SMT. BANDANA ROY, PRESIDENT

            The short  facts of the case is that  for smooth running of her business named and styled as Manolova at Parbatipur under PS Tamluk, Dist. Purba Medinipur the complainant took a loan from the OP no 1. The complainant asserts that for some financial crisis and other unavoidable circumstances, she could not repay the installments in proper time. On 16.08.2014 the OP no1 sent her a letter regarding the OTS in connection with the loan account of the petitioner being No. 30510708340 and the OTS amount was fixed at Rs. 3,41,529/-. On the basis of that OTS the petitioner deposited a sum of Rs. 1,02,500/- on 17.09.2014  and she deposited the rest amount of Rs. 2,39,029/- at the counter of the  OP No.1 on 14.11.2014.  Besides sending of the OTS on 16.08.2014, the Bank filed Mort Suit No. 191/2014 on 19.08.2014 before the Ld. Civil Judge (Sr. Divn), Tamluk  against the petitioner as well her guarantor. It is astonishing that in spite of repayment of entire OTS amount in the bank the OP no.1 Bank has filed the Mort. Suit against the complainant and drawing the proceeding. The petitioner asserts that in spite of depositing al the due amount, the bank neither issued Clearance Certificate nor returned the Deed No 4658/2007 and other papers of the petitioner as well as her guarantor which was kept mortgaged in the Bank at the time of taking the loan.

            The guarantor Sudip Chakaraborty  is the owner of the landed property of Title Deed No. 4658/2007. It is the case of the petitioner that when the dues has been cleared up by the petitioner, the OP no.1 has no right to detain the mortgaged papers of the petitioner and her guarantor. Being frustrated the petitioner sent a legal notice upon all the OPs. on 28.03.2017 which was received by the OPs. on 29.03.2017, 30.03.2017 and 05.04.2017 respectively. But the Ops did not take any steps to return the mortgaged documents to the petitioner as well as her guarantor.

Hence, the instant case with the prayers as made in the complaint petition on the allegation of deficiency of service and unfair trade practice against the OPs.

The OP no.1  contested the complaint by filing Written Version and took a general plea that the family members of the petitioner and her guarantor as well as his mother Bijali Charaborty have a common practice to create forged documents and cheat the banks for grabbing public money. They manufactured a concocted Agreement document upon the Indian Non judicial stamp paper No. 66AA 685681 and so, the case Mort Suit No. 191 of 2014  has been filed against the complainant and others and is being continued. The bank specifically speaks that the petitioner is not collecting  the ‘No Objection certificate’ from the bank quite willfully and deliberately to undermine the name an fame of the OP no.1. The OP no. 1 admits that they retained the Title Deed No 4658/2007. The bank further stated that guarantor  of  the petitioner who is the husband of the petitioner deposited that deed and it was not deposited by the petitioner. So, the petitioner has no right to get return of the said deed. Said Sudip Charaborty  has an outstanding due of Rs. 1,11,811,04 Ps. as on 19.12.2015  + interest thereto towards his loan obligation (to take loan/Advance against his business concern – Hotline A/C No. 10390363962). Besides the said title deed, there is no other papers  in the custody of the bank as stated by the petitioner. This OP further pleaded that the said deed is not concerned with only the loan relating to the business of the petitioner “MANOLOVA” but is also connected with the loan of her guarantor- husband Sudip Charaborty and the right of lien is applied on the land which is related with that deed in respect of the loan A/C No. 10390363962, the business “Hotline”.

The OP Nos. 2 and 3 also  contested the case by filing a joint written.

The case of these OPs is that the Mort. Suit was filed against the complainant and other members of her family as because they tried to cook new stories to raise new litigation such as filing of TS No. 11/2014 and wanted to grab public money and so, the bank did not believe the petitioner and filed the  Mort Suit no. 191/2014 to defend their stand  and prayed for decree against the ‘cooked up’’ agreement document.  It is the defense of these OPs that husband of the petitioner namely Sudip Chakraborty is under obligation to repay a total outstanding due of Rs. 1,11,811.04 Ps as on 19.12.2015 plus interest  for the loan taken by him for Hotline A/C No. 10390363962 and as per agreement of loan with said Sudip Charaborty  the OPs have exercised its right of lien over all securities belonging to him. So, the complainant has no right to claim refund of that mortgaged deed. These OPs further claim that the petitioner never came to the bank for  the ‘clearance certificate’ or ’no dues certificate’ or she never requested the Bank for the same. The petitioner took a loan of Rs.4.5 lac and her husband Sudip Chakraborty stood as guarantor  and mortgaged his Title Deed No. 4658 of 2007. The petitioner has no locus standi to claim return of the said deed. This defence of the Ops no. 2 and 3 is more or less the same as of the case of the OP no.1.

On the aforesaid grounds the OPs No 2and 3 have prayed for dismissal of the complaint petition with cost.

 On the basis of the above pleadings of all the parties, the points require discussion are whether the case is maintainable and whether the complainant is entitled to get the reliefs  as prayed for.

Decision with reasons

            Both the points are taken up together for consideration for the sake of convenience.

            We have carefully perused the affidavit of the complainant, the written version of the OPs and all the documents filed by both the parties, the examination- in- chief on affidavit, questionnaires of both parties and also reply thereto filed by the parties, heard the submission of the ld advocate for the complainant as also the OPs.

            Admittedly the complainant resides at House No. TM 05/180, mouza Town Padumbasan Word No.7 (mew) under PS Tamluk and she was carrying on the business of Trading of Household and Gifts items under the name and style M/S. Manolova sole proprietorship unit. .Admittedly the complainant made an application  for financial assistance before the OP no1 for  running her aforesaid business on 15.09.2008 and  cash credit loan of Rs. 4.25 lacs  at the rate of interest of 13.75 % was sanctioned to the complainant.  Admittedly for the sake of securing the said financial assistance the husband of the complainant Sri Sudip Charaborty stood as guarantor and mortgaged immovable property mentioned in the Title Deed no. 4658 of 2007. The loan A/C of the complainant was 30510708340. The Ops alleged that husband of the complainant, in spite of banks request and demand did not repay the bank’s claim  regularly and complainant and her husband violated the terms and conditions  of the agreement of loan and in that manner the debt has been classified as Non-Performing Assets  on 25.07.2011 in accordance with the directives/guidelines  relating to asset classifications issued by the Reserve Bank of India.  When the complainant failed to pay the actual dues, the OPs  mentioned in para 41 of the written version that the Ops issued complainant and her husband separate notice U/Sec 13(2)  of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 on 21. 11.2013 to repay the claims, dues etc. but the petitioner and her husband could not pay any heed and neglected to repay the bank’s dues, interests etc. Accordingly the Ops claims that the petitioner and her husband are under the obligation  to repay the outstanding due of Rs. 1,11,811/- as on 19.12.2015 and interest towards his loan obligation which is involved to his loan A/C No. 10390363962 relating to   business Hotline and in terms of the agreement executed  by the complainant and her husband, the OPs have exercised  its right of lien  over all the securities belonging to him  which came into possession of the bank besides the property is subject to charge created by the owner of the property in favor of the bank for his other loan.  

            We have carefully gone through the affidavit-in-chief filed by the complainant but we do not find that the complainant has stated anything about the notice U/Sec. 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 which was sent to them , as stated in para  41 of the written version of the OP No.1

Contesting OPs do not deny that they did not return the mortgaged title deed to the complainant and they have liened  over the mortgaged property  due to non- payment  of loan amount by husband of the complainant who also stood as a guarantor  for the mortgaged property. It appears that U/Sec. 171 of the Indian Contract Act 1872, bankers, in absence of any contract to the contrary, can retain  as security for a general balance  of account, any goods bailed to them, but no other person  have a right to retain, as a security for such balance, goods bailed to them unless there is an express contract to that effect.

We do not find any reason to enter into the merit of the case as where goods were bailed out  to the OPs, or not in this aspect as the complainant did not deny that  they received the notice  under the SURFASI Act as stated by the OP no1 in the para 41 of their written version. It is a settled law that a case under C P Act, 986 is not maintainable if there is a proceeding U/Sec 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 against the complainant.

            In view of the aforesaid discussion we are inclined to dismiss the case against the OPs.

            Both the points are answered accordingly.

            Hence, it is

O R D E R E D

That CC/430  of 2017 be and the same is dismissed on contest against the OPs.

Parties do bear their respective costs.

Let copy of the judgment be supplied to all the parties free of cost.