Date of filing:- 26/05/2015.

Date of Order:-12/04/2017.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (COURT)

B A R G A R H.

Consumer Complainant No. 34 of 2015.

1. Sri Asish Kumar Agrawal, S/o Hanuman Prasad Agrawal, R/o At. Qtr. No.9(A) Saraswati Vihar, Bargarh, Po/Ps/Tahasil/Dist. Bargarh

2. Laxmidevi Agrawal, W/o Hanuman Prasad Agrawal, resident of At. Hospital Road, W.No.5, Bargarh, Po/Ps/Tahasil/Dist. Bargarh

..... ..... ..... Complainants.

• V e r s u s -

1. The Chairman, Utkal Gramya Bank, Head Office (UGB), Club Para Road, At/Po/Dist. Bolangir-767001(Odisha).

2. General Manager-I, Utkal Gramya Bank, Head Office (UGB), Club Para Road, At/Po/Dist. Bolangir-767001(Odisha).

3. Regional Manager, Utkal Gramya Bank, Regional Office Region II, Near Shiva Temple, Ist Floor, (Bandutikra Square/Old N.H.6), At/Po/Dist. Bargarh-768028.

4. The Branch Manager, Utkal Gramya Bank, Luhurachatti Branch, At-Luhurachatti, Po. Pandakipali, Ps/Tahasil. Sohela-768033, Dist., Bargarh (Odisha)

   ..... ..... ..... Opposite Parties.

Counsel for the Parties.

For the Complainant:- Sri M.B.Tripathy, Advocate with other Advocates.

For the Opposite Parties:- Sri B.K.Mahapatra, Advocate.

-: P R E S E N T :-

Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.

Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.

Dt.12/04/2017 -: J U D G E M E N T :-

Presented by Sri P. K. Dash, Member:-

The Complaint pertains to deficiency in service enumerated under the provision of Consumer Protection Act-1986 and the brief facts of the Complaint is followed here under.

The Complainants /petitioners are the loanee under the Opposite Party No.4(four) and Opposite Party No.1(one) to 3(three) are the authorities of Opposite Party No.4(four).

The Complaint contends that the Petitioner No.1(one) had obtained one loan vide A/c No. 12070048907 Dt.13/05/2004 from the Opposite Parties and Petitioner No.2(two) was a guarantor of the said loan. That in order to obtain the loan, the petitioners have mortgaged the land bearing M.S khata No. 361/8 and produced its rent receipts, Encumbrance Certificate, lease deeds and sale deeds bearing Nos. 1071 Dt.08/06/93, 1129 Dt.29/0495, 1034 Dt.04/04/96 and 1035 Dt.05/05/98 in original before the Opposite Party No.4(four).

Further the Complaint contends that the Petitioner No.1(one) had paid all the loan dues to the bank on Dt.25/07/2013 and accordingly the bank had issued the clearance certificate on Dt.09/01/2014. The Opposite Party No.4 bank in spite of receiving all the dues did not return the Original land documents to the petitioners after several request for which the petitioners have sent a pleader Notice Dt.18/02/2015 to the Opposite Party No.4(four) which was duly delivered to the Opposite Party No.4(four) on Dt.24/02/2015 on the information of the postal authority.

That in spite of receiving the pleader notice, the Opposite Party No.4(four) did not return the original documents of the mortgaged land to the petitioners for which the petitioners have lodged this Consumer Complaint before this forum and have prayed to direct the Opposite Parties to return all the original documents to the petitioners along with a Compensation of Rs.2,00,000/-(Rupees two lakh)only on account of harassment and all the panic the Complainants sustained.

The petitioner in support of their contentions relied upon the xerox copies of the following documents :-

1. 1. Clearance certificate Dt.09/01/2014 issued by the bank in favor of the petitioners.

   2. Postal receipt Dt.19/02/14.

   3. Pleader receipt Dt.19/02/14 sent to Opposite Parties No.4 by the advocate of the petitioner.

   4. Postal information Dt.15/05/2015 regarding delivery of Pleader notice to the Opposite Party No.4(four).

   5. Information under section 19 by Central Information Commission.

       

Being noticed the Opposite Parties appeared before the forum and filed their version denying almost all the allegations of the Complaint.

The Opposite Parties in their version accepted the Complainants to be their consumer for availing loan vide Ac No. 12070048907and the facts that Opposite Party No.1(one), 2(two) and 3(three) are the authority of Opposite Party No.4(four) and are jointly doing business and petitioners had mortgaged their land documents in original in favor of Opposite Party No.4(four) and that the Petitioner No.1(one) had paid all the dues to the bank on Dt.25/07/2013 and a clearance certificate was issued on Dt.09/01/2014 and that after receiving all the dues the Opposite Party No.4(four) has not return the original land documents to the petitioner for which pleader notice was served on Opposite Party No.4(four) are contrary to the facts on record as per the version reveals.

The Case of the Opposite Parties in their version contend that the Complainant Asish Kumar Agrawal being Proprietor of Bapuji Fuels had availed a cash credit loan of Rs.15,00,000/-(Rupees fifteen lakh)only and terms loan of Rs.15,00,000/-( Rupees fifteen lakh)only on the guarantee of payment by his Mother Smt. Laxmi Devi Agrawal i.e. the Complainant No.2(two) and brother Naresh Kumar Agrawal bearing Account No. CC No. 12070003485 and TL A/C No.12070048907 respectively and both Laxmi Devi Agrawal and Naresh Kumar Agrawal being the guarantors/ mortgagors of the unit (Bapuji Fuels) of the borrower Asish Kumar Agrawal had offered their respective immovable properties in the shape of equitable mortgage by depositing their original title documents for requirement of the bank loan. That while the loan transaction of the borrower unit was substituting with the Opposite Party No.4(four) the retail out let of Indian Oil Corporation i.e. Bapuji Fuel of the Complainant No.1(one) was ceased by the authorities of Indian Oil Corporation Limited on the allegation of irregularities and violation of terms of the company and the matter was agitated up to Hon'ble Supreme Court by the aggrieved parties. For the above circumstance and reason the Borrower/Petitioner No.1(one) could not repay the loan dues to the Opposite Party No.4(four) for which several request and notices were send to the borrower as well as to the guarantors/mortgagors consequent upon which the loan accounts of the borrower became N.P.A..

Since the loan amount along with its interest involves a huge amount and was gradually increasing, the authorities of Opposite Party No.4(four) served notice U/s 13(2) of Securitization and Reconstruction of Financial Assets and Enforcements of Security Interest Act-2002 (SRFAESI)on the Complainant/ Borrower No.1(one) for payment of Rs. 37,94,433/-(Rupees thirty seven lakh ninety four thousand four hundred thirty three)only as was outstanding in the loan account and further cautioned and restrain the borrower not to sell, transfer or lease or otherwise deal with the secured assets without written permission of the Bank U/s 13 (13) of SRFAESI Act-2002. After getting the notice the borrower approached the authorities of Opposite Parties for an one time settlement (OTS) and authorities of Opposite Parties considering the financial crisis of the borrower decided to relinquish Rs. 12,01,932/-(Rupees twelve lakh one thousand nine hundred thirty two)only out of total outstanding of Rs. 46,01,932/-(Rupees forty six lakh one thousand nine hundred thirty two)only at the time of final settlement and the borrower paid the afore said amount under one time settlement scheme and the loan was closed on Dt. 25/07/2013. Further the version contends that, the borrower Asish Kumar Agrawal on Dt.06/12/2013 present before the Branch Manager of Opposite Party No.4(four) and told him about the death of guarantor/mortgagor Naresh Kumar Agrawal and requested the Branch Manager, Opposite Party No.4(four) to return the original title document of both Laxmidevi Agrawal and Naresh Kumar Agrawal. Believing the version of the borrower and from inquiry of his staff the Opposite Party No.4(four) on Dt. 06/12/2013 returned all the title documents of Laxmidevi Agrawal and Naresh Kumar Agrawal and retained one written acknowledgment of Complainant No.1(one) Asish Kumar Agrawal as to receipt of the title document of guarantor/mortgagor Naresh Kumar Agrawal but considering the age and dignity of Laxmidevi Agrawal did not keep any written acknowledgment as to receipt of the title document of Laxmidevi Agrawal by the borrower/Complainant Asish Kumar Agrawal. However, for the purpose of the bank record the branch head of Opposite Party No.4(four) had made a note in the loan documents executed by the borrower and guarantor to that effect.

Further version of the Opposite Parties contends that on the request of the borrower/Complainant on Dt. 09/01/2014 a no dues certificate was issued by the Opposite Party No.4(four) to the Complainant but on Dt.18/02/2015 a pleader notice was served by the Complainant on the Opposite Party No.4(four) to return all the original documents of his mother Laxmidevi Agrawal which shows the ulterior motive of the Complainants to harass the Opposite Parties and as the original documents of Laxmidevi Agrawal has already taken back by the borrower/Complainant No.1(one) the Opposite Party No.4(four) did not chose to reply the notice Dt. 18/02/2015. Further the Opposite Parties in their version have given emphasis as to how the Opposite Party No.4(four) has extended it's helping hand to the borrower/Complainant No.1(one) in repayment of his loan and there was no cogent reason on the part of the Opposite Parties to retain the title document of Complainant No.2(two) i.e. Laxmidevi Agrawal and the Complainant having suppressed the material facts has lodged a complaint against the Opposite Parties with no clean hand. In the above circumstance and backdrop of the case the Opposite Parties pray before the Forum to dismiss the complaint with cost.

The Opposite Parties in support of their contention relied upon the xerox copies of the following documents:-

1. Recital of equitable mortgage with endorsement of OP No.4 Dt.06/12/2013 regarding return of documents of guarantor/mortgagor Naresh Kumar Agrawal and Laxmi Devi Agrawal.

2. Extract from the Register of the Opposite Party No.4(four) evidencing return of title documents of Guarantor/mortgagor Naresh Kumar Agrawal.

The Forum upon perusal of documents and evidence available on record, hearing the advocate for the Complainant on admission of the Complaint admitted the complaint to be genuine one. Issued notices to the Parties and after appearance of Opposite Parties heard the matter at length. Delving deep into the matter and evidence brought before the Forum by both the Parties, the Forum found some facts which are agreed by both the Parties as follows:-

1. The borrower Asish Kumar Agrawal had obtained a total loan amount of Rs.30,00,000/-(Rupees thirty lakh)only i.e. Cash credit loan of Rs.15,00,000/-(Rupees fifteen lakh)only and term loan of Rs.15,00,000/-(Rupees fifteen lakh)only from Opposite Party No.4(four).

2. Asish Kumar Agrawal was a bona fide consumer under the Opposite Parties.

3. Smt. Laxmi Devi Agrawal and Naresh Kumar Agrawal were the guarantors/mortgagors of the afore said loan amount.

4. Some original land documents in the name of Smt. Laxmi Devi Agrawal and Naresh Kumar Agrawal were deposited before the Opposite Party No.4(four) for mortgage against the loan amount sanctioned to Sri Asish Kumar Agrawal.

5. On the basis of one time settlement the borrower Asish Kumar Agrawal paid the loan amount to the Opposite Party No.4(four) and the loan was closed.

6. No dues/clearance certificate was issued to the borrower Asish Kumar Agrawal.

7. The land documents of guarantor/mortgagor Naresh Kumar Agrawal was returned to the borrower Asish Kumar Agrawal by the Opposite Party No.4(four) with a written acknowledgment as to receipt of the documents.

   Hence the facts which are admitted by the Parties need not be probe again.

In the instant case at hand the issues which are likely to be decided as follows:-

1. Whether the pleading of the Complainant is crystal and clear as to fact of the case and relief claimed in the complaint ?

2. Whether this Forum is having jurisdiction in adjudicating the matter in controversy ?

3. For what relief the Complainants are entitled for ?

Regarding Issue No.1(one), the pleading in the Complaint is totally silent as to the mortgagor Naresh Kumar Agrawal whose land documents were mortgaged by the borrower to procure the loan for his unit Bapuji Fuel from the Opposite Party No.4(four). The Complaint reveals in para 3(three) that Petitioner No.1(one) and No.2(two) have mortgaged the land bearing Khata No. 361/8 with rent receipt, Encumbrance Certificate, lease deed and sale deed bearing No. 1071, 1129, 1034, 1035 in original. These documents do not reveal as to author of the documents. More particularly the memo of argument Dt.17/10/2016 in page -2(two), para-5(five) clearly mention in verbatism is that “but the petitioner has admittedly receive the documents of his brother late Naresh Agrawal relating to other loan which is not the subject matter of this case”. The prayer portion of the Complaint petition also does not reveal that the author of alleged document which were not returned by the Opposite Party No.4(four) relating to the case is Smt Laxmi Devi Agrawal. Which is contradictory to the contention of pleader Notice Dt.18/02/2015 and memo of argument Dt.17/10/2016. The Complaint petition is totally silent as to land particulars of Smt. Laxmi Devi Agrawal which were mortgaged by the borrower Ashish Kumar Agrawal. Hence the pleading in the complaint is not clear and crystal as tofact of the case as well as relief claimed in the complaint. The relief claim must be specific and clear.

Regarding Issue No.2(two), the advocate for Opposite Party No.4(four) has fortified with citations (i) 1998 NCJ Page 293 (ii) 1999 (2) CPR page 160. Upon perusal of the citations, more particularly 1992 (2) CPR 160 between Xavier Estates Vrs Senior Manager, India Bank where in Hon'ble State Commission, Tamilnadu has relied upon the decision of National Commission reported in 1997 (III) CPR Page 3 the contention of which is that failure to return of title deeds deposited gives rise only to a civil dispute and not a right under the Consumer Protection Act.

The citations filed by the Opposite Party No.4(four) is squarely applicable in this case. Respecting the decisions of Hon'ble State Commission of Tamilnadu and Hon'ble National Commission this Forum came to a conclusion that for the non release of title documents by bank after repayment of loan amount does not provide a cause of action to file complaint under Consumer Protection Act-1986. Hence this Forum lacks jurisdiction in adjudicating the matter in controversy.

Regarding Issue No.3(three), the Complainant is not entitle for any relief for want of jurisdiction of this Forum for deciding the matter in controversy between the Parties.

O R D E R

Considering all the facts, evidence available in record, the Forum dismissed the complaint being devoid of merit and for no cause of action, under the Consumer Protection Act-1986 and the Complainant is at liberty to agitate before the proper Forum of law.

Complaint disposed off accordingly.

Typed to my dictation

and corrected by me.

I agree, (Sri Pradeep Kumar Dash)

M e m b e r.

(Sri Krishna Prasad Mishra)

. P r e s i d e n t.