By Sri. MOHANDASAN.K, PRESIDENT
The complaint U/s 12 of the Consumer Protection Act 1986.
The complaint in short is as follows:-
1. The complainant availed rupees 20,000/-as loan number 349 PL(A) , 349 PL (B) from the opposite party bank under NABARD Scheme as per simple mortgage deed of Areecode SRO on the security of property comprised in resurvey number 60,118 with an extent of 2 Acres and 47 cents in Perakamanna Village of Ernad Taluk. On 08/03/2018 as per the Adalat presided by Sri. Jayarajan it was agreed that the total outstanding amount as Rs.93,039/- and the loan would be closed for a total amount of Rs.33,213/-. In accordance with the settlement in the Adalat the complainant approached opposite party bank to make the payment on 28/03/2018 and was ready to pay entire amount to close the loan. The complainant was entitled to receive back the documents deposited as security to the loan on payment of entire loan amount. But when the complainant approached the bank to close the loan and to get back the document it was informed by the bank that the file maintained could not be located. On 24/03/2018 the complainant issued a written application to release the documents and on that application opposite party replied that the documents will be located as soon as possible. But even after waiting for one month the documents were not located and made available to complainant. On 23/04/2018 upon written application submitted by the complainant the opposite party replied that the original documents are no longer available and registered certified copy of the same was obtained and given to the complainant. The act of the opposite party amounts grave negligence and deficicneny in service and the opposite party is responsible for damage, misuse, misappropriation of the document during the tenure. There was no proper explanation from the side of opposite party that what happened to the original documents of the complainant. At last, the complainant caused to issue lawyer notice to the opposite party on 29/09/2018 for which there was no response from the opposite party. Hence the complainant prays for an adequate compensation and cost. The prayer of the complainant is to allow compensation of Rs.10,00,000/- towards misappropriation of original document, 5,00,000/- rupees on account of mental agony sustained to the complainant, Rs.3,00,000/- on account of delay and financial loss sustained to the complainant due to misappropriation of original documents. The complainant also pray for cost of the proceedings.
2. On admission of the complaint notice was issued to the opposite party and the opposite party entered appearance and filed version. The opposite party denied the entire averments and allegations contained in the complaint. According to opposite party the complaint is filed without any basis, lack of Bonafede’s, devoid of merits.
3. The opposite party admitted that the complainant had availed a loan of Rs.20,000/- under SADU Scheme on 11/10/1985.Thereafter the complainant did not pay any amount towards the loan. The opposite party sent many number of notices to the complainant to recover the loan but he did not replied or paid amount. The opposite party realizing the fact that the complainant is no longer remitting the loan amount, the opposite party decided to proceed against complainant. The opposite party filed execution petition as E.P.No.54 of 1993. Despite service of notice the complainant not responded, appeared or paid and so the sale officer appointed by the opposite party issued proclamation of sale and sent notice to the complainant. The notice was accepted by him but he did not pay or responded. The property situated in Perakamanna Village. The opposite party was about to proceed with sale of property, a stay order was obtained by one Kuttappan Nair where he claimed that he is the owner of the property and he claims that he is having Pattayam for the land as number 157/1980. There after Sri. Kuttappan Nair filed a complaint before this Commission as OP.No.441/1993 against auction of the property. Mr. Kuttappn Nair also filed complaint before the RDO Perinthalmanna and an order has been obtained.
4. The complainant not yet cleared the loan and so there is no question of returning of the documents as demanded by the complainant. The opposite party contended that since the complainant has not remitted the due amount with interest as demanded by the bank, the complainant cannot claim for return of the documents. This complaint is filed only to harass the opposite party. The complainant is aware that he has not cleared the loan amount. His ally Sri. Muhammed Musadiq Madari also availed a loan from the opposite party pledging the adjacent land and has filed complaint before the Forum as C.C.No.361/2018.
5. The opposite party denied all the averments, that not able to locate the documents, deliberately ignore the grievance of the complainant. All are baseless hence denied by the opposite party. It is also submitted that there was no negligence in handling the original documents deposited as security by the complainant and the opposite party is not responsible for any damage or misuse or misappropriation of any of the documents, the complainant as claimed and so the complaint has to be dismissed.
6. The complainant and opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A6. The complainant filed additional affidavit also. Ext. A1 is copy of the lawyer notice dated 29/09/2018. Ext. A2 is postal acknowledgement. Ext. A3 is copy of co- operative arbitration award. Ext. A4 is letter issued by the complainant to the opposite party. Ext. A5 is copy of letter issued by complainant to the opposite party dated 23/04/2018. Ext. A6 is copy of power of attorney. The documents marked on the side of opposite party as Ext. B1 to B3. Ext. B1 is copy of notice issued by the CDRF Malappuram dated 25/05/1993. Ext. B2 is letter issued by RDO Perinthalmanna to the opposite party dated 22/05/1997. Ext. B3 is copy of letter issued by RDO Perinthalmanna dated 30/05/1997.
7. Heard the complainant and opposite party, perused affidavit and documents. Following points arise for consideration.
- Whether there is any deficiency in service on the part of opposite party?
- Relief and cost.
Point 1and 2
The complainant and opposite party admit the loan transaction and also the
settlement. The complainant approached opposite party on 28/03/2018 to close the loan amount and to get back the documents. But the opposite party informed that the file maintained could not locate. The complainant submitted a written application and then replied that documents would be located as soon as possible. Thereafter on 23/04/2018 when the complainant approached the opposite party it was replied that the original documents are no longer available and instead a certified copy of the same was given to the complainant. Aggrieved by that complainant issued registered lawyer notice to the opposite party and though it was served on him there was no response.
8. The contention of the opposite party is that the complainant availed loan in the year 1985 and since 1993 there was no attempt to remit the loan amount by the complainant, the opposite party preferred execution petition number 54 of 1993. On receipt of notice in the EP the complainant did not respond and so the sale officer issued proclamation of sale and notice was sent to the complainant but even that time also the complainant did not pay or responded to the proceedings. Meanwhile one Kuttappan Nair obtained stay order against sale of the property claiming that he is the owner of the property and he is having Pattayam for the land. Thereafter Kuttappan nair filed a complaint before this Forum as OP 441 of 1993 against auction of property. The said Kuttappan Nair also filed complaint before RDO Perinthalmanna and from there also an order was obtained and so the auction of the property was stayed. The opposite party submit that the complainant so far not cleared the loan and so the question of returning of the documents does not arise. According to opposite party the complaint is filed only to harass the opposite party. It is denied by the opposite party that the bank was not able to locate the documents and opposite party deliberately ignore the grievance of the complainant. The complainant liable to answer about his right over the land in the light of the claim by another. In short, the issue is that though the complainant was prepared to close the loan the opposite party could not trace the documents submitted before the opposite party by the complainant. The opposite party has not denied the contention of the complainant that he approached opposite party to release the document. The complainant submitted documents to substantiate the averments in the complaint and affidavit. Ext. A1 is a lawyer notice demanding the pledged documents. The opposite party did not care to give a reply to the notice. Ext. A4 also establish the averment of the complaint. The reply endorsed on Ext. A4 document is that “documents will be released to the concerned loanees as soon as it is available and after full settlement”. The endorsement in Ext. A4 shows that the document was not available before the opposite party while the complainant approached the opposite party.
9. The contention of the opposite party is that there was a rival claim by one Kuttappan Nair and as part of that claim a consumer complaint as well as a complaint before RDO Perinthalmanna was pending. Due to the above reason the matter was prolonged.
10. In the circumstances it was seen that though the complainant was prepared to close the loan amount the opposite party could not trace the documents pledged by the complainant but issued only a certified copy. So it is apparent that there is deficiency in service on the side of opposite party as alleged by the complainant.
11. The prayer of the complainant is that to direct opposite party to pay Rs.10,00,000/- on account of misappropriation of original document and prays 5,00,000/- rupees as compensation towards the mental agony sustained to the complainant due to misappropriation of original document. Complainant prays Rs.3,00,000/- as compensation towards the delay and financial loss sustained to the complainant due to misappropriation of original document.
12. It can be seen that the documents are not given back to the complainant by the opposite party. The complainant not yet paid the settlement amount also. The complainant approached opposite party to close the loan but due to non-availability of pledged document it was not remitted. The complainant caused notices to the opposite party but there was no proper reply. So, it is quite natural as the complainant has not remitted the loan amount settled in the Adalat. In the version though the opposite party admitted none releasing of the document there was no proper explanation for the non-releasing of the document. The explanation regarding the pendency of proceedings before CDRF and RDO Perinthalmanna is not sufficient to exonerate the opposite party from the liability on account of deficiency in service on the part of the opposite party. Hence it will be proper to give direction to the opposite party to give back entire original documents to the complainant on receipt of amount as settled in the Adalat for Rs.33,213/- without any further changes or interest. The opposite party submitted in the affidavit that the original documents are available with them but the prayer of the complainant is to provide huge amount as compensation. In such a situation the opposite party fails to provide original documents to the complainant .But it can be seen that all the issues arised due to the deficient service on the part of opposite party. Complainant demanded documents several times. At last legal notice also was issued. But there was no response. So , Commission allows the opposite party is also1,00,000 /- rupees towards deficicneny in service of the opposite party. So, the claim of complainant on account of mental agony and financial loss is also relevant and we consider Rs.25,,000/- as compensation on that account. We also allow Rs.5,000/- as cost of the proceedings.
13. Considering the above entire facts and circumstances we allow the complaint as follows: -
1) The opposite party is directed to give back all the documents produced by
the complainant as part of loan Number 349 PL (A) 349 PL (B) on receipt of Rs.33,213/- (Rupees thirty-three thousand two hundred and thirteen only) to the complainant.
2.The opposite party is directed to pay Rs.20,0,000/- (Rupees Two lakh only) to the complainant in case the opposite party fails to give back the documents produced by the complainant as part of loan number 349 PL (A) and 349 PL (B) before opposite party.
3. The opposite party is directed to pay rupees 1,00,000/- (Rupees one lakh only) to the complainant on account of deficicneny in service and thereby caused mental agony and financial loss to the complainant.
- The opposite party also directed to pay Rs.5,000/- (Rupees Five thousand only) as cost of the proceedings to complainant.
- The release of documents, payment of loan amount of Rs.Rs.33,213/-(Rupees thirty three thousand two hundred and thirteen only), payment of compensation and also payment of cost shall comply simultaneously.
The opposite parties are directed to comply this order within one month from the date of receipt of copy of this order, failing which the compensation and cost will carry interest @12% per annum from the date of receipt of copy of this order till realization.
Dated this 15th day of March, 2022.
MOHANDASAN.K, PRESIDENT
PREETHI SIVARAMAN.C, MEMBER
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A6
Ext.A1: Copy of the lawyer notice dated 29/09/2018.
Ext.A2: Postal acknowledgement
Ext A3: Copy of co- operative arbitration award
Ext A4: Letter issued by the complainant to the opposite party.
Ext A5: Copy of letter issued by complainant to the opposite party dated 23/04/2018.
Ext.A6: Copy of power of attorney.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B3
Ext.B1: Copy of notice issued by the CDRF Malappuram dated 25/05/1993.
Ext.B2: Letter issued by RDO Penrintalmanna to the opposite party dated 22/05/1997.
Ext.B3: Copy of letter issued by RDO Perinthalmanna dated 30/05/1997.
MOHANDASAN.K, PRESIDENT
PREETHI SIVARAMAN.C, MEMBER
