| Final Order / Judgement | Date of filing:30.01.2017 Date of Disposal:25.07.2023 BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH) DATED: 25th Day of July 2023 PRESENT Mr. K B SANGANNANAVAR: JUDICIAL MEMBER Mrs.M.DIVYASHREE : LADY MEMBER APPEAL NO. 301/2017 Tata Capital Financial Services Limited, Regent Sunny Side, No.581, Ground Floor, 80 Feet Road, 8th Block Koramangala, Bengaluru-560095 (By Mr.Jai Patil, Adv.) -Versus- Jayasimha K.S. S/o Late K.V.Sampath, No.286, Defense Layout, Vidyaranyapura, Bengaluru-560097 (Party in Person) ORDER BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER - This is an appeal filed by OP in CC/568/2013 on the file of II Additional District Consumer Disputes Redressal Forum, Bengaluru, aggrieved by the order dated 05.10.2016. (The parties herein after will be referred as to their rank assigned by the Commission below)
- The Commission examined grounds of appeal, impugned order, appeal papers and heard learned counsels.
- The brief facts of the case are: complainant was the absolute owner of site bearing no.286, formed in Sy.No.06 situated at Chikkabettahalli, Yelahank Hobli, Bengaluru North Taluk. He had availed loan facility from OP and as a security towards the said loan he had deposited title documents with OP. Subsequently, complainant thought of alienating the property, sold the said property to one Mr.K.Madhusudhana Reddy, vide Sale Deed dated 30.07.2012. He had closed the loan availed by him from OP prior to executing Sale Deed in favour of Mr.K.Madhusudhana Reddy and had collected title documents. However, found one of registered Sale Agreement dated 22.07.2011 entered between complainant and two others was not returned to him. It is also the case of the complainant that Mr.K. Madhusudhana Reddy, who had purchased the site from him had availed loan from Axis Bank Limited and the said bank having not received the Sale Agreement withheld release of Rs.12,51,834/- being the balance consideration which the complainant had to receive from the purchaser Mr.K.Madhusudhana Reddy.
- Thus from the above allegations complainant raised a consumer complaint before the Forum below wherein sought for a relief to direct OP to pay Rs.12,51,834/- which is the equivalent value of the site sold by him to Mr.K.Madhusudhana Reddy along with interest @ 12% p.a. from the date of claim till realization and for rendering deficiency of service to compensate for mental agony, financial loss and physical hardship at Rs.3,00,000/-.
- The OP contested the complaint, denied the allegations as to their rendering deficiency in service. In view of rival contentions, Forum below held an enquiry and allowed the complaint, consequently directed OP to pay Rs.12,51,834/- along with interest @ 12% p.a. from the date of complaint till realization, to pay a sum of Rs.5,000/- towards mental agony and Rs.5,000/- towards litigation expenses. It is this order being assailed in this appeal, contending that the Forum below based on the assumption and presumptions has fastened liability on the OP, without going through relevant provisions of law provided in Transfer of Property Act, 1882 and without examining documents. Further contending that Forum below has failed to appreciate the materials on record, passed impugned order, which is liable to be set aside.
- Let us examine the complaint to understand what exactly the dispute between parties to the complaint. The complainant had raised consumer complaint on 11.03.2013 before the Forum below. According to complainant he had intended to execute a registered Sale Deed in favour of Mr.K.Madhusudhana Reddy and Mr.K.Madhusudhana Reddy intended to purchase the said property, had applied for loan from Axis Bank Limited. Accordingly he applied for sanction of loan to the Axis Bank Limited. The said bank after verifying the documents sanctioned the loan and issued 03 cheques dated 25.07.2012 for a sum of Rs.24,95,851/- in the name of Tata Capital Housing Limited as a pre-closure cheque and issued demand pay order vide no.196424 dated 25.07.2012 for a sum of Rs.12,42,542/- drawn in the name of complainant towards part payment of sale consideration amount. The cheque or demand pay order vide no.196425 of the same date was for Rs.12,51,824/- drawn in favour of complainant. All these cheques/pay orders are issued by Axis Bank Limited which is not disputed and on issuance of these pay orders/cheque dated 25.07.2012 for a sum of Rs.24,85,851/- drawn in the name of the OP as a pre-closure cheque and after receiving the cheque the OP had issued the closure letter vide dated 04.08.2012 for having fully settled the loan in favour of the complainant. It has also come in the enquiry after sanctioning of the said loan; complainant has executed a registered Sale Deed on 30.07.2012 in favour of Mr.K.Madhusudhana Reddy. In other words, as on 11.03.2013 when complaint is raised complainant herein is no more a owner of the said property since w.e.f. 30.07.2012 Mr.K.Madhusudhana Reddy became absolute owner of the said property who had availed loan from Axis Bank Limited and complainant had pre-closed his loan availed from OP. Now question arises how this complaint is maintainable without impleading Mr.K.Madhusudhana Reddy, who had obtained a registered Sale Deed from complainant herein on 30.07.2012 and even in he would be impleaded as one of the party how a consumer complaint is maintainable. In this regard learned counsel for appellant has brought to the notice of the Commission that complainant had received documents from Sl.No.1 to 16 on 29.10.2011 from The Credit Manager, Tata Capital Housing Finance Limited, Bengaluru, which is Original Verification Certificate, wherein could see signature of complainant for having received all the documents except Sl.No.11 which is a Registered Cancellation Agreement bearing document no.3606/2011-12 entered between Sri.K.S.Jayasimha with Sri.P.Sreenath Reddy and Sri.P.V.Subba Reddy for site no.266 in Sy.No.06, measuring 30x40ft., wherein cancelling Registered Agreement of Sale bearing no.2166/2011-12. It is thus this document would play vital importance to decide the dispute raised by complainant, since it was his case that he had not received this document and facts remained after cancellation of Agreement of Sale bearing document no.2166/2011-12 complainant had executed a registered Sale Deed in favour of Mr.K.Madhusudhana Reddy. It is therefore, his case that for not submitting registered Sale Agreement of Sale dated 22.07.2011 bearing no.2166/2011-12 entered between complainant with Sri.P.Sreenath Reddy and Sri.P.V.Subba Reddy, having not been submitted to banker of Mr.K.Madhusudhana Reddy, amount of Rs.12,51,834/- was withheld could be held u- acceptable. In other words, his case that for non return of original document at Sl.No.11 in the list of documents verified in originals received by complainant for the equivalent amount of Rs.12,51,834/- could not be considered at all for simple reason that Mr.K.Madhusudhana Reddy who had obtained a registered Sale Deed dated 30.07.2012 only after execution of Registered Cancellation Agreement had applied to his banker to avail loan to transfer sale price in favour of complainant which could be found from enquiry and without his participation in this consumer complaint directing OP to pay Rs.12,51,834/- along with interest @ 12% p.a. from the date of compliant till realization and awarding Rs.5,000/- towards mental agony and Rs.5,000/- towards litigation cost is unsustainable in law. The dispute is in respect of non return of Registered Cancellation Agreement for having cancelled the Sale Agreement dated 20.10.2011, even if it was not returned to the complainant by the bank he can very well obtain certified copy of such registered document from the office of sub-registrar concerned to replace the same, since it was already merged under absolute sale deed and the so called vendee under the said sale deed did not have any grievance either before the forum below or before any of the officer or authorities as the case may be, no doubt to obtain such document from the office of sub-registrar complainant has to spend some money. Anyhow he had approached Consumer Fora and the OP approached the State Commission in this appeal wherein all the while complainant had actively participated in the proceedings has to be held entailed for some amount of compensation. We have to notice of the fact matter is pending for almost 10 years with the Consumer Foras. In such circumstances, we are of the view that complainant is entitle for some amount of compensation for non return of Sl.No.11 document dated 20.10.2011 which is a Registered Cancellation Agreement for having cancelled registered agreement of sale bearing no.2166/2011-12. If it was an unregistered agreement of sale and was not subsequently merged in sale deed, matter would have been different.
- In the above view of the matter, we proceed to allow the appeal in part. Consequently set aside the impugned order dated 05.10.2016 passed in CC/568/2013 on the file of II Additional District Consumer Disputes Redressal Forum, Bengaluru and as a result modified the impugned order in the following terms:
The OP is still directed to return original Registered Cancellation Agreement bearing no.3606/2011-12 entered between Sri.K.S.Jayasimha with Sri.P.Sreenath Reddy and Sri.P.V.Subba Reddy for site no.266, in Sy.No.06, measuring 30x40ft wherein cancelled the registered Sale bearing document no.2166/2011-12 dated 20.10.2011 within 45 days and pay Rs.25,000/- towards mental agony and Rs.10,000/- towards litigation cost and on OP’s non compliance of the said order to pay Rs.50,000/- towards all the expenditure to meet the situation to answer the vendors and do pay Rs.25,000/- as compensation for mental agony, physical inconvenience and to pay Rs.10,000/- as litigation cost within 45 days thereafter failing which such amount shall carry interest @ 08% p.a. from such date till realization. - The Amount in deposit is directed to be transfer to the Commission below for needful.
- Send a copy of this Order to the District Commission and parties to the appeal.
Lady Member Judicial Member *GGH* | |
