Sri B.NARAYANAPPA,

     President

1. The complainant No.1 Sri. Rameshwar Trading Company, Mysore and complainant No.2 Sri. Ravi. B have filed this complaint against the opposite party Canara Bank, Mysore praying to direct the opposite party to return/deliver back the Title Document i.e., Registered Sale Deed dated 20.04.1987 to the complainant No.1 in respect of schedule property and to pay Rs.1,00,000/- towards mental tension, harassment and expenses.

2. The brief facts are that:-

The complainant No.1 was having an OD Account bearing No.1715.125.1276 with the opposite party and closed the same on 05.06.2019 by paying the entire outstanding amount.The opposite party acknowledged for the same and issued Loan Closure Certificate dated 06.06.2019.At the time of availing the said OD Account the opposite party has taken the Title Deed dated 20.04.1987.The complainant No.1 being the absolute owner of the schedule property had gifted the same in favour of complainant No.2 through the Registered Gift Deed dated 21.04.2017.Thus the complainant No.2 has become the full and absolute owner of the schedule property.

3.      After closing the said OD account the complainant No.1 requested to deliver back Title Document dated 20.04.1987 but the  opposite party refused to return the same under the pretext that the complainant No.1 is the guarantor for the loan availed by M/s Ram Enterprises represented by its Proprietor Sri Roop Ram and executed Guarantee Agreement dated 26.07.2017 in favour of opposite party and it is further contended that the complainant Nos.1 and 2 learnt that the property of principal  borrower in the alleged Guarantee Agreement  has been taken as security for the same.  The opposite party has no right or whatsoever over the schedule property.  The complainant No.1 was no longer the owner of the schedule property as on the date of executing the said Guarantee Agreement dated 26.07.2017 since already he had gifted the same in favour of complainant No.2 on 21.04.2017.    Hence, the opposite party has no locus standi to withhold the Title Document and the opposite party  is duty bound to return the same, the act of the opposite party in not delivering the document even after closure of OD account is amounts to deficiency in service.  The complainant issued legal notice to opposite party on 11.06.2019 the opposite party instead of delivering back the Title Document given evasive reply.  Hence, this complaint.

4. After registration of this complaint, notice was ordered to be issued to opposite party.  In response to notice the opposite party appeared through its counsel and has filed version stating that the complaint is not maintainable either in law or on fact, hence the same is liable to be dismissed and admits that the complainant No.1 had availed Over Draft loan account with the opposite party and closed the same on 05.06.2019 and the opposite party issued loan closure certificate on 06.06.2019 and denied the averments made in para-3 of the complaint  that at the time of availing O.D loan account, the opposite party has taken the Title Document dated 20.04.1987 in respect of schedule property without creating charge as not correct and contended that the complainant No.1 created an equitable mortgage by depositing Title Deed for the loan of Rs.8,00,000/- and executed confirmation of creation of 2^nd subsequent equitable mortgage on 18.06.2010 pertaining to the schedule property.  As such Title Deeds are in the custody of opposite party Bank.  During the subsistence of mortgage the complainant No.1 has no right to transfer the mortgaged property by means of gift in the absence of discharge of debt to anybody.  To execute the alleged Gift Deed the complainant No.1 has not obtained any permission from the opposite party in the absence of the same the alleged transfer is not valid and the same is concocted to defraud opposite party and admits after closure of O.D. Account,  complainant No.1 approached opposite party to deliver the Title Document and further admits that opposite party Bank refused to return the said documents as the complainant No.1 is guarantor to the loan availed by his son Roop Ram Proprietor of Ram Enterprises.  Hence, liability of the guarantor is co-existence with the principal debtor and denied the averments made in para 6 of the complaint that the complainant is no longer  the owner of the schedule property as on the date of executing the Guarantee Agreement dated 26.07.2017 as not correct.  The alleged Gift Deed dated 21.04.2017 is a created and Sham document and further denied averments made in para 7 of the complaint that the opposite party has no right over the Title Deed dated 20.04.1987.  The complainant No.1 is the guarantor of the loan of his son Roop Ram, Proprietor of Ram Enterprises, it is the duty of the complainant No.1  to clear debt of his son.  Therefore he is  not entitle for return of document and it is contended that the son of complainant No.1 namely Roop Ram, Proprietor of Ram Enterprises availed O.D account facility from opposite party Bank on 26.07.2017 to the limit of Rs.80,00,000/- for the improvement of his business and executed a Composite Hypothecation Agreement, but failed to discharge the debt and there is an outstanding balance of Rs.95,34,279.89/-.  The complainant No.1 executed Guarantee Agreement on 26.07.2017 he being the guarantor to the loan of his son Roop Ram, he is jointly and severally liable to pay the loan amount to opposite party.  For all these reasons prays to dismiss the complaint.

5.  The complainant No.2 in support of his case has filed his affidavit by way of examination in chief and the same was taken as P.W.1 and got marked Exhibit P.1 to P5.   On the other hand the opposite party has also filed its affidavit by way of examination in chief and the same was taken as RW.1 and got marked Exhibit R.1 to R4.  

6. We have heard the arguments of both sides.  The complainant has also filed written arguments.  

7. The points that would arise for our consideration are as under:-  

1. Whether the complainant proves that the act of opposite party in not delivering back the Title Documents dated 20.04.1987 is amounts to deficiency in service and unfair trade practice?
2.  What order?

8.       Our findings on the aforesaid points are as follows:

       Point No.1 :- In the negative;

      Point No.2 :- As per final order for the following

:: R E A S O N S ::

9.        Point No.1:- The learned counsel for the complainant has vehemently argued as per the contention taken in the complaint averments, affidavit of complainant and documents produced in support of complainant and as per notes of arguments.  On the other hand counsel for the opposite party has also vehemently argued as per the contention taken in the version and documents produced in support of opposite party.

10.      We have carefully gone through the records such as complaint averments, affidavit of complainant, documents produced by the complainant and notes of arguments and version of opposite party and documents produced on behalf of opposite party.

11.      It is undisputed fact that the complainant No.1 had availed O.D Account bearing No.1715.125.1276 with the opposite party and the same was closed on 05.06.2019 and the opposite party had issued loan closure certificate on 06.06.2019.

12.      It is the specific contention of complainant No.1 that even after closure of O.D. account on 05.06.2019 the opposite party did not return the Title Documents dated 20.04.1987 and  retained the same without any reasons and it is the duty of the opposite party to return back the Title Document after closure of O.D. account on 05.06.2019, but  did not do so and the complainant No.1 specifically contended that he being the absolute owner of schedule property gifted the same to the complainant No.2 by executing the Registered Gift Deed dated 21.04.2017 as such he was no longer owner of the schedule property, complainant No.2  become the owner of the same by virtue of Gift Deed dated 21.04.2017 and he further contended that he executed Guarantee Agreement dated 26.07.2017 in favour of opposite party for the loan availed by M/s Ram Enterprises represented by its Proprietor Roop Ram and as he was not the owner as on 26.07.2017 the opposite party has no locus standi to withhold the document dated 20.04.1987.

13.      Per contra the opposite party has specifically contended that the complainant No.1 created equitable mortgage by depositing of Title Document in favour of opposite party for security for the loan of Rs.8,00,000/- and executed an confirmation of creation of  second subsequent equitable mortgage dated 18.06.2010 in respect of complaint schedule property as such the Title documents are in the custody of opposite party.  During the subsistence  of mortgage the complainant No.1 has no right to transfer mortgaged property by means of gift without the permission of opposite party.  Hence, the alleged Gift Deed dated 21.04.2017 is a Sham created document and further clearly contended that complainant No.1 is the guarantor to the loan of M/s Ram Enterprises and executed Guarantee Agreement dated 26.07.2017 for the loan availed by his son Roop Ram, Proprietor of M/s Ram Enterprises to the limit of  Rs.80,00,000/- and the said loan has not been cleared and the outstanding balance is in a sum of Rs.95,34,279.89/- unless and untill the complainant No.1 being the guarantor to the said loan of his son cleared loan of his son.  The Bank has lien over the schedule property.  Therefore only after clearance of loan the complainant No.1 is entitle to receive back the Title Document.  The opposite party in support of its contention  produced Composite Hypothecation agreement executed by the son of complainant No.1 namely Roop Ram for the loan availed to the tune of Rs.80,00,000/- for which the complainant No.1 was the guarantor and the opposite party also produced Guarantee Agreement  executed by complainant No.1 in respect of said loan and also produced confirmation of creation of second subsequent equitable mortgage executed by complainant No.1 for availing loan of Rs.8,00,000/- on 18.06.2010 by depositing of Title Document dated 20.04.1987 and created equitable mortgage by depositing of Title documents dated 20.04.1987.  So from the documentary evidence produced by the opposite party, it is crystal clear that the complainant No.1 created equitable mortgage by depositing  of Title Deed dated 20.04.1987 for availing loan of Rs.8,00,000/- from opposite party on 17.06.2010 and the said loan is not yet cleared and it is also cleared from the documentary evidence of opposite party that the complainant No.1 knowing fully well that he created equitable mortgage in favour of opposite party Bank for availing loan of Rs.8,00,000/- pertaining to schedule property purposefully in order to defraud the opposite party has gifted the schedule property in favour of complainant No.2 on 21.04.2017 without the permission of the opposite party Bank.  Therefore the execution of alleged Gift Deed is  nothing but a created and Sham document which is no longer valid document and the opposite party has further clearly contended that the complainant No.1 even after execution of alleged sham document called Gift Deed dated 21.04.2017 stood as guarantor to the loan of his son Roop Ram of Rs.80,00,000/- and executed Guarantee Agreement dated 26.07.2017 and the said loan has not been cleared by the son of complainant No.1 and complainant No.1 being the guarantor of the said loan of his son is also liable to discharge the loan of his son.  In view of the complainant No.1 had created equitable mortgage by depositing of Title Deed  dated 20.04.1987 for availing loan of Rs.8,00,000/-  by complainant No.1 from opposite party Bank and also stood as guarantor by executing Guarantee Agreement to the loan of his son Roop Ram for Rs.80,00,000/- and in view of the said two loans have not been cleared by complainant No.1 and his son Roop Ram. The complainant No.1 has no right to seek to return of Title Document dated 20.04.1987 unless and until the said two loans are cleared and the opposite party further clearly contended that in view of the complainant No.1 has created mortgage by depositing of Title Deed dated 20.04.1987 for the loan availed by him of Rs.8,00,000/- and executed guarantee agreement for the loan availed by his son of Roop Ram of Rs.80,00,000/- from  opposite party Bank through the opposite party has lien over the schedule property till loan availed by complainant No.1 of Rs.8,00,000/- and loan availed by the son of complainant No.1 by Roop Ram of Rs.80,00,000/- are cleared.

14.      Considering the contention of the opposite party, it appears that the opposite party has lien over the schedule property in respect of loan availed by complainant No.1 on 18.06.2010 by creating equitable mortgage by depositing of Title Deed dated 20.04.1987 in respect of schedule property and as the complainant No.1 is the guarantor to the loan of Rs.80,00,000/- availed by his son Roop Ram and executed Guarantee Agreement dated 26.07.2017.  The opposite party Bank has lien over the said two loans under such circumstances the contention taken by the complainant No.1 that even after O.D. account No.1715.125.1276 was closed on 05.06.2019.  The opposite party Bank refused to deliver back the Title Documents dated 20.04.1987 is of no relevance.  Since the complainant No.1 has availed loan of Rs.8,00,000/- on 18.06.2010 from opposite party Bank by creating equitable mortgage by deposit of Title Deed dated 20.04.1987 in respect of  schedule property and executed Guarantee Agreement dated 26.07.2017 for the loan availed by his son Roop Ram of Rs.80,00,000/- from opposite party and till clearance of said two loans, the complainant No.1 is not entitle to get back the title documents  since opposite party Bank has lien over the schedule property.  Therefore complainant No.1 cannot seek to return of Title Deed dated 20.04.1987.  Ongoing through the facts and circumstances of the complaint and the case of the opposite party there is no unfair trade practice and deficiency in service on the part of the opposite party and the complainant No.1 has utterly failed to prove the unfair trade practice and deficiency in service of the opposite party.  Therefore we answer point No.1 in the negative.

15. Point No.2:- For the aforesaid reasons, we proceed to pass the following

:: ORDER ::

1. The complaint of the complainant is dismissed.
2. No order as to cost.
3. Furnish the copy of order to both the parties at free of cost.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Forum on this the 7^th August, 2020)