Orissa

Rayagada

CC/127/2018

Sri Kari Samba Siva Rao - Complainant(s)

Versus

The Branch Manager, IOB Bank - Opp.Party(s)

Self

04 Apr 2019

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No.  127/ 2018.                                           Date.  20      .     3  . 2019

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                       President.

Sri   Gadadhara  Sahu,                                          Member.

Smt. Padmalaya  Mishra,                                     Member.

 

Sri Kari Sambasiva Rao,  S/O: Late: Kari Sriram Murty, Main Road, Bissamcuttack, Dist: Rayagada.                                                                                                                …..Complainant.

Versus.

The Branch  Manager, Indian  Overseas Bank  At/Po; Bissamcuttack, Dist: Rayagada  (Odisha).                                                                                                    …Opposite  party.

Counsel for the parties:                         

For the complainant: - Sri N.N.Panda, Advocate, Rayagada.

For the O.Ps:- Set  exparte

JUDGEMENT

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non release of   house documents in favour of the Guarantor (Complainant) after clearance of loan amount  bearing loan No.045303310700023  for which  the complainant  sought for redressal of the grievances raised by the complainant.

The complainant  filed  petition U/S-12 of the  C.P. Act along with Interim petition U/S-13-3-B of the C.P.Act before the  forum alleging deficiency in service  against the afore said O.P  for nonrelease of   house documents in favour of the Guarantor (Complainant) . In both the  petition  the complainant prayed  relief  of the petition are same.  Hence  notice was issued to the O.P.  before passing the any interim  order exparte

The brief facts of the case are  summarized here under.

That one Sri Kari Sankar Rao had availed  SL (SRTO)  loan on Dt.28.9.2007 a sum of Rs.2,01,280/-  to purchase a Car for hire purpose under hypothecation with the  O.P(Bank).  Sri Rao had purchased the Car and registered as OR-18-A-8511 Dtd. 17.10.2007. The complainant(Guarantor) had given all the documents of his house situated at Bissamcuttack towards the security  purpose for the above loan and executed the loan documents  as a Guarantor on Dt. 28.09.2007.  Sri  K.Sankar Rao could not repay the loan as per the agreement executed  by the loanee.  So on Dt. 28.9.2016 the  O.P. had issued a notice in favour of the complainant(Guarantor)  and Sri  Kari Sankar Rao to pay the loan dues under loan account No.045303310700023  for Rs.2,01.280/-  plus interest.   The complainant  had approached the O.P to settle the account under O.T.S. The O.P had with much difficulty to settle the loan under  O.T.S for Rs.1,52,000/- on Dt. 5.11.2016.   The complainant has paid all the amounts on different  dates which are mentioned here.

Date.	Amount paid.
1.	2.
5.11.2016.	Rs.20,000.00
29.11.2016.	Rs.30,000.00
06.12.2016	Rs.40,000.00
21.12.2016	Rs.30,000.00
03.1.2017	Rs.12,000.00
3.1.2017	Rs.20,000.00  (Through   Neft.)
Total  Rs.	Rs.  1,52,000.00

Accordingly the Guarantor (complainant) has paid all the amount personally. Then he asked  the O.P. to release the house documents in his favour. But till date the O.P.  has not handed over the house documents in favour of the complainant. Further  on Dt. 12.6.2018 the O.P.  has deducted Rs.14,000/- from the complainants S.B accountNo. 1149 with out prior intimation. Hence this C.C. case. The complainant prays the forum  direct the O.P to release the  house documents and refund Rs.14,000/- with accrued  interest and such other relief as the forum deems fit and proper for the best interest of justice.

Upon  Notice, the  O.Ps appeared through their learned counsel before the forum and took adjournements. Thereafter the  O.Ps neither entering in to appear before the forum nor filed their  written version inspite of more than  04 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.Ps.  Observing lapses of around 6(six)months  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.Ps. The action of the O.Ps is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.Ps. set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

We therefore constrained to  proceed to dispose of the case, on its merit.  Heard from the learned counsel for the complainant.   We perused the complaint petition and the document filed by the complainant.

                                        FINDINGS.

        On perusal of the record this forum observed actually one Sri Kari Sankar Rao(principal borrower) had availed  SL (SRTO)  loan on Dt.28.9.2007 a sum of Rs.2,01,280/-  to purchase a Car for hire purpose under hypothecation with the  O.P(Bank).  Sri Rao had purchased the Car and registered as OR-18-A-8511 Dtd. 17.10.2007. The complainant(Guarantor) had given all the title deeds of his house situated at Bissamcuttack towards the security  purpose for the above loan and executed the loan documents  as a Guarantor on Dt. 28.09.2007. Sri Rao had not deposited all the amounts till Dt.28.9.2016 and there is an outstanding amount in the above loan.  So on Dt. 28.9.2016 the  O.P.(Bank) had issued a notice in favour of the complainant(Guarantor)  and Sri  Kari Sankar Rao to pay the loan dues under loan account No.045303310700023  for Rs.2,01.280/-  plus interest ( copies of the letter Dt.28.9.2016 is in the file which is marked as Annexure-I & Annexure-2).   The complainant(Guarantor)  had approached the O.P to settle the account under O.T.S. The complainant with much difficulty to settle the loan under  O.T.S for Rs.1,52,000/- on Dt. 5.11.2016.  The complainant has paid all the amounts on different  dates and closed the above loan account No. 045303310700023 on Dt.3.1.2017 (Copies of the deposit receipts are in the file  which are marked as Annexure-3 and Annexure-4). Further after closing of  the above loan account  the O.P has issued  Form No. 35 to the R.T.O, Rayagada on Dt. 9.11.2017  for termination of an agreement of hire  purchase lease/hypothecation towards  car bearing  Regd. No. OR-18-A-8511 (copies of the same is in the file  which is marked as Annexure- 5).

It further appears that prior to filing   of complaint, the complainant had issued legal notice through its counsel on Dt. 04.09.2018 and it was duly served on the O.P.(Copies of the legal notice  is in the file which is marked as Annexure-6)   but they failed to furnish reply to the said notice. Hence it appears that the O.P. has been negligent and callous regarding the complaint of the complainant. So the complainant filed this C.C. case before the forum.

Even after the loan taken by Sri Rao was fully repaid on Dt.3.1.2017 the O.P. has retained the title deeds. When the complainant(Guarantor) approached the   O.Ps for the return of the original documents  and the O.P was procrastinating and ultimately the complainant approached the District Consumer forum for return of the documents.

The following points for consideration are.

 

1. Whether the complainant is a consumer of the O.Ps ?
2. Whether present dispute can be disposed of by this Forum and whether  there is any deficiency in service on the part of the O.P.?
3. Whether the complainant is entitled to get any relief, if so to what extent ?

Issue No.1

        Consumer means a person hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary  of such services other than the person who avails  the services for consideration paid or promised when such services are availed  of with the approval of the first mentioned person. In this case the O.P has promised  to refund the documents to the complainant after closing of the loan and the complainant availed loan (service) of the O.P by paying interest.  In view of the above the complaint is a consumer and the issue No.1 answered accordingly.

 

Issue No.2

                In the present case in hand the O.Ps have not filed any related documents in their favour. Where as the complainant filed all the documents in his favour, from where it shows that the complainant has closed loan account.

                We perused the documents filed by the complainant wherein it is clearly mentioned that the complainant has cleared the loan amount  of Rs.1,52,000.00 on Dt.03.01.2017. Since the complainant has already cleared the loan amount , it is the duty of the OP Bank to issue the clearance certificate  and return the documents in favour of the complainant(Guaranter).

        For the better appreciation this forum relied citations which are mentioned here.

               

        It is held and reported in 2003(1)C.P.R page No. 233 the Hon’ble State Commission, Gujarat in the case  Rajkot Nagasik Bank Ltd. Vrs. Piyush Ratilal Thakkar where in observed “Non-return of documents even after the repayment of entire loan Liability of Bank”.

            Again  in the case of Sobhan Singh Vrs. State of UP and others the Hon’ble Supreme Court  in  para 8,9 of   SAR 2015 (Civil) page No. 159   where in observed  “No proceedings for recovery of the outstanding loan amount can be taken against  a guarantor so long as the property of the borrower which is mortgaged, charged or encumbered  is not first sold “. 

            Further  it is held  and reported in  2003(4) CLD page No.834 the Hon’ble Andhra Pradesh State Commission where in observed in  para-9 “If a customer deposits certain  securities at a Bank accompanied  by a document creating a specific charge that might be evidence that no  general lien   is created. When security  of a particular was given  with a particular arrangement there can not be  a  general lien.  The bank can not claim any  general lien  over the securities that were  furnished  in  lien for a loan which was  already discharged. The O.P.  has no right to  retain the title deed.  It appears  even after several years after  the loan was discharged, the appellant has not returned the title deed in  respect of the house site even though the loan is discharged. “

            Again it is held and reported in C.P.R- 2008(4) page No.30 the Hon’ble National Commission, New Delhi wherein observed “Delay in release of original title deed of property after complainant cleared  and  paid  loan amount will be  constitute  deficiency in service”.

            Further  it is held and reported in C.P.R-2015 (1) page No. 16 where in the Hon’ble Kerala  State Commission observed “ Bank is bound to return original title deeds after closure of loan account”.

        That failure to return title of immovable property deposited with the Bank as security for loan even after repayment of entire loan  on the ground that borrower had stood surety for other shall amount to deficiency in service rendered by the Bank. Hence, in  view of the above decisions the Issue No.II  is answered accordingly.

Issue No.3

        Admittedly the O.P is a statutory authority who has  provided loan in favour of Sri Kari  Sankar Rao and in the present case in hand  the   complainant is a Guarantor. The complainant also closed the loan account  with up to date interest under O.T.S. But the O.Ps intentionally not handed over the documents to the complainant(Guarantor) which is gross negligence on the part of   the O.Ps, as such the O.P is liable to return the documents to the complainant.

        Further during the course of hearing the learned counsel for the complainant has filed copies of the S.B. Pass book  No.1149 wherein the O.P. on Dt.12.06.2018 had  debited a sum of Rs. 14,000/- from the above account without  intimation to the complainant. (copies of the  pass book first page and pass book particulars is in the file which is marked as Annexure-6 and 7).

 

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is Aliane Juris. Hence  we allow the above complaint petition  in part.

Hence  to  meet the  ends of justice, the following order is passed.                                                                                                      

                                                           

 

                                                            ORDER.

            In  resultant   the complaint petition stands allowed    on  exparte against  the O.P. 

 

The  O.P. is directed to deliver the original title deed to the complainant(Guarantor) immediately inter alia to  credit a sum of  Rs.14,000/- with accrued  S.B. interest  in the S.B. account  No.1149 of the complainant.

The O.P. is  at  liberty  if any amount is outstanding against  Sri Kari Sankar Rao (Principal Borrower) in any  other loan  be recovered from him as per law.

 

The OPs     ordered to make compliance the aforesaid Order within  45 days from the  date of  receipt  of this order. 

   Serve the copies of above order to the parties free of cost.

 

Dictated and corrected by me

Pronounced on this       20  ^th.   Day of  March,   2018.

 

 Member.                                                            Member.                                                             President