By Sri. MOHANDASAN.K, PRESIDENT
The complaint U/s 12 of the Consumer Protection Act 1986.
The complaint in short is as follows:-
1. The complainant availed rupees 20,000/-as loan number 350 PL(A) , 350 PL (B) from the opposite party bank under NABARD Scheme as per simple mortgage deed number 3243/85 of Areecode SRO on the security of property comprised in resurvey number 60, 118 with an extent of 2 Acres and 47 cents in Perakamanna Village of Ernad Taluk. On 08/03/2018 as per the Adalat presided by Sri. Jayarajan it was agreed that the total outstanding amount as Rs.93,039/- and the loan would be closed for a total amount of Rs.33,213/-. In accordance with the settlement in the Adalat the complainant approached opposite party bank to make the payment on 28/03/2018 and was ready to pay entire amount to close the loan. The complainant was entitled to receive back the documents deposited as security to the loan on payment of entire loan amount. But when the complainant approached the bank to close the loan and to get back the document it was informed by the bank that the file maintained could not be located. On 24/03/2018 the complainant issued a written application to release the documents and on that application opposite party replied that the documents will be located as soon as possible. But even after waiting for one month the documents were not located and made available to complainant. On 23/04/2018 upon written application submitted by the complainant the opposite party replied that the original documents are no longer available and registered certified copy of the same was obtained and given to the complainant. The act of the opposite party amounts grave negligence and deficiency in service and the opposite party is responsible for damage, misuse, misappropriation of the document during the tenure. There was no proper explanation from the side of opposite party that what happened to the original documents of the complainant. At last, the complainant caused to issue lawyers notice to the opposite party on 29/09/2018 for which there was no response from the opposite party. Hence the complainant prays for an adequate compensation and cost. The prayer of the complainant is to allow compensation of Rs.10,00,000/- towards misappropriation of original document, 5,00,000/- rupees on account of mental agony sustained to the complainant, Rs.3,00,000/- on account of delay and financial loss sustained to the complainant due to misappropriation of original document. The complainant also pray for cost of the proceedings.
2. On admission of the complaint notice was issued to the opposite party and the opposite party entered appearance and filed version. The opposite party denied the entire averments and allegations contained in the complaint. According to opposite party the complaint is filed without any basis, lack of Bonafede’s, devoid of merits.
3. The opposite party admitted that the complainant had availed a loan of Rs.20,000/- under SADU Scheme on 04/10/1985. Thereafter the complainant did not pay any amount towards the loan. The opposite party sent many number of notices to the complainant to recover the loan but he did not replied or paid the amount. The opposite party realizing the fact that the complainant is no longer remitting the loan amount, the opposite party decided to proceed against complainant. The opposite party filed execution petition as E.P.No.55 of 1993. Despite service of notice the complainant not responded, appeared or paid and so the sale officer appointed by the opposite party issued proclamation of sale and sent notice to the complainant. The notice was accepted by him but he did not pay or responded. The property situated in Perakamanna Village. The opposite party was about to proceed with sale of property, a stay order was obtained by one Kuttappan Nair where he claimed he is the owner of the property and he claims that he is having Pattayam for the land as number 157/1980. There after Sri. Kuttappan Nair filed a complainant before this Commission as OP.No.441/1993 against auction of the property. Mr. Kuttappn Nair also filed complainant before the RDO Perinthalmanna and an order has been obtained.
4. The complainant paid the entire loan amount on 08/03/2018 i.e. after a period of more than 30 years. At the time of settlement the opposite party clearly made complainant aware that the pledged documents is under the consideration of the RDO Perinthalmanna as a part of complaint filed by one Kuttappan Nair. Since it was in courts custody the opposite party could not return back the documents to the complainant and the complainant is fully aware of the whole incident. So this complaint is filed only to harass the opposite party. The complainant has not stated in the complaint that what the documents are. The bank has given a certified copy of the deed to the complainant as soon as complainant settled the matter. Complainant’s ally Sri. Muhammed Zakir Husain Madari also availed a loan from the opposite party pledging the adjacent land.
5. The opposite party denied all the averments, that not able to locate the documents, deliberately ignore the grievance of the complainant. All are baseless hence denied by the opposite party. It is also submitted that there was no negligence in handling the original documents deposited as security from the complainant and the opposite party is not responsible for any damage or misuse or misappropriation of any of the documents, the complainant as claimed and so the complaint has to be dismissed.
6. The complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A7. Ext. A1 is copy of the lawyer notice dated 29/09/2018. Ext. A2 is postal acknowledgement. Ext. A3 is copy of co- operative arbitration award. Ext. A4 is recovery slip dated 28/03/2018. Ext. A5 is certificate of Ernad service cooperative agricultural and rural development board issued to complainant dated 28/03/2018. Ext. A6 is copy of letter dated 24/03/2018 issued by complainant to the opposite party. Ext. A7 is copy of letter dated 23/04/2018 issued by complaint to the opposite party .The documents marked on the side of opposite party as Ext. B1 to B5. Ext. B1 is sale proclamation notice dated 10/04/1993 issued by Tahsildar Ernad Taluk. Ext. B2 is postal acknowledgement dated 17/04/1993. Ext. B3 is copy of notice in OP.441/1993 CDRF, Malappuram. Ext. B4 is Notice issued from RDO Perinthalmanna dated 22/05/1997 to the opposite party Ext. B5 is copy of notice dated 30/05/1997 issued by RDO Perinthalmanna to the opposite party.
7. Heard the complainant and opposite parties, perused affidavit and documents. Following points arise for consideration.
- Whether there is any deficiency in service on the part of opposite party?
- Relief and cost.
8. Point 1and 2
The complainant and opposite party admitted the loan transaction and also the settlement. The complainant approached opposite party on 28/03/2018 to close the loan amount and to get back the documents. But the opposite party informed that the file maintained could not locate. The complainant submitted a written application and then replied that documents would be located as soon as possible. Thereafter on 23/04/2018 when the complainant approached the opposite party it was replied that the original documents are no longer available and instead a certified copy of the same was given to the complainant. Aggrieved by that complainant issued registered lawyer notice to the opposite party and though it was served on him there was no response.
9. The contention of the opposite party is that the complainant availed loan in the year 1985 and since 1993 there was no attempt to remit the loan amount by the complainant, the opposite party preferred execution petition number 55 of 1993. On receipt of notice in the EP the complainant did not respond and so the sale officer issued proclamation of sale and notice was sent to the complainant but even that time also the complainant did not pay or responded to the proceedings. Meanwhile one Kuttappan Nair obtained stay order against sale of the property claiming that he is the owner of the property and he is having Pattayam for the land. Thereafter Kuttappan Nair filed a complaint before this Forum as OP 441 of 1993 against auction of property.The said Kuttappan Nair also filed complaint before RDO Perinthalmanna
and from there also an order was obtained and so the auction of the property was stayed. The complainant paid the entire loan amount as on 08/03/2018. At the time of settlement the opposite party clearly made complainant aware that the pledged document is under the consideration of the RDO Perinthalmanna, as part of the complaint filed by one Kuttappan Nair. Since it was in courts custody the opposite party could not return back the documents to the complainant and the complainant is fully aware of the whole incident. According to opposite party the complaint is filed only to harass the opposite party. It is denied by the opposite party is that the bank was not able to locate the documents and opposite party deliberately ignore the grievance of the complainant. The complainant liable to answer about his right over the land in the light of the claim by another. In short, the issue is that though the complainant closed the loan the opposite party could not trace the documents submitted before the opposite party by the complainant. The opposite party has not denied the contention of the complainant that he approached opposite party to release the document. The complainant submitted documents to substantiate the averments in the complaint and affidavit. Ext. A1 is a lawyer notice demanding the pledged documents. The opposite party did not care to give a reply to the notice. Ext. A5, A6, A7 also establish the averment of the complaint.
10. The contention of the opposite party is that there was a rival claim by one Kuttappan Nair and as part of that claim a consumer complaint as well as a complaint before RDO Perinthalmanna was pending. Due to the above reason the matter was prolonged.
11. In the circumstances it was seen that though the complainant closed the loan amount the opposite party could not trace the documents pledged by the complainant but issued only a certified copy. So it is apparent that there is deficiency in service on the side of opposite party as alleged by the complainant.
12. In this complaint the prayer of the complainant is that to direct opposite party is to pay Rs.10,00,000/- on account of misappropriation of original document. Complainant also prays 5,00,000/- rupees as compensation towards the mental agony sustained to the complainant due to misappropriation of original document. Complainant prays Rs.3,00,000/- as compensation towards the delay and financial loss sustained to the complainant due to misappropriation of original document.
13. It can be seen that the documents are not yet released to the complainant by the opposite party. The complainant paid the settlement amount. The complainant submitted written request to the opposite party to release the pledged document. Thereafter the complainant caused notice to the opposite party but there was no proper reply. There is no satisfactory explanation for the non-releasing of the documents. In the version though the opposite party admitted non- releasing of the document there was no proper explanation for the non-releasing of the document. The explanation regarding the pendency of proceedings before CDRF and RDO Perinthalmanna is not sufficient to exonerate the opposite party from the liability on account of deficiency in service on the part of the opposite party. Hence it will be proper to give direction to the opposite party to give back whole original documents to the complainant. The opposite party submitted in the affidavit and the original documents are available with them. But the prayer of the complainant is to provide huge amount as compensation. In such a situation the opposite party fails to provide original documents to the complainant. In this case the complainant remitted settled amount to the opposite party and demanded documents several times. At last the lawyer notice also issued to the opposite party but there was no proper response from the side of opposite party. If the opposite party could have provided the documents or even a proper reply was given to the complainant the proceedings under the Consumer Protection Act could have avoided. So, the Commission finds that there is grave deficiency of service on the part of the opposite party and the opposite party is also liable to pay adequate compensation to the complainant. We consider Rs.1,00,000/- as reasonable amount of compensation on account of that. The opposite party is submitted that they could trace the documents pertaining to the complaint and so the complainant is entitled to get back the documents. The complainant claims compensation on account of mental agony and financial loss and so we consider Rs.25,000/- as compensation on that account. We also allow Rs.5,000/- as cost of the proceedings.
Considering the above entire fact and circumstances we allow the complaint as follows:-
- The opposite party is directed to give back all the documents produced by the complainant as part of loan Number 350 PL (A) 350 PL (B).
- The opposite party is directed to pay Rs.1,00,000/- ( Rupees one lakh only) as compensation to the complainant on account of delay in providing original documents and thereby caused deficiency in service on the part of the opposite party .
- The opposite party is directed to pay rupees 25,000/- (Rupees twenty five thousand only) to the complainant on account of deficiency in service and thereby caused mental agony and financial loss to the complainant.
- The opposite party is also directed to pay Rs.5,000/- (Rupees Five thousand only) as cost of the proceedings to complainant .
The opposite party is directed to comply this order within one month from the date of receipt of copy of this order, failing which the complainant is entitled interest @12% per annum from the date of receipt of copy of this order till realization
Dated this 15th day of March, 2022.
MOHANDASAN.K, PRESIDENT
PREETHI SIVARAMAN.C, MEMBER
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext. A1 to A7
Ext.A1: Copy of the lawyer notice dated 29/09/2018.
Ext.A2: Postal acknowledgement.
Ext A3: Copy of co- operative arbitration award.
Ext A4: Recovery slip dated 28/03/2018.
Ext A5:. Certificate of Ernad service cooperative agricultural and rural development
board issued to complainant dated 28/03/2018.
Ext.A6: Copy of letter dated 24/03/2018 issued by complainant to the opposite party.
Ext.A7: Copy of letter issued by complainant to the opposite party dated 23/04/2018
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B3
Ext.B1: Sale proclamation notice dated 10/04/1993 issued by Tahsildar Ernad Taluk.
Ext.B2: Postal acknowledgement dated 17/04/1993.
Ext.B3: Copy of notice in OP.441/1993 CDRF, Malappuram.
Ext.B4: Notice issued from RDO Perinthalmanna dated 22/05/1997 to the opposite
party.
Ext. B5: Copy of notice dated 30/05/1997 issued by RDO Perinthalmanna to the
opposite party .
MOHANDASAN.K, PRESIDENT
PREETHI SIVARAMAN.C, MEMBER
