KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL 620/2009
JUDGMENT DATED: 13.12.2010
PRESENT:-
JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT
SHRI.S.CHANDRA MOHAN NAIR : MEMBER
APPELLANTS
1. State Bank of Travancore,
Thiruvarpu Branch,
Kottayam.
2. The Manager,
State Bank of Travancore,
Thiruvarpu Branch,
Kottayam.
(Rep. by Adv. Sri. S.S. Kalkura & Others)
Vs
RESPONDENTS
Gopalakrishnan E.K.,
Divya Bhavan,
Kiliroor West,
Kottayam
(Rep. by Adv. Sri. Dileep Sathyan)
JUDGMENT
SHRI. S. CHANDRAMOHAN NAIR : MEMBER
The order dated 26.9.2009 of CDRF Kottayam in C.C. 97/08 is being challenged in this appeal by the opposite parties who are under directions to pay to the complainant a sum of Rs. 10,000/- as compensation and 1,000/- as costs.
The complainant had approached the Forum stating that he was conducting G.K. Foot wares for earning a livelihood and that he had taken a loan from the opposite parties and the same had been closed with interest. It is his case that though he had closed the loan, the opposite parties did not return the documents pledged by him towards security for the loan. He has also stated that his position as a director and guarantor to the loan sanctioned to M/s. Kottayam Leather works and wears consortium private Ltd, cannot be a ground for refusing the release of the documents by the opposite parties. Alleging deficiency of service, the complaint was filed praying for directions to the opposite parties to return the document and also to pay Rs. 25,000/- as compensation and cost of the proceedings.
The opposite parties filed version wherein it was contended that the complaint was not maintainable and also that there was a civil suit at sub court, Kottayam vide suit No. OS 16/2008 for realization of money from the company in which the complainant was a director and guarantor. It was also submitted that though the complainant had remitted the loan amount with dues the opposite parties had the power to retain the documents of the complainant till the loan sanctioned to the company was realized. The opposite parties further contended that they had the banker’s lien and right to retain the title deed and hence there was no deficiency of service on their part.
The evidence consisted of the affidavit filed by both parties and Exts. A1 and A2.
The learned counsel for the appellants submitted before us that the order of the forum below is perse illegal, unsustainable and hence to be set aside. It is his very case that though the complainant had cleared the dues of his loan he was a guarantor to the loan sanctioned to M/s. Kottayam Leather Works and Consortium Pvt. Ltd. in which he was a director also. The learned counsel has relied on the decision of the Hon’ble National Commission in M. Mallika Vs. State Bank of India and another (IV 2006CPJ(1)NC) wherein it is held that banks could exercise its general lien over documents/title deeds deposited in one branch for receipt of loan in other branch and holding a document is not deficiency in service. He has also relied on the decision of the Hon’ble National Commission in branch manager, Union Bank of India and another Vs. Teli Surya Roa(II 1997 CPJ 67 NC) where it is held that bank can exercise its lien against the F.D. Receipts of the loan. Thus he advanced the contention that the Forum below was not correct in entertaining the complainant and directing the opposite parties to pay the amounts shown above.
On hearing the learned counsel for the appellants and on perusing the records, we find that as per Ext. A1 , the complainant was informed by the 1st appellant that his document could not be released because the complainant was a guaranter to the loan sanctioned to M/s. Kottayam Leather goods and consortium Pvt. Ltd. and they have filed a suit against by Suit No. O.S. 16/2008 dated 4.1.2008. It is also seen that as per Ext. B1, the Sub Court, Kottayam has passed orders restraining the defendant /complainant from alienating the disputed property. Though we find that Ext. B1 is dated 3.7.2009 it is also fount that the suit was instituted as back on 4.1.2008 and the complainant when clearing the dues was liable to indemnify the debts of the firm named Kottayam Leather Works and Consortium Pvt. Ltd. The complainant has no case that he was not a director of the said Firm and that there was no arrears for the Firm when he closed his private loan. It is to be found that Section 171 of the Indian Contract Act. 1872 gives ample powers to the banks to retain any deposits or documents of the loanees if they find that the loanees is indebted to some other loans. The learned counsel had invited our attention to the decision of the Hon’ble Supreme Court in The Bank of Bihar Ltd., Vs. Dr. Damodar Prasad and Another, wherein it is held that the liability of a surety/guarantor will not be exhausted until and unless the principal debtor clears all the dues to the company. Thus we find that the bank has general lien over the documents/title deeds of the loanees if there are indebted to the banks in any other way In the circumstances we find that the Forum below had not appreciated this position of Law while disposing of the complaint before them. The order of the Forum below directing the opposite parties to pay compensation and costs is liable to be set aside and it is done so accordingly.
In the result, the appeal is allowed. The order dated 26.9.2009 of CDRF, Kottayam in C.C. 97/08 is set aside. In the facts and circumstances of the present appeal the parties are directed to suffer their respective costs.
S. CHANDRAMOHAN NAIR : MEMBER
JUSTICE. K.R. UDAYABHANU : PRESIDENT
