The averments in the complaint are as follows:

 

           The 25 cents of property situated in ‘Edakunni Village Sy.161/2 is obtained by the complainant as per document No.1992/88 of Cherpu SRO. This property had mortgaged to the respondent company on 21/12/1991 as per deed No.3607/91 of Cherpu S.R.O. Later the respondent had filed suits as OS.863/00 and OS.864/00 for realization of the defaulted kuri amount of complainant and some others and the property had attached to the suit. The same property had been assigned to Isabella who is the wife of the brother of husband of the petitioner as per document No.4026/99 of Cherpu Sub Registry. The said assignment was without consideration and done due to some ulterior motive. But the Isabella shown reluctance to reassign the property and a suit has filed in Thrissur Munisiff Court as OS.455/02. The suit is filed for cancellation of document No.4026/99 of Cherpu Sub Registry. The suit was decreed in favour of the complainant. During the trial of the case it was realized that the mortgage deed was not in the possession of respondent company. The liability had been discharged and the release deed not yet executed and the title deed also not returned. OS.3461/01 is pending to restrain the respondent from selling the property. The respondent had returned the document to O.L.Jose, the husband of Isabella, who is the director of the respondent company. Consequently Isabella had sold the property to Mechery Jose. It was the duty of the respondent to return the document to complainant instead of Jose.   It is a deficiency of service. Hence this complaint.

 

            2. The averments in the version are as follows:

From the averments in the complaint itself it will go to show that there are some disputes between husband of the petitioner and his brother Mr.O.L.Jos. To the knowledge of this respondents the alleged property has already assigned in favour of petitioners husband’s brother’s wife Isabella Jos by a registered deed No.4026/99. So the petitioner has no right over the property. In order to harass the family of petitioner’s husband’s brother and also to have unlawful gain, the above petition is filed with malafide intention. As the complaint itself spoke to the effect that the alleged property is transferred to Mrs.Isabella Jos, who is the petitioner’s husband’s brother’s wife for name sake etc will go to show that there are other dispute connected with. It is also further stated that there are civil cases ie. O.S.455/02 against the said Mrs.Isabella Jos with regard to alleged property. It is also stated that the first respondent had filed civil cases as O.S.863/00 and 864/00 against the petitioner. These respondents further stated that another civil suit as O.S.3461/2001 is also filed against this respondent by the petitioner. The suit was filed by her husband as Power of Attorney. So the alleged documents pertaining to the immovable property is already a subject matter before the civil courts. So this petition cannot be entertained before this Hon’ble Forum and moreover there are voluminous evidences to be taken.   So the complaint may be dismissed. The allegation that the alleged property covered under document No.4026/99 is deposited with the company and for the said dues filed as O.S.863/00 and O.S.864/00 is not correct. The deposit is made for other liability. The allegation that it is came to the knowledge of the petitioner that the document No.1992/86 is not with the respondent is only at the time of evidence in O.S.455/02 is also denied. The documents related to the alleged properties is the assignment deed in favour of the husband’s brothers wife Mrs.Isabella Jos and subsequently the assignment deed by Isabella Jos to Mr.Jos M.D., Mechery House etc is produced in the above mentioned cases. As it is alleged in para 2 of the complaint that the alleged document is handed over to Mr.Jos, this petition demanding back the document is only to harass this respondent. The liability as per the mortgage deed No.3607/91 was closed on 31/12/01 and the documents were returned to the parties. The expenses for executing the release deed is to be met by the parties. If they are ready to meet the expenses, these respondents are ready to execute the same. So far no claim regarding the non receipt of the document has stated by the petitioner. So this attempt after a period of nearly 4 years is time barred and the above petition is barred by limitation. This respondent further stated that another suit as O.S. 424/02 was filed by the petitioner against Jos M.D. alleging false contentions. It is learnt that Mr.M.D.Jos had filed his objection to I.A.1184/02 stating the facts that the alleged properties had already transferred to Mrs.Isabella Jos as per document No.4026/99. The husband of the petitioner is a witness to the transaction. It is also stated by Mr.M.D.Jos that an agreement is already executed by him to purchase the alleged immovable property along with the adjacent property which is lying together. There is no demarcation between the said two properties. A commission is also taken to prove the same. But when the case came up in the list, the petitioner remained exparte and the suit is dismissed. But an application is filed to restore the suit and the same is pending. Against the order of O.S.455/02 an appeal is preferred and the same is pending as A.S.117/05 before Principal District Court Thrissur by Mrs.Isabella Jos. Hence dismiss the complaint.

            3.Points for consideration are :

1) Is there any deficiency in service on the part of respondents?

2) If so reliefs and costs ?

 

            4. Evidence consists of Exhibit P1 to P4 and Exhibits R1 to R5.

 

            5. Points : This is a complaint filed to return the titledeed and also to execute release deed. The complainant has 25 cents of property in ‘Edakunni Village Sy.161/2 vide document No.1992/88 of Cherpu SRO. She had deposited the deed of the property to the respondent firm on 21/12/1991 as per document No.3607/91. The kuri had became default and the respondent company filed suit as OS.863/00 and OS.864/00 for realization of the defaulted kuri amount and the property had attached. Later the liability of the complainant towards the respondent had been discharged but the document No.1992/88 did not return. According to the complainant release deed also not executed. When the respondent company had taken steps through court of law the complainant had assigned the same property to Isabella, the wife of complainant’s husband’s brother without consideration. After that Isabella shown reluctance to reassign the property and the complainant filed O.S.455/02 before the Munsiff Court Thrissur for cancellation of the transfer. The suit was decreed and the copy of judgement is marked as Exhibit P2. According to the complainant the documents are not returned. The husband of Isabella was the director of the respondent company and the respondent returned the documents to O.L.Jos the husband of Isabella. Hence Isabella had sold the property to Mechery Jose. In the complaint there is no averment that legal action has taken against this. No document also produced to prove the legal action. It is stated that OS.3461/01 was filed to restrain the respondent from selling the property covered in document No.1992/86. Exhibit R4 is the certified copy of the judgement showing that the suit has dismissed for default. In the counter the respondent stated that restoration application is pending. It is also stated that against the order of OS.455/02 an appeal is preferred as AS.117/05 before the principal District Court Thrissur. No document is produced to show the present stage of the case. The main relief sought by the complainant is return of document No.1992/86 of Cherpu SRO and also to execute the release deed. The alleged documents pertaining to the immovable property is a subject matter before the Civil Courts and the complainant had to put this claim before the Civil Courts in these suits and a complaint before this forum and a separate suit are unnecessary. The matter is under consideration after taking elaborate evidence. Being an unnecessary complaint this is to be dismissed.

 

            6. In the result, complaint is dismissed.

           

 

 

 

            Dictated to the Confdl Asst., transcribed by her, corrected by me and pronounced in the open Forum this the 30^th day of December 2008.