BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 28^th DAY OF FEBRUARY 2022

CONSUMER COMPLAINT No.666/2020

ORDER

SRI K.S.BILAGI, PRESIDENT:

1. This is a joint complaint of husband and wife against Ops for following reliefs.

a) To direct the Opposite parties to return original sale deed dt.17.09.2008 registered before the office of the Sub-registrar, Yeshwanthpur bearing document No.1293/2008-09 dt. 17.09.2008 and original sale deed dt.13.12.2010 registered before the office of the Sub-Registrar, Yeshwanthpur bearing document no.2148/2010-11 dt. 13.12.2010. or in the alternative pay an amount  equal to the present guidance and market value of the said apartment being Rs.2,60,00,000/-. (Rs.Twocrores Sixty Lakh only)

b) To direct the Opposite parties to pay compensation of an amount of Rs.95,00,000/- (Rs.Ninety Five Lakhs Only) towards mental agony, harassment and deficiency of services caused by them to the complainants and an amount of Rs.2,00,000/- (Rs.Two lakhs only) for legal expenses incurred by the complainants in relation to this complaint.

c) Pass any other order/orders in favour of the complainants are against the Opposite parties as may be deemed just, in the interest of justice and equity.

2. The case of complainants in brief is as under.

The complainants have purchased residential apartment bearing No.D-1002 under registered sale deed dt. 13.12.2010.   The complainants have approached the Ops on 29.06.2010 for advancement of the loan to purchase the above property. Accordingly, OP-1 sanctioned loan of Rs.50,50,000/-.

. It is further case of the complainants, the OP assured the complainant that original sale deed and other documents would be in their custody and will be returned on repayment of the loan. The complainants have deposited registered sale deed and other documents with Ops. But, Ops lost the original sale deed and other documents. Due to negligence, OP fails to provide original documents.

4. It is further case of the complainant that as per guidelines value of the property of the complainant was Rs.2,60,00,000/-. The complainants have deprived of original price of their apartment for want of sale deed due to the negligence of the OP. The complainant has deprived of original property document of their apartment. Therefore the act of negligence and deficiency of service on the part of OP, complainants are entitled for compensation to tune of Rs.95,00,000/-.

5. In response to the notice, the OP appear and file version. The OP-1 is not service provider to the complainant. The complaint is not maintainable. The OP-2 is neither party and nor necessary party to this proceedings. The complaint is not maintainable under the provisions of C.P.Act and request to dismiss the complaint.

6.The complainant substantially overvalued the property to make wrongful gain. The complainants borrowed Rs.58,70,250/- from OP-1. This loan was secured by mortgaging flat No.D-1002. But OP-1 has filed certified copy of title deeds schedule registered. The complainants opted to repay the loan in 118 monthly installments. As terms and conditions the OP also filed FIR about lost original documents and got published publication in the newspaper about loss/misplace of the original documents. The complainants have not repaid entire loan amount. Hence, complaint is not maintainable.

7. The complainant No.1 files his affidavit evidence with relevant eleven documents. Affidavit evidence of complainant No.2 also filed. The affidavit evidence of authorized representative of OP-1 has been filed. OPs rely on three documents.

8. Heard arguments. Perused documents. 

9. The following points arises for our consideration.

1. Whether complainants prove deficiency of service/negligence on the part of the OP?

2. Whether the complainants are entitled to the reliefs mentioned in the complainant?

3. What Order?

10. Our answer to the above points are as under

Point No.1 & 2: Negative.

        Point No.3:  Per final order.

                                REASONS

11. Point No.1 & 2: Both parties reiterate respective contentions in their affidavit evidences. The complaint has been filed against OP-1, who advances loan from OP-2 the branch credit manager. At the first instance we would like to refer the admitted facts, the evidence and documentary evidence in order to appreciate respective contentions. Documents No.1 is loan sanction letter issued by OP-1 to the tune of Rs.50,50,000/-. Contents of this sanction letter is not in dispute. The complainants agreed to pay monthly installments with interest at 9.5% p.a. It is evident/ proved  the documents of complainants predecessors in title of the complainant had purchased this flat from the developers under registered sale deed dt.17.09.2008. Subsequently, as could be seen from document no.3 that the complainants have purchased from same property from Ms.LathaSinghvi, JayarajSinghi and F.R.Singhviunder registered sale deed dt.13.12.2010 for sale consideration of Rs.80,00,000/-.So far purchase of property is not in dispute. Document No.4 is letter of OP-1 to the complainant No.1 with regard to misplacement of the document entered original registered sale deed dt.17.08.2008 and original sale deed executed  infavour of the complainant on 13.12.2010. The OP-1 also lodged complaint with jurisdictional police  as could be seen from exhibit P-5. The document-6 paper publication indicates that OP bank issued paper publication about lost of documents.

12. The complainant relies on document no.10 with regard to market value. It indicates that the market value of “Mantri Green”  where the apartment of the complainant is situated at price at Rs.1,36,400/- per sq.meter, it valuation is about Rs.2,60,00,000/-. This valuation is for the guidelines. The complainant has not produced any of sale deed to show that similar situated apartments with same measurements are being sold  either at Rs.2,60,00,000/- or over Rs.2,60,00,000/-. It is not sufficient  to show  the valuation of apartment of the complainants was Rs.2,60,00,000/-.

13. It is true that by issuing legal notice dt.13.02.2020, the complainants called upon the OP to return their original documents stating  market value of the property  is Rs.2,60,00,000/- and called upon OP-1 to pay Rs.95,00,000/- compensation. This notice is served on OP-2 also.

14. At this stage,  it is relevant to refer the document relied by Ops . Document no.1 is Resolution   authorizing certain person to represent OP-1. Document no.2 is home loan sanctioned by OP which is also not in dispute. Document No.3 is loan statement account which indicates that on dates how the payments were made. Document no.4 is copy of the sale deed of the complainant dt.13.12.2010. The same copy of sale deed is also produced by the complainant.

15. The complainants have filed memo with letter of Vijaya Bank stating the complainant No.1 approached them to take over loan from OP-1 on 17.12.2019, but this letter itself not sufficient to say that Vijaya Bank was agreed to pay entire loan amount due to               OP-1. On 17.01.2022 OP have produced memo along with calculation dt.11.01.2022. This calculation sheet indicates that sum of Rs.29,78,613.90 was due from the complainants.

16. The records produced before us clearly indicate the complainants jointly aborted housing loan for more than  fifty lakhs  from OP-1 by depositing 02 original sale deeds. It is also borne out from the records  OP-1 misplaced both sale deeds and lodged complaint.  The copy published in news paper about loss of these documents.

17. Even though complainant assert that market value of apartment was Rs.2,60,00,000/- and prospective buyers demanding Reduction of price due to non-availability of original sale deeds. But the complainants have not whispered any name of respective buyers who agreed to purchase at lesser price. The market price itself  is not sufficient to show the value of apartment was Rs.2,60,00,000/-  even presuming for the sake of arguments value of the apartment of the complainants before filing of complaint Rs.2,60,00,000/-

18. It is interesting to note that the complainants seek direction against the OP to return their original sale deed dt. 17.09.2008 and 13.12.2010 or alternative direction to OP to pay market value of Rs.2,60,00,000/-. But the complainant not whispered about amount dues payable to the OPs. The complainants have not whispered that they are ready to give up apartment if OP is ready to pay them Rs.2,60,00,000/-. The 1^stprayer alternative itself indicates that the complainants are greedy persons. Apart from this, the complainants have stated in para-8 of their complaint that OP-1 & 2 informed them that their original sale deed would be in their safe custody, they would return the original sale deeds by repayment of the said home loan. It is not the case of complainants, they repaid their entire loan and despite repayment of the loan amount the OPs fail to return original documents.  The complainants want to take benefit of non-availability of documents and want to earn wrongful gain.  .

19. The advocate for complainants placing reliance on the following decisions vehemently argues that, Ops are liable to return documents and liable to pay compensation.

1. State Bank of India V/s Anitesh Mazumdhar of NCDRC dt.03.02.2020

2. M/s ICICI Bank ltd V/s Rajesh khandelwal of NCDRC                dt. 12.02.2020

      3. M/s Shel Sohal  V/s Axis Bank ltd  of NCDRC dt.08.01.2018

20. We carefully perused the facts and ratio involved in the above decisions. In the first decision, the complainants have taken loan from bank, it deposited title deeds for loan of Rs.13,50,000/-. After settling the loan by paying sum of Rs.13,50,000/- , the complainant demanded banker to return title deeds. In this case the complainant neither settled dues of OP-1 nor shows their anxiety when they are never ready to repay dues to the OP-1. Therefore first decision no way helps the complainant. The complainants never repaid loan till filing this complaint.

21. In the 2^nd decision also banker was directed registered complaint in the concerned police station regarding loss of original sale deed and published in the newspaper, but in this case OP No.1 not only set criminal law into motion about misplaced sale deeds, but also got published in two news papers about lost documents. This decision no way referred despite payment of balance dues to the OP bank, OP banker directed to compensate the complainant. Under these circumstances this decision is also not applicable.

22. It is true that in the present case also OP-1 admits lost or misplaced original sale deeds of the complainant. But without paying dues the complainant cannot expect banker/financial company OP-1 to return documents.  If the complainant has paid entire dues to OP and insists for such relief, then we can understand the claim of the complainant. Therefore this decision also not applicable.

23. In the last decision also loan was repaid and original documents were sought, but in the present case complainants neither settled dues nor show any positive interest to repay all the dues. Therefore, this decision is also applicable. Under such circumstances, the complainant is no right in claiming alternative relief of Rs.2,60,00,000/- or compensation of Rs.95,00,000/-. The complainant knowingly approached to this commission without settling the loan amount. Even as accepted by the OPs that original sale deeds of the complainant either misplaced or lost, the duty of the OP-1 to return sale deeds to the customers arises only after settlement of all the dues. Therefore, the complainant is no right in saying deficiency of service on the part of OP or negligence on the part of the opposite party without settling the dues. Accordingly, the complainant is not entitled to any of the reliefs.

24. In series of decision in the year 2017 and in the year 2020, Hon’ble National Disputes Redressal Commission has categorically held that there was negligence on the part of banker for non-returning of original documents on settlement of dues, but the complainants without settling dues approached this commission for huge amount.

25. If there is loss of original property documents by the banker/financier its show liability to obtain authenticated original or certified copy of the same. FIR need to be filed by lender and entire process of cost bourn by lender/financier. But, in this case OP set the criminal law in to motion and also got published publication of lost or misplaced document. The bankers liability to return original documents would arise only settlement. But, in this case complainants have not settled entire loan of OP-1. Therefore, the complainants are no right in claiming about compensation.

26. Point No.1 & 2: Accordingly, we answer the point No. & 2 in the negative .

27.Point No.3:- In the result, we pass the following order :

ORDER

1. Complaint is dismissed, directing  both parties to bear their own costs.
2. Furnish the copy of the order to the both parties.
3. Return the spare pleadings and documents to parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Commission on this 28^th day of February, 2022).

(RenukadeviDeshpande)                                     (K.S.Bilagi)

    MEMBER                                                   PRESIDENT

Documents produced by the complainant are as follows:

Documents produced by the Opposite party are as follows:

(RenukadeviDeshpande)                                     (K.S.Bilagi)

    MEMBER                                                   PRESIDENT