BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 10th day of March 2015
Filed on :16/06/2012
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.361/2012
Between
Thomas K.P., : Complainant
S/o. K.P. Paily, (By Adv. Biju Abraham,
Kochuvenkulathil house, K/402/1989, Carmel Centre,
Kizhakombu P.O., Banerji road, Cochin-18)
Koothattukulam.
And
State Bank of India, : Opposite party
Rep. by its Branch Manager, (By Adv. G.G. Manoj, 5/2, Empire
Mutholapuram Branch, Building, Near High Court,
Ernakulam-686 665. Ernakulam)
O R D E R
Cherian K. Kuriakose, President.
The complainant Mr. Thomas K.P. availed a loan from the opposite party M/s. State Bank of India by pledging his documents by equitable mortgage. The bank did not return the original documents in spite of making the entire payment to the bank. On enquiry by the complainant at the opposite party bank, it was revealed that the original document has been irrecoverably lost from the custody of the bank. The complainant who was provided with a certified copy of the original document was dissatisfied with the action of the opposite party and therefore had approached this Forum for claiming a compensation of Rs. 5,00,000/- towards deficiency in the service and also for a direction to make alternate arrangements by the bank itself to get the duplicate copy of the original document from the appropriate authority.
2. The complainant’s case in detail.
As per loan No. MTL/91 the complainant availed a loan of Rs. 72,000/- during the year 1998 pledging the title deed of 22 cents of property obtained a s per deed No. 60/97 of Sub Registry Office, Koothattukualam. The tax paid receipt, encumbrance certificate for the last 13 years, sketch and plan of the property etc were also provided to the opposite party bank, while availing the loan. The complainant could not repay the loan due to financial difficulties and the entire loan availed by the complainant were subsequently realised by the opposite party by resorting to Revenue Recovery Proceedings. The entire loan transaction was closed on 31-10-2011. However the opposite party refused to return the documents mortgaged by the complainant in the opposite party bank. The complainant was not given any satisfactory answers to quiry with regard to the original documents. After a period of 7 months the complainant was informed by the bank that the entire documents mortgaged by the complainant were lost from the custody of the opposite party. The complainant had borrowed lot of money from the various persons to repay the bank loan availed by him, since the bank had resorted to Revenue Recovery Proceedings for the recovery of the loan. The opposite party bank was bound to return the original documents to the complainant who is a customer and it had committed deficiency in service. It is not known to the complainant that the opposite party bank had resorted to any official action by intimating the police or other appropriate authority with regard to the loss of original documents belonging to the complainant. Since the original documents have been lost, the value of the property of the complainant was diminished considerably, he has become handicapped to avail any loan by pledging the original documents of the property and therefore had incurred much loss and difficulties to him and his family. The complainant had approached the opposite party bank to accept the certified copy of the original title deed as equitable mortgage to avail a further loan. But the very same bank, the opposite party had turned down the request of the complainant to accept the certified copy of the original title deed as a substitute for the original deed as equitable mortgage. The original title deed was lost only due to the negligent and irresponsible handling of the documents by the opposite party. The complainant was put to irreparable loss and injury, mental agony, financial loss and diminition of utility of the property, consequent to the negligent and irresponsible act of the opposite party in banking service. The complainant therefore claims compensation as aforesaid.
2. The opposite party appeared and filed their version contending inter-alia that the opposite party bank has taken all efforts to find out the misplaced original title deed of the complainant which was deposited with the bank. There was no willful negligece or laches on the part of the opposite party bank in the matter. There is only a misplacement of the title deed and the bank is taking every effort to retrieve it. No police complaints were preferred since the opposite party believe that the original title deed could be retrieved later. The bank is ready to issue a certificate to the effect that the document was misplaced from the opposite party’s custody and further that the bank has no subsisting charge or claim over the property or on the title deeds. The diminition of value of the property as alleged by the complainant due to the loss of title deeds is incorrect. The complainant has not suffered damage as alleged. In spite of the fact that the opposite party had already issued a certified copy of the title deed along with the required certificate of the bank, the complainant had purposefully refused to accept the same. It can not be treated that misplacement of the document of the property would tantamount to loss of value of the property. The loan transaction and repayment after initiation of the Revenue Recovery Proceedings alleged in the complaint are admitted. The opposite party bank had issued a notice to the complainant on 20-03-2012 as per letter No. 3-502 by the registered post requiring to repay the loan amount in full. Immediately the complainant had repaid the loan granted as per the agreement. The complainant had availed the loan for the purpose of construction of a house but he had diverted the fund for the purpose otherwise than it was granted. It was for that reason notice dated 20-03-2012 had to be issued. A lawyer notice was also to be issued to the complainant on 20-11-2012. It was due to non-repayment, the bank had to resort to the proceedings under the Revenue recovery Act for the realization of the amount due. The request of the complainant to provide further loan on the strength of the certified copy of the original title deed was turned down, consequent to the established fact that the complainant was not found worthy to avail a loan since he had defaulted the original loan transaction in many respects. There is no negligence on the part of the bank as alleged. The non-issue of the title deed does not make a cause of action for the complainant to file this complaint under the Consumer Protection Act. In the above circumstances the complaint is sought to be dismissed.
3. The following issues came up for consideration
i. Whether there is any deficiency in service on the part of the opposite party bank in not returning the original document deposited in the bank by the complainant by way of equitable mortgage?
ii. Is the complainant entitled to get a compensation and if so the quantum thereof?
iii. Reliefs and costs.
4. The evidence in this case consisted on documentary evidence. Exbts. A1 to A3 on the side of the complainant and Exbts. B1 to B9 on the side of the opposite party bank.
5. Issue No. i. The fact that an amount of Rs. 72,000/- was advanced to the complainant in the year 1998 by the opposite party, on depositing the title deed of the complainant as equitable mortgage, is no more in dispute. The loan liability was closed by the complainant on 31-10-2011. However the title document of the complainant was not returned. Several representations made by the complainant before the opposite party did not yield any result. The loss of original title deed of the property of the complainant while in the custody of the opposite party bank was due to the careless and improper service provided by the opposite party, argued the learned counsel for the complainant. The learned counsel also submitted that the complainant was not in a position to handover the property beneficially since there is already a cloud cast to title deed consequent to the missing of the original title deed. The value of the property has been considerably diminished due to the loss of the original title deeds. The fact that the opposite party itself has declined to give any loan based on the property on the strength of the certified copy of the title deeds itself would reveal the extent to which damage has been inflicted on the complainant due to the deficiency of service of the opposite party. The complainant also submitted that he has apprehension that the original documents were misplaced at the instance of the officers of the opposite party bank. The Revenue Recovery Proceedings were initiated against the complainant by the opposite party bank without resorting to the alternate remedy available to them only because of the fact that the bank knows that the title deed were lost for ever. The theory of the misplacement of the document pleaded by the opposite party at the fag end of the proceedings is only a ruse to escape from the liability to pay exemplary compensation through the award of this Forum. The complainant was put to lot of mental agony as the property belonging to the complainant had become worthless for easy transaction and conveyancing. The action of the opposite party in not providing original documents which was mortgaged, would amount to unfair trade practice in banking services and therefore the complainant is entitled to get exemplary cost, argued the learned counsel for the complainant. The opposite party was bound to provide the duplicate sale deed to the complainant in place of the missing documents by regenerating the authenticated copy of the documents at the cost of the opposite party after giving due publication and notice to the public so as to enable the complainant to use the duplicate copy in the place of the original document which was lost.
6. The learned counsel for the opposite party argued on the strength of the Exbt. B9 that the bank was liable to pay only Rs. 5,000/- in the event of delay in return of the documents. According to the learned counsel for the opposite party, Exbt. B9 document is not helpful to the opposite party in fixing the compensation. According to the learned counsel for the complainant Exbt. B9 compensation policy is a private communication issued among the officers and staff of the opposite party bank and no notice with regard to the Exbt. B9 was given to the complainant either at the time of sanctioning the loan or at any time prior to it. The learned counsel submitted that the attempt of the opposite party in fixing the damages or compensation relying on their circular, is equivalent to that of an accused who himself fixing the quantum of sentence to be awarded against him. The opposite party is admitting the defect in its service. Therefore the complainant is found entitled to get compensation, since admitted fact is not necessary to be proved, We take the admission of the opposite party that the original title deed are not available for it to be returned to the complainant. Exbt. B1 document would go to show that the bank had communicated to the complainant on 29-05-2012 that the bank was unable to trace the missing title deed and that they regret the inconveniences caused to the complainant. Even though the bank had pleaded that there was no question of missing of the document and it was only a case of misplacement , Exbt. B1 document dated 01-08-2012 issued by the bank to the complainant would go to show that the certified copy was being sent to the complainant in place of original document which was “lost from the custody of the bank”. The opposite party bank has no specific case as to whether the document was lost irrecoverably or was it a case of misplacement. Contradictory statements given by the opposite party bank also depict its deficiency in service. State Bank of India is the leading bank of India and it is a Government of India concern. Customers repose their faith in the bank with the fond hope that their requirements would be properly supplied by the bank. The proved facts in this case, would reflect that the bank was taking things very lightly after losing the precious title document of customer. We find gross negligence on the part of the Nationalized bank such as the opposite party in dealing with the title document of the consumer which would require payment of substantial compensation to the complainant under various heads of damages. We find issue No. 1 in favour of the complainant in the above circumstances.
7. Issue No. ii. This issue pertains to the question of awarding damages. The complainant had claimed compensation of Rs. 5,00,000/- for the damages caused to him due to the omission to return of the original title documents. The complainant had narrated the various aspects by which he had suffered, due to the missing of the original title document. The property pertains to an extend of 22.1/2 cents of land. An amount of Rs. 72,000/- was sanctioned as loan as early as 1998. Almost 17 years has been elapsed since the complainant had availed the loan. The value of the property had been increased considerably. The Loan granted on the strength of the property was Rs.72,000/- 17 years back and a reasonable value of the property would have been Rs.5,00,000/-. Now, after 17 years, the value of the property would have been at least 10 times,
which would have been Rs. 50,00,000/- by now. The complainant had prayed for a compensation of Rs. 5,00,000/- which we find eminently reasonable. Accordingly we award an amount of compensation to be paid by the opposite party to the complainant as prayed for at Rs. 5,00,000/-. Considering the various circumstances of the case and considering the status of the opposite party and weighing upon the circumstances by which the opposite party had dealt with the matter, we express our strong disapproval with regard to the action taken by the bank in not providing solace to the complainant. We feel that we will be failing in our duty if the opposite party is not saddled with the exemplary costs. Exemplary cost is awarded to the complainant on the fervent hope that a National Bank of such a huge stature as that of the opposite party would mend its ways in dealing with the valuable documents of the customers in future. We award Rs. 50,000/- by way of exemplary cost to the complainant. The opposite party bank is directed to provide a duplicate copy of the original title deed taken from the Registration Department, Government of Kerala and also to provide a certificate expressing their remorse in having lost the title deed of the petitioner from their custody.
8. Issue No. iii. In the result the complaint is allowed as follows:
i. The opposite party bank is directed to return the original title deed if retrieved if not to obtain a registration copy of the title deed at their cost and to hand over the same to the complainant along with a certificate showing that there are no dues outstanding to the opposite party.
ii. The opposite party bank is directed to pay a sum of Rs. 5,00,000/- by way of compensation to the complainant within 30 days. That amount will carry interest @ 12% from the date of default .
iii. The opposite party is also directed to pay Rs. 50,000/- by way of exemplary costs to the complainant within 30 days from the date of this order. This amount also carry interest @ 12% from the date of default.
The relief as above to the complainant within 30 days from the date of
receipt of this award.
Pronounced in the open Forum on this the 10th day of March 2015.
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits:
Ext. A1 : Copy of letter dt.22/11/2011
A2 : Copy of letter dt. 12-03-2012
A3 : Copy of letter dt. 29-05-2012
Opposite party’s Exhibits:
Exbt. B1 : Copy of letter dt. 20-03-02
B2 : Copy of letter dt. 01-08-2012
B3 : Copy of letter dt. 29-05-2012
B4 : Copy of agreement
B5 : Copy of certificate dt. 01-08-2012
B6 : Copy of letter dt. 01/08/2012
B7 : Copy of registered cover
B8 : Copy of postal receipt
B9 : Copy of compensation policy
Depositions:
PW1 : Thomas K.P.
DW1 : Vijayakumar K.K.
Copy of order despatched on:
By Post: By Hand:
