Sri. P. Satheesh Chandran Nair (President):

                    The complainant filed this petition u/s.12 of the C.P. Act 1986 for getting reliefs from the opposite parties.

                   2. The case of the complainant is stated as follows:  On 01.02.2005 the husband of the complainant and opposite parties 2 to 3 availed a mutual business loan of Rs.3 lakhs each from 1^st opposite party’s bank.  According to the complainant, her husband repaid the amount as scheduled and on 2010 he renewed the said loan.  But at the same time, the 2^nd and 3^rd opposite parties had not been repaid the loan amount.  On 2007 the complainant’s husband availed a loan of Rs. 4 lakhs from 1^st opposite party’s bank for house construction.  In order to avail this loan the sale deed of complainant’s husband was also deposited for this purpose and the said loan and interest also repaid on 13.11.2014 and all transaction with 1^st opposite party’s bank was closed.  It is contended that even though the complainant’s husband remitted the loan amount and interest of the house loan the 1^st opposite party was did not return the property deed deposited for the said purpose.  According to the complainant, there is no right for the bank for to withhold the sale deed in 1^st opposite party’s bank because her husband was not a defaulter of 1^st opposite party’s bank.  Apart from that the 1^st opposite party has already filed a suit before the Pathanamthitta Sub Court, against 1^st and 2^nd opposite parties and in that case the said court has already attached the property of 3^rd opposite party.  The attached property has also value of Rs.50 lakhs and above.  The said 3^rd opposite party is the father of 2^nd opposite party.  She again contended that 2^nd opposite party is also having properties at Ranni and he is also a business man.  According to the complainant, the non return of the said sale deed by 1^st opposite party is a clear deficiency in service and the legal steps taken against the said property is also comes under unfair trade practice.  The complainant represents and filed this case before this Forum for and on behalf of her husband because he is in abroad for their daily bread.  She is filed this petition against the opposite parties for the return of the document deposited by the complainant’s husband before the 1^st opposite party’s bank and for compensation etc. etc. 

                   3. This Forum entertained the petition and issue notice to the opposite parties for their appearance.  All these 3 opposite parties entered appearance and 1^st opposite party field their version.  Opposite parties 2 and 3 are also filed a joined version separately before the Forum.

                   4. The version of the 1^st opposite party is as follows:  According to the 1^st opposite party the complaint is not maintainable either in law or in fact  and all the allegation raised by the complainant are bogus and not sustainable in law.  It is contended that the complainant in this case is neither a borrower nor a guarantor of 1^st opposite party.  According to the 1^st opposite party, the husband of the complainant obtained a loan from 1^st opposite party and he stood as a guarantor to a loan availed by the 2^nd opposite party.  The said 2^nd opposite party has deposited his title deed for availing the loan.  It is admitted that the husband of the complainant Muhammed Sali had paid all his dues to 1^st opposite party bank, at the same time the loan availed by 2^nd opposite party is still pending.  Hence 1^st opposite party is empowered to retain the title document of Muhammed Sali (complainant’s husband) till the loan amount is cleared by 2^nd opposite party.  According to the 1^st opposite party, as per Sec.128 of the Contract Act the liability is a guarantor is co-extensive with that of the principal debtor unless otherwise provided in the contract of guarantee.  It is admitted that the 1^st opposite party filed O.S.No.12/13 against the husband of the complainant (Muhammed Sali) and opposite parties 2 and 3 before the Sub Court, Pathanamthitta.  The said case is allowed in favour of the 1^st opposite party and an execution proceeding is also pending before the Sub Court, Pathanamthitta as E.P.No117/14.  According to this opposite party, there is no deficiency in service or unfair trade practice from their part as alleged by the complainant.  Hence 1^st opposite party is requested to dismiss the complaint with compensatory costs to them.

                   5. The contention of the 2^nd and 3^rd opposite party is as follows:  According to them, the complainant is not sustainable either in law or in fact.  According to them, they have no transaction with the complainant so far.  It is admitted that a mutual loan was availed by 2^nd and 3 opposite party from 1^st opposite party’s bank for an amount of Rs. 3 lakhs each.  Due to the financial difficulty and aged disease of 3^rd opposite party, 2^nd and 3^rd opposite party could not repaid the loan amount to 1^st opposite party as scheduled.  But at the same time, 1^st opposite party bank already filed a suit before the Sub Court, Pathanamthitta for realising the said loan amount.  In that case, the Execution Petition No.111/14 (O.S No.10/13 and O.S.No.12/13) is also still pending.  Moreover, another E.P.No.16/14 in O.S.No.7/13 is also pending before the Munsiff’s Court, Ranni against 3^rd opposite party and an attachment was also pending against the immovable properties of 3^rd opposite party.  It is contended that the same complainant has also filed a petition before the Kerala State Human Right Commission for this purpose.  All these petitions are only for ill treatment and for defaming the personalities like 2^nd opposite party etc.  According to them, 2^nd and 3^rd opposite parties are not necessary parties for these proceedings and they are included in the party array with malafide intention.  Therefore, this Forum consider their version and dismiss the complaint with cost to the opposite parties. 

                   6. This Forum peruse the complaint, versions and the records available before us and we framed the following issues for consideration:

1. Whether this case is maintainable?
2. Whether the opposite parties have committed any deficiency in service or unfair trade practice?
3. Regarding reliefs and costs?

          7. In order to prove the case of the complainant, the complainant examined as PW1 and filed a proof affidavit in lieu of chief examination and marked Exts.A1 to A5.  Ext.A1 is the Bank Passbook of the complainant’s husband (Account No.456).  Ext.A2 is the Bank Chalan.  Ext.A3 is the Bank Passbook of the complainant’s husband (Loan Account No.30615155000107).  Ext.A4 series are the statement of account for the period of 01.01.2013 to 13.11.2014 (4 Pages).  Ext.A5 series are the letters.   On the other side, the 1^st opposite party also filed a proof affidavit in lieu of his chief examination and examined him as DW1.  He also identified Exts.B1 to B4, which were marked through PW1.  Ext.B1 and B2 are the copy of guarantee agreements executed by Muhammed Sali and 2^nd opposite party to 3^rd opposite party with the 1^st opposite party.  Ext.B3 and B4 are the certified copies of E.P.Nos.111/14 & 117/14.     

          8. When we peruse the proof affidavit filed by PW1, it is clear that the content of the chief affidavit is more or less as per the tune and style of her complaint.  It is deposed that her husband is now at Arabian Gulf, he availed the mutual loan along with 2^nd and 3^rd opposite party in this case.  Her husband repaid his share of the mutual loan to 1^st opposite party’s bank promptly and on 04.08.2007 again her husband availed a housing loan from 1^st opposite party’s bank and the said loan and interest also repaid by her husband.  She again deposed that at present her husband has no loan arrears with 1^st opposite party’s bank except the mutual loan dues of 2^nd and 3^rd opposite parties.  She deposed that her husband deposited his title deed subsequent to the mutual business loan availed from the 1^st opposite party’s bank.  Hence 1^st opposite party’s bank has no right to retain his title deed for the purpose of the mutual business loan.  She also deposed that the act of the opposite party by retaining her husband’s property deed and filing a case against her husband before the Sub Court, Pathanamthitta are also comes under unfair trade practice.  On the other hand, DW1 deposed through his proof affidavit that 1^st opposite party has not committed any deficiency in service or unfair trade practice as deposed by PW1 in this case.  According to DW1, with a malafide intention the complainant approached before this Forum and the complainant has any right to get any kind of relief as deposed by PW1.  DW1 deposed in the 8^th Para of the proof affidavit, “The husband of complainant Muhammed Sali obtained a loan from 1^st opposite party and he also stood as a guarantor/co-obligant to a loan availed by Abdul Samad (2^nd respondent herein).  The said Muhammed Sali has deposited his title deed in for availing the loan.  The same has been extended by him as a guarantee to the loan availed by 2^nd and 3^rd opposite parties herein.  Even though Muhammed Sali has paid his dues to the 1^st opposite party, his guarantee in respect of the loan availed by 2^nd and 3^rd opposite parties is prevailing.  Hence 1^st opposite party (Kerala Gramin Bank) empowered to retain title document till the loan amount is cleared by 2^nd and 3^rd opposite parties.  Above guarantee agreements executed by Muhammed Sali was already produced and marked through petitioner”.  He again categorically deposed that as per Sec.128 of the Indian Contract Act 1872, ‘the liability of a guarantor is co extensive with that of the principle debtor unless otherwise provided in the contract of guarantee’.  Here, it is evident to see that 2^nd and 3^rd opposite parties have availed loan from the 1^st opposite party for which the above said Muhammed Sali (husband of the complainant) is a guarantor.  Unless and until the debt incurred by 2^nd and 3^rd opposite parties are satisfied, the guarantee remains and the 1^st opposite party is entitled to retain the document of Muhammed Sali.  PW1 is cross-examined by 1^st opposite party in this case and no further cross conducted for 2^nd and 3^rd opposite party.  This DW1 also cross-examined by the complainant but 2^nd and 3^rd opposite party have not cross-examined this DW1.  Even though 2^nd and 3^rd opposite parties had filed their version before this Forum, they did not turn up before this Forum at the time of trial and they did not cross-examine PW1 or DW1 in this case.  It is also pertinent to see that even though 2^nd and 3^rd opposite parties are parties of this case, the complainant has not seek any specific relief, against the 2^nd and 3^rd opposite parties.  After the closing of evidence of both sides, we have given opportunities to both sides for hearing and we heard both sides. 

          9. Point No.1:- Opposite parties in this case have a clear case to the effect that this case is not maintainable before this Forum.  According to them, the complainant is not a consumer of these opposite parties.  It is admitted that the complainant’s husband has availed loans from 1^st opposite party in which 2^nd and 3^rd opposite parties are parties of the said mutual business loan.  The complainant through this complaint and through her proof affidavit it is categorically stated that she is the wife of the above said Muhammed Sali and she filed this complaint and contesting this case for and on behalf of the said Muhammed Sali.  As per the relevant provisions of the C.P. Act 1986, this complainant can file a case before this Forum as an agent or representative of her husband.  Moreover, it is to see that no opposite parties are specifically challenged the locus standi of the complainant to act as a complainant in this case.  Another point to be considered is whether the complainant in this case comes under Sec.2(d) of C.P. Act.  When we consider the evidence in this case, it is clear that the complainant’s husband is a consumer of the 1^st opposite party and the 2^nd and 3^rd opposite parties are parties of the mutual business loan availed from 1^st opposite party’s bank along with the complainant’s husband.  Considering all the above stated fact, we can safely arrived a conclusion that the complainant’s husband is a consumer as defined in Sec.2(d) of the C.P. Act 1986 and the complaint filed by his wife for and on behalf of her husband is also legally sustainable.  Hence Point No.1 is found in favour of the complainant.

          10. Point Nos. 2 & 3:- Considering the nature of the case we would like to consider Point No. 2 and 3 together.  As stated earlier we already found that the case is maintainable before the Forum and the complainant’s husband is a consumer of the opposite parties.  The question to be considered is whether opposite parties committed any deficiency in service by withhelding the property deed of the complainant’s husband.  It is admitted that the husband of the complainant has availed a mutual business loan on 01.02.2005 and he remitted his loan share to 1^st opposite party’s bank and at present no personal liability of complainant’s husband is existing with the bank except the loan dues of the other two persons.  They are Abdul Samad and Meeran Moudi.  The liability of the complainant’s husband is now existing as a guarantor.  It is also admitted that subsequent creation of the above said loan, the complainant’s husband availed a housing loan from 1^st opposite party’s bank on 04.08.2007.  It is the specific case of the complainant that the 1^st opposite party bank has no right to keep the property deed of the complainant’s husband for the arrears of mutual business loan.  At the same time, the 1^st opposite party has a strong case to the effect that on the basis of the mutual agreement loan the 1^st opposite party would have get a right to withheld the property deed of the complainant’s husband.  In order to prove this position the opposite parties are mainly relying on Ext.B1.  Ext.B1 is a mutual agreement of one Meeran Maudi (3^rd opposite party) and Muhammed Sali on one side and 1^st opposite party bank on the other side.  This guarantee agreement is executed on 12.01.2010.  The date can be revealed only through the signature put down in the revenue stamp of that agreement (Ext.B1).  Nowhere in Ext.B1 even in the portion for writing the date was also vacant in Ext.B1.  When PW1 is examined before this Forum he answered in cross, “Ext.B1 and Ext.B2 agreementþൻറെ രണ്ടാം പേജിലെ അഞ്ചാം ഖണ്ഡികയിൽ സ്വത്തിൽ നിന്ന് ഈടാക്കാം എന്ന് പറഞ്ഞിട്ടുള്ളത് എനിക്ക് അറിയില്ല”.  On the other hand, when the Manager of the 1^st opposite party bank was examined and he replied in cross, “വാദിയുടെ ഭർത്താവ് എൻറെ ബാങ്കിൽ നിന്ന്   housing loan എടുത്ത വിവരം അറിയാം   2007-þൽ ആണ് ടി loan എടുത്തത്. ടി ലോണ് അടച്ചു തീർത്തതായി അറിയാം ”.  He adds, “proof affidavitþൽ 8þആം paragraphþൽ പറഞ്ഞിരിക്കുന്നത് business loan ആണ് 12.01.2010-þൽ ആണ് ടി business loan എടുത്തത് 2005-þൽ എടുത്ത business loan 2010-þൽ പുതുക്കുകയാണ് ചെയ്തത്”.  It is clear from the testimony of DW1 that even though complainant’s husband availed a housing loan in the year 2007 that loan had been repaid fully and the said housing loan is availed after 2 years of the mutual business loan.  Anyway, it is a conclusive proof that there is no document deposited at the time of the creation of the above said mutual business loan.  In cross-examination, DW1 again deposed, “Housing loanþനു വെച്ച deed business loanþലേക്ക് extend ചെയ്തതിൻറെ രേഖയുണ്ടോ? (Q) ഉണ്ട് .  Ext.B1 (A)”.  When we peruse Ext.B1, it is to see that there is not even a murmuring                 with regard to the property deed.  5^th Para in 2^nd Page of Ext.B1 and B2 is as follows, “The liabilities of the Guarantors under, these presents shall be construed as joint and several.  This guarantee shall be a continuing guarantee notwithstanding the death of any one or more of the Guarantors and shall be binding on the representatives and the estates of the deceased Guarantors until the expiry of six months after a notice in writing or revocation of the guarantee as hereinafter provided is received by the Bank”.  When a reading of this portion it reveals that the liability shall be construed as joint and several, continuing in nature and shall be binding on the representatives and the estates of the deceased Guarantor.  We do admit that in a mutual agreement loan, the parties are jointly and severally liable to the bank and the charge of the loan can be created to the properties of the said parties and if a party died the legal representatives are also liable to the bank to the extent of the liability of the deceased.  Nowhere in this Paragraph the bank has got a right to withheld any document of any parties which were not deposited at the time of the creation of the said loan.  It is also admitted that the housing loan of the complainant’s husband was created after the creation of the above said mutual business loan and it is also admitted that the said housing loan was totally repaid and no arrears are pending with regard to that housing loan.  When we examined Ext.B1 and B2 anywhere in Ext.B1 or B2 there is any mention with regard to the property document of complainant’s husband.  If the 1^st opposite party has any bonafides in their contention with regard to the property document of the Guarantor Muhammed Sali even at the renewal of the said business loan, the bank can mention about the property document.  When we considering the above evidences adduced by both side, we could not rely the contention forwarded by 1^st opposite party in this case with regard to the property document in question.  In this case, both sides admitted that there is a Civil case pending before the Sub Court, Pathanamthitta for realising the mutual business loan from the 2^nd and 3^rd opposite party and from Muhammed Sali.  It is also admitted that the said Suit is decreed and E.P.No.117/14 is also pending before the Sub Court for the realisation of the amount.  As per Ext.B3 and Ext.B4, 2 Execution Petitions are pending against 2^nd and 3^rd opposite parties and against the husband of the complainant (Muhammed Sali).  We do admit that in order to realise the amount from the opposite parties, plaintiff bank (1^st opposite party) in this case has all right to proceed against the defendants and their assets.  But the question to be considered here is whether 1^st opposite party bank has a right to withheld the document as per Ext.B1 and B2.  It reveals that the 1^st opposite party bank did not get any right to withheld the document as per Ext.B1 and B2.  It is also pertinent to see that in Sub Court, Pathanamthitta O.S.No.10/13 and O.S.No.12/13 was pending against the 2^nd and 3^rd opposite parties and the above said Muhammed Sali and in both cases court decreed in favour of the bank (1^st opposite party) and at present 2 execution petitions are also pending against 2^nd and 3^rd opposite parties and the above said Muhammed Sali as E.P.No.111/14 & E.P.No.117/14 respectively.  It is interesting to see that in any of the above said case the bank has any case with regard to the production of the document in question before the Sub Court, Pathanamthitta at any stage.  It also proves that withholding of the document in question is not even necessary for the proceedings of the above said cases.  The counsel for the 1^st opposite party argued that as per Sec.128 of the Contract Act 1972 the bank has got  all right to retain the property document of the surety.  Sec. 128 reads, “The liability is the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract”.  When we peruse this section it is clear that the liability of the surety is co-extensive with that of a principal debtor.  As far as this case is concerned the retention of the document is without an authority and at the time of creation of this loan the document was not deposited or not mentioned even at the time of renewal.  Hence the argument raised by the 1^st opposite party’s learned counsel has not been sustained.  When we appreciate the whole evidence of the case, it is to see that the complainant’s husband is still a debtor of this bank as a Guarantor of 2^nd and 3^rd opposite parties.  As a banking institution we do admit that in order to realise the loan amount advanced they have to take coercive steps against the defaulters.  Considering this aspect we find that the 1^st opposite party bank has taken proper legal steps against the defaulters before the Sub Court, Pathanamthitta as stated earlier.  But on the other hand, there is no reason to believe that the withholding of the property document by 1^st opposite party is justifiable.  As we discussed earlier, we find that by withholding the property document of complainant’s husband, 1^st opposite party committed deficiency in service against the complainant’s husband.  For that 1^st opposite party is liable to the complainant’s husband.  Considering all these facts and circumstances of this case, we find that the complaint can be partly allowable.  Hence Point Nos.2 and 3 are found accordingly.

          11. In the result, we pass the following orders,

1. 1^st opposite party is directed to return the property document of the complainant’s husband within 1 month from the date of receipt of this order to the complainant after obtaining an acknowledgment receipt. 
2. 1^st opposite party is also directed to pay a cost of Rs.5,000/- (Rupees Five Thousand only) to the complainant with an interest of 10% from the date of order onwards.
3. There is no order for compensation.                        

            Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 29^th day of April, 2016.

                                                                                    (Sd/-)

                                                          P. Satheesh Chandran Nair,

                                                                  (President)

Smt. K.P. Padmasree (Member – I)            :   (Sd/-)   

Appendix:

Witness examined on the side of the complainant:

PW1  :  Rahmath Sali

Exhibits marked on the side of the complainant:

A1 : Bank Passbook of the complainant’s husband (Account No.456). 

A2 : Bank Chalan. 

A3 : Bank Passbook of the complainant’s husband

       (Loan Account No.30615155000107). 

A4 series :  Statement of account for the period of 01.01.2013 to 13.11.2014

                  (4 Pages). 

A5 series :  Letters.

Witness examined on the side of the opposite parties:

DW1  :  John. K.J

Exhibits marked on the side of the opposite parties:

B1 & B2 :  Copy of guarantee agreements executed by Muhammed Sali

                 and 2^nd opposite party to 3^rd opposite party with the

                 1^st opposite party. 

B3 & B4 :  Certified copy of E.P.Nos.111/14 & 117/14.

                                                                                                    (By Order)

Copy to:- (1) Rahmath Sali, Kottackaran Muri, Naranganam North. P.O.,

                    Kattoor, Pathanamthitta Dist.

2.  The Branch Manager, Kerala Gramin Bank, Ranni Branch,

           Pazhavangadi.P.O., Ranni, Pathanamthitta (Dist).

3. Abdul Samad, Meprathu Veedu, Angadi. P.O., Ranni,

          Pathanamthitta.

4. The Stock File.