BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 24^th December 2016

PRESENT

        SMT. C.V. SHOBHA             :  HON’BLE PRESIDENT 

        SMT.LAVANYA M. RAI        :   HON’BLE MEMBER                                         

COMPLAINT NO.52/2015

        (Admitted on 02.02.2015)

Alwyn Jayakar Menon,

Aged 52 years,

S/o Mr. D.P Menon,

Residing at Menon Compound,

Near Sangha Niketana,

Mannagudd, Mangalore 03

                                                            ……… Complainant 

(Advocate for Complainant by Sri. SNK)           

VERSUS

1. The Branch Manager,

Indian Bank, Bejai, Mangalore.

2. The General Manager,

Indian Bank, zonal office,

V.K. Kalgurigi Hall, Mare,

                   1^st floor, Pinto Road, Hubli 580029 

3. Chief Manager,

Indian Bank Customer Service cell,

Corporate office 254 260,

Avvai Shanmugam Salai,

Royapettah, Chennai 600014.

                                                              …. Opposite Parties

(Advocate for the Opposite Party No.1:Sri.AKU)

 (Advocate for the Opposite Party No.2 and 3: Ex parte)

ORDER DELIVERED BY HON’BLE PRESIDENT  

SMT. C.V. SHOBHA

1. 1. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service against the opposite parties claiming certain reliefs.

       2. The complainant prays for the order for reliefs directing the opposite parties to pay the compensation of Rs. 4,00,000/, to pay Rs, 50,000/ as damages, to pay Rs. 5,000/ as  towards expenses grant under the circumstances of the case under section 12 of C.P.Act.

II.           The brief facts of the case are as under:

          The complainant had borrowed a O.D facility under Account No. 916768348 on 01.11.2010 for Rs. 12,00,000/ for the Opposite Party No.1 by pledging the following documents.

1. Sale deed dated 18.12.2007 registered as document No.6627/2007.08.
2. Settlement deed dated 25.11.2010 registered as document No.5427/2010.11.
3. Sale deed dated 01.10.2009 registered as document No.3670/2009.10.

The complainant submits that, they have paid the entire loan amount of O.D facility of Opposite Party No.1 on 16.10.2014.  Immediately complainant gave the letter to the Opposite Party No.1 requesting to return all the pledged documents.  The complaint submits that Opposite Party No. returned the document No. C immediately and has made delay in returning document No. A and B stated above. Further submits that Opposite Party No.1 manager told that complainant to return the pass book, cheque book.  Accordingly complainant returned the pass book and cheque book to the Opposite Party No.1 on 17.10.2014.  On 17.10.2014 Opposite Party No.1 orally informed the complainant permission is required from the Zonal office Opposite Party No.2 to return the documents.  After permission form the Zonal office he will return the documents to the complainant.  Hence the above complaint is filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as the Act,) seeking direction from this FORA.

III.     Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 appeared through their counsel filed version.  Notice to Opposite Party No.2 served, inspite of that not appeared nor represented the case.  Hence Opposite Party No.2 and 3 placed exparte.        The complaint is bad for non joinder of necessary party.  Mr.Gladson Immanuel Menon and Mrs. Adaline Christabel are necessary parties to the above case since the complainant was a guarantor for the loan availed by the above persons.  The contents of para 2 of the complaint are hereby admitted.  It is denied that on 16.10.2014 the complainant paid the entire loan amount of OD facility under account No.916768348.  The said OD account was closed on 25.10.2014.  The contents of para 4 of the complaint is also admitted.  It is denied that the complainant believing the version of Opposite Party No.1 stating that documents will be immediately returned on full settlement of the loan amount, the complainant had received the advance amount from 3^rd party for sale of the property.  It is also denied that due to extra ordinary delay of Opposite Parties the purchaser of the property dropped the transaction and thereby complainant lost his good buyer and irreparable loss is caused to the complainant.  The Opposite Party never made any promise to the complainant of immediately returning the documents on full and final settlement of loan amount  by the complainant. The complainant had availed an OD facility from Opposite Party No.1 against security of certain land documents.  The complainant was also a guarantor for the loan availed by the on Mr.Gladson Immanuel Menon.  Mr.Gladson Immanuel Menon had availed the said loans against account No.6141295603 and account No.870453391 for which the complainant had tendered personal guarantee.  The complainant had executed agreement of guarantee in favour of Opposite Party No.1 in respect of the loans so availed by Mr.Gladson Immanuel Menon.  As per clause 15 of the said agreement for guarantee so long as any money remains owing under this guarantee, the bank shall have a lien on all moneys standing to the credit of guarantors and on any securities or goods in the lands of the Bank belonging to the Guarantors under its control.  Thus the Opposite Party No.1 has lien on the securities of the complainant in his capacity as a guarantor for the loans taken by Mr.Gladson Immanuel Menon till the entire loans stated above are cleared by either borrower or the guarantor. In support of the complainant One Mr. Alwyn Jayakar Menon, (CW1) complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and produced the document same has been marked as Ex C1 to C10. One Mr. A.Sudhakara, (RW1) of Opposite Party No.1 filed their counter affidavit and answered the interrogatories and interrogatories and produced the document got marked Ex R1 to R3.

IV.    In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complainant proves that  there is a deficiency  of service on the part of the Opposite
2. If so, for what relief and from whom the complainant entitled?
3. What order? 

We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:.

Point No. (i) and (ii) :  As per Affirmative

Point No. (iii): As per the final order.

REASONS

V. POINTS No. i:   From the above set of facts we noticed that the complainant barrowed a overdraft facility under  A/c No. 916768348 that on 01.11.2010 for Rs. 12,00,000/ from Opposite Party No.1 Bank by pledging the documents of the title deeds of his property named

1) A Regd sale deed dated 18.12.2007 vide document No.6627/2007.08.

2) A Regd settlement deed dated 25.11.2010 vide document No.5427/2010.11,

3) A Regd sale deed dated 01.10.2009 vide document No.3670/2009. 2010. 

For which there is no any disputes even by any of the Opposite Parties.  Later that on 16.10.2014, it is also an admitted fact that the said entire loan amount was paid, and immediately complainant made a request through a letter to Opposite Party No.1 Bank for return of all the above mentioned 3 pledged above mentioned documents of his property.  Inturn as best known to the Opposite Party only one document, i.e. top numbered 3 was returned and the remaining top numbered 1 and 2 were retained with them.  On the said reason the above case was raised by the complainant for the relief sought against the Opposite Party.  And so also the Opposite Party No.1 manager told that to return the pass book, cheque book of his amount and accordingly the same was returned by the complainant.  And thereafter, on the enquiry of the complainant, the Opposite Party told it is necessary to seek a permission with the Opposite Party No.2 and then only the said documents will be returned.  As such the complainant made efforts by time to time with Opposite Party but no purpose was served.  And as a last resort the complainant also made the request by RPAD.  Thereafter only on 03.01.2015 the said document vide top numbered 1 and 2 was returned.On the said above facts and circumstances it is clear that from dated 16.10.2014 till 02.01.2015, the said above mentioned top numbered 1 and 2 documents have kept with Opposite Party No.1.  Such being so, while in the course the dispute of the Opposite Party No.1 is that, the complainant was also a guar renter for the loan availed by one Mr.Gladson Immanuel Menon, the said loan was not cleared, till then those documents could not be returned till the said loan has to be cleared.  In order to substantiate the said facts, the Opposite Party No.1 produced the documents vide Ex. R1 to R3, except the same none of the documents have been produced before us.  Such being so through our deep observation among the said documents Ex.R1 to R3, none of the documents pertains to the case on hand.  Further, the top numbered case dealing of dated 01.11.2010.  But those documents of Ex.R1 to R3 is of 2013.  Further, when none of the Opposite Party fails in producing any of the documents pertaining into the matter pertains to OD facility with the complainant dated 01.11.2010, it is unsafe to conclude that of the dispute raised by the Opposite Party in the case.  Because, once when in the absence of the original OD facility agreement is not available in the case including connected documents, the Opposite Party Bank fails in substantiate its case in ful.  It also strengthen that once when the Bank fails in produce those documents, though it is the custodian of the same, it is enough to conclude that we have no any other go unless to invoke an advance inference against the Opposite Party Bank.  Apart from that it is the principle of the theory that the party who was in the possession and the custodian of the documents in particular, it should have been produced otherwise the burden remains with them, regarding its prove.  But in the case happened, there is only a plea without document. So that we are taking a view in cristal clear that even when admittedly the said OD loan facility availed by complainant with Opposite Party No.1 Bank was fully paid and discharged as on 16.10.2014. Inspite of it unnecessarily those documents number 1 and 2 were kept till 02.01.2015.  Further, for the same reason the complainant made his best efforts periodically in all the way just for getting the same.  In this aspect it is enough that there was a pure deficiency of service on the part of the Opposite Party to the complainant. On the simple reason is that the Opposite Party No.1 Bank not shown any effective reason for retaining the same, during the said period of time.  Hence, we answered the point No.1 is in affirmative.

Point No. ii: As discussed above as the Point No.1 is already answered affirmative as there was a involvement of deficiency in service was caused by Opposite Party Bank to the complainant for the said period and also among those pledged documents, one was returned immediately and other 2 was kept unnecessarily, this leads to harassment, and mental agony.  For this the complainant is also made periodical attempts and efforts, despite unable to get those 2 remaining documents till 02.01.2015.  Thereafter the Opposite Party Bank to pay a reasonable compensation of sum of Rs.10,000/ and he is entitled for another a sum of Rs.5,000/ towards cost and litigation expenses regarding the claim on the head of damage is concerned the complainant is not entitled to that extent the Point No.2 is also answered in the affirmative.

POINTS No. (iii): In the result, accordingly we pass the following Order:

ORDER

The Complaint is allowed in part.  The opposite parties are jointly and severally held liable and responsible, to pay for a sum of Rs. 10,000/ (Rupees ten thousand only) towards compensation.  Further, another sum of Rs.5,000/  (Rupees five thousand only) towards cost and litigation expenses incurred by the complainant.  Payment shall be made within 30 days from the receipt of copy of this order.

In default, Opposite Parties also to pay the same along with the accrued interest at the rate of 10% p.a till realization from the date of default.

Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room. 

(Page No.1 to 8 directly dictated by President to computer system to the Stenographer typed by him, revised and pronounced in the open court on this the 24^th day of December 2016.)                            

                MEMBER                                         PRESIDENT

       (SMT.  LAVANYA M.RAI)                   (SMT. C.V. SHOBHA)      

      D.K. District Consumer Forum             D.K. District Consumer Forum

                     Mangalore.                                          Mangalore.         

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1: Mr.Alwyn Jayakar Menon.

Documents marked on behalf of the Complainant:

ExC1: Letter written by the complainant to the Opposite Party No.1 dated 17.10.2014                       

ExC2: Letter written by the complainant to the Opposite Party No.2 dated 27.10.2014.

ExC3: Reply to the letter dated 27.10.2014 given by Opposite Party No.2 to the complainant dated 06.11.2014.

ExC4: Letter written by the complainant to the Opposite Party No.3 dated 21.11.2014.

ExC5: Letter written by Opposite Party No.1 to the complainant dated 20.11.2014.

ExC6: Letter dated 03.12.2014 issued by Opposite Party No.1 to the  complainant.

Ex.C7: Letter written by complainant dated 27.10.2014 to Opposite  Party No.3.

Ex.C8: Copy of sale deed dated 18.12.2007 regd as Document No.6627/2007 08.

Ex.C9: Copy of settlement deed dated 25.11.2014 regd as Document No.5427/2010-11.

Ex.C10: Copy of sale Deed dated 01.10.2009 regd as Document  No.3670/2009-10.                                     

Witnesses examined on behalf of the Opposite Parties:

RW1: Mr. A.Sudhakara,

Documents Marked on behalf of the Opposite Parties:   

Ex.R1: 28.11.2014 Letter from AGM (Law).

Ex.R2: 25.03.2013 Agreement of Guarantee.

Ex.R3: 02.07.2013 Agreement of Guarantee.

Dated: 24.12.2016.                                              PRESIDENT