Complaint filed on: 31-07-2014

                                                      Disposed on: 09-08-2016

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM,

OLD DC OFFICE COMPOUND, TUMAKURU-572 101

CC.No.102/2014

DATED THIS THE 09^th DAY OF AUGUST 2016

PRESENT

SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT,

SRI.D.SHIVAMAHADEVAIAH, B.A, LLB, MEMBER

SMT.GIRIJA, B.A., LADY MEMBER

Complainant: -

                                        G.Lakshminarayanappa,

                                                S/o. Late Khadrappa,

                                                Dead by his LRs.

1. D.Jayamma,

W/o. G.Lakshminarayanappa,

Aged about 65 years,

R/at Hemantha Krupa,

Shanthi Nagar, Tumakuru

2. L.Bhagyalakshmi,

D/o. G.Lakshminarayanappa,

Aged about 50 years,

R/at Hemantha Krupa,

Shanthi Nagar, Tumakuru

3. L.Hemanth Kumar,

S/o. G.Lakshminarayanappa,

Aged about 48 years,

R/at Hemantha Krupa,

Shanthi Nagar, Tumakuru

4. L.N.Rajesh

S/o. G.Lakshminarayanappa,

Aged about 44 years,

R/at Maralurdinne,

Tumakuru

5. L.Dakshayini,

D/o. G.Lakshminarayanappa,

Aged about 40 years,

R/at Yashawanthapura, Bengaluru

V/s

Opposite parties:-    

1. Sri Renukamba Credit Co-Operative Society, 3^rd Cross, MG Road, Tumakuru

By its President Sri.K.V.Ajay Kumar, S/o. Vijayaranga Swamy,

Aged about 55 years.  

2. Secretary,

Sri Renukamba Credit Co-Operative Society, 3^rd Cross, MG Road, Tumakuru

ORDER

SMT.PRATHIBHA. R.K. PRESIDENT

        This is a complaint filed by the complainant against the Opposite party No.1 and 2, under Section 12 of the Consumer Protection Act and prays to direct the Ops no.1 and 2 to return the original documents pertaining to site No.42 and 43 and clearance certificate for having cleared the said loan amount and to pay Rs.2,00,000=00  towards damages, in the interest of justice and equity.

2. The brief facts of the complaint is as under.

The complainant submits that, he had obtained a loan amount of Rs.2,00,000=00 from the OP bank on 17-12-2011 and his loan account number was 73/2. The OP bank was charged 15% interest per annum on the said loan amount and repayment loan term was fixed to 60 EMIs.

The complainant further submitted that, at the time of obtaining the said loan amount, the complainant deposited title deed and executed with respect to sites bearing No.42 and 43, each site measuring to an extent of 30X40 feet situated at Hanumanthapura village, Bellavi Hobli, Tumakuru taluk. All the original documents with respect of the said sites were in the custody of OP bank. The complainant after having pledged the gold ornaments in the Indian Overseas Bank on 18-4-2013 has arranged an amount of Rs.1,15,000=00 and repaid/cleared the entire loan amount raised in the OP bank and the same has been repaid with all the interest on 2-5-2015.

The complainant further submitted that, he being a customer and he has repaid the entire loan amount to the satisfaction of the OP bank. After the complainant repaid the entire loan amount, the complainant has requested the OP bank several times to return the original documents of his sites and also the complainant requested the OP to give clearance certificate. In spite of several requests, the OP bank has not obliged to the request of complainant and failed to perform them part of their obligation. Hence there is deficiency in service on the part of the OP.

The complainant further submitted that, due to deficiency in service on the part of the OP, the complainant has suffered a lot both mentally and physically. Hence the present complaint is filed.

3. After service of the notice, the OPs have appeared through their counsel and filed version contending interalia as under:

The OPs submitted that, the complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine.

The OPs further submitted that, the complainant has filed this complaint by suppressing the relevant fact that, the complainant has stood as surety by executing an indemnity bond in favour of OPs clearly stating that, the complainant has preferred to stand as surety for his son name Sri.L.N.Rajesh who was working as Manager/Secretary in the OPs bank. The said person Sri.L.N.Rajesh son of the complainant was kept under suspension for having misappropriated the money belonging to the society. This relevant fact has been suppressed by the complainant, it is settled law that, any person who suppresses the relevant fact intentionally is not entitled to seek any relief before the court.

The OPs further submitted that, there is no cause of action at all, the complainant has stood as surety for his son Sri.L.N.Rajesh who was working as Manager/Secretary and the indemnity bond executed by the complainant is that even if any breach of trust is committed by complainant’s son, then complainant under the said circumstances will stand as surety. Regarding the misappropriation of funds by complainant’s son L.N.Rajesh enquiry has also been conducted by the court of the Co-operative society and complainant’s son L.N.Rajesh is held guilty for the offence committed. Hence the complaint is liable to be dismissed.

Further the OPs denied the entire allegations made in the complaint. In fact, at this stage considering the indemnity bond executed by complainant in accordance with law in favour of OP. The complainant is not at all a consumer under the CP Act and the complaint is not maintainable in the eye of law. It is a contract between the OP and the complainant and the forum has to consider the terms and conditions of the contract.

The OPs further denied that, the question of dragging to return back the documents by giving one or the other reasons does not arise at all and the question of choosing to return the said documents to the complainant does not arise. The present complaint is not maintainable and the same is liable to be dismissed. The OPs prays to dismiss the complaint with cost, in the interest of justice and equity.  

4. During the pendency of case, the complainant died. The learned counsel for the complainant has filed an application before the forum and brought the legal representatives of the deceased G.Lakshminarayanappa on record. Thereafter, the complaint was amended and inserted the legal representatives of the complainant.

5. In the course of enquiry in the complaint, the complainant and OPs have filed their affidavit evidence reproducing what they have stated in their respective complaint and version.   The complainant has produced three documents along with the complaint and the Ops have also produced two documents along with affidavit. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides.

6. Based on the above materials, the following issues will arise for our consideration.

1. Whether there was deficiency in service on the part of the OPs as alleged by the complainant?

2. What Order?  

7. Our findings on the above points are;

          Point no.1: In the affirmative

          Point no.2: As per the final order below.

REASONS

          8. On perusal of the pleadings, evidence and documents produced by both the parties, it is an undisputed fact that, the complainant had taken the loan amount of Rs.2,00,000=00 from the OPs bank on 17-12-2011 by depositing title deed of sites No.42 and 43 measuring 30 X 40 feet situated at Hanumanthapura village, Bellavi Hobli, Tumakuru taluk in favour of the Ops bank as surety to the said loan amount. The contention of the complainant is that, the complainant had cleared/repaid the entire loan amount along with interest to the Ops bank on 2-5-2013.  The complainant made a request to the Ops bank to return all original documents/title deed of sites no.42 and 43 and give clearance certificate of loan. But the Ops did not respond to the request of complainant, hence there is deficiency of service on the part of the Ops.

          9. In order to substantiate the above said facts, the complainant has produced the loan passbook issued by the OPs bank. In the passbook, it is clearly mentioned the passbook number is 73/2, passbook given date is 1-2-2013 and passbook issued in the name of G.Lakshminarayanappa i.e. complainant.  The complainant has also produced the particulars of loan account. In the said document, it is mentioned that, the loan sanctioned date is 17-12-2011 and total sanctioned loan amount is 2,00,000=00, installment amount is Rs.3,333=00, duration is fixed 60 months, rate of interest is 15% and on 2-5-2013. The complainant has cleared/repaid the entire loan amount along with interest. The OPs bank has closed the complainant’s loan account and endorsed/acknowledged the same. The complainant has also produced the letters dated 4-6-2013 and 3-10-2013 issued to the OPs bank requesting to return all the original documents as given to the loan surety and issue clearance certificate of loan account.    

10. The said oral and documentary evidence of complainant as mentioned above to the effect that, after the complainant cleared/repaid the entire loan amount along with interest, the OPs did not return the original title deed of sites no.42 and 43 and the clearance certificate, in-spite of repeated requests and reminders by complainant. The same is corroborated by copies of letters issued to the OPs by the complainant.

          11. Per-contra, the Ops have contended in the version and also affidavit evidence that, the complainant has stood as surety by executing an indemnity bond in favour of OPs bank. The complainant has preferred to stand as surety for his son namely Sri.L.N.Rajesh who was working as Manager/Secretary in the Ops bank. The complainant’s son has misappropriated the bank funds and he has been kept under suspension. This relevant fact has been suppressed by the complainant at the time of filing the present complaint. Regarding the misappropriation of funds by complainant’s son L.N.Rajesh, an enquiry has been conducted by the Hon’ble Court of the Co-operative Society and the complainant’s son L.N.Rajesh is held guilty for the offence committed. 

          12. In this regard, to substantiate the above fact, the Ops have produced the indemnity bond/Ex-D1 dated 22-6-1999, in the bond Sri.G.Lakshminarayanappa has executed the indemnity bond in favour of his son L.N.Rajesh whereas the OPs bank has agreed to appoint his son L.N.Rajesh as Manager/Secretary. In case of any act of breach of trust, he agreed to make good the amount so misappropriated or loss by him to the extent of Rs.25,000=00 to the society/bank. Further the OPs have also produced letter dated 17-6-2014/Ex-D2 addressed to the Sub-Registrar, Tumakuru Taluk, Tumakuru and this letter was signed by the President and Secretary of OPs Bank, in the said letter stating that “²æà gÉÃtÄPÁA§ ¥ÀwÛ£À ¸ÀºÀPÁgÀ ¸ÀAWÀzÀ ªÀiÁf PÁAiÀÄðzÀ²ðAiÀiÁzÀ J¯ï.J£ï.gÁeÉñï EªÀgÀÄ ¸ÀAWÀzÀ ºÀtªÀ£ÀÄß zÀÄgÀÄ¥ÀAiÉÆÃUÀ ¥Àr¹PÉÆArzÀÝgÀ »£ÉßAiÀÄ°è ¸ÀºÀPÁgÀ ¸ÀAWÀUÀ¼À ¸ÀºÁAiÀÄPÀ ¤§AzsÀPÀgÀÄ vÀĪÀÄPÀÆgÀÄ G¥À«¨sÁUÀ vÀĪÀÄPÀÆgÀÄ EªÀgÀ £ÁåAiÀÄ®AiÀÄzÀ DzÉñÀ ¸ÀASÉå ¸À.¤.32/zÁªÀ/PÀ®A103/2/2012-13 ¢£ÁAPÀ 9-1-2012gÀ DzÉñÀzÀAvÉ J¯ï.J£ï.gÁeÉÃ±ï ªÀÄvÀÄÛ EªÀgÀ vÀAzÉAiÀiÁzÀ ²æà f.®Qëöä£ÁgÁAiÀÄt EªÀgÀ D¹ÛUÀ¼À£ÀÄß ¸ÀºÁPÀj PÁAiÉÄÝ PÀ®A103gÀ CrAiÀÄ°è d¦Û ªÀiÁr d¦Û DzÉñÀªÀ£ÀÄß SÁAiÀÄA ªÀiÁr D¹ÛvÀUÀ¼À£ÀÄß ¸ÀAWÀzÀ ºÉ¸ÀjUÉ ªÀÄÄlÄÖUÉÆÃ®Ä ºÁQPÉÆArgÀÄvÀÛzÉ.

PÀ£ÁðlPÀ gÁdå ¥ÀvÀæ ¢£ÁAPÀ 18-4-2013gÀ ¥ÀæPÀluÉAiÀÄ£ÀÄß F ¥ÀvÀæzÉÆA¢UÉ ®UÀwÛ¹zÉ PÀ£ÁðlPÀ gÁdå ¥ÀvÀæzÀ°è ¥ÀæPÀlªÁVgÀĪÀAvÉ µÉqÀÆå¯ï£À°è «ªÀ¹gÀĪÀ D¹ÛUÀ¼À£ÀÄß ªÀÄÄlÄÖUÉÆÃ®Ä ºÁQPÉÆArgÀĪÀÅzÀjAzÀ ¸ÀAWÀzÀ ªÀÄvÀÄÛ ¸ÀºÀPÁgÀ ¸ÀAWÀUÀ¼À ¸ÀºÁAiÀÄPÀ ¤§AzsÀPÀgÀÄ vÀĪÀÄPÀÆgÀÄ «¨sÁUÀ EªÀgÀ C£ÀĪÀÄw E®èzÉ ¥ÀgÀ¨sÁgÉ ªÀiÁrzÀ°è £ÉÆÃAzÀuÉAiÀÄ£ÀÄß vÀqɬÄrAiÀÄĪÀAvÉ vÀªÀÄä zÁR¯Áw ¥ÀĹÛPÀzÀ°è zÁR°¸À®Ä F ªÀÄÆ®PÀ PÉÆÃjzÉ”.  

PÀ£ÁðlPÀ gÁdå ¥ÀvÀæ, UÀÄgÀĪÁgÀ, K¦æ¯ï 18, 2013

13. The OPs have produced irrelevant documents to the present case on hand. On careful perusal of the documents produced by the OPs. As could be seen from the said statement, site no.42 and 43 has not been furnished as a surety and two schedule property have not been encumbered in the name of the OP bank and therefore it cannot be held that, site no.42 and 43 situated at Hanumanthapura village, Bellavi hobli, Tumakuru taluk stand encumbered in the name of the OP bank. Hence the contention of the OPs bank that, site no.42 and 43 are encumbered in the name of the OPs bank is wholly contrary to the statements and affidavit made the OPs, this contention cannot be accepted.

14. It is pertinent to note from the material on record that, except denying the case of complainant, no documentary evidence is produced by the Ops.  So in view of non-production of relevant documentary evidence and oral evidence of OPs as mentioned above is totally unworthy of acceptance.  On making careful scrutiny of the case of complainant on the background of oral and documentary evidence of complainant, it is no doubt true that, the complainant has obtained the loan of Rs.2,00,000=00 from the OPs bank and he has cleared/repaid the entire loan amount along with interest to the OPs bank on 2-5-2013 and the OPs bank has closed the loan account of complainant and the same has been acknowledged by the OPs. But after repaid/cleared the entire loan amount along with interest, the OPs did not return the title deeds of sites no.42 and 43 and clearance certificate of loan. That act of the OPs have made the complainant to suffer both mentally and financially, therefore, we award damages of Rs.10,000=00 to the complainant.  We are of the opinion that, the complainant has proved with clear cogent and consistent material evidence that, the OPs are negligent and there is deficiency of service on the part of the OPs in not returning the original title deed of sites no.42 and 43 situated at Hanumanthapura Village, Bellavi Hobli, Tumakuru taluk as given to the surety of the loan amount and accordingly we answer this point in the affirmative.

15. In view of our affirmative finding on point no.1, the complainant is entitled to claim all the original title deed of sites no.42 and 43 situated at Hanumanthapura village, Bellavi hobli and clearance certificate of loan and cost of this litigation and we feel it proper to award damages of Rs.10,000=00 to the complainant towards negligence and deficiency of service and accordingly we answer this point. In the result, we proceed to pass the following order.

ORDER

The complaint filed by the complainants is allowed.

The OPs are directed to return all original title deed of site no.42 and 43 situated at Hanumanthapura village, Bellavi hobli, Tumakuru taluk as given to surety of loan and clearance certificate of loan account no.73/2 to the complainants.

The OPs are further directed to pay damages of Rs.10,000=00 towards negligence and deficiency of service, failing which, the OPs shall paid the said along with 9% interest per annum from the date of complaint to till the date of realization.

The OPs are further directed to pay Rs.5,000=00 to the complainants towards cost of this litigation.

This order is to be complied by the OPs within 30 days from the date of this order.

Supply free copy of this order to both parties. 

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 9^th day of August 2016).

MEMBER                   MEMBER                   PRESIDENT