Per Hon’ble Mr.S.R.Khanzode, Judicial Member
All these complaints are disposed of by this common order since they involve identical facts and common question of law.
Complainants in each case are sister concerns. They are in the form of either Limited companies, partnership firm or proprietary concern. It is the contention of Mr.Kirtikumar Mehta that he, his family and extended family members are running a Photography Laboratory business under different names and style i.e.complainants. It is further contended on their behalf that for the business they have raised various loan and loan facilities were taken from opponent/ICICI Bank (herein after referred as ‘Bank’ for brevity) during the period 30/10/2004 to 11/06/2007. They have created equitable mortgage/English mortgage or mortgage by depositing Title deeds to raise the various loans. Loans were fully repaid. Somewhere on or before 15/04/2010 the bank also issued letters accordingly. However, the bank failed to return the original title documents pledged with them or given by way of security as a mortgage. Therefore, alleging deficiency in service on the part of the bank, these consumer complaints are filed. By way of relief, in short, the complainants claimed direction against the Bank to return the original title deeds and to pay compensation to the extent of `1 crore.
The bank opposed these consumer complaints submitting that there is no deficiency in service on their part, though admits loss of documents, which according to the bank is an unfortunate event but further submitted that they are willing to co-operate with the complainants to obtain the certified copies of those documents at their costs. However, since the complainants were not co-operating, the copies of the documents so far could not be obtained. It is also submitted on their behalf that they are willing to give necessary Indemnity Bond/Declarations, etc.
We heard both the parties at length for admission. Factual matrix as recounted earlier is not in dispute. The fact that the services of the bank were hired for raising the loan for their various businesses by the complainants is not in dispute. It is also not in dispute that the documents of title which were given to create various mortgages by way of security to the loan raised is also not in dispute. Bank categorically stated that unfortunately they have lost those documents and, therefore, they are not in a position to return them. However, the bank showed its willingness to co-operate with the complainants to obtain the certified copies (of those documents) at their expenses and also showed willingness to give necessary declarations, indemnity, etc. for that purpose.
Once the loss of documents is admitted, for whatsoever reason it may be, the question of returning them would not arise in terms of deficiency in service. If due to loss of documents, any tortuous liability is incurred or could be fastened on the Bank, the remedy lies elsewhere and not before the Consumer Fora. Loss of documents is an unfortunate event, but it is not that copies of those documents which were perhaps registered documents, could not be obtained by completing the necessary formalities. Those copies also can be used safely in absence of the original documents (since the original documents were lost) with necessary declaration, indemnity, etc.
The alleged deficiency in service on the part of the bank by not returning the original documents of title deeds which were given in mortgage, etc. is the part of the services hired of the bank to raise the loan for their respective business, by the complainants. Since these loans, per se, obtained as a part of business activity by the complainants; the same are obtained for commercial purpose vis-à-vis services of the bank were hired for commercial purpose. All the complainants are legal persons i.e. juristic persons within the meaning of section 2(1)(m) of the Consumer Protection Act, 1986 (‘Act’ for brevity).
Just to overcome the statutory disqualification of a ‘consumer’ within the meaning of section 2(1)(d)(ii) of the Act, the complainant tried to take contradictory stands for e.g. In consumer complaint no.62/2011 where the complainant is M/s.Kamal Photo Studio Colour Lab, it was initially described as a partnership firm and then it is tried to be shown as proprietary concern by mere scoring the word partnership firm and substituted it by the words proprietary concern and the correction is signed by the lawyer of the complainants rather than complainant himself. In fact said complaint being verified and affirmed by Mr.Kirtikumar Mehta, such correction therein by a lawyer is impermissible.
In respective consumer complaints, except the statement that the complainants as described are consumers within the meaning of section 2(1)(d) of the Act, nothing more is stated except that Mr.Kirtikumar Mehta’s (the complainant) livelihood is completely and solely dependant on the earning of business of the complainant and, hence, services hired by the complainant of the bank is not for ‘commercial purpose’. Complainant Mr.Kirtikumar Mehta also in his affidavit of evidence, which is nothing but a verification to the complainant’s affidavit as well as in affidavit in evidence cum rejoinder tried to state differently. In his affidavit in evidence cum rejoinder (filed in consumer complaint no.62/2011), he tried to ascertain as under:-
“1. I, along with my family members are carrying on the business of photography. We are a joint family and my extended family includes my brothers, Mr.Nitin N.Mehta, Mr.Harish N.Mehta, Mr.Atul N.Mehta, Mr.Sailesh N.Mehta, along with their family, which includes their married children and my daughter, Mrs.Khushboo Doshi, along with my son-in-law. I say that I along with all my family members (extended family members) carry on the business in photography. I am the eldest of all siblings in my family and all my brothers have trust in me, firstly because of the fact that I am the eldest and was the first to begin this business for the benefit of the family and secondly, my family members repose faith in me, as I have lost my only son at a tender age.
2. I say that there are in all 21 members of my family, which includes myself, my wife, my brothers, their spouses, their married children, i.e. sons and daughter-in-law, as well as my daughter and son-in-law. Annexed hereto as Exhibit-A, is the list of the persons who are involved and/or whose livelihood is dependent solely upon the business of photography, carried out by me, jointly with my extended family members.
3. I say that as I had to take care of such a large family – extended family, I thought it fit to have separate entities i.e. separate Companies and/or partnership firms, wherein the distribution amongst the family members would be easy. Accordingly, I have formed various companies and/or partnership firms, with a view that the distribution amongst the family members at a future date, if required, would be made easy. I say that the complainant herein is one such entity, on the business of which my livelihood as well as the livelihood of the persons mentioned in Exhibit-A is dependant. From the profits of the business in photography, properties had been purchased by me/the complainant and the other entities or the family members for the benefit of my family and my extended family. Again the same was brought in the collective pool of the family for the betterment of the business, which again was for the benefit of the family and the extended family members.”
In the background, it may not be out of place to mention the stand of the complainant Mr.Kirtikumar Mehta as reflected from their pre-litigation lawyer’s notice dated 17/06/2010 and it reads as under:-
“Our client states that he is in the business of Photography and has various studios for development and process of films and is running his business in various names and styles inter alia SANDIP COLOUR LAB, RUPAM COLOUR LAB PVT LTD, KAMAL PHOTO STUDIO & COLOUR, SNAP LAB PVT LTD., SRK CREATIVE PVT.LTD., of which he is the Partner, Director, etc., and in his individual’s name Kirtikumar N. Mehta, etc.”
This particular statement is in direct conflict with the stand tried to be taken in their respective complaints and in the affidavits filed by Mr.Kirtikumar Mehta, supra, and, thus, variance or change of stand from time to time is self destructive and greatly affects the credibility of such stories. There are no documents on record to show and which will throw light on the incorporation/formation of these various concerns i.e.the complainants and how they are represented themselves before the Tax Authorities. There is nothing on record to show the total turnover of each complainant company or concern. However, considering the magnitude of the loan facilities obtained and compensation of `1 crore claimed in the complaints, one can easily visualize as to how on large scale, their respective business are carried out. Considering the fact that Mr.Kirtikumar Mehta may be a torch bearer for the family, still each complainant is a separate, legal entity running business in crores of rupees and, certainly, they cannot be termed as the one business of Kirtikumar Mehta exclusively for the purpose of earning his livelihood by means of self employment. The case of complainants certainly would not fall within the explanation to section 2(1)(d)(ii) of the Act.
Assuming for the moment, that the complainants are consumers within the meaning of the Act, still no case of deficiency in service within the meaning of the Act could be alleged against the bank. They come with a clear statement that the documents given in their possession and custody in connection with the loan transactions were unfortunately lost. Therefore, it is not a case that they are in a position to return those documents and they are not returning the same. They showed their willingness to co-operate with the complainants and to obtain the certified copies of those lost documents at their costs and expenses and, further, showed their willingness to give necessary legal declaration/undertaking or indemnity bond, etc. in that connection. Thus, they showed their willingness to do everything possible to overcome the loss of documents. Therefore, in the given circumstances, bank cannot be held guilty for deficiency in service within the meaning of the Act.
Ld.counsel appearing for the complainants tried to rely upon a decision of the Apex Court in the matter of Faqir Chand Gulati v/s.Uppal Agencies Pvt.Ltd. & Anr. decided on 10th July, 2008 in Civil appeal no.3302 of 2005. Facts of the said case are different and moreover distinguishable than the facts before us, supra.
So is the case in respect of decision of the National Consumer Disputes Redressal Commission, New Delhi in consumer complaint nos.155/2008, 38/2009 & 218/2004 decided on 17/12/2009 (Mr.Sanjay D. Ghodawat and others v/s. R.R.B. Energy Ltd. and others). In fact, ratio decidendi of the said case rather supports the case of opponent rather than the complainants.
For the reasons stated above, we hold accordingly and pass the following order:-
ORDER
Consumer complaint nos.61/2012, 62/2012, 63/2012 & 64/2012 stands dismissed.
In the given circumstances, both the parties to bear their own costs.
Copies of the order be furnished to the parties.
Pronounced on 25th July, 2012.
Ms.
