BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 13^th DAY OF FEBRUARY 2023

ORDER

SMT.JYOTHI N., MEMBER

1. The complaint has been filed under Section 35 of C.P. Act (hereinafter referred as an “Act”) against the OP for the following reliefs against the OP:-

1. Direct the OP to hand over the original title deeds illegally withheld by the respondent bank forthwith
2. Direct the respondent bank to clear the liens created over the schedule property.
3. To pay Rs.1,00,000/- towards deficiency of service.
4. To pay Rs.50,000/- towards mental agony.
5. To pay Rs.25,000/- towards correspondences, litigation and legal expenses and pass  such other relief deems fit and proper under the circumstances of the case in the interest of justice and equity.

2. The case set up by the complainant in brief is as under:-

The complainant was intending to purchase the property shown in the complaint schedule and as such complainant has approached the respondent bank. The respondent bank after due verification of the credentials of the complainant and taking into mortgage by creating a general lien within the meaning of the section 71 of the contract Act 1872 has advanced a sum of Rs.28,00,000/- (Rs. Twenty Eight Lakhs only) as loan to the complainant for purchase to the complainant schedule property. The complainant also had deposited their original title deeds pertaining to complainant’s schedule property. And a document styled as Memorandum Recording deposit of title deed was executed by complainant in favour of OP/respondent bank.

3.    The Complainant further states that the loan granted by the respondent bank was to be paid by monthly EMI. The complainant also states that due to Covid-19 and other various circumstances and the complainants were unable to keep up the re-payment schedule property and as such the complainant was forced to alienate the properties in favour of vendor. The complainant also states that the vendor have paid a sum of Rs.18,36,306/- being the full and final repayment of the housing loan availed by the complainant from OP bank.

4.     That on 14.06.2022 the complainant have been repeatedly visiting OP branch requesting to cancel the lien created by OP bank and release the Original title deeds pertaining to complainant property.

5.      In further reasons that known to OP bank he is deliberately harassing the complainant day and day out not releasing the original title deeds deposited by OP bank. And the OP are not even ready to clear the lien and charge that are created by OP bank in respect of complainant schedule property even after lapse of 15 days from the day of full and final repayment of loan amount.

6        The complainant states that the OP bank are depriving the complainant with optimum use of complainant property in infringing upon complainant constitutional guaranteed right to complainant property and OP bank act in breach of section 171 of Contract Act, 1872.  The OP bank is also guilty of committing deficiency of service in illegally withholding of documents, for which the OP bank are liable to pay un-liquidated damages and compensation to the complainant.

7.     In further  the complainant has issued notice dt. 07.07.2022 to clear the lien and charges and return back the original documents with illegally held up by OP bank.  The complainant states that the act of the OP has caused immense hardship and mental agony and suffering from severe distress both terms time and money health and psychologically in this event. The respondent bank also hereby to pay the damages an count of physically harassment, financial harassment and deficiency of service and mental agony. Hence the complainant has filed this complaint.

8.     After service of notice, OP appeared though their counsel and filed their version.

In the version the OP bank has contended that the complainant and her husband have availed financial facility from OP bank. The loan is closed. Complainant is claiming the title documents and complainant’s husband notified the OP bank not to release the same and hence the documents are withheld. The OP bank is ready and willing to hand over the title documents provided by both the parties visit the branch and issued acknowledgement for having the receipt of the documents. The OP further states that the complainant has transaction with M/s HDFC Ltd. and complaint is filed against the HDFC Bank. Both are different entities and hence the complaint is not maintainable for the mis-joinder of the property.

9.     The OP states that the complainant is well aware that her husband is the principal borrower and the complainant’s husband has objected for the release of the title documents to the complainant. Hence, the complainant thought to have arrayed that the complainant’s husband as a necessary party in the above case having fail to do so the complaint suffered from non-joinder of necessary party.

10.   The OP states that the complainant and her husband Mr.Babu Appadurai(Borrower) had approached OP bank for seeking financial assistance and assured to abide to the terms of loan facility. After considering their loan application, the OP bank had disbursed Rs.28,00,000/- (Rs. Twenty Eight Lakhs only) through loan account No.368505406. As per the terms of sanction the complainant has agreed to repay the said loan amount along with floating rate of interest in equated monthly installments. OP further states that secure the repayment of the said loan the complainant had mortgaged their residential property by depositing the title deeds as contemplated under section 58 (f) of the Transfer of Property Act in favour of OP bank. The credit facility disbursed to the complainant was subjected  to the terms and conditions of loan agreement. The OP admitted during the subsistence of the loan without taking the permission of OP bank has sold the secured asset and from the proceeds as closed the loan and requested for return of title documents.

11.  The complainant has issued notice dt.04.12.2020, the OP also send a mail dt.16.08.2022 informing about the OS/1452/2022 filed against the complainant by the OP bank. Further the complainant is represented by GPA holder and genuineness of the documents is in question. The complainant has failed to show the deficiency in service on the part of OP bank as such the present complaint deserve to be dismissed with cost against the OP Bank.

12.   The complainant filed his affidavit evidence relies on documents No.1 to 6.   One Sri Sridhar Chinni, Legal- Manager of OP has filed his affidavit evidence and  relied on documents R1 to R4.

13.  Heard the arguments of advocate for the complainant and OP. Both complainant and OP have filed their respective written arguments.  Perused the documents.

14.   The following points arise for our consideration as are:-

1. Whether there is deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

15.   Our answers to the above points are as under:

       Point No.1:  Affirmative.

       Point No.2: Affirmative in part.

      Point No.2: As per final orders

REASONS

16.   Point No.1&2:  These two points are interrelated and hence they have  taken up for common discussion.

17.      On perusal of the pleading of the complainant and version of OP, it is admitted that the complainant had availed loan to the sum of Rs.28,00,000/- and the complainant also deposited original title deeds with their Memorandum of Deposition of title deeds in favour of OP bank, after the deposit of title deed OP bank had granted loan to the complainant and for which the complainant had agreed to repay the said loan by monthly EMIs.

18.       The complainant contended that due to the financial crunches and Covid-19 the complainant was unable to keep up repayment schedule and as such the complainant was forced to alienate the schedule property in favour of vender (3^rd Party).The vendor i.e. 3^rd party has paid a sum of Rs.18,36,306/- to the complainant.  The complainant inturn has repaid the said amount to the OP bank the bank as full and final repayment of the house loan availed by the complainant through OP bank.

19.      The OP bank inturn have issued the receipt to Rs.18,36,306/- for being acknowledged from the OP bank through their vide letter dt.14.06.2022.  After which the complainant requested the OP bank to cancel the lien created by OP bank and to release the original title deeds pertaining to complainant’s property. But the reasons best known to OP but till today they have not released the title deeds deposited in OP bank. Even though the complainant have completed the loan full and final settlement.

20.      Now the crux of the matter is to ascertain whether any deficiency on the part of the OP bank. The OP bank itself have acknowledgement that they have received the entire loan amount towards full and final settlement and also issued a letter dt.14.06.2022. which is marked as Doc.-2. Which reveals that the complainant has repaid the entire amount but now OP is contending that the complainant husband has notified the OP bank not to release the title deeds in favour of the complainant. As such they have withheld the documents of the complainant. However, OP has contended that they are ready and willing to provide the documents to  the complainant and her husband to visit the  bank and to issue acknowledgement to having received the documents and also OP contended that the complainant  filed OS/1452/2022 filed in the civil court as they have involved the OP has one of the party in the said case. As such OP have not released the said original title documents in favour of the complainant. However, OP admits that complainant have repaid the loan that of full and final settlement as OP also acknowledged the same. But now OP intends the complainant to come along with her husband to collect the said document, but till today OP has not issued any notice to the complainant pertaining to the same and also the complainant has filed OS/1461/2022 for permanent injunction, but in the said suit there is no injunction order to the OP bank to withhold the title documents without applying the legal mind, the OP have withheld the title documents neither  have come forward  to cancel the lien  created in favour of OP bank nor made any effects to release the Original title  deeds in favour of the complainant. All this facts reveals that OP has acted against the Law and it can held as deficiency on the part of the OP.

21.      The OP is directed to return original title deeds in favour of the complainant and OP is also directed to pay a sum of Rs.25,000/- towards misery and suffering caused by the complainant and  litigation cost of Rs.15,000/-. Accordingly we answer point No.1 in affirmative and point No.2 partly in affirmative.

22.   Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to return original title deeds to the complainant and pay sum of  Rs.25,000/- towards misery and suffering caused by the complainant.
3. OP is further directed to pay  Rs.15,000/- towards litigation expenses.
4.  We also direct the OP to return the original titled deeds within 30 days, failing which the complainant is at liberty to have the redress as per law.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 13^th day of February 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1: 

SKA