Tamil Nadu

StateCommission

A/156/2016

State Bank OF India, The Branch Manager - Complainant(s)

Versus

R. Banumathi - Opp.Party(s)

N. Maheswaraiah

07 Jun 2022

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

BEFORE :       Hon’ble Thiru Justice R. SUBBIAH               PRESIDENT

Thiru R. VENKATESAPERUMAL                   MEMBER

                        

F.A.NO.156/2016

(Against order in CC.NO.22/2015 on the file of the DCDRC, Thiruvarur)

 

      DATED THIS THE 7^th DAY OF JUNE 2022      

 

The Branch Manager

State Bank of India                                                           M/s.  S. Makesh

Thiruvarur Branch                                                                Counsel for

Thiruvarur                                                             Appellant / Opposite party

                                                         Vs.

 

R. Banumathi

W/o. G.Ramachandran

Ottakudi Kulikarai                                                           M/s. B. Ramamoorthy

Chinnakadai Street, Peruntharakudi                                           Counsel for

Kudavasal Taluk, Thiruvarur District                             Respondent/ Complainant

 

          The Respondent as complainant filed a complaint before the District Commission against the opposite party praying for certain direction. The District Commission allowed the complaint. Against the said order, this appeal is preferred by the opposite party praying to set aside the order of the District Commission dt.12.07.2016 in CC.No.22/2015.

 

          This appeal coming before us for hearing finally today, upon hearing the arguments of the counsel appearing on either side and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order:

 

ORDER

 

JUSTICE R. SUBBIAH,  PRESIDENT   

 

1.       This appeal has been filed as against the order of the District Commission, Thiruvarur, dt.12.7.2016 in CC.No.22/2015 by allowing the complaint, filed by the Respondent/ complainant herein.

 

2.       For the sake of convenience, parties shall be referred as per the ranking before the District Commission.

3.       The case of the complainant is that the Respondent/ complainant had borrowed loan for the purpose of erecting the borewell in his agricultural land.  In respect of the said loan, he had created an equitable mortgage by depositing his title deed, pertaining to his property on 15.5.1989.  The said loan was availed by him on 17.6.1992.  Due to loss in agricultural operations, he was unable to repay the loan amount.  The opposite party had issued a notice dt.22.3.1994, by calling upon the complainant to repay the entire loan amount.  Thereafter, again they have sent a legal notice on 31.5.1994 to their counsel.  Since the complainant had not paid the loan amount, they have filed a suit in O.S.No.121/97 for recovery of the loan amount before the Sub-court, Nagapattinam.  In the said suit, a preliminary decree was passed on 23.4.1998.  Thereafter the case was transferred to Sub-court Thiruvarur, and renumbered as OS.No.26/2000, and a final decree was passed in the said suit on 8.1.2001.  The opposite party/Bank has not taken any steps to recover the amount, by filing Execution Petition before the court, within the limitation period of 12 years. In the meantime, as per the order of the Government the entire loan borrowed by the complainant had been waived by the Government.  Inspite of the waiver of the loan by the Government, the opposite party had not returned the original title deed of the complainant, though several letters were sent by the complainant to the opposite party requesting them to return the title documents.  Therefore on 24.6.2014 the complainant had sent a legal notice to return the document.  But there was no response from the bank.  Again he sent another notice on 25.8.2014.  The 2^nd notice was also not responded.  Therefore, he has filed the present complaint, alleging deficiency in service on the part of the opposite party,   claiming for return of the original title deeds  with compensation of Rs.75000/- alongwith 12% interest and cost of Rs.10000/-. 

 

4.       The opposite party had filed their version stating that the complainant had availed loan by mortgaging the property with the opposite party on 17.6.1992.  But he has not repaid the loan amount.  On 22.3.1994 a notice was issued, thereafter the suit was filed in OS.No.26/2000 before the Sub-court and in the said suit final decree was passed on 8.1.2001.  Even after passing the final decree, he has not come forward to pay the amount.  Therefore, there is no deficiency in service on the part of the opposite party in withholding the document.  Thus they sought for the dismissal of the complaint. 

 

5.       In order to prove the claim, proof affidavits were filed by the parties, alongwith documents, which were marked as Ex.A1 to A8 on the side of the complainant, and Ex.B1 on the side of the opposite party. 

 

6.       Before the District Commission, the bank had taken a defence that they are having a lien over the documents, and they are entitled to exercise their general lien with regard to the debts, which have become time barred, as per Sec.171 of the Indian Contract Act.  In support of his contention, before the District Commission, they have also relied upon a judgement of the High Court of Kerala reported in (2011) 2 KLT 907 in Thankappan Vs. Muthukoya. 

          But the District Commission had rejected the said defence and had come to the conclusion that there is deficiency of service on the part of the bank in not returning the document, and thus directed the bank to return the document, and also to pay a compensation of Rs.50000/-.  Aggrieved over the said order, the present appeal has been filed by the appellant/ opposite party. 

 

7.       The learned counsel for the appellant submitted that it is an admitted case that the complainant did not take any steps to repay the loan amount, even after passing of the final decree by the civil court, in the suit filed by the bank. Therefore, the intention of the complainant  is only to defraud the bank. Further, before the District Commission, the complainant had stated that the loan amount had been waived by the Government.  But the bank had produced the document to show that the loan was not waived by the Government at any point of time.  While so, the District commission ought not to have shown indulgence to the respondent who has committed wilful default in repaying the public money, which is against the rule of law and principles of natural justice.  Thus prayed for dismissal of the complaint. 

 

8.       Per contra, the learned counsel for the complainant has made the submission, supporting the order passed by the District Commission.

 

9.       Keeping the above submissions in mind, and on perusal of record, the main aspects that has to be considered in this case is

          1.       Whether the loan of the complainant was waived by the Government?

          2.       When the appellant/ bank had not executed the decree within the limitation period of 12 years, whether they have the right to hold the title documents deposited with them?

 

10.     As far as the first point is concerned, the District Commission itself had rejected the same stating that the complainant had not proved by any tangible evidence that the loan amount was waived by the Government. 

          As far as the second ground is concerned, the District Commission had come to the conclusion that since the appellant/ opposite party had not taken any steps to execute the decree within the limitation period of 12 years,  they do not have any right to hold the title documents, hypothecated by the complainant. 

11.     Therefore, now the only point we have to looked into in this case is that when the bank had not taken any steps to execute the decree within the limitation period of 12 years, whether they have right to hold the documents?

          In this connection the appellant / opposite party would contend that they can exercise the general lien with regard to the debt, which are barred by limitation.  In support of the contention, they have relied upon a judgement of the High Court of Kerala reported in (2011) 2 KLT 907 in Thankappan Vs. Muthukoya. 

          But the factual aspect of the said case is that the petitioner had availed two loans viz. jewel loan and individual loan.  Though the said petitioner had repaid the entire amount towards the jewel loan, since there was an outstanding interest amount in respect of individual loan, by enforcing their general lien over the jewels, the bank had not returned the jewels. 

          In the instant case, the fact is different.  The complainant had availed only one loan, and though the bank had the decree in their favour,  the appellant/ opposite party had   failed to file an execution proceedings within the limitation period of 12 years to recover the loan amount.  Therefore, the decree had now become unenforceable.  When the decree had become unenforceable, the bank has no legal right to hold the document.  Therefore, they are bound to return the documents.  Considering all these aspects, we are of the considered opinion that the District Commission had rightly held that the bank is liable to return the documents pledged by the complainant. 

          However, we feel that awarding a sum of Rs.50000/- towards deficiency in service is on the higher side.  Hence we hereby restrict the compensation to Rs.25000/- instead of Rs.50000/-.  Except this modification, all other aspects of the order of Forum below is hereby confirmed.

 

12.     In the result, the appeal is allowed in part, modifying the order of the District Commission, Thiruvarur, in CC.No.22/2015 dt.12.7.2016, by reducing the compensation of Rs.50,000/- to Rs.25000/-.  Except the said modification, all other directions of the Forum below is hereby confirmed.  No order as to cost in this appeal.

 

 

 

          R. VENKATESAPERUMAL                                                  R. SUBBIAH

                    MEMBER                                                                          PRESIDENT