Tamil Nadu

South Chennai

CC/114/2015

Mrs.P.Chandrakumari - Complainant(s)

Versus

The Authorized officer and chief Manager, Indian Bank - Opp.Party(s)

M/s.V.Balaji

01 Nov 2019

ORDER

                                                                             Date of filing      : 17.03.2015

                                                                               Date of Disposal : 01.11.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.114/2015

DATED THIS FRIDAY THE 01^ST DAY OF NOVEMBER 2019

1. Mrs. P. Chandrakumari,

W/o. Mr. K.D. Jayaraman,

 

2. K.D. Jayaraman,

S/o. Mr. K. Duraisamy Naidu,

 

3. J. Durai Pandian,

S/o. Mr. K.D. Jayaraman,

 

4. J. Prakash Pandian,

S/o. Mr. K.D. Jayaraman,

 

All are residing at:-

Plot No.381, 27^th Street,

6^th Sector, K.K. Nagar,

Chennai – 600 078.                                                       .. Complainants.   

                                                    ..Versus..

 

 

The Authorized Officer and Chief Manager,

Indian Bank,

Asset Recovery Management Branch,

Wellingdon Estate,

Circle Office Buildings, 4^th Floor,

No.55, Ethiraj Salai,

Chennai – 600 008.                                                  ..  Opposite party.

 

Counsel for the complainants   : M/s. V. Balaji & another

Counsel for the opposite party : M/s. Hemalatha Suresh & another

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainants 1 to 4 against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to deliver the original parent deeds of sale pertaining to the property situated in Survey No.51/4, Kodaikanal Village, Vilapatti Panchayat, Dindugal Revenue District, Kodaikanal Taluk and to pay a sum of Rs.19,00,000/- towards compensation for mental agony and deficiency in service with cost of Rs.10,000/- to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainants submit that the opposite party bank issued a tender cum auction sale notice on 13.02.2009 for the sale of the property with building situated in S. No.51/4, Kodaikanal Village, Vilpatty Panchayat Union, Dindigul Revenue District, Kodaikanal Taluk with a condition that

“The property shall be transferred / conveyed on “as is where is” basis and “as is what is” condition by means of a Sale Certificate in the name of the purchaser only”.  The complainants submit that the 1^st complainant participated in the auction sale and she is the successful bidder and remitted Rs.82,00,000/- along with interest for the delayed period of 09.05.2009.  The complainants submit that on 12.05.2009, the 1^st complainant requested the opposite party to issue a Sale Certificate in the name of the complainants and also requested to handover the original documents pertaining to the aforesaid property.  Since there is no response, the 1^st complainant issued a remainder letter on 12.08.2009 for which, there is no reply.  Hence, the 1^st complainant issued Advocate notice dated:22.08.2009 for which, the opposite party sent a reply dated:03.11.2009 informed that all the documents were lost and for which, the complainants sent a rejoinder dated:20.11.2009 demanded the original documents for which, there is no reply.  The complainants submit that on 29.06.2012, the opposite party executed a Sale Certificate without handing over the original title deeds etc.  Hence, the complainants issued another Advocate notice dated:31.07.2012 for the due delivery of Original documents for the property.  The opposite party in his reply dated:27.08.2012 admitted that the original documents are misplaced and undertake to produce the documents.  The complainants submit that on 24.12.2013, the opposite party informed the complainant that they are taking steps by publishing caution notice in the Indian Express and Dinamani, Madurai Edition on 23.06.2013.  The act of the opposite party amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

2.      The brief averments in the written version filed by opposite party is as follows:

The opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.   The opposite party states that the case is barred by limitation.   Under the Act, the limitation is 2 years, from the cause of action.  In this case, the auction sale was conducted on 16.03.2009 and Sale Certificate was executed on 29.06.2012.  The above complaint is barred by limitation and hence, liable to be dismissed in limine.  The opposite party states that the complainant has not approached this Forum in clean hands.  The complainant miserably suppressed the vital facts of undertaking given on 26.06.2012 which reads as follows:-

“I will not raise any dispute in this regard and undertake to keep the bank harmless and indemnified against any possible loss, damage, cost, claim or expenses which the bank suffer or pay in consequence of its having issued and registered the Sale Certificate in favour myself and three others namely 1) K.D. Jayaraman 2) J. Durai Pandian and 3) J. Prakash Pandian on my request.

I further undertake that in the event of the cancellation of the sale of the subject property on a future date by any Court of law/Tribunal due to the reason of the issuance and registration of the Sale Certificate at my request in favour myself and three others as stated above, any consequences that follow there from on such cancellation of sale will be at my own risk and responsibility and no liability / responsibility whatsoever will be fastened on the Bank and the bank stands discharged in entirety”.

3.     The opposite party states that the opposite party informed the complainant regarding loss of title deeds vide reply notice dated:03.11.2009 and had never represented that the original title deeds were available with the Bank at any point of time.  The opposite party states that the Sale Certificate dated:29.06.2012 was executed in favour of the complainant and physical possession of the property was handed over to them.  The delay in executing the sale certificate is only due to the non availability of original documents of title deeds.   After registration of Sale Certificate, the opposite party handed over the physical possession of the property to the complainant.   The opposite party states that the delay caused only due to the complainant’s act in sending letters, notices and giving criminal complaint to CCB etc.  It is also submitted that after due enquiry, the complaint given to CCB was closed.  The opposite party states that the complainants also gave a letter of undertaking dated:26.06.2012  that they will not make any claim against the bank.   The opposite party had neither adopted any unfair trade practice nor there is any deficiency in service on the part of the opposite party and hence, the complaint is liable to be dismissed.

4.     To prove the averments in the complaint, the complainants has filed proof affidavit as their evidence and documents Ex.A1 to Ex.A12 are marked.  Proof affidavit of the opposite party is filed and documents Ex.B1 to Ex.B11 are marked on the side of the opposite party. 

5.      The points for consideration is:-

1. Whether the complainants are entitled to get the original parent title deeds pertaining to the property sold in auction by the opposite party as prayed for?
2. Whether the complainants are entitled to a sum of Rs.19,00,000/- towards compensation for mental agony and deficiency in service with cost of Rs.25,000/- as prayed for?

6.      On point:-

Both parties filed their respective written arguments.  Heard their Counsels also.   Perused the records namely; the complaint, written version, proof affidavits and documents.  The complainants pleaded and contended that the opposite party bank issued a tender cum auction sale notice on 13.02.2009 as per Ex.A1 for the sale of the property with building situated in S. No.51/4, Kodaikanal Village, Vilpatty Panchayat Union, Dindigul Revenue District, Kodaikanal Taluk with a condition that

“The property shall be transferred / conveyed on “as is where is” basis and “as is what is” condition by means of a Sale Certificate in the name of the purchaser only” as per Ex.A1.  Further the contention of the complainants is that the 1^st complainant participated in the auction sale and she is the successful bidder and remitted Rs.82,00,000/- along with interest for the delayed period of 09.05.2009.  Ex.A2 is the copy of receipt issued by the opposite party.   Further the contention of the complainants is that on 12.05.2009, the 1^st complainant requested the opposite party to issue a Sale Certificate in the name of the complainants and also requested to handover the original documents pertaining to the aforesaid property as per Ex.A3.  Since there is no response, the 1^st complainant issued a remainder letter on 12.08.2009 as per Ex.A4 for which, there is no reply.  Hence, the 1^st complainant issued Advocate notice dated:22.08.2009 as per Ex.A5 for which the opposite party sent a reply dated:03.11.2009 informed that all the documents were lost as per Ex.A6 for which the complainants sent a rejoinder dated:20.11.2009 as per Ex.A7 demanding the original documents for which, there is no reply.  Further the contention of the complainants is that on 29.06.2012, the opposite party executed a Sale Certificate as per Ex.A8 without handing over the original title deeds which amounts to deficiency in service.  Hence, the complainants issued another Advocate notice dated:31.07.2012 as per Ex.A9 for the due delivery of Original documents for the property.  The opposite party in his reply datec:27.08.2012 as per Ex.A10 admitted that the original documents are misplaced.  Even they admit to handover the documents once the original documents are traced out. 

7.     Further the contention of the complainants is that on 24.12.2013, the opposite party informed the complainant that they are taking steps by publishing caution notice in the Indian Express and Dinamani, Madurai Edition on 23.06.2013 proves the unfair trade practice and deficiency in service.  Further the contention of the complainants is that the allegation that the case is barred by  limitation and the undertaking dated:26.06.2012 as per Ex.B6 estopped the complainants from making such claim like for delivery of the original title deeds and compensation; is not acceptable because the opposite party is a bank suppressed the material fact of misplacement and documents and auction sale was conducted after issuing notice “as is where is” basis and “as is what is” and amounts to unfair trade practice.

8.     The learned Counsel cited the decision reported in:

III (2013) CPJ 612 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

Between

Jaswinder Singh, Pradeep Kumar Gupta

-Versus-

Corporation Bank

Held that

        “Consumer Protection Act, 1986 – Sections 2(1)(g)2(1)(r),14(1)(d), 21(b) – Auction Sale – Copies of title deed issued after completion of auction process – Defective title deed – Housing loan refused by other Banks – Earnest money forfeited by Bank which initiated auction  - Deficiency in service – Unfair trade practice – District Forum allowed complaint – State Commission allowed appeal – Hence revision – Complainant was interested in participating in public auction and requested in OP-Bank to provide copies of title deeds for verification prior to date of auction but OP refused to provide it prior to date of auction – OP has misused term for “as is where is” – It was deliberate concealment of legal position of title deed – OP issued copies of title deed after completion of auction process – Publishing or advertising such defective titled property for auction sale amounts to unfair trace practice and deficiency in service – Action of OP in forfeiting earnest money is illegal act – OP is directed to refund to each petitioner amount of Rs.1,10,000/- without any interest after deduction of rs.25,000/- towards cost of auction proceedings, advertisement etc.

10. On perusal of evidence on record it appears that the OP have misused the term for “as is where is”.  It was a deliberate concealment of legal position of the title deed.  It is clear that at  the inception only the intentions of OP were to conceal the defective title.  Therefore, the advertisement “as is where is” created confusion in this case.  Affidavit of Complainant shows that the Complainant was interested in participating in the public auction and requested the OP to provide the copies of the title deeds for verification prior to the date of auction but the OP refused to provide it prior to the date of auction.  Therefore, the complainant was unable to verify the title”.

9.     The learned Counsel also cited the decision rendered by the Tamil Nadu State Consumer Disputes Redressal Commission, Madurai Bench in

F.A. No.351/2012

(F.A. No.827/2011 on the file of State Consumer Disputes Redressal Commission, Chennai)

Between

The Branch Manager, M/s. Punjab National Bank & anr.

-Versus-

Mr. K. Shankar

Held that

        “The following ruling reported in Jai Logistics, represented by its Partner G. Bhaskar Vs. The Authorised Officer, Syndicate Bank (2010 (4) CTC 627 in which, it is observed as follows:

“Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002)(SARFAESI ACT), Sections 13 ($) (a) & 14 – Security Interest (Enforcement Rules, 2002, Rule 8(6)(f) – Property sold in auction without informing subsisting encumbrance – Auction purchaser sought for refund of earnest money – Bank rejected offer and forfeited entire amount – Reading of Rule 8 (6)(f) would include notification of encumbrance to property – When encumbrance not notified in sale notice, impugned order, held unjustified”

“As per the above rulings, it is clear that the bank has to include notification of encumbrance to property when encumbrance not notified in sale notice impugned order held unjustified as per the rule 8 (6)(f) SARFAESI ACT and thereby in this case also the contentions of the appellants that the property sold in Auction is “As is where is” condition not acceptable and even for that they have not produced the sale notification or publication and as far as the contentions of the appellant that the complainant is  not a consumer he has to agitate the matter only before the Debts Recovery Tribunal cannot be accepted in view of the provision under section 3 of the Consumer Protection Act 1986 and the complaint is relating to deficiency of service regarding the term deposit made by the complainant apart from the alleged mis-deeds in auction sale of property with suppression of details”.                                                             

10.    Further the contention of the complainants is that the allegation of limitation cannot be taken into consideration even for a single movement admittedly as per Ex.A12, the opposite parties stated that “as is where is” basis with referred to the above proves that the cause of action for the case arose continuously and from the date of Ex.A12. 

The learned Counsel cited the decision reported in:

IV (2012) CPJ 495 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

Between

Allahabad Bank & another

-Versus-

Paper Product Machines

Held that

“Consumer Protection Act, 1986 – Sections 24A, 21(b) – Limitation – Continuing cause of action – Cheques deposited – Neither credited in account nor were received back – Petitioner has failed to explain where cheques have vanished – Bank is terribly remiss in discharge of its duty – Cause of action is continuing unless and until complainant gets that amount – Complaint not barred by time”.

6. We find no force in this argument.  Till today, the fate of those cheques is not known.  The petitioner has failed to explain where those cheques have vanished? This clearly goes to prima facie show that there was deficiency on the part of the petitioner.  It also prima facie depicts that bank is terribly remiss in discharge of its duty.  The entire story smacks of a fig leaf job.   The bank has handled the entire episode in a most ham-handed fashion.  Their actions are neither open nor above board.  The said cause of action is continuing unless or until the complainant gets that amount”.

&

I (2017) CPJ 180 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

Between

Bank of India

-Versus-

Mustafa Ibrahim Nadiadwala

Held that

“Consumer Protection Act, 1986 – Sections 2(1)(g), 14(1)(d), 21(a)(ii) – Banking and Financial Institutions Services – Loan – Repayment – Original title deeds lost – Mental agony and harassment – Deficiency in service – State Commission allowed complaint – Hence appeal – Loan was raised by complainant from Bank by mortgaging his property with Bank – Title deeds of said property were deposited with Bank – Title deeds had been lost from Custody of Bank – Deficiency proved – Bank is directed to take all necessary steps to issue a No Objection Certificate in favour of complainant and also to ensure that their name is removed from mortgage document, etc. – compensation of Rs.5 lakh awarded – Litigation cost @ Rs.10,000/- awarded.

The issue regarding limitation has therefore been taken up by the Bank at the appellate stage only.  It is seen however from the documents on record that the complainant did make request to the Bank for return of the title deeds.  However, there is nothing on record from where, it could be made out that the Bank had intimated to the complainant about the loss of such documents.  In the absence of such refusal, it is not possible to pin-point the exact date when the cause of action had arisen.   In any case, the loss of documents by the Bank is an accepted reality and hence, I do agree with the contention of the learned Counsel for the complainant that it would be taken as a case of continuing cause of action.  The contention raised by the learned Counsel for the Bank, therefore, is without force, and it is held that the complaint is not barred by limitation. 

11.    The learned Counsel for the opposite party would contend that the case is barred by limitation and it should dismissed in limini.  The auction sale was conducted on 16.03.2009 as per Ex.B1 and Sale Certificate was executed on 29.06.2012 as per Ex.B7 and the complaint is filed on 04.03.2015.  the complainant also has not filed any application under Section 24 A of the Consumer Protection Act, 1986 for condoning delay.  But on a careful perusal of records, in the auction sale notice itself, the opposite party bank suppressed the material fact of misplacement of documents of title deeds. Equally, even after repeated requests by the complainant only as per Ex.A12 dated:24.12.2014 the opposite party informed the complainant that steps for publication was taken proves that the case is not barred by limitation and the cause of action is a continuing one. The citations submitted by the complainant also proves very clear that the case is not barred by limitation. 

12.    Further the contention of the opposite party is that the complainant has not approached this Forum in clean hands.  The complainant miserable suppressed the vital facts of undertaking given on 26.06.2012 as per Ex.B6 which reads as follows:-

“I will not raise any dispute in this regard and undertake to keep the bank harmless and indemnified against any possible loss, damage, cost, claim or expenses which the bank suffer or pay in consequence of its having issued and registered the Sale Certificate in favour myself and three others namely 1) K.D. Jayaraman 2) J. Durai Pandian and 3) J. Prakash Pandian on my request.

I further undertake that in the event of the cancellation of the sale of the subject property on a future date by any Court of law/Tribunal due to the reason of the issuance and registration of the Sale Certificate at my request in favour myself and three others as stated above, any consequences that follow there from on such cancellation of sale will be at my own risk and responsibility and no liability / responsibility whatsoever will be fastened on the Bank and the bank stands discharged in entirety”.

 But as per Ex.A1, the opposite party totally suppressed the material fact of misplacement of documents of title deeds.  Ex.B6 is an undertaking which is not specifically stated anything about the documents which are misplaced. 

13.    Further the contention of the opposite party is that the opposite party informed the complainant regarding loss of title deeds as per Ex.B3, reply notice dated:03.11.2009 and Ex.B5 dated:21.06.2012.  But for what reason the said fact was suppressed in Ex.A1, Auction Notice not stated which amounts to deficiency in service and unfair trade practice.  Further the contention of the opposite party is that the Sale Certificate dated:29.06.2012 as per Ex.B7 was executed in favour of the complainant and physical possession of the property was handed over to them.  The delay in executing the sale certificate is only due to the non availability of original documents of title deeds amount to implied acceptance is not acceptable because right from the beginning immediately after payment of sale consideration along with interest the complainant was demanding to execute  sale certificate after due execution of sale certificate the complainant sent letters and notices requesting for the original documents of title for which, the opposite party sent reply as per Ex.B3 & Ex.B4.  At long last, Ex.A12 steps were published.   Further the contention of the opposite party is that the complainant filed W.P. No.8339/2012 as per Ex.B11 which was disposed off.  On a careful perusal of Ex.B11, it is very clear “Hence, the Writ Petitions stand dismissed as withdrawn.  No costs.  Consequently connected miscellaneous petition is also dismissed”. 

14.    Considering the facts and circumstances of the case this Forum is of the considered view that the opposite party shall deliver the  original parent title deeds of sale pertaining to the property situated in Survey No.51/4, Kodaikanal Village, Vilapatti Panchapay, Dindugal Revenue District, Kodaikanal Taluk within one month from the date of receipt of this order copy and to pay a sum of Rs.1,00,000/- towards compensation for mental agony with cost of Rs.10,000/- to the complainant.

In the result, this complaint is allowed in part.   The opposite party is directed to deliver the original parent title deeds of sale pertaining to the property situated in Survey No.51/4, Kodaikanal Village, Vilapatti Panchayat, Dindugal Revenue District, Kodaikanal Taluk within one month from the date of receipt of this order copy and to pay a sum of Rs.1,00,000/- (Rupees One lakh only) towards compensation for mental agony with cost of Rs.10,000/- (Rupees Ten thousand only) to the complainant.

The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 01^st day of November 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANTS’ SIDE DOCUMENTS:-

Ex.A1	13.02.2009	Copy of Sale notice
Ex.A2	09.05.2009	Copy of receipt
Ex.A3	12.05.2009	Copy of letter of the complainant
Ex.A4	12.08.2009	Copy of letter of the complainant
Ex.A5	22.08.2009	Copy of advocate notice
Ex.A6	03.11.2009	Copy of reply notice
Ex.A7	20.11.2009	Copy of rejoinder
Ex.A8	29.06.2012	Copy of Sale Certificate
Ex.A9	31.07.2012	Copy of Advocate Notice
Ex.A10	27.08.2012	Copy of reply notice
Ex.A11	01.10.2012	Copy of rejoinder
Ex.A12	24.12.2014	Copy of letter from the opposite party

                                               

OPPOSITE PARTY SIDE DOCUMENTS:-

Ex.B1	16.03.2009	Copy of Tender cum Auction Sale notice
Ex.B2	22.08.2009	Copy of notice by the complainants
Ex.B3	03.11.2009	Copy of reply sent by the opposite party
Ex.B4	02.05.2012	Copy of notice sent by the complainant
Ex.B5	21.06.2012	Copy of letter sent by Mr. P. Chandrakumari
Ex.B6	26.06.2012	Copy of letter of undertaking / indemnity executed by the complainants
Ex.B7	29.06.2012	Copy of Sale Certificate
Ex.B8	31.07.2012	Copy of notice sent by the complainants
Ex.B9	27.08.2012	Copy of reply sent by the opposite party
Ex.B10	23.06.2013	Copy of Caution notice published in the Indian Express and Dinamani
Ex.B11	05.09.2013/ 16.12.2013	Copy of order copy in W.P. No.8339/2012 with letter

 

 

 

MEMBER                                                                                PRESIDENT