PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service and unfair trade practice as the Opposite Parties have not returned the original documents pertaining to the property mortgaged with Opposite Parties though the loan was repaid by the Complainants.
2) The facts of the complaint as stated by the Complainants are that Opposite Party No.1 and 2 are the office bearers of the Greater Bombay Co-op. Bank Ltd. The late father and mother of Complainant No.1 had availed the loan facility from the Opposite Party Bank in the year 1991. They mortgaged some immovable property to the Opposite Party Bank and deposited the original title documents of the property known as Pushpakunj with Opposite Party Bank. It is further stated by the Complainants that Shri Ratanchand Baldota, the father of Complainant No.1 died on 12/03/97 and Smt. Gulabbai, the mother of Complainant No.1 died on 17/09/03. After their death, the loan was repaid. Opposite Party issued no dues certificate on 10/11/03. However, the Opposite Parties did not hand over the original documents deposited by the parents of the Complainant No.1 while taking the loan from Opposite Party Bank. These documents are the title deeds pertaining to the property situated at Plot No.192, Pushpakunj, Station Road, Wadala (W). The Opposite Party No.2 has communicated to the Complainant vide letter dtd.05/12/03 that the original documents would be delivered as soon as they were received by the Opposite Party No.2. Again vide letter dtd.18/12/03 the Opposite Party No.2 asked the Complainant to furnish the list of the papers lodged by the borrowers (the parents of the Complainant No.1).
3) On 04/02/04, the Complainants again issued a notice to the Opposite Party No.2 calling up on the Opposite Party No.2 to return the required original documents to the Complainants. By letter dtd.18/02/04, the Opposite Party asked the Complainant for the probate/succession certificate. On 22/03/04, Complainant again through his advocate sent a notice to Opposite Party No.2 and called upon Opposite Party No.2 to give the original documents to the Complainants.
Thereafter by letter dtd.21/08/07 they sent a photo copy of probate dtd.11/05/01 and again at this point of time again requested the Opposite Party No.2 to return the original documents pertaining to the properties.
4) Thereafter by letter dtd.16/10/07 the Complainant No.1 again requested the Opposite Party No.2 for the above said original documents. The Opposite Party No.1 vide his letter dtd.18/12/07 communicated to the Complainant No.1 that “since the properties are not standing in your sole name, we are not in a position to accede to your request. Immediately on 20/12/07 the Complainant No.1 wrote to the Opposite Parties to return the said documents. On 05/05/08 and 23/06/09 the Opposite Parties were again asked to return the original documents but the Opposite Party did not return the same to the Complainant. This conduct of the Bank is unfair and mischievous. The Complainants have averred that this act of the Opposite Parties have affected the right of redemption of mortgaged property under Section 60 of the Transfer of Property Act.
5) Finally, the Complainants have prayed that the Opposite Parties be held deficient in service and they have adopted unfair trade practice. Opposite Parties be directed to return the original documents pertaining to the Complainant’s properties. The Opposite Parties be directed to pay Rs.15,00,000/- to the Complainants as a compensation for mental agony etc. with 18 % interest p.a. from 17/09/03 till actual payment. The Opposite Parties may also be directed to pay Rs.1,00,000/- towards the cost of this litigation.
6) The Complainant has attached the xerox copies of following documents in support of his complaint.
a) A letter dtd.31/10/91, addressed to Shri. Ratanchand Baldota by the Greater Bombay Co-op. Bank Ltd.
b) Letters dtd.03/11/2003, 13/11/2003 from the Complainant No.1 to Opposite Party No.2.
c) Letters dtd.23/11/03 and 06/12/03 from the Complainant No.1 to Opposite Party Bank.
d)Loan Statement.
e)Legal notice dtd.04/02/2004.
f)Letters dtd.18/02/2004 and 22/03/2004.
g)Letters dtd.21/08/2007, 16/10/2007.
h)Letter dtd.18/12/2007.
i)Letter dtd.20/12/2007 alongwith copy of a probate dtd.11/05/2001.
j)Legal notice dtd.05/05/2008.
k)Letter dtd.23/06/2009.
l)General Power of Attorney dtd.28/02/07 by Smt. Deena Baldota in favour of Promod Baldota.
7) The Complaint was admitted and notices were served on the Opposite Parties. They appeared through their Ld.Advocate and filed their joint written statement wherein they raised the preliminary objections as mentioned below.
8) The Opposite Parties have stated that the loan was taken by the deceased father of the Complainant No.1 when he was alive. It was repaid on 17/09/03 through M/s. Baldota Brothers, the firm. Complainants did not disclose that this is the partnership firm with his brothers and partners who repaid the loan. No dues certificate had been issued on 10/11/03. the complaint was filed on 16/07/09 which is beyond 2 years of limitation and hence, the complaint is barred by law of limitation U/s. 24(A) of the Consumer Protection Act, 1986.
9) It is further stated by the Opposite Parties that they gave no dues certificate to the Complainants on 10/11/03 and Complainants were asked to produce a copy of the will as on NOC from other heirs. It is the contention of the Opposite Parties that the original documents of the property belonged to the demised person/ i.e. the borrower. The Opposite Parties vide their letter dtd.18/02/04 had asked the Complainants to furnish necessary probate/succession certificate in order to claim the original document of the property. Mr.Ratanchand Baldota had availed the loan facility. After 18/02/04, the Complainant did not furnish any such document till 2007. The copy of the letter of administration dtd.11/05/01 was produced in 2007.
10) The Opposite Parties have further stated that the Complainants have not disclosed that the loan was paid by M/s. Baldota Brothers, a partnership firm in which the 1st brother Mr. Subhash Baldota is a partner. He is also an administrator in the letter of Administration. The Opposite Parties have averred that, there is a dispute between the two brothers and one of the brothers Shri. Subhash Baldota has objected to release the documents to the Complainants. Even he has threatened with litigation if the documents are released without his consent. These facts deliberately have not disclosed by the Complainants. On this ground, only the complaint deserves to be dismissed.
11) It is also alleged that the complaint should have been filed against the bank and not against the present Opposite Parties.
12) The Opposite Parties have clarified that, the bank has no malice intention to keep the original documents in its custody. Mr. Subhash Baldota, one of the administrator of the will of Mr. Ratanchand, vide his letter dtd.26/04/04, 05/03/05, 11/05/05, 16/06/06, 28/06/07, 26/08/08 and 30/03/09 has asked the Opposite Parties that the original documents should not be released to the Opposite Party No.1. The Complainant has not taken any steps to probate the will and hence, until such time, the said documents cannot be released to any one without obtaining the consent in writing. Under the instructions, the Opposite Parties were asked to keep the original documents under their custody.
13) It is further stated by the Opposite Parties that they were always willing to return the papers provided the Complainants comply the formalities like, producing the probate of will as the borrower has expired. The Complainant failed to produce the probate of will till September, 2007. From Feb., 2004 i.e. more than 3 years meanwhile the other administrator of the will Mr. Subhash, the brother of Complainant No.1, raised objection to realise the title deeds documents to the Complainants. Therefore, the Opposite Parties had to keep the documents in their safe custody. Finally the Opposite Parties have stated that under these circumstances there is no deficiency in service on the part of Opposite Parties and the Opposite Parties have not adopted any unfair trade practice and hence, it is further stated that the complaint is not maintainable.
14) The Opposite Parties have attached the xerox copies of the following documents in support of their written statement.
a) Letter dtd.26/04/04 from Subhash Baldota addressed to Opposite Party.
b) Letter dtd.05/03/05 from Subhash Baldota addressed to Opposite Party.
c) Letter dtd.11/05/05 from Subhash Baldota addressed to Opposite Party.
d) Letter dtd.16/06/06 from Subhash Baldota addressed to Opposite Party.
e) Letter dtd.28/06/06 from Subhash Baldota addressed to Opposite Party.
f) Letter dtd.26/08/06 from Subhash Baldota addressed to Opposite Party.
g) Letter dtd.30/03/09 from Subhash Baldota addressed to Opposite Party.
15) Thereafter the Complainants have filed their affidavit in rejoinder to the written statement of the Opposite Parties wherein they denied the points mentioned in the written statement of the Opposite Parties and reiterated the facts mentioned in the complaint. Both the parities have filed their written arguments wherein they reiterated the facts mentioned in the complaint and written statement respectively. The Ld.Advocates for both the parties have filed a joint application and requested that they do not wish to argue the matter orally and the matter be closed for orders. Accordingly we perused all the papers submitted by both the parties and our findings are as follows.
16) The father of the Complainant No.1 has availed the loan facility from the Opposite Parties since 1991. The father of the Complainant No.1 died in the year 1997. At this time some of the loan was to be repaid to the Opposite Party Bank. On 17/09/03 this loan was fully paid. At the time of taking loan, the father of the Complainant No.1 had deposited the original documents of property at Plot No.192, Pushpakunj, Station Road, Wadala (W), Mumbai–31 and this property was mortgaged with the Opposite Parties Bank i.e. Greater Bombay Co-op. Bank Ltd. (GBCB Ltd. for brevity). After repayment of the loan the Complainant No.1 requested the Opposite Party No.2 to provide no dues certificate and original documents lodged with Opposite Party No.2 against the loan of his parents i.e. Shri. Ratanchand and Gulabbahi Baldota. Accordingly Opposite Party No.2 issued no dues certificate in respect of the loan account of Shri. Ratanchand and Smt. Gulabbai baldota vide letter dtd.10/11/03. When the Complainant No.1 again reminded them vide his letter dtd.13/11/03 and 25/1/03, the Opposite Parties replied the Complainant no.1 that the documents would be delivered as soon as they are received by them (Letter of Opposite Party No.2 dtd.05/12/03). Again on 18/12/03 sumoto the Opposite Party No.2 replied to the Complainant No.1 that “the accounts being old, it may take more time to locate the security papers”. They also demanded the list of security papers. Thereafter Opposite Party No.2 vide letter dtd.18/02/04, communicated to the Ld.Advocate of the Complainants that the relevant papers are available with them but they required the necessary probate/succession certificate from the Complainants. The Complainant No.1 vide letter dtd.22/03/04, through his Advocate communicated to the Opposite Parties that the Bank (Opposite Parties) cannot insist on a probate or a succession certificate and requested the Opposite Party No.2 to return the original documents of the property. Still the Opposite Parties did not give the original documents to the Complainants. Therefore, the Complainant No.1 obtained the copy of the probate of will dtd.11/05/01 and gave it to the Opposite Party No.2 and requested to return the original documents pertaining to Plot No.192, Pushpakunj, Station Road, Wadala (W), vide his letter dtd.21/08/07. The Complainant No.1 again sent a reminder dtd.16/10/07 Opposite Party vide its letter dtd.18/12/07 communicated the Complainant No.1 its inability to grant the request of the Complainant as the properties does not stand in the sole name of the Complainant No.1.
17) Taking into consideration the events mentioned above, it is clear that the Opposite Parties have tossed the request of the Complainant No.1 on one or other ground. At first instance, they have not denied the request of providing the title documents to the Complainant but, they have promised to deliver these documents as soon as they would be received. At 2nd time the Opposite Party No.2 demanded necessary probate/succession certificate. At third time when the necessary probate certificate was given they communicated to the Complainant No.1 that the properties are not standing in your sole name. Thus, the Opposite Parties are changing their views for delivery of the original documents to the Complainants.
18) As the loan is paid in September, 2003 it is the obligation of the Opposite Parties to return the title deeds documents pertaining to the properties mortgaged. Here the borrower has died. Now it is the obligation of the Opposite Parties to return the documents to the heirs of the borrower. The Complainants are the legal heirs of the deceased borrowers. They were repeatedly requesting to return the documents but Opposite Parties were avoiding to hand over the same to them on different grounds.
19) The preliminary objection, taken by the Opposite Parties is that the complaint is time barred. In this respect, the cause of action 1st arose when the loan was repaid and Complainants requested for the return of original title deeds in respect of the property mortgaged. At this time it was the Opposite Parties who should have handed over these documents. This incident has taken place in the year 2003. But the Opposite Parties prolonged the matter they did not give the documents on the some or other pretext. The Opposite Parties themselves did not reject the request of the Complainants but they demanded certain documents like probate or succession certificate. In 2007, Complainant procured this certificate and gave it to the Opposite Parties on 21/08/07. Till 18/12/07, the Opposite Parties have never denied the return of the documents. On 18/12/07 at 1st time they communicated that the “properties are not standing in your sole name we are not in a position to accede to your request (Request of returning the original documents). Thus, the cause of action has finally arisen on 18/12/07. The complaint has been filed on 16/07/09 i.e. within 2 years when the Opposite Parties rejected the request of returning the original documents. Therefore, in our view, the complaint is within the limits prescribed as per the provisions of CPA, 1986. The other objections also do not hold water in light of the above observations. The last and important objection of the Opposite Parties is that this is a dispute between the administrators of the will of the borrowers. This objection raised by the Opposite Parties does not hold water as the Complainants being the heirs of borrower have requested the Opposite Parties as soon as the loan was repaid. The properties will be distributed as per the will of deceased borrower and not as per the original documents of the property. The properties mentioned in the original documents (titled deeds), was in the name of the borrower and not in the name of the Complainants and his brothers or other heirs. Therefore, handing over the original documents to one of the heirs of the deceased borrowers after repayment of the loan would have been as per the banking procedure. The Opposite Parties have failed to perform their obligation and hence, there is a deficiency in service on the part of the Opposite Parties as they neglected their obligation i.e. returning the original documents pertaining to the property of the borrowers after the loan was repaid in 2003.
20) The compensation prayed by the Complainants is exorbitant. In our considerate and candid view, Rs.10,000/- would be the proper compensation for the mental and physical agony caused to the Complainants because of not getting the title deeds from the Opposite Parties since 2003 till date. It would also be proper to award the cost of Rs.5,000/- towards the cost of this litigation.
21) It would also be proper for the Opposite Parties to preserve with them one certified set of these original documents for providing its copies to the other heirs of the borrower if they demand. Hence, we pass the order as follows -
O R D E R
i. Complaint No.222/2009 is partly allowed.
ii. The Opposite Party No.1 & 2 are directed to hand over original documents pertaining to the property
Pushpkunj, Station Road, Wadala (W), submitted by late Shri. Ratanchand H. Baldota, to the Complainants
on furnishing indemnity bond to the Greater Bombay Co-op. Bank Ltd. They are also directed to keep one
set of copies of these original documents with them.
iii.The Opposite Party No.1 & 2 are directed to pay jointly and/or severally, Rs.10,000/-(Rs. Ten Thousand Only)
to the Complainants towards compensation for mental & physical agony caused to the Complainants as
they did not receive the documents after repayment of the loan.
iv.The Opposite Party No.1 & 2 are also directed to pay jointly and/or severally, Rs.5,000/- (Rs. Five Thousand
Only) to the Complainant as cost of this complaint.
v. Opposite Party No.1 & 2 are directed to comply with the above said order within 30 days from the receipt of this
order.
vi.Certified copies of this order be furnished to the parties.
