FA 164/2009 in   C D 212/2006   on the file of the

District Forum, Prakasam District at Ongole

Between :

Modala Ranganayakulu,

S/o Rangaiah, aged 65 years

Proprietor of M/s. Swamy Rangeswara Slate Works

Markapur, Prakasam District                               .. appellant/complainant

And

The Chief Manager, State Bank of India

Markapur, Prakasam District                   .. Respondent/Opposite party

Counsel for the Appellant            :           M/s. N. Satyanarayana

Counsel for the Respondent      :           M/s. M. Narender Reddy

Coram           ;           Sri Syed Abdullah              …        Hon’ble Member

And

      Sri R. Lakshminarasimha Rao…      Hon’ble Member

                          Friday, the Sixteenth Day of July, Two Thousand Ten

     Oral Order    :          ( As per Sri Syed Abdullah,  Hon’ble Member )

*******

The unsuccessful  complainant in C D 212/2006 before the District Forum, Prakasam District at Ongole filed this appeal challenging the order for dismissal of the complaint.

The facts of the case are that  the complainant had taken loan from the opposite party and since it was not paid  the opposite party  filed suit  and obtained decree in O. S. 8/81 and then  filed EP 44/89 before the Senior Civil Judge, Markapur for recovery of Rs. One lakh.  During the pendency of the  execution proceedings, i.e., from  16.08.1991  to 03.06.1996.  The complainant had  paid Rs.54,000/- from time to time  and EP was adjourned from time to time for payment of the balance.  In the mean while, RBI issued guidelines for one time settlement. So the complainant had approached the opposite party  and paid the remaining balance amount of Rs.23,000/-  for filing F.S. memo.  After payment of the entire amount,  the complainant approached the opposite party  for returning the title deeds  which were given as security.  The opposite party  counsel, by name,  Sri R. N. Sastry had received a sum of Rs.54,000/- but he had remitted only Rs.20,000/-. So, the opposite party failed to return the documents. The act or omission of the opposite party is attributed as deficiency in service.

The opposite party filed its version stating that the bank does not know that the complainant had paid any amount to their counsel Sri R. N. S. Sastry and there is no information  by the complainant about the payment.  As per the Bank records  a sum of Rs.54,000/- as alleged was not paid in respect of the loan account.  In case, the amount was paid, receipt would have been issued.  The complainant would have  and ought to have insisted Sri R. N.S. Sastry for passing the receipts when he had paid the amount. The Opposite party bank cannot be made responsible  for it.

During enquiry, the complainant along with evidence affidavit filed Ex. A-1 to A-4 which are copies of legal notice,  Photostat copy of the E. P. proceedings, Photostat copy of the certificate issued by the opposite party dated 12.06.2004, docket order contains some details of the payment and dismissal of the E. P.

The District Forum dismissed the complaint  holding that the complainant  failed to establish that there is deficiency in service  on the part of the opposite party  in not returning  of the documents of title deeds which were given as security  at the time of taking loan. Also held that a detailed enquiry should be made  before the Civil Court and he should approach there.

Point for consideration is,  whether the impugned order suffers from any factual and legal infirmity ?

Undisputedly from the admission of the appellant/complainant,   he had to pay  a balance amount of Rs.54,000/-,   towards one time settlement to the Bank and the Bank  had  agreed to settle the claim and out of which from the amount paid,  the standing counsel for the opposite party  had remitted only a sum of Rs.20,000/- and the remaining amount was not deposited  and for non-payment of the balance amount, the bank refused to return the title deeds.

Order 21 Rule 2 of C.P.C  has contemplated payment of the amounts by the Judgment Debtor  subsequent to passing of decree or during pendency of execution proceedings. Order 23, 2A and 3A are very clear  that any other mode of payment are not authentic.  The appellant/complainant ought to have  proceeded against  Sri R. N. Sastry, advocate , Markapur,  for non-remittance of the balance amount though the said amount was paid to him.  No steps were taken to issue notice to him also.  The complainant ought to have insisted    Sri  R. N. Sastry for passing receipt when he had  paid the amount during the pendency of E. P. proceedings. Ex. A-3 docket order shows that  part payment of the amount  was paid  for which P. S. Memo was filed.  E. P. was dismissed for non-filing of the publication as ordered by the Execution Court.  Even though, E.P is dismissed, the opposite party is not  bound to return the documents  until full payment is made. The complainant ought to have made arrangement to pay the entire amount and insisted for return of the title deeds which were given as security to the Bank.  The complainant himself was at fault in not taking proper steps.  After payment he could have  asked the bank to return the documents and then proceeded against Sri R. N. Sastry for        mis-appropriation of the amount or for professional misconduct.  It is for the complainant  to pay the balance amount with up-to-date interest to the bank and seek for return of the title deeds.  By dismissal of the complaint, it will lead to second litigation which the District Forum ought to have  considered .  No doubt, there is no deficiency in service on the part of the opposite party , still, equitable order could have been passed by the District Forum directing the complainant  to pay balance amount of Rs.34,000/-  with up-to-date interest  or the actual amount due which shall be deposited by fixing time  and on such deposit  to return the documents as early as possible.  So the order passed by the District Forum suffers from infirmity as such it is to be  modified.

In the result,  the appeal is disposed off  modifying the order of the District Forum directing  the complainant to deposit  the balance of decretal amount in E. P. 44/89 due with up-to-date  interest  and on such deposit, the opposite party shall return the title deeds at an early date so as to avoid second round of litigation between the parties. No costs.

Sd/-MEMBER

                                                                                                                                                                  Sd/-MEMBER

                                                                                                                                                                  DATED : 16.07.2010