Orissa

Cuttak

CC/65/2016

Uttam Behera - Complainant(s)

Versus

Managing Director,O.S.F.C - Opp.Party(s)

S Pattanaik

06 Jun 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.65/2016

 

Sri Uttam Behera,

S/O: Late Krushna Chandra Berhera,

Res. of Junuspatna,PO:College Square,

PS:Malgodown,Town/Dist:Cuttack.                                           … Complainant.

 

                Vrs.

 

Managing Director,

Orissa State Financial Corporation,

O.M.P Square,Cuttack.                                                                … Opp. Parties.

 

Present:              Sri Dhruba Charan Barik,President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:     11.05.2016. 

Date of Order:   06.06.2017.

 

For the complainant        :       Mr. S.K.Parttrnaik,Adv,. & Associates.

For the Opp. Party.          :       Mr. Anil Deo,Adv. & Associates.

 

Sri Bichitra Nanda Tripathy, Member.

                The case is against deficiency in service on the part of O.Ps.

1. Shortly the case is that the O.P is a financial institution and had financed a term loan to one M/s. Mahalaxmi Aluminum Industry through its Managing partner,Golak Chandra Panda.  Sri Panda had created equitable mortgage of Industrial land i.e. Plot No.979, Area AO.105 Dec. under consolidation Khata No.81  by depositing the original titled deed such as sale deed bearing No.6716 dt.02.06.1971 and original consolidation ROR of Khata 81 of Mouza Bahugram along with other related documents. (page-10).  Since, Sri Panda failed to repay the regular installments to the O.P and became a defaulter; the O.P enforced its right U/S-29 of SFC Act and took over the possession of the Industrial Unit i.e. M/s. Mahalaxmi Aluminium Industries at Bahugram.  The O.P published sale notice on the Oriya newspaper “The Samaj” on 02.03.2006 for sale of the industrial unit through auction.  The complainant purchased the said industrial unit through auction for a price of Rs.1,85,000/- and the same was confirmed by the O.P vide letter No.5123 dt.30.03.2006(page-11,12,13 & 14).  The O.P delivered possession of the unit to the complainant on 11.11.2010.(page-15).  Transfer of deed in the name of the complainant was also registered vide No.1039102515 dt.18.12.2010.  The complainant requested the O.P to release the original registered sale deeds and consolidation ROR of Khata No.81 of Mouza Bahugram deposited by the mortgager at the time of creation of equitable mortgage as the rightful holder of the said documents, as an auction purchaser in auction sale (page-16,17 & 18).  The O.P denied such as lawful request of the complainant vide its letter No.OSFC/CB/1488/15-16 dt.22.02.2016. (page-19).  Such a denial to release the original documents of mortgager after sale of the properties to the complainant is illegal and arbitrary in nature and also amounts to deficiency in service as obligation imposed on the O.P to release the said documents to the complainant under provisions of transfer of Property Act,1982.  The O.P have no right to withheld the said original documents with it after sale of properties in auction sale in favour of the complainant after receiving the total sale consideration and ever after execution and registration of sale deed.

The complainant has further stated that the mortgager Golak Ch. Panda had purchased an Area AO.120 Decimals out of AO.220 decimals from C.S Lot No.663 (P) and 664(P) under C.S. Khata No.230 of Mouza Bahugram and during consolidation operation it has been recorded in Khata No.81 plot No.979 Area AO.105 decimals in the name of the mortgager and the mortgager had deposited the said title deed with the O.P at the time of creating equitable mortgage for availing the loan.  Said title deed is very much necessary for the complainant as link document for creation of mortgage in financial institutions for the purpose of availing loan.  The complainant also apprehends that the O.P may create third party interest by using the said original documents which may cause hardship to the complainant in future and such an act of the O.P amounts to unfair trade practice on sale of properties to the complainant.  The complainant made repeated request to the O.P for delivering the original title deed but it yielded no result.  Finding no other way, the complainant has taken shelter of this Hon’ble Forum.  He has prayed to direct the O.P to release the original sale deed bearing No.6716 dt.02.06.1971 and the original consolidated ROR of Khata No.81 of Mouza Bahugram to the complainant along with compensation for non-utilization of the said industrial land worth Rs.1,00,000/- and a sum of Rs.50,000/- towards mental agony.

2. The O.P vide their written version dt.26.10.2010 has stated that the O.P took possession of the said land of M/s. Mahalalxmi Aluminium Industry,Bahugram U/S-29 of S.F.C.Act,1951 on 09.08.2002 with a right to sale the same and to realize the dues of the O.P.(Annexuire-1).  The sale notice was published in the daily Newspaper “The Samaj” dt.17.01.2006.  The complainant participated in the bid made for the purpose on 09.03.2006 and became the highest bidder.  Being aggrieved with the action of the O.P one of the bidder (Sri Satyabrata Swain) filed writ petition before the Hon’ble High Court of Orissa vide W.P.(C) No.4194 of 2006 and obtained restrained order.  The said restrained order was vacated on 22.09.2010. (Annexure-2).  The sale was confirmed in favour of the complainant vide letter No.1620 dt. 09.11.2010. (Annexure-3).  Possession of the said plot was given to the complainant vide letter dt.11.11.2010 (Annexure-4).  The complainant requested to release the original title deeds with respect to the property sold to him vide letter dt.16.02.2016. (Annexure-5). Such request was rejected vide letter dt.22.02.2016 by the O.P. (Annexure-6).  The O.P had sanctioned a term loan and additional term loan worth Rs.4,99,000/- on 11.05.1982 and on 18.04.1987 Rs.86,000/-(Total Rs.5,85,000/-) in favour of M/s. Mahalaximi  Aluminum Industry,Bahugram and even after realization of Rs.1,85,000/- from sale of industrial assets still a balance of Rs.26,85,000/- is outstanding against M/s. Mahalaxmi Aluminum Industry as on 31.12.2014.  The mortgaged documents are highly essential to execute before the court for obtaining decree for which the O.P is not in a position to return such documents to the complainant.
3. We have gone through the case in details, perused minutely the documents as submitted by the complainant and as well as by the O.P, heard the learned advocates from both the sides at length and observed that the complainant had purchased Industrial Land vide Khata No.81, Mouza: Bahugram Plot No.979 measuring an area of AO.105 decimals for a consideration of Rs.1,85,000/-.  The possession of the said land was also given to the complainant on 11.11.2010.  The complainant requested to release the original title deed which was denied by the O.P.  It is indicated vide Sec.55(3)  Transfer of  Property Act,1982, Chapter-III  “Of Sale of Immovable Property” as follows:

“(3) Where the whole of the purchase-money has been paid to the sealer, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller’s possession or power;

                Provided that, (a) where the seller retains any part of the property comprised in such documents, he is entitled to retain them all, and, (b) where the whole of such property is sold to different buyers, the buyers of the lot of greatest value is entitled to such documents.  But in case (a) the seller, and in case (b) the buyer, of the lot of greatest value, is bound, upon every reasonable request by the buyer, or by any of the other buyer, as the case may be, and at the cost of the person making the request, to produce the said documents and  furnish such true copies thereof or extracts there from as he may require; and in the mean time, the seller, or the buyer of the lot of greatest value, as the case may be, shall keep the said documents safe, uncancelled, and undefaced, unless prevented from so doing by fire or other inevitable accident.”

Vide AIR 1939 Madras 774 DB it was decided that where the mortgagee sales the mortgage property under a power of sale which he has under Sec.69 of the T.P.Act, the mortgage deed must be handed over to the buyer.

In the present case, the complainant has purchased the entire portion of Industrial land i.e. Khata No.81, Mouza: Bahugram plot no.979 Area AO.105 decimals which was mortgaged by the mortgager.  Hence, the O.P is supposed to hand over the original title deed to the complainant. Since the O.P has denied such a request of the complainant the O.P is at fault and found deficient in service.

6698606.  

Basing on the facts and circumstances as stated above and to meet the ends of justice, the O.P is directed to release the original registered sale deed bearing No.6716 dt.02.06.1971 and original consolidation ROR of Khata No.81 of Mouza Bahugram to the complainant.  The O.P will also pay a sum of Rs.30,000/- to the complainant as compensation towards loss incurred for non-utilization of Industrial land and mental agony.

The above payment and release of documents shall be made to the complainant by the O.P within a period of 45 days, failing which the complainant is at liberty to take shelter of this Hon’ble Forum as per C.P.Act,1986.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 6^th day of June,2017 under the seal and signature of this Forum.

 

                                                                                                                                       (Sri B.N.Tripathy )

                                                                                                                                             Member.

 

 

                                                                                                                                          (   Sri D.C.Barik  )

                                                                                                                                              President.

 

                                                                                                                                               

                                                                                                                                            (Smt. Sarmistha Nath) 

                                                                                                                                            Member(W).