D.O.F. 21.02.2011

                                       D.O.O.13.12.2013

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri. K.Gopalan                   :                President

                   Smt. Sona Jayaraman K.  :               Member

                   Sri. Babu Sebastian         :               Member

Dated this the 13^th day of December, 2013.

C.C.No.59/2011

V.D.Thomas,

Vadakkeparambil House,

Ndaduvil Amsom, Desom,

P.O.Pulikurumba                                       :         Complainant

(Rep. by Adv. Saji Zacharias)

1. Regional Manager,

State Bank of India,

Calicut.

1. Branch Manager,

State Bank of India,

Taliparmaba.                                     :         Opposite parties

1. Asst. General Manger,

State Bank of India,

Near S.N.Park, Road,

Kannur.

(Rep. by Adv. K.P.Santhoshkumar)                

O R D E R

Sri. K.Gopalan, President

          This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite parties to pay `5,00,000 to complainant.

The case of the complainant in brief is as follows: Complainant availed a loan from 2^nd opposite party as HTL/14/94 on 30.01.2000 mortgaging his 5 acre property in RS.292/1A Naduvil Amsom Desom reg.No.1035/1969 SRO, Taliparamba. Loan was granted upon the legal opinion of Advocate of 2^nd opposite party on examination of property deed and other relevant documents. The loan became due and opposite party initiated steps against complainant to recover the amount.  Thus complainant remitted the entire amount for clearing the account. But opposite party did not return the property deed. On demand opposite party told him that it was missing but will be traced out soon and give him. It was enquired again and again but in vain. When he told 2^nd opposite party that without getting the deed he will not be able to sell a portion of property in order to adjust the debt amount, it was answered that they were searching the document. At last on 2007 June opposite party offered a loan if complainant could produce the certified copy of the alleged deed Rg.No.1035/1969 SRO, Taliparamba together with tax receipt and possession certificate. Opposite party also assured that the original deed would replace on tracing out and the same would also be informed to complainant. Accordingly certified copy was produced and two loans were sanctioned on 2007 July as Nos. 302208152740 and 30208160705. They have also obtained complainant’s signature on certain papers and Forms. Afterwards complainant enquired opposite party several time about original deed but they did not give proper answer. On 2010 December opposite party sent a registered notice asking to remit the due amount in the new loan. After receiving the notice complainant approached the opposite party and informed them that he was ready to pay the entire amount at a stretch and to close the   loan account but he wanted to get back the alleged original property document. Opposite party did not return the original title deed telling that the same had not been traced out.  Complainant sent   registered letter demanding to return the title deed but opposite party did not sent even a reply. At last complainant sent legal notice on 20.01.2011. Opposite party received the letter but no steps had been taken either to return the title deed or to send a reply. Since he was not having the document he could not even replant his rubber trees. For recognition from Rubber board the title deed has to be produced. He has suffered lot of trouble since the deed was not returned. Hence this complaint.

1^st opposite party made appearance and filed version denying the main allegations of complainant. Opposite parties 1 and 3 remained absent and subsequently declared as exparte. Opposite party contended as follows: Complainant is an S.B account holder of opposite party. He had availed number of loans under various schemes of the bank. At present there are two loans in his name. It was granted on 19/07/2007. Since the payment is irregular the bank has sent pre-litigation notice. The bank has not retained the document of complainant’s property while closing his dues in 2007. Normally the title deeds and other documents of the parties are handed over to them at the time of closing of their dues. With respect to the above mentioned loans 5.00 acres covered by title deed, the complainant had created equitable mortgage of his property covered by title deed NO.1035/1969 of SRO Taliparmaba executed by his mother infavour of him. The bank was made to believe by the complainant that the original of his above deed NO.1035/1969 of SRO Taliparamba was lost from his possession. The complainant could submit only a certified copy of this deed before the bank for availing the loan. Certified copy was considered as a special case and on submitting notarized affidavit, he was sanctioned loan. Bank did not retain the origin. The complainant has not paid off the dues to the Bank till date. The opposite party has not deviated from its duties and responsibilities. Complainant is not entitled for any relief. Hence to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency in service on the part of

               opposite   parties?

1. Whether the complainant is entitled to get the relief as

       prayed in   the complaint?

3. Relief and cost.

The evidence consists of the oral testimony of  PW1, Exts.A1 to A4 on the side of the complainant and Ext.B1 & B2 on the side of  2^nd opposite party. There is no oral evidence on the side of 2^nd opposite party. Opposite parties 1 and 3 remained exparte.

Issues No.1 to 3

          Admittedly  complainant has taken loan from the 2^nd opposite party. The subject mater of dispute is the question of non-return of original property documents of complainant by 2^nd opposite party. The complainant  V.D.Thomas availed loan on  30.01.2000 from 2^nd opposite party mortgaging his property having  register No.1035/1969 of SRO Taliparamba. Loan amount became due and opposite party initiated steps against complainant as a result of which entire amount was remitted by the complainant and the loan account was closed. But the property document (1035/1969 SRO Taliparamba was not returned telling that it was seen missed in the file of the Bank and would be returned within few days. Complainant alleged that he approached opposite party bank several time but they did not return the deed. At last when he told that the property deed is essential to raise some fund in order to pay his debt amount, they offered loan if a certified copy of the alleged document obtained from Taliparamba Registrar’s office produced with possession certificate and tax receipt. Complainant also alleged that they have also promised to replace the missed document on tracing out from the file. Believing it to be true the complainant produced certified copy of the deed etc. and opposite party sanctioned two loans infavour of complainant. Thereafter complainant approached opposite party for enquiry about the documents but he was repeatedly told that they were still searching for the documents. Later on when those loans had been fallen default opposite party sent notice in the month of December 2010 to remit the amount. Complainant further alleged that he approached opposite party and told them that he was ready to remit the entire amount but he is highly in need of the alleged document. Legal notice dated 27.12.2010 also was not replied.

          On the other hand, opposite party contended that the original deed was returned to complainant when the previous loan was closed. They are not retaining the same. New loans were granted accepting certified copy since he had been a reputed client of the Bank in the past and on submission of a notarized affidavit swearing the original was irretrievably lost.

          Complainant filed affidavit evidence in lieu of chief examination in tune with the pleadings.

          It is an admitted fact that complainant availed loan from 2^nd posit party/Bank as HTL/14/94 on 30.01.2000 mortgaging his 5 acre property in R.S.292/IA Naduvil Amsom Desom with Register No.1035/1969 SRO Taliparmaba.

          The main allegation of the complainant is that 2^nd opposite party / Bank had not returned his original deed at the time of closing the loan.  The attempt on the part of opposite party is to establish the original documents was returned.  But there is no need of discussion at present to say their attempt was quite unfair and unjustifiable.  It is pertinent to note that the present two loans granted by the opposite party / Bank to complainant are without depositing the original property deed but only with certified copy. This is an unusual practice.  The opposite party’s explanation to him is that the complainant was a reputed client of Bank in the past.   It is quite wonderful to see that a defaulter of a bank is considered as a reputed person, quite contrary to the business language of a bank.   As per the version, the original deed was returned to complainant by opposite party Bank just three months before granting fresh loans.  It was said to be returned on 24.04.2007 and new loan was sanctioned in the month of July 2007.  The complainant, who had history of default in the previous loan dealings applied for new loans without the original deed and opposite party bank sanctioned two new loans accepting certified copy of deed and notarized affidavit to that affect is quite suspicious one.  No doubt it was done only to please the complainant and to find away out of the huddle with the missing of deed.

          Complainant adduced evidence by way of chief affidavit that he had availed a loan as HTL/14/97 by mortgaging this title deed bearing No.1035/1969 of SRO Taliparamba.  When the loan became default bank initiated steps to recover the amount and he paid the entire amount on 24.04.2007 by raising fund from various sources.  After closing the loan opposite party did not return the original deed back and told him that it was not seen in the file and the same would be returned within few days.  But the same was not returned eventhough complainant approached opposite party several times.  When he approached the bank again on 2007 2^nd opposite party told him that they would grant new loan for him if a certified copy of the title deed together with tax receipt and possession certificate produced.  He then promised the original deed would be replaced after tracing it out.  Accordingly complainant produced the same and availed two loans numbered as 302208152740 and 3020816070.  Complainant also stated that they have also obtained his signatures in some papers and forms.  But whenever he approached opposite party they did not give him a proper answer in respect of original title deed.  Complainant further stated that when the bank issued demand notice to pay dues, he approached opposite party/Bank and told them that he was ready to pay this amount due and asked to return the original title deed.  But he was sent back by saying that they could not traced out the document.  Complainant adduced evidence that he had sent letter by himself and also legal notice to opposite party for which they did not sent any reply.  Complainant produced copy of the letter of notice and get it marked as Ext.A1 and Ext.A3.  Ext.A2 and A4 certificate also produced.  Opposite party did not adduce oral evidence in order to rebut the evidence adduced by complainant.  Ultimately opposite parties filed two documents Ext.B1 and B2.  Ext.B1 is the affidavit alleged to be sworn by complainant which was submitted before the bank at the time of availing loans HTL/14/97.  Ext.B2 is the copy of the notice alleged to be sent by opposite party to complainant.

          In cross examination complainant deposed that he has not given notarized affidavit before the bank.  He has also deposed that he was aware of the fact that opposite party has contended in this version that the notarized affidavit was submitted by complainant before the bank.  Complainant has pleaded that “പരാതിക്കാരനെ കൊണ്ട്  ഏതാനും പേപ്പറുകളിലും ഫോമുകളിലും മറ്റും ഒപ്പിടുവിക്കുകയും ചെയ്തു.”  The case of the complainant is that the affidavit is a document manipulated by opposite party/Bank.  It is pertinent to note that there is no rebuttal evidence before the Forum to disbelieve the complainant.  Complainant deposed in his cross examination that “Notarized affidavit-ൽ കാണുന്ന ഒപ്പ് ഞാൻ ബാങ്കിൽ വെച്ചാണ്‌ ഇട്ടത്”.  There is nothing to disbelieve the complainant since no evidence adduced by bank against this.  Opposite party did not come to box.  No opportunity was given to complainant to cross examine the opposite party.

          Now, we are dealing the subject at a time when the missed document traced out already, which admittedly kept in the custody of opposite party.  If an affidavit of complainant stating the document irrevocably lost is been obtained from complainant it shows the hand of Bank is dirt.  Creation and validitating such a document is not possible without the consent and understanding of opposite parties.  The circumstances under which the complainant availed this loan was mainly on the instigation of opposite party.  It is also quite evident that the complainant had approached the opposite party for getting this document by closing the loan on payment of entire amount.  Complainant adduced evidence that he had sent letter by himself and also legal notice through his counsel.  Ext.A1 notice issued by complainant and Ext.A2 acknowledgment, Ext.A3 lawyer notice etc goes to show that complainant demanded for original document closing the loan account. Opposite party did not make any response to these letters.  There is no justification for non-replying these notices.

          Anyhow, the original deed of the property has now been traced out and the opposite party is ready to return back the same.  The new development has its own consequential impact on the subject matter but the loss and sufferings on the part of complainant should also be considered to arrive at a conclusion.  Opposite party has expressed to waive a portion of interest upon the loan amount in order to settle the matter.  No doubt it is a positive approach.  But we feel that it is not sufficient enough to compensate the loss and hurdles suffered by the complainant.  We are not further digging deep into the matter but feel that the entire amount of interest should be waived in the interest of justice so as to meet the loss and sufferings of the complainant.  So we hold that there is deficiency in service on the part of opposite party and thus opposite party is liable to waive entire amount of interest upon the loan amount and settle the account on payment of principle amount.  The issues No.1 to 3 are found partly in favour of complainant.

          In the result, the complaint is allowed partly directing the opposite party to waive the entire interest upon the existing loan amount and settle the account on payment of principal amount.  Opposite party is further directed to return the original document closing the account and to pay an amount of `2000 (Rupees Two Thousand only) as cost of this proceedings.  Complainant shall be at liberty to execute the order on the expiry of 30 days as per the provisions of Consumer Protection Act.

          Dated this the 13^th day of December, 2013.

                       Sd/-                    Sd/-                     Sd/-

President              Member                Member

APPENDIX

Exhibits for the complainant

A1.  Copy of letter dated 27.12.2010.

A2.  Postal AD cards.

A3.  Copy of the lawyer notice sent to Ops dated 20.01.2011.

A4.  Duplicate certificate dated 27.7.12 issued by OP.

Exhibits for the opposite parties:

B1. Notarized affidavit.

B2. Copy of the reply notice dated 22.2.11 sent to complainant’s

      Advocate.

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties:

Nil

                    /forwarded by order/

          Senior Superintendent