DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION PALAKKAD
Dated this the 16th day of August, 2022
Present : Sri.Vinay Menon V., President
: Smt.Vidya A., Member
: Sri. Krishnankutty N.K.,Member
Date of filing: 26/07/2017.
CC/109/2017
1.Susheela,
W/o.late Prabhakaran,
House No.12/150,Okarapallam,
Elappully, Thenari, Palakkad.
2. Sugandhi,
D/o. late Prabhakaran,
House No.12/150,Okarapallam,
Elappully, Thenari, Palakkad.
3. Subhash,
S/o. late Prabhakaran,
House No.12/150,Okarapallam,
Elappully, Thenari, Palakkad.
4. Sunitha,
D/o. late Prabhakaran,
House No.12/150,Okarapallam,
Elappully, Thenari,Palakkad. - Complainants
(By Adv. K.Dhanajayan)
Vs
1. Bank of Baroda, Regd Office at
Baroda House, P.B.No.506, Mandovi,
Vadodara, Gujarat 39006.
2. Bank of Baroda, Rep by its
Managing Director/Manger or Authorized Signatory,
Baroda House, P.B.No.506, Mandovi,
Vadodara, Gujarat 39006.
3.The Branch Manager, Bank of Baroda,
Mangalam Towers, T.B.Road,
Palakkad-678 014. - Opposite Parties
(OPs by Adv. M/s. G. Ananthakrishnan & K.B.Priya).
O R D E R
By Smt.Vidya A.,Member
Pleadings of the complainant in brief.
1. The first complainant’s husband who is the father of complainants 2 to 4 had availed an agricultural loan from the 3rd opposite party Bank bearing loan A/c No.05/5127 by depositing all relevant title deeds and by creating an equitable mortgage. The 3rd opposite party sanctioned the loan and it was disbursed to late Mr.Prabhakaran, the 1st complainant’s husband.
But due to adverse climate conditions, he could not repay the loan in time. Mr.Prabhakaran expired on 14.09.2009 and the liability to pay the loan amount fell on the legal heirs. The opposite parties filed a suit O.S 165/2014 before the Munsiff court, Palakkad for realizing the amount, Rs.1,68,400/- being the loan amount with interest and to get the cost of the suit. During the pendency of the suit, the parties arrived at a settlement and settled the matter by paying an amount of Rs.80,000/- on 06.06.2016 and the suit was dismissed as settled.
After that the complainants made oral representation before the opposite party to return all the original documents which are with them. Finally the opposite parties returned all the original documents except the Will executed by Chami, S/o.Azhakan in favour of Prabhakaran with No.90/1991 registered at SRO Palakkad dated 31.05.1991. Even after repeated requests, the opposite parties did not return the will and the complainants are compelled to believe that the document is lost from the lawful custody of the opposite parties. The act of the opposite parties in not returning the original will amounts to Deficiency in service on their part and they are legally bound to compensate the complainant for that. So this complaint is filed to direct the opposite parties
1. To produce and handover the original Will to the complainant.
2. If they are not in a position to hand over the original document, they
have to pay a compensation of Rs.10,00,000/-.
3. To order the opposite parties to execute a bond of indemnity in
favour of the complainants, if it is irrecoverably lost from their
custody.
4. To pay the entire cost and to grant other reliefs which the Fourm
finds fit to grant.
2. Complaint was admitted and notices were issued to the opposite parties. Notice to opposite parties 1 &2 served, but there was no representation from their part and no vakalath or version filed. So they were set ex parte. 3rd opposite party entered appearance and filed their version with petition to receive it and it was allowed.
3. The pleadings of 3rd opposite party in brief is as follows.
They admit that late Mr.Prabhakaran had availed credit facility from the bank but he did not repay the dues in time and O.S No.165/2014 was filed by them before the Munsiff Court, Palakkad to recover the dues in the loan account. In the mean time, the complainant filed a CC No.37/2010 before CDRF, Palakkad against bank which was dismissed on 24.02.2011. The appeal No.228/2011 filed against this order before the State Commission was also dismissed on 21.03.2014.
The deceased originally availed a crop loan of Rs.1.00 lakh on 15.11.2005 and later the complainants approached the Bank for settlement of dues in the loan account. Finally as per the compromise, the loan was settled for an amount of Rs.80,000/- which was paid by the complainants on 17.06.2016. Bank had incurred a loss to the tune of Rs.80,383/- because of the settlement.
All the title deeds deposited by the deceased and held by the Bank for creating equitable mortgage were returned to the complainants at time of settlement of the loan account. Only after understanding and ascertaining the documents available with the Bank, the complainants had agreed for settlement and paid the amount. The contention that the original will was not returned to the complainants was denied by 3rd opposite party as incorrect. It is true that they have send reply notice, but later on perusal of records, it is found that all the title deeds are returned to the complainants.
The opposite party is not responsible for the loss of original WILL if the same is true. The property is still in possession and enjoyment of complainants and existence or non-existence of the alleged WILL does not make any difference. The averment in the complaint that the opposite parties are responsible for misplacing or losing the original from their custody, when it is entrusted to them for a lawful purpose is denied.
There is no Deficiency in service on the part of the opposite parties and the complaint has to be dismissed with cost of this opposite party.
4. From the pleadings, the following points arises for consideration.
1. Whether the 3rd opposite party has returned the original WILL to the
complainant as claimed by them?
2. Whether there is any Deficiency in service/Unfair Trade Practice on
the part of the opposite parties?
3. Whether the complainant is entitled to the reliefs claimed?
4. Reliefs, as cost or compensation.
5. Complainant filed chief affidavit in evidence and documents were marked as Ext A1 to A6. Complainant was examined as PW1. Complainant filed an application IA 57/21 to cross examine the 3rd opposite party and it was allowed. But opposite party was not present for examination even after several postings and the cross of 3rd opposite party is dispensed with. Opposite party 3 filed proof affidavit and Exts B1 & B2 marked from their side.
6. Point No.1
The complainant’s main grievance is that the 3rd opposite party Bank has not returned the original WILL No.90/1991 registered with SRO Palakkad in the name of Mr.Prabhakaran which was deposited with the bank for obtaining the loan even after the closure of the loan account. The loan was closed on 07.06.2016 which is clear from Ext A1, the letter issued by Bank of Baroda that the loan has been settled under ‘Óne Time compromise settlement scheme’ of the Bank by accepting Rs.80,000/- against total dues. So the Bank is bound to return the documents deposited with the Bank at the time of availing the loan.
7. Ext A4 series including the Lawyer’s notice dated 28.10.2016 issued by complainant’s counsel to the opposite party 3 Bank and postal receipt shows that the 3rd opposite party has not returned the original documents to the complainant even after closing the loan account.
8. Ext A5 (a), Reply notice dated 23.01.2017 by the counsel for the 3rd opposite party states that because of the heavy rush in the bank due to the demonstration policy of Govt. of India, they could not hand over the original documents to the complainants and sought 3 months tome for searching out the documents from old records of the bank and to hand it over to the complainants.
9. Complainant filed chief affidavit on 30.10.2017 in which they have stated that the 3rd opposite party has returned all the original documents ie. title deeds except the WILL. Along with additional affidavit, the complainant has produced the photocopy of the certified copy of the WILL with the endorsement of the Manager of the 3rd opposite party that “Original title deed held with us as security for Loan availed”. From this, it is clear that the original will was deposited with the Bank. The additional chief affidavit filed by the complainant on 25.07.2018 also states that they did not get back the Original WILL. During cross examination also PW1 has affirmed this.
10. The complainant has filed an application IA 56/21 to cross examine the 3rd opposite party. But they did not appear before the Commission. If they have returned all the original documents as claimed by them, they could have mounted on the box and very well deposed the same before the Commission to clear all ambiguities. But they were absent for cross examination on several postings and finally the cross was dispensed with. So an adverse inference can be drawn against them.
11. The 3rd opposite party has not adduced any evidence to show that they have returned all the documents including the original WILL to the complainant. In the absence of cogent evidence to prove the return of the document, we accept the contention of the complainant. Point no.1 is decided accordingly.
Points 2 to 4
12. As per the above findings, the 3rd opposite party has not returned the original WILL even after the closing of the loan account. So there is Deficiency in service on the part of the 3rd opposite party in not returning the document and they are liable to compensate the complainant for that.
In the result, the complaint is allowed.
We direct the 3rd opposite party.
1. To hand over the original Will no.90/1991 dated 31.05.1991 of
SRO, Palakkad to the complainants.
2. If the said document is not in the possession of opposite parties,
they are directed to
a) Avail a certified copy of the aforesaid Will from the SRO concerned at
their expense and effort.
b) Issue a public notice in the State of Kerala in a vernacular
newspaper having wide circulation in Kerala.
c) Issue a certificate to the effect that the Will was lost while in their
possession.
3. The 3rd opposite party is directed to pay Rs.1,00,000/- (Rupees one
lakh only) as compensation.
4. The 3rd opposite party is directed to pay Rs.25,000/- (Rupees one
lakh only) as cost of the proceedings.
The above order shall be complied with by the 3rd opposite party within 45 days of receipt of this order, failing which the opposite party is liable to give Rs.250/- as solatium per month or part thereof till the date of payment.
Pronounced in the open court on this the 16th day of August,
2022.
Sd/-
Vinay Menon V
President
Sd/-
Vidya A
Member
Sd/-
Krishnankutty N.K
Member
Appendix
Exhibits marked on the side of complainant
Ext. A1–Original receipt dated 07.06.2016 issued by Bank of Baroda.
Ext.A2-Xerox copy of the Death certificate dated 17.09.2009 issued by Palakkad
Municipality.
Ext.A3-Xerox copy of Will No.90/1991 dated 01.02.2017 issued by SRO,
Palakkad.
Exhibits marked on the side of Opposite parties
Ext.B1-Original suit No.165/2014 dated 8/8/2016.
Witness examined from complainant’s side:- Complainant as PW1.
Witness examined from opposite party’s side:- NIL
Cost: 25,000/-(Rupees Twenty Five Thousand only)
