BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 10^th DAY OF JUNE 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainants have filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OP) with a prayer to direct the OPs to pay them compensation of Rs.1,00,000/- and to return all the original documents of title along with other related documents which are already in their possession.

 2. The brief averments made in the complaint are as under:

The complainant’s together purchased a residential apartment bearing Flat No.3103 in block No.9, in a residential complex known as ‘Janapriya Township’ situated at Kadabhagere Village, Dasanpura Hobli, Machohalli Village, Bangalore North Taluk under a registered sale deed dated 06^th March 2006 from Smt.Kiran Guptha W/o Sangeeth Guptha.  That the vendor of the complainants have availed loan for purchasing the said flat from OP-1 Bank in the year 1996-97 by depositing all the title deeds, mother deed and other related documents to the said Bank.  The complainants purchased the above said flat by availing housing loan from OP-1 in the year 2006.  At the time of purchase the said flat was already mortgaged to the OP-1 and the balance outstanding in the housing loan account of the vendor was closed and the same flat has been further mortgaged to OP-1.  All the original documents of the said flat that were deposited by the vendor of the complainants were with the Bank as charge has been created over the property.  Since all the original documents having been already deposited with the OP-1, the complainants further deposited the original sale deed with the OP-1 Bank.  In the legal opinion dated 02.03.2006 given to Smt.Kiran Gupta while purchasing the above mentioned flat by her, a reference has been made to 27 original documents and has been further observed that OP-1 Bank is having charge over the property and the original documents at serial No.1 to 26 mentioned in the opinion are already deposited with OP-1.  The complainants cleared the loan which they have availed for purchasing the said flat, OP-1 issued them a letter of closure of Housing Term loan account and also issued a certificate stating that complainants have closed their housing term loan account on 07.06.2012 and not having any dues as on date in respect of the housing term loan as on the said date.  On account of closure of the housing loan account, OP-1 returned only 3 documents namely original sale deed dated 06.03.2006, valuation report (original) and encumbrance certificate and OP-1 made reference to that effect by its letter dated 26.07.2012 by referring to the requisition given by the complainants on 11.06.2012 requesting for return of original documents referred to in the legal opinion dated 03.02.2006.  That the complainants were constrained to sell the property in favour of one Smt.Vijayalakshmi W/o Dilip for a sale consideration of Rs.5,85,000/- and they are under pressure now to hand over all the original titles and other related documents of the said Flat to their purchaser Smt.Vijayalakshmi.  In this connection the complainant’s have been approaching the OPs for returning of the original documents sought for by them in their requisition dated 11.06.2012.  But the OPs by returning the original sale deed dated 06.03.2006, encumbrance certificates and valuation report in originals are not taking any keener interest to return other relevant documents of title sought for by the complainants in their requisition.  Due to callousness and negligence on the part of the OPs in not returning the original documents required by the complainant’s they have been put to severe mental stress and hardship as they are having apprehension of misuse of the original documents of title deposited with OPs.  The OPs are under obligations to the complainants for returning all the original documents of title referred to in the legal opinion referred above.  The conduct of OPs amounts to deficiency of service.

For the reasons stated above, the complainants pray for an order directing the OPs jointly and severally to pay them Rs.1,00,000/- compensation towards deficiency in service and also direct them to return all the original documents of title with other related documents which are in their possession as referred to in the legal opinion.

3. In response to the notice issued the OPs entered their appearance through their advocate and filed their version contending in brief as under:

The complainants are fully aware that the title deeds deposited by them as equitable mortgage at the time of availing the housing term loan have been returned to them by the Bank immediately upon the closure of the loan.  The complainants have also duly acknowledged the receipt of the documents from OP Bank.  Despite having the said knowledge and solely relying upon the title investigation report/legal opinion issued by the advocate wherein the documents scrutinized have been mentioned, the complainants have filed this false and malicious complaint.  The complainant being a retired banker is fully aware that all the documents mentioned in the title investigation report/legal opinion were in fact not deposited and are not possible to be deposited as equitable mortgage, as these documents pertain to the entire (larger property) and not only to the apartment in question which the complainants own.  As per banking requirements the original title deeds are scrutinized to ascertain its genuineness and veracity and they are not required to be deposited for equitable mortgage.  In addition when an equitable mortgage is created, the borrower is provided with an acknowledgement for having deposited the documents which the complainant has also been given.  The complainants have deliberately suppressed this crucial document only to foist this false case against the OPs.  That only two title deeds were deposited by the complainants and title deeds have been duly returned.  In fact the complainants have themselves produced the documents dated 11.06.2012 to the complainant wherein they admitted that the original sale deed dated 06.03.2006 and two other documents have been returned to them.

A perusal of above referred legal opinion would clearly show that all the documents mentioned at serial Nos.1 to 27 do not pertain to the apartment of the complainants, except documents at serial No.18, 19, 25 and 27.  The documents at serial No.23 & 24 are encumbrance certificates.  The legal opinion clearly states that an equitable mortgage can be created by deposit of the said six documents i.e., documents at serial Nos. 18, 19, 23, 24, 25 & 27.  In addition to the said documents the complainant has deposited the sale deed which was registered in their favour pursuant to sanction of loan.  Further the legal opinion would show that the documents mentioned at serial No.1 to 7 are sale deeds executed in favour of M/s. Engineers Syndicate India Pvt. Ltd.  These sale deeds pertain to the larger property (entire property) on which the apartment purchased by the complainants was built i.e., entire apartment complex called as Janapriya Township.  The documents at serial No.8 to 13 & 15 are sale deeds pertaining to the earlier owners of the same property (entire property).  The documents at serial No.14, 16, 17, 18, 20 & 21 are pertaining to extracts from the registers maintained by the local authority pertaining to the tax demand for the said larger property.  The documents at serial No.22 to 24 are encumbrance certificates pertaining to the said property.  The documents at serial No. 25 to 27 are documents of building plans and agreement to sell.  Thereby it is very clear that the above said documents do not pertain to the apartment purchased by the complainants but pertains to the entire apartment complex.  Therefore, it is clear that these documents are not title deeds which the complainants would have in their possession.  These documents are handed over by the owners/developers to the association of apartment owners which is formed after the entire complex is constructed.  Therefore, it is crystal clear that the complainants are trying to make quick money by filing this frivolous and false complaint knowing fully well that these documents were never in their possession and that they have never deposited them with the OPs.

For the aforesaid reasons, the OPs prayed for rejection of complaint with compensatory cost against the complainants.

4. After the version was filed, the complainants were called upon to submit their evidence by way of affidavit.  Accordingly complainant No.1 submitted his affidavit evidence in lieu of oral evidence.  The OPs got filed the affidavit evidence of their Chief Manager in support of the averments made in the version.  The complainants filed their written arguments.

5. On the rival contention of both the parties, the points that arise for our determination in this case are as under:

        6. Perused the allegations made in the complaint, averments made in the version, sworn testimony of both parties, written arguments submitted on behalf of complainant, various documents relied upon by both sides and other materials placed on record.

7. Our answer to the above issues are as under:

REASONS

8.  It is not in dispute that the complainant purchased flat No.3103 in block No.9 situated at ‘Janapriya Township’ constructed in survey No.10/1 at Kadabhagere Village, Dasanpura Hobli, Machohalli Village, Bangalore North Taluk from one Smt.Kiran Guptha on 06.03.2006 for a valuable consideration of Rs.3,60,000/-.  At the time of purchasing the said flat it was already mortgaged to the first OP by the vendor, Smt.Kiran Gupta and at the time of purchase the balance outstanding in the housing loan account was paid and the said account was closed.  The complainants raised loan for the purpose of purchasing the said flat by mortgaging the said flat in favour of OP-1.  It is averred by the complainants that, all the original documents of the said flat were already deposited by vendor with OP-1 Bank as there has been mortgaged over the said property.  It is further averred that since all the original documents were already deposited with the OP-1 Bank, the complainants further deposited the original sale deed executed in their favour by Smt.Kiran Gupta with OP-1 Bank.

9. Admittedly the complainants have repaid the entire loan borrowed by them for purchasing the said flat from OP-1 Bank for which OP-1 issued a letter of closure of housing term loan account to OP-2 on 07.06.2012 and also issued a certificate stating that complainants have closed housing term loan on 07.06.2012.  On account of the closure of the housing loan account, OP-1 Bank with whom the said flat was mortgaged, returned three documents namely, original sale deed dated 06.03.2006, valuation report (original) and encumbrance certificates to the complainants.  The complainants claimed that OP-1 Bank instead of returning all the original documents have returned to them only three documents, as stated above, with certain malafide intention and the complainants apprehend that the said documents which are still in the custody of OP-1 Bank are likely to be misused.  OP-1 Bank contended that they did not have in their possession any other document other than the documents which have been returned on closure of the loan account by the complainant and therefore they are not liable to return any documents to the complainants pertaining to the said flat as none such documents are in their custody or possession.

10. The complainants’ claim that the OPs are in possession of all the documents referred to in the legal opinion dated 03.02.2006 issued by Smt.Renuka R Desai, Advocate.  The copy of the legal opinion issued by Smt.Renuka R Desai, advocate is produced by the complainant as Annexure-B.  While providing the legal opinion regarding the flat in question at the time when the complainants were to purchase the same from their vendor Smt.Kiran Gupta, the learned advocate has referred to 27 documents.  The learned advocate at the end of her legal opinion has stated thus,

“The applicants has to deposit the original sale deed soon after the same is executed in their favour along with tax paid, khatha certificate, upto date Nil EC standing in their names along with all documents listed in Sl. No.18, 19, 23, 24, 25, 27 and remaining all Xerox copies mentioned in para No.1 with the bank.  After the same is released from State Bank of India, Kumara Park Branch, Bangalore, a valid equitable mortgage can be created”.

11. The learned advocate for the OPs referring to the opinion expressed by the said advocate who has given her legal opinion argued that all the documents mentioned in the said legal opinion have not been deposited at all with the OPs, as the document at serial No.18, 19, 23, 24, 25 & 27 alone with zerox copies of remaining documents were sufficient to create a valid equitable mortgage.  He further argued that the remaining documents referred to above in the legal opinion pertains to the larger property upon which the entire residential complex has been constructed by M/s.Engineers Syndicate India Pvt. Ltd.  He further submitted that the documents which pertain to the larger extent of property are not necessary to be deposited with the Bank for the purpose of creating equitable mortgage in respect of the flat in question.  He further submitted that, at the time of deposit of the relevant documents by the complainants an acknowledgment has been issued to them and the complainants have deliberately suppressed that acknowledgement and were trying to claim certain original documents which were never deposited with the OP.

12. Admittedly at the time of accepting relevant documents for the purpose of creating equitable mortgage the Bank will issue an acknowledgment for having received the documents.  Such an acknowledgment is proof of the actual documents deposited with the Bank.  The complainant for the reasons best known to them did not produce such acknowledgment issued by the OPs Bank.  It is also not their case that the OP Bank has not issued any such document.  Moreover no where it is stated in the above mentioned legal opinion that all the documents referred to in the said opinion are either already deposited with the OP Bank or required to be deposited with OP Bank for creating equitable mortgage in respect of flat No.3103 situated in ‘Janapriya Township’.  The complainants have also not produced any documents to substantiate that their vendor Smt.Kiran Gupta had deposited any such documents as referred to in the legal opinion, with OP Bank while availing loan.  The complainants also do not examine their vendor Smt.Kiran Gupta to substantiate their allegation that she had deposited any such documents with OP Bank while creating equitable mortgage in respect of the flat No.3103.  Merely because certain documents have been referred to in the legal opinion does not itself mean that all such documents have been deposited with the OP Bank by the complainants just for creating equitable mortgage in respect of flat No.3103.  As rightly pointed out by the learned counsel for the OPs that the documents at serial No.14, 16, 17, 18, 20 & 21 referred in the said legal opinion pertain to the extracts from registers maintained by local authority pertaining to the tax demand for the said larger extent of property upon which the residential complex has been constructed.  Except documents at serial No.18, 19, 25 & 27, remaining documents referred to in the legal opinion does not pertain to flat No.3103.

13. As already stated above, the learned advocate in her legal opinion as categorically stated that, the documents listed at serial No.18, 19, 23, 24, 25 & 27 are sufficient to create a valid equitable mortgage in respect of said flat.  Under these circumstances one cannot believe the contention of the complainants that all those documents referred to above in the legal opinion have been deposited with the OPs while raising loan.  The complainants have miserably failed to prove that the documents at serial No.1 to 27 were deposited by them with the OPs at the time of raising loan by creating equitable mortgage in respect of flat No.3103.  We don’t find any deficiency of service on the part OPs.  The OP-1 Bank has returned all those documents which have been deposited with them by the complainants, as listed in their letter.  We don’t find any merits in the complaint.  Therefore, the same is liable to be dismissed.

14. The order could not be passed within the stipulated time due to heavy pendency.      

15. In the result, we proceed to pass the following:

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is dismissed.  Under the circumstances of the case, the parties are directed to bear their own costs.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 10^th day of June 2016)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainants dated 27.11.2014.

1. Smt. Sandhya Rajeev.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite parties dated 26.12.2014.

1. Sri.Shriram H Parvatkar.  

Document produced by the Opposite parties:

MEMBER                            MEMBER                    PRESIDENT

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