DATE OF FILING : 26.4.2010.

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 31^st day of July, 2010

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.90/2010

Between

Complainant : 1. Balakrishnapillai, S/o Madhavan Pillai,

Attupurath House,

Sanniyasioda P.O.,

Idukki District.

2. Girijakumariamma, W/o Balakrishnapillai, Attupurath House,

Sanniyasioda P.O.,

Idukki District.

(Both by Adv: Benny Joseph)

And

Opposite Parties : The Secretary,

Balagram Service Co-operative Bank Ltd.

No.I-150,

Balagram Branch,

Balagram P.O.,

Idukki District.

(By Adv: V.M. Joy Mon)

O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

The complainant availed two loans bearing numbers ORL-162/05 and ORL-163/05 for a total amount of Rs.15,000/- from the opposite party, on the security of Original Settlement Deed No.2455/95 of Udumbanchola S.R.O., dated 10.10.1995 in favour of the 1^st complainant, Original Sale Deed No.759/91 of Udumbanchola S.R.O., dated 4.4.1991 in favour of the complainants 1 and 2, and Original Sale deed No.895/90 of Udumbanchola S.R.O., dated 30.4.1990. The complainants have remitted the entire loan amount with interest on 6.3.2010. Some portion of the loan amount was made write off as per the Agricultural Debt Relief Scheme of the Central Government and there is no due for the loan availed by them. After remitting the amount, the complainants demanded back the original title deeds entrusted towards the security for the loan, but the opposite party denied the same stating some unsustainable reasons. The opposite party is bound to return the original documents to the complainants and is not at all entitled to withhold it. The complainants entrusted their documents solely for the security of the above numbered loans in 2005. The complainant filed a representation to the Assistant Registrar of the Co-operative Department. But there is no result for the same. The act of the opposite party made huge loss to the complainants, they were not able to mortgage the property in any other bank for obtaining money for educational expenses of their children. It is learnt that the opposite party's prior president, P.N. Gopalakrishnan Nair had availed a loan of Rs.5,000/- in the name of his labourers namely Ushakumari and Sathyanesan during the year 2000. In the said transaction the 1^st complainant also arrayed as a surety under the instigation of the prior president. The opposite party did not initiate any steps against the loanees in time and hence it is a time barred debt. Moreover, there is no security documents given to the opposite party in that loan transaction. So the petition is filed for getting back the documents pledged by the complainants at the opposite party bank and also for compensation.

2. As per the written version of the opposite party, it is admitted that Sri. Balakrishna Pillai and Girijakumariamma both are members of the opposite party, Balagram Service Co-operative Bank Ltd. During the year 2000, one Smt. Ushakumari residing at Lakshmibhavan, Sanniyasioda, availed a loan vide No. OL-55/00 for an amount of Rs.5,000/- on the personal security of Mr.Balakrishna Pillai and Mr.Sathyanesan. This loan is not closed till day. Moreover this loan became due for a total amount of Rs.16,199/-. The complainants had taken two loans bearing number ORL-162/05 and ORL-163/05 for an amount of Rs.15,000/- from the opposite party, on security of Original settlement deed No.2455/95 of Udumbanchola SRO dated 10.10.1995 in favour of the 1^st complainant, Original Sale Deed No.759/91 of Udumbanchola SRO dated 4.4.1991 in favour of 1^st and 2^nd complainants and Original Sale Deed No.895/90 of Udumbanchola SRO dated 30.4.1991 and other related documents. The said two loans were closed on 6.3.2010, but the OL-55/2000 is not yet closed. The opposite party had taken so many steps to recover the above said loan No. OL-55/00, but loan No. OL-55/00 is not yet closed. The opposite party had sent so many registered demand notice to the principal debtor and sureties. They are not ready to close the loan No. OL-55/00. It is revealed that the principal debtor in loan No. OL-55/00, Smt. Ushakumari is passed away and she has no property existing. The opposite party can not recover the debt due from the principal debtor so the opposite party had taken ARC steps against the principal debtor and sureties, this proceeding is still pending before the Assistant Registrar, Co-operative Societies, Udumbanchola in ARC No.819/2010. Moreover, the complainant never approached the opposite party or never filed application for getting the title deed and there is no deficiency from the part of the opposite party.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

4. The evidence consists of the oral testimony of PW1 and Exts.P1 to P7 marked on the side of the complainant and oral testimony of DW1 and Exts.R1 to R9 marked on the side of the opposite parties.

5. The POINT :- The complaint is filed for getting back the title deeds deposited by them for the security of the loan availed by them. The complainant is examined as PW1. PW1 availed a loan of Rs.15,000/- from the opposite party bank by pledging original settlement deed No.2455/1995 of Udumbanchola SRO in the name of the 1^st complainant, Original Sale Deed No.759/91 of Udumbanchola S.R.O., in the name of the complainants 1 and 2, and Original Sale deed No.895/90 of Udumbanchola S.R.O., in the name of the wife of the complainant. The complainants paid the entire loan to the opposite party on 6.3.2010, Ext.P1 (series) is the copy of  the receipts issued by the opposite party for the same. Some portion of the loan amount was included in the write off scheme as per the Agricultural Debt Relief Scheme of the Central Government. So there is no due for the complainants in that loan account. PW1 demanded back their original title deed entrusted towards security for the loan, but the opposite party denied the same. Exts.P2 and P3 are copy of the letters given to the opposite party by the complainant for getting back their documents. A complaint was given to the Assistant Registrar of Co-operative Department for getting back the documents by the complainants on 8.3.2010 and copy of the same is marked as Ext.P4. Ext.P5 is the copy of the reply issued from the Assistant Registrar (General), Udumbanchola, stating the matter has been enquired to the opposite party. The opposite party filed an arbitration case before the Assistant Registrar on 30^th April, 2010. Ext.P7 is the written statement filed by the 1^st complainant before the Assistant Registrar of Co-operative Societies, Udumbanchola. The opposite party is examined as DW1. DW1 admitted that the complainants availed two loans from the opposite party bank as ORL-162/05 and ORL-163/05 by pledging their title deeds before the opposite party bank. That loans were closed by the complainant on 6.3.2010. But one Smt. Ushakumari, Lakshmibhavan, Sanyasioda, availed a loan from the opposite party bank as OL-55/2000, in which the 1^st complainant is the surety. The said loan became due and several notices were issued to the said Ushakumari, her surety, Balakrishna Pillai and also to another surety Sathyanesan. But they never turned up. On enquiry, it is revealed that the said Ushakumari was expired, her husband and 2^nd surety is not at station. And also revealed that there is no movable or immovable property in the name of Ushakumari. So the opposite party filed an ARC before the Assistant Registrar of Co-operative Societies as ARC No.819/2010 against Ushakumari and Sathyanesan and it is posted for Orders. The complainant never filed a proper application before the opposite party to get back the documents. As per the decision of the Directors Board Committee on 23.3.2010, it is decided to give back the documents of the complainant only after receiving the dues in the loan OL-55/00. It is availed by Smt.Ushakumari. Ext.R1 is the copy of the ledger of the loan availed by Smt.Ushakumari, and the application and bond signed by the 1^st complainant in that loan is produced as Ext.R2(series). The statement showing the liability of Ushakumari is marked as Ext.R3. Ext.R4 is the copy of the letter issued from the bank to the 1^st complainant demanding the loan amount of said Ushakumari and copy of its AD card. Ext.R5 is the copy of the letter given to the opposite party bank by the complainant in order to exempt him from the payment of the loan availed by Ushakumari. Ext.R6 is the prescribed Form for applying the title deed from the opposite party bank. The notice issued for the Arbitration proceedings against the complainant is marked as Ext.R7. Directors Board committee has decided to keep the documents of these complainants in order to realise the amount of Rs.16,000/- as the due account of Ushakumari and Sathyanesan and the copy of that decision is marked as Ext.R8. Bye-law of the Co-operative Societies is marked as Ext.R9.

As per the complainants, they have availed two loans from the opposite party and they had repaid the same on 6.3.2010. So they are entitled to get back the documents filed as security for the loan. As per the opposite party, the 1^st complainant, who is a surety of the loan availed by one Ushakumari, as loan No.OL-55/00. The said Ushakumari expired and her husband, the other surety of the loan is not at station. On enquiry, it is revealed that no property is belong to the said Ushakumari and her husband. So the Director Board of the bank decided to keep the documents of the complainant as security to realise Rs.16,000/- as due loan amount of Ushakumari. Ext.R8 is the copy of the decision. But as per the complainant, the loan availed by the complainants were closed and the loan availed by the said Ushakumari was in the year 2000. No notice received from the opposite party to the complainants about the due amount of the loan of the said Ushakumari. No action has been taken by the opposite party bank for recovering the amount of Ushakumari which was availed in the year 2000. So the bank is not entitled to recover the same because it is barred by limitation. The surety for the loan of Ushakumari is only the 1^st complainant, the property of both the complainants, property of the 1^st complainant and property owned by the 2^nd complainant were also keeping by the bank for recovering the loan of the said Ushakumari. As per the opposite party, they have issued notice to the 1^st complainant under registered post for getting back the dues of the said Ushakumari, which is Ext.R4. The copy of the complaint and copy of the postal AD card are also produced. It is dated 10.9.2002 and 28.9.2002 respectively. Another notice was issued on 11.3.2010, which is in ordinary post. The ARC proceedings are also initiated against the complainant for recovering the loan and the notice was issued as per Ext.R7.

So we think that the arbitration proceedings were initiated only on 30^th April, 2010, after filing this complaint before this Forum. The notice issued by the opposite party to the complainant for getting back the dues of the said Ushakumari is on 10.9.2002 and postal AD card is dated on 28.9.2002. As per the counsel for the complainant the postal AD card is of the letter for reminding the dues of the loan of the 1^st complainant and not of Ushakumari, even it is written in the top portion that, surety – OL-55/00 Ushakumari. The learned counsel for the complainant argued that the handwriting written in address portion and written in the top most corner of the AD card are different and no such Ext.R4 notice has been received by the complainant for demanding the loan of Ushakumari. Another copy of the notice produced by the opposite party for the due of loan of Ushakumari which is dated 11.3.2010, but it is not a registered one. So we think that the loans of the complainants were closed by them on 6.3.2010 and an application was filed by the complainant for getting back the documents as per Ext.P4. After getting the same, the opposite party decided to keep the documents of the complainant in lieu of the loan availed by the said Ushakumari. But there is no evidence produced by the opposite party to show that they have proceeded against the complainant in the loan of said Ushakumari from 2002 onwards. Only evidence is the copy of the AD card and copy of the letter which is Ext.R4, which is in the year 2002 and the complainant denied the AD card because it is the AD card for reminding the loan of the complainant. Another copy of the letter produced dated 11.3.2010, but there is no AD card or postal receipt produced for the same. Arbitration proceedings were also initiated only on 30^th April, 2010, that is after when the complainant filed application for getting back the documents. There is no notice produced by the opposite party to show that they have continuously proceeding against the complainant for the dues of the loan of the said Ushakumari and they have the right to keep the documents up to the closing of the loan of the said Ushakumari. So there is 10 years already expired after the disbursement of the loan of the said Ushakumari and no proceedings has been initiated against the complainant by the opposite party bank. There is no evidence produced by the opposite party to show that the property of the complainants were mortgaged by them to the opposite party for getting the loan for the said Ushakumari. 1^st complainant was only a personal surety. Even the notice issued by the opposite party is considered, it was only on 2002. The opposite party never proceeded against the complainants for getting back the money in the mean time. So it is a time barred debt.

The entire loan of the complainant were repaid by the complainant and they filed an application for getting the same. So the opposite party is bound to return the documents given as security at the time of availing the loan. It is a gross deficiency from the part of the opposite party to keep the documents of the 2^nd complainant, because she is not a party to the loan transaction between the bank and Ushakumari.

Hence the petition allowed. The opposite party is directed to return the documents which are pledged by the complainants at the time of availing the loan, to them and Rs.2,000/- as cost of this petition within 30 days of receipt of a copy of this order failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 31^st day of July, 2010.

Sd/-

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

Sd/-

SMT. SHEELA JACOB (MEMBER)

Sd/-

SMT. BINDU SOMAN (MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - Balakrishna Pillai.

On the side of Opposite party :

DW1 - P. Georgekutty.

Exhibits :

On the side of Complainant :

Ext.P1 - Copy of the receipts issued by the opposite party for the repayment of the loans.

Ext.P2 - Copy of the letter from the complainant to the opposite party, dated 6.3.2010.

Ext.P3 - Copy of the letter from the complainant to the opposite party, dated 13.3.2010.

Ext.P4 - Copy of the letter from the complainant to the Assitant Registrar of Co-operative Department (General), Nedumkandam, dated 8.3.2010.

Ext.P5 - Copy of the letter from the Assistant Registrar (General), Udumbanchola, to the complainant, dated 24.3.2010.

Ext.P6 - Copy of the arbitration case filed by the opposite party before the Assistant Registrar of Co-operative Societies, Udumbanchola, dated 30.4.2010.

Ext.P7 - Copy of the written statement filed by the 1^st complainant before the Assistant Registrar of Co-operative Societies, Udumbanchola, dated 30.6.2010.

Ext.R1 - Copy of the ledger of the loan availed by Smt.Ushakumari, issued by the opposite party.

Ext.R2(series) - Copy of the loan application and bond signed by the 1^st complainant for the loan of Ushakumari.

Ext.R3 - The statement showing the liability of Ushakumari, issued by the opposite party.

Ext.R4 - Copy of one Postal AD card and copy of two letters from the opposite party to the complainant dated10.9.2002 and 11.3.2010 respectively.

Ext.R5 - Copy of the letter from the complainant to the opposite party, dated 3.3.2010.

Ext.R6 - The prescribed Form for applying the title deed from the opposite party bank.

Ext.R7 - The notice issued for the Arbitration proceedings against the complainant.

Ext.R8 - The 33^rd decision of the Board Meeting of the opposite party bank conducted on 23.3.2010.

Ext.R9 - Bye-law of the Balagram Service Co-operative Bank Ltd. No. I.150.