D.o.F:3/6/2010
D.o.O:17/3/2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC 134/2010
Dated this, the 17th day of March 2011
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
N.T.Kunhiraman,
S/o M.Raman,
R/at Nellithavu House, Kuttikole Po, : Complainant
Kasaragod.
(Adv.Anantharaman,Kasaragod)
1. The Senior Manager,
Fedral Bank Ltd,
Kasaragod Branch,Kasaragod.
2. Antony Mankad,
Field Officer of Fedral Bank Ltd, : Opposite parties
Kasaragod Branch,Kasaragod
(Adv. C.H. Vishnu Bhat,Kasaragod)
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
The case of the complainant bereft of unnecessaries is as follows:
In 1999 complainant availed agricultural and housing loans from Ist opposite party on depositing title deeds of the properties with an agreement to return the same on discharge of loan. Opposite party later filed a suit before the sub court Kasaragod in 2006 against the complainant for the recovery of loan amount. The suit was decreed. Thereafter on 31/7/2007 complainant paid the entire amount due to opposite parties . At the time of payment opposite party promised to return the entire original title deeds of the complainant on the next day itself. Since the opposite party did not return the title deeds complainant thrice approached opposite parties bank but he was sent back without documents. On his last visit Ist opposite party demanded ` 45000/- for returning the documents. Surprised with this demand complainant asked the reason, then Ist opposite party directed him to meet 2nd opposite party for details. On contacting 2nd opposite party, he stated that only on payment of the amount suggested by the manager the documents will be returned. Because of the said demand complainant suffered mental pain agony and suffering. Complainant was in financial constraints and therefore he borrowed an amount of 4,00,000/- from one Balakrishnan Adiyodi to repay the loan due to opposite party. Complainant had an idea to avail another loan from another Bank or discharge the hand loan by selling a portion of the property . But due to non- return of documents complainant suffered and has paid more interest to Balakrishnan. Complainant had entered into an agreement for sale of his property with one K.T.Narayana and T.Radhakrishnan to dispose of his properties with an intention to repay the loan. But due to the illegal withholding of the title deeds complainant could not sell his property and therefore he had to pay compensation at high rate of interest to the proposed purchasers of his property and thereby lost more than `150,000/-. The opposite parties are responsible for all these losses and therefore they are liable to compensate him . Therefore the complaint claiming compensation and costs.
2. Opposite parties filed version denying all the allegations made by the complainant. According to opposite parties after closing the Execution petition filed before Sub Court Kasaragod by paying the entire amount to the opposite parties through Adv.Vishnu Bhat appearing for the Bank complainant has not come to the Bank till 16/6/10 to collect the documents which he deposited with the bank . But on 16/6/10 complainant filed a petition before the Bank under Right to Information Act asking the details of loan. Since RTI Act is not applicable to the bank it was endorsed on the application and returned to the complainant. He never asked for the return of documents deposited by him with the Bank on that day also. The opposite party is ready to return the documents mortgaged with the bank if he comes to the bank during the banking hours and acknowledges the same. The complainant has not approached the bank for the return of the documents mortgaged after the EP 68/2007 is closed on 14/8/2007 . This complaint is filed only to harass the opposite parties and therefore it is liable to be dismissed with the compensatory costs of the opposite parties.
3. Complainant filed proof affidavit in lieu of examination-in-chief as PW1. Exts.A1 to A3 marked on his side. He faced cross examination by learned counsel for opposite party Sri.C.H.Vishnu Bhat. On the side of opposite parties Mohammed Ansari the chief Manager of Fedral Bank, Kasaragod Brnach as DW1 and Antony Manakkat 2nd opposite party as DW2 filed proof affidavits. They subjected to cross examination by the learned counsel for complainant Sri.Anantharaman. Exts.B1 to B4 marked on the side of opposite parties. Both sides heard at length and documents perused carefully.
4. Ext.A1 is a loan agreement dtd 27/7/2007 executed by the complainant in favour of one Balakrishnan undertaking to repay a sum of ` 4,00,000/- with legal interest within a period of 2 years and in default creating a charge on his property situates in RS 67/IA of Karuvedakam. Ext.A2 is the photocopy of agreement dtd.28/9/2009 executed by complainant in favour of Radhakrishnan and K.T.Narayanan agreeing to sell 2 acres of land situated in RS 67/IA of Karuvedakam village for a consideration of ` 8,00,000/-. Exts.A3&B4 are one and the same and are the certified copies of the proceedings in EP 68/07 of sub Court Kasaragod.
5. The points arises for consideration in this case are
1. Whether thee is any deficiency in service on the part of opposite parties
2. Whether the complainant has sustained any loss on account of the acts of opposite parties if so what order as to relief and costs.
6. The case of complainant is that he borrowed ` 4,00,000/- for closing the loan from Ist opposite parties from one Balakrishnan on interest as per Ext.A1 agreement. It is also his case that to repay the said loan he intend to assign his property hence he executed Ext.A2 agreement. But the opposite parties did not return the title deeds even after closing the loan and 2nd opposite party demanded ` 45000/- for the return of document which he refused .
7. According to opposite parties complainant neither approached them to get back the title deeds after closing the loan nor he made any such prayer in the EP filed by him before the Sub Court. The learned counsel for opposite parties Sri.Vishnu Bhat contended that it is not the Bank who filed EP before the Sub court but it is filed by the complainant himself and that shows that he had sufficient amount to discharge the loan and the complainant never filed any petition nor approached the bank for the return of documents. According to him, Exts.A1&A2 are not agreements and they are concocted for the purpose of the case since they are prepared in old stamp papers. Ext.A1 is dtd.27/7/07 but the stamp paper is purchased on 9/12/2005 in the name of complainant himself, similarly Ext.A2 is dtd.28/9/09, but the stamp paper is purchased on 12/1/2006.
8. On closely scrutinizing Ext.A1&A2 we also feel that they are not executed in due course and it is created for the purpose of the case. According to complainant as per Ext.A1 he borrowed a sum of ` 4,00,000/- on 27/7/07 and he repaid it with interest ` 1,00,000/-on 30/9/09. That means the rate of interest 12.5% per annum approximately. The interesting aspect is that it is the complainant himself filed EP to refund the loan with interest and not vice verse. The further interesting aspect is that after the decree in the suit filed by the Ist opposite party against him, for major portion of the decreed amount the complainant need only to pay interest @6% whereas for the loan he borrowed for closing the loan as per Ext.A1 the interest paid is @12.5%. It is not believable that for voluntarily discharging a liability which is having a lower rate of interest complainant availed a loan which has an interest more than double. The complainant nowhere explained about any benefit if any enjoyed by him by voluntarily discharging the suit liability.
9. Further using old stamp papers for executing Exts.A1&A2 also casts serious doubts on the veracity of Ext.A1. The definite case of the complainant is that 2nd opposite party claimed ` 45000/- to return the documents is also not probable or believable because nobody would pay such a big amount as gratification for getting back the documents after closing the loan.
10. The learned counsel for complainant Sri.Anantharaman relied on the decision of Hon’ble National Consumer Disputes Redressal Commission reported in 2003(1) CPR 320 (NC) in the case of DOSON Chemicals Pvt Ltd & Ors vs. United Bank of India & Anr and argued that the said case is also was one against the non return of documents and in that case the bank was penalized for not returning the documents. He further argued that the said decision is squarely applicable to the instant case. But on going through that it is seen that in that complaint the complainant had established that they were demanded for the return of documents after closing the loan.. But nothing was done by the bank. Further the bank returned the documents only when the complaint was filed by the complainant before State Commission.
11. But in the instant case as rightly contended by learned counsel for opposite parties Sri. C.H.Vishnu Bhat neither in the Execution Petition filed by the complainant before the Sub Court Kasaragod for recording Full Satisfaction of the decree in the case nor in the petition filed by him before the bank under the RTI Act he made a prayer for the return of documents. In the absence of the same we are unable to hold that there is any deficiency in service on the part of opposite parties in not returning the documents.
12. However in the version the opposite parties had submitted that they are ready to return the documents mortgaged with the bank if he comes to the bank during banking hours and acknowledges the same.
In the circumstances we feel that it is appropriate to direct the opposite parties to produce all the documents title deeds and other related documents submitted by the complainant before the Forum.
Hence the complaint is allowed to that extent and opposite parties are directed to produce all the documents and title deed deposited by complainant with them for the loan before the Forum within 30 days from the date of receipt of copy of the order with due notice to complainant. Failing which opposite parties shall be further liable to pay ` 25,000/- to the complainant as compensation. On producing the documents complainant can take back the same on proper acknowledgment.
Sd/ Sd/
MEMBER PRESIDENT
Exts:
A1&A2- original & copy of Agreement
A3-Copy of Execution petition
B1-copy of receipt
B2-copy of application issued by PW1 for RTI
B3-copy of pay in slip
B4- Ext.A3
PW1- N.T.Kunhiraman-complainant
DW1-Mohammed Ansari.P.K-witness of OP1
DW2-Antony Manakat- 2nd OP
Sd/ Sd/
MEMBER PRESIDENT
eva
/Forwarded by Order/
SENIOR SUPERINTENDENT
