By Smt. Bindu. R, President:

          This Consumer Complaint  is filed by Smt.  Prasanna. P.K,  W/o. (late) Balakrishnan Nair. M.K,  along with her daughter as 2^nd  Complainant against  State Bank of India Ltd.,  Meppadi Branch alleging  deficiency of service and unfair trade practice from the side of the Opposite Party.  It is stated in the complaint that the husband of the 1^st  Complainant (late) Sri. Balakrishnan Nair was the Managing Partner of M/s Mayur Steel Industries,  a partnership firm functioned at Kalpetta.  The business activity of the firm was the  source of income  and the unit  was a self employment venture.  The said Balakrishnan Nair (Late) had availed different loans from State Bank of Travancore which has later merged with State Bank of India, the present Opposite Party.  The husband of the Complainant (late) Balakrishnan Nair created an equitable mortgage of his properties covered by certificate of Jenmom  Purchase No.434/79 and 785/78 along with  5 cents of land with building thereon covered by Sale Deed No.1866/83 which belonged to the deceased and his partners.  The Complainant then states that the loan availed by him could not be repaid in time and therefore the bank had initiated recovery proceedings and filed OS No.148/90 in the Sub Court, Sulthan Bathery.  Thereafter EP 78/95 was filed by the bank and the mortgaged property was put in public auction.  Since  there were no bidders,  the bank itself purchased the property on 05.10.1996 for   Rs.5,50,100/-.  It is further stated that the sale certificate in respect of the properties had also been issued in favour of the bank.

          2. At this juncture the Complainants   states  that the deceased had made payment of an amount of Rs.4,00,000/-  into the bank as a one time settlement (OTS) and the bank accepted the amount as full  and final settlement on 01.10.2007.  Accordingly the bank executed and registered the conveyance deed in respect of  One of the items of mortgaged properties in the name of   one Thayyil Ismail as  required by the loanee.  The Complainant further alleges that though the bank received the amount in OTS as full and final settlement, the bank failed to register conveyance deed in respect of the remaining  properties in favour of the deceased.  The Complainant approached the bank on different  occasions and it was reiterated that the matter  shall be taken up with higher authorities and the conveyance shall be executed  after getting concurrence from the higher authorities.  It is also stated that the bank has not returned the balance amount after the OTS amount to the loanee.  The deceased was of the impression that the bank shall act upon and the property will be returned after completing  necessary formalities but he died on 19.02.2016 survived by his wife and daughter who are the Complainants.

          3. The Complainants  on getting  knowledge about the  above described facts approached the bank lastly on 21.06.2018 seeking to initiate action to return the properties but nothing  has been done by the bank so far.  At this stage the widow of the deceased states the reason for the delay if any happened from her side in filing the instant complaint.  It is also stated that there is continuous  cause of action as far as the complaint is concerned and prays to consider that facts also and concludes with prayer to issue  direction to the Opposite Party to return the properties covered  by the mortgage and to pay a sum of Rs.4,50,000/- as compensation for the loss and damage along with others.

          4. Upon notice from the Commission  the Opposite Party appeared and filed their written version.  The gist of the version is  as follows.  The Complainants are not  consumers as defined in the Act since the Complainant nor the deceased  Balakrishnan Nair has availed  any service for consideration from them.  The Opposite Party further alleges that the  complaint is barred by limitation since it is filed after a lapse of more than 20 years,  since the concerned properties are sold.  There after the Opposite Party admits that M/s Mayur Steel Industries,  a partnership 

firm at Kalpetta had availed a loan from the  erstwhile State Bank of Travancore,  Kottappady Branch (e-SBT).  It is also true that  (Late) Balakrishnan Nair had mortgaged his landed properties as  security for the loan and  due to the default in payment of the loan amount e-SBT was forced to take steps for  recovery by filing  a suit as OS 148/90 before the Sub Court,  Sulthan Bathery.  The suit was decreed and the bank had filed Execution Petition  as EP No.78/95 and the mortgaged properties were put for sale in public auction.   Since  there were no bidders,  e-SBT had participated in auction and purchased the  properties on 05.10.1996 and sale certificate was issued by the  court in favour of e-SBT in 2000.  Thus the mortgaged properties had become the properties/assets of erstwhile  State Bank of Travancore.  The Opposite Party thereafter denies allegation in para  6 of the  complaint and states that the allegation in para 7 & 8 of the complaint is not correct and denied the allegation in para No.9.  Opposite Party in para 9 of the version states that the Opposite Party is not able to  trace out any papers relating to the alleged transactions since the auction had occurred  more than 20 years back.  The Opposite Party also states that it reserves the right to file an additional version in the event of tracing out the documents and prays to grant  6 months time  to file a detailed version.

          5. The Complainant filed Ext.A1 to A8 and the Opposite Party filed Exts.X1(a) to X1(e).  The 1^st  Complainant was examined as PW1 and the OPW1 was examined from the side of Opposite Party.

          6. The following are the documents marked from the side of the Complainant.  Ext.A1 is the copy of Patta issued  by the Land Tribunal Kalpetta in Suomotu  proceedings No.180/1979 with respect to 0.69 Acres (69cents) of land in favour of  M.K. Balakrishnan Nair.  Ext.A2 is the copy of Patta issued by the Land Tribunal Kalpetta bearing No.785/1978 in favour of M.K. Balakrishnan Nair with respect to 2.44 Acres in Resurvey 500/pt,  499/pt, 504/pt.  Ext.A3 is the copy of judgment in OS 148/90 dated 06.06.1992.  Ext.A4 is the copy of Sale Certificate in E.P 78/95 in OS148/90.  Ext.A5 is the copy of  pay in slip dated 01.10.2007 of SBT,  Kottappadi Branch.  Ext.6 is the Death  certificate of  M.K. Balakrishnan Nair.  Ext.A7 is the copy of Heirship Certificate of Balakrishnan M.K.  Ext.A8 is the copy of letter given by the  1^st  Complainant to the Opposite Party regarding  releasing of the document pledged with the branch  dated 21.06.2018 with endorsement of the bank.  Ext.A9 is the copy of Tax Receipt dated 21.05.2022 with respect to 46 Ares  40sq.m of  property in Survey No.97/1.  Ext.A10  is the certified copy of Sale Deed No.3535/07 executed by the Manager, State Bank of Travancore, Kottappady Branch in favour of  Mohammed Shaik Rasheed.  The  Opposite Party produced the files relating to the  loan transaction which is the subject matter of the complaint.   X1(a) is the letter issued by the Branch Manager,  State Bank of Travancore,  Kottapady Branch dated 18.08.2014 to Adv. Chathukkutty for getting opinion regarding the return of title deeds.  X1(b) is the letter dated 01.10.2007 by  Branch Manager, State Bank of Travancore, Kottappady Branch to Adv. Chathukutty requesting the withdrawal of the case and  get back the title deeds.  Ext.X1(c)  is the letter dated 9.10.2007  issued by the Branch Manager to the Chief Manager,  Zonal Office,  Kozhikode for advice of formalities to re register the remaining   properties in the name of Sri. Balakrishnan Nair. X1(d) is the letter dated 23.9.2014 issued by Branch Manager, Kottappady Branch to the Assistant General Manager. X1(e) is the reminder dated 06.06.2017 sent from State Bank of Tranvancore, Kottappady Branch to the Regional  Manager, Kozhikode.

          7. A  perusal of the files produced by the Opposite Party reveals that there is a letter  dated 31.07.2007 signed by  M.K. Balakrishnan,  O.K Dharmraj and K.G. Jayprakash Narayan requesting to settle the loan under OTS scheme for Rs.4,00,000/-. There after Ext.X1(b)  reveals that the proposed buyer  has remitted Rs.4,00,000/-  to the account and closed the account under Bank’s OTS scheme and hence  requested to withdraw the suit and get  back the title deeds to  re-register the property.  The file contain the consent signed by M.K. Balakrishnan and O.K. Dharmaraj saying that both  of them  agreed  to register the 5 cents of land and building in the name of  Mohammed shaik Rasheed S/o. M. Shaik Ibrahim.

          8. As per Ext.A4  Sale Certificate (a)  Item No.1 property  is 0.69 A (69 cents) in Sy.498/3A3B of Purakkadi Village  covered under Ext.A1 document.  (Original of which is in the file produced by the Opposite Party).  (b)  Item No.2 is 2.44 Acres of Land in R Sy 500/pt, 499/pt and 504/pt of Purakkadi Village,  Sulthan Bathery Taluk  which is covered by Ext.A2 document (Original of which is in the file produced by the Opposite Party).  (c)  Item No.3 is 0.05A (5 cents) in Sy No.182/113 of Kalpetta Village Vythiri Taluk Wayanad District.

          9. Ext.A10 shows that  the 5 cents of property covered under item 3 in the sale  certificate has been  registered in the name of Mohammed Shaik Rasheed as consented by M.K. Balakrishnan and O.K. Dharmaraj.  The other  two items (item No.1 &2)  of properties are still in the possession of the Opposite Party bank and the documents are also kept by them even though the loan was closed under OTS Scheme during 2007.

          10. The Commission had made a very thorough examination in to the  complaint, version, documents filed from either side and the deposition of PW1 and OPW1 along with the facts and circumstances of the case.

          11. The following are the main points to be analysed in this complaint to derive into  an inference  of the fact.

1. Whether the Complainants are consumers and whether the complaint is maintainable as per Consumer Protection Act?
2. Whether the Complainant  had sustained to any  deficiency of service  or unfair trade practice from the side of the Opposite Party?
3. If so the quantum of  compensation and other  reliefs for which the Complainants are eligible to get.
4. Costs of proceedings if any.

12. It can be seen from the complaint that Balakrishanan Nair was  running  a

partnership firm named  Mayoor Agencies at Kalpetta  and had mortgaged  the properties referred in the complaint with the Opposite Party bank (erstwhile  SBT).  The loan amount could not be repaid in time and therefore the Opposite Party had  initiated recovery steps and obtained judgment in their favour from the  Sub Court, Sulthan Bathery in OS No.148/90 and subsequently filed EP78/95 and  purchased the property in auction for Rs.5,50,000/-  by the Opposite Party itself  since  there were no other bidders.  In fact as per Ext.A5  the deceased loanee had made a one time settlement  for Rs.4,00,000/-  which had not been denied by the Opposite Party at any stage of the case. It can also be seen that a portion of the mortgaged property was released by the Opposite Party,  as stated in the complaint,  which is also not denied by the Opposite Party.  Ext.A10 reveals that such a transaction had been taken place,  on 06.11.2007 which is after the said  date of  remittance of Rs.4,00,000/-  on 01.10.2007 as stated by the Complainant.  As per the  Death Certificate of Sri. Balakrishnan Nair he had  passed away on 19.02.2016.  In the mean while,  as stated by the Complainant they were of the presumption that the bank as a  reputed institution shall return the documents which need not be disbelieved.

13. Since the question  of maintainability and the  question of limitation are raised, which are to be considered as preliminary issues and hence the Commission  ought to have to  analyse  as to whether the loanee of a bank who availed a loan by mortgaging  his property from the bank is  a consumer or not. As per Section 2(7) of the Act. “Consumer” means any person who – (i)  buys any goods for  a consideration which has been paid or promised  or partly paid and partly promised, or under  any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or  partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtain such goods for resale or for any commercial purpose; or   (ii)  hires or avails of any service for a consideration which has been paid  or promised or partly  paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment,  when such  services are availed of with the  approval of the first-mentioned person, but  does not include a  person who avails of such service for any commercial purpose”.  From which it is clear that the Complainants are beneficiaries of the  consumer (deceased Balakrishnan)  and  secondly the dispute regarding  the maintainability is also verified and seen that though the transaction had happened  a few years back and as can be seen from the history of the case and also since the transaction has  not  completely been closed and dispute persists, still there is continuous cause  of action and hence the allegation of the Opposite Party that the Complainant is belated will also  not stand.  Hence point No.1 is found in favour of the Complainant.

          14. The most significant aspect to be considered in this case is that the Branch Manager of State Bank of India at the time of examination in box deposed that an amount of Rs.4,00,000/-  had been remitted in the bank by the deceased on 01.10.2007 and  in continuation  of cross examination he had deposed that he had examined the documents  and more documents are available in the  bank.  In fact  this is in contradiction to the statement submitted by the Opposite Party in the version that there are no documents available at present in the bank.  OPW1 deposed that he had  seen and understood that an amount of Rs.4,00,000/-  had been  remitted by the deceased on OTS and the bank is duty bound to return the documents.  He further continue  his deposition in box that  one of the  document has been returned and others had not been returned yet.  From the above it is clear that the loan amount had been remitted by  (late) Balakrishnan Nair as OTS and the bank has not  returned the documents and not taken any steps to re register the property in to the name of the Complainants which is proved without doubt.  The Complainant had visited the bank even on 21.06.2018 with their prayer even though  the loan has been closed 16 years back.  The Opposite Party is convinced that the Complainants are the legal heirs of (Late) Balakrishnan Nair.  Hence there is  deficiency of service and unfair trade practice from the side of the Opposite party towards the complainants. Since  the facts are as detailed above the Complainants have proved, with substantiating evidences that point No.2 also in favour of the Complainant and hence point No.3 is also decided accordingly.

          15. Hence the following orders are passed:-

1. The Complainants are beneficiaries of the Opposite Party since (Late)  Balakrishnan Nair was a consumer of the Opposite Party and the Complainants are legal heirs of the deceased.  The complaint is also maintainable since there is continuous cause of action.
2. The Opposite Party shall  reconvey and return the documents in respect of the mortgaged property scheduled as item 1 & 2 in the sale  certificate in EP 78/95 in OS 148/90 to the Complainants within 30  days  of receipt of a copy of this  order at the expenses of the Opposite Party.
3. The Opposite Party shall pay the Complainants an amount of Rs.4,50,000/- (Rupees Four Lakh Fifty thousand only) as compensation for the mental agony and hardship caused to the Complainants due to deficiency of service and unfair trade practice from the side of the Opposite Party.
4. The Opposite Party shall pay an amount of Rs.15,000/- (Rupees Fifteen thousand only) as costs of the proceedings to the Complainant.

16. Needless  to say that the orders above are to be complied with within one

month of the receipt of  a copy of this order or otherwise the Opposite party  will be liable to pay 12% interest to the amount awarded as compensation from the date of order till the date  of realization.  It is also ordered that if the property is not              re conveyed and the documents are not returned to the Complainant within 30 days as ordered,  the Opposite  Party shall be liable to pay an amount of Rs.5,000/-  (Rupees Five thousand only) per day for each days of delay up to  the  date of compliance of the order. 

17. The  bank shall be at liberty to recover the amount payable for compensation  and costs to the Complainant from the concerned  officials who are responsible for the  lapse and delay since the amount payable from the bank  belongs to public  fund.

          The complaint is allowed accordingly.  

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the  26^th   day of September 2023. 

Date of filing:21.07.2018.

                                                                   PRESIDENT    :  Sd/-

                                                                    MEMBER        :  Sd/-

                                                                   MEMBER        :  Sd/-

APPENDIX.

Witness for the Complainants:

PW1.          Prasanna P.K.                           Complainant No.1                   

Witness for the Opposite Party:

OPW1.         Dani. K.                                 Branch Manager,  

Exhibits for the Complainants:

A1.       Copy of Patta issued by the Land Tribunal Kalpetta.

A2.       Copy of Patta issued by the Land Tribunal Kalpetta.

A3.       Copy of  Judgment in  OS 148/90.                    dt:06.06.1992.

A4.       Copy of Sale Certificate in EP 78/95  in O.S148/90. 

A5.       Copy of Pay in slip.                                           dt:01.10.2007.

A6.       Death Certificate.                                               dt:05.03.2016.

A7.       Copy  of  Heirship Certificate.                            dt:10.04.2017.

A8.       Copy of  Letter.                                                  dt:21.06.2018.

A9.       Receipt.                                                             dt:21.05.2022.

A10.     Copy of Sale Deed No.3535/07.

Exhibits for the Opposite Party:

X1(a).   Letter.                                   dt:18.08.2014.

X1(b)    Letter.                                   dt:01.10.2007.

X1(c )   Letter.                                   dt:09.10.2007.

X1(d)    Copy of Letter.                      dt:23.09.2014.

X1(e)    Letter.                                    dt:06.06.2017..

                                                                                                PRESIDENT:  Sd/-

                                                                             MEMBER    :  Sd/-

                                                                             MEMBER    :  Sd/-