Date of Filing      : 23.02.2023

                                                                                                                 Date of Disposal : 22.06.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, MA.,ML, Ph.D (Law)                                   .…. PRESIDENT

                 THIRU.P.VINODH KUMAR, B.Sc., BL.,                                                                    .....MEMBER-I

CC. No.21/2023

THIS THURSDAY, THE 22^nd DAY OF JUNE 2023

1.A.Kesavalu Naidu, (Deceased)

2.K.Sornalatha, D/o.A.Kesavalu Naidu,

3.A.K.Nandagopal, S/o.A.Kesavalu Naidu,

4.Ch.Nithyambigai, D/o.A.Kesavalu Naidu,

H-10/2 New NGGO Colony,

Tiruvallur, Tiruvallur Taluk – 602 001.                                            ……Complainants. 

                                                                                 //Vs//

The Branch Manager,

Canara Bank, Thadur Branch,

Tiruttani – Chittor High Road,

K.G.Kandigai, Tiruttani Taluk,

Tiruvallur District.                                                                             …..opposite party.

Counsel for the complainants                        :   Party in Person.

Counsel for the opposite party                      :   M/s.Kanimozhi Mathi, Advocate.

This complaint is coming before us on various dates and finally on 12.06.2023 in the presence of 3^rd complainant who appeared in person and M/s.Kanimozhi Mathi counsel for the oppostie party and upon perusing the documents and evidences of the complainant this Commission delivered the following:

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party in not returning the original document entrusted with the opposite party for the purpose of obtaining loan along with a prayer to direct the opposite party to return the pledged Land original documents or to pay the present guideline value of pledged property which was about Rs.45,50,000/- to the complainants and to pay a sum of Rs.3,00,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.50,000/- towards cost of the proceedings to the complainant.

Summary of facts culminating into complaint:-

Being aggrieved by the act of opposite party Bank in not returning the original document entrusted with the opposite party for the purpose of obtaining loan the present complaint was filed.

Complainants 2 to 4 father Mr.A.Kesavalu Naidu had obtained a Tractor loan along with his brother A.Loganathan Naidu by pledging land documents with the opposite party Bank.  Thereafter the Bank filed suit in O.S.No.144/1992 against Mr.A.Kesavalu Naidu and Mr.A.Loganatha Naidu for recovery of loan amount.  The entire loan amount was recovered by the Bank from Mr.A.Kesavalu Naidu and Mr.A.Loganatha Naidu.  However, the land documents were not returned to the parties as it was in the custody of the Bank during the trial. NOC was given to Mr.A.Loganatha Naidu, the 2^nd borrower but no intimation or NOC was given to Mr.A.Kesavalu Naidu.  On coming to know the same a legal notice was sent to the bank by the Mr.A.Kesavalu Naidu for return of the original land documents. As there was no reply a Consumer Complaint was filed against the opposite party for issuance of NOC and return of the original documents along with compensation.

The Bank did not appear before the Consumer Commission and they were set exparte and finally on merits the complaint was allowed for return of documents, issuance of NOC along with compensation of Rs.5000/- and Rs.3000/- cost. Even then the opposite party did not comply with the order nor preferred any appeal against the said order. Hence an Execution Application was filed for execution of the said order which is pending. On 07.11.2022 the Bank officials appeared before the commission and paid the compensation and cost but they did not return the original documents and also no NOC was given.  In the subsequent hearing NOC was given and the Bank officials sought for one month time for submitting the pledged documents. However, no documents were submitted by the bank and the opposite party cited lame excuses for not providing the original documents.  Without the original land documents, the entire family was facing lot of problems and unable to develop the land or sell the land.  Thus complainants are facing irreparable loss, mental agony and hardship for the past 10 year without the original documents. Hence alleging fresh cause of action on 10.10.2018 the present complaint was filed to direct the opposite party to return the pledged Land original documents or to pay the present guideline value of the pledged property which was about Rs.45,50,000/- to the complainants and to pay a sum of Rs.3,00,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.50,000/- towards cost of the proceedings to the complainant.

Crux of the defence put forth by the opposite party:-

The opposite party admitted the availment of Tractor Loan by Mr.A.Kesavalu Naidu and Mr.A.Loganatha Naidu jointly.  Suit for recovery of loan amount was also admitted. The suit was decreed directing the defendant 1 to 3 to pay the suit claim amount of 95,475.50/- with 15.5% interest and the 2^nd defendant was directed to pay the decretal amount to the plaintiff within 6 months and the defendant 1 to 3 to pay cost of Rs.10,681.50/-.  The loan was closed from the written off from the banks books as the Mr.A.Kesavalu Naidu and Mr.A.Loganatha Naidu had not paid the dues as per the decree.  Hence the equitable mortgage executed as security was still in force as the loan was still pending as time barred mortgage. The Bank proceeded through court of Law in 1992 and the same was decreed in 1996 and execution petition was filed in 1997.  Hence the root cause for the entire problem was that the complainants did not repay the loan amount. On 15.07.1998, they handed over the original documents viz Sale Deed 1188/1973 dated 16.05.1973, Sale Deed 168/1973 dated 11.02.1973 and Sale Deed 414/1979 dated 19.03.2019 and two UDR Pattas to the Bank Panel Advocate Mr.E.Shanmugham, Advocate for the purpose of enquiry at Munsif Court, Tiruttani for executing the decree amount.  The said Advocate Mr.E.Shanmugham is no more now.  The 3^rd complainant A.K.Nandha Gopal was not aware of the loan availed and repaid except the information received by RTI.  The Bank was putting every effort to search the documents in Chengalpattu, Kancheepuram and Thiruttani Court and also taking recovery steps by stipulated procedure.  Thus submitted that the missing of documents by the opposite party Bank was an Act of God which was beyond the control of the Bank i.e. death of Panel Advocate and bifurcation of the Courts and shifting of documents from one court and another.  Thus there is no cause of action for the complaint to be filed by the complainants and only the act of non-repayment of the loan by the complainant being the root cause for every problem, the opposite party sought for the dismissal of the complaint.

On the side of complainants proof affidavit was filed and documents marked as Ex.A1 to Ex.A5 was submitted. On the side of opposite party proof affidavit was filed and documents marked as Ex.B1 to Ex.B8 was submitted.

Points for consideration:

1)    Whether the act of opposite party in not returning the original documents to the complainants even after closer of loan citing the reason “ACT OF GOD” in misplacing of losing the documents amounts to deficiency in service as alleged by the complainants or not?

2)    If so to what reliefs the complainant is entitled?

Point No.1:-

The following documents were filed on the side of complainant in support of her contentions;

a)      M.Sekar, the Branch Manager Canara Bank witnessed in the trial on OS.No.144/1992 accepts that land original documents with the Bank custody  dated 10.08.1996 and 23.06.2014 was marked as Ex.A1;

b)    Order copy in CC.No.44/2018 dated 29.03.2019 was marked as Ex.A2;

c)       NOC given by the opposite party Bank dated 10.11.2022 was marked as Ex.A3;

d)      Authorization letter from other 2 legal hairs of late A.Kesavalu Naidu dated 05.03.2022 was marked as Ex.A4;

e)      Memorandum of the Principal District Judge, Thiruvallur dated 10.06.2010 was marked as Ex.A5;

On the side of 2^nd opposite party following documents were filed in proof of their defence;

1)    Copy of General Information dated 14.08.1986 was marked as Ex.B1;

2)    Copy of sanction letter for crop loan dated 14.08.1986 was marked as Ex.B2;

3)    Copy of sanction letter for Tractor Loan dated 19.12.1986 was marked as Ex.A3;

4)    Legal notice issued by the opposite party for recalling the advance dated 15.01.1992 was marked as Ex.A4;

5)    Decree in O.S.No.145/1992 on the file of the Sub Court, Kancheepuram regarding crop loan dated 28.07.1993 was marked as Ex.A5;

6)    Decree in O.S.No.144/1992 on the file of Sub Court, kancheepuram regarding Tractor Loan dated 26.08.1996 was marked as Ex.B6;

7)    Letter from Advocate Mr.E.Shanmugam (deceased) for acknowledging the original documents received for giving means enquiry at District Munsif Court, Tiruttani dated 15.07.1998 was marked as Ex.A7;

8)    Copy of order in CC.No.44/2018 on the file of District Consumer Disputes Redressal Forum at Thiruvallur dated 29.03.2019 was marked as Ex.8;

Heard both the Party in Person/complainant and learned counsel appearing for the Bank.

The Party in Person/Complainant appeared and argued that once the loan was closed either by way of written off or repayment, the Bank has no authority to retain the original documents deposited with them. After EP No.44/1997 was filed in sub court Kancheepuram the matter was pending till 2001 until Sub Court was established in Thiruvallur to which the EP was transferred and renumber as EP 276/2001 which was proceeded till 12.07.2005, on the day on which the EP was dismissed for non -filing of sale paper which was marked as Ex.A5. The reason for non-filing of sale paper was that the loan was recovered from the complainants and that the mortgage automatically got expired. The Bank did not take any steps to get back the documents from the panel Advocate Mr.E.Shanmugam.  Though the said Advocate was no more now, the bank did not approach him even after the order was passed in 2018 in CC.No.44/2018 as the Advocate was alive until the end of 2020.  Hence the reason cited by the Bank could not be accepted.  Thus citing decision rendered by the Kerala State Consumer Disputes Redressal Commission in CC.No.05/2013 dated 25.11.2013 and decision rendered by the District Consumer Disputes Redressal Forum, Kolkata Unit –II in CC.No.204/2017 dated 04.12.2017 and decision rendered by the Karnataka State Consumer Disputes Redressal Commission, Bangalore in CC.No.323/2018 dated 20.02.2020 and decision rendered by the National Consumer Disputes Redressal Commission in CC.No.1021/2016 dated 08.01.2018 and another decision rendered by the National Consumer Disputes Redressal Commission in CC.No.2218/2018 dated 20.02.2023, it was argued by the Party in Person/Complainant that the opposite party had committed clear deficiency in service in not returning the original documents due to which the complainants were put to mental agony, monetary loss and hardship and sought for complaint to be allowed as prayed for.

On the other hand, the opposite party Bank counsel argued that the documents were entrusted to the Bank counsel Mr.E.Shanmugam for the purpose of evidence as repayment was not done by the borrowers and there is no deficiency or negligence on the part of the Bank.  Further the mortgage loan was still in existence and the loan was not repaid and documents were lying in the Court for EP and hence the question of return of documents does not arise. Hence it is argued that as there is no cause of action for the present complaint no deficiency in service was committed by them and the learned counsel sought for the complaint to be dismissed.

On appreciation of the entire pleadings and materials it is seen that the Manager of the Bank one Mr.M.Sekar had deposed in O.S.No.144/1992 that the documents were submitted with them as security for the loan availed by Mr.A.Kesavalu Naidu and Mr.A.Loganatha Naidu as follows

“jhthf; fld; nrhj;J nghWg;GWjpapd; gb nfhLf;fg;gl;lJ.  jhthf; fld;fs; gj;jpu xg;gilg;G mlkhdk; gpujpthjpfshy; nra;ag;gl;Ls;sJ. muf;Nfhzj;jpy; gj;jpu xg;gilg;G nra;ag;gl;lJ. mt;thW epyq;fs; mlkhdk; itf;fg;gl;lJ.  mt;thW mlkhdk; nra;J nfhLf;fg;gl;l nrhj;Jf;fs; gs;spg;gl;L tl;lk; kJuhGuk; fpuhkj;jpy; cs;sd. mt;thW vt;tsT Vf;fu; epyk; mlkhdk; nra;J nfhLf;fg;gl;lJ vd;gij Qhgfkpy;iy. k.rh.M 2 Njjpf;F Kd;du; gj;jpuq;fis gpujpthjpfs; xg;gilj;jhu;fs;. mt;thW 1> 2 gpujpthjpfs; xg;gilj;jhu;fs;. me;j gj;jpuq;fs; vq;fs; tq;fpf; fpisapy; ,Uf;fpd;wd.” 

Further, vide order dated 29.03.2019 in CC.No.44/2018 it has been held that there is no outstanding dues with regard to the subject loan availed by Mr.A.Kesavalu Naidu and Mr.A.Loganatha Naidu based on the NOC given by the opposite party Bank dated 29.09.2014.  No appeal was preferred by the opposite party Bank against the said finding and hence the same had attained finality.  In the said order the opposite party was directed to issue NOC regarding the Tractor Loan No.5/86 and to return the original pledged documents within two months from the date of receipt of copy of the order along with compensation of Rs.5,000/- and Rs.3,000/- cost.  NOC dated 10.11.2022 was issued in compliance of the said order by the opposite party which is submitted as Ex.A3.  The memorandum of Principal District Judge, Thiruvallur dated 10.06.2010 which was filed as Ex.A5 clearly reveals that EP 276/2001 was dismissed on 12.07.2005 for non-filing of sale papers inspite of granting several times for filing sale papers. Thus the defence raised by the opposite party that till today the EP was alive and the documents are lying in the EP Court and hence the question of return of documents does not arise was proved to be an utter false statement made by the opposite party Bank.   The Bank also raised counter defence that they had entrusted the documents to the panel Advocate E.Shanmugam who is no more now.  Also another defence was taken by the Bank that the documents are missing by Act of God.  In the said circumstances when it is amply proved that as on date no loan or mortgage was pending with regard to the Tractor loan availed by Mr.A.Kesavalu Naidu and Mr.A.Loganatha Naidu, the Bank making several false defences without taking any earnest effort to retrieve the documents even after an order was passed by the Hon’ble Consumer Commission in CC.No.44/18 amounted to clear negligence and deficiency in service.  Not even a single document was produced by the Bank in proof of any step taken by them to trace out the where abouts of the original documents entrusted with them except making bald and irrelevant statements. The statement made by the complainant that the panel counsel was alive until the end of 2020 was also to be taken into consideration and if at all the Bank was vigilant and had taken any steps they would have approached him seeking for return of the documents.  The Bank should be certainly held liable for not taking any steps to return the original documents to the complainants. Not even a single piece of evidence was filed by Bank to show that they took any earnest efforts to procure the documents. This point is answered accordingly.

Point No.2:-

As we have held above that the Bank has committed clear deficiency in service in not returning the original land documents entrusted to them even after clearance of the loan as per their own statement dated 10.11.2022, we are of the view that the complainant should be compensated adequately for the mental agony, monetary loss and hardship caused to them and we fix a sum of Rs.1,00,000/- to be paid by the opposite party to the complainant which would be appropriate in the facts and circumstances. We also direct the opposite party to trace out and return the original documents within 4 weeks from the date receipt of copy of this order or in alternative thereafter to arrange for issuance of certified copies for the original documents concerned within four weeks along with an indemnity bond. We also award cost of Rs.10,000/- towards litigation expenses.

In the result, the complaint is partly allowed against the opposite party directing them

a) To trace out and return the original documents within four weeks from the date of receipt of copy of this order or in alternative thereafter to arrange for issuance of certified copies for the original documents concerned within four weeks along with an indemnity bond;

b) To pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for the mental agony, monetary loss and hardship  caused to the complainant;

c)  To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 22^nd day of June 2023.

       Sd/-                                                                                                                          Sd/-                

MEMBER-I                                                                                                            PRESIDENT

List of document filed by the complainant:-

List of document filed by the opposite party:-

   Sd/-                                                                                                                       Sd/-

MEMBER-I                                                                                                     PRESIDENT