Per:  Akatha.H.D.  

JUDGMENT

            This is the complaint filed by the complainant u/s 12 of the Consumer Protection Act – 1986 against the OP alleging deficiency in service to give the plot original documents after receiving the loan balance of Rs.30,000/-. Hence prays for relief to return the original documents of the plot after receiving the loan balance of Rs.30,000/- along with compensation of Rs.50,000/- towards mental agony, harassment, deficiency in service and unfair trade practice and Rs.10,000/- towards the cost of proceedings.

             Brief averments of the Complaint are as under;

            2.  That, the complainant husband and the complainant had borrowed a loan of Rs.1,00,000/- on 31^st May, 2003. It Application No.1230082 from the OP Bank in Koppal for purchase of the plot, later on the complainant husband had purchased one plot in Bhagyanagar village, Sy No.23/3, plot No.47, Size 30 X 40.

            3.         The complainant further alleged that the out off the loan amount, the complainant has repaid Rs.70,000/- to OP in Koppal Branch, later on the OP, Koppal branch was closed due to misappropriation. So the complainant did not know where the balance amount to paid. The complainant alleged that later on the complainant husband died and after few years her two young children also died in accident. So the complainant has become very weak mentally and physically.

4.         The complainant further alleged that the complainant is ready to pay balance amount of Rs.30,000/- within three months. The complainant further alleged that the complainant had written a letter to OP through his counsel regarding the return of original plot documents on dated: 05.10.2015. But, there is no response by the OP. Hence, filed this complaint praying for settlement of the loan amount and to return the original documents of the plot after receiving the loan balance of Rs.30,000/- along with a compensation of Rs.50,000/-  for mental agony, harassment and deficiency in service and unfair trade practice and Rs.10,000/- towards the cost of proceedings as prayed above.

5.         The Forum after admitting the complaint a notice was issued to OP and the said notice is served upon the OP. The OP did not appear before the Forum on the date of appearance and hence was placed as Exparte and was posted for complaint evidence.

6.         On the basis of the above pleadings, the following points have been framed: 

POINTS

1.  Whether the complainant proves that there is deficiency in service and unfair trade practice in not returning the original documents of the plot?

2. Whether the complainant proves that she is entitled for the relief sought in complaint?

3. What order?

7.   To prove the case of the complainant, the complainant herself examined as PW1 and she has got marked documents as per Ex.A.1 to Ex.A.8 and closed their side of evidence. 

8.    Heard the arguments.

9.  Our findings on the above points are as under;

Point No. 1 :   In the Negative,

Point No. 2 :  In the Negative

                  Point No. 3 :  As per final Order for the following

REASONS

10.  POINT No. 1 and 2:  As these issues are interconnected each other, hence they are taken together for common discussion to avoid repetition of facts, evidence, documents and arguments.

11.  On perusal of the pleadings, evidence coupled with the documents of complainant’s record that the complainant and her husband had availed the home finance from the OP Company in the month of May 31^st of 2013. The sanctioned loan amount to them was Rs.1,00,000/- as produced by the complainant with respect to EX A1 the loan documents.

12.       To prove the case of the complainant, the PW-1 has reiterated the complaint averments in her Examination in Chief and in support of her case. She has produced the documents pertains to the loan documents i.e. EX A1 clearly reveals that the complainant and her husband during his life time in the year 2003 has availed the Home finance loan of Rs.1,00,000/- for the period of 96 months i.e. for EMI of Rs.1,479/- PW 1 was averred and deposed that, she has repaid to the loan amount of Rs.70,000/- to the OP Company. She has not produced any documents to show that the amount of Rs.70,000/- is paid by her. There was no document between the complainant and the OP to show that the complainant and her husband name paid regularly the installments of the EMI pertaining to this house loan. Therefore, believing her version of PW-1 with respect to the payment of the loan amount to the tune of Rs.70,000/- is not justifiable one. Looking to the EX A3 i.e. the Sale Deed Xerox, the PW-1 has averred that the said original Sale Deed is in the custody of the OP Bank. To this extent also, the complainant has failed to show that this original documents was hypothecated in the OP Bank. But, to substantiate the said original documents are with OP. When there is no cogent documents has been produced by the said complainant. The question of considering that the original Sale Deed was in the custody of OP as averred by PW-1 in her Chief was and is in the OP Bank is not believable.

13.       No doubt, the OP did not appear before the Forum and have not adduced any evidence. But the said weakness of the OP cannot be made use by the complainant for her case.

14.       According to the case of the complainant, she has paid the loan amount of Rs.70,000/- to the OP Bank and only Rs.30,000/- is remaining balance of the loan amount. She has also averred that due to misappropriation the said bank is closed. But, the complainant has not at all produced the payment history of the EMI’s paid to the bank nor any other details of the transaction towards the payment details to the OP and no explanation is furnished that why she has not produced the payment details. Under these circumstances, an adverse inference can be drawn holding that the complainant purposely left in producing the said payment details though her case is based on the said document. Hence, the complainant ought to have brought the surety of the loan as a Witness to prove the allegations of the complainant that she had paid loan to the tune of Rs.70,000/- and the original documents are within the custody of OP-Bank. Even the complainant failed to produce the payment details and other necessary documents belonging to her loan transactions and even she has not at all made any effect to get the bills or passbook entry from the concerned OP Bank at the time of paid installments. If she would have produced any bills or payment details or receipts being paid to the OP Bank, under such circumstances it would have been held that the complainant has paid the loan amount to the OP to the tune of Rs.70,000/-. Thereafter, in this aspect of the matter also, the case of the complainant fails.   

15.       Therefore, on perusal of the oral and documentary evidence that though there is no evidence on behalf of the OP and no perfect rebuttal, but the complainant utterly failed to prove to say that she has repaid the loan amount of Rs.70,000/- to the OP-Bank.  As we said supra, she absolutely not made any effort to bring any witness or documents pertaining the loan transactions before the Forum for getting supported her case.

16.       In view of discussion here in above the documents now furnished EX A2 and EX A4 and EX A5 and EX A6 will no way help the complainant to prove that she has paid loan installments regularly. After considering these documents, we are unable to change the view, which we have earlier taken.

17.       So also on perusal of EX A7 and EX A8 is the legal notice and the postal receipt which is sent to the OP Bank by the complainant. But, even here also it is not known that whether the said notice is issued to the OP Bank and to its address correctly. The complainant failed to show that whether the said notice is served on the OP or not.

18.       During the course of argument, counsel for the complainant has furnished a decision in State Bank of India & Ors and Darshanlal, it reads as under:

 (i) Consumer Protection Act, 1986 – Sections 2 (1) (g), 14 (1) (d), 21 (b) – Banking and Financial Institutions Services – Sale deed – Non return despite repayment of loan – Deficiency in service – District Forum allowed complaint – State Commission dismissed appeal – Hence revision – Bank grossly negligent in taking care of valuable document such as sale deed – There was no necessity for Bank to deliver original sale deed of property to Advocate for purpose of filing civil suit against complainant and only a photocopy could have served the purpose – No evidence of original sale deed having been filed in Civil Court, where suit against complainant has been instituted – Deficiency on part of Bank proved – Bank is directed to give advertisement at its own cost – complainant can obtain certified copy of sale deed from concerned office and he became absolute owner of property – Compensation @ Rs.2 lakh awarded – Directions issued.

   Wherein it was held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that Sale Deed not return despite repayment of loan, deficiency in service. The facts and circumstances of the case in hand and the facts and circumstances of the said citation are all together different because here with respect to the repayment of loan, the complainant has not at all produced any documents to show that she has repaid the loan and after repaying the loan amount, the OP has not returned the original documents. Hence, the said citation is not applicable to the case in hand.

19.       On the contrary as per the oral evidence coupled with the documentary evidence, the complainant failed to prove that there is deficiency in service on part of OP in not returning the original sale deed and the said fact is clearly disclosed which have been already discussed supra.

20.       Hence, in the light of above observations, the complainant has failed to prove that there is deficiency in service on the part of OP by not returning the original sale deed. Hence, in the light of above observations, we constrained to hold Point No.1 and 2 in the Negative.

21.  POINT No.3 :-  In view of the above discussion and findings, we proceed to pass the following;

ORDER

1. The complaint filed by the complainant is hereby dismissed.
2. There shall be no order as to costs.

3. Send the free copies of this order to both parties.

Dictated to the Stenographer, transcribed, typed by him, typescript, corrected by me and then pronounced in the Open Forum on 30^th day of May, 2016.

// ANNEXURE //

List of Documents Exhibited for the Complainant.

Witnesses examined for the Complainant / Respondent.