COMPLAINT FILED:04.01.2010
DISPOSED ON:14.10.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
14th DAY OF OCTOBER-2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO.19/2010
ComplainantS | 1. Smt.K.Lakshmi W/o late Kannan, Aged about 57 years, 2. Mohan Velu S/o late Kannan, Aged about 37 years, 3. K.Babu, S/o late Kannan, Aged abosut 35 years, 4. K.Ravichandran S/o late Kannan, Aged about 34 years, 5. K.Balachandran S/o late Kannan, Aged abodut 31 years, All are residing at No.20, A.D.Block, Palace Guttahalli, First Main, Vyalikaval, Bangalore-560 003. Advocate: Sri.M.K.Venkatramana V/s. |
OPPOSITE PARTIES | Karnataka Rajya Kaigarika Shahakara Bank Niyamitha, No.1040, 6th Main Road, Vijayanagar Branch, Bangalore-560 040, Represented by its Branch Manager. Advocate:Sri.G.S.Patil, |
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O R D E R
Sri.B.S.REDDY,PRESIDENT
1. The complainants filed this complaint Under Section 12 of the Consumer Protection Act 1986 seeking direction against the opposite party (herein after refer to as OP) to return all the original title deeds of the mortgaged property, to issue loan clearance certificate and to pay compensation of Rs.30,000/- on the allegation of deficiency in service on the part of OP.
2. The case of the complainants to be stated in brief is that:
The first complainant is the mother of the complainants 2 to 5. The complainants became guarantors for the credit facility availed by one Mr.Radhakrishna M/s Bind Fabricators, as a security for repayment of loan. The complainants created registered mortgage of property bearing No.20 (Old No.29) situated at A.D.Block, Palace Guttahalli, First Main Road, Vyalikaval Bangalore-3. The borrower of the loan Mr.Radhakrishna had failed to repay the loan amount with interest to OP, OP filed a dispute before the jurisdictional registrar of Co-operative Societies, Bangalore, for recovery a sum of Rs.2,64,969/- and interest thereon against the said borrower and obtained an award against the borrower and the complainants. OP filed Execution Petition against the complainants and the said borrower, for recovery of Rs.5,31,118/- and interest thereon in C.E.P.No.59/2001-02 and issued Public Notice regarding public auction of the complainants’ property mortgaged. OP had affixed one more notice in form No.9 to the premises of said borrower and the complainants regarding Public Auction of the property mortgaged to recover its due amount of Rs.77,738/- and interest from 01.11.2009. The complainants visited the OP’s office for remittance of balance due amount and to get back their title deeds and No Due Certificate cum Clearance Certificate. But the OP has informed the complainants that the loan amount has been received entirely and because of pendency of case filed by one M.Murugesh against the Bank and the complainants, the OP was unable to return the original documents of the property. The complainants had sent letter dt.07.12.2009 to OP to issue loan clearance certificate and return all the title deeds of the property but OP failed to comply the demand. Legal notice dt.21.12.2009 was issued to OP to issue loan clearance certificate and return original title deeds but OP has sent untenable reply. The action of the OP regarding delay for returning title deeds of property and failure of issue of loan clearance certificate is gross negligence; the same has caused irreparable loss, untold harassment, agony and inconvenience to the complainants. Hence the complaint.
3.On appearance, OP filed version contending that the complainant No.1 not only stands surety for the borrower T.Radhakrishna but also given immovable property belonging to her as security to the OP-bank for release of the said loan, by depositing its title deeds by executing necessary loan documents. Complainant No.1 and borrower defaulted in repayment of the said loan amount. Complainant No.1 in violation of agreed terms and without the knowledge of OP entered into agreement of sale dt.03.11.1999 in favour of one M.Murugesh agreeing to sell the said property mortgaged. It is the said M.Murugesh who paid entire loan amount due to the OP-Bank and cleared the loan amount. The said M.Murugesh filed a suit in O.S.No.289/2009 before the City Civil Court, Bangalore against the complainants and the OP for specific performance of the agreement of sale. Pending the said proceedings, having cleared the loan amount the said M.Murugesh made a representation to the OP for release of original title deeds in respect of said property in his favour. When the entire matter in respect of the issues involved is sized by the Civil Court in O.S.No.289/2009, this Hon’ble Forum ousted its jurisdiction to entertain the complaint. It is admitted that for recovery of the loan amount award was obtained by OP and filed execution petition, brought the property mortgaged for sale. It is denied that the complainant visited OP-office for remittance of the balance due to get back their title deeds and No Due Certificate. The complainants have not cleared the loan amount. Now the complainants with the malafide intention in order to have illegal and wrongful gain have came up with this complaint. Hence, it is prayed to dismiss the complaint with exemplary costs.
4. The complainants in order to substantiate the complaint averments, the first complainant filed her affidavit evidence and produced documents. The Branch Manager of OP filed affidavit evidence in support of defence version.
5. OP filed written arguments.
6. Arguments on complainant’s side heard. Points for consideration are:
Point No.1:- Whether the complainants have
proved the deficiency in service
on the part of the OP?
Point No.2:- If so, whether the complainant is
entitled for the relief’s claimed?
Point No.3:- To what Order?
7. We record our findings on the above points:
Point No.1:- In Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
8. At the out set, it is not in dispute that these complainants became sureties by depositing title deeds of their property bearing No.20 (Old No.29 situated at A.D.Block, Palace Guttahalli, Bangalore, for the credit facility availed by one Mr.Radhakrishna with the OP-Bank. The said borrower failed to repay the loan with interest to the OP, OP filed dispute No.2234/1999-2000 before the Jurisdictional Registrar of Co-operative Societies, Bangalore for recovery sum of Rs.2,64,969/- with interest and obtained award against the borrower and these complainants. In execution of the said award for recovery of sum of Rs.5,31,118/- and interest there on property of these complainants was brought for sale by Public Auction. It is stated that the complainants visited the office of OP for remittance of the amount due and to get back their title deeds and no due certificate but OP informed the complainants that loan amount has been received entirely and because of the pendency of the case filed by one M.Murugesh, OP is unable to return the original documents of the property. The complainants had sent letter dt.07.12.2009 requesting OP to issue clearance certificate and to return the title deeds of the property. OP has not responded for the same. Further, the complainants got issued legal notice on 21.12.2009 demanding to issue clearance certificate and to return the original title deeds, OP has sent reply for the said notice but failed to comply the demand.
9. The main defence of the OP is one M.Murugesh has filed Suit O.S.No.289/2009 before the City Civil Court Bangalore against these complainants and the OP for specific performance of enforcement of agreement of sale dt.03.11.1999 executed by these complainants in respect of the property mortgaged. While pending the said proceedings, the said M.Murugesh made a representation to the OP for release of the original title deeds in respect of the said property in his favour and he has filed application in the said Suit for direction to the OP-Bank for deposit of title deeds in respect of the said property in the Court till further orders. Further, it is stated that in view of the matter pending before the Civil Court in respect of the issues involved, this Forum has no jurisdiction to entertain the complaint. The entire loan was repaid by the said M.Murugesh to the OP due from the borrower and these complainants. The complainants never approached OP for repayment of the loan, hence there is no any deficiency of service on the part of the OP.
10. It may be noted that during the pendency of these proceedings, the said M.Murugesh who has filed O.S.No.289/2009 against these complainants and OP filed application Under Order-1 Rule-10 of CPC to get himself impleaded in this proceedings as a necessary party. The said application has been dismissed by this Forum on 04.07.2011 holding that the presence of the said M.Murugesh is not at all necessary for the purpose of adjudicating the dispute involved in this complaint. Further, the application filed by M.Murugesh in the said original Suit seeking direction against the OP to deposit the title deeds of the property mortgaged in the Court has also been dismissed and the copy of the orders passed on I.A.No.4 in the said Suit has been produced by the complainants. Thus it becomes clear that even the Civil Court has not entertained the application of the M.Murugesh seeking direction to deposit title deeds in the Court while pending adjudication of the dispute regarding specific performance of the contract.
11. Merely because the loan amount due to the OP-Bank has been cleared by the said M.Murugesh and these complainants have not repaid the loan, OP is not justified in retaining the title deeds of the property mortgaged and in not issuing clearance certificate. The original title deeds of the property belonging to these complainants are still with the OP-Bank. The entire loan has been cleared, when there is no any amount due towards the said transaction the complainants are entitled to get back the title deeds and clearance certificate from OP-Bank. In case if the Suit filed before the Civil Court for specific performance of contract is decreed directing these complainants to execute the sale deeds, then the complainants may be required to handover the original title deeds of the property to the plaintiff in the said case. Under these circumstances, we are of the view that the act of OP even after clearance of the loan amount retaining the title deeds of the property and not issuing the clearance certificate amounts to deficiency in service on its part. The complainants are entitled for return of all original title deeds of the mortgaged property and to get loan clearance certificate from OP. Accordingly, we proceed to pass the following:
O R D E R
The complaint filed by the complainants allowed in part.
OP is directed to return all original title deeds of the mortgaged property and issue loan clearance certificate to the complainants and to pay litigation cost of Rs.3,000/- to the complainant within 4 weeks from the date of this Order.
Send copy of this order to both the parties free of costs.
(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 14th day of October-2011.)
MEMBER MEMBER PRESIDENT
Cs.
