BEFORE THE ADDITIONAL BENCH OF A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD.
F.A.No.1118/2008 against C.C.No.337/2008, District Forum-1, Hyderabad
Between:
A.Kannabiran, Died as per LRs.
1. Smt. A.Sarada Devi,
W/o. Late. A.Kannabiran,
Aged about : 78 years, Occ:Household,
2. Ms.A.Saraswathi,
D/o.Late A.Kannabiran,
Aged about : 48 years, Occ:Household,
3. Mr.A.K.Raghavan,
S/o.Late A.Kannabiran,
Aged about : 44 years, Occ:Unemployed,
4. A.K.Ramesh,
S/o. Late A.Kannabiran,
Aged about : 41 years, Occ:Business,
All R/o. H.No.1-11-252/49, Motilal Nagar,
Begumpet, Secunderabad. ..Appellants/
Complainants
And
State Bank of India, R.P.Road Branch,
Secunderabad-500 03, rep. by its
Chief Manager. Respondent/
Opp.party.
Counsel for the Appellants: M/s.R.Subramanian
Counsel for the Respondent:Mr.Vamaraju Srikrishnudu.
F.A.No.252/2009 against C.C.No.337/2008, District Forum-1, Hyderabad
Between:
State Bank of India,
Secunderabad Branch , Panty Circle,
Represented by its Asst. General Manager,
Secunderabad -500 003. …Appellant/
Opp.party
And
A.Kannabiran, Died as per LRs.
1. Smt. A.Sarada Devi,
W/o. Late. A.Kannabiran,
Aged about : 78 years, Occ:Household,
2. Ms.A.Saraswathi,
D/o.Late A.Kannabiran,
Aged about : 48 years, Occ:Household,
3. Mr.A.K.Raghavan,
S/o.Late A.Kannabiran,
Aged about : 44 years, Occ:Unemployed,
4. A.K.Ramesh,
S/o. Late A.Kannabiran,
Aged about : 41 years, Occ:Business,
All R/o. H.No.1-11-252/49, Motilal Nagar,
Begumpet, Secunderabad. ….Respondents/
Complainants
Counsel for the Appellant :M/s.Vamaraju Srikrishnudu
Counsel for the Respondents : Mr.R.Subramanian
QUORUM: SMT.M.SHREESHA, MEMBER
&
SRI K.SATYANAND, MEMBER
WEDNESDAY, THE SIXTEENTH DAY OF DECEMBER,
TWO THOUSAND NINE
(Typed to the dictation of Sri K.Satyanand,Hon’ble Member)
***
These two appeals are disposed of by a common order since both the appeals arise out of the same C.D
The appeal i.e. F.A.No.252/2009 was filed by the opposite party bank assailing the order of the District Forum directing it to return the title deeds that it came into possession as mortgage security by deposit of title deeds believing the case of the complainants that the debt in respect of which they came to be withheld by the bank had come to be extinguished.
The facts that led to filing this appeal are briefly as follows
The husband of the first complainant and father of complainants 2 to 4 during his life time availed loan from the opposite party bank by depositing the title deeds bearing document No.558/1961 dated 25.3.1961 . Subsequently the said loan amount was disputed and the opposite party filed a civil suit in Additional Chief Judge Court at Secunderabad and it was dismissed. Based on conclusion of the suit, the opposite party ought to have returned the original documents deposited with them but it failed to return the same. It is the case of the complainants that they could not utilize the property for the business or for other useful purposes and also lost income from the said property. The complainants therefore got issued a legal notice dt.10.7.2007 for which the opposite party sent a reply dt. 2.8.2007 informing that they have taken the matter with the concerned authorities and would revert back shortly, but it had not taken any steps in this regard. Hence the complainant filed the claim seeking direction to the opposite party to return the original document bearing document No.558/1961 dt. 25.3.1961 in respect of the premises bearing no. 12-11-526, Warasiguda, Secunderabad, which is in the custody of the opposite party, to award damages of Rs.18 lakhs and to award costs.
Opposite party was called absent and was set exparte.
In support of their case, the complainants filed their affidavit and relied upon documents marked as Exs.A1 to A3. The opposite party on the other hand remained absent.
On a consideration of the evidence adduced by the complainants, the District Forum allowed the complaint party directing the opposite party to return the original documents bearing registration No.558/1961 dt. 25.3.1961 forthwith to the complainants along with Rs.50,000/- towards compensation and Rs.2000/- towards legal expenses
Dissatisfied with the said order, the complainants filed F.A.No.1118/2008 and it was dismissed on 02-6-2009 for non prosecution and restored as per order in FA.I.A.No.2150/2009. The complainants in their grounds stated that the appellants could not make use of the original title deeds for more than three decades and till today the title deeds are in the custody of the bank and the Forum erred in granting a meager compensation.
The opposite party bank on the other hand filed F.A.No.252/2009 contending that the District Forum passed the order without verifying any material and that O.S.No.114/1974 filed by the bank was decreed in respect of the subject property and also about the appeals in C.C.C.A.No.122/1981 filed by the bank in respect of some other property and C.C.C.A.No.103/1982 filed by the borrower which was not brought to the notice of the District Forum by the complainants. It submitted that once mortgage is always mortgage unless it is redeemed and as per the decree of the Addl.Chief Judge, C.C.C. Secunderabad, Sri A.Kannabhiran is still due the loan amount amount to the bank as per the decree dated 27-9-1980 which was later confirmed by the Hon’ble High Court.
Heard.
The points that arise for consideration in these appeals are:
1. Whether the District Forum was justified in directing the opposite party to return the title deeds that it came into possession as mortgage security by deposit of title deeds believing the case of the complainants that the debt in respect of which they came to be withheld by the bank had come to be extinguished.
2. Whether the compensation awarded by the District Forum is inadequate and liable to be enhanced?
The appellant tried to find fault with the District Forum by saying that the District Forum ought not to have assumed jurisdiction as there were complicated questions of fact that would more aptly be decided by the civil court as in contrast the consumer forum was handicapped in its summary jurisdiction. The very ground is fallacious as once a dispute is identifiable as a consumer dispute, the consumer forum will have the entire jurisdiction to adjudicate the matter and the shortcomings that are sought to be read into the procedure before a District Forum are simply imaginary. The present case itself establishes the fallacy of such an argument. It is the case of the complainants that the recovery proceedings initiated by the opposite party bank had ended in extinguishment and they did not have justification any more to hold fast to the documents as the release of the documents should abide by the result of the litigation. On the other hand, the bank even while admitting that its final decree petition for the sale of the property came to be dismissed for default tried to justify not in the grounds but in the oral arguments that its lien over the documents nevertheless remained in tact so long as the debt remained un-discharged. In order to expand this theme, the bank perhaps tried to make a dichotomy between the remedy and the right. In other words, it tried to justify its lien over the documents notwithstanding a set back actuated by the dismissal of its final decree petition before the civil court.
Before articulating on the rival contentions, it is necessary to clarify few facts which more or less remained uncontroversial and therefore conclusive. The deceased first complainant borrowed some loan from the bank and deposited these title deeds. The bank sued him in a civil court and obtained a preliminary decree. The said preliminary decree is marked as Ex.B1, the corresponding judgement is marked as Ex.B2 now in this appeal. Strangely the appellant bank suppressed the order in the Final decree petition that it filed seeking the sale of the mortgaged property when the deceased 1st complainant failed to avail the opportunity of redemption. It is quite understandable why it suppressed as its final decree petition came to be dismissed for default as proved by Ex.A4 which is also marked in these appellate proceedings. The final decree is passed on 27-9-1980 as per Ex.B1. The final decree petition was dismissed on 04-3-1999. The fate of this appeal now turns on the scope and the effect of the order in the final decree petition on the preliminary decree. This final decree petition came to be filed in 1994 and dismissed in 1999. The preliminary decree was passed in 1980. We are now in 2009. The order in the final decree petition is still going strong as no order setting it aside or reversing it is filed by the appellant even though the appellant is allowed to file additional evidence which it did by tendering Exs.B1 and B2 in this appellate proceedings. Now the order of the final decree petition became final by reason of two consequences emanating from the statutory law. Any attempt to restore the final decree petition itself is barred by limitation and in fact no such initiative is proved at all. Assuming for a moment that a successive final decree petition could nonetheless be filed even such a petition is barred by limitation as it would be one filed not less than 19 years after the date of preliminary decree. Article 137 of schedule I of the Limitation Act is very much applicable for final decree applications in mortgage suits. This is amply clear from three judgements incidentally referred to in para 4 of a recent judgement of the Supreme Court (2009) 9 SCC 689 which, interalia, conveyed the proposition that the law of limitation is very much applicable to final decree petitions in mortgage suits unlike in partition suits. To a contention made in this regard as under:
‘The appellant contends that when a preliminary decree is passed in a partition suit, a right enures to the plaintiff to apply for a final decree for division of the suit property by metes and bounds; that whenever an application is made to enforce a right or seeking any relief, such application is governed by the law of limitation; that an application for drawing up a final decree would be governed by the residuary Article 137 of the Limitation Act, 1963 (‘the Act” for short) which provides a period of limitation of three years; that as such right to apply accrues on the date of the preliminary decree, any application filed beyond three years from the date of preliminary decree ( that is 12-3-1964) or at all events beyond three years from the date when the High Court dismissed the defendant’s appeal (that is, 29-3-1974) would be barred by limitation. Reliance was placed by the petitioner on the decision in Sital Parshad v. Kishori Lal AIR 1967 SC 1236, the decision of the Privy Council in Jowad Hussain v. Gendan Singh (1925-26) 53 IA 197:AIR 1926 PC 93 and a decision of the Patna High Court in Thakur Pandey v. Bundi Ojha in AIR 1981 Pat 27 in support of his contention’. The Hon’ble Supreme Court made a distinction between a final decree in a partition suit and a final decree in mortgage suit and held t the effect that in the latter the law of limitation would apply to the decision alluded by the Supreme Court in the above excerpt rendered by Patna High Court in Thakur Pandey v. Bundi Ojha in AIR 1981 Pat 27 clearly recognized the truth that application for final decree made after three years from the date of preliminary decree in a mortgage suit was barred by limitation. It is altogether a different matter that the said judgement in respect of which such a finding did not hold such a decree altogether a nullity’.
Thus it is crystal clear that the bank virtually abandoned its remedy to sell the property for the purpose of realizing the recovery of the debt owed by the complainant. In fact it disabled itself in this behalf. With this development, the title deeds of the complainants in the hands of the bank turned out to be irrelevant. The claim of the complainants to get back those title deeds therefore remained intact.
It is however contended that though the remedy to sell the property covered by those title deeds through the intervention of the court had extinguished, its original right of lien on the title deeds revives lending justification to withhold it. This argument appears to be absurd as the right to lien will submerge with the right to invoke judicial intervention. Even if it revived, it would not empower the bank to sell the property with the help of those documents as it was otherwise disabled by the process of law that was already exhausted by resorting to the court. In any view of the matter, there is absolutely no proper articulation to convince us about this theme. No doubt, we are alive to the cleavage between the right and remedy. But at this distance of time, the extinguishment of the remedy would mature into substantive right in favour of the targeted party. When once the bank loses its cause of action to proceed against the property of the complainants, there is no absolutely no justification to keep the title deeds with them for nothing as after all their right to possess the title deeds is much more superior than the right of the bank to cling to those documents which are of no use to them in the matter of selling the property which by their own volition of inaction forfeited. Thus for the reasons stated above and for the reasons articulated by the District Forum, we do not have any hesitation to hold that there are no infirmities in the order of the District Forum. So much so that we find that the order of the District Forum can hardly be interfered with. Thus there are no merits in the appeal preferred by the opposite party before the District Forum.
Not satisfied with the quantum of relief, the complainants too filed for enhancement of the compensation. In the complaint, they claimed as much as Rs.18,00,000/- on the ground that they could not sell the property much less for competitive price due to the want of original title deeds with them and thereby they sustained loss to that extent solely on account of the acts of the bank depriving them possession of the title deeds to which they were entitled since a long time. The District Forum awarded Rs.50,000/- by way of compensation for the hardship they were put to. As could be seen from the pleadings in the prayer, the complainants claimed the recovery of the entire value of the property but evidently such claim is very fanciful as the property remained very much in their hands and even the delay in handing over the title deeds was not entirely due to deficiency but also due to lack of clarity in assessing the rights of the complainants especially after the FDP came to be dismissed. Till such time, the bank was running the litigation to realize the debt by enforcing the security. So it cannot be straight away said that the deprivation of the sale deeds to the complainants was wanton and intentional. The fact however, remains that the bank ought to have been more professional and taken steps to avoid unnecessary stalemate in the exercise of rights of the complainants. As a matter of fact, the bank could have diligently perused the remedies, realized its debt which in fact appears to be meager when compared to the value of the property and paved the way even to the complainants to enjoy the bulk of the property unencumbered. Thus in the bargain, the bank inflicted injury upon itself as also on the complainants. But basically to a large extent, the pursuit of litigation by the bank was bonafide. In this view of the matter, we feel that the compensation awarded by the District Forum is quite balanced and the complainants could not make out any case for enhancement.
Accordingly both the appeals fail and therefore dismissed but without costs in the circumstances of the case.
Sd/-MEMBER.
Sd/-MEMBER.
Jm Dt.16-12-2009
