IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 13^th day of December, 2021

Present:  Sri. Manulal V.S. President

Smt.  Bindhu R,  Member

Sri. K.M. Anto, Member

C C No. 24/2019 (filed on 13-02-2019)

Petitioners                                         :  1)   Sabu Thomas,

                                                                   Manappattuparampil House,

                                                                   Etumanoor P.O.

                                                                   Kottayam – 686 631.

                                                              2)  M.J. Joseph,

                                                                   Manappattuparampil House,

                                                                   Etumanoor P.O.

                                                                   Kottayam – 686 631.

                                                                             Vs.                            

Opposite Party                                 :         IDBI Bank Ltd.

                                                                   Rep. by its Manager,

                                                                   Kottayam Branch,

                                                                   Kanjikuzhy, Kottayam.

                                                                   (Adv. Sebi K. Velamparambil)

                                                          O  R  D  E  R

Smt.  Bindhu R,  Member

          This complaint is filed under Section 12 of the Consumer Protection Act 1986.

          The 1^st and 2^nd complainants are brothers.  The 1^st complainant availed an educational loan of Rs.20,00,000/- from the opposite party in 2015, mortgaging the 12 Ares 14 sq.mtrs property of the 2^nd complainant situated in re-survey No.185/5/1 of Athirampuzha village with a residential building therein for the purpose of the higher studies of his son abroad.  The original sale deed No.1839/97 dtd.25-04-1997 of Ettumanoor SRO was deposited with the opposite party for creasing the said mortgage along with other connected documents.                    On 02-02-2019 the entire loan amount with interest was closed by full repayment and the 1^st complainant got a discharge certificate from the opposite party.  Then the opposite party asked for some time to release the document deposited with them stating that they were under safe custody of their headquarters at Mumbai.  After two weeks when the complainant approached the opposite party they were informed that the entire documents were lost from the custody of the opposite party by fire. The opposite party promised that since the complainants have only repaid the loan amount, they shall assist the complainants in obtaining certified copies of the title deed from the concerned SRO.  Being public document, anybody will get a certified copy of the title deed from the Sub registrar concerned and such a copy will never be having the full force and validity of the original title deed lost.  The opposite party was bound to protect the documents entrusted by the customers and its attempt to escape from that responsibility amounts to great deficiency in service.  The said property is situated in a location with much marketing potential and if the complainants tries to create a new original title deed they will have to make a further transfer of the said property by making payment of stamp duty, registration fee and documentation charge.  The said property is presently having a market value of 300,000 per cent and therefore the complainants will have to spend 10% of it towards the stamp duty and the registration fees.  In addition to that a newspaper publication should be given declaring that the original title deed is irrecoverably lost and a gazetted notification to that effect will caused another 5,000/-.  The opposite party is liable to compensate the complainant for all these expenses and should serve a certificate stating that their original title deed was lost while in the custody of the opposite party irrecoverably and that no charge will be created on the said property using the same.

          Upon notice, opposite party appeared and filed version.

          The opposite party contented that the complainant is not a consumer or beneficiary as envisaged under the Consumer Protection Act.  Moreover this Commission has no territorial jurisdiction to try this complaint.  There is no compensation amount due from the opposite party.  Ajay Thomas who availed the loan and Stock Holding Corporation of India Ltd. Mumbai are not made parties to the complaint.  So the complaint is bad for non-joinder of necessary parties.  The loan was availed by Ajay Thomas for his educational purpose.  It is admitted that the loan was closed by the parties.  At the time of mortgaging the parties had submitted title deeds and as the storage of original documents is centralized at Mumbai, the Kottayam branch of opposite party forwarded all the loan documents, security documents, title deeds etc. to their office at Mumbai for the purpose of storage at our custodian that is Stock holding Corporation of  India Ltd.  The documents were kept with HSCIL in a fire proof and strong storage space with due diligence, care caution and proper security.  However a fire accident took place in the storage premises of Stock Holding Corporation of India Limited on December 11, 2017.  Though the opposite party and Stock Holding Corporation of India Limited have taken all necessary precautions to keep the original title deeds under safe custody certain documents have been partly or fully damaged.  The documents of the complainant here in have been completely destroyed.  The documents are destroyed in the said fire accident, which is unforeseen and beyond the control of the opposite party.  The opposite party issued a letter / certificate dtd.21-02-2019 to the parties to the loan stating all these facts.  So the parties are able to avail loans from financial institutions with certified copies of title deeds and without registering registered mortgages.  Since the title deed is irrecoverably lost in a fire accident and the opposite party issued a certificate, the parties need not make any further deeds paper publication or gazette publication.  With respect to the fire accident a police case was registered with MIDC police station, Navi Mumbai.  The petitioner is not entitled to make any compensation.  Any further certificate is irrelevant, but if necessitate opposite party is ready to issue further certificate to the party.  The claim of compensation amount is exaggerated and the complaint is filed on an experimental basis, which is liable to be dismissed.

          Complainant was examined as Pw1 and Exhts.A1 to A5 were marked. Opposite party file proof affidavit along with Ext.B1 to B6.

          On evaluation of pleadings and evidence on record, the points to be framed are

1. Whether the complaint is maintainable or not?
2. Whether there is any deficiency of service on the part of opposite parties?
3. Is the complainant entitled for any compensation?

Point No.1

          The complainant alleges that he has entrusted the title documents of his brother’s property for obtaining an education loan for his son’s studies abroad.  Even after closing the loan the opposite party could not return the title documents as the said documents were destroyed by fire.  The opposite party also admit in its version that the said documents were kept in safe custody with their Mumbai Head Quarters and from there entrusted with another agency Stock Holding Corporation of India Limited  from where the documents got destroyed by fire attack. The opposite party is not liable for loss of the documents as it was under the custody of Stock Holding Corporation of India Limited.

          The opposite party’s contention is that as the loan was availed by one Mr.Ajay Thomas he is the person entitled to file the complaint.  But he is not at all a party to a complaint.  The complainants are not the consumers of the opposite parties and the complaint is bad for non-joinder of necessary parties.  The 1^st complainant is the father of the said Ajay Thomas and the 2^nd complainant is his brother, who has given the documents of his property for creating the mortgage.  Though the loan was taken by the said Ajay Thomas, the 1^st complainant ie. the father of the applicant is the co-applicant to the education loan.  As per Ext.A1, the education loan sanction letter issued by the opposite party it is admitted.  The 2^nd complainant is the person who extended his property as a guarantee to the said education loan by way of mortgage.  After the closure of loan, the opposite party informed the complainants that the documents including the title deed which were entrusted with them at the time of issuance of  the loan were destroyed due to fire attack, which directly affects the 2^nd complainant.  So we find that both the complainants are entitled to file the complaint and the complaint is maintainable.  Regarding the jurisdiction of the complaint, all the transactions have took place in the territorial jurisdiction of this Commission. 

          According to the opposite party the Stock Holding Corporation of India should also have been made a party to the complaint as at the time of the incident they were the custodian of the documents.  But we see that the complainant has availed loan from the opposite party here in and all the agreements and documentation have been done between them.  Moreover the 2^nd complainant has entrusted his property documents with the opposite party herein with every bonafieds.  So there is no non-joinder of necessary party.

Point No.II

          The 1^st complainant’s son availed an educational loan by creating a mortgage entrusting the title deed of the property of the 2^nd complainant in Athirampuzha village with the opposite party herein in good faith believing that as the opposite party is a reputed financial institution their documents would be safe with them.  Only with this belief in the opposite party the complainants entrusted their documents with them.  The title deed of a property has several dimensions in use in the society.  As per the practice the loss of an original title deed will create several problems to deal with the property further. 

The opposite party being a responsible financial institution ought to have taken proper care to keep the valuable documents of their consumers such as title deeds.  The complainants had only delt with the opposite party here in not any other agency.  The Stock Holding Corporation of India Ltd is a third party to the agreement as far as the complainants are concerned.  Nowhere in the Exts.A1 or other documents produced before us, it is seen that the complainant was informed that the documents which were submitted by him were kept with some third party agencies.  The consumers are entrusting the documents with the banks or other financial institutions in a strong belief that they would keep their documents with due care and diligence.  Here the complainants have made no agreement with the Stock Holding Corporation of India Limited.  So the opposite party cannot evade from their duty to keep the documents safely.  The opposite party has no claim that they or the stock holding corporation had already insured the documents in their custody against some kind of mishaps. Being responsible agencies the opposite party and the 3^rd party agency are bound to protect their customers’ documents with proper insurance.  Here the opposite party has not at any point made any statement regarding the existence of such an insurance. 

The opposite party claims that they have already issued a certificate  admitting the destruction of the documents while under custody of them and that is enough for the complainant or further transactions regarding the property.                                    The value of the property is directly linked to the title which can be clearly proved by an original title deed.  Practically if an original title deed is lost, one could obtain certified copy of the same through legal procedure but always there will be a stigma in the clarity of the title and ownership of the person over the property.  So we find that though the opposite party has issued a certificate regarding the destruction of the title deed it will cause several hardship to the complainant in future also.  The opposite party bank being the mortgager has a bounden duty to keep the documents they collect as security for the mortgage loan and they only are responsible for any destruction or loss happened to the documents.  It can be clearly found that there is clear dereliction of duty and deficiency of service on the part of the opposite party causing damages to the complainant which is to be compensated. 

Point No.III

Now, that it is found that there is gross negligence on the part of the opposite party in keeping the documents safely the complainant is entitle for compensation.  In the statement of accounts filed by the complainant he has prayed for the expenses for the registration of a new title deed etc. But though it is true that the opposite party has to compensate for the loss of the original document the complainant is very well eligible for getting loans and to conduct the sale of the said property with a certified copy obtained through legal process with the help of certificate issued by the opposite party.  So the stamp duty, registration fee and documentation charges for a new title deed are not allowable.  The complainant is entitled for the expenses incurred for the making of the lost title deed, the legal procedure needed at the loss of the original title deed and for the compensation for the mental agony. 

          In the light of the above discussion, we allow the complaint as follows.

1. The opposite party is directed to issue a certificate to the 2^nd complainant stating that sale deed No.1839/1997 dtd.25-04-1997 of Ettumanoor SRO pertaining to 12ares 14 Sq.mtr property in resurvey No.185/5/1 of Athirampuzha village has lost irrecoverably while in their custody and that no charges is / will be created on the said property using the same.
2. The opposite party is directed to pay 12,000/- as compensation for the loss and litigation cost.
3. The opposite party is directed to pay Rs.1,00,000/- for the mental agony suffered by the complainant along with interest @9%from the date closure of the loan ie.02-02-19 till realization.

Order shall be complied with within a period of 30 days from the date of receipt of Order.  If not complied as directed, the compensation amount will carry 6% interest from the date of Order till realization.

Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 13^th day of   December,  2021.

Sri. Manulal V.S. President Sd/-

Sri. K.M. Anto, MemberSd/-

Appendix

Witness from the side of complainant

Pw1 – Sabu Thomas

Exhibits marked on the side of the complainant

A1 – Education loan sanction letter dtd.20-08-15

A2 – Copy of letter dtd.02-02-2019 issued by opposite party to petitioners

A3 – Letter dtd.14-02-2019 issued by 1^st complainant to opposite party

A4 – Copy of letter dtd.21-02-2019 by opposite party to the complainants

A5 -  Copy of Incident spot panchanama dtd.26-12-2017

Exhibits marked from the side of opposite party

B1 – Copy of letter dtd.15-11-19 issued by opposite party to petitioners

B2 – Copy of letter dtd.25-10-19 Stock Holding DMS

B3 –Copy of letter dtd.21-02-2019 to petitioners

B4 – Copy of Fair value of land searched by Department of Registration

B5 – Printout of Existing rates of stamp duty and registration fees for ready

         reference

B6 – Printout of document writer’s / Scribes fee.

                                                                                                By Order

                                                                              Senior Superintendent