FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The claim application has been filed by the complainants U/s 12 of CP Act, 1986 against the OPs submitting inter alia that the complainant-1 Sri Ananda Kr. Jaiwsal purchased the subject property from one Sukumar Dutta by virtue of a Deed of Sale executed on 20.11.2008 being deed No. 11210 for the year 2008, The assessee No. of the complainant-1 in KMC is 311131201441 and he is regularly paying Govt. rent and taxes in respect of the subject property.
OP-1 is the branch manager of Retail Asset Operation Department, Kolkata Branch and the OP-2 is the authorized officer of IDBI Bank, a Govt. of India owned bank, IDBI Tower, WTC complex, Cuffe Parade, Mumbai-400005.
It is further stated by the complainants that they applied for bank loan from IDBI Bank, Kolkata Branch i.e. from OPs as mentioned above and their loan account No. is 0135675100002794.
It is further stated by the complainants that at the time of granting loan to the complainant, the OP-1 have created mortgage known as EMTD of Deed No. 11210 for the year 2008 which stands in the name of the complainant-1 and the deed was deposited in the office of the OP-1 as collateral security.
It is alleged by the complainants that they repaid the outstanding loan amount of Rs. 9,15,000/- in full to the OPs which was confirmed by the OPs vide letter No. SOL ID-012 dated 06.07.2019 and they also issued the No Due Certificate to the complainant in connection with the said loan account. At the time of granting loan and creation of mortgagee in the year 2008. The complainants have deposited the original documents namely :-
- Original copy of other document dated 27.11.1986.
- Original building plan dated 26.07.1999.
- Original money receipts dated 20.11.2008.
- Original permission to mortgage to builder dated 19.11.2008.
- Original unregistered agreement for sale/sale deed dated 13.07.2008
- Original other original documents dated 24.09.2008.
- Original registered release deed dated 18.09.2008
- Original registered sale deed dated 20.11.2008.
- Original registered sale deed dated 22.07.1085.
- Original registered sale deed dated 23.02.2000.
All the above mentioned documents were lying in the safe custody of the OPs which was confirmed by them vide letter dated 06.07.2019.
it is further case of the complainants that they repaid the loan amount on 20.05.2019 and the loan account was closed on 03.06.2019 and thereafter the complainant requested the OP to handover the original title deed and other original documents as mentioned above vide letter dated 06.07.2019 and the OPs agreed to handover the same after 15 days from the date of repayment of loan amount along with No Due Certificate but the OPs vide its letter dated 08.07.2019 vide ref. No. HN/835/08-07-19/2019-2022 stated that due to an unfortunate fire incident at the storage premises of SDML, Mumbai of the IDBI Bank. All the documents are burnt and damaged and the OPs are not in a position to handover the original deed and other original documents to the complainants.
The complainants are further alleged that the OPs did not inform them about the alleged fire incident which is amounts to deficiency in service and unfair trade practice for the negligence of the OPs. Hence, the petition of complaint is filed by the complainant with a prayer for giving direction to the OPs 1 and 2 to refund all the original documents along with original deed in respect of subject property as mentioned in schedule II of petition of complaint and also prayed for giving direction to the OPs to pay compensation of a sum of Rs. 16,00,000/- in case of failure to handover the original deed and documents to the complainants and also prayed for giving compensation of a sum of Rs. 2,00,000/- for harassment, unfair trade practice and mental agony along with litigation cost of Rs. 1,00,000/-.
The OPs 1 and 2 have contested the claim application filed by the complainants by filing a WV / Written Statement denying all the material allegations leveled against them.
It is alleged by the OPs that the petition of complaint is not maintainable in law and fact and it is bad for mis-joinder or non-joinder of necessary parties. It is also stated by them that this forum has got no jurisdiction to try this case and moreover, the complainants have no cause of action to file this case.
It is admitted by the OPs that a housing loan was taken by the complainants and the same was duly repaid by them on 20.05.2019. It is also admitted fact that the complainants have created mortgage in respect of subject property as mentioned in schedule petition of complaint. In the year 2015, the OP bank in order for the safety and security of its borrower has rented a 25,000% sq. ft. space at Stock Holding Management Service Ltd., Mumbai which is having all the modern facilities and amentias for the keeping valuable documents safely but unfortunately a fire incident which took place at Stock Holding Management, Mumbai which was much unfortunate both OP/bank and borrowers whose valuable deeds have been damaged and burned. Such incident was reported in the newspaper like Times of India in their Mumbai edition dated 12.12.2017 which discussed about intensity of fire. The photocopy of newspaper marked as annexure-A with the WV. The fire took place on 11.12.2017 but due to high intensity of fire, the Stock Holding Management Service Ltd. took time for access the damage caused to the documents to the OP bank and they intimated the bank about incident to the complainants in writing on 30.01.2018 after accessing the damage.
It is stated by the OPs that they have no accessed to the incident. it was unfortunate incident but they utmost care for the safety and security of the documents deposited by the complainants or their borrower to them and under such circumstances, the OPs are in no way response for the incident and the allegations made by the complainants as no leg stand upon and there was no deficiency in service on the part of the OPs.
Under such circumstances, the petition of complaint as filed by the complainants is baseless and are liable to be dismissed or rejected.
In view of pleadings, the points of consideration are as follows:-
- Is the case maintainable in its present form?
- Has the complainant any cause of action to file the case
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with Reasons
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
On a close of scrutiny of material on record, it appears that the instant case is well maintainable in the eye of law
It has filed by the complainants within the period of limitation.
It is also revealed that this forum has got pecuniary and territorial jurisdiction to try this case.
It is admitted fact that the complainants have taken loan from the OPs IDBI Bank, Kolkata Branch and the OP-1 is the branch manager of IDBI Bank, Kolkata Branch and the OP-2 is the authorized officer of IDBI Bank, a Govt. of India owned bank, IDBI Tower, WTC complex, Cuffe Parade, Mumbai-400005. It is admitted fact that the complainants have taken loan against the schedule property from the OPs by giving mortgage of sale deeds along with other documents as mentioned in schedule II of the petition of complaint.
It is also admitted fact that the complainants being borrower have repaid the loan amount on 20.05.2019 and the loan account was closed on 03.06.2019. Thereafter, they requested the OPs to handover the original title deed and other original documents mentioned in the schedule of the petition of complaint and also in the letter of the OPs dated 07.06.2019. The complainants demanded those documents and original deeds vide their letter dated 06.07.02019.
But the OPs failed to handover those documents to the complainants and admitted the fact by a letter date 08.07.2019 against the demand letter of the complainants vide ref. No. HN/835/08-07-19/2019-2022 stating that due to an unfortunate fire incident at this storage premises of SDML, Mumbai of the OP ban. The OPs are not in a position to handover the original deed and original documents to the complainants.
Hence, this case during the course of argument both in writing and orally. The Ld. advocate for the complainants argued that complainants have mortgaged the original deeds and original documents of the property as mentioned in schedule II of the complaint to the safe custody of the OPs with trust and faith that it would kept in safe custody but the bank failed to secure the original deeds and documents of their borrower though it is stated by the OPs that they kept those documents and original deeds as mentioned in schedule of petition of complaint in the safe custody at the storage premises of SDML, Mumbai but due to unfortunate incident of fire, those documents were damaged and burnt. The intensity of fire is so high, the authority of SDML, Mumbai could not be able to access in the premises immediately after the incident and they informed the OPs after assessing the damage and from such assessment, it is found that the original deeds and documents which were deposited by the complainants at the time of taking loan from the OPs were kept mortgage and safe custody of the OPs. It is admitted by the OPs that the mischieve has done to the original deeds and documents of the complainants when it were kept in their custody then it is needless to mention here that the OPs are sole responsible for the damage and loss sustained by the complainants and whichever may be incident like the fire accident. It was the duty of the OPs and authority of SDML of Mumbai to take utmost care about the safety and security of the deeds and documents kept in their safe custody by borrower by keeping in mind in respect of propable accident or incidents. It may be unavoidable but the OPs would be liable for that irresponsible activities and that should be considered by this forum as deficiency in service. It is admitted fact and it is also the position of law that the complainants are the consumer within the ambit of CP Act, 1986.
From the material and evidence on record, it is proved that there was sufficient cause of action for the complainants to file this case and the unfortunate complainants could be able to prove their case by adducing cogent evidence and are entitled to get relief as prayed for.
During of this Case the complainants have a filed a petition dated 26.09.2023 by stating interalia that they have received some documents from the OPs in respect of the burnt and damaged documents as mentioned in the petition dated 26.09.2023.
From the list of the documents as supplied by the OPs to the complainants it is revealed that no original deeds were handed over to the complainants which caused irreparable loss and injury to the complainants for which the OPs would be liable to justify the loss in terms of money as specified by this Forum.
All the points of consideration are considered and decided in favour of the complainants.
The case is properly stamped.
Hence,
Ordered
That the case be and the same is decreed on contest against the OPs with cost of Rs 1,000/-.
The OPs 1 and 2 are directed to handover the original deed and other documents as mentioned in schedule II of the petition of complaint in respect of schedule property to the complainants i.d. they are directed to pay a sum of Rs.1,00,000/- to the complainants either jointly or severally within 45 days from this date of order.
The OPs are further directed to pay compensation to the complainants of Rs. 50,000/- for deficiency in service, harassment, mental pain and agony along with litigation cost of Rs. 10,000/- within 45 days from the date of this order, i.d. the complainants will be at liberty to execute the decree as per law.
Copy of the judgment be uploaded forthwith on the website of the commission for perusal.
