Date of Filing: 11.02.2020. Date of Disposal: 10.01.2023
Complainant :Sri Debasish Chowbey, S/O Lt. Himanshu Kumar Chowbey, Residing at Flat No. 10, Sree Residency, Baranilpur, Santipara, Post. Sreepally, Burdwan, W.B. Pin 713103.
-VERSUS -
Opposite Party :1. IDBI Bank, having its Branch Office at MV Apartment, 1st Floor, 35, G.T. Road, Perbirhata, Burdwan, Pin-713103 and also having its main branch at 44, Shakespeare Sarani, Kolkata-700017.
2. The Branch Manager, IDBI Bank, 1st Floor, MV Apartment, 35 G.T. Road, Perbirhata, Burdwan, 713103.
Present : Mohammad Muizzuddeen -Hon’ble President.
: Mrs. Lipika Ghosh - Hon’ble Member.
: Mr. Atanu Kr. Dutta. - Hon’ble Member.
Appeared for the Complainant : Baisakhi Biswas Ld. Advocate.
Appeared for the Opposite Party : Sri Sumit Ranjan Bhadra Ld. Advocate.
FINAL ORDER
On 11.02.2020 the complainant Debasish Chowbey lodged this complaint u/S 12 of the C. P. Act, 1986 against the OPs.
The case of the complainant, in brief, is that the complainant having desire to purchase a new flat No. IC at Sree Residency Santipara, Boronilpur, Post-Srepally, Burdwan-713103, approached the Opposite Parties (O.Ps) for a home loan amounting to Rs.7, 25,000/- and the OPs accordingly granted home loan in favour of the complainant by a letter dt. 05.09.2014 for tenure of 180 months. The complainant took home loan and purchased the said flat. Thereafter, the complainant repaid the total home loan along with accrued interest to the OPs by paying an amount of Rs.5, 60,000/- only on 11.12.2018. Thereafter, the complainant approached the OPs to hand over the original documents relating to flat along with Title Deed, which is lying in the custody of the OPs. But most surprisingly, by a letter dt. 15.01.2019 the OPs informed the complainant regarding the damage of the documents deposited by the complainant in a fire accident in a leased store premises including the following documents:-
- Original Memorandum of Agreement No. 748469 dt. 25.09.2014.
- Original Deed of Conveyance being Deed No. 6167 dt. 25.09.2014.
- Original Payment receipt of Rs. 7.25 Lakhs.
The complainant further stated that he requested the OPs to arrange for the execution and registration of another Deed of Conveyance in respect of the same property but the OPs have failed or neglected to do so.
The OPs have also failed or neglected to arrange or obtain the certified copy of the Deed of Conveyance in favour of the complainant. That finding no other way, the complainant sent a letter dt. 15.03.2019 to the OPs requesting to restore the original deed as well as compensation of Rs. 15,50,000/- but till date the OPs have not replied to the same in spite of receiving such letter.
That again on 17.01.2020 the complainant sent a letter to the complainant regarding the aforesaid issue to the OP but no result. In this way, the OPs committed deficiency in service and negligence for which the complainant suffered mental pain and agony.
The cause of action arose on different dates and lastly on 15.03.2019.
Upon this background, the complainant prays for passing an order giving a direction to the OPs to restore the original Title Deed of the complainant along with compensation of Rs. 15,50,000/- for mental pain and agony suffered by the complainant.
The OPs have contested the case by fling W/V denying all the material allegations contending inter alia that the present case is not maintainable under the existing provisions of law and that the complainant has no cause of action to file the instant case and the complainant’s case is barred by law of limitation and that the complainant is not entitled to get any relief in this case and the instant case is vexatious, speculative, harassive, mala-fide and misconceived. And that the instant case is not maintainable in its present form and prayer and is liable to be dismissed and that the case is liable to be dismissed due to mis-joinder and non-joinder of the parties.
The specific case of the OPs is that it is admitted and undisputed fact that the complainant has availed a financial assistance from the OPs and the complainant is a borrower on the agreed terms and conditions of the loan sanctioned letter and the OPs are the Creditor Banks. The OPs further stated that as part of the Banking Policy all the valuable documents of the Bank as well as the Documents of the Borrowers are kept with a Limited Company namely Stock Holding Management Services Limited or Stock Holding D.M.S. Ltd, engaged in maintaining the safe custody of valuable documents of its different clients on a lease basis for a period of three years to lifetime by its operation of documents management solution and the said Company is situated at Mahape Shilpate Road, near Adavli-Bhutavali Village SHCIL House, Plot No. P-51, T.T.C. Industrial Area, MIDC, Mahape, Navi Mumbai-400710 and entries in respect of the same are kept by the C.O.O. in the Operation Department where the major proportion of the documents were of this Opposite Parties’ Bank along with the other Bank and Financial Institutions and for the purpose of the security of those documents 30-35 Security Guards were being deployed by the Maharashtra Security Board. On 11.12.2017 an accidental fire broke out on the premises of the building due to short-circuit of the electrical wiring where all the valuable documents of this O.P Bank were kept and they were burnt to ashes despite the best efforts of the Fire Fighters from Fire Brigade, M.I.C.E and the effort of managing the fire by various means continued till 23.12.2017. Subsequently, a General Diary was lodged before the Police Station: Rabale M.I.D.C., District: Naavi Mumbai and State Maharashtra vide G.D. Entry No. 012 dated 23.12.2017 where the G.D Type had been recorded as Fire Incident.
The OPs also stated that as the entire incident was accidental and it was a Force Majeure circumstance where even after taking reasonable care, precaution and efforts, the documents cannot be saved and the loss of the documents are well within the knowledge of this complainant /borrower as admitted him on the basis of receiving a letter dated 15.01.2019 which was sent to the complainant. The OPs did not commit any deficiency in service or negligence.
Upon this background, the OPs claim for dismissal of the case.
Decision with Reasons.
In order to prove the case, the complainant himself filed evidence-in-chief. No evidence-on-affidavit has been filed by the OPs. The complainant has filed Xerox copies of documents regarding home loan facility, provisional certificate issued by the OPs and closure of housing loan of the complainant and one Advocate’s letter to the Branch Manager, I.D.B.I, Birhata Branch, Burdwan . The complainant has filed Written Notes of Argument also. The OPs also filed Written Notes Argument and then the complainant filed reply to the said W.N.A.
Perused the complainant, W/V, Evidence-in-Chief, documents already stated above, W.N.A. along with reply of both sides.
Admittedly, the complainant took a loan of Rs. 7, 25,000/- from the OPs to purchase a flat in question and subsequently, the complainant paid the said loan, though it is admitted by both sides, the complainant could not produce any Xerox copy of Memorandum-Of-Understanding dt. 12.08.2014, Deed of Conveyance being No. 6167 dt. 25.09.2014 and payment receipt of Rs.7, 25,000/- . Ld. Advocate for the complainant argued that though the documents were deposited at the time of taking loan but there is no plea in the complaint that after receiving the Xerox copies of the same, he had deposited those original documents before the OPs. The complainant took plea in the complaint that he again requested the OPs to arrange for the execution and registration of another deed of conveyance in the respect of the same property but the OPs have failed and/or neglected to do so. This plea cannot be considered as law could not permit to do so, as because one a deed in respect of a property is executed and registered, another deed cannot be executed and registered in respect of the same property. Apart from it, the OPs are financer and there is no whisper that the OPs have attached the said property for non-payment of the loan and the question arose how the financer in this situation can execute and registered another deed of conveyance in respect of the same property. Therefore, this plea raised by the complainant has no leg to stand upon.
The complainant has prayed for giving a direction upon the OPs to restore the Original Title Deed to the complainant as because it is well-known to him that those original documents have already damaged by fire. But in the complaint he alleged that the OPs have also failed or neglected to arrange for obtaining a certified copy of the said Deed of Conveyance in favour of the complainant. In this connection, in the Written Version as well as in the Written Notes of Argument, the OPs took plea that those documents were kept with a Limited Company namely Stock Holding Management Services Limited or Stock Holding D.M.S. Ltd, engaged in maintaining the safe custody of valuable documents of its different clients on a lease basis for a period of three years to lifetime by its operation of documents management solution and the said Company is situated at Mahape Shilpate Road, near Adavli-Bhutavali Village SHCIL House, Plot No. P-51, T.T.C. Industrial Area, MIDC, Mahape, Navi Mumbai-400710 and entries in respect of the same are kept by the C.O.O. in the Operation Department where the major proportion of the documents were of this Opposite Parties’ Bank along with the other Bank and Financial Institutions and for the purpose of the security of those documents 30-35 Security Guards were being deployed by the Maharashtra Security Board. On 11.12.2017 an accidental fire broke out on the premises of the said building due to short-circuit of the electrical wiring where all the valuable documents of this O.P Bank were kept and they were burnt to ashes despite the best efforts of the Fire Fighters from Fire Brigade, M.I.C.E and the effort of managing the fire by various means continued till 23.12.2017. Subsequently, a General Diary was lodged before the Police Station: Rabale M.I.D.C., District: Naavi Mumbai and State Maharashtra vide G.D. Entry No. 012 dated 23.12.2017 in respect of the said incident. In this situation, the OPs took plea that it was a Force Majeure circumstance where even after taking reasonable care, precaution and effort, the documents cannot be saved , on which it is not possible for the Bank to restore the documents in original. The OPs have also substantiated by producing the copy of G.D. Number in respect of the incident of fire accident which damaged the documents of the complainant. The Written Notes of Argument the OPs submitted that there they are ready to return back the same though partially damaged along with a Certified Copy of the same but the complainant has made prayer before the Commission to pass a direction upon the OPs for return of the said Original Deed. In this situation, it can be said that the complainant may have taken the offer as submitted by the OPs in their Written Notes of Argument but the prayer of the complainant is otherwise in this case. The complainant prays for passing order directing the OPs to restore the original Title Deed to the complainant which is not possible in the above circumstance and there is no prayer to return the partial damaged Deed and a certified copy of the same. As there is no such prayer or other prayer which is deem fit and proper in this case, has not been made by the complainant, this Commission is not in a position to pass such order.
Regarding the prayer of compensation of Rs.15, 50,000/- for mental pain and agony has not been substantiated by the complainant.
Under the above facts and circumstances we are of opinion that the complainant has failed to prove his case against the OPs.
As a result, the case fails.
Hence, it is
ORDERED
That the Consumer Complaint No. 39/2020 be and the same is hereby dismissed on contest against the OPs but without any cost.
Let a copy of this order be supplied to the parties on free of cost.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member Member President
D.C.D.R.C , Purba Bardhaman. D.C.D.R.C, Purba Bardhaman. D.C.D.R.C , Purba Bardhaman.
