BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P. No. 05/2003

Dated: 17..01..2011

Complainant:

Aleyamma Varghese, w/o late K.V. Varghese, Kanjirakattu House, Pothujanam Gardens, Kumarapuram, Thiruvananthapuram, represented by her Power of Attorney Holder Reji K. Varghese residing at ...do... ..do..

(By Advs. P.A. Ahamed & Narayan. R)

Opposite parties:

1. Branch Manager, State Bank of India, Thampanoor Branch, Thiruvananthapuram.

2. The Deputy General Manager, State Bank of India, Region No. 1, Zonal Office, LMS Compound, Palayam, Thiruvananthapuram.

(By Adv. S. Williams)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 30..12..2005, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 30..12..2010, the Forum on 17..01..2011 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant is the Director of the Kanichai Hotels (P) Ltd. which owns Hotel Lucia and holds 99% shares of the Company Kanichai Hotels (P) Ltd., that the company availed financial assistance from the erstwhile bank of Cochin which was subsequently amalgamated with the State Bank of India, that complainant deposited original share certificates of 33600 equity shares of Kanichai Hotels (P) Ltd of the face value of Rs. 100/- each, that the Bank officials filed a Suit before the Sub Court, Thiruvananthapuram which was subsequently transferred to the Debt Recovery Tribunal, Cochin as T.A.No 1216/97, that complainant deposited the entire arrears legally due and the Debt Recovery Tribunal on 13/2/2002 closed the case, that thereafter 1^st opposite party issued a certificate stating that complainant has closed the account, that on 27/6/2002 complainant requested the 1^st opposite party to release the title deed deposited as security as well as the original share certificates, that as there was no response to the said letter a Lawyer's notice was sent on 31/7/2002 to the opposite parties and 1^st opposite party sent a reply stating that complainant has no right to ask for the title deed deposited and that the share certificate pledged were produced before the Court and are missing, that because of non-availability of the documents from the opposite parties, complainant could not avail any loan and thereby sustained heavy loss. Hence this complaint to direct opposite parties to return the share certificates and title deeds and pay a sum of Rs. 4,50,000/- towards compensation along with a cost of Rs.10,000/-.

2. Opposite parties filed version contending interalia that complainant availed financial assistance from the Bank of Cochin Ltd which was subsequently amalgamated with State Bank of India, that complainant deposited title deeds along with original share certificates of 33600 equity shares of Rs.100/- each towards security of loan availed, that the loan account was running irregular and finally went bad, that opposite party filed suit before the Sub Court, Thiruvananthapuram for the realisation of the amount due to the bank, that the said suit was subsequently transferred to DRT, Cochin and re-numbered as T.A No.1216/1997, that complainant compromised the suit with the 1^st opposite party under the one time settlement of RBI Scheme and cleared the dues, that complainant taken back her title deeds from the 1^st opposite party, that the title deeds deposited by Sri. Sajan Varghese was not returned as he did not turn up to take back the title deeds, that the share certificates were lost irrecoverably and the 1^st opposite party failed to return the same. 1^st opposite party instructed the complainant to get duplicate share certificates to solve the matter, that there involved no deficiency in service and no amount is payable to the complainant. Hence opposite parties prayed for dismissal of the complaint.

3. The points that arise for consideration are:

1. Whether there is deficiency in service on the part of the opposite parties?

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

In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P7. In rebuttal, opposite party has filed affidavit and has marked Exts. D1 & D2.

4. Points (i) & (ii) : Admittedly, complainant's company availed financial assistance from the erstwhile Bank of Cochin which was subsequently amalgamated with the State Bank of India and the loan was rescheduled and fresh securities were offered during 1986 and complainant deposited title deeds along with original share certificates of 33600 (Thirty three thousand six hundred) equity shares of Rs.100/- each towards security for the loan. There is no dispute on the point that opposite party filed a Suit against the complainant for realisation of the amount due to the Bank that the said Suit was subsequently transferred to Debt Recovery Tribunal, Cochin as TA No.1216/97. There is no dispute on the point that complainant deposited the entire arrears legally due and the DRT on 13/2/2002 closed the said case. It has been the case of the complainant that even after closure of the said loan account, opposite party has not returned the security documents such as title deeds and 33600 share certificates of Rs. 100/- each. Ext. P1 is the copy of the Transferred Application No. 1216/1997. As per Ext. P1, the matter was settled out of Court in full satisfaction of the debt and the applicant bank therein had filed a memo to that effect, on the strength of which the Suit/TA was dismissed by the Debt Recovery Tribunal. Ext. P2 is the certificate dated 8/3/2002 issued by the SBI stating that M/s. Kanichai Hotel (P) Ltd had closed their NRR Account with the bank under one time settlement of RBI and that there is no dues to the bank on the account as on the date. Ext. P3 is the copy of the letter dated 27/6/2002 addressed to the Branch Manager, SBI Thampanoor Branch by the complainant requesting him to return back the share certificate and blank share transfer forms. Ext. P4 is the copy of the Advocate notice dated 31/7/2002 sent by the complainant to opposite parties. Ext. P5 is the copy of the reply notice to Ext. P4 sent by the 1^st opposite party. Ext. P6 is the copy of the affidavit and index filed in TA No.1216/1997. Ext. P7 is the Power of Attorney. Opposite party has produced 2 documents which has been marked as Exts. D1 & D2. Ext. D1 is the copy of the reply notice sent by opposite party to complainant. Ext. D2 is the copy of the letter addressed to complainant by the opposite party stating that the share certificates of the (Kanichai Hotel (P) Ltd) company pledged by the complainant in favour of the bank were produced before the Court by the bank, that presently those certifictes are not traceable at the Court and requested the complainant to make necessary arrangement with the company to obtain duplicate share certificates and opposite party will be ready to extent all the support for the same. It has been argued by the learned counsel for the complainant that complainant has received the title deeds from the opposite party. Admittedly, share certificates deposited by the complainant with the opposite parties were not returned back to the complainant after the closure of the loan account. The learned counsel for the opposite parties submitted that they would meet the expenses required for the issuance of duplicate share certificates to the complainant. Opposite party is bound to return the original share certificates deposited as security for loan. It is further to be noted that title deeds or share certificates were given to the bank in good faith for taking loan from it and considering the bank would be the safest place for keeping such title deeds or share certifictes. Though title deeds were returned, the share certificate was not returned to the complainant. In this context it is required to be pointed out that a duty is cast upon the bank to keep the share certifictes in the safe custody, failure to return the share certificate in original after the closure of the loan account to the depositor would definitely amount to deficiency in service on the part of the opposite parties. Deficiency in service proved, for which opposite parties cannot escape the liability to compensate the complainant. Complainant is entitled to get back the original share certificate from the opposite party or in the alternative opposite party has to take necessary steps to issue duplicate share certificate at the opposite parties' own cost to the complainant.

In the result, complaint is allowed. Opposite parties are directed to return the deposited share certificates of 33600 equity shares (of Kanichai Hotel (P) Ltd of the face value of Rs.100/- each) to the complainant or in the alternative opposite parties shall take necessary steps to issue the duplicate of the aforesaid share certificates at opposite parties' own cost to the complainant within two months from the date of receipt of this Order. Opposite parties shall pay the complainant a sum of Rs.50,000/- towards compensation and Rs.2,000/- as cost.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 17^th day of January, 2011.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI .A,

MEMBER.

S.K. SREELA,

ad. MEMBER .

O.P.No.5/2003

APPENDIX

I. Complainant's witness:

PW1 : NIL

II. Complainant's documents:

P1 : Order of the Hon'ble Debts Recovery Tribunal, Ernakulam dated 13/2/2002.

P2 : Copy of the certificate dated 8/3/2002 issued by the State Bank of India

P3 : " letter dated 27/6/2002 addressed to the Branch Manager, SBI, Thampanoor.

P4 : " Advocate notice dated 31/7/2002.

P5 : " reply dated 19/8/2002

P6 : " Affidavit and Index

P7 : The Power of Attorney

III. Opposite parties' witness : NIL

IV. Opposite parties' documents:

D1 : Copy of the reply notice sent by opposite party to complainant.

D2 : " letter addressed to complainant by the opposite party.

PRESIDENT.