Ld. Advocate(s)
For Complainant: Tathagala Biswas
For OP/OPs : Swapan Ghosh
Date of filing of the case :17.03.2022
Date of Disposal of the case : 31.07.2023
Final Order / Judgment dtd. 31.07.2023
Complainant above name filed the present complaint u/s 12 of the Consumer Protection Act 1986 against the aforesaid OP praying for direction to the OP to return gold ornaments in favour of the complainant, compensation amounting to Rs. 5,00,000/-, cost of the case and other reliefs.
He alleged that he has saving Bank Account before the OP. He had one current account before the OP which was subsequently closed. Complainant applied for Gold Loan and same was granted. Accordingly, gold loan account No. 09750500010318 was opened for loan amount of Rs. 10,00,000/-. Complainant repaid the same on 18.11.2021 and 20.11.2021. But in spite of several request OP did not return the gold ornaments in favour of the complainant. He is possessing the Gold ornaments of the complainant illegally. Complainant sent a legal notice to the OP through his Ld. Advocate. Even then OP did not return the gold ornaments.
He sent a reply stating that M/s Father Tractor had another loan account and complainant is a partner of the said Farm and he did not repay the loan of said account.
Hence, the complainant files this case.
OP contests the case by filing W/V. He denied the entire allegations mentioned in the petition of complaint. He further stated that complaint is a partner of M/S Father Tractor and M/s Father Tractor is a deflator of loan. M/S Father Tractor was vendor for making delivery of two harvesters machine in favour of beneficiaries namely Mr. Sahidul Sk. And Mr. Gani Sk.
Said Father Tractor was asked to supply to harvesters to Mr. Sahidul Sk. And Mr. Gani Sk amounting to Rs. 51,11,200/-.
Bank remitted said amount t o M/s Father Tractor in his cash credit account on 15.05.2019 but till date two harvesters have not been delivered to the borrowers. Bank sent a letter and legal notice to M/S Father Tractor but they ignored it. Said Mr. Sahidul Sk. And Mr. Gani Sk had filed two separates C.C Case before this Commission vide no. 42/2020 and 43/2020 against complainant but deceived the Govt. Adopted Policy for agricultural development in respect of aforesaid two agriculture implement harvesters.
Said Father Tractor received the full consideration money. Aforesaid Sahidul Sk started a criminal case being Chapra P.S. Case no. 308/2022 under Section 420/406/506 O.P.C against complainant.
He prays for dismissal of the case.
TRIAL
During trial complainant filed affidavit-in-chief. OP filed interrogatories. Complainant gave answer. OP filed affidavit-in-chief .
Complainant filed interrogatories. OP filed answer.
DOCUMENTS
Complainant produced following documents:
- Deposit Slip by which complainant deposited Rs. 10, 89,500/- on 18.11.2021 in favour of the OP (one sheet original).
- Deposited slip in respect of deposit of Rs. 5,250/- in favour of the OP on 20.11.2021 (One sheet Original).
- Couriers receipt (two sheet original and carbon copy).
- Advocate letter d td. 27.11.2021 ( 3 sheet orginal).
BNA
Complainant filed BNA.OP filed BNA.
DECISION WITH REASONS
We have carefully gone through the petition of complaint filed by the complainant, W/V filed by the OP, documents filed by the complainant, affidavit-in-chief filed by the OP, BNA filed by the complainant and BNA filed by the OP.
We find that complainant corroborated the allegation which he made in the petition of complaint in his affidavit-in-chief. OP also corroborated the contents of W/V in his affidavit-in-chief.
It is admitted position that complainant took loan amounting to Rs. 10,00,000/- from OP.
It is also admitted Position that complainant paid entire amount of said loan.
On perusal of the deposited slip dtd. 18.11.2021 ( original) we find that complainant paid Rs.10,89,500/- in the loan account vide no. 09750500010318. We also find that complainant deposited Rs. 5,200/- on 20.11.2021 in the aforesaid loan account. Accordingly we find that complainant deposited total sum of Rs. 1,09,4,750/-. OP did not deny the said fact in his W/V so it is clear before us that complainant paid entire amount of loan in respect of aforesaid loan account.
OP stated in his W/V that they have some allegation against M/S Father Tractor and complainant is a partner of the said firm.
In this context we have carefully gone though the decision of the Bombay High Court Nagpur Bench vide writ petition no. 32/2022 in Mr. Sunil Vs Union Bank of India dtd. 13.06.2022.
We find that petitioner took loan of Rs.21,00,000/- which was repayable in Rs.300/- monthly instalment. Petitioner is a Director and Personal Guarantor in the Company under the name and style as ‘Sunil Hitech Limited’. The company was in debt went in the liquidation. Liquidator was appointed as per order of National Company Tribunal. Thereafter he approached before the Respondent Bank for seeking permission to sell flat which was purchased by him after obtaining the aforesaid loan. Title deeds of the said flat was handed over to the Bank as security. Despite repeated requests no response received from the Bank regarding return of deeds in favour of the purchaser of flat. Thereafter petitioner issued a legal notice to the respondent/ Bank with a request to issue no objection certificate to sale the flat but instead of giving no objection certificate respondent/ Bank issued one notice under SARFAESI Act, 2002 by the said notice loan account of the petitioner was declared as NPA and petitioner was called upon to pay loan amount. The respondent Bank vide reply dtd. 24.03.2021 gave no objection to the petitioner to sell out the flat. The respondent Bank further intimated the petitioner that he shall adjust the sale amount towards home laon and remaining amount is to be adjusted towards loan account of the Company. Accordingly, the petitioner closed the loan account i.e Home Loan. Thereafter, the petitioner requested the respondent Bank to remit the property papers to the purchaser Shri Ishwar Narsing Phunde but respondent Bank has not paid to heed. Thereafter, the petitioner filed the present writ petition. In response to the notice, respondent Bank has filed its reply. As per the respondent bank the petitioner has alternate efficacious remedy before the DRT, New Delhi so petitioner is not entitled to documents.
Hon’ble High Court of Bombay ( Nagpur Branch) allowed the aforesaid writ petition partly and directed the respondent bank to release the documents of title and other documents and further directed to the Bank to consider the request of petitioner regarding the issue of no dues certificate.
In the said case Hon’ble High Court Bombay ( Nagpur Banch) Bank gave liberty to recover the said loan amount and also gave liberty to take the legal recourse but merely because another loan account is there, wherein the petitioner and other Directors are borrowers, bank has no right to retain the said documents by exercising the right of lien.
Ld. Adv. for the complainant cited another decision of Madras High Court ( Madurai Bench) dtd 09.08.2017. We find that Hon’ble Court held:-
33. In the present case the bank is not willing to release the title deeds which were deposited in relation to the petitioner’s demand loan, even if the petitioner discharge the entire loan and wipe out the mortgage debt. It is true that the amount is not settled by the petitioner to get back the documents as on today. However, the petitioner’s conduct in approaching this Court even before discharge of loan cannot be faulted, in view of the genuine grievance expressed by the petitioner in the wake of specific stand taken by the respondent bank that they will not return the documents and instead claimed that the stay are entitled to proceed against the security while initiating recovery proceedings against the principal borrower in respect of a different transaction in which the petitioner stood as guarantor.
34. This Writ Petition was moved along with W.P ( MD) no. 12612 of 2016 in respect of other properties of the Writ Petitioner which are also the subject matter of a mortgage by deposit of title deeds in connection with a loan obtained by petitioner’s brother . After entertaining the Writ Petition , the petitioner therein settled the entire dues pursuant to orders of this Court. There was no serious objection for entertaining the Writ Petition and on receipt of entire money, the Bank has filed a statement that they will not proceed further with the notice issued under Section 13(2) of Securitisation Act. The pendency of O.A. No. 244 of 2016 filed by the Bank for recovery of money against M/s. CMS Educational Trust, before the Debt Recovery Tribunal, Madurai is also stated to be a fact as part of cause of action to file the Writ Petition before this Bench. In O.A No. 244 of 2016, the petitioner is also a party. Hence this Court relies upon Para 42 (4) of the judgment reported in 2008(7) MLJ 1012 in the case of E. Mary Oliviya v. E. Jsohua Milton and Para 24 in the judgment of Full Bench in W.P. 5709 of 2011 dated 04.07.2012, in the case of B. Stalin’s case to hold that the Writ Petition is maintainable and taking note of the fact that substantial amount has been deposited pursuant to the orders passed by this Court in the connected Writ Petition, this court is not inclined to dismiss the Writ Petition for want of territorial jurisdiction.
35. It is to be noted that the bank has filed O.A. no. 244 of 2016 before the Debts Recovery Tribunal, Madurai as against M/s. CMS Educational Trust. Petitioner is also impleaded as a party as a guarantor. Even in the said proceedings the respondent bank has not included the properties which are subject matter of the Writ Petition.
36. The bank never claimed any right of lien in respect of the properties of the petitioner which are given as security for the demand loan obtained by the petitioner. The petitioner is a party and has been impleaded only in her capacity as guarantor and not as a mortgagor of the properties.
We find that hon’ble Madras High Court ( Madurai Bench).
Allowed the said petition and directed the respondent bank to return the documents in respect of the properties belonging to the petitioner which were given as security by way of deposit of title deeds in respect of the transaction covered by sanction letter dtd. 04.04.2013 upon payment of entire amount loan due.
In the present case complainant paid the entire amount of gold loan but bank is not returning the gold in favour of the complainant with a plea that separate cases are pending against the M/S Father Tractor and complainant is one of the partner of the said company.
Having regard to the facts and circumstance of this case, evidence on record, documents on record and principles of law enunciated in the aforesaid two decisions we are of the firm view that OP Bank is at liberty to recover amount from M/S Father Tractor and also at liberty to take the legal recourse against the M/S Father Tractor but merely because another loan account is there, wherein petitioner stated that he took loan and subsequently repaid the entire loan amount and OP bank has no right to retain the gold ornaments of the loan account which was subsequently repaid by exercising the right of lien. OP bank never claim any right of Lien inspite of the property of the petitioner which was given as security for the gold loan .
On perusal of the record we find that complainant is a consumer and Op is service provider.
Considering the entire matter, we find that complainant has able to established his grievance by sufficient documents and he is entitled to relief as per prayer.
In the result present case succeeds .
Hence,
It is
Ordered
that the present case be and the same is allowed on contest against OP with cost of Rs. 10,000/- to be paid by OP in favour of the complainant.
OP is directed to return the golden ornaments which was pleged as security relating to the gold loan vide account no. 09750500010318 which was subsequently repaid by complainant within 45 days from this date failing which complainant shall have liberty to put this order into execution.
OP is directed to Rs. 1,00,000/- in favour of the complainant as compensation for his mental pain, agony and harassment.
Let a copy of this final order be supplied to both the parties as free of cost.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) .................................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
