Tamil Nadu

StateCommission

CC/3/2008

A.C.Dharmadevi - Complainant(s)

Versus

Indian Bank & 2 others - Opp.Party(s)

K.Ramachandran

23 Jul 2015

ORDER

 

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

                                       Present:  Thiru J. Jayaram,                               PRESIDING JUDICIAL MEMBER

                                                      Tmt.  P. Bakiyavathi                           MEMBER

C.C. No. 03 / 2008

Dated this the 23^rd day of  JULY, 2015

A.C. Dharmadevi,                               ]

W/o Late Chakravarthy,                      ]

Managing Partner,                     ]

M/s Swasthik Tobacco Factory,           ]         .. Complainant

Vedaranyam – 614 810                       ]

 

Vs

1. The Indian Bank,                             ]

    Represented by the                         ]

    Public Information Officer, & ]

    General Manager (H&M),                ]

    No.66, Rajaji Salai,                         ]

    Chennai – 600 001                          ]

2. The Indian Bank,                             ]

    Esplanade Branch,                          ]

    by its Branch Manager,                   ]

    Chennai                                         ]

]

3. The Indian Bank,                             ]

    Represented by its                          ]

    Branch Manager,                            ]         .. Opposite Parties

    Tiruvarur                                        ]

         This complaint coming up before us for final hearing on 26-06-2015 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following Order:

Counsel for Complainant:                             Mr. K.Ramachandran

Counsel for Opposite Parties – 1 to 3   M/s RRK Associates  

J. JAYARAM, JUDICIAL MEMBER

          The case of the complainant is as follows:

          The Swastik Tobacco Factory is a very old organization and has been functioning for a very long time. The complainant had also been a customer of the Indian Bank / opposite party from 1939 onwards. The complainant availed loan facilities from the opposite party bank in the year 1966, and for a loan advanced on 24-06-1966 and in order to secure the loan he deposited all the title deeds on 19-12-1967 and at that time 12 documents were deposited with the opposite party bank. At the time of availing the loan, the factory was represented by her father Anantharayyan Mudaliar, who was the Managing Partner. After his death, the complainant being his only daughter succeeded to the factory as the Managing Partner. The original documents were deposited with the Indian Bank, H.O., Chennai, and subsequently, the same was transferred to Esplanade Branch of the Indian Bank which was also confirmed by the then Manager of the Esplanade Branch.

   2.       Thereafter the complainant wanted to continue the facility and approached the bank for extending the security and also to inspect the original documents pending with the bank. It was at that time, the complainant was informed that the original documents were missing. The original documents were kept in a Cement colour cover and kept in a box in the strong room of the bank. On 28^th Nov. 1988, her son-in-law along with the Manager, Indian Bank, Vedaranyam Branch went to Indian Bank, Esplanade Branch to trace the documents, but the cover could not be traced. Even at that time in 1988, the value of the property covered by the title deeds and other documents was of the value of Rs.60 Lac. This was brought to the notice of the Vigilance Cell, Indian Bank, H.O., Chennai by the complainant on 20-12-1988, the Chief Vigilance Officer informed the complainant that the documents were being attempted to be traced. On 29-12-1988, the Inspectorate of Madurai Indian Bank informed the complainant, that the matter had been taken up with the Zonal Inspectorate and further developments would be reverted to and this letter was in reply to letter dated 27-12-1988 sent by the complainant.

3.       On 30-08-1989, the complainant sent a further communication to the Chief Officer, Vigilance Department, Chennai and the same was acknowledged on 06-09-1989. A further reminder was sent on 26-07-1990, and the letter was acknowledged on 09-08-1990 – in which the bank informed that the Zonal Manager, Tiruchy had been instructed to sort out the matter. Thereafter, the complainant agreed to a bank’s proposal to take certified copies to substitute the same for creating equitable mortgage and also acceptance was given by the complainant to publish the loss of original documents in the news paper. On 01-04-1991, a further communication was sent by the complainant and a reply was sent on 04-04-1991 and on 05-12-1998 a registered letter was sent to the Regional Manager, Kumbakonam about the delay in tracing the original documents. A further reminder was sent on 29-05-1999. On coming to know that the Chairman & Managing Director was camping at Vedaranyam, a further communication was sent. Since no action was taken, a personal letter was sent on 01-07-2000 to trace the documents since it was not possible to have any transaction without the originals. A reply was sent by the Zonal Manager, Pondicherry informing that the matter was receiving their attention. A further reminder was sent on 31-07-2000 and reply was received from the bank on 27-09-2000 that since the original documents were not traceable certified copies were obtained and equitable mortgage was created on 1998 at the Esplanade Branch. A prompt reply was sent by the complainant strongly objecting to the use of certified copies since the same cannot be equated with the original, nor the complainant had at any time abandoned the claim for return of the original documents; On 02-05-2001 a letter was sent directly to the Chairman & Managing Director, Indian Bank HO, Chennai to interfere and see that the matter is brought to a successful close. In the same year, another representation was made, which was followed by the letter dated 06-12-2002 stating the reasons for the original being handed over. Since there was no reply, the complainant wrote a letter under the RTI Act on 16-08-2007 to the Ch & MD asking for particulars. On 28-08-2007 a further communication was sent and the opposite parties sent a reply stating that the moment the loan was closed, the certified copies will be returned to the complainant along with a certificate of ‘No Dues’. The property cannot be negotiated by way of sale or mortgage without the original documents. The price of properties has escalated during the last 20 years, and the property is worth more than Rs.1 crore. Any negotiated sale of the property is not possible for the estimate value. The bankers admitted the loss of the original documents and its liability to trace the same amounts to deficiency in service on the part of the opposite parties, and hence the complaint, to direct the opposite parties to pay a sum of Rs.40 Lac towards deficiency in service and a sum of Rs.20,000/- as cost of the complaint.

4.       The opposite parties filed version stating as follows:

The complaint is liable to be rejected on the grounds of limitation and acquiescence and misjoinder of parties. The complainant agreed to the bank’s proposal to take certified copies and substitute the same for creating equitable mortgage; also acceptance was given by the complainant to publish in the newspaper. The dispute arose in the year 1991 and so it is barred by limitation, and the complainant has acquiesced to substitute the original documents by the certified copies of the document, and there is no deficiency in service on their part.

5.       The complainant filed proof affidavit, additional proof affidavit and also supplementary proof affidavit. 29 Documents were filed and marked as Ex.A1 to A29 on the side of the complainant.  Proof affidavit was filed by the opposite parties but no documents were filed on their side.

6.       The points for consideration are:

(i)      Whether the complaint is barred by limitation;

(ii)      Whether the complaint is barred by acquiescence;

(iii)     Whether there is deficiency in service on the part of the opposite parties as alleged in the complaint;

(iv)     Whether the complainant is entitled to claim compensation from the opposite parties; and

(v)     To what relief the complainant is entitled.

7.       Point No.(i): The first contention of the opposite parties would be that the complaint is barred by limitation. It is pertinent to note that documents have been missing, and in this case we cannot fix a particular date for the missing of the documents and the opposite parties have been trying to trace out the records and it is a continuing process, and there is continuing cause of action, and so we cannot fix a particular date for cause of action. Therefore, we hold that the cause of action in this case is a continuing one and so it is not barred by limitation, and the contention of the opposite parties in this regard is untenable, and the point is answered accordingly.

8.       Point No.(ii): The further contention of the opposite parties would be that the complaint is barred by acquiescence.

           We have to note that the original documents were found missing, and so certified copies have been obtained and the missing of documents was published in newspaper which is a routine procedure and giving consent by the complainant to act upon the certified copies and to publish the missing of documents in newspaper would not tantamount to acquiescence. The complainant has not abandoned her claim of return of the original documents and she has not waived her right to claim the original documents to be returned to her. Therefore, the contention of the opposite parties that the complaint is barred by acquiescence is unsustainable and we hold that the complaint is not barred by acquiescence or misjoinder of parties, and the point is answered accordingly. 

9.       Point No.(iii): Admittedly, the original documents of the property were deposited by the complainant with the opposite party bank as security for the loan advanced to her by the opposite parties. It is also an admitted fact that the documents are missing in the custody of the opposite parties. The original documents have not been traced out in spite of searching for the past so many years but could not be traced out. Failure to return the original documents to the complainant amounts to gross deficiency in service on the part of the opposite parties, and the point is answered accordingly.   

10.     Point No. (iv):  The complainant has lost the original documents of her property at the hands of the opposite parties. It is universally known that the value of the property would have escalated manifold, but loss of the original documents is a major factor in deciding the value of the property, and the value would be diminished without the original documents, and the property’s worth would be assessed much less without the original documents and with the certified copies, and so the complainant is entitled to claim compensation from the opposite parties, and the point is answered accordingly.  

11.     Point No.(v): According to the complainant, the worth of the property is Rs.60 Lac at that time, and definitely the worth of the property would have increased to several times. The complainant has claimed compensation of Rs.40 Lac towards deficiency in service, and cost of Rs.25,000/-. Considering the fact, that the opposite party banks have been trying to trace out the records, we are inclined to award lesser compensation only, and we feel that an award of Rs.3 Lac would be the reasonable compensation for negligence and deficiency in service on the part of the opposite parties in not tracing out the original records and the failure to return the documents to the complainant, and a sum of Rs.50,000/- would be the reasonable compensation for mental agony, and Rs.10,000/- as costs, and the point is answered accordingly.

12.     In the result, the complaint is partly allowed directing the opposite parties jointly and severally to pay to the complainant a sum of Rs.3,00,000/- (Rupees Three Lakhs only) as compensation for the negligence and deficiency in service on the part of the opposite parties  and to pay a sum of Rs.50,000/- (Rupees Fifty Thousand only) as compensation for mental agony, and to pay costs of Rs.10,000/- (Rupees Ten Thousand only).            

Time for compliance two months from the date of receipt of copy of the order. In case of default to comply with the order, the amounts shall carry interest at the rate of 9% p.a. from the date of default till compliance.

P. BAKIYAVATHI                            J. JAYARAM              

MEMBER                            PRESIDING JUDICIAL MEMBER          

List of Documents filed by the Complainant

Ex.A1          17-12-1988  Letter from complainant to opposite party with

                                      enclosure

Ex.A2          20-12-1988  Letter from Indian Bank to complainant.

Ex.A3          27-12-1988  Letter from complainant to Indian Bank.

Ex.A4           29-12-1988  Letter from Indian Bank to complainant.

Ex.A5          30-08-1989  Letter from complainant to Indian Bank.

Ex.A6           06-09-1989  Reply from Indian Bank.

Ex.A7          26-07-1990  Letter from complainant to Indian Bank.

Ex.A8           09-08-1990  Letter from Indian Bank to complainant

Ex.A9          -                  Letter from complainant to Indian Bank.

Ex.A10        -                  Postal receipt.

Ex.A11        04-04-1991  Letter from complainant to Indian Bank.

Ex.A12        05-12-1998  Letter from complainant to Regional Manager,

                                      Kumbakonam.

Ex.A13        -                  Acknowledgment

Ex.A14        29-05-1999  Letter from complainant to Regional Manager,

                                      Kumbakonam

Ex.A15        01-07-2000  Letter from complainant to the opposite

                                      parties

Ex.A16        05-07-2000  Postal Acknowledgement

Ex.A17        06-07-2000  Letter from opposite party to complainant

Ex.A18        31-07-2000  Letter from complainant to opposite party

Ex.A19        27-09-2000  Letter from Indian Bank to complainant

Ex.A20        30-09-2000  Letter from complainant to Indian Bank.

Ex.A21        02-05-2001  Letter from complainant to Indian Bank.

Ex.A22        -                  Postal receipt

Ex.A23        02-05-2001  Acknowledgment

Ex.A24        06-12-2002  Letter from complainant to opposite party

Ex.A25        07-12-2002  Postal receipt

Ex.A26        09-12-2002  Acknowledgment

Ex.A27        16-08-2007  Letter from complainant to Indian Bank.

Ex.A28        28-08-2007  Letter from complainant to opposite party

Ex.A29        26-09-2007 Reply from opposite party to complainant.

List of Documents filed by the Opposite Parties ‘NIL’

 

P. BAKIYAVATHI                              J. JAYARAM            

MEMBER                               PRESIDING JUDICIAL MEMBER