Judgment : Dt.23.2.2017

            This is a complaint made by (1) Chandra Pal and(2) Surajit Pal, both of  Diamond Enclave, 113, Diamond Harbour Road, P.S.-Behala, Kolkata-700 034 against (1) Sushil Fatesaria, V.P.Marketing, Sunshine Niwash Pvt. Ltd., 68/2, Harish Mukherjee Road, P.S.-Bhowanipur, Kolkata-700025, OP No.1 and (2) Manager, HDFC Ltd., 25/8, Diamond Harbour Road, P.S.-Behala at present Thakurpukur, Kolkta-700 008, OP No.2, praying for handing over the relevant documents mentioned in the schedule A & B, for compensation to the tune of Rs.4,00,000/- and litigation cost of Rs.20,000/-.

            Facts in brief are that Complainant purchased from the OP a flat on the first floor and one basement car parking space No.B-18, in the residential complex at 113, Diamond Harbour Road under Behala P.S. after paying the full consideration money as per the agreement.

            Complainant No.2 obtained loan from the HDFC Ltd. and OP No.2 disbursed the said loan to Merlin Estate Branch. The said flat, along with car parking space was duly registered and Complainant’s representative were told that IGR would remain in the custody of HDFC as security against the loan. Within that period, the Complainant liquidated the loan amount with interest and after that OP No.2 was to handover the documents including the deed of conveyance. Complainant on several times approached the OP No.2 in writing on 3.4.2009, 22.12.2009 for handing over the documents. But OP No.2 did not handover the documents including deed of conveyance. For this Complainant filed a complaint before the District Consumer Disputes Redressal Forum at Alipore, bearing No.CC/327/2013 in which OP No.2 did not appear and contest the case. The case was decreed ex-parte on 14.11.2013 with the direction upon the HDFC to return IGR and other original documents including release certificate and also cost of compensation and being aggrieved by the said judgment OP No.2 preferred an appeal before the Hon’ble State Commission against the ex-parte order passed by District Forum and Complainant contested the said appeal.

            During hearing HDFC disclosed that IGR is not lying in its custody and it is lying in the custody of OP No.1. They submitted before the Hon’ble State Commission that the developer was not impleaded in this case. On the basis of the argument, Hon’ble State Commission allowed the appeal holding that IGR in question is in the custody of OP No.1. Thereafter, Complainant wrote Advocate’s letter on 27.8.2014 to OP No.1, directing him to handover the said IGR and other relevant documents which they illegally retained. On 4.9.2014 it was admitted by OP No.1 that documents are still lying in the custody of OP No.1. But they can handover the said documents if OP No.2 releases all relevant documents including no objection certificate in favour of the Complainant, subject to production of those documents before the OP No.1. Accordingly, Complainant made a request through Advocate’s letter. But, till now, Complainant has not received the original deed and IGR and also share certificate. So, Complainant filed this case.

            OP filed written version wherein they have denied all the allegations of the complaint. It is stated in its written version that OP is ready and willing to handover the said IGR upon the issuance of a no objection certificate by the OP No.2 who is the first charge holder of the flat. This OP was never impleaded as a party. OP, Sunshine Niwas Pvt. Ltd. has filed questionnaire.

            It appears that in this case OPs have filed affidavit-in-chief, questionnaire. But, they have also replied to the questionnaire of the Complainant. This Forum finds only that Sushil Fatessaria has filed written version wherein he has denied the allegations of the complaint and has stated that this complaint case is liable to be rejected. Further, he has stated that he has nothing to do with this complaint.

Decision with reasons

            Complainant filed affidavit-in-chief against which OPs filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OPs have filed affidavit-in-chief to which Complainant has filed questionnaire to which OPs have made replied.

            Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

            On perusal of the complaint petition, it appears that Complainant has prayed for direction to handover relevant documents mentioned in the schedule A & B. Further, on perusal of Schedule A, it appears that Complainant has prayed for handing over of original IGR, deed of conveyance, share certificate and other relevant documents regarding registration. Admittedly, the registration of the flat has been completed and it is in possession of the Complainants. The dispute relates to in handing over of other original IGR, HDFC bank when extended loan facility kept it in their custody or deed of conveyance. It is the allegation of the Complainant that he has not received either of these two. On perusal of the affidavit-in-chief, questionnaire and affidavit-in-reply of the respective parties, it is clear that there is a dispute between the OP No.1 & 2 over handing over no objection certificate by OP No2 to OP No.1 and this has caused harassment for the Complainant due to which he has not received as yet either original IGR so that he can obtain deed of conveyance from the registry office. As such, we are of the view that OP be directed to handover deed of conveyance to the Complainant immediately. It is because simply keeping possession does not make a person owner and for that deed of conveyance is required. Due to the negligence of OP No.2 and OP No.1. Complainants have been suffering.

            The other documents share certificate. Share certificate, the details of which is not forthcoming cannot be considered lying with the OPs  for claiming share certificate which Complainant must have deposited with the bank for acquiring loan. It is the duty of the Complainant to furnish at least Xerox copy of the same which is missing. As such, this prayer cannot be allowed.

            Complainant has sought for other relevant documents regarding registration. This term other relevant document regarding registration appears to be vague and so this Forum is not in a position to pass any order for returning the other relevant documents. It is because at the outset the nature of the documents must be stated which is missing.

            In schedule B Complainant has prayed for receipts issued by the developer, original agreement and release certificates. In this respect, it is clear from the affidavit-in-chief, questionnaire and affidavit-in-reply of the respective parties that HDFC bank which granted loan, would have received original receipt which was issued by the developer, agreement and the bank is duty bound to issue no objection certificate after the loan money is liquidated. Accordingly, we are of the view that OP No.2 be directed to handover these (1, 2 & 3) documents mentioned in the schedule B to the Complainant.

            Further, Complainant has sought for compensation to the tune of Rs.4,00,000/-. The record reveals that due to the conduct and act of the OP, Complainant have been harassed. It is because it was the bounden duty of the OP to handover these documents once the loan was liquidated which they did not do. As such, we are of the view that there must be a direction upon the OPs to pay at least compensation of Rs.1,00,000/-. The liability will be joint of both the OPs. In such circumstances, we are also of the view that litigation cost to the tune of Rs.10,000/- must be provided to the Complainants.

            Hence,

ordered

            RBT/CC/114/2016 and the same is allowed on contest. OPs are directed to handover the documents mentioned in the copy of the judgment within three months of this order. Further, they are directed to pay compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/- within this period. Otherwise this amount shall carry interest of 12% p.a.