By. Sri. P. Raveendran, Member:-

The Brief of the complaint:- The complainant obtained a loan of Rs.30,000/- from opposite party vide KCC 174. The complainant has mortgaged his title deed as security for the above amount. The above loan was written off as per the scheme of the Central Government. Then the complainant approached the opposite party to get back the documents mortgaged by him before the opposite party. At that time the opposite party told that they had to do some formalities thereafter the documents would be returned back. Again he approached the opposite party. At that time the opposite party told that he is a surety for the loan amount availed by one S. Shaji, S/o Sukumaran, Kannan Nivas, Choothupara Post and the above loan is not cleared by the above Shaji

and a case is pending before Munsif Court Sulthan Bathery. Hence we cannot give back the title deeds. The complainant has never stood as the surety of Shaji. Hence opposite party has no right to retain the title deeds and other documents produced by the complainant. Hence it is prayed to give direction to the opposite party to return the title deed and other documents produced by the complainant at the time of availing the loan from opposite party and award an amount of Rs.20,000/- as compensation and cost of this litigation.

2. The opposite party appeared and filed his version. In the version he stated that the opposite party acted in good faith. On the representation of complainant and paid money upon his definite undertaking to pay the loan amount in case of any default. The petitioner stood as co-obligant to a loan transaction bearing No.DPNST69/2000 in which S. Shaji had borrowed money which resulted in OS No.173/2003 which was decreed in favour of opposite party and now EP 26/10 is pending with a direction to pay the amount in installments. The liability of petitioner is not distinguished as per decree. This opposite party has got every legal right to retain the title deeds till final repayment of all dues. It is legally obligatory on the part of complainant to pay all dues and get back the title deeds. Hence there is no deficiency of service on the part of opposite party and the complaint may be dismissed with compensatory cost.

3. On considering the complaint and version the following points are to be considered:-

1. Whether there is any deficiency of service on the part of opposite party?.

2. Relief and Cost.

4. Point No.1:- To prove the complaint's case he filed his proof affidavit and Ext.A1 is also marked on the side of the complainant. To prove opposite party's case opposite party filed his proof affidavit and also marked Ext.B1 document. In the proof affidavit he stated as stated in the version. Ext.B1 is the copy of the order in OS 173/2003 of Munsif Magistrate Court Sulthan Bathery. On perusing the above document it is seen that the opposite party is the plaintiff and the above mentioned Shaji is the 1^st defendant and the complainant is the 2^nd defendant in the above suit. In the above order the defendants are directed to pay to the plaintiff a sum of Rs.46,218/- with future interest at 16.5% per annum compounded quarterly from the date of suit till realization of the full amount, and the defendants are directed to pay to the plaintiff a sum of Rs.4,866/- towards the cost of the suit. The opposite party has produced the decision of Honorable High Court of Kerala which was reported in Kerala Series 2011(2) page 829 held in Thankappan. V. K. and another V/s Uthiliyoda Muthukoya in which Honorable High Court has held that bank can exercise lien over the security including money, negotiable instruments or any form of security, which comes to it's hands. Bankers lien can be exercised to recover even time barred debts. No evidence is brought before us to prove that the complainant has cleared this debts to opposite party. Hence we find that there is no deficiency of service on the part of the opposite parties in retaining the title deeds of the complainant. As per the order of the Munsif Magistrate Court Sulthan Bathery the complainant is the co-defendant and the order is against him. Point No.1 is decided accordingly.

5. Point No.2:- Since Point No.1 is against the complainant we are not discussing Point No.2 in detail.

In the result the above complainant is dismissed. No order as to cost.

Pronounced in Open Forum on this the day of 28^th November 2011.

Date of Filing:27.06.2011.