Date of Filing:11.12.2019 Date of Order:30.06.2021 BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SHANTHINAGAR BANGALORE - 27. Dated: 30TH DAY OF JUNE 2021 PRESENT SRI.H.R. SRINIVAS, B.Sc., LL.B. Retd. Prl. District & Sessions Judge And PRESIDENT MRS.SHARAVATHI S.M., B.A., LL.B., MEMBER COMPLAINT NO.1903/2019 COMPLAINANT : | | M/s Deluxe Roadlines Pvt. Ltd., No.35/1, Deluxe House, -
Bangalore 560 002. Rep. by its Managing Director, Mr.Khushalchand D Shah. | | | | (Rep. by Sri.B.N.Ananthanarayana) | Vs | OPPOSITE PARTIES: | | M/s India Infoline Finance Ltd., (Moneyline Credit Limited) No.11, Adam Chambers, 1st Floor, Richmond Road, Bangalore 560 025. Rep. by its Manager. | | | (Rep. by M/s FX & Co.,) |
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ORDER
BY SRI.H.R.SRINIVAS, PRESIDENT.
This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not returning the documents given as security offered to obtain loan and for Rs.7,00,000/- as damages for causing mental agony and for other reliefs as Commission deems fit.
2. The brief facts of the complaint are that;
The OP represented that they would facilitate in providing finance by getting the properties mortgage. It also assured that it will provide finance on the mortgage of the lands which has clear titles. They offered their property bearing No.6, 4th Cross, Kalasipalya, Bangalore. TID No.47/57 and the OP sanctioned Rs.1,93,00,000/- as loan against the said property. They were paying the installments and the interest regularly. Inspite of it OP filed a case before the arbitration and the same was settled on 22.08.2016. OP foreclosed the loan account and issued clearance certificate by receiving the entire amount as per the award passed by the arbitration on 24.08.2016, but did not return the documents given to the OP at the time of obtaining the loan. In this connection, complainant issued legal notice on 06.11.2019 requesting and demanding OP to hand over the original documents given while taking the loan. Inspite of the service of the same, OP did not hand over the same. There is every apprehension that the said documents may be misused by OP or they might have misplaced the same. Hence they had to file this complaint.
3. It is contended that the delay in not handing over the original documents in respect of the said property has caused immense mental agony. There is deficiency in service on the part of OP and OP is liable to compensate the damage of Rs.5,00,000/- and also Rs.2,00,000/- towards causing mental agony. The cause of action arose on 04.11.2019, when complainant issued a legal notice to the OP demanding the return of the original documents. This complaint filed is within time from the date of issuing of notice, hence prayed the forum to allow the complaint.
4. Upon the service of notice, issued by this forum, OP appeared before the Commission and filed the version contending that the complaint is not maintainable either in law or on facts as it is filed beyond two years from the date of clearing the loan and it ought to have filed on or before 24.08.2018. Further the transaction between the complainant and OP is of commercial in nature and hence complainant is not a consumer and hence liable to be dismissed. Further no board resolution has been filed by the complainant to file this complaint against this OP authorizing Mr.Kushal Chand Dshah to file this complaint. On this ground also the complaint is liable to be dismissed.
5. It has further contended that the complainant obtained loan from it by creating a equitable mortgage by depositing original title deeds and afterwards complainant committed default in repayment and hence the matter was referred to arbitration and settled accordingly amicably and amount was paid by the complainant. Since there was a dispute among the directors of the complainant’s company, OP could not release the documents to the complainant. It is ready and willing to return the documents subject to respondents providing necessary board resolution to collect the original documents. As per its knowledge, the company is not at all functioning due to the differences in the directors of the company. The payment of claim regarding the damages and for mental agony, do not arise at all and it is exorbitant and there is no cause of action for the complainant to file the same. The complaint is not maintainable and hence liable to be dismissed and prayed for dismissal of the complaint.
6. In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-
1) Whether the complaint filed is barred by limitation?
2) Whether the complainant has proved deficiency in service on the part of the Opposite Party?
3) Whether the complainant is entitled to the relief prayed for in the complaint?
7. Our answers to the above points are:-
POINT NO.1 : In the Affirmative
POINT NO.2 & 3: In the Negative
For the following.
REASONS
8. POINT No.1, 2 AND 3:-
Perused the complaint, version, affidavit evidence and the documents produced by respective parties. It becomes clear that the complainant borrowed money from OP and there was differences between them in respect of the amount to be paid and the same was referred to arbitration and the arbitrator gave the award which was fulfilled by the complainant on 24.08.2016. It is also admitted by OP that the said original documents are with it and since there is differences between the directors of the complainants company, it did not hand over the same to the complainant as the complainant did not produce the board resolution.
9. It is the specific contention of the OP that the complaint filed is barred by limitation, since on 24.08.2016 the entire amount was paid by the complainant and he ought to have filed this complaint on or before 24.08.2018 as per the provisions of the C.P. Act. Whereas, he filed the same on 11.12.2019 after issuing the notice and hence the said complaint is barred by limitation.
10. As per the provisions section 24A of the C.P. Act complainant ought to have filed this complaint within two years from 24.08.2016 whereas this complaint filed is on 11.12.2019 which is much after the period of two years prescribed by the act. There are number of decisions to be effect that any number of correspondences and issuing of legal notice will not create new cause of action to save the limitation. Hence the complaint filed is barred by law of limitation prescribed under 24 A of the C.P. act 1986. Hence on this ground this complaint is to be dismissed.
11. Further since OP himself has come forward to return the original documents provided the complainant submits the board of regulation of the complainants company, it is clear that the said documents are with OP and it is bound to return the same. In view of this we direct OP to return the said document to the complainant within 30 days from the receipt of this order.
12. Since this complaint filed is barred by limitation complainant is not entitled for any of the, damages and reliefs prayed in the complaint. We answer point No.1 in the affirmative and 2 and 3 in the negative and hence we proceed to pass the following;
ORDER
- Complaint is Dismissed.
- Send a copy of this order to both parties free of cost.
Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 30th DAY OF JUNE 2021)
MEMBER PRESIDENT
ANNEXURES
- Witness examined on behalf of the Complainant/s by way of affidavit:
Copies of Documents produced on behalf of Complainant/s:
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: Sri.Shankar C.
Copies of Documents produced on behalf of Opposite Party/s
Ex R1: Copy of the power of attorney issued by the company to depose on their behalf.
MEMBER PRESIDENT