Chandigarh

DF-I

CC/751/2019

Manav Sharma - Complainant(s)

Versus

IDBI Bank Ltd., - Opp.Party(s)

Gaurav Bhardwaj Adv.

08 Jun 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/751/2019
Date of Institution	:	26/07/2019
Date of Decision	:	08/06/2020

 

1. Manav Sharma s/o Sh. Jatinder Sharma r/o House No.2476, Sector 37-C, Chandigarh 160036, at present resident of 246, Maryland Drive, Maryland, NSW 2145, Australia.
2. Jyoti Sharma w/o Sh. Manav Sharma r/o House No.2476, Sector 37-C, Chandigarh 160036, at present resident of 246, Maryland Drive, Maryland, NSW 2145, Australia.

     Both through Special Power of Attorney Holder Sh. Jatinder Sharma s/o late Sh. Brij Nandan Lal Sharma, r/o House No.2476, Sector 37-C, Chandigarh 160036.

… Complainants

V E R S U S

1. IDBI Bank Ltd., SCO No.162-163, Madhya Marg, Sector 9-C, Chandigarh-160009 through its Manager/ Authorised Signatory.
2. IDBI Bank Ltd., IDBI Tower, WTC Complex, Cuffe Parade, Mumbai 400005 through its Managing Director/ Authorised Signatory.

… Opposite Parties

CORAM :	SHRI RATTAN SINGH THAKUR	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                               

ARGUED BY	:	Sh. Gaurav Bhardwaj, Counsel for complainants
	:	Sh. Sukhbir Singh, Counsel for OPs

Per Rattan Singh Thakur, President

1.      The complainant Nos.1 & 2 are husband and wife respectively, residing in Australia and they had come to India on 11.4.2019 and returned back on 29.4.2019. The present joint consumer complaint filed by them through their Special Power of Attorney (SPA), father and father in law of complainant Nos.1 & 2 respectively, after due leave granted by this Forum.

         Averments are, complainants had purchased a property i.e. H.No.A-43, Guru Teg Bahadur Nagar, Sector 14, Kharar, District SAS Nagar (Mohali) after raising loan from Axis Bank Ltd. in the year 2005.  Later on, in the year 2012, the said loan was transferred from Axis Bank Ltd. to the OP Bank and the original title documents of the property, as disclosed in paragraph No.3 of the consumer complaint were deposited with the OP bank under mortgage terms and conditions at the time of availing the loan. Averred, in the month of February 2019, complainants desired to repay the outstanding loan in one go and the amount due of Rs.9,19,400/- was repaid on 28.2.2019 and the loan account was closed. The original documents i.e. title deed etc. were to be returned to the registered owner of the property and borrower on closure of the loan account and to this effect OPs had issued letter dated 7.3.2019 (Annexure C-3) regarding the closure of the account. With a view to collect the documents, complainants on 7.3.2019 had got booked the flight tickets alongwith their children i.e. to and fro journey on payment of 4,190.00 Australian Dollars (equivalent to Rs.2,05,310/- in Indian currency) for 11.4.2019. The said tickets were non refundable (Annexure
C-4).  However, a letter dated 13.3.2019 (Annexure C-6) was received from the OPs mentioning the original title deeds submitted by the complainants have been destroyed in the fire which took place at Stock Holding Corporation of India where all the documents were kept. The father/father in law of the complainants had informed the complainants to get the tickets cancelled, but, as the amount was non refundable and the documents were to be collected, may be original or duplicate or say certified copies, therefore, they had to undertake the journey as per tickets booked. The father/father in law of the complainants, who is a retired government employee and senior citizen, obtained the certified copies at his own expense and also suffered physical harassment as the OPs did not provide the certified copies of the title deeds deposited with them, which were gutted in fire. On being contacted, OPs tendered apology, but, the complainants had suffered at the hands of the OPs as with the loss of original title deeds of the property, they were unable to get home loan easily and further there will be difficulty in selling the same as nobody purchases the property on the basis of certified copy of registered title deeds because suspicion is created in the absence of original title deeds. Subsequent thereto, complainants had come specifically for this purpose and thereafter legal notice was served on the OPs on 4.6.2019 claiming compensation, but, to no avail. Hence, the complainants filed the present consumer complaint for directing the OPs to pay Rs.2,05,310/- being the value of to and fro air tickets; Rs.5,000/- spent on procuring the certified copies of title deeds; compensation of Rs.5,00,000/- and Rs.22,000/- as litigation expenses.

2.     OPs contested the consumer complaint and filed their joint written reply claiming therein, consumer complainant does not disclose any cause of action and complainants have not come to the Forum with clean hands.  However, it was admitted, on the mentioned date, loan account of the complainants was closed and the title deeds were to be returned. However, these could not be returned as the same were gutted in fire which broke out in the Stock Holding Corporation of India Ltd. (SHCIL) at Mumbai on  11.12.2017. The copies of reports made and the FIR registered have been placed on record.  Hence, claimed there was no deficiency in service or unfair trade practice on their part. On these lines, the cause is sought to be defended.
3.     Rejoinder was filed and averments made in the consumer complaint were reiterated.
4.     Parties led evidence by way of affidavits and documents.
5.     We have heard the learned counsel for the parties through video conferencing and gone through the record of the case. After scanning of record, our findings are as under:-
6.     Per pleadings of the parties, the undisputed and admitted facts are, complainants had raised a loan from Axis Bank, which loan account was transferred in favour of the OPs and the entire loan was repaid on 28.2.2019. Hence, nothing was due to the OPs from the complainants on 28.2.2019.
7.     It is also the admitted case of the OPs on 7.3.2019 (Annexure C-3), they had issued a no due certificate i.e. closure of housing loan. There is no dispute with regard to these facts. Per pleadings, it is also the admitted case of the parties and specifically of the OPs, title deeds as mentioned in the consumer complaint in original were deposited with them as per terms and conditions of equitable mortgage to secure the repayment of debts. It was a sort of security with them and there was no reason to detain these original deeds the moment liability of the debt stood discharged and the loan account is closed. 
8.     The complainants had deposited the title deeds with the OPs or say with their predecessor in interest financial institution and it was for the OPs to ensure these were kept in safe custody.  It was a sort of an entrustment with them and according to the OPs, they had deposited it for safe custody of say in a fire proof space with the Stock Holding Corporation of India Ltd. at Mumbai where the fire broke out. Now merely by saying the baby of lapses cannot be passed on to the lap of SHCIL as that matter is inter se OPs and the SHCIL and the complainants have no privity of contract with the entrustee with whom the title deeds were deposited for safe custody by the OPs. Therefore, the liability to account for the loss of the original deeds of the complainants lies with the OPs who were answerable to the complainants the moment debt stood discharged by the complainants on 28.2.2019.
9.     Perusal of the documents placed on record i.e. Annexure C-3 dated 7.3.2019 shows it is a closure of the housing loan account. The contents of the said letter are reproduced below:-

              “This is to inform you that as per our records your total Home Loan amount of Rs.1635000.00 has been repaid by you in full to IDBI Bank Ltd. and henceforth IDBI Bank Ltd. has no charge, lien or claim whatsoever on the property at House No.A-43, Guru Teg Bahadur Nagar, Sector 14, Kharar, District Kharar, Punjab 140603.”

 

A perusal of the recitals of the letter or say certificate does not show or speak a word regarding the return of the title deeds or say its loss that it stood extinguished in the fire which broke out at SHCIL, Mumbai.  Not only this, this letter further reflects now the OPs had no charge or lien on the property which was mortgaged on deposit of title deeds with a view to secure the loan. Had they informed the complainants, who were living in Australia, in time they certainly would not have planned the itinerary to visit India to collect the original title deeds. The bonafides of the complainants are further cemented with the fact that letter of closure of the housing loan is 7.3.2019 and on the same very date they had booked the to and fro tickets (Annexure C-4) from Australia and back alongwith their two minor children. This shows, trip of the complainants to India was specifically for this purpose and the OPs had not mentioned in their letter dated 7.3.2019 with regard to the loss of the original title deeds. 

10.     Not only this, subsequently all of a sudden on 13.3.2019, OPs informed the complainants through this communication, the original documents stood destroyed in the fire at SHCIL, Mumbai on 11.12.2017 and they were ready to assist the complainants in getting the certified copies from the Sub Registrar. Again there is a draconian act on the part of the OPs as they started harassment of the complainants.  They were the persons from whose custody there was loss of original documents and had there been bonafides on their part, they themselves could have obtained the certified copies of the documents from the office of the Sub Registrar as the same were public documents and thereafter supplied the same to the complainants either through letter dated 7.3.2019 (Annexure
    C-3) or through letter dated 13.3.2019 (Annexure C-6). By the time this communication was received, the tickets were already booked by the complainants which as per the claim were non refundable and this plea is not disputed in the written reply furnished on behalf of the OPs.
11.     The claim of the complainants that they are putting up at Australia in connection with their avocation is not a disputed fact as per the written reply set up by the OPs. It is not the case, OPs were not aware complainants were residing in Australia. Therefore, when they had such a knowledge, they did not inform on 28.2.2019 when the loan was completely discharged and again on 7.3.2019 so that the complainants ought not to have booked the flight tickets for the month of April 2019.  This shows, OPs had perpetuated the miseries of the complainants to undertake the journey to Chandigarh (India) and then to fly back empty handed.
12.     Per pleadings, it is also the case as per the documents adduced, fire broke out at SHCIL, Mumbai on 11.12.2017 and thus OPs had full knowledge title deeds were gutted in the said fire. In fact vide letter dated 30.1.2018 (at page 30), annexed by the OPs themselves with their reply, Stock Holding Document Management Services Limited (formerly known as SHCIL Projects Limited) had apprised the OPs about the incident of fire  of 11.12.2017 at their premises. Despite that, OPs kept silent and did not apprise the complainants for a span of more than 1¼ years and had taken such a trouble for the first time on 13.3.2019 only when the loan was discharged and NOC was already issued by them on 7.3.2019. No reasons explained why the OPs themselves did not obtain the certified copies of the documents from the Sub Registrar office as they were at fault and then send them to the complainants who could have avoided their long arduous journey.  In the first communication dated 7.3.2019 OPs were silent about the return of the title deeds and then all of a sudden wrote a letter dated 13.3.2019 disclosing they were ready to assist the complainants in getting the certified copies from the Sub Registrar office.  What kind of assistance was to be provided is not understandable when anybody could apply for certified copy of a public document in the office of the Sub Registrar. The OPs had not taken the trouble to visit the Sub Registrar Office and to render proper service to the complainants and not to do breach of trust in non return of the title deeds or say its certified copies if these were extinguished in the fire at Mumbai. Fifteen days leave as claimed was availed of by the complainants for this purpose and there was no timely information despite deliberate knowledge with the OPs that the complainants were residing at Australia and had to specially come here to collect the title deeds or may have the intention to sell it off as well during their stay.
13.     Having recourse to the natural events, if a person is not in possession of original title deeds, there may be some suspicion raised regarding the clear title of the property he owns and the property may not fetch the actual market value on being intended to be sold and rather it will put the intending buyer on guard to first verify the original title of the owner of the property by visiting the office of the Sub Registrar or taking rounds of patwarkhana.
14.     From the pleadings of the parties, evidence adduced in the form of documents and affidavits, we hold there was deficiency in service on the part of the OPs. In such like case when the title deeds ere not traceable even after payment of the loan, the Hon’ble National Commission in State Bank of India Vs. Amitesh Mazumder, R.P. No.2732 of 2019 decided on 3.1.2020 under paragraph No.6 concluded as under :-

“6.  In my opinion, even if all the steps suggested by the learned counsel for the petitioner are taken by the petitioner bank, that would not result in the complainant realizing the true market value of the immovable property in question, if he decides to sell the same in the market.  No one in the market will agree to purchase an immovable property on payment of its prevailing market value, if he knows that the original Title Deed of the property will not be delivered to him by the seller.  There will always be an apprehension of the misuse of the Title Deeds of the immovable property by an unscrupulous person, by depositing the same with a bonafide lender, since an Equitable Mortgage can be created by deposit of the Title Deeds.  The erosion in the value of the property if it is to be sold without the Title Deeds, would be substantial and in fact even the compensation awarded by the District Forum and maintained by the State Commission may not be sufficient to make up such erosion in the market value of the property.  Moreover, if the complainant decides to take a loan by deposit of the Title Deeds of the property against the property, he will not be able to get a ready lender in the market unless the Title Deeds of the property are deposited.  In fact, even a bank may be unwilling to give a loan against an immovable property unless the Title Deeds of the property are deposited with it.  Therefore, the compensation awarded by the fora below was eminently justified on account of the petitioner bank having lost the Title Deeds of the immovable property of the complainant.  The view taken by the fora below does not call for any interference by this Commission in exercise of its revisional jurisdiction.  The Revision Petition is therefore, dismissed with no order as to costs.”

 

In this case the Forum had awarded damages of Rs.5.00 lakhs alongwith a direction to procure the certified copy of the sale deed as per due process. 

15.     In another case titled as Secretary/ Manager, Mayyanad Regional Co-operative Bank Vs. Ebrahimkutty, F.A. No.288 of 2014 decided on 20.2.2017 the Hon'ble National Commission under paragraph No.16 awarded a sum of Rs.5.00 lakhs as damages for the loss of title deeds. In another case, this Forum vide order dated 23.9.2015 passed in case Arvind Kumar Singh & Anr. Vs. UCO Bank, consumer complaint No.196 of 2015 awarded compensation of Rs.2.00 lakh which was also affirmed in appeal (F.A.No.288 of 2015) by our own Hon’ble State Commission. 
16.     Now turning to the facts of the present case, the certified copies of the title deed have already been obtained by the complainants/their SPA after making efforts at their own end and in the relied on cases the certified copies were yet to be obtained after fulfillment of codal formalities.  Further in the relied on cases the title deeds were non traceable while in the present case these were admittedly gutted in fire.  Thus, these propositions on point of fact have a minor variation though there is certainly loss of original title deeds and there may be some difficulty to fetch the prevailing market value or immediate buyer of the property as the title needs to be verified.  Thus, taking into consideration all the pros and cons, the present consumer complaint succeeds and the same is accordingly partly allowed. OPs are directed as under :-

1. to refund ticket value of Rs.2,05,310/- spent by the complainants on their to and fro air journey from Australia;
2. to pay a sum of Rs.2,00,000/- to the complainants as damages for the loss of the original documents in the fire, and their gross failure to intimate the complainants timely.
3. to pay an amount of Rs.75,000/- to the complainants as compensation for causing mental agony and harassment to them;
4. to pay Rs.15,000/- to the complainants as costs of litigation.

17.     This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) to (iii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iv) above.
18.     Certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
08/06/2020	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
hg	Member	Member	President