Present complaint under Section 12 of the Consumer Protection Act, 1986 as amended upto date has been filed by Sukhdev Kumar and Surinder Kumar complainants against opposite party i.e. State Bank of India, Railway Road, Kapurthala through its Branch Manager etc. seeking direction against the opposite party Bank to return the original fixed deposit receipt amounting to Rs. 1,70,000/- with further monetary compensation on account of deficiency in its service.<br /> 2. In nutshell facts in the complaint are that complainants have raised a loan from opposite party Bank and the same was repaid entirely on 7/1/08. It is further alleged that opposite party No.2 got deposited an amount of Rs.1,70,000/- from the complainants forcibly by way of fixed deposit to get release the title deeds of their house lying deposited with the opposite party Bank. They failed to deliver original certificate of deposit despite payment of the entire amount. It is further alleged that no auction had taken place regarding the property of the complainants as they had deposited an amount of Rs.1,50,000/- on 24/7/06 and also affidavit duly sworn to the effect that they would pay entire amount regularly and the same has now been paid between 10/8/06 to 7/10/08. It is further alleged that since the payment is being made regularly between the period as has been given , the proceedings, if any to the effect of auction seems to be a paper tiger just to benefit M/s Gats Financial Services at Ludhiana due to connivance of the opposite party Bank with the same to cause financial loss to the complainants. Once no auction has taken place, there is no law even to levy the expenses of the same on the complainants. . Since the opposite party Bank failed to deliver fixed deposit receipt of Rs.1,70,000/- illegally deposited to the complainants and it amounts to deficiency in service on the part of opposite party Bank against which complainants are entitled to the reliefs claimed. <br /> 3. Opposite parties appeared, controverted the allegations of the complainants and resisted their claim. Certain preliminary objections have been raised that complainant has got no locus standi and cause of action to file the present complaint.Complainants are estopped by their own act and conduct to file the present complaint and that complainants have not come to the Forum with clean hands and have concealed the real facts in the complaint. On merits, factum of two house loans jointly raised by the complainants for <br /> Rs.9 lacs and Rs. 6 lacs on 18/8/2003 and 29/1/2004 respectively from the opposite party Bank by equitable mortgaging of their property is not disputed. It is pleaded that complainants defaulted in repayment of the regular monthly instalments of both the loans as per loan documents executed by them despite repeated requeests to pay the regular instalments outstanding against them in their loan accounts but the complainants did not pay any heed to the request of the officials of the Bank. Hence opposite party Bank initiated proceedings under Sarfesai Act 2002 under which Bank has power to to take over the possession of immovable property and to put the same on auction. .In this case, M/s Gats Financial Reconstructors Ltd. was appointed as enforcement agency for taking of the possession of the property and to put the house of the complainants on sale as per the Act ibid. . The services of the said agency were availed and due procedure was followed with the help of the District Authorities and 26/9/07 was fixed as a date for taking the possession of the property by the Tehsildar, Kapurthala When the possession of the said property was being taken by the Agency with the help of District Authorities, the complainants approached opposite party Bank for deferring the proceedings under the Sarfesai Act 2002 and gave an affidavit dated 26/9/2002 to the bank authorities promising therein to regularize their both the housing loans accounts and thus liquidated their loan accounts and as such proceedings were deferred.. It is further pleaded that enforcement agency submitted bill of Rs.1,79,234/- in the aforesaid recovery proceeding to the opposite party Bank for the amount recovered but the amount was not recovered and the complainant was informed regarding the same and complainants deposited Rs.1,70,000/- vide Fixed deposit receipt No.527847 dated 7/1/08 with the undertaking against the bill of enforcement agency and requested the opposite party Bank to accommodate them by negotiating the charges with the enforcement agency and also discharged the aforesaid FDR by signing at its back. . The said FDR is lying as security against the bill of M/s Gats Financial Reconstructors Ltd. since then. . It is denied that opposite party Bank has taken Rs.1,70,000/- from the complainants forcibly to release the title deeds. Therefore, there is no deficiency in service on the part of opposite party Bank in recovering the lawful charges on account of recovery proceedings initiated by the enforcement agency.<br /> 4. In support of their version complainants have produced in evidence affidavits Ex.CA and CB and documents Ex.C1 to C3.<br /> 5. On the other hand opposite party Bank produced in evidence affidavit Ex.RA and documents Ex.R1 to R7.<br /> 6. We have herd arguments of learned counsel for the parties and perused ocular as well as documentary evidence on the record. Learned counsel for complainants has vehemently contended that recovery of the amount of Rs.1,79,000/- from the FDR amount amounting to Rs.1,70,000/- towards auction proceedings allegedly deducted by M/s Gats Financial Reconstruction Ltd. despite the deferment of the auction and repayment of two housing loans amounts not only to deficiency in service but also unfair trade practice to stifle the complainants/borrowers. On the other hand counsel for the opposite party Bank has justified recovery of the amount of Rs.1,79,234/- towards expenses on auction proceedings through recovery agency as per bill Ex.R4 dated 4/1/08 and also admission of the complainants vide their application Ex.C2 dated 4/1/08 for debiting the same to their loan accounts in respect of sarfesai action.<br /> 7. These broad facts are not disputed that complainants submitted affidavit Ex.C1 dated 26/9/07 undertaking therein to regularize their two loan accounts for deferment of auction proceedings through Tehsildar, Kapurthala and the proceedings were dropped as per the letter of State Bank of India dated 26/9/07 and also Police report Ex.C3 dated 30/10/07 though earlier notice was issued to the complainants under section 14 of Securitisation Reconstruction of Financial Assets and Enforcement of security interest Act, 2002 for vacation of the mortgaged property. It is true that amount of Rs.1,70,000/-vide Ex.R3 was deposited with the Bank as security as its delivery was taken by the State Bank of India as security against the sarfesai bill. No doubt, M/s Gats Financial Reconstructors Ltd. also submitted bill of Rs.1,79,234/- vide Ex.R4 as professional fee as they were engaged by the opposite party Bank in taking possession of the mortgaged property of the complainants. The functions assigned to the said Company are well elaborated in para-2 of the letter Ex.R5 in furtherance of the enforcement of the bank rights available to it under Section 13 of Sarfesai Act,2002 in respect of the assets charged to the bank. The perusal of this document Ex.R5 clearly indicates that these functions are to be discharged by the recovery agency M/s Gats Financial Reconstructors Ltd. in taking possession of the assets mortgaged with the Bank and its subsequent proceedings. Since auction proceedings were dropped prior to taking of these steps and after receipt of notice from Tehsildar on account of acceptance of request of the complainants/defaulters to repay the entire loan amount and also its actual payment, so auction proceedings cannot be said to have culminated to take possession of the property and consequent necessary actions by recovery agency envisaged in the letter Ex.R5. The mere factum of delivery of fixed deposit receipt Ex.R3 for the amount of Rs.1,70,000/- by the complainants vide Ex.R2 to the Bank vide Ex..R3 dated 7/1/08 does not operate as estopple when the the functions assigned to the recovery agency were not consummated to its logical end. It is, therefore, unfair on the part of opposite party Bank to recover the hafty amount of Rs.1,70,000/- vide FDR Ex.R3 taken as security towards expenses, even if services for the full auction proceedings were not availed by it. We are, therefore, of the opinion that recovery to the extent of Rs.20,000/- towards immature recovery proceedings seems to be just proper and reasonable.<br /> In the ultimate analysis of aforesaid discussion we accept complaint of the complainants partly with direction to the opposite party Bank to release FDR to the extent of Rs. 1,50,000/-with interest @ 9% p.a. from date of deposit till realisation to the complainant with further direction to pay Rs.2000/- as cost of litigation to the complainants within one month from the receipt of copy of this order.<br /> Let certified copies of judgment rendered be supplied/despatched to the parties without any unnecessary delay and thereafter file be consigned to the record room.<br /> <br /> <br /> Announced : ( Surinder Mittal ) ( A.K. Sharma )<br /> <br /> 26-8-2008 Member President.