Haryana

StateCommission

A/1170/2017

CENTRAL BANK OF INDIA - Complainant(s)

Versus

A.L. CHOPRA - Opp.Party(s)

RAVI KANT

21 May 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                Date of Institution: 18.09.2017

                                                          Date of final hearing: 09.04.2024

                                                     Date of pronouncement: 21.05.2024

 

First Appeal No.1170 of 2017

 

1.      Central Bank of India, SCO No.9, Sector-7, Urban Estate Ambala City through its Branch Manager.                                                               

2.      Sh.S.K.Goel, Branch Manager, Central Bank of India, Urban Estate, Ambala City.                                                ....Appellants

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Shri A.L.Chopra aged about 77 years S/o Shri Fakir Chand Chopra R/o 7-K, Adarsh Nagar, Model Town, Ambala City.

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CORAM:             Mr.Naresh Katyal, Judicial Member

                             Mrs. Manjula Sharma, Member

 

Argued by:-       Sh.Himanshu Sharma, Advocate for the appellants.

Mr.B.S.Gill, Advocate along with Mr. B.S.Bajwa, Advocate for the respondent.

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:-

Delay of 16 days in filing of this appeal stand condoned for the reasons stated in the application.

2.      Challenge in this Appeal No.1170 of 2017 of appellants/OPs has been invited to the legality of order dated 09.08.2017 passed by District Consumer Disputes Redressal Forum, Ambala(Now In short “District Consumer Commission”) in Complaint Case No.302 of 2013, vide which complainant’s complaint has been allowed.

3.      Factual matrix:Complainant has OD Account No.1852428983 with Central Bank of India-OP No.1.  He applied for Cent Mortgage OD Facility on 03.06.2008 with OP No.1-Bank, which was sanctioned on 25.02.2009 and he availed OD facility from 04.03.2009 to 26.12.2009.  At the time of sanction of OD facility, he executed security documents and completed formalities on 04.03.2009.  He deposited original title deed of his property with intention to create “equitable mortgage”, with OP No.1-Bank.  OP No.2-Branch Manager vide letter dated 23.11.2009 informed him (complainant) that he has not complied all terms and conditions and not deposited title deed with Bank-OP No.1 and he (complainant) was requested to deposit title deed.    Complainant vide letter dated 25.11.2009 informed OP No.1-Bank that title deed was tendered to them at the time of availing loan and loan facility was allowed on 04.03.2009 after completing all formalities.  Sale deed was already deposited with Bank-OP No.1along with all documents;then account was opened and operated. Vide letter dated 01.12.2009,he informed OP No.2 that sale deed was already deposited with them at the time of availing loan and called upon OP No.2 for withdrawal letter.  Vide letter dated 03.12.2009, Branch Manager of OP No.1-Bank informed complainant that letter was sent in official capacity as formalities were not completed and matter is under investigation, to which complainant vide letter dated 07.12.2009 informed OPs that formalities were completed at the time of availing loan and sale deed was deposited; if the same is not traceable or misplaced then OPs are responsible.  OP No.2 vide letter dated 10.12.2009,again informed complainant’s son that loan terms have not been completed and requested to complete formalities. 

4.      Complainant, vide letter dated 14.12.2009, informed OPs that OD account is running satisfactory, since it was opened and that Branch Manager will be personally responsible. All formalities were completed and documents are in possession and control of OPs.  Complainant, vide letter dated 16.06.2010, addressed to OPs informed that: Bank-OP No.1 is bound to give proper service; superfluous entries are made in account and harassment cannot be tolerated.  Sh. S.K.Sharma, Branch Manager of OP No.1 vide letter dated 06.06.2011, addressed to Branch Manager  informed that  title deed was recovered from backside of safe in strong room and it has been handed over to Branch Manager,in person. Branch Manager of OP No.1 vide letter dated 28.04.2012 informed complainant that: they have debited Rs.42,500/- on 28.04.2012, being amount of expenses incurred on “consented registered mortgage” created in favour of Bank-OP No.1 on 22.03.2010 to secure OD facility under “Cent Mortgage Scheme”.  It is pleaded that amount of Rs.42,500/- has been debited illegally, after expiry of more than two years, from his account. 

5.      Complainant vide letters dated 02.05.2012 and 09.05.2012, requested OPs to reverse debit entry of Rs.42,500/- for reasons mentioned in said letters.   OP No.2-Branch Manager vide letter dated 14.05.2012, informed complainant that; Bank created registered mortgage, as equitable mortgage was not created earlier, and further stated that expenses incurred in connection with loan account, has to be debited to party’s account.  Complainant vide letter dated 16.05.2012, requested to reverse unjustified entry of Rs.42,500/- as registered mortgage was not required as per terms of “Cent Mortgage Scheme”, as original title deed was already deposited with Bank-OP No.1.   Complainant again wrote letter dated 18.05.2012 stating that: entry of Rs.42,500/- has not been reversed till now (18.05.2012).  OP No.2, vide letter dated 22.05.2012, stated to complainant that registered mortgage has been created for security of loan against over draft facility and further stated that amount of Rs.42,500/- has been debited to the account, and falsely stated that OPs do not find on record creation of equitable mortgage and falsely alleged that complainant preferred to do registered mortgage, instead of equitable mortgage.  It is pleaded that complainant vide letter dated 25.05.2012 and 29.05.2012 addressed to OPs stated that sale deed was deposited with Bank-OP No.1 and was lying with it and respondents informed that sale deed was not available and OP No.2 to save his own skin approach complainant to sign registered mortgage by informing complainant that sale deed has been mis-placed and registered mortgage will serve his purpose and shall save him from disciplinary action.  It is pleaded that complainant acceded to the request of Branch Manager and OP No.2 told him that expenses will be borne by Bank-OP No.1, and that complainant had not to pay single penny.  As per plea, OP No.2 has tried to shift his own negligence and dereliction of duties on complainant to escape himself from responsibility and that OP No.2 is personally liable to pay Rs.42,500/- to complainant on account of his negligence. Again, complainant wrote letter dated 03.01.2013 and 23.03.2013 stating that amount of Rs.42,500/- has been arbitrarily and illegally debited on 28.04.2012 from his account.  He had already deposited original title deed with OPs, with intention to create ‘equitable mortgage’ and there was no necessity to create registered mortgage deed by him, in favour of OPs, on 22.03.2010 and Rs.42,500/- has been illegally debited from his account on 28.04.2012, after expiry of 2 years.  OP No.2, approached him and said that original sale deed is not traceable and requested him (complainant) to execute registered mortgage. On these pleas; by alleging deficiency in service of OPs and complainant having suffered harassment and mental agony; complainant has filed this complaint for issuance of direction to OPs to reverse debit entry of Rs.42500/- in the account of complainant and to refund the same in interest @18%  from 28.04.2012. Complainant has also prayed that damages of Rs.50,000/- be awarded to him. 

6.      Upon notice, OPs/appellantshaveraised contest. In theirjointly filed written version, it is pleaded that: complaint is not maintainable.  Consumer Forum has no jurisdiction and complainant is at liberty to approach Civil Court.   Complainant being ex-employee of OP No.1-Bank is estopped from filing present complaint. He wanted to bye-pass the procedure laid down for availing OD loan facilities without submitting proper documents and later on, when his illegal and unwanted acts were highlighted, then he started claiming “stamp charges”, illegally by putting pressure on OP No.1-Bank. Complaint is bad for non-joinder of necessary party.  Sh.S.K.Sharma (earlier Branch Manager), who sanctioned  OD loan facility of Rs.18/- lacs is not impleaded as party.   Had, complainant submitted title deed at the time of processing of his case of OD loan facility; the same must have been entered in recital record and must have been Bank’s custody.  As per plea, title deed in original was never given at the time of documentation.  Complainant closed his OD account on 27.12.2013 and then applied for return of original title deed, Registered mortgage deed and got the same redeemed from office of Sub-Registrar, Ambala and thereafter has taken original documents against proper receipt dated 12.02.2014.   Letters dated 25.11.2009 and 01.12.2009 have been admitted by OP No.1 being received, but OP No.1 has denied their contents.  When OP No.2 joined as Branch Manager of OP No.1-Bank, then he pointed out the matter, otherwise, what was the need for him to do so.  Complainant, in connivance with previous Branch Manager Sh.S.K.Sharma, had flouted procedure of Bank-OP No.1.  Had it been not so, then why complainant came forward and executed mortgage deed dated 22.03.2010 in favour of OPs for which, now he has been claiming refund of Rs.42,500/- in spite of knowing that expenses are legally borne by borrower.

7.      Sh.S.K.Sharma, the then Branch Manager of OP No.1 when sanctioned OD facility on 25.02.2009 was due to retire on 31.03.2010.  He was already served with show cause notice dated 15.03.2020. Then, both complainant and Sh.S.K.Sharma wanted to save themselves and got executed mortgage deed in favour of Bank on 22.03.2010 and thereafter started manipulating things, one way or the other and succeeded in throwing original title deed from the back side of strong almirah in strong room and started claiming expenses of stamp papers and other charges for said mortgage deed, which was legally executed by complainant.Mortgage deed execution charges are rightly and legally debited to loan account of complainant as per rules and procedure of Bank-OP No.1.Sale deed was never mis-placed or lost, but was illegally kept by complainant with himself, with malafide intention, as has been proved by investigation of higher authority. Rightly and legally, OP No.2 has informed complainant and debited the amount in account of complainant. Action taken by OP No.2 was correct and legal.  On these pleas, dismissal of the complaint has been prayed.

8.      Parties to this lisled their respective evidence (oral as well as, documentary). On analysing the same; learned District Consumer Commission vide order dated 09.08.2017 has allowed the complaint.  OPs have been directed to refund the amount of Rs.42,500/- (debited amount in the OD account of complainant) along with interest at the same rate which OPs were charging from complainant qua repayment of loan from the date of debit i.e. 28.04.2012 till realization.  Complainant has also been awarded cost of Rs.5000/- and punitive damages of Rs.10,000/-.

9.      Feeling dissatisfied; OPs have filed instant appeal.

10.    We have heard learned counsel for both parties at length on 29.04.2024 and also examined record with their able assistance.

11.    Learned counsel for appellants has urged that; impugned order dated 09.08.2017 passed by District Consumer Commission, Ambala is illegal on all fronts-legal or factual. Bank-OP No.1 has rightly charged Rs.42,500/- from OD account of complainant on 28.04.2012.  Complainant, in his own wisdom, had executed registered mortgage deed in favour of Bank-OP No.1 on 22.03.2010, while conniving with earlier Manager Sh.S.K.Sharma.  Original title deed was not given by him at the time of documentations of papers meant for sanctioning of OD loan facility of Rs.18/- lacs, while conniving with earlier Branch Manager of Bank.  Had it beengiven, it must have got entered in recital record of Bank and must have been lying in Bank’s custody. There was no necessity for complainant to come forward on 22.03.2010 to execute registered mortgage deed in favour of Bank, concerning his loan account.  It is urged that when above lapse, was noticed by OP No.2, then he rightly and legally debited the account of complainant with Rs.42,500/- after he joined as Branch Manager, by informing him (complainant). On these submissions; learned counsel for appellants have urged for acceptance of this appeal.

12.    Per contra, learned counsel for the complainant-respondent has supported impugned order dated 09.08.2017 by urging that: it is outcome of proper appreciation of facts and evidence by learned District Consumer Commission, Ambala and same warrant no interference in the present appeal.

13.    Complainant has OD A/C No.1852428983.  OD facility was sanctioned in his favour and he availed the same from 04.03.2009 to 26.12.2009.  Obviously, certain formalities pertaining to execution of certain security documents were meant to be there.  In thiscontext, as per complainant’s stance; he had deposited original title deed of his property.  As per stance of appellant/OP No.1-Bank, complainant had not deposited title deed of his property with it.  Complainant has gone to the extent of alleging that formalities had been completed at the time of availing loan, and sale deed (title deed) was deposited, if same is lost or misplaced, then OPs/appellants are responsible.

14.    Admittedly, transaction qua sanctioning of loan of Rs.18/- lacs in favour of complainant had taken place, when one S.K.Sharma was at the helm of affairs, being Branch Manager of OP No.1-Bank, who as per plea of OP No.1-Bank/appellant was to retire on 31.03.2010, and he (Sh.S.K.Sharma) must, have had demitted his office on 31.03.2010.  He was served with show cause notice dated 15.03.2010, palpably because procedure required for availing OD facility was by-passed and thrown to winds.  Hefty loan of 18/- lacs was sanctioned in favour of complainant, without initially creating security for its repayment by borrower/complainant and taking title deed of complainant’s property on record.

15.    OP No.2-Sh.S.K.Goel, on taking over reins of OP No.1-Bank as Branch Manager on 05.09.2009 had pointed out about this lapse. Thereafter, despite there being correspondence between OPs/appellants and replies of complainant on context of non-deposit of title deed of property by complainant at the time of sanctioning of OD loan facility of Rs.18/- lacs, yet, complainant eventually bowed down and executed  registered mortgage deed in favour of  OP No.1-Bank on 22.03.2010, and OPs/appellants charged Rs.42,500/- on 28.04.2012.

16.    Had, complainant being, so sure, that he had already submitted title deed of his property on 04.03.2009 while completing formalities qua OD account, and OPs/appellants are wrongly commanding him by saying that he had not completed the formalities; then  nothing stopped complainant to lodge complaint against erring Branch Manager of Bank for his alleged mis-conceived notions, but curiously enough; nothing such had happened and he(complainant) in his  own wisdom executed Registered Mortgage Deed on 22.03.2010 in favour of Bank. Having wilfully done so, the complainant is legally estopped to question the veracity of his own act, by demanding the amount of Rs.42,500/- which was debited to this account on 28.04.2012.  There is no plea in the complaint that complainant under forced and constrained circumstances had signed papers on 22.03.2010, in furtherance to creation of registered mortgage deed in favour of OP No.1-Bank.  In wake of above; principle of estopple is attracted, and in legal parlance, there is end of road for complainant to question any fallacy on part of OPs, while advocating for reversal of debt entry of Rs.42,500/-. The complainant cannot wriggle out from the legal import and ramifications so flowing from his own act, detailed above.

17.    How come, after more than 2 years and 2 months; Sh.S.K.Sharma, on one fine day  i.e. on 06.06.2011; happened to locate title deed, from Back side of safe in strong room, when he visited that room on that day. This is quite mysterious and mystifying circumstance, totally beyond the realm of acceptability at legal pedestal.  Integral part of letter dated 06.06.2011 Annexure C-9, of Sh.S.K.Sharma-Ex-Branch Manager which contains above quality recital, is unbelievable.  OP-No.1-Bank has rightly conveyed complainant about its act of debiting Rs.42,500/- from his account vide its communication dated 28.04.2012 Annexure C-9/1. Charges meant for execution of registered mortgage deed has to borne by complainant alone. May be, debt entry of Rs.42,500/- towards charges of registered mortgage deed, executed by complainant in favour of OP No.1-Bank was made, after more than 2 years of said execution, yet there is no fallacy or illegality on the part of OP No.1- Bank on that front.

18.    Subsequent claim raised by complainant vide his letter dated 02.05.2012 (Annexure C-10); letter dated 09.05.2012 (Annexure C-11) were untenable andtheseletters were suitably replied by OP No.1-Bank vide its letter dated 14.05.2012 (Annexure C-12).Again, complainant represented OP No.1-Bank, through his letter dated 16.05.2012 (Annexure C-14), letter dated 18.05.2012 (Annexure C-15).  Letter dated 16.05.2012 of complainant, too was appropriately replied by OP No.1-Bank through its letter dated 22.05.2012 (Annexure C-16).

19.    Complainant did not stop even thereafter.  He kept on raising the issue through letters dated 25.05.2012 (Annexure C-17), letter dated 29.05.2012 (Annexure C-18), letter dated 03.01.2013 (Annexure C-19) and, two letters both dated 20.05.2013 (Annexure C-20 and Annexure C-21) will not ignite, the already dead claim of complainant to seek refund of Rs.42,500/-, which is legally barred by principle of estopple. To direct OPs to refund this amount (Rs.42,500/- with interest) alongwith allied relief of punitive damage (Rs.10,000/-) and cost of litigation Rs.5,000/- vide impugned order dated 09.08.2017 was a fallacy on the part of learned District Consumer Commission, Ambala.

20.    In view of subjective and critical analysis of relevant facets of this case; this Commission has arrived at an inescapable conclusion that: Impugned order dated 09.08.2017 passed in Complaint case No.302 of 2013 titled as A.L.Chopra Vs. Central Bank of India and another is illegal.  OPs/Appellants have been wrongly non-suited, through illegal and perverse impugned order dated 09.08.2017, which has no legal sustainability.  It is accordingly set aside. Present appeal of OPs is allowed. As a Legal corollary, so flowing, complainant’s complaint is dismissed.

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23.    A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

24.    File be consigned to record room.

                                    

Date of Pronouncement: 21stMay, 2024

 

 

                             Manjula Sharma                            Naresh Katyal                                          Member                                 Judicial Member

Addl. Bench-I                       Addl. Bench-I