​

JAGANNATH BAG, MEMBER

                The present appeal, as filed u/S 15 of the Consumer Protection Act,  1986  is directed against the impugned Order, dated 07.10.2015 , passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit -II, in CC No. 233 of 2015 , whereby the compliant was allowed with cost, compensation, punitive damages and some directions upon the OP as well as upon the Complainants .

          The case of the Complainants , in brief, was as follows:

          The Complainants took in the early part of 2000 (correctly speaking ,  2002)  a loan of Rs. 8,00,000/- under Home Loan Account No. 40523845 for purchasing a flat. The Complainants paid EMIs through post-dated cheques which have been duly encashed by the OP Bank. The Ld. Advocate of the OP upon registration of the Deed of Conveyance kept the same in his custody since the flat in question was on mortgage with the Bank. The possession of the flat being given to the Complainants , they are in use of the same . By a letter dated 6^th January 2012, and another letter dated 18^th January 2012 , Complainants wanted to know how much amount was due, as from the starting of the loan account the OP did not provide any statement of account to the Complainants. The OP Bank was also requested to inform how many cheques the bank would require for payment of EMIs. The OP by their letter dated 24.01.2012 directed the Complainants to provide 12 replenishment cheques. Accordingly, the Complainants sent 12 replenishment   cheques   and  demanded the statement as already asked for . The Complainants by their letter dated 06.02.12 demanded ‘ No Loan Certificate’ from the Bank with detailed payments of loan amount, but the same was not complied with. In March, 2013, an official of the OP Bank informed over telephone that all the documents were lying at their Chennai office and it would take at least 6 to 8 months to obtain the same prior to the issue of the No Loan Certificate and return of the registered original Deed of Conveyance. But no intimation about the home loan account of the Complainants was furnished . The Complainants received two letters, separately in their names, from one Niloy Sarkar of 76, Clive Road , 1st Floor ,  Kolkata – 700 001, wherein he claimed himself to be the Advocate of the OP Bank and demanded Rs. 82,950.71 being the outstanding dues as  on 05.05.2015 with further interest as per loan agreement within 10 days from the date of receipt of the letter. Allegedly, the OP Bank wanted to make illegal gain  by not providing statement of the Home Loan Account  and by withholding the ‘No Loan Certificate’ and the registered Deed of Conveyance in respect of the flat in question. In the said circumstances , the Complainants filed a consumer complaint with prayer for direction upon the OP Bank to provide  statement of home loan account of the Complainants and to grant ‘ No Loan Certificate’ along with return of the original  Deed of Conveyance and also to pay Rs. 5,50,000/- as cost , compensation etc. with interest and it was submitted that  in case there were any dues at all , the Complainants undertook to deposit such amount with the Forum.

The complaint was contested by the OP Bank who filed W.V. In their W.V. the OP submitted that the home loan was disbursed in 3 installments while the flat was under construction. It was contended that the Complainants never deposited either the IGR or the Title Deed in respect of the said flat to the OP Bank for creation of Equitable Mortgage  which was a violation of the four-party agreement dated 04.10.2002 containing the condition to deposit the IGR  Title Deed .  It was further contended that the Complainants stopped paying EMIs after January 2013 , and the outstanding amount  in the said account was Rs.84,069.74 as on 05.06.15. The ‘no due certificate’ in respect of the said loan would be issued on payment of the outstanding dues with up-to-date interest, but they were unable to return the original Title Deed as it was never deposited to the Bank. The OP prayed for dismissal of the complaint.

Ld. Forum below after consideration of the complaint, the W.V. filed by the Complainants and also the arguments advanced by the Ld. Advocate of the OP observed that in terms of an agreement dated 04.10.02 between the parties concerned, a loan for a sum of Rs. 8,00,000/- was granted subject to variable interest @ 12 % p.a. and the property, i.e., the flat in question was mortgaged. It was also observed that on  09.08.2002 a sum of Rs. 4,80,000/- was advanced and thereafter a sum of Rs. 1,60,000/- was paid on 14.08.2002 and the third part of Rs. 1,60,000/- was released on 07.10.2002. Ld. Forum below also observed that since 04.10.2002 till filing of the complaint , OP bank , no where reported that they never received the IGR from the Complainants or their vendors or the owners of the property. It was further observed that the Deed of Conveyance was collected by the OP and then the last part of the loan amount was released on 07.10.2002. Ld. Forum below also observed that no statement about the loan account of the Complainants was ever sent prior to filing of the W.V. It was also observed that with the encashment of 12 replenishment cheques , there was no question of payment of any EMI. The entire loan amount was satisfied . However, on calculation of the interest rate etc., Complainants were found to be liable to deposit Rs. 40,000/- for interest.  Accordingly, Ld. Forum below directed the OP to pay a cost of Rs. 10,000/-, and a sum of Rs. 15,000/- as compensation to the Complainants together with direction upon the OP to issue No Loan Certificate and to hand over the original Deed of Conveyance to the Complainants who were also directed to deposit Rs.40,000/-  to the loan account within 45 days from the date of the order.  OP was further directed to pay Rs. 25,000/- as punitive damages to the Ld. Forum below.  

The OP-turned-Appellant has come up before this Commission, as aggrieved by and dissatisfied with the order of the Ld. Forum below .

 Ld. Advocate appearing for the Appellant submitted that the loan was disbursed in phases during construction  of the flat . Though as per the agreement dated 04.10.2002, vide clause No.5, the Complainant / Respondent / vendor / owner of the property was required to deposit the original receipt granted by the Registration Authorities, that was never complied with.   The Complainants failed to provide any evidence showing the delivery of the title deed to the OP . In fact, the Respondent / Complainants could not  state for certain on which date  the registration of the deed of conveyance was done or when he took possession of the flat though it has been admitted in his petition of complaint that the possession of the flat was given to them and they are in use of the flat.  Further, as gathered from the web site of the Government of West Bengal pertaining to the Directorate of Registration and Stamp Revenue, it appears that the flat was registered on 17.03.2006 and the Deed of Conveyance was delivered on 26.11.2008. In that position, the registered Deed could not have been delivered to the OP Bank in 2002 as claimed by the Respondent / Complainant. The claim of the Respondent for  return of the deed of conveyance is totally baseless and motivated. The Appellant is ready to issue the no loan certificate as soon as the outstanding dues as claimed vide legal notice dated 19.05.2015  are cleared by the Complainants.   The order of the Ld. Forum below being erroneous and perverse is liable to be set aside.  

Ld. Advocate appearing for the Respondent /Complainant submitted that the OP bank was repeatedly requested for furnishing the statement of up-to-date payment and outstanding dues which the OP Bank never responded to  and  such act is utter negligence/deficiency in service on the part of the OP . The Complainants paid the EMIs  in advance by cheques . The Respondent /OP bank asked by their letter dated 24.01.2012  to issue  12 replenishment  cheques which the Complainants furnished. The cheques were encashed by the Appellant Bank. Still a sum of Rs. 84,609.74 was claimed to have been lying as outstanding dues  without any justification. The Complainants were not at all liable to pay any amount against the loan account after January, 2013. Further, it is obvious that the OP / Appellant did not release the last part of the loan amounting to Rs. 1,60,000/- on 07.10.2002 without the execution of the loan-cum-mortgage agreement dated 04.10.2002 after satisfaction of the mortgaging of the property by the OP and their vendors. The Deed of Conveyance was collected by the OP Bank at the time of registration of the property in question and the IGR was also kept with them. No receipt was issued to the Respondent / Complainant. It is apparent that the Appellant / OP tried to cover up their misdeed of misplacing the Deed of Conveyance with the aspersion that the Deed of Conveyance  or the IGR was never received by them. The impugned order, therefore, deserves to be modified  with the direction upon the Appellant to provide the no loan certificate and to hand over the IGR / the Deed of Conveyance of the flat with car parking allotment without insisting on payment of the sum of Rs. 40,000/- as directed by the Ld. Forum below , in default, to impose punitive damages upon the Respondent bank with direction to issue indemnity bond regarding the flat in question stating that they are liable for all future consequences and legal proceedings and to pay to the Complainants , the cost and compensation as prayed for in the petition of complaint.     

                              Decision with Reasons :

The point for consideration is whether the impugned order suffers from any material irregularity or infirmity or jurisdictional error.

We have perused the materials on record including the memorandum of appeal, together with copies of the impugned order , the petition of complaint , the W.V. filed on behalf of the OP before the Ld. Forum below , the agreement dated 04.10.2002 executed by and between the Respondent / Complainant and other parties and also the statement of account prepared by the bank on 09.06.2015 among other documents including evidence on affidavit filed on behalf of the bank and the application for home loan etc.

 The case of the Appellants is that they sanctioned a loan of Rs. 8,00,000/- to  the Respondent / Complainant by virtue of the agreement of sale dated 15^th May, 2002 , between the owners / vendors and the developer and the borrowers / purchasers and also the agreement  dated 4^th October, 2002, between the said parties providing specifically, interalia , that with the registration of the Deed of Conveyance, the original receipt granted by the Registration Authorities shall be deposited and / or delivered by the owner/vendors, the developer and the borrowers / purchasers to the bank.        

      Ld. Advocate appearing for the Respondent / Complainant cited the decision of the Hon’ble National Consumer Disputes Redressal Commission as reported in 2014 (4) CPR 592 ( NC) . The facts as stated in the reported case were different in so far as the loss of the Deed of Conveyance from the custody of the Bank was an admitted fact whereas in the present case , the alleged loss of the IGR or the Deed of Conveyance is not so admitted.

          Ld. Forum observed in the impugned order that had it been a case  that the OP Bank did not receive the IGR of the sale deed , they would have asked for the same , but that has not been done till filing of the case. Ld. Forum below inferred that the document was lost from the custody of the Respondent .

It is important to note that the Appellant  Bank failed to provide any statement of account to the Respondent/ Complainant during the long period beginning from 09.08.2002 , when the first installment of Rs. 4,80,000/- out of the sanctioned loan amount of Rs. 8,00,000/- was advanced and the date of filing the W.V. before the Ld. Forum below . With the encashment of all the replenishment cheques as asked for by the Appellant , the liability of the Respondents / Complainants  to pay any further EMI clearly ended but how the Ld. Forum below assessed the amount of Rs. 40,000/- as interest to be paid has not been made out in clear terms . Such amount appears to be without proper justification.

Again, the fact of registration of the sale deed with all relevant particulars including the date of registration is very vital which is lacking in the impugned order, though the Ld. Forum below  inferred that the last part of the loan amount could not have been released without registration of the property and mortgaging of the same.

          We are inclined to hold that the above noted points need  be ascertained with evidence and in that perspective the matter has to be   adjudicated afresh . In that view of the matter, the case may be referred back to the Ld. Forum below for fresh adjudication. The appeal , as such, succeeds in part . Hence,

                                       Ordered

that the appeal be and the same is allowed  in part on contest . The impugned order is set aside . The matter be sent back on remand to the Ld. Forum below for fresh adjudication by giving opportunity of  hearing to both parties who may adduce their respective evidence in support of their contention / averment . The parties to appear before the Ld. Forum below on 28.11.2016 for necessary orders. There shall be no order as to cost.