Case No. CC/ 19/2018
Final Order/Judgment
Sudeb Mitra, President:-
The complainant of this complaint case Chittaranjan Roy has filed this complaint case on 20.02.2018, as per scopes of sec 12 of the C.P. Act of 1986 against the O.P. i.e. the Branch Manager, Indusind Bank Ltd., praying for order directing the O.P. to return the complainant his original title deed no 374/1996 dtd. 05.02.1996, claimed by the complainant to have been kept by him in the custody of the O.P., besides other relevant documents, for obtaining loan from the O.P., so offered by the O.P. and the complainant has prayed for compensation to be paid by the O.P. for non returning of the said Title Deed of the complainant, on his repaying the loan amount taken by him from the O.P. and the complt. also has prayed for other reliefs, as this commission deems fit and proper, from the O.P. with cost.
The complaint case in short is that the complt. responded to the offer made by the O.P. for providing loan facility towards the complt. and thereafter the complt. visited the O.P., being represented by its concerned Branch Manager and submitted his original Title deed no 374/1996 dtd. 05.02.1996 in respect of his landed property for the purpose of creation of Equitable Mortgage for obtaining house building loan of Rs- Five lakhs and fifty thousand from the O.P. and a loan agreement hearing no WMK00002M had been executed in between the contesting parties of this case.
It is culled out from the complainant’s specific assertion as reflected in his filed complaint that the complt. had repaid the loan to the O.P. totally and informed the O.P. on that score and requested the O.P. to return him the original Title Deed of the complainant kept in the custody of the O.P., against O.P’s paying loan to the complt. by creation of Equitable Mortgage of house building loan of Rs- 5,50,000/- in favour of the complainant and the O.P. acknowledged the complt’s letter sent to the O.P. on that score dtd. 01.12.2016 and by it’s letter the O.P. informed the complt. the relevant Deed and documents will be released by the O.P. on 02.12.2016. It is pointed in the complaint that the O.P. had not returned the original Title Deed kept by the O.P. it’s custody on taking the same from the complt. against the O.P’s granting loan facility to the complt. and instead of returning the complt. his original Title deed in respect of the complt’s immovable landed property, the O.P. has returned the complt. the certified copy of that Title deed of the complt.. On raising question by he complt. on this
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score, seeking the return of the original Title Deed of his landed property, the O.P. had denied to have procured the original Title Deed from the complt. for granting him the loan facility and claimed to have taken the certified copy of the said Title Deed in its custody from the complainant, for granting him loan and contended that the question of return of the original Title Deed to the complt. by the O.P. doesn’t arise as the O.P. had never taken in its custody the original Title Deed of the complt. bearing no 374/1996 dtd. 05.02.1996 and the O.P. was given the certified copy of the said Title Deed by the complt. for creation of an Equitable Mortgage.
This is contended by the complainant that the complainant could assess that certified copy of the complt’s Title Deed was returned to the complainant by the O.P. was actually procured by the O.P. at a much later stage when the loan was already sanctioned to the complainant by the O.P. The complt. further asserted that it is the principle of the policy of the banking rules & regulations that the original Title Deeds, documents are obtained/taken by the banks before granting loan to the loanee/borrower, as security of such loan amount, for creation of Mortgage.
This is complt. case that for want of the original Title Deed which is claiming to have still been in the custody of the O.P. the complainant is failing to dispose of his relevant property and is sustain financial embarrassments and on his sending requests and finally sending lawyers notice dtd. 28.06.2017 to the O.P. the O.P. refused to return the original Title Deed of the complainant and the O.P. resisted that claim by sending counter legal notice dtd. 19.07.2017 and assailed have never obtained original Title Deed of the complt’s property for granting him loan facility.
By filing the complaint, the complainant has prayed for reliefs as stated in the prayer portion of the complaint petition.
O.P. filed W.V. denied all the material allegations and the gist of the O.P’s contention is that the O.P. had never admitted to have taken the concerned original Title Deed of the complt. for granting him loan facility and for that the question of its returning the same to the complainant doesn’t arise at all. It is contended by the O.P. that had the O.P. taken the original Title Deed of the complt’s property, the complt. must have objected to the return of the certified copy of the same instantaneously at the time of the O.P’s returning the certified copy of the said Title Deed, instead of returning the original one but as the complt. received
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the return of the certified copy of the said deed without raising instantaneous protest and as the complainant waited for a long time before his sending lawyer’s notice on that issue, the complt’s claim doesn’t deserve to have merit & by filing W.V. O.P. prays for dismissal of this complaint, since there was no deficiency of service caused by the O.P. towards the complainant of this compliant case. In the light of the contentions of the contesting parties, the following issues were framed as points for consideration for determination of the same to reach the decision in respect of the matters in issue involved in this case.
POINTS/ISSUES FOR CONSEDARETION
- Is the complainant a consumer as per scopes of Sec 2(1) (d) (ii) of the C.P. Act of 1986?
- Has this Commission/Forum jurisdiction to entertain the instant complaint?
- Has the complainant any cause of action and has the O.P. caused deficiency in service, as alleged by the complainant and is the O.P. liable, as alleged by the complainant?
- Whether the complainant is entitled to get the relief/reliefs as prayed for in this complaint?
DECISION WITH REASON
Issues no 1&2:-
We take up both these issues for consideration of the same since the decision on these prime issues can actually determine whether the discussion on the remaining other issues deserves positive consideration or the same deserves to be treated as redundant or otiose.
Having regard to the ambit, extent and scope of Sec 2(1) (d) clause (ii) of the C.P. Act of 1986, we feel inclined to hold that the complainant was a beneficiary of certain service offered to him by the O.P. and he(complt.) had availed himself of that service offered to him by the O.P., by submitting certain personal Title Deed of himself to the O.P. for securing the benefit of that service, expected by him to be provided to him by the O.P.in this case, in the form of granting of house building loan to him by the O.P.
Having regard to the respective standpoints prevalent in between the contesting parties, we find that the O.P. was the service provider in the form of financing the
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complainant a loan facility by creation of Equitable Mortgage and the complt. became the beneficiary of that service of loan facility given to him by the O.P.
In the premises, we find that the complainant was a consumer within the scopes of the Sec 2(1) (d) clause (ii) of the C.P. Act of 1986. Accordingly this issue is decided in favour of the complainant and is thus disposed of.
So far as the issue no 2 is concerned the case record reveals that the contesting parties of this complaint have resided and carried on business respectively within the territorial jurisdiction of this District Commission Disputes Redressal Commission/Forum, having regard to the scopes of sec 11 of the C.P. Act 1986.
Besides the case record reflects that the compensation sought for by the complainant in this complaint case from against the O.P. also assures that this District Consumer Disputes Redressal Commission has pecuniary jurisdiction, in consonance with the scopes of Sec 11 of the C.P. Act of 1986, to deal with this complaint case.
Accordingly this issue no 2 also is decided in favour of the complainant and is thus disposed of.
In the premises both the issues no 1&2 being decided in favour of the complainant of this complaint lend scope to take up other two remaining issues for discussion to reach a decision on merit.
Issues No 3&4:-
I take up both these two issues, at this stage, for discussion at a time to avoid repetition of prolixity. Besides both these issues are closely interrelated to each other and the decision of the issue no 3 will be a guiding factor to determine the fate of the findings of the issue no 4 to a considerable extent.
The scanning of the evidence and submissions of the contesting parties rest on the point to assess as to whether the complt. had submitted the original Title Deed of his landed property to the O.P. to keep the same in the custody of the O.P. on creation of an Equitable
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Mortgage for taking house building loan to the extent of Rs- 5,50,000/- from the O.P. and if so whether the O.P. had returned the said Title Deed to the complainant on his repaying his loan amount to the O.P. and whether the O.P. tried to replace the complt’s submitted original Title Deed by giving him back the certified copy of the same.
The complainant is specific that he had submitted the original Title Deed to the O.P. who kept the same in its custody for security purpose, before granting loan to the complt. and the O.P. hadn’t returned the same on the completion of repayment of loan made by the complt. and the O.P. had tried to return the certified copy of the said Title Deed instead of returning the original Title Deed to the complt. though the O.P. had taken the custody of the original Title Deed from the complainant before granting loan to the complt.
The O.P. on the other hand is specific to reflect through it’s counter arguments that the complt. had never submitted his original Title Deed in respect of his property for obtaining loan on creation of an Equitable Mortgage for house building loan of Rs- 5,50,000/- in the custody of the O.P. and there is no iota of documentary evidence to vindicate such claim of the complt., so the question of returning the original Title Deed of the complt. by the O.P. from it’s alleged custody doesn’t and can’t arise, specially when the complt. remained silent for a long span of time since the point of time of getting back the certified copy of his filed Title Deed in respect of his property from the O.P. It is asserted by the O.P. that the complt. remained silent at that time because the complt. was aware of what kind of Title Deed ha had submitted to the O.P., for his securing loan from the O.P. and what kind of document in respect of his Title Deed of the property he could get back from the O.P. and he was satisfied with that and remained silent, instead of raising alarm or objection for non receipt of his original Title Deed from the O.P. It is the O.P’s specific argument that had the complt submitted the original Title Deed with the O.P. for his securing loan, on non receipt of the same in the same form the complt. must have raised objection and as he had remained silent for long on that score, the complt’s claim has no merit.
We have considered the submissions, recriminations of the contesting parties to this complaint case, advanced from their respective stand points.
The scanning of record revealed that the O.P’s document dtd. 01.08.2006 regarding creation of Equitable Mortgage for sanctioning house building loan of Rs- 5,50,000/- dtd. 01.08.2006 never reflected anything categorically that the O.P. had received the original Title
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Deed of the complt’s property from the complt’s custody for the purpose of creation of the equitable mortgage of the complt’s ‘House building loan’ of Rs- 5,50,000/-. It is needless to reflect that as per Banking norms the O.P. Bank must have procured the original Title Deed from the loanee, for security purpose, before granting loan from it’s end to the loanee/complainant. Why the O.P., instead of taking in it’s custody, the original Title Deed of the complt’s property as security sanctioned/granted the complt./loanee the loan amount, remained conspicuously unexplained from the O.P’s end in this case.
The ground to resist/neutralize this suspicion forthcoming before us given by the O.P. that the complt. was given that liberty as an Ex Bank employee is not appearing to be convincing one specially when such ground was never reflected in the O.P’s prepared Deed dtd. 01.08.2006 for creation of Equitable Mortgage for House Building loan in favour of the O.P’s client i.e. the complt. That apart the O.P. could not also establish that the complt. was an ex employee of the O.P’s Bank or Ex-Bank employees get such scope while taking loan .
This further appears from the O.P’s prepared document dtd. 02.12.2016 that when the O.P. returned from its custody the Title Deed to the complt. on his admittedly making repayment of loan towards the complt., the O.P. categorically pointed out that the certified true copy of the Title Deed of the complt. dtd. 05.02.1996 was returned to the complt. At this stage of returning the documents vide its letter dtd. 02.12.2016, the O.P. was not specific at the time of preparation of its document dtd. 01.08.2006(creation of Equitable Mortgage for House Building loan of Rs- 5,50,000/- for the complt.) to establish that what nature of the Title Deed, O.P. was taking in it’s custody from the complt. for creation of the said Equitable Mortgage for sanctioning the House Building loan for the complt./loanee.
This further reveals on scanning the available materials on record that the O.P. side had procured the certified true copy of the Title Deed of the Complt., bearing no 374/1996 dtd. 05.02.1996, from the Registry Office of the Govt. of W.B. on 27.07.2007, long after the O.P’s creation of Equitable Mortgage for the House Building loan of Rs- 5,50,000/- dtd. 01.08.2006 in favour of the complt. /loanee, after the O.P’s preparing in ‘principle sanction letter dtd. 26.07.2006’ in favour of the complt. /loanee. What prompted the O.P. to procure the certified true copy of the complt’s/particular Title Deed no 374/1996 dtd.05.02.1996 remained unanswered too by the O.P. specially when the O.P. couldn’t establish that the O.P. had ever returned the original Title Deed of the complt. to the complt. and replaced the same with the certified true copy of the complt’s Title Deed no 374 of 1996 dtd. 05.02.1996, to the satisfaction of the O.P., for the purpose of sanctioning loan to the complt. /loanee.
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Though the O.P. tried to contend that the burden of proving the fact that the complt. had furnished the original Title Deed no 374/1996 dtd. 05.02.1996 with the O.P., rests on the complt. yet it is the O.P’s professional special knowledge to establish that it had obtained the certified true copy of the said Title Deed of the complt. and kept in it’s custody the same, for granting loan, on creating an Equitable Mortgage for sanctioning house building loan to the complt./loanee and O.P. had never procured the original Title Deed of the complt’s property from the complt. at all. However O.P. couldn’t discharge that burden of proof, shifted to the O.P., to vindicate the O.P’s stand point that it had never taken from the complt. his original Title Deed no 374/1996 dtd. 05.02.1996 to keep the same in O.P’s custody for sanctioning loan of Rs- 5,50,000/- from it’s end to the complt./loanee, referred in this complaint.
In the premises, we feel inclined to hold that the complt. had cause of action in this complaint and the O.P. has caused deficiency in service by not returning the original Title Deed no 374/1996 dtd. 05.02.1996 to the complt. as there remained legitimate grounds, as explained in this judgment, to hold that the O.P. couldn’t assail the complt’s claim by vindicating its(O.P’s) counter claim that in this particular transaction of granting loan to the complt./loanee, the O.P. had taken from the complt., not the complt’s original Title Deed bearing no 374/1996 dtd. 05.02.1996 but the certified true copy of the same as a taken of granting privilege to the complt./loanee to facilitate the complt. obtain loan from the O.P. to the tune of Rs- 5,50,000/- even by depositing certified true copy of the said original Title Deed. This makes the O.P. liable.
Accordingly, the discussion of this issue no 3 of this complaint goes in favour of the complt.
So far as the issue no 4 is concerned, this issue has a consequent resulting effect basing on the decision of the issue no 3. However, there remains no justifiable ground to entertain the complt’s claim of compensation, as reflected in the ‘B’ portion of the complt’s prayer for reliefs, though he is entitled to some compensation to a certain reasonable extent, since it is needless to reiterate that Consumer Disputes Reddressal Commission is not sitting for granting exorbitant compensation, as prayed for by the consumer, disproportional to the sufferings of the complt.
It is however obvious that the complt’s prayer for directing the O.P. to return him the original Title Deed bearing no 374/1996 dtd. 05.02.1996, from the O.P’s custody deserves positive, decisive consideration in favour of the decided & disposed of.
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Accordingly, this issue no 4 of this complaint case is allowed in part in favour of the complainant. All the issues are framed for reaching the decision of the points for consideration involved in this complaint are thus decided and disposed of.
Consumer protection Act 1986 doesn’t make any provision for making a complaint before the District Forum on payment of court fees, Sec 30 or other provisions of this Act of 1986 doesn’t authorize the State govt. to levy court fee or application fee on the complaint for filing a complaint before the District Forum.
The fees paid in this complaint appears to be sufficient.
Hence it is…
ORDERED
That this complaint case be and the same is allowed on contest but in part, without cost.
The complainant is determined to be entitled to get the return of the original Title Deed bearing no 374/1996 dtd. 05.02.1996 from the O.P. Bank who must return to the complainant of this complaint, the original Title Deed bearing no 374/1996 dtd. 05.02.1996 from O.P’s custody within six weeks from this date of order, failing which the complt. would be at liberty to put this order into execution against the O.P. of this complaint case, for implementation of this order against the O.P., according to law.
The O.P. is also directed to pay compensation of Rs- 30,000/-(Thirty thousand) towards the complt. of this case within six weeks from this date of passing of the instant order. In default the O.P. shall have to pay Rs- 100/- for each days delay, after the completion of six weeks time stipulation from the date of passing of the instant order till recovery of the said amount for delay. The amount to be accumulated shall be deposited in the ‘State Consumer welfare Fund’ West Bengal.
Let a plain copy of this order be supplied to the contesting parties of this complaint case, by hand/ by Regd. Post with A/D forthwith, free of cost, for information and necessary action, as per law & relevant rules.
Member Member President
District Commission
Paschim Medinipur
