Date of Filing: 05.12.2017
Date of Judgment: 10.06.2022
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the Complainant namely Sri Kalyan Roy Chowdhury under section 12 of the Consumer Protection Act, 1986 against the Opposite parties (referred as O.P.s herein after) namely 1) The Manager, State Bank of India, Southern Avenue Branch, 2) The Chief General Manager, State Bank of India, Samriddhi Bhawan, 3) The Manager, State Bank of India, S.A.R.B. Branch & 4) The Custody Manager, Retail Assets Central Processing, State Bank of India, alleging deficiency in service on their part.
Case of the Complainant in short is that he purchased one self-contained Flat being Flat no. S-3, at premises no. 65, at Bansdroni by virtue of a deed of conveyance executed in his favour by the Vendor and same was registered on 09.12.2006 and recorded being no. 17309 for the year 2006. The Complainant took loan from the O.P. no. 1 by making equitable mortgage by depositing the title deed. The loan of Rs. 3, 87,000/- was sanctioned on 07.12.2006 vide Loan Account No. 11074831799. On the date of registration i.e. on 09.12.2006, a representative of the O.P. no. 1 paid the approved loan amount to the Vendor and after the completion of registration the representative or the authority concerned of the O.P. no.1 took away the IGR for collecting the deed and a photocopy of the same was kept by the Complainant for obtaining a certified copy of the deed. The loan was subsequently settled in the Lok Adalat on 23.11.2013 upon payment of Rs. 3,00,000/- against the outstanding amount including interest of Rs. 3,87,284/-. The Complainant paid the settled amount on 17.03.2014 in full and consequent to the same, the O.P. no.3 also issued a No Outstanding Certificate on 10.04.2014. The O.P. no. 3 had stated that they will issue the N.O.C. along the title deed, IGR copy and a copy of agreement within 10 days from the date of payment of the settled amount, but they only gave the N.O.C. and the agreement. The title deed was not delivered on the plea that the same is in the custody of the O.P. no. 1, so the Complainant sent a letter to the O.P. no. 1 requesting to hand over the original deed who in turn wrote to the Assistant General Manager, S.A.R.B. Branch to look into the matter. Thereafter the O.P. no. 4 gave a note on 13.11.2014 to the CM, S.B.I., Southern Avenue Branch that they did not receive any deed/ IGR from the O.P. no.1. Till date, the Complainant is totally in dark about the fate of his original title deed, thus the present complaint has been filed by the Complainant directing the O.P.s to hand over the original deed of conveyance to the Complainant, to pay Rs. 2,00,000/- as compensation for harassment and litigation cost of Rs. 25,000/-.
On perusal of the record it appears that the O.P.s no. 1 to 3 filed the written version along with a petition challenging the maintainability of the complaint. In the written version the O.P. no. 1 to 3 have denied the allegation levelled against them by the Complainant. However they mainly contended that this Commission did not have the jurisdiction to proceed with the case and the complaint is not maintainable and barred under ‘SARFAESI’ Act, 2002 and the same is also hit by the Legal Services Authority Act, 1987 as well as law of limitation. So they prayed for dismissal of complaint. It may be mentioned that the O.P. no. 4 did not take any step in spite of service of notice.
During the course of the trial, the O.P.s did not take any step as the cost imposed by the Hon’ble State Commission in a revision petition being no. RP 74 of 2018 was not paid in spite of several opportunities given to the O.P.s. As the O.P.s did not take any step neither the cost was paid, the case was ultimately fixed for argument. The Complainant filed the affidavit-in-chief and the B.N.A. Argument has also been advanced.
So the following points require determination:
- Whether there has been any deficiency in service on the part of the O.P.s.
- Whether the Complainant is entitled to the relief as prayed for.
Decision with reason
Both the points are taken up together for a comprehensive discussion in order to avoid repetition.
At the very outset, it may be pertinent to point out that the O.P. no. 1 to 3 had filed a petition challenging the maintainability of the complaint on the ground that same was barred under the provision of the ‘SARFAESI’ Act, 2002, the Legal Services Authority Act, 1987 and under the law of limitation. The said petition was heard and disposed of by this Commission vide order dated 20.03.2018 whereby the said petition was rejected with the observation that the complaint was maintainable and the Complainant was a consumer.
The O.P. had challenged the said order before the Hon’ble State Commission and the Hon’ble State Commission vide its order dated 26.09.2019 rejected the said revision petition with cost of Rs. 10,000/- which was payable by the Revisionist/ O.P. to the Complainant . So the order dated 20.03.2018 passed by this Commission has also been affirmed by the Hon’ble State Commission and thus the said order passed by this Commission on 20.03.2018 that present complaint is maintainable, has reached its finality.
The Complaint in support of his claim that he had purchased a Flat and had taken a loan, has filed the agreement for sale entered between him and the Vendor. So far as the sanction of the loan and its disbursement by the O.P. no. 1 is not in dispute. This is also not a disputed fact that the said outstanding loan amount including interest was ultimately settled through the Lok Adalat on 23.11.2013 upon payment of Rs. 3,00,000/-. It is also not in dispute that the said settled amount of Rs. 3, 00,000/- has been paid and the N.O.C. has been issued by the O.P. no. 3 in favour of the Complainant. On perusal of the documents filed by the Complainant including a letter dated 25.07.2019 that the Branch manager of S.B.I., Southern Avenue Branch had written to the Assistant General Manager, S.B.I., S.A.R.B., Kolkata (the O.P. no 3 herein) stating that the home loan of the Complainant was migrated to R.A.C.P., Kolkata on 28.06.2006 and subsequently migrated at his end i.e. S.B.I., S.A.R.B., Kolkata in February, 2014. It is further stated that from the migration sheet it is evident at that time the related property was not registered, the property was registered on 09.12.2006. The Xerox copy of the IGR which was provided by the Complainant was also sent with the said letter asking the O.P. no.3 to look into the matter. It is also evident from the photocopy of the IGR, the deed was registered on 09.12.2006 and the loan was sanctioned on 07.12.2006. From the copy of the agreement filed, it is evident that as per terms, on or before execution of the said agreement, Rs. 50,000/- was to be paid and the rest amount of Rs. 3,50,000/- was to be paid at the time of possession and registration of the deed. It appears that the total consideration price was Rs. 4, 00,000/- . So the claim of the Complainant that on the date of registration of deed i.e. on 09.12.2006, the authorised representative of the O.P. no. 1 paid the approved loan amount to the Vendor is also substantiated from the said recital of the agreement. It is nowhere stated by the O.P. no. 1 to 3 in their written version that the deed was not kept as collateral security or they did not take away the original IGR for collecting the deed of sale. If that be so, then it is well established that the original IGR & registered deed of conveyance was with the Opposite Parties as it is apparent from the letter dated 25.07.2014, the home loan was also migrated. So the Complainant is entitled to his original title deed and also entitled to the compensation due to harassment and mental agony suffered by him. Since all the O.P.s have been deficient in rendering the service, they are jointly or severally liable not only to return the original deed of conveyance but also to pay compensation and litigation cost.
Hence
Ordered
CC/681/2017 is allowed on contest against O.P. No. 1 to 3 and ex parte against the O.P. no. 4. All the O.P.s are jointly or severally directed to hand over the original deed of conveyance to the Complainant and further directed to pay Rs. 50,000/- as compensation to the Complainant within 2 months from the date of this order. They are further directed to pay litigation cost of Rs. 12,000/- to the Complainant within the aforesaid period of 2 months.
