Order-13.

Date-04/12/2017.

This is an application u/s.12 of the C.P. Act, 1986.

            The Complainant is a proprietor of M/s A. M. Enterprise, a proprietorship firm carrying on business from the address at 80/1, ShaidBinoy Pally, PO .Bansdroni, PS . Regent Park,  Kolkata 700 070. The said firm is the only source of income of the complainant, earning for his family members livelihood by way of self employment. For smooth running of the business, the complainant obtained cash credit and term loan from the OP-1 Bank and submitted the Original Title Deed dated 18.04.1984 executed between Sri SuranjanMajumder and Sri NanigopalDey being book no. 1, deed no. 370 for the year 1984, before the OP-1 for creation of mortgage.

 Due to business turmoil the complainant could not pay and clear the loan amount in time and therefore, the loan account turned into NPA after issuance of demand notice by the Bank. Subsequently, the Bank issued demand notice u/s 13(2) of SARFAESI Act, 2002 and also filed one case before DRT-II, Kolkata. Subsequently the claim of the bank has been settled for an amount of Rs. 13, 50,000/- and the complainant paid and settled the outstanding dues of Rs.13, 50,000/- by making payment through   pay order dated 13.09.2013 against loan A/c No. 11129513494The complainant asked the bankafter redemption of mortgage for return of the Title Deed which had been submitted at the time of taking the loan.

            The OP-2 , its recovery centre replied by a letter dated 25.09.2013 and submitted that original title deed has already been deposited with the Hon’ble DRT-II, Kolkata for adducing evidence and after the bank advised their Advocate to submit withdrawal application before the Ld. DRT-II and to collect the title deed. The OP-2, Bank in spite of receiving letter dated 27.04.2015 of Complainant failed tohandover the same and intimated that their migratory branch would be informed accordingly.

 The OP-2, vide their letter dated 03.08.2016 intimated that they did not deposit the title deed in original before the DRT-II area and no title deed has been handed over to there by the migrating branch during migration of  loan account.

The OP-1 vide their letter dated 03.09.2016 and 27.09.2016 also intimated that they could not trace the original title deed and accordingly advised to provide duplicate deed after newspaper notification and FIR.But the OPs till date failed to take any legal steps in the matter. The Complainant lodged complaint before the Banking Ombudsman and after getting assurances from the bank regarding their settlement issue with the complaint closed the claim on 31.10.2016.

The Complainant sent legal notice dated 10.07.2016 upon OPs for non return of the original title deed. The Complainant submits that OPs committed sheer negligence and deficiency of service against the complainant. The dispute on returning the original title deed in question is between the OP-1 and OP-2. Their versions differ with each other. Ultimately, the OPs submitted that they could not trace the original title deed.

It is due to deliberate default and negligence regarding maintaining the original sale deed in safe and secure custody of the bank, which is a valuable document of the petitioner and which cannot be obtained a fresh in original which automatically valued less in the property market for which the bank has committed deficiency in service in the matter.

The petitioner thus has to come up before the Ld. Forum for getting necessary orders directing the OPs to return back original title deed dated 18.04.1984 executed between Sri Suvranjan Mazumder and Sri NanigopalDey being book No. 1 Deed No. 370 for the year 1984 in default to pay compensation to the tune of Rs.10, 00,000/- and litigation cost of Rs.1, 00,000/-.

Written Version

            With respect to the statements made above of the complaint, it is submitted that it is a fact that the Complainant had defaulted in payment of his loan dues to the OP Bank and that the OP Bank was compelled to initiate proceedings under section 13(2) of the SARFAESI Act,2002, inter alia, claiming a sum of Rs.18, 43,346/- (Rupees eighteen lakh forty three thousand three hundred and forty six only) as on 31.12.2012. However on the repeated requests of the Complainant, the OP Bank settled the loan account of the Complainants at a compromised sum of Rs.13, 50,000/-. Thus, the OP Bank extended its full cooperation in settling the loan account of the Complainant.

It is a fact that after settlement of the loan amount the Complainant approached the bank for the original title deed and that initially  the OP bank was under an impression that the original title deed  in question was deposited before the Hon’ble Debts Recovery Tribunal – 2 , Kolkata in connection with filing evidence on affidavit and as such the OP Bank had requested their empanelled Advocate handling the case before the Hon’ble Debts Recovery Tribunal-2,Kolkata to submit one petition for return of the original title deed. But, subsequently, the OP Bank was intimated by its Advocate that the same was not submitted before the Hon’ble Debts Recovery Tribunal-2,Kolkata, since the loan account was migrated from State Bank of India, Tollygunge Branch to the Stressed Asset Recovery Branch.The Complainant was requested to cooperate with the OP Bank as the same needed some extensive search. It is fact that the OP bank has conducted extensive search trying to trace out the original title deed of the Complainant.

It is a fact that the OP Bank had shouldered the responsibility of providing certified copy of the original deed to the complainant and also said that if the original Title Deed is not traceable by the OP bank, then Bank would lodge one General Diary before the concerned Police Station and would also publish one Newspaper notification, declaring the fact of misplacement of the original title deed. OP Bank is always willing to take up the necessary steps to protect the interest of the complainant and to resolve his problem. But since the OP Bank is still trying to trace the original title deed before lodging the General Diary, the OP Bank did not lodge the GD till date. However, the intention behind the same was always to protect the interest of the Complainant.

It is submitted in the complaint that nothing is admitted by the OP Bank beyond record, it is denied that the OPs committed sheer negligence or deficiency in service in the matter or that on the one hand the OP-1 submitted that they filed the original title deed of the Complainant before DRT-II, Kolkata, as evidence or that on the other hand the OP-2 submitted that no such document was filed before the DRT-II or that the statements deferred between the OP -1 and OP-2 or that ultimately the OPs submitted that they could not trace the original title deed.

            With respect to the statements in the complaint it is denied that there is any deliberate default or negligence regarding maintaining the original sale deed or in safe or secure custody of the Bank. It is submitted that there are several officers handling files from time to time and hence the OP Bank, which is a nationalized Bank, cannot be held deficient as a whole. Also the Bank has relinquished a considerable amount of money in settling the loan account of the Complainant and hence the conduct of the bank towards the Complainant was always fair.

            Under the above circumstances, the OP Bank humbly prayed that the complaint case be disposed summarily by directing the OP Bank to lodge General Diary before the competent Police Station and to make one newspaper publication in respect of such loss of title deed No. 370 for the year 1984 to protect the interest of the Complainant.

Point for Decision

        1) Whether the complainant is a consumer under the OPs;

        2) Whether the OPs are deficient in keeping promises to the complainant;

        3) Whether the complainant deserve any relief.

CRITICAL ANALYSISANDDECISION WITHREASONS

1) We have perused the documents filed by the complainant including the stated letters, Evidences on Affidavit, Questionnaire and Replies by respective parties.We have also particularly noted the Replies from serial 13 to 17 of OPs against the questions from serial 13 to 17 by the complainant.

2) We think that there is no complex problem or legal complexity in determining the fate of the complaint. There is a simple issue which has been made complex by the OPs in prima-facie declining the prayer of the complainant in simple admission that they have lost the Original Title Deed of the complainant, which should have been handed over to the complainant after settlement of the Loan vide A/c No. 11129513494. OPs entered into the labyrinth of statements to escape the individual liabilities of officers under the OPs having dealt with the custody of the Original Title Deed so mortgaged.

3) OPs did not acknowledge the importance of the Original Title Deed after settlement of the loan but they had well laid importance on the same document before sanctioning the loan. Could it be possible by OP-1 to sanction the loan if the complainant had furnished a certified or attested copy of the Original Title Deed? The reply is simply ‘No’. Here lies the importance of an Original Title Deed.

        4) It appears that all communications between the complainant and the OPs centre round the issue of returning the Original Title Deed by OP SBI to the complainant. It is presumed that before settlement of loan repayment, the OP-1 had sent the loan records to OP-2. AGM (OP-2) stated in a letter dated25/9/2013 that the Original Title Deed had been deposited with the Ld. DRT-II, Kolkata for adducing evidence.

        5) OP-2’s letter 27/4/2015 speaks that they would take up the matter with the migratory branch, i.e. OP-1. OP-2 intimated vide letter dated 03/8/2016 that they did not deposit the Title Deed with the Ld. DRT-II, Kolkata. OP-2 also stated that no Original Title Deed was handed over by the Migrating Branch, i.e. OP-1. OP-2 admitted that they could not trace the Title Deed. OP-2’s letter dated 03/8/2016 appears to have clearly held OP-1 responsible for the Original Title Deed.

        6) OP-1 sent letters dated 03/9/2016 and 27/9/2016 to the complainant admitting that they could not trace the Original Title Deed and assured Duplicate copy of the same after publishing in the news paper and lodging FIR with the concerned P. S.

         It appears surprising that OP-1 did not carry out their assured steps till the time of lodging this complaint. This shows their lack of sincerity to keep their promises, particularly, in the area where they are deficient and negligent.

        7) OPs’ lack of sincerity is further seen where they assured the Ld. RBI Ombudsman to settle the issue with the complainant, on the basis of which the Ld. Ombudsmanclosed the Complainant’s claim on 30/10/2016 but OPs did not even honour their assurances to the Ld. Ombudsman. In this case, OPs played tongue in the cheek policy. They submitted that Original Title Deed could not be traced but till date OPs stated they have still been searching the Original Title Deed.

        8) The complainant alleged Negligence committed on behalf of the OPs. If we look into the allegation, we find that when OP-1 received the Original Title Deed from the complainant, it hadtheduty to ensure safe custody of the same and to return the Deed when the mortgage expired. The OP-1 failed to carry out such duty and as a consequence of such failure on the part of OP-1, the complainant suffered. This is the literal example of Negligence committed by OP-1.

9) The complainant alleged Deficiency committed on the part of OPs. At complaint para-12, it is stated that due to deliberate default and negligence regarding maintaining the Original Sale Deed in safe and secure custody of the bank, the bank committed deficiency in service as the said document is valuable to the complainant, a fresh original of the document cannot be obtained, and for lack/want of such original document, concerned property is valued less in the market, i.e. marketability of the property is reduced.

        We fully agree with such view of the complainant. The complainant may feel apprehension that some miscreants are going to use the original Title Deed and sell the property by fraudulent means which we frequently hear of in present days. So, the complainant may have been suffering from constant anxiety. So, we hold OPs (OP-1 in particular) fully deficient, negligent, responsible and liable.

10) In this connection, we like to refer a citation. 2014(4) CPR 592 (NC)inIndian Overseas Bank, Hyderabad Main Branch-Vs-Shri K. Bal Reddy &Anr. In the findings of the court, it is stated, inter alia, ‘….A person seeking to buy an immovable property would certainly like to have the original deed with him at the time of purchase. Even if someone is willing to purchase an immovable property without original title deed, he would never pay the correct prevailing market value of the property which he is purchasing. He will always be apprehensive that someone may or may have mortgaged the property by deposit of title deeds…’

11) We like further to allude to a recent citation. 2017(3) CPR 475 (NC) in State Bank of India-Vs-Utpal Gope where it is pointed that ‘Misplacing of vital documents by Bank amounts to deficiency in service.’This case has a full ratio with the instant one. In this case also the petitioner bank has not been able to trace original deed deposited with it by complainant and the complainant suffered substantial financial loss on account of petitioner bank having lost original deed deposited by him. It is also dictated, inter alia, that State Commission has already reduced compensation to Rs 5 lacs. Considering value of Real Estate in country, compensation amounting to Rs 5 lacs cannot be said to be unreasonable or unjustified.

         12) In the Written Version, OPs have highlighted their consideration in settling the loan amount. Ld. Lawyer on behalf of OPs drew our attention during final argument that the loan amount of Rs 18, 43,340/ has been reduced to Rs 13, 50,000/- as full and final settlement. The fact cannot be denied and we appreciate such attitude of the OP bank.But this is to divert our attention from the core issue as the compromise proposal or the loan amount is not an issue under dispute. Such issue has long been resolved by both parties. Moreover, when the bank settled the amount, it should be taken as granted that they analyzed all prospects and feasibility of repayment of loan by the complainant; then only settled the matter.

        13) In the WV, OP bank stated that the complainant should co-operate as the bank was conducting extensive search for the Title Deed.

It may be pointed out that the loan was settled on 13/9/2013 and now is the last month of 2017. The OPs intimated in writing that the Original Title Deed is not traceable. Then, should the complainant wait for the said Title Deed forever?

        14) The OPs tried to substantiate their fault and lackadaisical conduct in failure of ensuring safe custody of the bank received to serve the purpose and interest of the bank, by stating in the WV that they are a nationalized bank and several officers handle files from time to time as well as bank has relinquished a substantial amount of money.

 In this connection, OP bank should remind that being a nationalized bank, they should have been more cautious and responsible. They are the public sector bank and should have taken care of the interest of the people. Employees of PSU banks are paid from the pocket of the people and they should not be allowed scot free for their deficiency and negligence. The higher authorities of the OP bank should fix the responsibilities of the officers/employees entrusted for safe custody of the Original Title Deed. Para-10 and 11 above may be noted by the OP bank.

        15) The complainant was a loanee and conducted financial transaction. Therefore, the complainant is a consumer under the OPs. From above discussions, it is clear that the OPs are deficient and negligent. Therefore, the complainant deserves relief.

        In the circumstances of above detailed analysis, it is reiterated that the complainant being a consumer in terms of the provision of the Consumer Protection Act, 1986 as amended so far deserves relief as he has suffered financial loss due to the sheer deficiency of OP bank.

             In such a situation, we are constrained to pass

ORDER

            That the complaint be and the same is allowed on contest against the Opposite Parties in terms of section 13(2)(b)(i) of the C. P. Act, 1986 so amended;

            That theOpposite Parties are jointly and severally directed to pay to the complainant an amount of Rs 5,00,000/- as compensation in terms of section 14(1)(d) of the Act and Rs 30,000/- as litigation cost to the complainant within 30 days from the date of this order;

           That theOpposite Parties are jointly and severally directed to publish the fact of loss of the Original Title Deed with full description in three leading daily news papers, one in Bengali, the other in English and the last in Hindi as well as to lodge F.I.R. in the concerned Police Station to safeguard the fraudulent use of the Original Title Deed, at their own cost,within 30 days from the date of this order;

          It is, however, made clear that the higher authorities of the OP bank shall have the liberty to fix responsibility of the officers/employees entrusted with the charge of safe custody of the Original Title Deed and shall be entitled to recover the amount which it is ordered to pay as compensation and litigation cost to the complainant, from such officers/employees held responsible for the loss of the Original Title Deed;

On non-compliance by the OPs of above orders within stipulated time, the complainant shall have the liberty to put the orders into execution in terms of section 27 of the Act ibid.

          Let copies of the order be handed over to the parties when applied for.