CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 30th day of April, 2016
PRESENT : SMT. SHINY.P.R, PRESIDENT
: SMT. SUMA. K.P, MEMBER Date of filing: 16/09/2014
: SRI.V.P.ANANTHA NARAYANAN, MEMBER
CC /135/2014
A.C.Jailavudeen,
S/o.Chinnakani Rawther,
Residing at Manchira House, : Complainant
Nandankizhaya, Anamari Post,
Muthalamada, Kollengode,
Chittur Taluk.
(By Adv.N.Rajesh)
Vs
The Branch Manager,
M/s.Federal Bank Ltd., Muthalamada Branch, : Opposite party
Kambrathchalla, Muthalamada,
Chittur Taluk, Palakkad District.
(By Adv.T.Giri)
O R D E R
By Smt. Suma. K.P, Member,
The complainant had mortgaged his properties with the opposite party herein and availed loan by depositing the original title deeds numbers 442/1992, 1974/1995, 2809/1995, 2810/1995, 2981/1995 and 1975/1995 of Kollengode SRO. In addition to the above documents the complainant had also entrusted and deposited certain other documents with the opposite party as a security for the prompt repayment of the loan amount as demanded by the opposite party. It is submitted that due to some financial plight the complainant failed to repay the loan amount in time and hence the opposite party had filed a suit against the complainant before the Hon’ble Munsiff Court, Chittur as O.S.400/2002 and O.S.38/2003 to recover the amount from the complainant and obtained a decree in their favour. Pursuant to the said decree and its execution thereof, the opposite party put the complainant’s property having an extent of 2acres 19 cent in auction covered by the aforesaid documents, sold the same and realized their amount. The balance loan amount of Rs.75,000/- was paid by the complainant on 04/07/2009 directly to the opposite party at the one time settlement and the opposite party had received the amount in full satisfaction and thus the entire loan transaction with the opposite party was cleared. After the auction sale, rest of the properties covered by the said documents is still in the peaceful possession and enjoyment of the complainant. The complainant had demanded the opposite party to return the original documents, and the opposite party had returned the original documents nos.2810/1995 and 1975/1995 of Kollengode SRO only and further informed that they would return the other original documents after completing their formalities since the documents were produced before the Hon’ble Munsiff’s Court, Chittur and requested the complainant to wait upto that period. Complainant waited for the said period but the opposite party did not return the original documents. Hence the complainant had approached before this Forum seeking an order to direct the opposite party to return the original document along with compensation for the mental agony due to the deficiency of service on the part of the opposite party.
The notice was issued to the opposite party for appearance. Opposite party entered appearance and filed their version denying all the allegations in the complaint. Opposite party admits that the complainant has mortgaged the property and deposited original title deeds and availed a loan. When the loan account defaulted the bank has initiated legal proceedings and obtained mortgage decree and filed execution petition for the sale of the property. The said property was put in auction through court and the complainant’s brother in law bid the entire property mortgaged by the complainant. After the said sale there was a balance loan amount and the complainant discharged the dues on 04/07/2009 as alleged in the complaint. After closing the loan amount, and obtained necessary sanction from higher authorities this opposite party has returned all the documents on 13/07/2009 deposited with the bank including registered sale deed number 1974/1995, 2981/1995, 2809/1995 and deed of assignment mentioned in the complaint and obtained signature of the complainant stating that all the documents received, in the equitable mortgage register kept in the custody of the bank. So the allegation in the complaint that the title deeds are not handed over are purely imaginary and only to defame the opposite party.
The present complaint is filed after 5 years of closing the loan and hence the complaint is hopelessly time barred and it has to be dismissed on that ground alone.
The allegation in the complaint that the original documents are legally entitled to the complainant are incorrect because the property mortgaged were put in auction through court and the entire property were bid by the 3rd party so complainant is not entitled to get the entire documents as alleged in the complaint. The opposite party has not done any deficiency in service and unfair trade practice and the complaint is not entitled for any of the compensation as demanded in the complaint.
The opposite party suspects that the present complaint is filed for the reason that the complainant has approached for another loan in the month of April 2014 before this opposite party and the opposite party has rejected the proposal only for the reason that once the complainant was a defaulted consumer as per the banking norms this opposite party is not in a position to sanction another loan. The complainant has filed this complaint on that reason only to harass and defame the opposite party in the locality. The present complaint is not maintainable and it has to be dismissed.
Both parties filed their respective chief affidavits. Ext.A1series to A5 were marked from the part of the complainant. Complainant filed application seeking permission to cross examine the opposite party. Opposite party was examined as DW1 and Ext.B1 marked. Complainant filed IA 243/15 to call for documents from the opposite party, opposite party filed counter stating documents were produced before the Munsiff’s Court , Chittur and they are not in a position to produce those documents. The complainant again filed IA as 322/15 for the production of original title deed number 442/1992 counter was filed stating that no such documents in their custody.
Matter was heard.
The following issues are to be considered.
- Whether there is any deficiency of service from the part of opposite
Party?
- If so, what are the reliefs and costs?
ISSUES 1 & 2
We had perused the documents as well as affidavits produced before the Forum. At the time of arguments complainant has restricted his prayer for the return of the title deed in 442/1992. Admittedly the complainant had produced the said documents before the opposite party and it is evident from Ext.A3 that the opposite party had produced the said documents before the Munsiff’s Court, Chittur in O.S.No.38/2003. According to the opposite party they had returned the entire documents on 13/07/2009 and had obtained signature in the relevant page of equitable mortgage Register which was marked as Ext.B1. On a bare perusal of Ext.B1 it can be noticed that the document number 442/92 is not mentioned along with the other documents. The another contention by the opposite party was that the auction purchaser has taken delivery of the property through court and in the said property are in possession of said auction purchaser.
But the complainant had produced possession certificate as well as tax receipts which was marked Ext.A4 and Ext.A5 to prove that the possession of the property mentioned in Doc.No.442/92 is still in the custody of the complainant. It is obvious from Ext.A5 that the property pertaining to the said tax receipt, bears the property mentioned in doc.No.442/92 Moreover the opposite party had not produced any evidence to the effect that the said title deeds were handed over to the auction purchaser at the time of delivering the property. Hence it can be presumed that the property mentioned in the doc.No.442/92 is still in the possession of the complainant and the said documents was produced before the Munsiff Court, Chittur in O.S.No.38/03. From the available evidence produced before the Forum it is obvious that the said document was in the custody of the opposite party at the time of filing of the suit. And it was not handed over to the complainant so far. The complainant had stated that he had approached the opposite parties for the return of the document from 2009 onwards during various occasions.
In the light of the above discussions we are of the view that the said document is still in the custody of the opposite party. Complainant had also narrated that the opposite party had assured that they would return the original documents after completing their formalities since the documents were produced before the Hon’ble Munsiff Court Chittur. Believing the assurances made by the opposite parties the complainant had waited and had been approaching the opposite parties several times. Hence the arguments put forwarded by the opposite party, that the present petition is filed beyond limitation and is hopelessly time barred cannot be taken in to consideration.
In the light of the above discussions we direct the opposite party to return the original title deed of Janmam sale deed number 442/92 of Kollengode SRO to the complainant within one month from the date of receipt of this order failing which the opposite party should make necessary arrangements for obtaining the certified copy of the said document within 30 days. Opposite party had committed deficiency in service by not returning the original document within time. We also direct the opposite party to pay Rs.50,000/-(Rupees Fifty Thousand only) as compensation for the mental agony suffered by the complainant. Hence we are of the view that the opposite party had committed deficiency in service on their part. We also direct the opposite party to pay Rs.2,000/- (Rupees Two thousand only) towards cost of this litigation. The afore said amount shall be paid within 1 month from the date of receipt of this order failing which the complainant is entitled to get 9% interest for the said amount from the date of order till realization.
Pronounced in the open court on this the 30th day of April, 2016.
Sd/-
Shiny.P.R
President
Sd/-
Suma. K.P
Member
Sd/-
V.P.Anantha Narayanan Member
A P P E N D I X
Exhibits marked on the side of complainant
Ext.A1series- True copy of the registered notice send by the complainant to the opposite party dtd.08/02/2010
Ext.A2series- True copy of the registered notice send by the complainant to the opposite party with postal receipt and ack.card. dtd.27/06/2014
Ext.A3-Suit for recovery of money by sale of mortgaged property (O.S.38/03)
Ext.A4- Possession Certificate dtd.17/02/2016 (Original)
Ext.A5- Tax receipt dtd.16/02/2016 (Original)
Exhibits marked on the side of opposite party
Ext.B1-True copy of relevant Extract of Equitable Mortgage Register
Witness marked on the side of complainant
Nil
Witness examined on the side of opposite parties
DW1-George.V.L
Cost Allowed
Rs.2,000/- as cost.
