DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C.No.192 of 11.7.2007<br /> Decided on : 3.9.2007 <br /> <br /> Jamit Singh S/o Sh. Chanchal Singh, R/o Ward No. 6, Gali Ramji Roshan Wali, Goniana Mandi, Tehsil & District Bathinda.<br /> ...... Complainant<br /> <br /> Versus. <br /> <br /> Branch Manager, Bank of Baroda, Bathinda.<br /> ...... Opposite party<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> <br /> Sh.Lakhbir Singh, President<br /> Sh.Hira Lal Kumar, Member<br /> Dr.Phulinder Preet, Member<br /> <br /> For the complainant : Sh. B.S Ahluwalia, Advocate<br /> For the opposite parties : Sh. Pankaj Beri, Advocate <br /> <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Instant one is a complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) which has been preferred by the complainant seeking direction from this Forum to the opposite parties to pay him Rs. 50,000/- as compensation on account of mental tension, agony, botheration and harassment suffered by him due to the deficiency in service on the part of the opposite parties and Rs. 5,500/- as costs of the complaint. <br /> 2. Version of the complainant lies in the narrow compass as under :-<br /> On 11.1.1984, loan of Rs. 5,000/- was taken by Sh. Harinder Singh S/o Sh. Pritam Singh, R/o Goniana Mandi from the opposite party. Complainant had stood guarantor for the loanee for repayment of the loan amount alongwith upto date interest. Opposite party got deposited original sale deed No. 3970 dated 18.9.1974 regarding his (complainant's) property measuring 144-1/2 Sq. Yards comprising Khasra No. 624 situated at Balhar Vinju within the municipal limits of Ward No.3, Goniana Mandi, Tehsil & District Bathinda for creating charge over it by way of equitable mortgage and security for repayment of loan amount. Harinder Singh was the relative of the complainant. For several years, they did not remain on speaking terms. He (complainant) visited the house of Harinder Singh at the time of his death. He remained under the impression that loan amount is still outstanding. After the last rites of Harinder Singh were performed, he (complainant) enquired about the loan account and came to know that entire outstanding amount of loan of Rs. 4,535/- was deposited with the opposite party vide receipts No. 570898 dated 23.5.1988 for Rs.2,000/- and 257561 dated 25.8.1988 for Rs. 2,555/-. Loan account was adjusted. He (complainant) was told that opposite party did not return the sale deed. Request was made by him to the opposite party for returning the sale deed as account has already been adjusted. No satisfactory reply was given. Ultimately, opposite party refused to return it. Complainant got issued registered A.D legal notice dated 16.5.2007 through his counsel. Reply was sent by the opposite party through his counsel stating that his claim is time barred and original record including sale deed being old one has been destroyed. It is added by him that in the absence of original sale deed, he is unable to sell the property or to create charge on it for raising loan etc. from the banks. He has been deprived of his lawful right to take benefit of his property. There is gross deficiency in service on the part of the opposite party. Act and conduct of the opposite party has caused him mental tension, agony, harassment and humiliation.<br /> 3. On being put to notice, opposite party filed reply taking legal objections that complainant is not consumer and no consumer dispute is involved; complaint is not legally maintainable; complainant is estopped from filing the complaint by his act and conduct; presumption is that if the loan was cleared, complainant must have taken back the documents allegedly deposited by him as nobody is going to wait for 19 years; there is no question of alleged substantial loss; complainant is misusing the process of law; complaint is hopelessly time barred; it has been filed to harass it; he has concealed material facts from this Forum; he has no locus-standi and cause of action to file the complaint and complaint is false and frivolous. On merits, he admits that Harinder Singh had availed loan facility of Rs. 5,000/-. Dues were cleared by him in the year 1988. Complainant never became guarantor nor did he deposit the original sale deed No. 3970 dated 18.9.1974 with the bank for creating any mortgage. Had he deposited the title deed, he would not have waited for 19 years. When sale deed was not deposited, the question of its returning,does not arise. Notice sent by the complainant was duly replied. Once the loan is repaid, bank is required to keep the record only for one year as per the book of instructions, Vol. 3 of the Bank of Baroda. Hence, bank is not having any record concerning the loan account of borrower Harinder Singh. Remaining averments in the complaint including deficiency in service stand denied.<br /> 4. In support of his allegations and averments in the complaint, Jamit Singh complainant tendered into evidence his own affidavits (Ex.C.1 & Ex.C.2), photocopy of death certificate of Harinder Singh (Ex.C.3), photocopy of letter dated 22.4.88 (Ex.C.4), photocopies of receipts regarding payment (Ex.C.5 & Ex.C.6), photocopies of sale deed (Ex. C.7 & Ex.C.8), photocopy of legal notice dated 16.5.2007 (Ex.C.9), photocopy of postal receipt (Ex.C.10) and photocopy of reply to the legal notice (Ex.C.11). <br /> 5. On behalf of the opposite party, reliance is placed on affidavits (Ex.R.1 & Ex.R.2) of Sh. G.C. Singla, Sr. Manager and photocopy of book of instructions, Volume-3 (Ex.2).<br /> 6. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered written arguments submitted by the parties.<br /> 7. First objection taken by the learned counsel for the opposite party is that complainant is not consumer nor consumer dispute is involved as per facts and circumstances of this case and as such, complaint before this Forum is not maintainable. For this, he drew our attention to the authorities Bank of India Vs. Vidarbha Conductors Pvt. Ltd. And another-1997(2)CLT-219 and Xavier Estates represented by John F Durai Vs. Senior Manager, Indian Bank-1999(2)CLT-599.<br /> 8. Learned counsel for the complainant argued that matter in controversy is consumer dispute and is entertainable by the Consumer Fora. <br /> 9. We have given our thoughtful consideration to the rival arguments. With utmost regard and humility to the authorities relied upon by the opposite party, it was held in them that non release of documents by the bank on repayment of the loan is not a consumer dispute. As per latest view of the Hon'ble National Commission in the case of Thukaram Anantha Shet Vs. Karnataka Bank Ltd.-I(2006)CPJ-110 (NC) which is applicable to the case in hand on all the fours, it has been held that non return of pledged documents after payment of loan is a consumer dispute. In the case of Thukdaram Anantha Shet, documents were furnished by the guarantor. Hon'ble State Commission had allowed the appeal holding that dispute was not a consumer dispute. Hon'ble National Commission did not approve the view of the Hon'ble State Commission. It has been held that under section 2(1)(d)(ii) of the Act, banking services are covered by an inclusive definition. Therefore, in the case where the over draft facility/loan is given to a person against the pledging of the title deeds and if the loan is returned, the title deeds are required to be returned by the bank to the pledgee. Returning of the pledged documents shall be part of the services to be rendered by the bank. Once the loan amount is paid, bank would not have any authority to retain the title deeds/documents. If the same are not returned, the petitioner is entitled to approach the Consumer Forum, as non-return of the pledged documents after repayment of loan would amount to deficiency in serve by the bank. Relying upon the view expressed by the Hon'ble National Commission in the case of Thukaram Anantha Shet (supra), we hold that this complaint before this Forum is maintainable.<br /> 10. Mr. Beri learned counsel for the opposite party vehementally argued that complainant has failed to establish that he had stood guarantor for Harinder ingh for repayment of the loan amount taken by him and as such, the question of return of the sale deed, copies of which have been placed on record as Ex. C.7 & Ex.C.8, does not arise. <br /> 11. Mr. Ahluwalia, learned counsel for the complainant argued that from the evidence on the record, it is proved that complainant had become guarantor for Harinder Singh and sale deed was deposited as security by him for repayment of the loan amount. <br /> 12. Respective arguments have been considered by us. Ex.R.2 and Ex.R.3 are the copies of Book of Instructions of Bank of Baroda according to which files containing advances, accounts, which are repaid, can be retained upto one year and that this is mandatory provision. Complainant had sent notice to the opposite party through his counsel and copy of the same is Ex.C.9. Opposite party sent reply of it through his counsel stating that record of the bank pertaining to the year 1984 has been destroyed being old one and bank is not in possession of any document regarding advance pertaining to the year 1984. There is no mention in the reply of the notice, copy of which is Ex.C.11, that complainant had not stood guarantor qua Harinder Singh or sale deed was not deposited by him as security. Fact that record has been shown to have been destroyed as per reply of the notice is not substantiated from any document. Generally, in case any record is to be destroyed, approval of the competent authority for destruction is obtained. Record to be destroyed is mentioned in the register maintained for this purpose. Specific date of destruction is recorded. Competent authority or the person authorised gives certificate that the record has been destroyed in his presence. The evidence of the opposite party to this effect is lacking. Reply regarding destruction of the record of the bank pertaining to the year 1984 is not fortified. No-doubt, as per Ex. R.2 & Ex.R.3, record can be retained upto one year, yet it was the duty of the bank to prove by way of leading cogent and convincing evidence that relevant record has been destroyed. Record of the loan file of Harinder Singh could be in the power and possession of the opposite party. Whatever possible evidence could be led by the complainant regarding the deposit of the sale deed with the opposite party as security for repayment of the loan amount, has been led by him in the shape of his affidavits Ex.C.1 & Ex.C.2. Advancement of loan to Sh. Harinder Singh by the opposite party is not in dispute. Amount of Rs. 4,555/- was deposited by Harinder Singh through receipts copies of which are Ex.C.5 & Ex.C.6. In the facts and circumstances of this case, no weight can be attached to the affidavit Ex.R.1 of Sh. G.C. Singla in which he has stated that complainant did not become guarantor for the loanee nor did he deposit the sale deed. Firstly, he did not mention that he was the Manager of this branch of the bank in the year 1984 when Harinder Singh had taken the loan. It is not in Ex.R.1 that after one year after the loan was repaid, record was destroyed in his presence. He did not state that loan to Harinder Singh was sanctioned by him. In these circumstances, it does not lie in his mouth that complainant never became guarantor nor deposited the sale deed with the bank. No illwill or enmity of the complainant with any official of the bank has been alleged or proved by the opposite party. Affidavit Ex.R.1 is contradictory. On the one hand, Sh. G.C. Singla states that complainant did not become guarantor nor deposited the original sale deed. On the other he states that presumption is that after clearance of the loan, complainant must have taken back the documents allegedly deposited by him with the bank. In the facts and circumstances, no other conclusion can be arrived at than the one that complainant had become guarantor for Harinder Singh and sale deed No. 3970 was deposited by him with the bank as security for repayment of the loan. <br /> 13. According to the opposite party, complaint is not within time. This plea does not carry conviction. As held by the Hon'ble National Commission in the case of Thukaram Anantha Shet (supra), once the loan amount is paid, bank would not have any authority to retain title deed/documents. Accordingly, it becomes duty of the bank to return the title deed/documents. Moreover, in this case, complainant has explained the reasons that he was not aware about the adjustment of the loan account as he did not remain on speaking terms with Harinder Singh loanee. It is only after his death fact that loan account has already been adjusted, came to his knowledge. Harinder Singh died on 9.3.2007 as is obvious from Ex. C.3. Since, bank was to return the documents, it is a case of continuing cause of action. When complainant came to know about the adjustment of the loan, he contacted the opposite party, who refused to do the needful. Accordingly, complaint is within time. In the case of S.K. Bhatia Vs. The Punjab National Bank & Ors.-III(1996)CPJ-375, complainant had obtained loan from the bank. Jewellery was pledged. Loan was repaid in 1982. It was not returned even after the expiry of 14 years. District Forum had awarded damages of Rs.1,000/-. Hon'ble State Commission enhanced it to Rs.5,000/-.<br /> 14. As regards deficiency in service on the part of the opposite party, it is worth mentioning that pledged sale deed has not been returned to the complainant. Hence, deficiency in service on the part of the opposite party is proved. For this, we get support from the observations of the Hon'ble National Commission in the cases of Branch Manager, Distt. Co-operative Central Bank Vs. Cherukuri Pattabhiramayya & Ors.-III(1998)CPJ-300, Manging Director, A.P Co.op. Housing Societies Federation Ltd. Vs. R Muniramajah & Another-I(2002)CPJ-441 and Managing Director, A.P Co-operative Housing Societies Federation Ltd. Vs. Chekuri Srinivasa Rao & another-I(2002)CPJ-524. <br /> 15. Now question arises as to which relief should be accorded to the complainant. Original sale deed of the complainant has not been returned by the opposite party after the loan account has been adjusted by the loanee. Act and conduct of the opposite party in not returning title deed must have caused mental tension, agony, botheration and harassment. In case, complainant gets certified copy of the sale deed, he would have to incur expenses. There will be wastage of time as well. For all this, he deserves some compensation which we assess as Rs. 5,000/- in view of the authority J.Radhakrishnan Vs. A Basheera & Another-2001(2)CLT-225(M.P.) wherein it has been held that award of compensation always involves some sort of speculation and it is very difficult to quantify the amount of compensation on a rationale basis.<br /> 16. In the result, complaint is allowed against the opposite party with costs of Rs.1,000/-. Opposite party is directed to do as under :-<br /> ( i ) Pay Rs. 5,000/- to the complainant as compensation under section 14 (1)(d) of the Act.<br /> ( ii ) Compliance within 30 days from the date of receipt of copy of this order, failing which amount of compensation would carry interest @ 9% P.A till payment.<br /> 17. Copy of this order be sent to the parties free of cost. File be also<br /> <br /> consigned. <br /> <br /> Pronounced (Lakhbir Singh)<br /> 3.9.2007 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg' <br /> <br /> <br /> <br /> <br /> <br /> <br />