By Sri. MOHANDASAN.K, PRESIDENT
1. Complaint in short is as follows:-
The case of the complainant is that she availed a loan of Rs. 13,75,000/- from the
first opposite party by pledging landed property owned by her husband vide assignment deed No.1113/2003 dated 22/04/2003 of SRO Kottakkal. The complainant repaid the entire loan amount and asked the first opposite party to return the above mentioned original documents. But the first opposite party was reluctant to give back the documents asking the complainant to wait for two months to get the original documents. Thereafter the complainant has waited for two months to get the original documents. The complainant approached opposite party after two months but the opposite party again asked to wait further two months. At that time the opposite parties asked the complainant to take back the documents which were available in the office of the opposite party except the original title deed mentioned above. Later the complainant caused a registered legal notice to the first opposite party stating all the details and also claiming compensation. But on receipt of notice the opposite party issued reply notice with unsustainable grounds. Hence the complainant filed this complaint seeking direction to the opposite parties to give an amount of Rs. 10,00,000/- as compensation for deficiency in service along with cost and other reliefs which may fit and proper to pass in the facts and circumstances of the case.
2. On admission of the complaint notice was issued to the opposite parties and the opposite parties entered appearance and filed version denying the entire averments and allegations in the complaint.
3. The opposite parties admitted the facts that Smt. Sabira. P, wife of Mohamed Ashraf had availed a loan jointly with Sri.Mohamed Ashraf by mortgaging property for Rs. 13,75,000/- and they have fully repaid the same.
4. The opposite parties rejected the acquisition that the bank was not ready to give back the original title deed subsequent to repayment. The opposite parties had advised complainant to receive all other documents except the original assignment deed 1113/2003, the opposite parties could not trace the title deed etc. The opposite parties submitted that they have been transparent with complainant and revealed that vide letter dated 09/01/2020 that as the storage of the original documents is centralised at Mumbai, the said original documents of the complainant were shifted to M/s Stock Holding Corporation of India Limited (SHCIL/Stock holding) for safety/safe keeping of such documents and to return the documents to the complainant immediately upon closure of loan.
5. The opposite party submitted that due to the unforeseen event and without any negligence on the part of the opposite parties, a fire accident took place in the SHCIL which resulted in damage of innumerable documents, though the bank had taken all the necessary precautions to keep original title deeds in fire proof and strong storage space, unfortunately, certain documents of complainant were also drenched in water in the said fire accident and later rescue operations, as informed to complainant by this opposite parties vide the letter dated 09/01/2020 complainant is fully aware that the said accident did not occur because of any callousness or negligence on the part of opposite parties, but because of unforeseen circumstances which were beyond the control of the opposite parties. The opposite parties submitted that it was an Act of God and beyond control of the opposite parties. It was further submitted that the complainant was informed that the original deed was not damaged and the same is legible even now though it is drenched in water at the rescue operations occurred in the fire accident.
6. The opposite parties have obtained and furnished to Sri. Mohamed Ashraf , FIR copy of the fire accident and Sri.Mohamed Ashraf had also taken photographs of the title deed in his phone and asked the opposite parties to arrange for a certified copy of the title deed No. 1113/2003 for the reason that it got drenched in water. The opposite party had obtained and furnished copy of the document as demanded by Sri. Mohamed Ashraf. The opposite party submitted that the said title deed is still available and ready to hand over the same to the complainant which was informed to the complainant as well as her lawyer as reply to the notice. The complainant was not responding to the repeated calls of the opposite parties and finally forced to cause a registered letter dated 09/01/2020, requesting complainant to collect the documents including the title deed at the earliest or even alternatively shown courteous efforts to deliver at complainant residence, however complainant has denied to accept the same.
7. Hence the opposite parties contended there is no deficiency or negligence or any fault, imperfection, short coming or inadequacy in the service made by the opposite party to complainant and the opposite party has taken all necessary precautions to keep the original title deeds in a fire proof and strong storage space through Stock Holding Corporation of India Limited, but due to unforeseen circumstances which were beyond the control of the opposite party , and no much damage was caused to the title deed of complainant. More over the original is available and so there is no question of decrease in market value arise. The prayer of the opposite party is to dismiss the complaint with cost of the opposite party.
8. The complainant filed affidavit in lieu of evidence along with documents. The documents on the side of complainant marked Ext. A1 & A2. The opposite parties are filed affidavit in lieu of evidence and documents marked as Ext. B1 to B5. Ext. A1 is copy of lawyer notice issued by the counsel of complainant to the opposite party dated 09/01/2020. Ext.A2 is copy of reply notice sent by the second opposite party to the counsel of the complainant dated 24/01/2020. Ext. B1 is copy of the photocopy of document No.1113/2003 executed on 22/04/2003 – which is not legible, Ext. B2 is the copy of lawyer notice issued by Adv. P.V. Suresh to Adv. K.K. Abdusamed dated 24/01/2020. Ext. B3 is copy of complaint requesting to register FIR dated 19/12/2017, Ext. B4 is copy of letter issued by Stock Holding to Sri. A.S Varghese, General Manager, IDBI Bank limited, Mumbai dated 30/01/2018. Ext. B5 is the copy of press report revealing Fire at Stock Holding Companies back office may have burnt vital documents.
9. Heard complainant and opposite parties, perused affidavits and documents. The complainant and opposite parties filed notes of arguments also. The following points arise for consideration:
Whether the complainant has got locus standi to file the complaint?
Whether there is deficiency in service on the part of the opposite parties?
Relief and cost.
10.Point No 1: -
The opposite party contented that the complainant is a stranger with respect to
the property and so an application for compensation in connection with loss/ damage of documents owned/deposited by another person is not maintainable. But the fact is that the complainant availed the loan and pledged the property in connection with the loan transaction. The property is owned by the husband of the complainant and the complainant deposited the document with the opposite party. Hence, there is no merit in the contention of opposite party regarding the locus standi of the complainant to file the complaint.
11.Point No.2: -
The opposite party admitted that the complainant availed loan from the first opposite party for an amount of Rs. 13,75,000/- submitting the original assignment deed No.1113 /2003 of SRO Kottakkal owned by her husband. The opposite party not disputed that the original document of the complainant stored at Bombay without prior notice or information to the complainant. So, it is the legal bounden duty of the opposite party to protect the original document in all manners since it is a valuable security, the complainant is concerned. The opposite party submitted that they stored all the original documents from all over the country in a single station that is at Bombay. So, it is the duty of the opposite party to take utmost care and caution to protect the valuable documents, which are entrusted with the opposite party at good faith.
12. It is submitted by the opposite party that the original document drenched in the water. The submission of the opposite party is that it is an act of God and so there is no liability as alleged by the complainant. The opposite party submitted that the document of complainant was kept in M/s Stock Holding Corporation of India Limited a government undertaken establishment, who is keeping the highly valuable documents of Companies /SEBI etc almost all leading Banks are keeping documents herein. The fire was accident was took place in the building. The action from the fire and rescue forces damaged the documents and it was beyond the control of Bank. Lakhs of documents totally damaged and lost in the incident. However, here the original deed was not fully damaged, and the same is legible even now though it is drenched in water. The opposite party submitted that the original document is there and the bank is ready to give certification regarding the damage and so the value of the property will never be diminishing.
13. Now the question arises whether the contention that the act of God will exonerate the opposite party from the liability of the opposite party and whether issuance of a certification regarding the damage will save the interest of the complainant.
14. The complainant contented that there is no document to establish that the incident was with nature of Act of God. The opposite party has not produced proper document to establish the same. The opposite party produced Ext. B1 to B5.Ext.B3 is a copy of complaint regarding the incident filed by the Stock Holding before the Senior Police Inspector, Rabale Police Station, MIDC, Navi Mumbai on 19/12/2017. Ext. B2 is a letter issued by Stock Holding to Mr. A.S. Varghese, General Manager, IDBI Bank Limited expressing regret for the incident. Ext. B5 is a photocopy of paper news, which does not reveal the date. But the perusal of the documents B3 to B5 shows that there was a fire incident on Monday, December 11, 2017 at around17.30 hours in the evening in the basement of the premises at Mahape, Navi Mumbai. The said premises were being used by Stock Holding Corporation of India Limited as well as Stock Holding Management Services Limited inter-alia for the purpose storage of physical documents. But the document does not reveal exact cause for the incident. The opposite party is bound to establish the incident was an Act of God and in case he fails to establish the same the opposite party is not at all entitled for any excuse under the head of Act of God. The complainant produced a decision of the Hon’ble Supreme Court in Civil Appeal Nos.169-170 of 2022, which discuss in detail about what is Act of God. The Act of God are related with the causes of nature like storm, floods, lightning or earth quake. When nothing of any external natural force had been in operation in violent or sudden manner the event of the fire in question cannot be treated as an Act of God in legal parlance. So, what can be inferred from the documents submitted by the opposite party, the opposite party failed to establish the incident was part of act of God. Hence we find that the incident took place in this complaint cannot be taken as act of God.
15. It is pertinent to note that, the opposite party is keeping the highly valuable documents are the Companies/SEBI almost all leading banks ie, keeping documents with M/s Stock Holding Corporation of India Limited , Govt undertaken establishment. The fire was accident took place in the building. The action from the fire and rescue forces damaged the documents and it was beyond the control of the Bank. It is also admitted that lakhs of documents totally damaged and lost in the accident. But the opposite party, no where it is established that there was sufficient care to protect the valuable documents in case of fire as stated by the opposite party. The complainant entrusted the documents with the bank and not with the Stock Holding Corporation of India Limited. If there was any lack of care in keeping safely the document the bank is responsible to the complainant/Customer. Hence, we find that there was lack of care from the side of opposite party and so there is deficiency in service from the side of opposite party.
16:Point No.3:-
The opposite party contented that the original document is with them and the bank is ready to give certification regarding the damage. According to them the value of property will never diminish due to the drenching of document in water. But the case of complainant is that the complainant availed loan in the year 2016 and repaid the entire loan amount on 25-10-2019 itself. Thereafter the complainant requested to release the original document deposited with the opposite party but the opposite party failed to release the same to the complainant. Later the complainant caused Ext. A1 notice and then only the complainant came to know the loss of document as per Ext. A2 reply notice. The opposite party produced Ext. B3 to B5 documents and from Ext. B1 it can be seen that the alleged incident took place in the year 2017 and the incident was communicated to the complainant only during the year 2020. There is no document to show that the opposite party had informed the complainant about the loss of documents in the fire for the last three years. Though the opposite party claimed that the complainant was informed of the incident vide letter dated 09-01-2020,no evidence before the Commission. The contention that the complainant was not responding to the repeated calls of the opposite party and finally caused registered notice to complainant to receive the documents including title deed is also stands without any evidence. The submission of the opposite party that the document is not fully damaged and same is legible even now though it is drenched in water is baseless one. The Commission has verified the document B1, the drenched deed in dispute. We cannot endorse the claim of opposite party that the document is legible even now. The document produced before the Commission is the photo copy of the original deed which is not at all legible. The complainant is entitled to receive the original of deed drenched in water. It is the duty of opposite party to make available the certified copy of the deed from the sub registrar office. The opposite party is bound to give certification regarding the damage of the document. In addition to that the Commission finds that the loss of original document cannot be substituted with certified copy of the document. There is reason to uphold the contention of the complainant that the loss of original document will cause adversely the market value of the property. The complainant might have suffered mental agony due to the negligent and deficient service on the part of the opposite parties. But there is no yardstick to quantify the same in terms of money. The complainant claims an amount of Rs. 10,00,000/-as compensation which the Commission finds as an exorbitant amount without any basis. The commission consider Rs. 2,00,000/- as reasonable amount of compensation on account of deficiency in service and thereby caused mental agony, hardship and financial loss to the complainant. The opposite party is also liable to pay cost of Rs. 10,000/- to the complainant.
17. Considering the entire facts and circumstances, we allow this complaint as follows: -
The opposite parties are directed to issue the original deed no: 1113/2003/ SRO Kottakkal, drenched in water to the complainant.
The opposite parties are directed to make available certified copies of the deed No:1113/2003, SRO Kottakkal to the complainant.
The opposite parties are directed to give certification regarding the damage of the document.
The opposite parties are directed to pay Rs. 2,00,000/- (Rupees Two lakh only)as compensation to the complainant on account of deficiency in service and thereby caused mental agony, inconvenience and financial loss.
The opposite parties are directed to pay Rs. 10,000/-(Rupees Ten thousand only) as cost of the proceedings.
The opposite party shall comply this order within one month from the date of receipt of copy of this order failing which the complainant is entitled 9% interest for the above said entire amount from the date of order to till date of payment.
Dated this 17thday of February, 2023.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1& A2
Ext. A1: Copy of lawyer notice issued by the counsel of complainant to the opposite
party dated 09/01/2020.
Ext.A2: Copy of reply notice sent by the second opposite party to the counsel of the
complainant dated 24/01/2020.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B5
Ext. B1: Copy of the photocopy of document No.1113/2003 executed on 22/04/2003
– which is not legible.
Ext. B2: Copy of lawyer notice issued by Adv. P.V. Suresh to Adv. K.K. Abdussamed
dated 24/01/2020.
Ext. B3: Copy of complaint requesting the register FIR dated 19/12/2017.
Ext. B4: Copy of letter issued by Stock Holding to Sri. A.S Varghese, General
Manager, IDBI Bank limited, Mumbai dated 30/01/2018.
Ext. B5: Copy of press report revealing Fire at Stock Holding Companies back office
may have burnt vital documents.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
