PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        The Complainant has prayed that it be held that the Opposite Party is guilty of deficiency in service and unfair trade practice as per the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as the Act).  The Complainant has prayed to return the original registered document of agreement for sale dtd.26/02/2007.  It is also prayed that the Opposite Party be directed to pay Rs.2,00,000/- towards loss and harassment caused and legal expenses incurred by the Complainant.

2)        According to the Complainant, he has purchased the Flat No.302, ‘A’ Wing, Pancharatna Building, Aslfa Village, Ghatkopar (W), Mumbai, from M/s. K.N. Pokar Constructions Pvt. Ltd., Ghatkopar (W), Mumbai, under an agreement dtd.26/02/2007 which was dully registered with Sub-Registrar of Assurances.  The copy of which is marked as Exh.‘A’. The said flat was purchased for an amount of Rs.7,90,000/-. The Complainant paid Rs.1,90,000/- by cash to the said builder and for remaining amount the Complainant availed loan from the Opposite Party to the tune of Rs.6,00,000/-.

3)        It is alleged that when the Complainant approached the Opposite Party on 13/06/2007 for obtaining loan it was told by the officer of the Opposite Party that the Complainant is required to deposit the Title Deeds/Original Registered Agreement with the Bank.  The Complainant accordingly submitted the original sell agreement to the Opposite Party.  The Opposite Party granted and disbursed loan on 31/08/2007.  The loan was required to be repaid in 120 EMI alongwith interest.  It is submitted that the Complainant repaid the loan fully and the Opposite Party has issued No Dues Certificate dtd.18/05/2011.  The copy of the said certificate is marked as Exh.‘B.  It is submitted that after the repayment of the loan the Complainant demanded back the Original Registered Agreement, dtd.26/02/2007 on 11/04/2011.  It is alleged that the officer of the Opposite Party, however, did not return the said document and told that the original agreement/documents are with their corporate office.  The Complainant thereafter visited to the Opposite Party after every week for getting the said document.  The Complainant, however, did not return the original document.  The Complainant thereafter issued notice through his advocate dtd.30/8/2011.  The copy of it is marked as Exh.‘C’. The Opposite Party in response to the said notice replied it on 14/10/2011.  The copy of the said notice is marked at Exh.‘D’.  It is submitted that the Complainant came to know about misplace of original agreement/document from the notice reply sent by the Opposite Party through its advocate.  According to the Complainant, it is the duty of the Opposite Party to return the original agreement/document which were deposited by the Complainant after the repayment of the whole amount of loan.  It is alleged that the Opposite Party has failed to comply the same due to which the Complainant is now suffering monetary loss.  According to the Complainant, he wanted to sell the flat for which he had obtained loan from the Opposite Party and purchase other property but the intended purchaser asked to show the original agreement as he had a doubt that the Complainant might have taken loan from some other bank.  It is submitted that the Opposite Party is guilty for the deficiency in service as even after the repayment of the loan amount and repeated oral and written demand the Opposite Party did not return the original registered agreement dtd.26/02/2007.  It is alleged that the Opposite Party is not ready and willing to return the original document for which the Complainant has suffered grave loss and hardship.  It is thus, submitted that the reliefs as claimed in para 1 of this order may be granted against the Opposite Party.   

4)        The Opposite Party filed written statement and contested the complaint.  It is contended that the Complainant approached erstwhile P. D’mello Road Branch of the Opposite Party Bank which was subsequently shifted to Gunbow street branch.  It is admitted that at the time of availing the loan for the flat of Ghatkopar the Complainant handed over the original agreement for sale with the bank as security alongwith other documents.  It is submitted that it was/is the practice of the Opposite Party Branch to store all the security documents of the loan files of all the branches at Corporate Office at Prabhadevi, upon centralization of the bank’s loan document, for security purpose in view of the circular dtd.09/09/2008.  The copy of which is marked as Annexure - ‘A’ to the written statement.  It is contended that in the process of shifting from the P. D’mello Road Branch to Gunbow street Branch and to the Corporate Office at Prabhadevi and scanning and saving the said document it was misplaced.  It is contended that as the loan account of the Complainant was closed on or about 24/03/2011 the branch office of the Opposite Party requested the Corporate Office to send all the loan documents including the document of original agreement for sale of the Complainant which he had submitted with the Opposite Party Branch at the time of availing loan.  It is submitted that in pursuance to that the branch office received inter office communication on or about 18/05/2011 informing that all the original papers of the loan file of the Complainant except the original agreement for sale has been forwarded and the same may be handed over to the Complainant.  The Corporate office of the Opposite Party also informed in the said letter that the said original document of agreement for sale could not traced out and the same will be handed over as soon as it is retrieved.  The copy of the said letter is Annexure - ‘B’ to the written statement. It is alleged that thereafter the Complainant collected the other documents alongwith a covering letter dtd.18/05/2011 such as, 1) Stamped receipt for Rs.39,500/- acknowledged by the builder. 2) letter addressed to the builder for cancellation of bank’s lien on the flat. 3) Original policy of the flat alongwith letter addressed to the Insurance Company for cancellation of bank charge. 4) 2 unutilized post dated cheques. 5) No dues certificate. 

             It is the case of the Opposite Party that since the bank could not trace out the original document of agreement for sale till 09/06/2011 and on inquiry by the Complainant, the bank as a time gap arrangement obtained true copy of the sale deed duly certified by the Registrar of assurances and sent it to the Complainant i.e. at his residence through Mr. Prakash Dalvi, Officer of the Bank alongwith the covering letter dtd.09/06/2011. It is contended that however, the Complainant declined to collect the true copy and insisted for the original. The copy of the said letter is marked as Annexure -‘D’.  It is submitted that the Complainant without appreciating the above and suppressing the fact of providing certified true copy of the original document of agreement for sale issued notice through advocate.  The said notice was replied by the Opposite Party through the advocate of the Opposite Party.  It is contended that the effort of the Opposite Party was continue to retrieve the original document of agreement for sale.  The Opposite Party finally could retrieved the said original document of agreement for sale in the first week of January, 2012 and the said fact was informed telephonically and by letter dtd.12/01/2012 and requested the Complainant to collect the same from Mr. Bhaskar Amin, Chief Manager, Credit Department from Bank’s Corporate Office situated at Prabhadevi, Mumbai. The Complainant thereafter also failed and neglected to collect the original document of agreement for sale. The Complainant also did not reply to the said letter. It is submitted that the Opposite Party again wrote letter to the Complainant dtd.28/02/2012 asking him to collect the original document of agreement for sale. The copies of the letters are marked as Exh.‘E’ & ‘F’ to the written statement.  It is submitted that during the pendency of this complaint the Complainant collected the original document of agreement for sale on 02/03/2012.  It is submitted that as the document was misplaced the delivery of original document of agreement for sale was made after few months and the same cannot be considered as deficiency of service on the part of the Opposite Party.  It is contended that the claim made in the complaint therefore, cannot be granted.   The Opposite Party has denied the parawise allegation and submitted that the complaint may be dismissed with cost.

5)        The Complainant has filed affidavit of evidence.  The Opposite Party has also filed affidavit of evidence of Bhaskar Amin the Asst. Manager of the Opposite Party Bank. The said Manager of the Opposite Party in the affidavit has stated that the Complainant accepted his original document on 02/03/2012 and the proof of the acknowledgment of the said document is filed with his affidavit.  We heard the oral argument of the Advocate for the Complainant Shri. Dhananjay Bhosale and the Advocate for the Opposite Party Smt. Kirti Shetty.  We have perused the documents placed on record by both sides.  

6)        While considering the claim made by the Complainant for compensation for not returning the original document of agreement for sale by the Opposite Party immediately on 18/05/2011 and it was returned to the Complainant during the pendency of the complaint on 02/03/2012, it is necessary to be seen whether the Complainant has actually received the loss as alleged of Rs.2 Lacs in the complaint, such as, he could not sell the flat in question and purchase the other property for want of the original document of agreement for sale, we are of the view that the Complainant has not placed on record any documentary proof showing that he had entered into any agreement with the other purchaser in respect of the flat in question after repayment of loan of the Opposite Party and the same was not materialized only because the Complainant was not having the original document of agreement for sale which was not returned by the Opposite Party till 02/03/2012.  In our view as the Complainant did not produce any documentary proof for substantial evidence to that effect the claim made to the tune of Rs.2,00,000/- is much exorbitant.  The Advocate for the Opposite Party Smt. Kirti Shetty relied the observations in the case the M/s. Usha Ltd. V/s. State Estate Management Pvt. Ltd. reported in SC and National Commission Consumer Law Case (1996-2005) page 619 (Original Petition No.183/1994 decided on 15/11/2000 by National Commission) and the case Bharat Tracktors, Muzzafarpur V/s. Shri. Ramchandra Pandey (Appeal No.1/1989) decided by National Commission on 15/05/1989 and submitted that the compensation can be quantified only on rational basis or on consideration of documentary and oral evidence produced showing the exact loss suffered.  Considering the said submission of the advocate for the Opposite Party and the observations in the aforesaid cases of the Hon’ble National Commission and as the Complainant has not placed on record any evidence to substantiate the claim of loss of Rs.2,00,000/- the same cannot be granted in his favour.  However, as the Opposite Party did not return the original document of agreement for sale immediately on repayment of the total amount of loan by the Complainant and the same was misplaced by the Opposite Party and it was traced out after about 8-9 months thereafter thus, in our view the Opposite Party is liable to pay damages on that count to the Complainant to the tune of Rs.10,000/- and cost of Rs.3,000/- towards this complaint.  In the result we pass the following order –

O R D E R

i.                 Complaint No.317/2011 is partly allowed against Opposite Party.

ii.                Opposite Party is directed to pay Rs.10,000/- (Rs. Ten Thousand Only) to the Complainant towards the damages for

                   returning the original document of agreement for sale after 8-9 months of  repayment of loan by the Complainant.

iii.               Opposite Party is directed to pay cost of Rs.3,000/-(Rs. Three Thousand Only) to the Complainant. 

iv.               The Opposite Party is directed to comply with the above order  within one month from the date of service of this order.  

v.                Certified copies of this order be furnished to the parties.