SRE.K. VIJAYAKUMARAN, PRESIDENT. Complaint for realization of compensation for not having return the title deed and not paying the Fixed Deposits amount, costs etc. The averments in the complaint can be briefly summarized as follows: The complainant is an Engineer. He has availed a loan from the opp.party Bank for Financial Assistance to the Professionals Self Employed. The complainant made 2 fixed deposits with the opp.party bank one for Rs.27,600/- due on 6.11.1992 and Aiswarya Deposit for Rs.18,378/- due on 28.12.1993. Due to financial difficulties, the complainant could not repay the amount and the bank filed O.S. No.418/95 and for 433/95 before the Sub Court, Kollam for realization of amount. The above suits were settled out of court and the agreed amount was remitted in full by the complainant. The complainant has deposited his original Title Deed No.2973 of 1980 of Sub Registry Office, Kundara in respect of his property of 4.96 Ares in Survey No.53 and 5.67Ares in Sy.No.54 of Elampelloor Village, Kundara by creating an equitable mortgage. He has raised money for payment of the amount as per the settlement from persons agreeing to pay interest at the rate of 24% with an intention to clear the loan disposing of his aforesaid property.. But the bank did not return the title deed to the complainant. There were potential buyers who were ready to purchase the property at the rate of Rs.3,00,000/- per cent. Due to non-returning of title deed the buyers have backtracked from their offer which caused untold misery and mental agony to the complainant. The opp.party bank also failed to repay the 2 fixed deposits one for a sum of Rs.27,600/- and the 2nd FD for Rs. 18,378/- The matured amount with interest would have fetched Rs.11,69,677/- as on date. But the complainant is limiting the claim to the tune of Rs.9,00,000/- for the purpose of pecuniary jurisdiction. The action of the opp.party amounts to deficiency in service. Hence the complaint. Opp.party filed version contending as follows: The complainant has availed a loan from the bank for M/s.R.R. Constructions. The loan was availed for the purpose of business and complainant was a partner of the same Since the loan amount was not repaid the opp.party filed OS.418/95 against the complainant and others and OS 431/95 against RR constructions before the Sub Court, Kollam But there was a settlement under the One day settlement scheme and the amount was repaid by the complainant and thereupon the loan was closed. Since the loan was availed for commercial purpose the complainant is not a consumer within the meaning of Consumer Protection Act.1986. The averments in para 2 and 3 are admitted. Since the loan was availed for business purpose the relationship between the parties is one Debtor and Creditor. The averment in para 5 are admitted. The averment in para 6 and 7 are fails and hence denied. Averments that he has raised the money for settling the suit paying interest at the rate of 24% is false and hence denied. It is admitted that the title deed 2973/80 of Sub Registry Office, Kundara with the opp.party. The above documents was handed over the Advocate for filing the case but the documents was not return the Advocate and failure to return the title deed is due to reasons beyond the controller of the opp.party. There is no willful lneglect on the part of the opp.party and there is no deficiency in service or unfair trade practice. The bank had offered to give certified copy of the documents and affidavit to the effect that the documents irrecoverably loss. No loss is sustained due to the act of the opp.party. If in other documents are regally required the bank is ready to furnish those documents aso to the complainant. The averment in para 10 are false and hence denied. The Fixed Deposit of Rs.27,600/- was given by the complainant to the KSEB as security and this amount was transferred to the Kozhikode Branch of SBT which was collected by them The Aiswarya accounts amounting Rs.18,378/- was adjusted in the OD/CC account on 7.7.95 even prior to the filing sup and all these facts are within the knowledge of the complainant who has filed his complaint which due harassment the opp.party. Hence the opp.party prays to dismiss the complaint. Points that would arise for consideration are: 1. Whether there is deficiency in service on the part of the opp.party 2. Whether the complainant is entitled to get any compensation as prayed for 3. Relief and costs. For the complainant PW.1 is examined. Ext.P1 to P11 are marked. For the opp.party DW.1 is examined. Ext. D1 to D5 are marked. POINTS: There is no dispute that the complainant pledged his property and availed the loan from the opp.party bank crediting an equitable mortgage. It is also not disputed that even after the repayment of the loan amount the Title Deed was not returned to the complainant. The contention of the opp.party is that the title deed was irrecoverably lost. According to the opp.party hey have entrusted the Title Deed of the complainant with their Advocate for filing the suit, but the same was not returned by the counsel. On 26.2.1998, the counsel expired and in spite of earnest attempts the document could be traced out and that there is no deficiency in service or unfair trade practice on the side of the bank. The contention of the complainant is that he has closed the loan borrowing money from money lenders at huge rate of interest on the hope that he could pay back the loan after selling the property. But due to the non receipt of the title deed from the opp.party he could not sell the property and he is incurring huge financial loss due to the act of the opp.party. It goes without saying that the value of the property would be considerably reduced if the seller is unable to give the Title Deed to the intending buyer. As argued by the learned counsel for the complainant no potential buyer would offer the full amount in such cases. The contention that the value has considerably come down for want of Title deed cannot be ignored. The explanation given by the opp.party for not returning the Title deed cannot be swallowed without a pinch of salt. Though the document was handed over to Advocate Akkor Janardhanan Pillai evidenced by Ext. . D5 those documents were not produced before the court can be seen from Ext.P9 and P10 whether the documents was retained by the counsel or returned to the opp.party no evidence is forthcoming. The suits were filed in the year 1995 and as per the averments in the version the counsel expired in the year 1998. The date of disposal of the suits or settlement between the parties is not forthcoming from the evidence on records adduced by both sides. Since the complaint was filed in March 2008 it can be inferred that the matter was settled earlier to 2007. The earlier counsel expired on 26.2.1998 that is much after entrusting of the documents. If the documents were not filed the same ought to have been got back from the counsel. The omission to get back the document even after the disposal of the suit is nothing but negligence on the part of the opp.party if the non-availability of the document was known earlier, the complainant would not have raised loans paying huge interest for settlement of the case. At least when the settlement take was going on the bank has a duty to see that the title deed is with them. Every prudent person would do that. The omission to collect the documents from the counsel concerned after the disposal of the civil suit or at least before settlement is nothing but deficiency in service on the part of the opp.party The contention of the complainant is that he is entitled to get Rs.7,62,652/- from the opp.party towards the Fixed Deposit amount and interest as on the date. Ext. D1 is the Fixed Deposit receipt for Rs.27,600/- The endorsement in Ext. D1 clearly shows that the amount as per the above Fixed Deposit and interest accrued thereon was transferred to the Deputy Chief Engineer, Transmission Circle, Calicut and the complainant himself agreed for the transactions is evident from this signature there in.. Therefore the contention that he is entitled to get the maturity value of the Fixed Deposit for Rs.27,600/- is unsustainable. Regarding the other Fixed Deposit the contention the opp.party is that this amount was adjusted on 7.7.1995 even prior to the institution of the suit in the OD/CC account of the complainant with the opp.party. They have produced Ext. D3 statement of account which also shows that this amount was adjusted . Ext. D4 shows that the complainant made the demand for the maturity value of the above Fixed Deposit on 13.3.93 as per the Ext. D4 letter which is not disputed. When the opp.party established that the above sum was adjusted in the OD account the burden on the complaint to establish that the same is still remaining un disbursed which the complainant failed to establish . Therefore, the claim for the maturity value of Fixed Deposit with interest as on date is unsustainable. In the light of finding that there is deficiency in service with regard to the none returning of the Title Deed, we are of the view that the complainant is entitled to get compensation.. Point found accordingly. In the result the complaint is allowed . The opp.party is directed to pay a sum of Rs. 1,00,000/- towards compensation and Rs.1,000/- towards costs. The order is to be complied with within one month from the date of receipt of this order. Dated this the 30th day of March, 2010. . I N D E X List of witnesses for the complainant PW.1. - Mathews Philip.P List of documents for the complainant P1. – FD receipt P2. – Letter dt. 15.5.2006 P3. –Letter of Opp.party’s counsel dt. 15.5.06 P4. – Letter sent by opp.party to the complainant dt. 19.4.2007 P5. – Advocate notice dt. 8.2.2007 P6. – Reply notice dt. 7.3.2007 P7. – Letter dt. 12.3.2007 P8. – Notice dt. 19.3.2007 P9. – Copy of plaint in OS 418/95 P10. – Copy of plaint in 433/99 P11. – Affidavit dt. 11.4.07. List of witnesses for the opp.party DW.1. – Dominic Joseph List of documents for the opp.party D1. – Security Deposit D2. – Payment slip dt. 1.7.02 D3. – Statement of accounts D4. - Letter sent by RR Constructions to the opp.party dt. 13.3.93 D5. - Inter Office note | 
