BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA<br /> <br /> PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President,<br /> 2. M.N.MANOHARA, B.A.,LLB., Member,<br /> <br /> ORDER<br /> <br /> Complaint No.MDF/C.C.No.146/2009<br /> Order dated this the 19th day of July 2010<br /> <br /> COMPLAINANT/S <br /> <br /> Smt.N.Prema W/o A.Madhavan,<br /> R/o Hosahally Extension, Mandya City.<br /> (By Sri.M.S.Raju., Advocate)<br /> <br /> -Vs-<br /> <br /> OPPOSITE PARTY/S <br /> 1.The Secretary, House Building Co-operative Society Ltd., 2nd Cross, Subashnagar, Mandya.<br /> 2.Karnataka State Co-operative Housing Federation Ltd., # 3, Diwan Madava Rao Road, Basavanagudi, Bangalore. <br /> (By Sri.K.M.Basavaraju (Kundur)., Advocate for O.P.1 & Sri.M.K.Bhaskaraiah., Advocate for O.P.2)<br /> <br /> Date of complaint 02.12.2009<br /> Date of service of notice to OPs 22.12.2009<br /> Date of order 19.07.2010<br /> Total Period 6 Months 27 days<br /> Result The complaint is allowed, directing the 2nd Opposite party to return the original registered sale deed dated 05.02.1982 and other documents of the Complainant within six weeks and 1st Opposite party is directed to pay compensation of Rs.5,000/- with cost of Rs.500/- to the Complainant within six weeks.<br /> <br /> Sri.Siddegowda,<br /> President<br /> <br /> 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 for a direction to return the original registered sale deed and other documents pledged and compensation of Rs.25,000/-. <br /> 2. The case of the Complainant is that the Complainant raised mortgage loan of Rs.29,000/- on 30.05.1986 by executing the registered mortgage deed in favour of 1st Opposite party in respect of property katha No.H-294-K-7915 situated at Hosahally Extension, Mandya City, having purchased under the sale deed dated 05.02.1982 from one Smt.Kempamma. The Complainant has discharged the loan due to the 1st Opposite party and 1st Opposite party has also executed the discharge deed dated 08.04.1996. At the time of executing the discharge deed, the Opposite party was bound to deliver back the original sale deed in favour of the Complainant. But, Opposite party informed that the sale deed is misplaced in the office and would be delivered after tracing out. On several occasions, the Complainant requested the Opposite party to deliver back the original registered sale deed. But, the Opposite party on one or other grounds went on postponing. Recently the Complainant came to know that 1st Opposite party has pledged the documents of Complainant and the same is in the custody of 2nd Opposite party. The original registered sale deed is very much essential for the Complainant. Though, 13 years have elapsed, the 1st Opposite party has made the complainant to visit the office of the Opposite party through out, but not yet returned. Therefore, the Opposite parties have committed deficiency in service. A legal notice dated 13.10.2009 was sent and served and Opposite party has not delivered back the documents. Hence, the presence complaint. <br /> 3. The Complainant has filed an application under section 24(A) of Consumer Protection Act, to condone the delay in filing the complaint and this Forum has accepted the grounds pleaded and admitted the complaint.<br /> 4. Notices were issued to 1st Opposite party and 1st Opposite party was served and later 2nd Opposite party was impleaded and the both parties have filed version.<br /> 5. The 1st Opposite party has pleaded admitting the borrowing of loan by the Complainant by mortgaging the immovable property and also discharge of the loan and execution of discharge deed dated 08.04.1996, but has denied that the Opposite party stated that the sale deed is misplaced, immediately after the same is traced out, it would be delivered. Admitting the service of legal notice, the other averments are disputed. The Opposite party Society has taken loan from 2nd Opposite party Federation and the said loan amount was distributed among the members of the society. The loan was taken from the federation amounting to Rs.83,00,000/- from 1979 to 1992-93. The 1st Opposite party has already deposited Rs.1,43,36,939/-. In spite of the amount deposited, the federation has not returned the documents of the members who have taken the loan, all the documents pledged by the members of the society including the Complainant are in the custody of federation that is 2nd Opposite party as it is Head Office having control over the Opposite party Society. As such, the federation is bound to return the documents. The 1st Opposite party is not in a position to return the documents. The 1st Opposite party by assignment of title deed of the members of the society, who sought for loan obtained the loan and distributed among the members and the federation is assignee of the loan and title deeds of the Complainant. The complaint is barred by limitation. Therefore, the complaint is liable to be dismissed.<br /> 6. The 2nd Opposite party has filed version pleading that the complaint is not at all maintainable. It is a false and frivolous. There are no averments made against 2nd Opposite party. It appears that the Complainant had approached the 1st Opposite party for loan in order to construct a house and borrowed the loan from 1st Opposite party by mortgaging the said property. In turn, 1st Opposite party assigned the said mortgage property in favour of the 2nd Opposite party and raised loan by agreeing to return the same on equated monthly installments as and when he collects the said amount from the Complainant. On the basis of the assignment of the property, the 2nd Opposite party has raised loan from LIC of India by creating a lien. Though, the Complainant alleged that the 1st Opposite party has collected the loan amount and issued Loan Clearance Certificate, but without remitting the loan to 2nd Opposite party as per the condition of assignment deed, the Complainant has not discharged the loan borrowed. Therefore, the 2nd Opposite party has right to retain the original title deeds. The Complainant never approached the 2nd Opposite party about the discharge of loan. It appears that the Complainant and 1st Opposite party have colluded together and concocted the loan discharge certificate without clearing the loan in order to defraud the 2nd Opposite party. The 2nd Opposite party has raised a dispute against the 1st Opposite party before the Additional Registrar of Co-operative Societies, got an award to an extent of Rs.1,23,00,000/- odd which is challenged by 1st Opposite party by filing an Appeal No.766/2009 before K.A.T. Bangalore. The Complainant has no right to seek a direction to return the original documents of property till the loan is cleared by Complainant. The 2nd Opposite party has not committed any deficiency in service. Therefore, the complaint is liable to be dismissed.<br /> 7. Both the parties have adduced evidence by filing affidavit and documents Ex.C.1 & C.2 and Ex.R.1 to R.5.<br /> 8. We have heard the both sides.<br /> 9. Now the points that arise for our considerations are:-<br /> 1. Whether the Complainant has discharged the mortgage loan and 1st Opposite party executed the discharge deed of mortgage?<br /> 2. Whether the 1st & 2nd Opposite parties have committed deficiency in service in not returning the title deeds of the property to the Complainant?<br /> 3. Whether the Complainant is entitled to the reliefs sought for? <br /> 10. Our findings and reasons are as here under:-<br /> 11. POINT NO.1:- The undisputed facts are that the Complainant is the member of the 1st Opposite party Society and borrowed loan of Rs.29,000/- on 30.05.1986 by executing the registered mortgage deed in favour of 1st Opposite party of her site property, purchased under the sale deed dated 05.02.1982. Ex.R.3 is the mortgage deed between the Complainant and 1st Opposite party. <br /> 12. According to the Complainant, she has discharged the loan and 1st Opposite party has executed the mortgage discharge document as per Ex.C.1. The 1st Opposite party has admitted the same. It is a registered document exhibited by the President, Secretary and two Executive Members in favour of the Complainant on 08.04.1996. So, it is a registered mortgage discharge document, executed by the competent persons and now it is not open to 2nd Opposite party to contend that it is a document created by the Complainant in collusion with 1st Opposite party Society. It is not the case that the recently for the purpose of filing the complaint, this document is created. Even though, the Complainant has not produced the receipts for having paid the loan amount, but admittedly the loan has to be discharged in installments of 180 months as per the condition mentioned in mortgage deed Ex.R.3. So, we cannot expect all the receipts for having discharged the loan after a lapse of 14 years, when there is a registered mortgage discharge document as per Ex.C.1. Even, the Complainant got issued notice to 1st Opposite party and if actually, the Complainant was due of loan, 1st Opposite party would have definitely sent reply. But, 1st Opposite party has not at all sent any reply to the legal notice of the Complainant as per Ex.C.2. Therefore, it is proved by the Complainant that she has discharged the loan borrowed from 1st Opposite party and therefore, we answer point no.1 in the affirmative.<br /> 13. POINT NO.2:- The Complainant’s grievance is that though she has discharge the loan of mortgage, 1st Opposite party has failed to return the title deeds of the immovable property that was mortgaged and in spite of several requests and legal notice Ex.C.2, 1st Opposite party has not returned the title documents of the property. But, the contention of 1st Opposite party is that it has borrowed the loan by assignment of the mortgage deed of the members who applied for loan and distributed to such applicant members and though it has deposited loan of Rs.1,43,36,939/- for the loan of Rs.83,00,000/-, 2nd Opposite party has not at all returned the documents of the members who have discharged the loan and in fact, 1st Opposite party has sent letter Ex.R.1 with list Ex.R.2. But, the contention of 2nd Opposite party is that 1st Opposite party which borrowed the loan has not discharged the loan and so dispute was filed before the Additional Registrar of Co-operative Society and got an award to an extent of Rs.1,23,00,000/- was passed and 1st Opposite party has filed Appeal before the K.A.T. and hence, 2nd Opposite party has right to retain the mortgage deeds which were assignment by the 1st Opposite party. Further, 2nd Opposite party has contended that the loan of the Complainant is not discharged either by 1st Opposite party or the Complainant and as per the account extract the loan of the Complainant is due to the extent of Rs.1,58,768/-, 2nd Opposite party has produced the account extract Ex.R.5. But, the official of 2ndn Opposite party has admitted that they have informed the 1st Opposite party Society about the adjustment of the amount deposited by 1st Opposite party to which of the accounts. Further, admitted that the 1st Opposite party has deposited the amount with list of the members who have deposited and what amount and those documents are available and could be produced. It is also admitted that Ex.R.1 letter was received from 1st Opposite party, but the receipt of the list Ex.R.2 along with R.1 is disputed. But, in Ex.R.1 it is clearly mentioned the list of members and the amount deposited for those members account in detail, but 2nd Opposite party has not sought for the details of the members who had deposited and the extent of amount deposited by the members. There is no explanation for this glaring negligence. As per the evidence of 1st Opposite party, though they have deposited more than Rs.1,43,36,939/- and odd, but that amount is taken to bulk account and the details of adjustment were not at all informed. Even, the official of 2nd Opposite party has admitted that the property of the 1st Opposite party Society is taken as security for the loan. It is admitted by 2nd Opposite party that it has not issued any notice to the Complainant informing that the 1st Opposite party has not at all paid the loan of mortgage and to discharge the same. Even, the Complainant is not made a party before the Additional Registrar of Co-operative Society. There is no agreement admittedly between the Complainant and the 2nd Opposite party that the Complainant shall directly deposit the loan borrowed to the office of 2nd Opposite party. When 1st Opposite party has deposited more than one crore along with list of members who have paid the loan, the 2nd Opposite party is bound to adjust the amount deposited towards the borrowers account. But, the 2nd Opposite party has not at all produced any documents and details of the amounts paid by the 1st Opposite party and the remittance and whether the deposited amount was adjusted towards the account of each borrower. The non-production of details of deposit by 1st Opposite party and list of members to whose loan account the amount is adjusted, presumption should be drawn against 2nd Opposite party, that 2nd Opposite party has not adjusted the amount deposit to particular members, but taken to bulk account. The 2nd Opposite party has produced Ex.R.5 the loan account of the Complainant and according to this document, the Complainant has not at all paid any amount towards the loan why 2nd Opposite party kept quite without issuing notice to the Complainant and enforce the assignment deed against the Complainant is astonishing. Admittedly, no action is taken against the Complainant to realise the loan due, though it has maintained the loan account. The 2nd Opposite party would have maintained the loan account of the 1st Opposite party, because it has borrowed the loan by assignment of the mortgage deeds by the members of the society. But, 2nd Opposite party has maintained the individual loan account of each member of the 1st Opposite party Society who have borrowed the loan, it should have informed the members to deposit the loan to its account directly and so there is no meaning of maintaining individual loan account of the members who borrowed the loan from 1st Opposite party. When it is proved that the Complainant has discharged the loan and 1st Opposite party has executed mortgage loan discharge deed as per Ex.C.1, the Opposite parties are bound to return the title deeds of the Complainant. No doubts according to the 2nd Opposite party it has obtained award against the 1st Opposite party and even the property of the 1st Opposite party is taken as security for the loan and hence, the 2nd Opposite party can proceed against the 1st Opposite party for the loan due including the Complainant if any, but 2nd Opposite party has no right to retain the title documents of the Complainant, when 1st Opposite party has discharged the loan. The 2nd Opposite party has committed deficiency in service in not properly maintaining the details of amount deposited by the 1st Opposite party towards the loan of the members, when the list of the members who have discharged the loan is submitted to 1st Opposite party and no objection was made by the 2nd Opposite party. Therefore, the 1st & 2nd Opposite parties have committed deficiency in service in not returning the title deeds of the Complainant. <br /> 14. The Complainant has sought for direction to the Opposite parties to return the documents with compensation. In view of our findings on points no.1 & 2, the 2nd Opposite party who is admittedly in custody of the title deeds of the Complainant is bound to return the title deeds of the Complainant and Complainant is entitled to the title documents and in the present circumstances of the case, the Complainant is also entitled to compensation for delay in no returning the documents by 1st Opposite party, because 1st Opposite party has not intimated the Complainant that it has assigned the mortgage documents in favour of the 2nd Opposite party. Therefore, only after filing the version by 1st Opposite party, the 2nd Opposite party has been impleaded and relief is sought for by the Complainant.<br /> 15. The 1st Opposite party has taken a contention that complaint is barred by limitation and the Complainant has not filed any application for condonation of delay. But, 1st Opposite party has mis-understood without seeing the records. In fact on 15.12.2009 itself, the Complainant has filed I.A.I under Section 24 A of the Consumer Protection Act, to condone the delay and on the basis of the sufficient reasons given by the Complainant for condoning the delay, the complaint has been admitted and notice was issued to the Opposite party and Opposite party has filed version on 25.01.2010. In the evidence, 1st Opposite party has not questioned the Complainant in evidence about the delay in lodging the complaint and has not disputed the reasons offered for delay in filing the complaint. Therefore, the complaint cannot be dismissed on the ground of limitation. <br /> 16. In the result, we proceed to pass the following order;<br /> ORDER<br /> The complaint is allowed, directing the 2nd Opposite party to return the original registered sale deed dated 05.02.1982 and other documents of the Complainant within six weeks and 1st Opposite party is directed to pay compensation of Rs.5,000/- with cost of Rs.500/- to the Complainant within six weeks. <br /> <br /> (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 19th day of July 2010).<br /> <br /> (PRESIDENT) (MEMBER)<br /> <br /> <br />