Date of filing: 04.07.2014
Date of Disposal: 03.02.2015
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.
PRESENT: - Kumari Y.H.Prameela Reddy, M.L., LL.B., President
Sri S.Niranjan Babu, B.A., B.L., Male Member
Smt. M.Sreelatha, B.A., B.L., Lady Member
Tuesday, the 03rd day of February, 2015
C.C.No.81/2014
Between:
Khadri Intiyaz @ Intiyaz Ahemmed,
S/o Late Khadri Abdul Subhan,
Working in Education Department, Kudligi,
Bellary District, Karnataka State.
Permanent Resident of Yadava Street,
Dharmavaram Tow,
Ananthapuramu District. … Complainant.
Vs.
The Branch Manager,
State Bank of India (Main Branch),
Behind Durgamma Temple,
Dharmavaram Town,
Ananthapuramu District. …. Opposite Party
This case coming on this day for final hearing before us in the presence of Sri V.J.Ravikumar and Sri J.Yallaraju, Advocates for the complainant and Sri N.R.K.Mohan, and A.Suresh Kumar, Advocates for the opposite party and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:
O R D E R
Smt. M.Sreelatha, B.A., B.L., Lady Member: - This complaint has been filed by the complainant under section 12 of Consumer Protection Act, 1986 against the opposite party to return the original documents and Rs.1,00,000/- towards damages to the complainant.
2. The brief facts of the complaint are that: - The complaint has been filed by the complainant presently the complainant is working in Education Department at Kudligi, Bellary District and permanent resident of Dharmavara. The complainant obtained a loan of Rs.25,000/- from the opposite party Bank on 30.05.1998 by mortgaging H.No.22/544, standing in the name of his mother Fathma Bi. This document belongs to a house property and its document No.735/1988 registered in favour of Fathima Bi by Chandranna on 14.03.1988. The complainant discharged the loan on 23.02.2009 and demanding the opposite party for return of original document. The complainant was made to go around with the opposite party Bank for three years requesting return of document. On 09.03.2012 the opposite party addressed a letter to the mother of the complainant informing that the document is not traced out the opposite party Bank and to save the skin the opposite party advised the complainant to get a gift deed by his mother in favour of Khadri Eliyaz i.e., brother of the complainant to enable the Bank to arrange a fresh loan to Khadri Eliyaz but the opposite party was not sanctioned any loan to Khadri Eliyaz. The complainant got issued legal notice on 06.12.2012 through Alternate Consumer Disputes Redressal Cell Dharmavaram to return the mortgage document and the same was served to the opposite party and gave reply on 10.01.2013 advising the complainant to withdraw the complaint as registration extract of mortgaged property documents was supplied to the complainant. The complainant preferred a complaint to Ombudsman, Hyderabad and the complainant was informed that this complaint was closed as Bank supplied certified copies, the Ombudsman letter dt.20.05.2014. The complainant submits that he suffered loss due to non-supply of original document by the opposite party Bank and the loss sustained by the complainant cannot be fulfilled by any amount of money. Hence the complainant is entitled to get original document it is misplaced by the opposite party and an amount of Rs.1,00,000/- towards deficiency of service and grant such other reliefs.
3. The opposite party filed counter stating that the allegation made in the compliant are not correct and the complainant is put to strict proof of all the allegations which are not specifically admitted. The allegation in the complaint that the complainant has obtained a loan is true. He has not mortgaged the property as alleged. His mother had mortgaged the property belonging to her house. The allegation that the loan was discharged is true and the complainant has made demands for return of the documents is also true. In fact, his mother is entitled to return of the documents and the complainant has nothing to do with the documents. The allegation that this opposite party has addressed a letter to the mother of the complainant is true and the allegation that to safe the skin, the opposite party has advised the complainant to get a registered gift deed by his mother in favour of his brother to enable the Bank to arrange fresh loan is not correct and there was no necessity for this opposite party to advised as alleged. In fact, the brother of the complainant had taken a loan from another Bank and he has not approached this opposite party at any point of time. The allegation that the complainant has got issued legal notice on 06.12.2012 and this opposite party has sent a reply on 10.01.2013 is true. The complainant has preferred a complaint to the Ombudsman and the same was closed by the Ombudsman is true. The allegation that the complainant has suffered loss due to non-supply of original document by the opposite party is not correct and there is no deficiency of service on the part of the opposite party and there is no loss sustained by the complainant and the complainant has estimated the loss of Rs.1,00,000/- which is contrary to the earlier allegation. There is no damage caused to the complainant. It is submitted that the complainant is not a consumer within the meaning of the Act and the complainant is not entitled for the documents and it is the mother of the complainant who is entitled for return of the documents. In fact she has executed a gift deed in favour of another son by name Khadri Inthiyaz and he obtained a loan from Co-operative Town Bank Limited, Dharmavaram. It clearly shows that there is no loss sustained by the complainant or his mother. The complainant made before the Ombudsman is closed and so the second application for the same relief cannot be entertained by this Hon’ble Forum and the order passed by the Ombudsman is binding on the complainant and it operates as res-judicata. As already submitted that the complainant is not entitled for return of document and so he cannot be a consumer within the meaning of the Act. The complaint filed by the complainant before this Forum is barred by limitation. The loan was cleared in the year 2009 and so the complaint made in the year 2014 is absolutely barred by limitation. The complainant has not entitled the claim of Rs.1,00,000/- and estimation of damages is an imaginary. Hence, it is prayed this Forum to dismiss the complaint with costs.
4. Heard both sides.
5. The counsel for the complainant argued that the complainant obtained a loan from the opposite party Bank by mortgaging house property of his mother by name Fathma Bi on 30.05.1998 for sum of Rs.25,000/- and the complainant discharged loan on 23.02.2009, later complainant demanded the opposite party for return of original document. The opposite party failed to return the document for more than three years. Later the opposite party got issued a letter in favour of her mother on 09.03.2012 informing that the document was not traced, and to save the skin the opposite party advised the complainant mother to get a gift deed in favour of his brother to enable the Bank to arrange a fresh loan to my brother, but loan was not sanctioned by the opposite party. Then the complainant got issued notice on 06.12.2012 through Alternate Consumer Disputes Redressal Cell Dharmavaram for return of mortgage document a reply was issued by the opposite party on 10.01.2013 to Mandal Consumers Information Centre advising the complainant to withdraw the complaint along with registration extract of mortgaged property document. The complainant preferred a complaint to Ombudsman, Hyderabad and the same was closed by Ombudsman on 20.05.2014 as the Bank was supplied certified copies to the complainant. The act of the opposite party is clearly a cause of deficiency of service in not supplying of original documents due to it the complainant sustained heavy loss it cannot be full filled by any amount of money. Hence present complaint filed for return of document along with compensation Rs.1,00,000/- and other reliefs.
6. The counsel for the opposite party argued that it is true that the complainant obtained a loan from the opposite party Bank by mortgaging house property of his mother in the year 1998 and the same was discharged by the complainant on 23.02.2009. The opposite party counsel argued that after discharging the loan amount the complainant requested the opposite party for return of document due to unavailable of document the opposite party is not returned the document to the complainant and gave a letter on 09.03.2012 stating that the document was misplaced while shifting the office from one place to another place and requested the complainant to receive the registration extract of property which was obtained from the registrar office. The counsel for the opposite party also admitted that the complainant gave a notice through Alternate Consumer Dispute Redressal Cell and opposite party replied for the said notice. The counsel for the opposite party argued that there is no deficiency of service on the part of the opposite party the opposite party supplied the registration extract of the document the mother of the complainant gifted the property in the name of his another son by name Khadri Inthiyaz and he obtained loan from Co-operative Bank, Dharmavaram. The learned counsel also argued that the complainant is not a consumer under the definition of Consumer and he is not entitled any claim as made in the complaint and the complainant is filed the present complaint after long period i.e., more than 5 years and it barred by limitation as the complainant discharged the loan in the year 2009 and the present complaint is filed in the year 2014. Hence the complaint is liable to be dismissed as barred by limitation. The counsel for opposite party also submitted if any relief is entitled the mother of the complainant is entitled but not the present complainant as he was not comes under the definition of consumer on this ground the complaint is liable to be dismissed with costs.
7. Basing on the above pleadings, the following points that arise for consideration are:-
i) Whether the complainant is comes under the definition of consumer?
ii) Whether the claim of the complainant is barred by limitation?
iii) Whether the complainant is entitled compensation as prayed for?
iv) To what relief?
8. In order to prove the case of the complainant, the complainant evidence on affidavit of the complainant and evidence of PW2 (Khadri Fathima Be) has been filed and marked Ex.A1 to A5 documents. On behalf of the opposite party, the opposite party filed evidence on affidavit and no documents are marked on behalf of the opposite party.
9. POINT: - When we go through the averments of complaint and counter some of the admitted facts are like this: obtaining of loan by the complainant with the opposite party Bank on 30.05.1998 by mortgaging the house property of mother of the complainant with the opposite party. The complainant discharged the loan in the year 2009 under Ex.A4. After discharging of loan the opposite party failed to return the document, the complainant requested the opposite party for return the same, but not returned. The opposite party addressed a letter to mother of complainant on 09.03.2012 that the original document is misplaced under Ex.A3. It is also admitted fact that the mother of the complainant by name Fathima Bi gifted the property to another son Khadri Inthiyaz. The complainant got issued notice through Alternate Consumer Dispute Redressal Cell, Dharmavaram on 06.12.2012 under Ex.A1 requesting the opposite party for return of document and the opposite part gave reply on 10.01.2013 Ex.A2 stating that the document misplaced. Another admitted fact that the complainant preferred complaint to Ombudsman, Hyderabad under Ex.A5 and the case was closed on 20.05.2014 as Bank had supplied certified copies of documents o complainant.
10. The counsel for the opposite party argued that the complainant is not come under the definition of Consumer as the document shows in the name of the mother of complainant, the mother of the complainant is entitled for return of document. Hence the complainant is not a consumer. On the other hand the complainant counsel argued that the complainant obtained loan from the opposite party Bank and he discharged the same in the year 2009, and it is the duty of the complainant to get the original document which were deposited with the opposite party bank at the time of obtaining loan and the complainant availed services of opposite party Bank for consideration, hence the complainant comes under the definition of consumer.
11. The counsel for the complainant relied a decision reported in 1997 -1-24 between Bank of India Vs. Vidarbha Constructions Private Limited. The facts of the above case are that the 1st complainant had approached the Bank of India i.e., opposite party for enhancement of loan facilities in the year 1989. The Bank Inter Alia called upon the 1st complainant to officer a solvent security of immovable property. The 1st complainant brought the title deed of property of the 2nd complainant and lodged them with the Bank. The facilities for enhancement of loan to the 1st complainant were not granted. The complainants approached the Bank for return of title deeds but they were not returned when the complainant was filed. The District Forum on the facts and material on the record came to the conclusion that the 2nd complainant handed over documents of title to the opposite party with a view to stand as surety for the 1st complainant and for doing this, the 2nd complainant had not hired or availed of any services of the opposite party for consideration. Against this the complainant preferred an appeal and the State Commission directed the Bank to pay a compensation of Rs.10,000/- for illegal retention of the documents and the same submitted by the opposite party in the appeal the National Commission observed that the State Commission did not advert to the crucial question in the case as to whether the 2nd complainant is a consumer within the meaning and scope of the Consumer Protection Act,1986. On the basis of admitted fact of the case notice above, the 2nd complainant did not hire services of opposite party for consideration. It was only the 1st complainant who had lodged the documents of title of the 2nd complainant to obtain additional loan facilities. The District Forum rightly came to the conclusion that the 2nd complainant had not hired or availed of services of opposite party for consideration. The State Commission has not given any reasoning to either distinguish or set aside the finding of the District Forum with respect to the aspect of the 2nd complainant not being a consumer. Before a relief can be granted to a complainant, the State Commission has to consider and hold that the 2nd complainant is a consumer. The State Commission has acted illegally and without jurisdiction in granting relief. When the 2nd complainant was neither a consumer nor he had hired the services of the Bank for consideration which could entitle the 2nd complainant to claim any relief what so ever.
12. The facts of the above case and facts of the case in hand are similar in the above case also the Hon’ble National Commission clearly stated that the 2nd complainant i.e., owner of the title deed has not availed any service from the Bank so he is not comes the definition of consumer. Whereas the 1st complainant has availed loan and hired services for consideration, 2nd complainant handed over document of property with a view to stand surety for 1st complainant and for doing this the 2nd complainant had not hired or availed service of opposite party for consideration. In the present case also the mother of the complainant has not availed any service from Bank for consideration with this observation the argument of the learned opposite party counsel the mother of complainant is entitled to ask for return of documents but not the complainant is not considered, as per the orders of National Commission state supra. The mother of the complainant is not entitled any relief as stated by the opposite party counsel. The complainant who is borrower of loan, hired service of opposite party for consideration. Hence the complainant comes under the definition of consumer.
13. The learned counsel for the opposite party argued that the complainant discharged the loan in the year 2009 and present complaint made in the year 2014 is absolutely barred by limitation. Hence the complaint is liable to be dismissed. As per section 24(a) of Consumer Protection Act the complainant has to file the complaint within two years from the date of cause of action. The learned counsel for complainant argued that it is an admitted fact that the complainant discharged loan in the year 2009, he requested the opposite party on several times for return of original document, but the opposite party failed to return the same. The counsel argued that after three years the opposite party send a letter to mother of the complainant under Ex.A3 that the original sale deed is not traceable then on wards the complainant approached Alternative Consumer Dispute Redressal Cell, Dharmavaram and issued notice on 06.12.2012, the opposite party received the same and replied on 10.01.2013 these are all a continuous cause of action, hence the complaint filed by the complainant within the time and entitled compensation.
14. When we go through the documents filed by the complainant and evidence on affidavit it is an admitted fact that the complainant discharged loan in the year 2009 under Ex.A4 and the opposite party issued Ex.A4 showing that the loan cleared on 23.02.2009. The opposite party admitted in his counter and affidavit that the original document was misplaced and the same was communicated to the mother of the complainant on 09.03.2012 itself. The argument of the counsel for the complainant not convincible as there is exchange of notices between the parties it gives continuous cause of action and considered the limitation from the date of knowledge the complainant came to know about the misplace of document by the opposite party on 09.03.2012 under Ex.A3 from the date of the knowledge the limitation starts and there is exchange of notices between the parties and complaint is filed within time. When we go through the letter sent by the opposite party to mother of the complainant under Ex.A3 it was on 09.03.2012 and present complaint is field on 04.07.2014 it is beyond the limitation period. The argument of the counsel for the complainant that the notices exchanged by both parties of Ex.A1 & A2 it gives continues cause of action and complaint is within time.
15. For this we are relying a decision reported in 2012 (IV) CPJ 343 d(NC) Ambe Rice Mill Vs. Oriental Insurance company limited under section 24(a), 21(b) and 24(A) is premptroy in nature by serving legal notice or making representation the period of limitation cannot be extended. Hence the learned counsel for complainant failed to convince that the complaint is within time. If we take the arguments of the complainant that from the date of knowledge the limitation period starts, the complainant came to know about the misplace of the document on 09.03.2012 and complainant ought have filed the complaint on or before 09.03.2014, as such the complaint filed on 04.07.2014 and there is no application for condonation of delay as per section 24(a) of Consumer Protection Act. We are of the opinion that the complaint is barred by limitation. Hence this point answered accordingly in favour of the opposite party and against complainant.
16. As the complaint is barred by limitation the complainant is not entitled any compensation.
17. In the result, the complaint is dismissed without costs.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 3rd day of February, 2015.
Sd/- Sd/- Sd/-
LADY MEMBER, MALE MEMBER PRESIDENT
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM
ANANTHAPURAMU ANANTHAPURAMU ANANTHAPURAMU
APPENDIX OF EVIDENCE
WITNESSES EVIDENCE ON CHIEF AFFIDAVITS
ON BEHALF OF THE COMPLAINANT:
PW1: Khadri Intiyaz @ Intiyaz Ahemmed complainant.
PW2 Khadri Fathima Be W/o Khadri Abdul Subhan.
ON BEHALF OF THE OPPOISITE PARTY
RW1: A.Nagewara Rao, Branch Manager, Dharmavaram
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 Carbon copy of letter dt.06.12.2012 issued by Alternate Consumer Dispute
Redressal Cell to opposite party.
Ex.A2 Reply notice dt.10.01.2013 issued by the opposite party to Mandal Consumer Information Centre, Dharmavaram.
Ex.A3 Letter dt.09.03.2012 issued by the opposite party to the mother of the complainant.
Ex.A4 Loan clearance letter dt.07.04.2009 issued by the opposite party.
Ex.A5 letter dt.20.05.2014 issued by Ombudsman to Shri S.Eliza Khadri.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY
NIL
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LADY MEMBER, MALE MEMBER PRESIDENT
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM
ANANTHAPURAMU ANANTHAPURAMU ANANTHAPURAMU
