGI RAMANAN, M.A., B.L., MEMBER
AppellantSenbagaraman and Others
RespondentThiru.Anbalagan and Others
Excerpt:
the appellant as complainant filed a complaint before the district forum, nagapattinam, alleging deficiency against the opposite parties to pay either the cost of the day of jewel for the a/c.no.16/22 and 14/65 which were illegally sold through auction or directing them to return the jewels, to pay rs.1,20,000/- as compensation and other costs. the district forum, allowed the complaint in part against the opposite parties1 and 2. against the said order, this appeal is preferred by the complainant, praying to enhance the compensation of the order of the district forum, nagapattinam, dated 20.12.2007 in c.c.no.23/2006. this appeal coming before us for hearing finally on 18.03.2011, upon hearing the arguments of the counsel on appellant side, and perused the documents, written submissions as well as the order of the district forum, this commission made the following order :- common order a.k.annamalai, presiding member judicial f.a.46/08 : the complainant is the appellant. f.a.52/08 : the opposite parties 1 and 2 are the appellants. 2. the complainant filed a complaint against the opposite parties claiming for the reliefs of payment of present market rate for the jewels pledged by the complainant which was wrongly sold in auction and to pay a sum of rs.1,20,000/- by opposite parties as compensation for the mental agony and for the loss and to pay for cost and other reliefs. 3. the complainant case in brief as per the complaint is as follows :- the complainant was having sb account with 1st opposite party and obtained to jewel loans in account nos.14/22 for rs.9,800/- and 14/65 for rs.9,000/- by pledging jewels to the extent of approximately 40.5 gram and 43 gram respectively and also the complainants mother obtained agricultural loan for rs.16,500/-. on 12.2.05 the bank has sent a legal notice for the repayment of agricultural loan and two jewel loans and thereby the complainant has sent a complaint regarding the false notice sent by 1st opposite party and thereafter complainant filed a suit in o.s.68/05 praying for not to sell the jewels for the time barred debt for the agricultural loan and for the declaration regarding the alleged revival letters and also gave a complaint to the police informing the alleged public auction regarding the jewels for the time barred debt and for fabrication of false records and thereby subsequently for taking criminal action against 1st opposite party the complainant asked for permission from 2nd opposite party and subsequently he came to know that the jewels were auctioned on 12.3.05 and for which the complainant sent a notice asking for particulars of the purchaser of the jewels and thereby there was deficiency of service on the part of the opposite party and hence come forward with this complaint claiming for the above said reliefs. 4. the 1st opposite party filed written version adopted by the 2nd opposite party in which the allegations are denied except the admissions of the borrowing of loan by the complainant and it is stated that the complainant refused to renew the debts or to redeem the jewels in spite of the communication sent and thereby the complainant has taken various action by filing police complaint and civil suit, legal notice etc. but the interim petition filed in the civil suit was dismissed and the jewels were sold on 12.3.05 and the sale proceeds were given credit to the loan accounts of the complainant and his mother with intimation before filing the civil suit by opposite party regarding the crop loan the complainant withdrew the civil suit filed by him. the complainant filed the complaint against the 1st opposite party in the personal name and not against branch manager itself liable to be rejected complainant himself shown as an advocate which is irregular aspect in the eye of law and willfully suppressed relevant material facts. 5. on the basis of the materials placed by both parties after an enquiry district forum allowed the complaint in part by directing the 1st opposite party to pay a sum of rs.20,000/- as compensation for the service deficiency and for the sufferings from the 1st opposite party besides rs.2,000/- as litigation cost to be payable by the 1st opposite party. 6. aggrieved by the order of the district forum both the complainant and the opposite parties have come forward with these appeals, in f.a.46/08 and 52/08 respectively. the complainant praying for all the reliefs as prayed for in the complaint and the opposite parties praying for to set aside the district forum order. 7. since both the appeals arose on the basis of the order passed in c.c.no.23/2006 dated 20.12.07 of the nagapattinam district forum and the parties are one and the same both the appeals are taken up together for hearing and after hearing the complainant in these appeals and as the appellant in f.a.52/2008 who are opposite parties failed to represent before this commission for final hearing and upon perusal of bothsides materials and the complainants side arguments this commission is passing the orders on merits. 8. it is the admitted case of the bothsides that the complainant was having sb account with 1st opposite party and availed two jewel loans in 2002 and also his mother was having one copy loan in the year 2001 and as per the complaint the crop loan was availed in 2001 in which he was a guarantor and on the basis of the dues for the crop loan which was time barred in the year 2001 itself, the 1st opposite party attempted to collect the loan amount by threatening to sell the jewels pledged and availed in two jewel loans nos.14/22 and 14/65. during the year 2002 by sending a legal notice exhibit a3. for this complainant opposed the same and also sent various notices and a complaint to the police in exhibit a8 and also filed a suit in o.s.no.68/05 before the district munsif, nagapattinam. as per the affidavit in exhibit a6 in which in ia 141/2005 the opposite party filed a counter in exhibit a7 in the civil suit the complainant prayed for injunction restraining the opposite party not to sell the jewels and for declaration regarding the revival letters relating to the loans and subsequently the case was withdrawn by the complainant as per the order in exhibit b3 dated 28.3.05 dismissed as not pressed. 9. in that circumstances from the opposite parties stated that a civil suit in o.s.91/2005 against the complainant and his mother for the recovery of crop loan and in which the complainant also filed his written statement as per exhibit a14 in which he has alleged all the details as alleged in the complaint and as from those documents it is not in dispute that the opposite parties have taken steps for the recovery of loan lawfully by sending legal notice etc., and then filed the suit which is pending in which complainant is a party. in those circumstances the district forum has passed an order for compensation for the deficiency of service only on the basis of a petition during pendency of the enquiry filed by the complainant for furnishing details of the auction purchaser of the jewels from the bank in cmp no.23/2006 and in that cmp as the opposite party was not able to produce those documents as called for by taking adverse inference by the district forum and by relying upon the judgment reported in 2006 (1) ctc page 159, 2007 (3) ctc page 59 the same rulings are relied before this commission also by stating when the court directs person he produce against has not produced adverse in favour can be drawn. witness not entering witness box after filing statement of oath can also be a cause for adverse inference and on those basis for non production of the documents relating to the auction of jewels the district forum deviating from the main reliefs sought for by the complainant ordered compensation of rs.20,000/- alone on that basis and the complainant also has come forward for the enhancement of compensation as prayed for to the extent of rs.1,20,000/- by way of appeal in f.a.no.46/2008. 9. while considering the grounds of appeal by the opposite parties in f.a.no.52/2008it is stated that for the petition to produce the records relating to the auctioning of the pledged jewels the bank has filed a suitable reply stating that those documents are unnecessary to decide the suit and without considering the civil suit is pending before the appropriate court regarding the issue the district forum invoked the adverse inference and the copy of the plaint in o.s.91/2005 (exhibit a13) which would reveal the entire necessary facts and particulars for the adjudication of the complaint and therefore there is no need for drawing adverse inference as against the opposite parties and categorizing these as a deficiency of service which would not amount to deficiency of service as defined under the act. these plea cannot be brushed aside simply because the opposite party failed to produce the details relating to the appellant auctioned jewels in the case. the opposite parties in every stage acted as per law regarding the loan matters and the complainant also from the beginning has taken various steps and the disputes relating to the time barred debt genuineness of the documents relating to the revival letters alleged to have been issued by the complainant and his mother, and disputed the date regarding the issue of crop loan in order to determine the limitation for claiming the repayment of loan etc., are all the matters to be decide only before a civil court for which already the opposite party have filed a suit in o.s.91/2005 before the district munsif, nagapattinam and also the complainant filed asuit in o.s.68/2005 in which subsequently he has withdrawn the suit as per exhibit b3. in those circumstances the complainant has seen from the letter exhibit a5 sent by him to the branch manager, first opposite party seeking for details of his personal data in order to proceed against him as per exhibit b10 and b6 etc., and from those letters it is seen that the complainant is having some personal grievances against the manager of 1st opposite party bank and thereby he has chosen to proceed against him only by name as 1st opposite party instead of proceeding against the branch manager of 1st opposite party and in the circumstances the bank also communicated a letter in exhibit b9 dated 3.3.05 in which the complainant was also requested to settle all the loans including jewel loans and the value of the jewel also mentioned as rs.40,000/- which the same value was mentioned by the complainant in his letter exhibit b6 dated 26.2.06 and in spite of the letter sent by bank the complainant instead of settling the loans taken various civil and criminal action to avoid banks action for recovery of loans. 10. hence on perusal of entire materials from the records and as per the averments of both sides that the complainant cannot be considered to have established in deficiency of service against the opposite parties and this complaint deserves to be dismissed and since his remedies are lying before the civil court and not before the consumer disputes redressal forum and the district forum has wrongly allowed the complaint in part which is to be set aside by this appellate court and in those circumstances the appeal filed by the complainant praying for all the reliefs as prayed for in the complaint is to be dismissed. the appeal filed by the opposite parties in f.a.no.52/2008 to be allowed by setting aside the order of the district forum for the reasons as discussed above. f.a.no.52/2008 11. in the result, the appeal is allowed by setting aside the order of the district forum, nagapattinam in c.c.no.23/2006 dated 20.12.2007 and the complaint is dismissed. there will be no order as to cost in each of the appeal. the registry is directed to hand over the fixed deposit receipt, made by way of mandatory deposit, to the appellant, duly discharged. f.a.no.46/2008 12. in the result, the appeal in f.a.no.46/2008 is dismissed, in view of the complaint dismissed in f.a.no.52/2008 by allowing the appeal. there will be no order as to cost in each of the appeal.
Judgment:

The Appellant as complainant filed a complaint before the District Forum, Nagapattinam, alleging deficiency against the opposite parties to pay either the cost of the day of jewel for the A/c.No.16/22 and 14/65 which were illegally sold through auction or directing them to return the jewels, to pay Rs.1,20,000/- as compensation and other costs. The District Forum, allowed the complaint in part against the opposite parties1 and 2. Against the said order, this appeal is preferred by the complainant, praying to enhance the compensation of the order of the District Forum, Nagapattinam, dated 20.12.2007 in C.C.No.23/2006.

This appeal coming before us for hearing finally on 18.03.2011, upon hearing the arguments of the counsel on appellant side, and perused the documents, written submissions as well as the order of the District Forum, this Commission made the following order :-

COMMON ORDER

A.K.ANNAMALAI, PRESIDING MEMBER JUDICIAL

F.A.46/08 :

The complainant is the appellant.

F.A.52/08 :

The opposite parties 1 and 2 are the appellants.

2. The complainant filed a complaint against the opposite parties claiming for the reliefs of payment of present market rate for the jewels pledged by the complainant which was wrongly sold in auction and to pay a sum of Rs.1,20,000/- by opposite parties as compensation for the mental agony and for the loss and to pay for cost and other reliefs.

3. The complainant case in brief as per the complaint is as follows :- The complainant was having SB Account with 1st opposite party and obtained to jewel loans in account Nos.14/22 for Rs.9,800/- and 14/65 for Rs.9,000/- by pledging jewels to the extent of approximately 40.5 gram and 43 gram respectively and also the complainants mother obtained agricultural loan for Rs.16,500/-. On 12.2.05 the bank has sent a legal notice for the repayment of agricultural loan and two jewel loans and thereby the complainant has sent a complaint regarding the false notice sent by 1st opposite party and thereafter complainant filed a suit in O.S.68/05 praying for not to sell the jewels for the time barred debt for the agricultural loan and for the declaration regarding the alleged revival letters and also gave a complaint to the police informing the alleged public auction regarding the jewels for the time barred debt and for fabrication of false records and thereby subsequently for taking criminal action against 1st opposite party the complainant asked for permission from 2nd opposite party and subsequently he came to know that the jewels were auctioned on 12.3.05 and for which the complainant sent a notice asking for particulars of the purchaser of the jewels and thereby there was deficiency of service on the part of the opposite party and hence come forward with this complaint claiming for the above said reliefs.

4. The 1st opposite party filed written version adopted by the 2nd opposite party in which the allegations are denied except the admissions of the borrowing of loan by the complainant and it is stated that the complainant refused to renew the debts or to redeem the jewels in spite of the communication sent and thereby the complainant has taken various action by filing police complaint and civil suit, legal notice etc. But the interim petition filed in the Civil Suit was dismissed and the jewels were sold on 12.3.05 and the sale proceeds were given credit to the loan accounts of the complainant and his mother with intimation before filing the civil suit by opposite party regarding the crop loan the complainant withdrew the civil suit filed by him. The complainant filed the complaint against the 1st opposite party in the personal name and not against Branch Manager itself liable to be rejected complainant himself shown as an advocate which is irregular aspect in the eye of law and willfully suppressed relevant material facts.

5. On the basis of the materials placed by both parties after an enquiry District Forum allowed the complaint in part by directing the 1st opposite party to pay a sum of Rs.20,000/- as compensation for the service deficiency and for the sufferings from the 1st opposite party besides Rs.2,000/- as litigation cost to be payable by the 1st opposite party.

6. Aggrieved by the order of the District Forum both the complainant and the opposite parties have come forward with these appeals, in F.A.46/08 and 52/08 respectively. The complainant praying for all the reliefs as prayed for in the complaint and the opposite parties praying for to set aside the District Forum order.

7. Since both the appeals arose on the basis of the order passed in C.C.No.23/2006 dated 20.12.07 of the Nagapattinam District Forum and the parties are one and the same both the appeals are taken up together for hearing and after hearing the complainant in these appeals and as the appellant in F.A.52/2008 who are opposite parties failed to represent before this Commission for final hearing and upon perusal of bothsides materials and the complainants side arguments this Commission is passing the orders on merits.

8. It is the admitted case of the bothsides that the complainant was having SB account with 1st opposite party and availed two jewel loans in 2002 and also his mother was having one copy loan in the year 2001 and as per the complaint the crop loan was availed in 2001 in which he was a guarantor and on the basis of the dues for the crop loan which was time barred in the year 2001 itself, the 1st opposite party attempted to collect the loan amount by threatening to sell the jewels pledged and availed in two jewel loans Nos.14/22 and 14/65. During the year 2002 by sending a legal notice Exhibit A3. For this complainant opposed the same and also sent various notices and a complaint to the police in Exhibit A8 and also filed a suit in O.S.No.68/05 before the District Munsif, Nagapattinam. As per the affidavit in Exhibit A6 in which in IA 141/2005 the opposite party filed a counter in Exhibit A7 in the civil suit the complainant prayed for injunction restraining the opposite party not to sell the jewels and for declaration regarding the revival letters relating to the loans and subsequently the case was withdrawn by the complainant as per the order in Exhibit B3 dated 28.3.05 dismissed as not pressed.

9. In that circumstances from the opposite parties stated that a civil suit in O.S.91/2005 against the complainant and his mother for the recovery of crop loan and in which the complainant also filed his written statement as per Exhibit A14 in which he has alleged all the details as alleged in the complaint and as from those documents it is not in dispute that the opposite parties have taken steps for the recovery of loan lawfully by sending legal notice etc., and then filed the suit which is pending in which complainant is a party. In those circumstances the District Forum has passed an order for compensation for the deficiency of service only on the basis of a petition during pendency of the enquiry filed by the complainant for furnishing details of the auction purchaser of the jewels from the bank in CMP No.23/2006 and in that CMP as the opposite party was not able to produce those documents as called for by taking adverse inference by the District Forum and by relying upon the judgment reported in 2006 (1) CTC page 159, 2007 (3) CTC page 59 the same rulings are relied before this Commission also by stating when the Court directs person he produce against has not produced adverse in favour can be drawn. Witness not entering witness box after filing statement of oath can also be a cause for adverse inference and on those basis for non production of the documents relating to the auction of jewels the District Forum deviating from the main reliefs sought for by the complainant ordered compensation of Rs.20,000/- alone on that basis and the complainant also has come forward for the enhancement of compensation as prayed for to the extent of Rs.1,20,000/- by way of appeal in F.A.No.46/2008.

9. While considering the grounds of appeal by the opposite parties in F.A.No.52/2008it is stated that for the petition to produce the records relating to the auctioning of the pledged jewels the bank has filed a suitable reply stating that those documents are unnecessary to decide the suit and without considering the civil suit is pending before the appropriate court regarding the issue the District Forum invoked the adverse inference and the copy of the plaint in O.S.91/2005 (Exhibit A13) which would reveal the entire necessary facts and particulars for the adjudication of the complaint and therefore there is no need for drawing adverse inference as against the opposite parties and categorizing these as a deficiency of service which would not amount to deficiency of service as defined under the act. These plea cannot be brushed aside simply because the opposite party failed to produce the details relating to the appellant auctioned jewels in the case. The opposite parties in every stage acted as per law regarding the loan matters and the complainant also from the beginning has taken various steps and the disputes relating to the time barred debt genuineness of the documents relating to the revival letters alleged to have been issued by the complainant and his mother, and disputed the date regarding the issue of crop loan in order to determine the limitation for claiming the repayment of loan etc., are all the matters to be decide only before a civil court for which already the opposite party have filed a suit in O.S.91/2005 before the District Munsif, Nagapattinam and also the complainant filed asuit in O.S.68/2005 in which subsequently he has withdrawn the suit as per Exhibit B3. In those circumstances the complainant has seen from the letter Exhibit A5 sent by him to the Branch Manager, first opposite party seeking for details of his personal data in order to proceed against him as per Exhibit B10 and B6 etc., and from those letters it is seen that the complainant is having some personal grievances against the Manager of 1st opposite party bank and thereby he has chosen to proceed against him only by name as 1st opposite party instead of proceeding against the Branch Manager of 1st opposite party and in the circumstances the bank also communicated a letter in Exhibit B9 dated 3.3.05 in which the complainant was also requested to settle all the loans including jewel loans and the value of the jewel also mentioned as Rs.40,000/- which the same value was mentioned by the complainant in his letter Exhibit B6 dated 26.2.06 and in spite of the letter sent by bank the complainant instead of settling the loans taken various civil and criminal action to avoid banks action for recovery of loans.

10. Hence on perusal of entire materials from the records and as per the averments of both sides that the complainant cannot be considered to have established in deficiency of service against the opposite parties and this complaint deserves to be dismissed and since his remedies are lying before the Civil Court and not before the consumer Disputes Redressal Forum and the District Forum has wrongly allowed the complaint in part which is to be set aside by this appellate Court and in those circumstances the appeal filed by the complainant praying for all the reliefs as prayed for in the complaint is to be dismissed. The appeal filed by the opposite parties in F.A.No.52/2008 to be allowed by setting aside the order of the District Forum for the reasons as discussed above.

F.A.No.52/2008

11. In the result, the appeal is allowed by setting aside the order of the District Forum, Nagapattinam in C.C.No.23/2006 dated 20.12.2007 and the complaint is dismissed. There will be no order as to cost in each of the appeal.

The Registry is directed to hand over the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.

F.A.No.46/2008

12. In the result, the appeal in F.A.No.46/2008 is dismissed, in view of the complaint dismissed in F.A.No.52/2008 by allowing the appeal. There will be no order as to cost in each of the appeal.