BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.73/2009 Order dated this the 27th day of October 2009 COMPLAINANT/S Sri.H.L.Puttaiah S/o Late Patel Lingegowda, Excise Contractor, Hanakere, Mandya Taluk. (By Sri.H.P.Sadashivappa., Advocate) -Vs- OPPOSITE PARTY/S 1. The Manager, Syndicate Bank, 1st Cross, Ashoknagar, Mandya City. 2. The General Manager,Syndicate Bank (Main), Corporate Office, Jayanagar, Bangalore. (By Sri.B.K.Ganapathi., Advocate) Date of complaint 20.06.2009 Date of service of notice to Opposite parties 29.06.2009 Date of order 27.10.2009 Total Period 3 Months 28 Days Result The complaint is partly allowed, directing the 1st Opposite party Bank to pay compensation of Rs.6,500/- to the Complainant with cost of Rs.1,000/- within six weeks. The Complainant is directed to get back the documents produced by the Opposite party from this Forum. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the Opposite party for a direction to return the original documents deposited to the Opposite party Bank for loan and to direct to pay damages of Rs.5,40,000/- and further damages of Rs.30,000/- per month from the date of complaint with costs. 2. The case of the Complainant is that the Complainant being a consumer and account holder with the Opposite party Bank had availed loan from 1st Opposite party along with his brother Late H.Madappa, in account no.33420. The Complainant himself has discharged the entire loan at about 1 ½ years back. The Complainant had deposited several documents pertaining to immovable properties with 1st Opposite party as security for loan. After discharge of the loan, the Complainant has written a letter dated 08.12.2008 to 1st Opposite party to return the said original documents. But the 1st Opposite party Bank has failed to return the said documents, but issued a letter dated 10.12.2008 directing the Complainant to obtain back only 22 documents as against total 25 documents deposited by the Complainant, for which the Complainant has represented that the said 3 documents being original documents are very much necessary and valuable documents and demanded the 1st Opposite party return all the 25 documents immediately. But, 1st Opposite party has neglected to return the said documents. In spite of legal notice to 1st & 2nd Opposite parties they have not returned the documents, nor replied. Therefore, they have committed deficiency in service. Further, the immovable property of the said documents is situated in the heart of city and near Mandya Medical College beside B.M.Road. Several offers were made by the several national and international companies to enter into a contract with the Complainant to commence a business on the said property, offering a monthly rental of Rs.30,000/. But, due to non-return of the title deeds by 1st Opposite party, the said offers could not come into being. Hence, the Complainant has sustained loss of Rs.30,000/- per month from last 1 ½ years. Therefore, the Opposite party is liable to pay the damages at the rate of Rs.30,000/- from last 1 ½ years. Therefore, the present complaint is filed. 3. The 1st Opposite party has filed version admitting that the Complainant had availed loan from Opposite party Bank, but along with his brother H.Madappa also availed the loan jointly during 1990. Due to the default and repayment of the loan, suit against the Complainant and his brother Madappa was filed before the Addl. Civil Judge (Sr.Dn.) Mandya in O.s.No.252/1998 and the same was decreed on 01.10.2005. Another suit was filed before the Debt Recovery Tribunal, Bangalore. The Complainant has settled his liability under one time settlement during 2008. But, Complainants case about discharge of entire loan amount with interest and 1st Opposite party accepted as full and final settlement about 1 ½ years is not correct. Though, the Complainant had deposited several documents for availing the loan, but it is denied that 25 documents were deposited. Except the sale deed dated 26.11.1973 and a deed of mortgage dated 17.04.1969, the rest of the documents are only the revenue documents. The representation dated 08.12.2008 for return the document is replied on 10.12.2008 requesting the Complainant to take back the documents that are available with the bank except the one claimed to the Complainant. At the time of filing the suit and also before Court and Debt Recovery Tribunal, original documents are produced by the Bank. After disposal of this matter, the documents were not obtained by the Bank and 1st Opposite party is making correspondence with the Advocate at Bangalore. Since, more than 10 years have lapsed the advocate told that it requires time to obtain the documents from the Tribunal and he would send back the same soon after they are traced. The 1st Opposite party will undertake to return the documents as soon as received by the advocate. The Complainant is at liberty to rest of the document that are available with the bank at any point of time. If the original documents are not traced, 1st Opposite party undertakes to meet the expenses of obtaining the certified copies of the same. Hence, there is no deficiency in service on the party of the Bank. The allegation that several offers have been made by the companies to enter into contract to commence business in the said property offering a monthly rental of Rs.30,000/- are false and denied. The other allegations are also denied. On these grounds, the 1st Opposite party has sought for dismissal of the complaint. 4. During trial, a Power of Attorney Holder of the Complainant is examined and Complainant has produced the document Ex.C.1 to C.6. The 1st Opposite party has not filed affidavit and documents. 5. Both sides remained absent at the time of hearing of arguments. 6. We have perused the records. 7. Now the points that arise for our considerations are:- 1. Whether the 1st Opposite party has committed deficiency in service in not returning the documents deposited for the security of the loan? 2. Whether the Complainant has sustained loss of rent due to the non-availability of the title deeds? 3. Whether the Complainant is entitled to the reliefs sought for? 8. Our findings and reasons are as here under:- 9. POINT NO.1:- The undisputed facts are that the Complainant and his brother Madappa availed credit facilities of Rs.2,50,000/- and Rs.1,06,000/- and also over draft facilities for Rs.7,00,000/- from the Opposite party Bank by depositing the title deeds and other documents of their immovable property. It is an admitted fact that the Complainant and his brother have discharged the loan under one time settlement. It is also admitted fact on 08.12.2008, the Complainant gave a petition for return of the documents deposited and the 1st Opposite party has replied dated 10.12.2008. Ex.C.1 is the requisition of the Complainant and Ex.C.2 is the reply of the Opposite party. Thereafter, the Complainant got issued legal notice Ex.C.3 on 28.02.2009 and there is no reply by the Opposite party Bank. In the reply Ex.C.2, the Opposite party has stated all the 25 documents deposited with the Bank were produced before the Court at Mandya and after settlement of the dues, branch had prayed for return of the original documents and they are received the documents except 3 namely Original Sale Deed dated 26.11.1973, Deed of Usutructuary Mortgage dated 17.04.1969, Endorsement dated 14.12.1973 from the Commissioner, City Municipality, Mandya regarding charge of Khata and directed the Complainant to take back all the original documents except about 3 and this Ex.C.2 reply is dated 10.12.2008. In spite of it, the Complainant did not take back the available 22 documents and on 28.02.2009 he got issued a legal notice to return all the documents within 7 days. 10. Now, after filing of the complaint at the time of trail, the 1st Opposite party has produced the documents with a list of the documents deposited with the Opposite party Bank for the loan and as per the list, they are 25 documents and the Opposite party has produced all the documents except Sl. No.21, 22, 24 & 25. So out of 25 documents mentioned in the list, the Opposite party has produced 21 documents before the Forum. Therefore, the 1st Opposite party has complied with the production of the documents to an extent more than 80% of the documents sought for. According to the Opposite party version, the title deeds i.e., Original Sale Deed dated 26.11.1973 and Deed of Usufructuary Mortgage dated 17.04.1969 and Endorsement dated 14.12.1973 from the Commissioner, City Municipality, Mandya regarding change of Khata were not available on 10.12.2008 on the rest of the documents were available. But, the Complainant did not chosen to obtain back the available 22 documents, but kept quiet for the reason best known to him. It is correct to say that the original documents and the document of Khata are essential and they are required to be in possession of the owner of immovable property. Though, the Opposite party has pleaded that the documents were produced before the Court and also Debt Recovery Tribunal and the advocate sought for time to obtain the documents till they are traced, but the matter was settled about 1 ½ years back and the Complainant sought for return of the documents for the first time on 08.12.2008 and the Opposite party had not taken back 3 vital documents from the Court or from any Authority till filing of the complaint. The complaint is filed after six months from the letter Ex.C.1. Therefore, even though the Complainant has not obtained the available documents, but the Opposite party had not made efforts to get back the original documents and return the complaint in reasonable time and thus the Opposite party has committed deficiency in service to some extent and therefore, we answer the point accordingly. 11. POINT NO.2:- The Complainant further case is that several National, International Companies had approached the Complainant to enter into a contract to commence business on the immovable property offering a monthly rental of Rs.30,000/- about 1 ½ years back and due to non-return of the title deeds by the Bank, the said offers could not materialized and hence, the Complainant has sustained loss of Rs.30,000/- per month and totally Rs.5,40,000/- for 18 months. 12. The Opposite party has denied the same. The power of attorney holder of the Complainant has filed affidavit and has given the evidence stating 2, 3 companies had approached and produced the document Ex.C.5 to prove that a company had offered and agreement, but if we analyse the evidence available, it cannot be said and accepted that the Complainant offered with a rent of Rs.30,000/- per month for the immovable property. According to the documents, the immovable property is a old hotel building measuring 112 feet by 400 feet by the side of Mysore Bangalore Road, near Nehru Nagar, Near Rotary Club i.e., near Mandya Medical College and it has potential value. But, building is demolished there is vacant site. If we peruse the document Ex.C.5, the Complainant has to construct the ground floor, first floor, second floor, third floor getting permission and approval relating to the building from Municipal and local authorities. Further, Ex.C.5 document is a Memorandum of Understanding and the year is not typed at all and year is mentioned as 2007. Admittedly, after the settlement of the loan for the first time, the Complainant sought for return of the documents on 08.12.2008 as per Ex.C.1 and then got issued a legal notice Ex.C.3 on 28.02.2009. When the loan was not cleared in 2007 and when the Complainant for the first time sought for the return of the documents on 08.12.2008 how it is possible for the Complainant to deal with a company and make a draft of the agreement in 2007 itself is astonishing and the original of Ex.C.5 is not secured by summoning the author of the document and Ex.C.5 though notarized it is not a true copy and is not at all dated. Further, according to the Complainant version, 1 ½ year back the companies offered for leasing the immovable property at the rate of Rs.30,000/-, if that was the case and Ex.C.5 was available with the Complainant at the time of issuing legal notice Ex.C.3 on 28.02.2009 he could have definitely mentioned in the notice about the offer of the company to take the immovable property of the Complainant for loss on a monthly rental of Rs.30,000/-. Even Ex.C.5 was not produced along with complaint. There is no explanation has to how such important matter was not at all disclosed in the legal notice Ex.C.3. Therefore, it gives reasonable conclusion that only at the time of filing the complaint, the theory of lease and sustaining loss of rental income is created by the Complainant and Ex.C.5 is created, because as observed the Ex.C.5 is dated 20th February 2007, but in December 2008, the Complainant sought for the return of the documents from the Bank and the Complainant was very much aware that without original documents of immovable property a company will not enter into any contract of lease and therefore Ex.C.5 said to be executed in February 2007 by the company is suspicious document and cannot be believed at all. Further, even the Complainant has not stepped into box by filing the affidavit to test his case of sustaining loss. Therefore, we hold that the Complainant has failed to prove that companies offered to take the immovable property of the Complainant on lease offering monthly rent of Rs.30,000/- since 1 ½ years and he has sustained loss of Rs.5,40,000/- and therefore, we answer this point in the negative. 13. POINT NO.3:- The Complainant has sought for direction to the Opposite party to return the original documents deposited by him and also to pay damages of Rs.5,40,000/- and also Rs.30,000/- per month from the date of complaint. In view of our finding on point no.2, the Complainant is not entitled to any damages. With regard to the claim of return of the documents, during trial, the Opposite party has produced the 21 documents i.e., the documents no.1 to 20 and 23 as per the list and the Opposite party has not produced item no.21, 22, 24 & 25. The Opposite party has returned original documents except encumbrance certificate. The Opposite party has not produced the encumbrance certificate from 13.11.1973 to 13.12.1973, 13.11.1961 to 13.11.1973, 14.12.1973 to 10.08.1977 and 01.04.1977 to 13.07.1989. Of course, the Opposite party is liable to return these documents. But these are not original documents of the property, they are available at any time from the Sub-registrar Office. Either the Opposite party could have taken from the sub-registrar Office or the Complainant could take the copies of these encumbrance certificates from the Sub-registrar Office. As observed above, the Opposite party has complied the return of the documents to more than 80% and for the deficiency in service in delay in producing the documents, the 1st Opposite party is liable to pay some compensation. Further, the 1st Opposite party is liable to pay some amount to take the copies of the encumbrance certificate from the Sub-registrar Office which are not produced by the 1st Opposite party and it is reasonable to award compensation of Rs.4,000/- for the delay and Rs.2,500/- for obtaining the encumbrance certificate from the Sub-registrar which are not produced by the Opposite party. 14. In the result, we proceed to pass the following order; ORDER The complaint is partly allowed, directing the 1st Opposite party Bank to pay compensation of Rs.6,500/- to the Complainant with cost of Rs.1,000/- within six weeks. The Complainant is directed to get back the documents produced by the Opposite party from this Forum. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 27th day of October 2009). (PRESIDENT) (MEMBER) (MEMBER)
