By. Smt. Renimol Mathew, Member:
The complaint is filed under section 12 of the Consumer Protection Act against the opposite party to get back the original title deeds of complainant's father mortgaged in opposite party bank as security to complainant's loan.
2. Brief of the complaint:- Complainant availed a loan(MTL 20602 code 57068203400) from the opposite party bank in the year 2000 and his father Odambath Madhavan stood as guarantor to the loan. The title deed of the father of the complainant (1876/76) mortgaged as security to the above loan. On 23.07.2007 the complainant repaid the entire loan amount and obtained a non due certificate from the opposite party. But on that day opposite party not returned the original deed which was mortgaged before opposite party. Thereafter this complainant approached the opposite party party somany occasions to get back the original title deed but opposite part not returned it so far. When complainant demanded to return the original title deed opposite party told that it will give later and subsequently opposite party issued a no due liability certificate to this complainant on 05.10.2010. Then complainant given a written complaint before opposite party, even after the notice opposite party had not returned the title deed. Subsequently the complainant sent a lawyer notice to opposite party. In the reply notice also opposite party denied the request of complainant and stated that the title deed was returned to the father of the complainant but complainant alleged that he had closed the loan liability on 23.07.2007, before that in the year 2004 itself his father died. Even after the repeated demands opposite party was not ready to return the document. Hence filed this complainant.
3. On receipt of notice, opposite party appeared and version filed. In the version, opposite party admitted that the complainant availed a loan from them in the year 2000 and complainant's father Odambath Madhavan stood as guarantor for the loan and he mortgaged his title deeds as a security to the loan of the complainant. Thereafter on 24.03.2007 complainant closed the loan liability and the entire documents were returned to the complainant at the time of closing the loan. Opposite party denied the allegation of the complainant that they informed the complainant that the document will give later. The bank did not keep the documents of the loan that was closed by the party. Opposite party further stated that the complainant closed the loan on 23.07.2007 and the Lawyer Notice issued on 19.12.2014 ie after 7 years. Opposite party send reply to the notice. Then the complaint was filed only on 21.02.2015 ie after 8 years. The complainant lost the documents some where else and now he found fault with the bank. Opposite party further stated that there is no deficiency of service on the part of them and they were not liable to pay any compensation to the complainant and this complaint is barred by limitation and prayed to dismiss the complaint.
4. On perusal of complaint, version and documents the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite party?
2. Relief and cost.
5. Point No.1:- Complainant filed proof affidavit and he is examined as PW1. Ext.A1 to A7 documents were also marked to prove his case. Ext.A1 is the copy of Death Certificate of complainant's father. Ext.A2 is the copy of Family Membership Certificate. Ext.A3 is the copy of complaint given to opposite party dated 06.03.2014. Ext.A4 is the copy of Lawyer Notice. Ext.A5 is the Reply to Lawyer Notice. Ext.A6 is the copy of Non due Certificate. Ext.A7 is the Bank Pass book of the complainant. The case of the complainant is that he availed a loan from the opposite party in the year 2000 the original title deed No.1876/76 of his father was mortgaged as a security to the loan. Father stood as the guarantor to this loan. Thereafter his father died in the year 2004. Subsequently on 23.07.2007 the complainant closed the loan and obtained non liability certificate dated 05.10.2010 (Ext.A6) from the opposite party. But he had not received the original title deed at the time of closing the loan, thereafter complainant approached opposite party and demanded to return the title deed but he has not received the same. Then on 06.03.2014 he has given a written complaint before opposite party the copy of the same is marked as Ext.A3. Even after the complaint he had not received the document and on 19.12.2014 a Lawyer Notice was sent to opposite party ie marked as Ext.A4. Then opposite party sent a reply notice dated 29.12.2014 (Ext.A5) stating that they have already returned the documents to the father of the complainant at the time of closing the loan. But complainant argued that his father died on 13.08.2014 itself and the copy of Death Certificate is produced and marked as Ext.A1. Thereafter on 23.07.2007 this complainant closed the loan liability and obtained no due liability certificate which is marked as Ext.A6.
6. Opposite party adduced evidence and examined as OPW1, opposite party admitted the loan transaction and admitted that the title deeds of guarantor was mortgaged in their bank as a security to the loan of this complainant. They also admitted that the father of the complainant died before closing the loan and they were keeping equitable mortgage register in their bank. In the reply version, proof affidavit and the reply notice (Ext.A5) opposite party stated that they have returned the original title deeds to the father of the complainant. Opposite party not produced any document to oppose their case. Opposite party argued that the case is barred by limitation. But on analysation of the entire aspects we are of the view that the cause of action is continuing. On going through the evidences and submissions the Forum of the view that, opposite party admitted that the original deed of the guarantor is mortgaged with them. They also stated that the same was returned to the father of the complainant along with connected documents. But on perusal of Ext.A1 it is found that the guarantor died on 13.08.2004. As per Ext.A5 opposite party admitted that the loan closed on 23.07.2007. As per their version they have returned the title deeds during the pendency of the loan but it is quiet unbelievable to us to think so. Opposite party clearly admitted the mortgage. If it is returned there should be a proper endorsement there in the bank register without getting an endorsement there is not chance to return a mortgaged document by a bank. Opposite party is failed to produce the equitable mortgage register before this Forum. The details pertaining to the mortgaged title deeds are available in EMR (Equitable Mortgage Register). Nothing produced by opposite party to show that the disputed document was returned to the complainant. On analyzing the entire evidence of this case, we opine that opposite party failed to prove his contentions and nothing before us to disbelieve the case of the complainant. Opposite party is deficient in their service and complainant is entitled to get compensation. The Point No.1 is found accordingly.
7. Point No.2:- Since the Point No.1 is found in favour of the complainant, he is entitled to get cost and compensation.
In the result, the complaint is partly allowed and opposite party is directed to take necessary steps to find out the title deed No.1876/76 and return it to the complainant within one month, if it is lost opposite party is directed to give a certified copy of the title deed No.1876/76 to the complainant along with a certificate to that effect. Opposite party is also directed to pay Rs.10,500/- (Rupees Ten Thousand and Five Hundred) as compensation and Rs.2,000/- (Rupees Two Thousand) as cost of this proceedings. This Order must be complied by the opposite party within 30 days from the date of receipt of this Order, otherwise complainant is entitled for an interest at the rate of 10% thereafter for the whole sum.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 29th day of September 2015.
Date of Filing:23.02.2015.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Surendran. Complainant.
Witness for the Opposite Parties:-
OPW1. Johnson Joseph. Bank Manager, SBT Kalpetta.
Exhibits for the complainant:
A1. Copy of Death Certificate.
A2. Copy of the Family Membership Certificate.
A3. Copy of complaint given to opposite party by the complainant. Dt:06.03.2014.
A4. Copy of Lawyer Notice.
A5. Reply to Lawyer Notice.
A6. Copy of Non due Certificate. Dt:05.10.2015.
A7. Bank Pass Book.
Exhibits for the opposite parties:-
Nil.
Sd/-
PRESIDENT, CDRF, WAYANAD.
a/-
