Date of Filling:      11.03.2016

                                                                                                  Date of Disposal:  12.10.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:   THIRU.S.PANDIAN, B.Sc., L.L.M.                                 ….PRESIDENT

THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP.,      …MEMBER

CONSUMER COMPLAINT No.13/2016

FRIDAY, THE 12^th  DAY OF OCTOBER 2018

1.Mr.Munusamy Naidu,

   S/o.Ramakrishna Naidu,

   No.11, Railway Station Road,

   Ponneri, Tiruvallur District.

2.Smt. Sumathi,

   W/o.Munusamy Naidu,

   No.11, Railway Station Road,

   Ponneri, Thiruvallur District.                                …..Complainants

//Vs//

1.The Branch Manager,

    Indian Overseas Bank,

   Thiruvottriyur High Road,

   Ponneri, Thiruvallur District.

2.The Regional Manager,

    Indian Overseas Bank,

    No.342, Sri Krishna Plaza,

    First Floor, RTO Road,

    Phase-I , Sathuvacheri,

    Vellore -632 009.

3.The Chief Manager,

    Indian Overseas Bank,

   Head Office

   No.763, Anna salai,

   Chennai -102.                                                ….Opposite parties.

This complaint is coming on for final hearing before us on 01.10.2018 in the presence of Thiru.M.K.Subramani, Counsel for complainant and M/s. Thiru.K.V. Srinivasan, Counsel for 1^st opposite party and 2^nd and 3^rd opposite parties were remined ex-parte for non appearance and upon hearing arguments having perused the documents and evidences this Forum delivered the following:-

ORDER

PRONOUNCED BY THIRU S.PANDIAN, PRESIDENT.

This complaint has been preferred by the complainant Under Section 12 of the Consumer Protection Act-1986 against the opposite parties seeking for direction to return the document namely settlement Deed No.762/2003 and a sum of Rs.3,00,000/- towards compensation for the damages caused to the complainants by the opposite parties with cost.

2. The brief fact of the complaint are as follows:-

The 1^st complainant availed two housing loans in loan No.270300009 and loan No.270400001 by hypothecating the properties and by depositing the title deeds. Further, he availed educational loan in loan No.29050006.  He borrowed another loan for imbedding agriculture pipe line in loan No.320400883.  Also, he borrowed another crop loan in loan No.320700011.  in pledging the Jewels the 1^st complainant borrowed a loan in Gold Loan No.431200922.  Altogether, the 1^st complainant had borrowed a total sum of Rs.17,61,000/- from the 1^st opposite partys Bank.  Similarly the 2^nd complainant being the wife of the 1^st complainant borrowed loan for imbedding pipe line in the name of agricultural pipe line in loan No.32.500009.  She borrowed a crop loan in loan No.320700012.  Likewise, she got gold loan by pledging the jewels in Gold Loan No.431200922.  Altogether, the 2^nd complainant borrowed a sum of Rs.6,70,000/-.  Out of the these loans, the complainants have made repayment to the tune of Rs.25,00,000/-.  When the fact is as stated above the 1^st opposite party by imposing compound interest for the above said loans had claimed more than Rs.30,00,000/-.

3. Further, it is informed that if the complainants come forward for one time settlement, the proceedings will be stopped.  With a fond hope that the entire loans on various headings including the gold loan will be discharged the above said complainants accepted for the same and the entire 9 loans were settled for a sum of Rs.24,50,000/-.  To discharge the entire loans the complainant paid the huge amount of Rs.24,50,000/- in the 1^st opposite part Bank on 09.03.2015.  Even though the loan borrowed by the complainants is to the tune of Rs.24,31,000/- the complainants had paid a sum of Rs.49,31,000/- up to 09.03.2015.

4. As per the Banking rules, it is mandatory that the 1^st opposite party has to return the original documents of the complainants which have been deposited as security for the housing loans but the 1^st opposite party had not returned the original settlement deed in favour of 1^st complainant dated 03.03.2003 vide document No.762 of 2003.  On 09.03.2015 itself, the complainants jointly made an application to the 1^st opposite party to return all the original documents.  When the complainants came and requested the manager of the 1^st opposite party he had informed that jewel loans of both complainants are in due.  To the shock and surprise of the complainants, they have informed that excluding the said two jewel loans 431200921 and 431200922, the complainants have accepted for one time settlement for the said huge sum of Rs.24,50,000/- and the 1^st opposite party insisted the complainants to repay the gold loans though several applications had been given to all the opposite parties to consider the pathetic condition of the complainants.  But there is no action on the part of the opposite parties.  Hence, the complainants have issued legal notice to all opposite parties on 02.04.2015 and in turn the opposite parties have issued reply notice on 21.04.2015 with false and untenable allegations.  Though the opposite parties have known very well that the gold loan is a separate transaction and housing loan is separate transaction.  But wantonly and deliberately, the opposite parties are not returning the documents and demanding the complainants to discharge the said gold loans.  Even admitting jewel loans are in due, the opposite party cannot confine the documents, for which the complainants are entitled.

5. Further, as a banker and consumer it is the bounden duty of the banker to do service to the consumer.  Evading a consumer is highly lethargic and carelessness.  The opposite parties are not even giving a proper answer for non- releasing of documents.  When a consumer has discharged his debts pertaining to the documents as a Banker, the 1^st opposite party is liable to return the document.  The lethargicness and insufficient service of the opposite parties comes under the purview of the Consumer Protection Act-1986.  Due to the Act of the opposite parties the complainants have been pulled pillar to post for getting back the documents.  Due to an adamant attitude of the opposite parties even after discharging the debts, the complainants who are aged persons had been put into great mental stress and strain.  Due to non-return of documents, the complainants are unable to proceed with their work and the opposite parties have caused loss and hardship to the complainants. Hence the complainants have issued legal notice on 22.12.2015 calling upon the opposite parties to return the documents and also to pay compensation to the tune of Rs.3,00,000/-.  After receiving the notice wantonly and deliberately the 1^st opposite party conducted the auction of the jewel and issued notice.  It will show the hurriedness of the 1^st opposite party in harassing the complainant.  Hence this complaint.

6. The contention of written version of the opposite party is briefly as follows:-

7. The complainant, though discharged other loan, on one time settlement, failed to clear the jewels loan, in spite of several demands and warning by bank from 2013 onwards.

8. The jewel loan is a contract, by which, the borrower agreed to repay the loan amount with interest.  As a banker, the Banker has a general lien over all forms of security, in the absence of a contract to the contrary, and thus a special privilege is given to bankers.

9. When the complainant discharged the other loans, he received back all the other documents on 09.03.2015, except one document, which he gave the same as security to be given back to him on the day of discharge of the jewel loans.

10. In spite of warning and demands, he failed to discharge the jewel loans.  Hence the said document was retained.  In fact, he never made any claim for the return of the document for several years.  Now his claim is an afterthought.  The general rule in the banking business is, that they have a general lien and any document belonging to the borrower, which constituted as the security.

11. For the notice issued, a suitable reply was sent.  The allegations that the onetime settlement included jewel loans.  If it in time, settlement was for jewel loans also, the complainant would have received back the jewels.  Now they prayed for some more time to discharge the said loans and the opposite party also gave them enough time.  But the indulgence shown was not utilized and the jewels were auctioned, to the knowledge of complainant.  The action took place after due intimation.  Complainant was negligent in allowing the auction to take place when the complainant states O.T.S. was for GPL also, they will have to prove it.  There is no cause of action to file this petition.  The opposite party is not liable to pay compensation or the costs claimed by the complainant.  Hence complaint may be dismissed with heavy costs.

12. In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1 to Ex.A22 were marked.  While so, on the side of the 1^st opposite party proof Affidavit is filed but no document filed on their side.

13. At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite       party as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

14. Written arguments filed and oral argument also adduced on the side of the complainant and 1^st opposite party. 

15.PointNo.1:-

As per the averments of the complaint, though the complainant have paid all the loans including jewel loans availed by them with the opposite parties Bank by means of one time settlement, the opposite parties have failed to return the Settlement deed (Doc.762/2003) though other documents pledged were returned which leads to deficiency of service on the part of the opposite parties.

16. On the other hand, through written version the 1^st opposite party denied the allegations averred in the complaint and in fact the opposite parties have been acted as per the terms and conditions of the loan agreement and having general lien Under Section 171 Indian Contract Act which is fully applicable to the Banks.

17. At the outset, this Forum has to looked into the matter as to whether the complainant has come forward to prove the above said allegations beyond any reasonable doubt by means of consistent and cogent evidence which is the prime duty of the complainant.  In this regard, on careful perusal of the evidence of the complainant adduced by means of proof Affidavit, it is stated that the complainants have availed jewel loans bearing the loan No.431200921 for Rs.1,24,000/- and  loan No.431200922 for Rs.2,20,000/- respectively and also the complainant has availed two housing loans bearing No.2703003009 and 270400001 by hypothecating the prosperities and by deposited title deeds as equitable mortgage and also another loans for imbedding agricultural pipe line in loan No.32.400883 and also crop loan in loan No.320700011 and thereby the 1^st complainant had borrowed a total sum of Rs.17,61,000/- and for which Ex.A3 and Ex.A4 are marked.  It is further narrated that the said all loans have became NPA the demand notice Under Section 13(2) SARFAESI ACT and reply sent by the complainant Ex.A5 and Ex.A6 the legal notices sent to the opposite parties and for which the reply notice sent by the opposite parties Bank is marked as Ex.A7 and the another reply notice 12.08.2014 which sent by the complainant to the opposite parties is marked as Ex.A8.

18. In furtherance, it is seen from the evidence that as per the terms arrived between the complainant and the opposite party Bank, they have arrived one time settlement to clear all loans including jewel loans by paying a sum of Rs.24,50,000/- and in turn the same was accepted by the complainant and paid the said amount of Rs.24,50,000/- on 09.03.2015 and to that effect Ex.A9 is marked and thereafter the letter written by the complainant to the opposite party to hand over the mentioning documents to them is marked as Ex.A10 and even there after the opposite parties have failed to return the alleged documents namely the settlement deed dated 03.032003 vide document No.762/2003 and the complainant issued Ex.A11 legal notice and the same was received by the opposite parties 1and 3 and acknowledgement card for the same are marked as Ex.A12 and Ex.A13 respectively.  On further perusal, it is deposed by the complainant that the opposite parties have issued the auction notice in respect of jewel loans to the complainant which are marked as Ex.A14, Ex.A16 and Ex.A17 and the legal notice issued to the complainant by the opposite party to clear the outstanding of the jewel loans has been marked as Ex.A15 though the same has been settled Under one time settlement.   The statement of payment issued by the opposite party Bank are Marked as Ex.A18 and Ex.A19 and the petition submitted by the complainant to the Banking Ombudsman Ex.A20 to return the documents and for which the acknowledgement of the opposite party OMBUDSMAN for the same is marked as Ex.A21 and the order issued by the Office of the Banking OMBUDSMAN is marked as Ex.A22.

19.While so, on the side of the opposite parties adduced evidence by means of Proof Affidavit  that in fact though the complainants have discharged other loans on one time settlement,  failed to clear the jewel loans by the complainants herein and the same was admitted by the complainant and paid the amount of Rs.24,50,000/- as per the one time settlement and since because of the pending due jewel loans failed to pay the due by the complainant due and though sufficient notices issued and time given to the complainant but they have not responded the pending of the jewel loans and thereby the complainants is a defaulter.  As per the general lien Under Section 171 Indian Contract Act only the opposite parties have acted upon and retain the settlement deed which was deposited by the complainant and the same is retained and therefore there is no cause of action arose.

20. At this juncture, on careful perusal of the rival submissions putforth on either side, the first point before this Forum to be decided is that as to whether it is correct to say that the alleged jewel loans also included in the onetime settlement (OTS) on payment of Rs.24,50,000/- in total, Since all the loan became NPA and thereby it is not correct to say that the One Time Settlement is no way corrected to the alleged jewel loans and the Act of failure to return the said document to the complainant clearly amounts for deficiency of service on the part of the opposite parties and the same has been proved by means of relevant and acceptable evidence.  In this aspects ongoing though the Ex.A1 and Ex.A2, the assigned jewel loan No.431200921 in the name of the complainant for the loan amount of Rs.1,24,000/- and the second loan No.2,20,000/-.  Such being so, from Ex.A3 and Ex.A4 the Housing loan bearing the No.270300009 and second loan No.270400001 for sum of Rs.9,80,000/- sanctioned by the opposite parties and for which the documents deposited the title deeds under hypothecation and Ex.A4 for another agricultural and crop loans bearing No.TL-TCD 270300009, TL-TCD 270400001 and TL-STUDY 290500006 and for the same documents were deposited title deeds.  In such circumstances, on due care perusal of the Ex.A3 and Ex.A4 there is no mentioning about the deposit of the alleged settlement deed (Doc.762/2003) in anywhere and thereby it is crystal clear that the alleged settlement documents was not at all deposited on equitable mortgage in respect of the above said housing loans, agricultural loan crop loan and educational loan. In fact, at the first instance, in Ex.A7 only the complainant mentioned about the AGL loan No.270300009 and 270400001 also included in the onetime settlement.

21. At the outset, this Forum has to consider that the onetime settlement including the alleged jewel loans also.  In this aspects, on careful seeing the Ex.A9 voucher issued by the opposite party Bank for payment of Rs.24,50,000/- as per the one time settlement paid by the complainant where in, it is clearly mentioned about the loan account Number except the alleged jewel loans.  Therefore, it is needless to say that Ex.A9 which is marked by the complainant themselves has not given any picture or evidence to show that the alleged jewel loans also included in the onetime settlement agreement.  Furthermore, Ex.A10 being their own document of the complainant which was written by themselves also clearly reveals the facts that the complainant has requested to return name of the documents specifically which were clearly mentioned except the alleged settlement deed No.762/2003.  From the foregoing other facts and evidences, it is clearly shown that the alleged settlement deed was not at all deposited as equitable mortgage as averred in the complaint.

22. At this point of time, it is to be kept in mind that no documentary evidence to prove that the complainants have paid Rs.24,50,000/- for one time settlement including jewel loan. So it is very, clear that the alleged jewel loans were not at all come under the one time settlement and therefore the plea taken by the complainant that they have agreed for the one time settlement only on the assurance given by the opposite party only for the reason of including the jewel loans has not been proved and thereby the said plea can be rejected in Toto.

23. In such circumstances, as aforesaid in the previous paragraphs, it is very clear that the alleged settlement deed (Doc.762/2003) by the complainant from the question arise what is the necessity arises to the complainant to hand over the said settlement deed to the opposite parties.  At this instance on going through the documents filed by the complainant themselves, in can be easily presumed that the alleged settlement deed deposited by the complainant as collateral security only for the purpose of availing jewel loan but not  otherwise as per the Doctrine of the preponderance of probabilities of evidence.

24. In furtherance, it is an admitted fact that it is learnt from the auction notices Ex.A14, Ex.A16 and Ex.A17 have been issued only for the intimation about the auction of the alleged jewel loan pledged by the complainant and the sufficient time given.  Even repeated notices sent, there was no response on the side of the complainant only the pledged jewels were auctioned and hence there is no violation or default on the side of the opposite parties.  At this instance, there is completely dark in respect of the any amount due regarding the jewel loans since there is no specific averments on both sides.  However regarding the jewel loans there is no doubt that Under Section 171 Indian Contract Act, the opposite parties is very well entitled to revoke the Banks General lien as per the terms and condition of the loan agreement as well as rules and regulation of the banking instructions and therefore there is no error committed by invoking the general lien Under Section 171 Indian Contract Act and thereby the retention of the alleged document (Doc.762/2003) no way wrong Under the purview deficiency of service on the part of the opposite parties.

25. In the light of the above other facts and circumstances, this Forum without any hesitation concluded that the complainants have not come forward to prove the deficiency of service as alleged against the opposite parties by means of acceptable and consistent evidence and also it is crystal clear that the complainants have not moved this Forum with clean hands.  Thus the point No.1 is answered accordingly. 

Point No.2:-

26. As per the conclusion arrived in point No.1, the complainants are not entitled for any relief as prayed in the complaint.  Thus the point No.2 is answered accordingly.

In the Result, this Complaint is Dismissed.  No Cost.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open Forum on this 12^th October 2018.

    -Sd-                                                                                    -Sd-

MEMBER                                                                       PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the 1^st opposite party:-

-Nil-

      -Sd-                                                                                      -Sd-

MEMBER                                                                            PRESIDENT