Sri Utpal Kumar Bhattacharya, Member
Instant Appeal u/s 15 of the C P Act,1986 has been filed by the Appellant/OP challenging the Judgment and order dated 25/01/2017 passed by the Ld. District Forum, Unit II, Kolkata in Complaint Case No. 233 of 2015 allowing the complaint on contest against the Appellant/OP with the direction upon the Bank to return the original Title Deed of the Respondents/Complainants and in case the Deed cannot be traced out, to ensure issuance of a certified copy of the Title Deed in favour of the Respondents/Complainants through concerned authorities in the manner as laid down in the order within 45 days from the date of the impugned order along with “no loan/due certificate”.
The Appellant/OP was further directed to pay compensation and litigation cost of Rs.2,00,000/- and Rs.30,000/-, respectively, to the Respondents/Complainants within the aforesaid stipulated period.
There was further direction upon the Appellant/OP Bank to deposit with the Ld. District Forum an amount of Rs. 1,00,000/-as punitive damage for practicing unfair trade once again within the aforesaid stipulated period. As directed, out of the said deposited amount, an amount of Rs. 50,000/-was to be paid to the Respondents/Complainants and the rest amount was to be deposited with the Consumer Welfare Fund.
Failure to comply with the above direction, as the order made it clear, would make the Respondents/Complainants entitled to put the order into execution u/s 25 read with Section 27 of the C P Act, 1986.
The facts of the case, in a nutshell, were that the Respondents/Complainants availed themselves of a loan of Rs. 8,00,000/- from the Appellant/OP Bank in the year 2002 for purchasing the subject flat. The said amount was fully disbursed to the Respondents/Complainants at the time of the construction of the flat.
The Respondents/Complainants, as claimed in the petition, deposited the registration slip of the Title Deed of the subject flat after the same being registered on purchase with the Appellant/OP Bank in terms of the Agreement and made repayment of the entire loan amount together with interest. The Appellant/OP denied having received any Title Deed or the Registration slip thereof from the Respondents/Complainants. It also denied that the repayment of the entire loan amount together with interest accrued on it was made.
The aggrieved Respondents/Complainants then filed the instant complaint before the Ld. District Forum. Appeals against the judgment and order passed on earlier occasion in the same complaint were preferred by both the parties under Appeal Nos. A/1204/2015 and A/1210/2015. Said Appeals, after being heard, were allowed in part setting aside the said judgment and order and the matter was sent back on remand to the Ld. District Forum because of lack of evidence in support of respective claims of both sides. The Ld. District Forum was asked in the said order for fresh adjudication on rehearing of both the parties based on supporting evidences to their respective contentions. The impugned judgment and order arises out of fresh adjudication on the said issue.
Heard Ld. Advocates appearing on behalf of both sides.
Ld. Advocate appearing on behalf of the Appellant/OP submitted that subject flat, as it would reveal from the Agreement, running page 46, clauses 2 and 5, was under construction. There was no registration of the Deed of Conveyance of the subject flat. Therefore, the question of depositing Title Deed with the Appellant/OP Bank, as claimed by the Ld. Advocate, did not arise at all. Drawing attention of the Bench to running page 144, Annexure 1, being a copy of the relevant document of the Directorate of Registration, the Ld. Advocate submitted that the Deed of Conveyance was registered on 17/03/2016 when the loan for purchasing the flat was disbursed on 17/10/2002. The Respondents/Complainants, as submitted, did not subsequently deposit the Deed of Conveyance as claimed.
Further, the Ld. Advocate continued to submit that the entire loan amount together with interest accrued on it was not repaid. As submitted, it was a fact that the Respondents/Complainants submitted twelve Replenishment Cheques in response to the communication made by the Appellant/OP Bank but, the replenishment did not mean full repayment of the loan. The Ld. Advocate drew the notice of the Bench to running page Nos. 48 to 54, being the statement in respect of the subject Loan Account and submitted that after depositing the last of the twelve replenishment cheques on 18/01/2013, the amount outstanding in the Loan Account was Rs. 53,063.58 which, with subsequent accrual of interest and penal interest, as shown from 05/03/2013 onward, grew to Rs. 84,069.74 as on 05/06/2015.
Ld. Advocate referred to running page No. 65 wherein the details of the property to be mortgaged have been noted as “NA”. The running page No. 68, being the letter of the Appellant/OP Bank dated 23/08/2015, as submitted, mentioned clearly the documents of the Respondents/Complainants which were being held by the Appellant/OP Bank.
The Ld. Advocate pointed out the prayer part of the complaint which revealed that the Respondents/Complainants themselves were in doubt about the full repayment of dues and undertook to repay the loan, if any, within ten days from the date of disposal of the instant case.
With the above submission the Ld. Advocate prayed for the Appeal to be allowed setting aside the impugned judgment and order.
The Ld. Advocate appearing on behalf of the Respondents/Complainants, per contra, submitted referring to running page No. 30 that the Appellant/OP Bank, in response to the query made by the Respondents/Complainants, requested the Respondents/Complainants to provide them with the Replenishment Cheques. The Respondents/Complainants’ communication, after submission of the said Replenishment Cheques, towards providing them with the detailed statement of the subject Loan Account so as to enable them to know the exact amount of the outstanding dues, was not responded to with any satisfactory reply.
The Ld. Advocate drew attention of the Bench to the communication made by the Appellant/OP Bank at running page 68 showing therein the list of documents it was holding and submitted that it was only on filing the Complaint Case that the Appellant/OP Bank communicated to save themselves from the allegation of not giving them any prior communication towards non- availability of the subject Title Deed.
The Ld. Advocate referred further to the running page No.144 to submit that the document itself was devoid of any indication towards the same being related to the subject property. Even if it was considered, as he continued, the document was related to the subject property and 26/04/2008 was the date of delivery of the subject Deed as recorded therein, it only went to signify the Appellant/OP’s inexplicable silence for long seven years as there was no demand of the Deed from the Appellant/OP’s side till the year 2015.
It was unbelievable, as the Ld. Advocate continued, that in spite of the mandatory provision of handing over the registration slip of the Deed of Conveyance in clause 5 of running page 46, being the Agreement between the parties, the Appellant/OP Bank should remain silent for years with their papers audited regularly. There was, as continued, similar observation in the impugned order too. The circumstances led to the common inference that the Bank carefully obtained and preserved the needed documents as per Agreement as anything otherwise would not have skipped the notice of the audit for years and objection from audit point of view would surely have been raised and recorded.
The fact remains, as it was further submitted, the bank had definitely collected the IGR which was customary to them and mandatory as per Agreement in connection with the instant loan. Further, non-furnishing of bank statement to ascertain the outstanding dues on repeated persuasion, particularly after depositing the replenishment cheques as per the requirement of the Appellant/OP Bank, itself indicated that there was, in fact, no outstanding dues.
Perused the papers on record and considered submissions of both sides. The decision of the issue appeared to have been based on two points.
- Whether the Deed of Conveyance of the subject flat was actually deposited with the Appellant/OP Bank?
- Whether there were at all any outstanding dues in the subject loan Account?
As regards point no. 2 above, we acknowledge the reality that the Appellant/OP Bank was at fault for not supplying with the Respondents/Complainants, the statement in respect of the subject Loan Account so as to ascertain the exact loan amount outstanding. The point about non-submission of the Statement of Account was observed by this Commission while remanding the complaint for rehearing on earlier occasion.
While hearing the instant Appeal, we found the Statement in respect of the subject Loan Account since inception till 5th of June, 2015 at running pages 48 to 55. It appeared that there was outstanding dues of Rs.84,069/-mostly in the form of interest and penal interest accrued on the balance outstanding since O8/01/2013, the date of last instalment paid. Considering the fault for not furnishing the Statement of Account by the Appellant/OP Bank in spite of request from the Respondents/Complainants, we freeze the outstanding dues as above as on 05/06/2015 with no further accrual of interest thereafter as per the said statement. We, however, don’t deny the statement submitted before the Commission in black and white to be accepted as a tenable one.
The Ld. Advocate appearing on behalf of the Respondents/Complainants, at the time of submission referred to the payment of last instalment of Rs.10,943/-on 08/01/2013 and accepted the statement to that extent. He did neither raise any objection nor offer any clarification on interrogation from the Bench about the amount shown as outstanding in the said Statement as on 05/06/2015.
In view of the fact that part acceptance of the statement is not tenable and also in appreciation of the fact that depositing the Replenishment cheques does not absolve the Respondents/Complainants of paying the demand outstanding with the Bank, we are of the view that the said amount of Rs.84,070/- is a liability to the Appellant/OP Bank on the part of the Respondents/Complainants.
As regards deposit of the Sale Deed, we feel that the loan was against mortgaging of the Deed. The Agreement at page 46, clause 5, clearly indicated that the Respondents/Complainants were supposed to deposit the Registration slip after execution of the Deed of Conveyance of the subject flat.
The claim of the Respondents/Complainants towards deposit of the said IGR immediately after Registration of the Deed of Conveyance with the Appellant/OP Bank cannot be ruled out particularly when there was no reminder against the alleged non-depositing or claim for depositing the subject Deed of Conveyance for years. It was only in the year 2015 that the Appellant/OP first communicated to the Respondents/Complainants about non-availability of the subject Deed among the document kept under the custody of the Appellant/OP and that too, after the Complaint Case was filed by the Respondents/Complainants.
The Ld. District Forum had amply elaborated the issue in the impugned Judgment and order while elaborating the fact that it was most unlikely that the Appellant/OP Bank would not collect the instrument of mortgage and not remind the Respondents/Complainants for submission of the documents, if not submitted as per Agreement and a vital irregularity will remain undetected for years in spite of regular auditing of papers.
We, in the facts and circumstances narrated above, are of the view that the contention of the Respondents/Complainants towards deposit of document has some elements of truth.
Since the question of releasing the Mortgage Deed does not arise till full realization of the loan with interest and the compensation has been assessed at a higher side and since it is felt as well that the imposition of the penal interest upon the Appellant/OP Bank is not applicable in the given circumstances, we feel the impugned order needs to be modified as under.
Hence, ordered that the Appeal be and the same is allowed in part. The Respondents/Complainants are hereby directed to pay to the Appellant/OP Bank the outstanding dues of Rs.84,070/-as on 05/06/2015 as per Statement of Account submitted by the Appellant/OP Bank.
The Appellant/OP Bank is hereby directed to handover the Deed of Conveyance in original to the Respondents/Complainants. In case of the said Deed being not traced out, the Appellant/OP Bank is directed to ensure that a certified copy of the Deed in question is issued by the concerned authority and the said certified copy is handed over to the Respondents/Complainants with no loan/due certificate to be issued by the said Appellant/OP Bank. In that case the Appellant/OP Bank shall pay a litigation cost of Rs. 30,000/-and a compensation of Rs.1,00,000/-to the Respondents/Complainants for the deficiency of not being able to handover to the Respondents/Complainants the Deed in original deposited with it.
The directions, as above, have to be carried out within a period of 45 days from the date of the instant order, failing which, the Appellant/OP and the Respondents/Complainants have to pay simple interest @ 9% p. a. on Rs.1,00,000/- and Rs.84,070, respectively, in addition to their respective payable amounts.
The impugned judgment and order stands modified accordingly.
