Delhi

StateCommission

CC/1127/2016

M/S INVOGUE APPARALS & ANR. - Complainant(s)

Versus

ORIENTAL BANK OF COMMERCE - Opp.Party(s)

UMESH SURI

10 Apr 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 10.04.2019

Date of Decision : 16.04.2019

COMPLAINT NO.1127/2016

In the matter of:

 

1. M/s. Invogue Apparels,

Through its Partner,

Smt. Madhulika Goel,

Aged about 65 years

            (senior Citizen),

            R/o. 41, Urja Ville, Sector-51,

            Noida-201301,

            District Gautam Budh Nagar,U.P.

 

2. Shri S.K. Goel,

Aged about 72 years

(Senior Citizen)

S/o. Late Shri Ved Prakash Goel,

R/o. Mohalla Mahajan,

Kirat Pur, District Bijnor,

1.  

Versus

 

Oriental Bank of Commerce,

Through its Asstt. General Manager

Assets Recovery Branch,

2.  

E-Block, Connaught Place,

New Delhi.……Opposite Party

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The case of the complainant is that complainant no1 took loan from OP which was collaterally secured by deposit of title deeds of following properties:-

1. House in Mohalla Mahajanan, Kirath Pur, District Bijnor, U.P. on a land measuring 96.8 sq. mtrs.
2. Commercial shop in Mohalla Sadar Bazar, Near PNB, Kirath Pur, District Bijnor, U.P. on a land measuring 31.3 sq. mtrs.

2. In view of the above said mortgage, two Urdu sale deed with Hindi translation of the said properties and the original family settlement with the site plan and the latest municipal tax paid receipt were deposited with the OP. After formation of the assets recovery management branch of the OP bank, the said account was taken over by the Assets Recovery Management branch of OP bank and the title papers of the mortgaged properties were taken over by the assets recovery management branch. The OP filed three letters LD 59 dated 13.10.94 (two) & 21.10.95 to the Op when complainant no.2 handed over the above said original title papers to the OP.  The OP bank filed said original letters in the suit filed by it against the complainants  in Civil Court. In para-7 of the plaint  OP stated that complainant no.2 had deposited original title deeds of the above properties and had also given details of the said properties. The suit was decreed exparte. Complainant no.2 filed an application for setting aside the exparte decree but the same was dismissed. Complainant no.2 challenged the same before the Hon’ble High Court of Delhi vide CM (M) No.852/13. In the said petition, the complainant no.2 gave application for proposal of settlement subject to return of original title deeds of the mortgaged property. OP bank filed reply to the said application. In para 13 of the reply OP stated that title deeds of the mortgage property were not available with them. The said reply was received by counsel for complainant no.2 on 22.09.14. Hence the complaint is within limitation.
3. On 01.10.15 counsel for complainant no.2 issued notice under Section 60 of TPA fro redemption of mortgage which was served on 08.10.15. In the notice the complainant sought original title deeds and in case of non return of the title deeds, he sought Rs.34 lakhs (85% of the market value of the mortgaged property) alongwith interest @18% per annum and punitive damages of Rs.5 lakhs for mental pain, agony and harassment. He also sought litigation charges of Rs.1.10 lakhs. No reply was sent to the said notice. Complainant no.2 reserved his right to file criminal complaint for criminal breach of trust.
4. Non availability of title papers of mortgaged properties with OP is a gross negligence on the part of the OP and is gross dereliction on duty and there is deficiency in the service. By the loss of documents, the OP has reduced value  of the mortgaged property to zero and complainant no.2 is unable to use the said property for monetary gains. Complainant no.2 will be unable to do any transaction regarding said property, will be unable to further mortgage the same for getting financial assistance from Institution/ Bank. Hence this complaint for directing OP to pay compensation of Rs.34 lakhs and punitive  damages of Rs.5 lakhs and litigation charges of Rs.1.10 lakhs, total Rs.40,10,000/- with pendentelite and future interest @18% per annum.
5. OP was served for 03.03.17 and put an appearance through its counsel Shri A.K. Giri. Copy of complaint was supplied. It was directed to file WS within 30 days and case was fixed for 17.07.17. The OP failed to file the WS and its right to file WS was closed on 17.07.17.
6. In their evidence the complainants filed their own affidavit. The complainants have also filed written arguments.
7. I have gone through the material on record and heard arguments. The counsel for complainants drew my attention towards copy of application fro cash credit (Hypothecation form) which is placed at page 58. In Schedule A namely list of documents of title, it is mentioned that original title deed, map, last municipal tax paid receipt verification certificate. In Schedule B regarding description of property it is mentioned commercial shop situated at Mohalla Sadar Bazar near PNB, Kirath Pur, District Bijnor.
8. Similar application regarding residential house in Mohalla Mahajanan, Kirth Pur, District Bijnor. is at page 59. At page 60 the measurement of the property is given as 96.80 sq. meter and measurement of commercial shop has been shown as 31.30 sq. meter. The factum of depositing title deeds is strengthened by plaint of Suit No.946/98 filed by OP bank in High Court of Delhi. In para-7 it is mentioned that defendant no.5 (complainant no.2 herein) executed personal guarantee dated 12.07.93 and also deposited original title deeds of his residential property situated in Kasba Kirthpur, Pargana Mohalla Mahajanan, Bijnor, U.P. and commercial property being shop situated at  Mohalla Sadar Bazar, Near PNB, District Bijnor as collateral security. The said suit was later on transferred to District Courts and was assigned to the court Smt. Shail Jain, ADJ where it was decreed vide judgement dated 23.02.04. The suit was under Order 37 CPC and defendants remained exparte.
9. The counsel for complainants took me through appeal filed by complainant no.2 against order dismissing his  application for setting aside exparte judgement in decree by way of CM (M) 852/13. In para 13 of the reply at page 115 it is mentioned that title deeds /original documents of the mortgaged property are not available with respondent no.1 i.e bank.
10. From the above material it stands established that complainant mortgaged a property and deposited the title deeds which have been lost  from the  hands of OP. It amounts to deficiency in service.
11. But the question remains what should be the amount of compensation to be given. The value of the property has not come on record. Anyhow the copy of plaint of suit filed by OP reveals that initially a cash credit of Rs.1.5 lakhs was given on 12.07.93. On 23.10.93 the same was enhanced to Rs.2.5 lakhs. Further the same was enhanced to Rs.3.7 lakhs. Lastly it was enhanced to Rs.4.5 lakhs and at that time the borrower hypothecated their goods also.
12. It can be legitimately inferred that the value of the property mortgaged for loan of Rs.1.5 lakhs or say maximum Rs.4.5 lakhs could have been around Rs.6 lakhs only. To seek compensation of Rs.40 lakhs for a property worth Rs.6 lakhs, is imaginary.
13. The counsel for the complainant heavily relied upon decision of U.P. State Commission in CC No.17/12 titled as  Rajiv Kumar Jain vs. LIC Housing Finance Ltd. decided on 10.09.12. In the said judgement at page 13 it has been observed that the OP offered to pay expenses for registration of sale deed again. The State Commission observed that in case of loss of original  registered sale deed, certified copy of the sale deed can be obtained from the office of Sub-Registrar but the original sale deed is registered only once. No bank or financial institution advance loan on the basis of certified copy of sale deed because certified photocopies are not covered within the ambit of equitable mortgage. It may be that by over looking the bank rules, some financial institutions may advance loan on the basis of certified copies/ photocopy but that is not a right of a owner. In the last at page 21 it was concluded that the OP should pay 85% of the current market  value of the property as compensation alongwith interest @18% per annum and Rs.5 lakhs as compensation, Rs.20,000/- as litigation cost.
14. I have not been able to understand  logic of arriving at compensation of 85% of the current market value of the property.
15. Certified copy of sale deed is a good evidence. This is more so when the loss of the original is duly accounted for. In the present case deposit of the original with the OP bank is undisputed. OP bank can be directed to issue a no objection certificate stating that  it has no objection if the complainant sells the property or mortgage the same for taking any advance. At the same time the OP bank would certify that it has no lien over the property as it has recovered its amount. In that event the complainant would not face any difficulty.
16. On the facts and circumstances of the case  I feel that award of compensation of Rs.50,000/- for loss of documents of each property would be sufficient. Accordingly the OP is directed to pay Rs.1 lakhs in all to the complainant for loss of title deeds of both the properties. Simultaneously it will issue a certificate to the complainants to the effect that original documents of the property were deposited by the complainants with it, have been lost by it, now it has no objection to the sale of property or mortgage of property by the complainants on the basis of certified copy of sale deed obtained by the complainants from the office of Sub-Registrar.   
17. Copy of the order be sent to both the parties free of cost.
18. File be consigned to record room.

 

 

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)