Haryana

Yamunanagar

CC/827/2010

Gurdiyal Singh S/o Ram Kishan - Complainant(s)

Versus

The Axis Bank Ltd. - Opp.Party(s)

Kapil Rathi

26 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                         Complaint No. 827  of  2010.

                                                                                         Date of institution: 06.09.2010.

                                                                                         Date of decision: 26.07.2016.

1. Gurdayal Singh aged about 56 years
2. Sarwan Kumar, aged about 54 years
3. Prem Chand, aged about 50 years
4. Barkha Ram aged about 48 years

all residents of village Sherpur, Tehsil Chhachhrauli, District Yamuna Nagar.

                                                                                                                                                                                                                                                                                                                   …Complainant.

                                    Versus

The AXIS Bank Ltd. Branch Office Sadhaura, District Yamuna Nagar through its Branch Manager.                                                                                                                                            … Respondent.

 

                         

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Kapil Rathi, Advocate, counsel for complainants.   

              Sh. P.K.Kashyap, Advocate, counsel for Respondent.   

 

ORDER

 

1.                     Complainant filed this complaint under section 12 of the Consumer Protection Act 1986 amended up to date.   

2.                     Brief facts, as alleged by the complainant, are that complainants approached the OP Bank for obtaining loan as cash credit limit for agriculture purposes. The OP Bank agreed to provide the cash credit limit of Rs. 9,00,000/- to the complainant No.1 and Rs. 8,00,000/- each to the complainants No. 2 to 4 subject to mortgage of their agriculture land. The complainants obtained legal opinion from the legal advisor of the OP Bank Sh. P.K.Kashyap Advocate, Jagadhri and purchased stamp papers of Rs. 12,000/- for the mortgage deed and also spent Rs. 5003/- as registration fee for the mortgaging land of the complainant No.1 and the mortgage deed was executed/ registered on 09.07.2009 in the office of Sub Registrar Chhachhrauli in respect of agriculture land of complainant No.1. In this way, complainant No.1 spent a sum of Rs. 24,373/- in total. Similarly, the complainant No.2 to 4 each spent a sum of Rs. 10,500/- on account of stamp charges and Rs. 5003/- as registration fees and a sum of Rs. 2500/- was deposited with the OP Bank as process fee and also paid Rs. 1000/- as legal adviser fee by each. Thus, the complainants No.2 to 4 have also spent Rs. 22373/- each. Thereafter, the OP Bank refused to accept the mortgage deeds and not provided any cash credit limit on the ground that there is some ambiguity in the revenue record. Actually, there was no ambiguity in the revenue record and if there was any error that was due to non-implementation of mutation of family settlement in revenue record. Moreover, it was the duty of the Op Bank to get the error rectified. Even otherwise, when the error came to the knowledge of complainant then the mutation of the family settlement was got sanctioned and there was little difference in the ownership of land. It was rectified and both the parties agreed to prepare Tatima Rectified Mortgage Deed which can be executed and registered by Sub Registrar as per law. All the relevant papers were prepared on the instructions of OP Bank through legal advisor. However, despite that the official of the Op Bank refused to accept the same due to reason best known to them. A legal notice was also served upon the OP Bank which was replied by taking some vague and false ground. The complainants mortgaged their land vide mortgage deed dated 09.07.2009 out of which a small part of land has been deleted vide Tatima Mortgage deed due to family partition and in lieu of that some other land has been added in Tatima mortgage deed. This fact was also clarified in the prescribed proforma of mortgage deed. The rectification in Tatima Mortgage deed was made out on the advise of same advocate Sh. Parvinder Kashyap, legal advisor of the Op Bank. The Mortgage portion of the land remained same as it was in the original mortgage deed despite of all these things the official of the Op Bank refused to sanction the loan in favour of the complainant and this act and conduct of the OP Bank constitute deficiency in service. Lastly prayed for directing the OP Bank to pay a sum of Rs. 24373/- to complainant No.1 and Rs. 22373/- each to complainants No. 2 to 4 alongwith compensation as well as litigation expenses. Hence this complaint.

3.                     Upon notice, OP Bank appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; this complaint has been filed by various complainants in a single complaint without obtaining the permission from the Forum. So, the same is liable to be dismissed; complainants have no locus standi; there is no relationship of consumer and supplier between the complainant and the OP Bank as the OP Bank already issued No Dues/ Clearance Certificate to the complainants; complainants have concealed the true and material facts from this Forum; as the true facts are that complainants had approached the Op Bank and requested to provide cash credit limit for agriculture purposes.

4.                     After going through the documents produced by the complainants and after satisfying themselves, the official of OP Bank sent the documents for obtaining legal opinion to their counsel and the counsel of the OP Bank had submitted his legal opinion regarding land/property owned by the complainant. It was specifically mentioned in the legal report that a fresh copy of jamabandi indicating the charge of the bank was to be obtained from the party concerned before the disbursement of financial assistance. This fact was also told to the complainants for which he had agreed and mortgage their land in favour of the Op bank, but when the complainants went to the Halka Patwari for entering the mutation in favour of Op Bank then the Halka Patwari stated to the complainants as well as the official of the OP Bank who was present at that time alongwith complainants that a partition has been effected between the complainants and other co-sharers and separate Kurras/Khatas of all the co-sharers have been made as per their share and the mutation was also sanctioned as per their respectively share on 06.07.2009, so on the basis of mortgage deed the mutation of the lien of the OP Bank cannot be entered as the land which had fallen in the share of the complainants is required for entering the mutation in favour of the OP Bank. The partition of the property had already been made by the competent authority between the co-sharer and the mutation was also sanctioned on 06.07.2009 as per their respective shares, but the complainants concealed this facts from the Op Bank and succeeded to get convinced for the proceedings of loan from the OP Bank by showing old revenue record in which this entry was not effected. It has been further mentioned that the complainants are very clever persons because on one hand they had got effected the partition on 06.07.2009 and on the other hand, on the same day, they got prepared the non encumbrance report of the said land by showing old revenue record and mortgaged the land by mortgage deed on 09.07.2009 by playing fraud  and cheating with the Op Bank. On merit, it has been admitted that the complainants approached the OP Bank for getting cash credit limit of Rs. 9,00,000/- to the complainant No.1 and Rs. 8,00,000/- to the complainants No. 2 to 4 each and further it has also been admitted that mortgage deed was executed and registered on 09.07.2009 in favour of the OP Bank. However, it has been denied that neither the complainants had approached the OP Bank for preparation of Tatima/ rectified mortgage deed nor OP Bank had given any instructions to his counsel to prepare the Tatima/ Rectified Mortgage deed. It has been further submitted that in the matter of loans, it is the description of the bank to decide and accept the nature and value of the security against the sanction of loan. Furthermore, when the malaifide intention of the complainants came to the knowledge of the Op Bank, then the complainants refused to sanction the said loan. So, question of any direction by the OP Bank for preparing Tatima mortgage deed through their counsel does not arise at all and controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections. Lastly, prayed for dismissal of complaint.

5.                     To prove the case, counsel for the complainants tendered into evidence affidavit of complainants as Annexure CX and documents as Annexures C.1/1 to C.1/5 on behalf of complainant No.1, Annexure C2/1 on behalf of complainant No.2, Annexures C.3/1 to C.3/4 on behalf of complainant No.3 and Annexures C.4/1 to C.4/4 on behalf of complainant No.4 and closed the evidence on behalf of complainants.

6.                     On the other hand, counsel for the OP Bank tendered into evidence affidavit of Deepak Gupta, Branch Manager, Axis Bank Ltd. Branch, Sadhaura as Annexure RX and documents as Annexure R-1 and R-4 and closed the evidence on behalf of OP Bank.

7.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.  

8.                     It is not disputed that the complainants approached to OP Bank for obtaining the loan as Cash Credit Limit for agriculture purposes. It is also not disputed that the OP Bank sanctioned the cash credit limit/loan to the tune of Rs. 9,00,000/- to complainant No.1 and Rs. 8,00,000/- each to the complainants No.2 to 4 subject to mortgage of their agriculture land. Further, it is also not disputed that in pursuance of proceedings, the complainants executed registered mortgage deeds bearing No. 849 in respect of Sh. Gurdiyal Singh complainant No.1, Mortgage deed bearing No. 847 in respect of Sh. Sarwan Kumar complainant No.2, Mortgage deed No. 848 in respect of Prem Chand complainant No.3, Mortgage deed bearing No. 850 in respect of Barkha Ram complainant No.4 in the office of Sub Registrar, Chhachhrauli on 09.07.2009 which is duly evident from the copy of Mortgage deeds Annexure C1/1, C-2/1, C-3/1 and C-4/1.

9.                     The only plea of the OP Bank is that complainants could not get entered the mutations in favour of the OP Bank on the basis of these registered mortgage deeds to secure the loan amount of the OP Bank as the complainant suppressed the true and material facts from the OP Bank as well as advocates who prepared the legal search report in respect of partition of their land regarding which the mutation was entered in the revenue record on 06.07.2009 i.e. just 2-3 days before registering the mortgage deeds in favour of the Bank. Learned counsel for the OP Bank further argued that it was specifically mentioned in the legal report that a fresh copy of jamabandi indicating the charge of bank is to be obtained from the party concerned before the disbursement of the financial assistance. After the partition of the land between the complainants and other co-sharers, separate Kurras/ Khatas of all the co-sharers have been made as per their share and the mutation was also sanctioned as per their respective shares, so, on the basis of mortgage deed the mutation of the lien of the Op Bank could not be entered. It has been further argued by the counsel for the OPs that complainants are very clever persons because on the one hand they have got effected the partition on 06.07.2009 and on the other hand on the same day they got prepared the non-encumbrance report of the said land by showing old revenue record, this shows the malafide intention of the complainants. The complainants have acted in such a way which may cause wrongful loss to the OP Bank and wrongful gain to themselves. As per law the agriculture loan cannot be disbursed till the lien of the OP Bank is duly entered in the revenue record in favour of the OP Bank. It has been further argued that the complainants were never asked for preparation of Tatima/rectified mortgage deeds nor the OP Bank had given any instructions to his counsel to prepare the same. Lastly prayed for dismissal of complaint being no deficiency in service on the part of the Op Bank.

10.                   On the other hand, learned counsel for the complainants argued at length that there was no malafide intention on behalf of the complainants. The complainants collected the revenue record and prepared all papers as required by the OP Bank for doing the needful. A legal opinion was also obtained from the empanel Advocate Sh.P.K.Kashyap and thereafter OP Bank agreed to provide the facility of cash credit limit and in pursuance of this, complainants purchased stamp papers of Rs. 12,000/- for the mortgage deed of complainant No.1, Stamp papers of Rs. 10500/- for complainants No. 2 to 4 each, besides this Rs. 5003/- were spent by the complainants towards registration fees and mortgage deeds were got registered on 09.07.2009. In this way, the complainant No.1 spent total a sum of Rs. 24373/- and complainants No.2 to 4 have spent a sum of Rs. 22373/- each. Learned counsel for the complainants further argued that there was no ambiguity in the revenue record; however, due to implementation of the mutation of the family settlement in the revenue record, charge/lien of the bank could not be entered in the revenue record. However, to rectify this error the complainants were ready to execute the tatima/rectified mortgage deeds which can be executed and registered by the Sub Registrar as per law but the official of the OP Bank refused to accept the papers and to provide the loan facilities to the complainants for the reasons best known to them and lastly prayed for acceptance of complaint praying therein that the OP Bank be directed to refund the expenses incurred by the complainants.  

11.                   After hearing both the parties at length, we are of the considered view that there is no deficiency in service on the part of the Op Bank. From the perusal of the Photo copy of registered mortgage deeds Annexure C-1/1, C.2/1, C.3/1 and C-4/1, it is evident that these mortgage deeds were executed on 09.07.2009 by the complainants whereas the partition of the property had already been made by the competent authority between the co-sharer and mutation has also been sanctioned on 06.07.2009 as per their respective shares but the complainants concealed this fact from the Op Bank due to reason best known to them and got registered the mortgage deeds as per previous/old revenue record. It is settled law that in the matter of loans it is the discretion of the Bank to decide and accept the nature and value of the security against the sanction of loan.

12.                   From the other angle also, complainants have totally failed to convince this Forum that in what manner the complaint of the complainants is maintainable as the complainants have totally failed to file any cogent evidence to prove that they have paid any consideration and hired the services of the OP Bank.

13.                   In the circumstances noted above, the complainants have totally failed to prove any fault/negligence on the part of the OP Bank. Hence, we have no option except to dismiss the present complaint.                      

 14.                  Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 26.07.2016.

 

                                                                                                ( ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER