DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No 221 of 2015
Date of filing: 06.11.2015 Date of disposal: 02.12.2015
Complainant: Sri Satyabrata Coomar, S/o. Late Pannalal Coomar, resident of 736A, Block ‘P’, New Alipore, Kolkata – 700 053.
-V E R S U S-
Opposite Party: State Bank of India, Kalna Branch, Represented through its Branch Manager, having its office at Post Office & Police Station: Kalna, District: Burdwan, Pin – 713 409.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder
Hon’ble Member: Sri Pankaj Kmar Sinha.
Appeared for the Complainant: Ld. Advocate, Saurav Kumar Mitra.
Order No. 07, Dated: 02.12.2015
The ld. Counsel for the complainant is present by filing hazira. Today is fixed for admission hearing of the complaint. We have carefully perused the petition of complaint along with several documents filed by the complainant. The brief fact of the case of the complainant is that at the time of execution of loan agreement some Title Deed and documents were pledged before the OP as security of the loan amount by the complainant. During pendency of the loan agreement several discrepancies cropped up by and between the parties regarding repayment of the loan amount and for that reason the OP-Bank filed a Title Suit against the complainant which was registered as Title Suit No. 24/1990 before the ld. Civil Judge (Senior Division) At Kalna. The said case was decreed in favour of the Op and the Op as decree holder filed an execution case bearing Title Execution Case no. 01/2015 before the said ld. Court. By getting notice of the said Execution Case the complainant appeared along with a petition u/S. 47 of the CPC. Subsequently for resolving the dispute the complainant filed a petition under Order 21, Rule 55 of the CPC and also filed a demand draft of the decreetal amount as stated in the said petition. The ld. Civil Judge (Senior Division) vide its order no. 60 dated 03.11.2013 was pleased to dispose of the said case directing the OP-Bank for returning the pledged documents in favour of the complainant. Since passing of the above-mentioned order the complainant on several occasions visited the office of the OP but it did not pay any heed to the request for returning of the pledged documents in favour of him. Thereafter one notice was sent through his Advocate on 10.6.2013, but to no effect. On 14.5.2015 the complainant issued a notice u/S. 5 of the RTI Act. Though the said notice was duly served upon the OP- Bank, it did not provide any information regarding the pledged documents. Being a bonafide customer of the OP and inspite of making payment of the entire decreetal amount the Bank has been kept the pledged documents under its custody without returning the same to the complainant. For this reason the complainant believes that the OP has lost the pledged documents but it is not disclosing the same before him. According to the complainant such non-returning of the Title Deed to the complainant inspite of making entire payment of loan amount is an example of deficiency in service on the part of the OP-Bank. Being dissatisfied and admit with such action and attitude of the bank this complaint has been initiated by the complainant praying for making direction upon the OP for returning the pledged documents in his favour, to pay a sum of Rs. 50,000=00 as compensation due to mental pain, agony and harassment and litigation cost of Rs. 25,000=00.
It is submitted by the ld. Counsel for the complainant that inspite of specific order made by the ld. Civil Executing Court, as the OP did not take any step for returning the pledged documents to him, such action can be said as deficiency in service as well as unfair trade practice of the Bank and for this reason this complaint is very much maintainable before this ld. Forum. It is further submitted by the complainant that though the order no. 60 was passed on 03.01.2013 by the ld. Civil Judge (Senior Division), as the OP Bank has failed to return the pledged documents to him, the cause of action is continuing and according to the complainant this complaint does not hit the Section of 24A of the CP Act, 1986. The ld. Counsel for the complainant has further contended that in the prayer portion he has made manifold payers and if this ld. Forum is not satisfied with the payer no. 1, this ld. Forum has ample opportunity to allow the prayer no. 2 of the complaint very much because the activity of the bank suffers from deficiency in service as well as unfair trade practice. Prayer has been made by the complainant to admit this complaint. The complainant has relied on several judgments in support of his contentions. It is submitted by the ld. Counsel for the complainant that on 10.6.2013 and 14.5.2015 two Advocate’s notice were issued by the complainant to the OP-Bank praying for returning the pledged documents.
Upon careful perusal of the complaint along with the documents filed by the complainant it is seen by us that in respect of prayer no. 1 wherein direction has been prayed for returning the pledged documents in favour of the complainant, as such direction has already been made by the ld. Civil Judge (Senior Division) vide its order no. 60, dated 03.01.2013, this ld. Forum cannot made any direction to the OP-Bank further. If the OP-Bank is violating the order dated 03.01.2013 passed by the ld. Civil Judge, Senior Division, the complainant may approach before the appropriate court for his redressal. As the competent ld. Civil Judge has already redressed the grievance of the complainant, sitting at the Consumer Forum we cannot pass any order further in respect of the prayer no. 1 as mentioned in the petition of complaint. In respect of prayer no. 2 as sought for by the complainant we are of the view that firstly for holding a service provider as deficient, at the very outset the complaint should be proved. Until and unless the complaint is proved by way of evidence, it can hardly be said that the activity of the service provider suffers from deficiency in service as well as unfair trade practice and moreover, until it is proved no amount can be awarded in favour of the complainant due to deficiency in service as well as unfair trade practice of any service provider. Secondly, the prayer no. 2 wherein the complainant has sought for compensation and litigation cost, the claim is barred by limitation because the ld. Civil Judge (Senior Division) passed its order no. 60 on 03.01.2013. Therefore it was the primary duty of the complainant to file this complaint before this ld. Forum within a period of two years from the date of cause of action to save the limitation but without doing so this complaint has been initiated by the complainant on 06.11.2015 without furnishing a petition praying for condonation of delay u/S. 24A of the C. P. Act, 1986. From the order of the ld. Civil Court it is also evident to us that on 10.10.2012 (Order no. 57 of the Execution Case 01/2015) when the complainant paid the entire decreetal amount for Rs. 1, 35,998=00 along with cost of Rs. 5,000=00 by issuing a cheque and on that date the complainant got knowledge that as the decreetal amount has duly been paid by him, the OP-Bank is under obligation for returning the pledged documents to him. As the cause of action arose on 10.10.2012 or 03.10.2013 whatever it may be, and this complaint has not been initiated within the statutory period of limitation i.e. within two years from the date of cause of action, the prayer no. 2 of the petition of complaint cannot be allowed because the complaint hits the Section 24A of the C.P. Act, 1986. In respect of the Advocate’s letter dated 10.6.2013 & 14.5.2015 as mentioned by the ld. Counsel for the complainant it is seen by us that admittedly two letters were issued upon the OP-Bank regarding submission of the complainant that it is a case of continuing cause of action as the last letter was issued on 14.5.2015 and this complaint filed on 06.11.2015, we are of the opinion that latter written correspondences cannot save the limitations. Where the cause of action arose on either 10.10.2012 or 03.10.2013 whatever it may be, two Advocate’s letters on aforementioned dates cannot save the limitation of this complaint.
The complainant has relied on the judgment passed by Hon’ble SCDRC, Kerala, reported in 2015 (1) CPR (18) wherein it has been held that question of limitation does not arise when there is continuous cause of action. Upon careful perusal of the said judgment in our view the observation cannot be implemented in the case in hand because the averment of the complaint does not reveal the continuous cause of action. On the contrary, in this complaint the cause of action arose either on 10.10.2012 or 03.01.2013. The complainant has also placed reliance on the judgment of Hon’ble SCDRC, Delhi reported in 2010 (4) CPR (291) wherein it has been held that consumer complaint cannot be dismissed at admission stage. We have perused the said judgment and in our view the said judgment cannot be applicable in this complaint because the facts and circumstances of the two cases are not same and identical in nature. Further reliance has been placed on the judgment of the Hon’ble SCDRC, Kerala reported in 2015 (1) CPR (16) wherein it has been held that Bank is bound to return the original Title Deeds after closure of loan account. After going through this judgment we are of the opinion that we are also of the same view with the abovementioned observation because it is the obligation of the Bank to return the pledged documents upon realization of the entire loan amount. But in the case in hand this judgment cannot be applicable because as the ld. Civil Judge (Senior Division) has already passed an order directing the Bank for returning the pledged document to the complainant, now sitting in the Consumer Forum we cannot pass the same order further. We have also perused the judgment passed by the Hon’ble NCDRC reported in 2012 (1) CPR (NC) 87 wherein Their Lordships have held in paragraph no. 18 that the remedy under the C.P. Act, 1986 is in addition and not in derogation of other remedy provided under the other Acts. It was also observed that District Forum has jurisdiction to decide the dispute between the members of the cooperative society and in view of the arbitration agreement its jurisdiction is not oust………. In our view the observation as made in the said judgment is an admitted proposition of law. But the facts and circumstances of the said judgment is totally different from the case in hand because in the relied case there is no averment that the ld. Civil Court had passed an order and after passing the same the complainant approached before the Consumer Forum further for redressal. As the facts are not identical, in our view the said judgment cannot be applicable in the case in hand. The complainant has relied on another two judgment i.e. 2015 (2) CPR (NC) 86 & 2015 (2) CPR (NC) 322. After perusal of those judgments we are of the view that the facts are not identical with the instant complaint, therefore cannot be applicable in the case in hand.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is dismissed without being admitted as it is not maintainable before this ld. Forum as well as it is barred by limitation in view of Section 24A of the C.P. Act, 1986. Considering the facts and circumstances of the case there is no order as to costs.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
