KUNDAN KUMAR KUMAI

This is an appeal u/s 41 of the Consumer Protection Act, 2019, preferred against the judgement dated 21/09/2023, passed by the Ld. DCDRC, Siliguri in CC/33/2023.

The Appellants’ case in brief, is that, the Respondent/Complainant in order to purchase a property and on completion of Registration, had obtained loan from the Appellant no.2, being HBL Account no.11051019960, who had kept the IGR in their custody, with an assurance that they would collect the original deed of conveyance, from the office of the ADSR, Rajganj, Dist. Jalpaiguri, by submitting the original IGR and would keep the original deed of conveyance, till the repayment of the outstanding loan amount and return the same, after repayment of the loan amount. The Respondent/Complainant, after repaying the loan amount on 05/05/2022, had prayed for return of the entire mortgaged papers and documents, including the deed of conveyance. But the Appellant no.2, returned the IGR in original, as they had failed to collect the original deed of conveyance, from the ADSR, Rajganj, Dist. Jalpaiguri. As the Respondent/Complainant refused to receive the IGR, the Appellant no.2 stated, that they were not bound to collect the deed of conveyance from the concerned office. In the IGR it was clearly mentioned in Bengali language that, “will chara aparapar dalil na dabi abasthai registry office a dui batsarar adhikkal paria thakila taha aain anusare dwansha karia fela jayete paribe”. Therefore, the Respondent/Complainant could not claim the original deed of conveyance from ADSR, Rajganj, Dist. Jalpaiguri, as the property was registered on 17/05/2004 and more than two years had elapsed and the documents were liable to be destroyed. The Respondent/Complainant visited the office of the ADSR, Rajganj, Dist. Jalpaiguri, but failed to receive the original deed of conveyance on production of the original IGR. The Respondent/Complainant visited the office of the Appellant no.2 and informed the matter and demanded the original deed of conveyance, but the Appellant no.2, did not receive the letter. On 10/08/2022, the Respondent/Complainant sent a letter by Speed Post which had been received by the Appellant no.2, on 16/08/2022, but there was no response. Such negligent attitude on the part of the Appellant no.2, resulted in the suffering of huge financial loss as well as mental pain and agony to the Respondent/Complainant. Finding no alternative, the Respondent/Complainant filed a claim case before the Ld. DCDRC, Siliguri, with necessary prayers.

The Appellants failed to appear to contest the claim, despite notice being served and the case was heard ex-parte.

After going through the materials and evidence on record, produced by the Respondent/Complainant, the Ld. DCDRC, Siliguri, vide the impugned order directed the Appellants to pay a sum of Rs.4,10,000/- (Rupees four lakhs ten thousand) only, as compensation and litigation cost. The Appellants were further directed to deposit a sum of Rs.10000/- (Rupees ten thousand) only, towards the Consumer Legal Aid account of the Ld. Trial Commission.

Being aggrieved by the impugned order, the Appellants preferred this instant appeal on the ground, that the Ld. DCDRC, Siliguri, had erred in law and facts, while passing the impugned order.

                                                                        Decisions with Reasons

Ld. Advocate for the Appellant, at the time of final hearing, had submitted that the Appellants being a finance company, were not bound to collect the original Title Deed and the Respondent/Complainant had been advised to obtain the same, after payment of the assessed valuation amount. It was further argued that the case below was bad for non-joinder of necessary and misjoinder of proper parties, as the ADSR, Rajganj, Dist. Jalpaiguri, was a necessary party, having destroyed the Title Deed. Moreover, a delay of 72 days had occurred as the conducting counsel was very much preoccupied with his professional matter and his daughter’s marriage and in the meanwhile part of the Appellants’ office had shifted to another place. He, therefore, prayed for setting aside the impugned order. He had relied in the judgement passed in Pawan Kishore Harlalka Vs. State of West Bengal & Ors., by the Hon’ble Calcutta High Court on 11/06/2020.

Ld. Advocate for the Respondent/Complainant, on the other hand countered, that the appeal was not only barred by limitation, as the same was filed beyond the statutory period of 45 days, but the number of days delay, mentioned in the Memo of Appeal is 55, whereas the petition u/s 5 of the Limitation Act in para 16, the delay is mentioned as 72 days. That apart, the Appellants had failed to produce any evidence in support of their contention. Furthermore, the delay in returning the Title documents by the Appellants, in violation of the RBI direction, should be penalized @ Rs.5000/- (Rupees five thousand) only per day. It was further prayed that the impugned order be upheld.

At the very outset, the aspect of delay of 55 days as mentioned in Memo of Appeal and 72 days in the petition u/s 5 of the Limitation Act, needs to be dealt with. Since both the above-mentioned documents being sworn on affidavit, the Appellants had not only misled this Commission, but also violated the cardinal principles of trust. The legal representatives of the Appellants, ought to have been more cautious while submitting such petitions, failing which the faith reposed on them would be eroded. Moreover, the reasons cited for non-filing in time, also does not merit attention and on this ground itself the appeal is liable to be dismissed.

As regards the argument for non-addition of the ADSR, Rajganj, Dist. Jalpaiguri, as a necessary party, also appears to be a casual approach, as the allegation is against the Appellants, as to why they failed to obtain the deed of conveyance, when the IGR expressed categorically, that such deed of conveyance would be destroyed, after the expiry of two years. Hence, the duty was cast upon the Appellants, to retrieve the deed of conveyance before the stipulated two years, as the original IGR was in their custody till repayment, they not only failed to do so, but also failed to provide any evidence as to why they were not bound to do so. Hence, the question of addition of the ADSR, Rajganj, Dist. Jalpaiguri, as a necessary party cannot be sustained, when the role of the ADSR, Jalpaiguri, was merely to carry out the dictates prescribed by law. Therefore, when the Appellants were bound by law to replace the IGR by the deed of conveyance, failed to do so, resulting in the mental pain and agony of the Respondent/Complainant. In view of the above findings and observations, the instant appeal is bound to fail.

It is therefore,

                                                                    ORDERED

That the instant appeal be and the same is dismissed on contest, but without cost.

The impugned order is hereby upheld. The Appellants are directed to comply with the directions, mentioned in the impugned order, within 45 days, of receipt of this order.

Copy of the order be sent to the parties, free of cost.

Copy of the order be sent to the Ld. DCDRC, Siliguri, for necessary information.

Statutory deposits, if any, be returned from whom received.

Jt. Registrar, Siliguri Circuit Bench of WBSCDRC, Kolkata, to do the needful.