CC Filed on 06.08.2010
Disposed on 28.04.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.
Dated: 28th day of April 2011
PRESENT:
Sri. G.V.HEGDE, President.
Sri. T.NAGARAJA, Member.
Smt. K.G.SHANTALA, Member.
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Consumer Complaint No. 147/2010
Between:
Sri. Nagappa, S/o. Gurappa, Aged about 52 years, Residing at Kuteri Village, Kolar Taluk. (By Advocate Sri. L. Srinivas & others ) V/S 1. The Chief Manager, State Bank of Mysore, Kolar Branch, M.G. Road, Kolar. (By Advocate Sri. V. Sreedhara Murthy) 2. Muniyamma, W/o. Thimmarayappa, 3. Sadappa, S/o. Thimmarayappa, | ….Complainant |
4. Munaiah, S/o. Thimmarayappa, 5. Nagarajaiah, S/o. Thimmarayappa, Respondents 2 to 5, are majors, All are residing at Kooteri Village, KNS Post,1 Kolar Taluk. | ….Opposite Parties |
ORDERS
This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite party No.1 to return the original Saguvali Chit and sketch relating to Sy. No. 6 measuring 3 acres situated at Allidinne Village, Kasaba Hobli, Kolar Taluk and to pay compensation of Rs.80,000/- with costs and interest, etc.,
2. The material facts of complainant’s case as may be gathered from the complaint and the documents produced by him, may be stated as follows:
That the complainant and one Gurumurthy S/o. Thimmarappa jointly borrowed loan from OP.1 for purchase of tractor and trailer. As security for repayment of loan, the complainant and the said Gurumurthy deposited title deeds relating to their lands and also executed the registered document dated 22.12.1997 creating mortgage over certain agricultural lands. It appears the other family members i.e. the mother and brothers of the said Gurumurthy (OP.2 to OP.5) also joined the complainant and Gurumurthy while executing the mortgage deed. It is alleged that the complainant deposited original Sagavali Chit and the sketch relating to his Sy. No. 6 measuring 3 acres situated at Allidinne Village, Kasaba Hobli, Kolar.
3. It is alleged that OP.1 filed O.S. No. 557/2006 on the file of Civil Judge Senior Division, Kolar for realization of the mortgaged debt and the interest and that the said suit was dismissed on 31.01.2009 as per the memo filed by OP.1 Bank on the ground that the mortgaged loan has been waived under the Debt Relief Scheme brought by Government of India.
4. The complainant has alleged that he made demand for return of original Saguvali Chit and sketch relating to his property bearing Sy. No. 6 and inspite of repeated demands OP.1 has failed to return it. It is also alleged that complainant got issued legal notice dated 16.07.2010 demanding return of the said original documents and the OP.1 did not reply the said notice.
5. The complainant has alleged that he intended to take loan on the security on his land Sy. No. 6 and for that purpose the original documents relating to that land were necessary and because of the omission on the part of OP.1 in returning the said documents, he suffered loss of Rs.80,000/-. Therefore the complainant filed the present complaint.
6. The OP.1 appeared and contested the proceedings. It is not disputed that complainant and Gurumurthy jointly borrowed the loan for purchase of tractor and trailer and in respect of that loan OP.1 has filed O.S. 557/2006 for recovery of the said loan and interest by enforcing the mortgage and that the said suit was dismissed as the Central Government waived the entire loan and interest.
7. It is not disputed that the complainant deposited Saguvali Chit and sketch relating to his land Sy. No. 6 with a view to create mortgage by deposit of title deed and that the complainant and Gurumurthy and OP No.2 to 5 have executed a registered mortgage deed as alleged by complainant. The receipt of legal notice is also not disputed. It is contended that after dismissal of O.S. 557/2006, the OP.1 issued a letter dated 04.12.2009 to the Sub-Registrar Kolar for release of mortgaged agricultural lands. Further it is contended that on the same day one of the borrowers received all the documents of title previously deposited, from OP.1 and issued written acknowledgement dated 04.12.2009. It is stated in the version that OP.1 would produce the said acknowledgement dated 04.12.2009. Therefore OP.1 prayed for dismissal of complaint.
8. Originally the complaint was filed only against OP.1. After filing the version by OP.1, the other OPs were added. Notices were issued to other OPs. OP.2 and OP.4 were served but they remained absent. OP.3 and OP.5 refused to receive the notice issued by this Forum through RPAD. The service of notice on these OPs is taken as sufficient and they also remained absent.
9. The complainant filed affidavit in support of his case. OP.1 did not file affidavit by way of evidence inspite of sufficient opportunity and even it had not produced acknowledgment dated 04.12.2009 alleged to have been executed by one of the borrowers for having received all the original documents deposited with OP.1 bank.
10. We heard the Learned Counsel for the complainant. Considering the facts of the case and the records, we hold that there is deficiency in service on the part of OP.1 in not returning the original documents o complainant, for the following reasons.
11. OP.1 has not produced the alleged acknowledgement said to have been executed by one of the borrowers acknowledging the receipt of all the documents relating to the mortgaged properties. Even an affidavit supporting that fact is not filed by any of the officials of OP.1. Therefore we hold that the return of documents to complainant is not established by OP.1.
12. It appears the complainant’s father namely Gurappa and one Thimmarayappa - the predecessor of Gurumurthy and OP No. 2 to 5 are different. The land of complainant bears Sy. No. 6 which has been mortgaged with other agricultural lands belonging to Gurumurhty and OP No. 2 to 5. It appears complainant was joint borrower with Gurumurthy and his family members. It appears to us that unless the complainant authorizes any other person to receive the documents relating to his land, the OP.1 was not entitled to handover the said documents to the custody of any other borrowers. The OP.1 has not shown any such authority given by complainant. Therefore we think even if OP.1 had handed over the documents relating to complainant to some other borrowers without the authority or consent of complainant, it amounted to deficiency in service. Considering the facts and circumstances of the case, we think there should be a direction against OP.1 for return of the documents to complainant and in default to pay compensation of Rs.5,000/- to him.
13. For the above reasons we pass the following:
O R D E R
The complaint is allowed with costs of Rs.1,000/-. OP.1-Bank shall return the original documents to complainant relating to Sy. No. 6 measuring 3 acres of Allidinne Village, Kasaba Hobli, Kolar Taluk, within 6 weeks from the date of this order. OP.1 can secure the said documents if it had already handed over the same to some other person. If the OP.1 fails to return original Saguvalu Chit and the sketch relating to the said Sy. No. 6 to complainant for any reason, it shall pay compensation of Rs.5,000/- to him.
Dictated to the Stenographer, corrected and pronounced in open Forum this the 28th day of April 2011.
MEMBER MEMBER PRESIDENT
