Date of filing: 04.06.2022

                                                               Date of Disposal:14.12.2022

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 14^th DAY OF DECEMBER, 2022

CONSUMER COMPLAINT NO.115/2022

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Mr.Akbar Pasha M,

S/o Mr.Mohammed Mustafa,

Aged about 47 years.……COMPLAINANT-1

Mrs.Reshma Taj,

W/o Mr.Akbar Pasha M,

Aged about 44 years.

Both R/at No.12, 9^th Main Road,

BTM Layout, 1^st Stage,

Bangalore-560 029.……COMPLAINANT-2

Rep by Sri.Benedict Anand, advocate.

PNB Housing Finance Limited,

Corporate and registered office,

No.56, Sai Arcade,

Bangaloe-560 103,

Rep by its Manager,

Customer Service and Operation,

Manjunath M.……        OPPOSITE PARTY

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainants have filed this complaint under Section-35 of Consumer Protection Act, 2019 seeking for a direction to the opposite party to return the original sale deed and other title deeds of the complainants’, deposited by the complainants at the time of borrowing the loan and to pay a sum of Rs.10,00,000/- as compensation for deficiency of service and unfair trade practice and a sum of Rs.1,00,000/- towards damages for the mental agony sustained and cost of the complaint.

2. In spite of notice been served on the opposite party, the opposite party remained absent.

3. The complainant no.2 is the wife of complainant no.1.  It is the case of the complainants that they availed a Joint Housing Loan from the opposite party an amount of Rs.19,02,071/- on 05.07.2016.  The said loan was for a term of 15 years and was repayable by the complainant with a floating interest at the rate of 10.72% p.a.   Further, the complainants have borrowed the loan to purchase site No.20, Yadavanahalli Village, Attibele Hobli, Anekal Taluk, Bangalore Urban District.  Further, the complainants have deposited all the original title deeds pertaining to the above said property with opposite party including sale deed, Khatha extract, tax paid receipt.  Further, at the request of the complainants, the opposite party gave a pre-closure statement to the complainants and as per the statement, the complainants have paid the outstanding loan amount of Rs.5,18,417.44/- through cheque dt.01.04.2021 to the opposite party.  After clearing the loan, when the complainants sought for return of the original documents deposited, on 20.12.2021 the complainants were shocked to receive an email from the opposite party requesting the complainants to follow the steps for the loss of documents.  Hence, the act of opposite party in not returning the original title deeds to the complainants and refused to follow the steps for loss of documents amounts to deficiency of service.  Hence, the complaint came to be filed.

4. To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P9 documents.

5. Counsel for the complainants has filed written arguments.

6. Heard the counsel for the complainants.

  7. The points that would arise for consideration are as under:

 i) Whether the complainants prove the deficiency of service on the part of the opposite party ?

    ii) Whether the complainants are entitled for the 

         compensation as sought ?

     iii) What order ?

 8.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Party in affirmative

Point No.3 :  As per the final order for the following;

REASONS

9. POINT NO.1:- The complainant No.1(PW1) has reiterated the fact stated in the complaint, in the affidavit filed in the form of his evidence in chief.  PW1 has produced EX.P2 list of documents submitted to opposite party.  EX.P3 is the Xerox copy of the receipt for having remitted the entire loan amount by the complainant.  In EX.P6 copy of sms sent by the opposite party to the complainant, it appears that the opposite party had asked the complainant to collect the original property papers from them.  In EX.P7 email sent by the opposite party dt.04.07.2021, it is stated that the loan amount of the complainants has been pre-closed, as desired after receiving the funds from the complainants and due to COVID-19 outbreak.  This may lead to a delay in release of the original property documents and the documents are safe with them, in their repository and will be released within 15 working days from their repository to the service branch of opposite party.   Further, in EX.P8 email dt.08.09.2021 sent by opposite party to the complainants, it is stated that the loan account of the complainants has been repaid in full and there is no due outstanding against the said loan and opposite party reserves no rights/claim whatsoever against the property mortgaged.  Further, in the email dt.23.04.2022 addressed to the complainants by the opposite party, it is stated that the opposite party regrets to inform the complainants that despite their best efforts they were unable to locate/find the original registered documents. 

10. It is the contention of the learned counsel for the complainants that it is the duty of the opposite party to return the original documents immediately after the closure of the loan.  Admittedly, the opposite party had pre-closed the loan and admitted to return the documents.  In spite of that, the opposite party did not return it.  Hence, the act of the opposite party amounts to deficiency of service.  On perusal of the email dt.21^st December, 2021, it appears that the opposite party asked the complainants to take steps for the loss of documents i.e., to lodge a police complaint, paper publication etc. Since, the documents were given to the custody of the opposite party in respect of the mortgage while borrowing the loan, it is the duty of the bank to keep it in safe custody and return after the discharge of the loan without the document been lost. Hence, the act of the opposite party in asking the complainants to take steps with regard to the loss of documents shows their lethargy in securing the documents.  The opposite party did not challenge the oral and documentary evidence produced by the complainants by giving rebuttal evidence and by filing version.  Hence, the act of the opposite party amounts to deficiency of service within the meaning of Section-2(11) of Consumer Protection Act, 2019.  Accordingly, I answer this point in affirmative.

11.POINT No.2:- The complainants sought a direction to the opposite party for refund of the documents.  According to the complainants, they gave in total 25 documents to the bank.  Among the documents some are original and some are certified copies. In the email dt.23.04.2022 the opposite party has admitted that they were unable to locate/find the original registered sale deed dt.08.05.2013 bearing document No.828/2013-14 and sale deed dt.11.12.206 bearing document No.2952/2006-07 and sale deed bearing document No.4185/2016-17 pertaining to the property bearing site No.20, Janjar No.659, katha Serila No.659, Survey Nos.155/1 and 156/1, Yadavanahalli Village, Attibele Hobli, Anekal Taluk, Bengaluru.  According to PW1, the opposite party did not return any documents deposited. 

12. It is the contention of the learned counsel for the complainants that because of the absence of the original documents, the sale value of the property would come down and the complainants cannot sell the property on the existing market value.  I feel there is merit in the contention of the learned counsel for the complainants, for the reason to ascertain the title to the property, the original documents plays a vital role and in the absence of the documents there will be suspicion. Therefore, the opposite party has to give advertisement in the newspaper with regard to the loss of the documents.  Further, the opposite party shall produce the remaining documents before the commission for the confirmation of the complainants with regard to the existence of those documents. 

13. Further for the documents lost the Opposite party has to pay compensation. With regard to the compensation is concerned, it is held in a judgment rendered by Hon’ble National Consumer Disputes Redressal Commission New Delhi in Revision Petition. Between State Bank of India and 2 others Vs Darshan Lal on 28.01.2016 that the loss to be sustained and other inconvenience to be caused to the complainant shall be looked into.  The facts in the said case is that the complainants took loan from the Opposite party bank by depositing the sale deeds and the bank has lost the sale deed dated 06.10.1986.  Under the circumstances, the Hon’ble Commission has directed the bank to give advertisement to at its own cost and to pay a sum Rs.2,00,000/- as compensation to the complainant.  Hon’ble NCDRC has passed an order directing the bank to follow certain procedures and to pay compensation.  Since, the facts in the cited judgment are similar to the facts of the case on hand, the same is applicable to the case on hand also.  Hence, the opposite party is directed to give a paper publication in newspapers.   In the case on hand, the bank has lost the original sale deeds i.e., registered sale deed dt.08.05.2013 bearing document No.828/2013-14 and sale deed dt.11.12.206 bearing document No.2952/2006-07 and sale deed bearing document No.4185/2016-17 pertaining to the property bearing site No.20, Janjar No.659, katha Serila No.659, Survey Nos.155/1 and 156/1, Yadavanahalli Village, Attibele Hobli, Anekal Taluk, Bengaluru.  These documents are important one and it would be a serious matter and the complainant expected that bank would keep the documents in safe custody and there is no chance of documents getting lost or misplaced or mutilated. Hence we direct the Opposite party to pay a sum of Rs.2,00,000/- towards the loss going to be sustained by the complainants with regard to the fetching of market price on the property, inconvenience and harassment caused to the complainants and a sum of Rs.20,000/- towards mental and a sum of Rs.10,000/- towards litigation cost. Accordingly, I answer this point partly in affirmative.

14.  POINT NO.3:- In view of the discussion made above, I proceed to pass the following;

The complaint is allowed in part.

The Opposite party shall give advertisement at its cost in two vernacular daily newspaper widely circulated in Karnataka State stating that the original sale deeds i.e., registered sale deed dt.08.05.2013 bearing document No.828/2013-14 and sale deed dt.11.12.206 bearing document No.2952/2006-07 and sale deed bearing document No.4185/2016-17 pertaining to the property bearing site No.20, Janjar No.659, katha Serila No.659, Survey Nos.155/1 and 156/1, Yadavanahalli Village, Attibele Hobli, Anekal Taluk, Bengaluru has been lost while it was in the custody of PNB Housing Finance Limited and the complainants can obtain certified copy of those documents from the concerned office. Further in case if the documents were traced at any future date the opposite party shall hand over the same to the complainants.   

Further the Opposite party shall pay a sum of Rs.2,00,000/- as compensation to the complainants and Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost.

Further the opposite party bank shall return the other documents stated in page 35 of the complaint  (vide EX.P9), other than the documents stated in page No.36 admitted by the opposite party in its email dt.23.04.2022 to the complainants.

The Opposite party shall comply the order within 30 days. In case, opposite party fails to comply the order within the said period, the above said amount i.e. Rs.2,30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 14^th day of December, 2022)   

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA K)    
•  

Witness examined for the complainants side:

Sri.Akbar Pasha M, the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Xerox copy of the sale deed dt.22.07.2016.
2. Xerox copy of the list of the documents submitted to opposite party.
3. Xerox copy of the payment receipt.
4. Xerox copy of the letter from opposite party.
5. Xerox copy of the payment receipt.
6. Xerox copy of the SMS sent by opposite party to collect the documents.
7. Xerox copy of the email conversation dt.04.07.2021.
8. Xerox copy of the NOC.
9. Xerox copy of the emails conversation.

Witness examined for the opposite party side: 

Documents marked for the Opposite Party side:

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•