Chandigarh

StateCommission

A/193/2023

ASSET RECONSTRUCTION COMPANY INDIA LIMITED - Complainant(s)

Versus

RAJESH SHARMA - Opp.Party(s)

VIPUL DHARMANI

21 May 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	193 of 2023
Date of Institution	:	08.08.2023
Date of Decision	:	21.05.2024

 

Asset Reconstruction Company (India) Limited, having its registered Office at The Ruby, 10^th Floor, 29, Senapati Bapat Marg, Dadar (W), Mumbai-400021. Branch office at A-668, 3^rd Floor, Near Lajpat Nagar, Pekhowal Road, Near Carplus Showroom, Ludhiana, Punjab-141001.

 

…..Appellant/Opposite Party

 

VERSUS

1. Rajesh Sharma, S/o Sh. Attar Singh
2. Attar Singh, S/o Sh. Mahavir Parsad.

Both residents of H.No.3128, Sector-52, Chandigarh.

3. Assistant General Manager (RACPC), RACPC, State Bank of India,
   SCO 103-108, Sector-17-B, Chanidgarhh-160017.

 

                                                                         …..Respondents/Complainants

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MR. RAJESH K. ARYA, MEMBER.

 

ARGUED BY:

Ms. Priyanka Gupta, Advocate proxy for Sh. Vipul Dharmani, Advocate for the appellant.

Sh. Rajesh Kaundal, Advocate for respondents No.1 & 2 alongwith Respondent No.1 in person.

Sh. Munish Kumar, Advocate for respondent No.3.

 

PER SH. RAJESH  K. ARYA, MEMBER

 

ORDER

         

                   By filing the present appeal, Opposite Parties No.2 has impugned order dated 03.07.2023 passed by District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short District Commission) partly allowing the complaint of the complainants (Respondents No.1 & 2 herein) by directing the appellant to immediately return all the original documents as received from opposite party No.1 and in alternative, in failure to return the same, pay an amount of ₹10,000/- to Respondents No.1 & 2/Complainants, so that they may get reconstructed such documents as per law. Besides the District Commission also awarded ₹10,000/- as compensation and ₹10,000/- as cost of litigation.

2.     The sole basis to lay challenge to the order passed by the District Commission is letter dated 05.12.2019 of the complainants wherein the complainants mentioned that they are aware that their property papers are not held with ARCIL and as and when the same are traced in SBI or in Court, the same would be handed over to them in future. To settle the controversy at rest with regard to the property papers of the complainants, it is apposite to briefly give the facts of the case as under:-

“(a)  It transpires from the allegations as projected in the consumer complaint that complainants had availed housing loan of ₹13,20,000/- from OP-1 for purchase of a flat at Chandigarh by moving application dated 30.1.2008 which was sanctioned by OP-1 vide letter dated 25.4.2008 (Annexure C-1). At the time of sanction of loan, OP-1 had required various documents, which were accordingly handed over by complainants to it, including sale deed. Thereafter, complainants started depositing EMIs in Housing Loan Account No.30379940280 (hereinafter referred to as “subject Loan Account”) w.e.f. 6.6.2008 and till 27.7.2012 had deposited ₹8,50,000/-. Thereafter, due to health issue of complainant No.2, complainants could not deposit further EMIs, as a result of which, subject loan account was declared NPA and OP-1 had initiated proceedings against complainants before Debts Recovery Tribunal-I (hereinafter referred to as “DRT-I”), Chandigarh. During the pendency of proceedings, OPs had made their arrangement inter-se to pursue the case.  Later on, case was transferred to DRT-II, Chandigarh and finally vide order dated 24.6.2017 (Annexure C-2) a sum of ₹13,53,474/- with simple interest @ 10% per annum was allowed till its recovery and recovery certificate (Annexure C-3) was also issued.  During the proceedings before RO, DRT-II, Chandigarh, full and final settlement had been arrived at between the complainants and OP-2, wherein complainants gave proposal and OP-2 had agreed to accept ₹12,00,000/- towards full and final settlement.  In view of said settlement, an amount of ₹1,75,000/- was deposited by the complainants, but, they failed to deposit the remaining amount and again approached OP-2 with a new proposal and OP-2 agreed to accept total amount of ₹10,00,000/- in one installment, which was paid by the complainants as per the final settlement and No Dues Certificate (Annexure C-11) was issued and order dated 14.2.2020 (Annexure C-12) was passed by DRT-II, Chandigarh.  However, despite of closure of the loan account of the complainants, OPs failed to return the original documents of the complainants, which amounts to deficiency in service and unfair trade practice on their part. OPs were requested several times to admit the claim, but, with no result. Hence, the present consumer complaint.

2. OPs resisted the consumer complaint and filed their separate written versions. In its written version, OP-1, inter alia, took preliminary objections of maintainability and cause of action.  On merits admitted that the subject loan account of complainants was closed and No Due Certificate was issued after settling of the loan account.  However, it is alleged that the answering OP had handed over all the original documents to OP-2 and there is no deficiency in service on the part of answering OP and the consumer complaint of complainants is not maintainable against it. On merits, facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainants is denied.  The consumer complaint is sought to be contested.
3. In its written version, OP-2, inter alia, took preliminary objections of maintainability and cause of action.  It is also alleged that in fact the original documents had never been handed over by OP-1 to the answering OP and OP-1 was requested through email to release the documents of the complainants.  On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainants is denied.  The consumer complaint is sought to be contested.
4. Despite grant of sufficient opportunity, rejoinder was not filed by the complainants to rebut the stand of the OPs.”

It has further been submitted in the grounds of appeal that once the complainants were duly aware on 05.12.2019 that the property documents were with Opposite Party No.1 – SBI  or in Court, there arises no occasion for them to plead any deficiency in service against the appellant.

3. It may be stated here that during the pendency of this appeal, on 03.04.2024, it came to the notice of this Commission that the complainants (respondents No.1 & 2) borrowed loan of Rs.13,20,000/- from Opposite Party No.1 – State Bank of India, SCO 103-108, Sector 17B, Chandigarh for the purchase of dwelling unit bearing No.3129 in Sector 52, Chandigarh measuring 46.33 sq. yards of EWS category vide Loan Application No.30379940280 which was sanctioned and thereafter, he purchased the aforesaid dwelling unit vide Sale Deed No.1018 dated 21.05.2008. The Assets/Title Deeds were also sent to the Estate Officer vide letter dated 16.02.2008 for re-verification (at Page 121 of the appeal file). The said loan was not returned, as such, State Bank of India filed Original Application bearing No.465 of 2024 before the Debts Recovery Tribunal-I at Chandigarh wherein it had been mentioned that the sale deed was also handed over for the purpose of securing the loan. Thereafter, the said loan was assigned to Asset Reconstruction Company (India) Limited – Opposite Party No.2 (appellant herein) vide Assignment Agreement executed between the appellant and State Bank of India, Respondent No.3 on 08.04.2015, Annexure A-5. The original sale deed has not been handed over to Respondents No.1 & 2/Complainants. State Bank of India, Respondent No.3 has submitted that the same was given to the appellant - Asset Reconstruction Company (India) Limited but the later did not accept the same and stated that the original sale deed was never given to it by RACPC, State Bank of India, Respondent No.3. Without commenting on the merits of the case, this Commission was of the view that an opportunity should be given to the RACPC, State Bank of India, SCO No.99-107, 1^st Floor, Sector 8C, Chandigarh to thoroughly search for the original documents i.e. the Title Deed & Conveyance Deed in question and to submit the same with this Commission alongwith affidavit of Asstt. General Manager, RACPC, State Bank of India.
4. Accordingly, an affidavit dated 07.05.2024 was filed by
   Sh. Dilbagh Singh Reddu, Chief Manager, State Bank of India, (SARB), SCO No.24, Sector-8/C, Chandigarh wherein it was testified that as per records, Respondent No.1 approached the bank authorities for loan against his property i.e. Unit No.3129, Sector 52, Chandigarh and against such loan application/account the property of Respondent Rajesh Sharma was equitably mortgaged with the bank by retaining the original sale deed dated 21.05.2008. It has further been stated in the affidavit that due to non-compliance of payment schedule and irregularity thereof an OA was filed before the learner DRT Chandigarh however, thereafter on the basis of arrangement the said loan including the other loans of the various borrowers alongwith all the original documents/title deeds etc. were assigned to the appellant ARCIL and in lieu thereof an assignment agreement dated 08.04.2015 was also executed between SBI and ARCIL. It has further been stated that at the time of assigning such powers as per the mandate, all the original documents of the borrowers were duly handed over to ARCIL through their representatives and even on the basis of such documents, the ARCIL proceed with the matter of Respondent No.1 borrower in learned DRT and placed on record all the documents which were duly exhibited by producing the original ones in the proceedings therein. It has further been stated in the affidavit that the Respondent No.1 never admitted the retaining of such documents with SBI after when his loan case was assigned to ARCIL rather the appellant manipulated the letter allegedly issued by the Respondent No.1 to this effect and addressed to the ARCIL to this effect which the Respondent No.1 categorically denied. It has further been stated in the affidavit that even from the date of assignment agreement till date, neither Respondent No.1 nor appellant made any communication with the bank regarding the non receipt of original title deed dated  21.05.2008 qua the property of Respondent No.1. It has further been stated that no question arises to retain the said sale deed especially when all the documents belong to such loan were duly given to the ARCIL in all aspects without any objection or raising claim to this effect till date. It has further been stated that there is no lapse for deficiency of any kind attributed on the part of SBI Bank.
5. After hearing the rival contentions of the parties and going through the material available on record, impugned order and the affidavit aforesaid, one thing is very much proved on record that the original documents are not in the possession of opposite party No.1 – SBI. Based on the evidence presented by both parties before the District Commission below and on record of this appeal, it stands established that opposite party No.1 indeed handed over all the original documents, including those of the complainants, to the authorized representative of the appellant on 6.9.2014. The letter dated 6.9.2014 from opposite party No.1 to the appellant confirmed transfer of the original documents of the complainants. It is also coming out of the record and the aforesaid affidavit that all the original documents including the sale deed(s) in question were duly supplied by opposite party No.1 to the appellant in pursuance to Assignment Agreement dated 08.04.2015.
6. Not only above, the appellant in its Application filed under Section 14 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, at Page 6 of appeal file, itself admitted that “That the State Bank of India has unconditionally and irrevocably assigned, transferred and released; in favour of the applicant, in the capacity as the sole trustee of “Arcil Retail Loan Portfolio 046-A-Trust”, all its rights and interest, including the underlying security in the Facility Agreement, Security Documents and all other transactional documents relating thereto, in favour of the applicant in terms of Section 5 of the SARFAESI Act…….”. Thus, it stands established that it was the sole responsibility of the appellant to return the original documents including the sale deed in question to the complainants. So far as, alleged letter dated 05.12.2019 is concerned, in view of concrete finding both by this Commission and the District Commission below that the original documents were in possession of the appellant, the appellant cannot derive any benefit out of this letter. In our considered view, the District Commission below, while holding opposite party No.2 responsible, rightly directed it to immediately return all the original documents of the complainants, as received from opposite party No.1 and in alternative, in failure to do so, pay an amount of Rs.10,000/- to them so that they may get reconstruction of such documents as per law besides awarding compensation and cost of litigation.
7. In view of the above discussion, it is held that the order impugned passed by the District Commission partly allowing the complaint filed by respondents No.1 & 2/complainants against the appellant/opposite party No.2, being based on the correct appreciation of evidence and law on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
8. For the reasons recorded above, this appeal being devoid of merit, stands dismissed with no order as to cost. Pending applications, if any, also stand dismissed.
9. Certified copies of this order be sent to the parties free of charge forthwith.
10. File be consigned to Record Room after completion.

Pronounced

21.05.2024

 

 [RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

[RAJESH K. ARYA]

 MEMBER

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