DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

========

Indu Sethi Wd/o Subash Sethi r/o House No.399, Sector 44-A, Chandigarh.

…..Complainant

                                      V E R S U S

HDFC Bank, Plot No.28, Industrial Area, Phase I, Chandigarh.

……Opposite Party

QUORUM:   P.L.AHUJA                                                  PRESIDENT

                   RAJINDER SINGH GILL                                MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA         MEMBER

Argued by: Sh.H.P.S.Kochhar, Counsel for the complainant.

                     Sh.R.S.Bhatia, Counsel for the OP.

PER P.L.AHUJA, PRESIDENT

1.                Smt.Indu Sethi, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Housing Development Financial Corporation Bank - Opposite Party (hereinafter called the OP), alleging that she along with her husband Mr.Subash Sethi and son took a home loan having account No.91844171 of Rs.1,28,00,000/- from the OP by depositing the original title deed of House No.2134, Sector 21-C, Chandigarh, which was in her name and that of her husband. The husband of the complainant had also taken a personal loan having account No.91626663 in his name only without surety/guarantee. The husband of the complainant passed away in January, 2010. The complainant initially paid some EMI’s of the home loan and, thereafter, unable to sustain herself and continue the business profitably left by her husband sold the property in which she carried on the business and paid back the total amount of the home loan vide receipts bearing No.23964082 (wrongly mentioned in the complaint as 23964081) & 23964081 both dated 6.7.2011, copies of which are Annexure C-1 and C-2. It has been further alleged that after the demise of her husband, the complainant continued to pay erroneously the EMI’s of the personal loan @Rs.18,283/- from 23.2.2010 to 27.7.2010 i.e. seven installments totaling Rs.1,27,981/- and photocopies of the receipts are Annexure C-3 to C-9. It has been contended that after the satisfaction of the home loan, the complainant requested the OP to return the original title deed/papers of the house bearing No.2134, Sector 21-C, Chandigarh kept by OP as security for the home loan but the OP refused to return the same saying that they will not realize (release ?) the same till the satisfaction of the personal loan taken by the husband of the complainant. The complainant while giving the whole background of the case made a request vide email – Annexure C-10 to the Manager Customer Service, which was replied by email, whereby, the OP refused to return the original title deed/ papers of the house till the amount of personal loan is satisfied. The complainant has alleged deficiency in service and unfair trade practice on the part of OP. The complainant has made a prayer for a direction to the OP to refund the amount of Rs.1,27,981/- ; to return the title deed/papers of house bearing No.2134, Sector 21-C, Chandigarh. Apart from it, the complainant has also made a prayer for compensation and litigation expenses.

2.                The complaint has been opposed by the OP. It has been averred that the complaint is not maintainable. It has been admitted that housing loan was availed by Mr.Subhash Sethi and copy of the statement of accounts in respect of that loan is Annexure R-1. It has been also stated that Mr.Subhash Sethi had also availed personal loan to the tune of Rs.7,20,000/- and copy of the statement of accounts in respect of the said loan is Annexure R-2. It has been admitted that Mr.Subhash Sethi expired in January, 2010 and, thereafter, the complainant has adjusted the housing loan which is reflected in the statement of account. It has been averred that the complainant inherited the assets of Late Mr.Subhash Sethi, therefore, she is liable to discharge his liabilities also i.e. to pay the outstanding amount in his loan account. It has been denied that the personal loan  without any guarantee or surety lapses on the death of the borrower. As per the law, legal heirs of the deceased borrower remain liable to pay to the creditor to the extent they have inherited the estate of the borrower. It has been stated that the bank has correctly recovered the EMIs and is still entitled to recover dues along with interest charged thereon and also further interest till the final realization of the amount by the OP Bank. It has been averred that since the complainant is still liable to pay the outstanding dues in the personal loan account, she cannot claim back the original title deed/papers of the housing loan account from the bank. It has been stated that the bank has retained the said title deeds claiming a general lien of the bank on the documents till satisfaction of the personal loan.

3.                The parties led evidence in support of their contentions.

4.                We have carefully gone through the documents on the file and heard the arguments addressed by the learned Counsel for the parties.

5.                It has been urged by the learned Counsel for the complainant that Mr.Subhash Sethi, husband of the complainant had taken personal loan of Rs.7,20,000/- from the OP. He has argued that the husband of the complainant passed away in January, 2010 and after his demise, the complainant erroneously paid the EMIs of the personal loan @ Rs.18,283/- from 23.2.2010 to 27.7.2010. He has argued that the said personal loan was without any guarantee or surety and the same lapsed on the death of the borrower. This fact was known to the OP but it continued to take EMI’s of the personal loan from the complainant and the complainant is entitled to get back the said amount from the OP with interest. He has further urged that the complainant has repaid the home loan account No. 91844171 of Rs.1,28,000/- taken from the OP by her and her husband after depositing the original title deed/papers of house bearing No. 2134, Sector 21-C, Chandigarh. However, even after discharging that home loan account after the death of her husband, the OP is illegally not returning the original title deed/papers to the complainant on the plea that the amount of personal loan of Mr.Subhash Sethi has not been satisfied. The learned Counsel for the complainant has strenuously argued that the OP has not produced any copy of the loan agreement or the bank’s policy in accordance with which it can retain the title deeds till the personal loan account of Mr.Subhash Sethi is cleared by the complainant. He has contended that the act of the OP points out towards their unfair trade practice and  deficiency in service on their part.

6.                On the other hand, the learned Counsel for the OP has argued that after the death of Mr.Subhash Sethi, the complainant has inherited the assets of Late Mr.Subhash Sethi and she is liable to discharge his liabilities also. The learned Counsel for the OP has cited M.Mallika Vs. State Bank of India & Anr. IV (2006) CPJ 1 (NC), Sh.B.P.Gupta Vs. The State Bank of India, New Delhi, Vol. CIII-(1993-1)] The Punjab Law Reporter 18 and Syndicate Bank Vs. Vijay Kumar, 1992 AIR (SC) 1066 and has argued that the banker has a general lien over such securities or bills received from a customer in the ordinary course of banking business and has a right to use the proceeds in respect of any balance that may be due from the customer by way of reduction of customer’s debit balance in accordance with the provisions of Section 171 of the Contract Act. He has contended that the bank can exercise its general lien over documents/title deeds deposited in one branch in respect of the loan in another branch.

7.                We have given our thoughtful consideration of the above arguments.  It is the admitted case of the parties that the complainant and her husband had taken home loan having account No. 91844171 from the OP by depositing the original title deed of the house bearing No. 2134, Sector   21-C, Chandigarh. Mr.Subhash Sethi, husband of the complainant died in January, 2010 and after his death, the complainant has repaid the entire home loan amount on 6.7.2011 vide repayment receipts – Annexure C-1 and C-2. The title deed/papers of the house bearing No. 2134, Sector 21-C, Chandigarh are still lying with OP and the same are not being released by the OP.

8.                It is also admitted case of the parties that Mr.Subhash Sethi had also taken a personal loan having account No. 91626663 from the OP without surety/guarantee. After the death of Mr.Subhash Sethi, the complainant deposited the EMI’s of personal loan                  @Rs.18,283/- for the period from 23.2.2010 to 27.7.2010. According to the complainant, the amount in question was paid erroneously and the personal loan lapsed on the death of her husband, therefore, she is entitled to get back the amount of Rs.1,27,981/- with 12% interest. However, we are not impressed with the above contention. When the personal loan was taken by the husband of the complainant and complainant has inherited the assets of her late husband, she is liable to discharge his liabilities out of the estate inherited by her. If her husband had not given any surety/guarantee in the personal loan account, it does not mean that the legal heirs of her deceased Mr.Subhash Sethi are not liable to make payment of the loan amount and interest out of the estate left by the deceased in their hands. When the OP has to recover the amount of personal loan of Mr.Subhash Sethi and his legal heirs including the complainant are liable to make the repayment, it does not lie in the mouth of the complainant to allege that she is entitled to get back the amount of seven installments amounting to Rs.1,27,981/- along with interest from the OP. We feel that until the payment of the personal loan amount of Mr.Subhash Sethi is repaid by the legal heirs, the OP bank is entitled to retain the title deeds of house bearing No. 2134, Sector 21-C, Chandigarh. We are not impressed with this contention that the OP should release the title deeds of the house bearing No. 2134, Sector 21-C, Chandigarh to the complainant and, thereafter, they should file a suit for recovery for recovering the amount from the complainant and other legal heirs of Mr.Subhash Sethi out of the estate left by Mr.Subhash Sethi in the hands of the legal heirs. We are of the view that the complainant has not come to the Forum with clean hands. When the payment of the personal loan of her husband is yet to be made by her and the other legal heirs, she should have made the payment and cleared the loan as was done in case of home loan account. The complainant wants to avoid the liability of making the repayment of the loan taken by her husband through his consumer complaint and this Forum cannot assist the complainant because if the title deed of the house No. 2134, Sector 21-C, Chandigarh is returned to the complainant, she along with other legal heirs may sell the house and defeat the genuine claim of the OP. Consequently, we do not find any unfair trade practice or deficiency in service on the part of OP.

9.                For the reasons recorded above, the complaint is devoid of any merit and the same is dismissed, leaving the parties to bear their own costs.

10.              The certified copies of this order be sent to the parties free of charge. The file be consigned.