HON’BLE MR. JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) No one is present for the respondent, though as per the tracking report, he has been served on 04.10.2016. I have therefore, heard the learned counsel for the petitioner. 2. The complainant/respondent namely Rajendra Kumar Agrawal took two loans, one of Rs.6,00,000/- and the other of Rs.42,00,000/- from the petitioner company. In order to secure the aforesaid loan, the complainant/respondent mortgaged an immovable property owned by his mother Smt. Kamla Devi Agrawal with the petitioner company. The owner of the property had also stood as the guarantor for the loan taken by the complainant. The loan was of Rs.6,00,000/- repaid on 04.11.2011, whereas loan of Rs.42,00,000/- was repaid on 21.12.2011. After repayment of the loan, when the complainant asked the company to return the original title deed and site plan of the mortgaged property, the said documents were not returned. It later transpired that the company had lost those documents. Being aggrieved, the complainant approached the concerned District Forum by way of a consumer complaint. 3. The petitioner company remained exparte before the District Forum which vide order dated 07.01.2015, directed the petitioner company to pay a sum of Rs.15,000/- as compensation to the complainant alongwith cost of litigation quantified at Rs.5,000/-. The District Forum also directed the petitioner company to return the original sale deed of the property to the complainant. Being aggrieved from the order passed by the District Forum, the petitioner approached the concerned State Commission by way of an appeal. No one appeared for the petitioner company when the appeal came up for hearing. The said appeal was dismissed by the State Commission which found no error in the order passed by the District Forum. Being aggrieved, the petitioner company is before this Commission by way of this revision petition. 4. It is submitted by the learned counsel for the petitioner that the property in question had already been sold by the guarantor Smt. Kamla Devi Agrawal even before the loan was actually repaid to the company. This according to him happened in violation of the loan agreement since the mortgaged property could not have been sold during the subsistence of the mortgage without prior permission of the company. On a perusal of the sale deed executed by Smt. Kamla Devi Agrawal, I find that it has been stated in the said sale deed that the loan which the complainant had taken by mortgaging the said property had been repaid. The sale deed was executed on 30.11.2011. The loan of Rs.42,00,000/- however, was repaid only on 21.12.2011. Therefore, it can hardly be disputed that the sale was in contravention of the loan agreement. However, the aforesaid act of sale of the property, on the part of the guarantor/owner of the property namely Smt. Kamla Devi Agrawal, does not absolve the petitioner company from its negligence in not ensuring the safety of the sale deed and site plan of the mortgaged property. 5. The learned counsel for the petitioner company states that the sale deed and site plan were kept in safe custody, but he is unable to explain how such important documents vanished from the alleged safe custody. No enquiry report has been filed by the petitioner company to explain the circumstances in which such important documents went missing from its custody. The very fact that such important and valuable documents went missing from the custody of the petitioner company by itself shows that either the documents were not kept in safe custody or some employee of the petitioner company committed an act of misconduct by removing the aforesaid documents from the custody of the company. The least expected from the petitioner company, when the complainant approached it for return of the documents, was to hold an enquiry, fix responsibility for the loss of the documents and take appropriate action against the officials of the company found responsible for the loss of the documents. That obviously has not been done and no explanation is offered for not undertaking such an exercise. 6. Since the documents in question have gone missing from the custody of the petitioner company, the direction for their return to the complainant is incapable of performance. In any case, the property subject matter of the mortgage has already been sold by its owner. However, in the facts and circumstances of the case, the direction for payment of compensation and cost of litigation is eminently justified and does not call for any interference by this Commission in exercise of its revisional jurisdiction. 7. For the reasons stated hereinabove, the impugned orders are modified by directing the petitioner company to only pay the compensation and the cost of litigation awarded by the fora below to the complainant within four weeks from today. It is however, made clear that if the missing documents are ever found by the petitioner, the same shall forthwith be returned to the complainant. The revision petition stands disposed of. |
