BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA<br /> <br /> PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President,<br /> 2. M.N.MANOHARA, B.A.,LLB., Member,<br /> <br /> ORDER<br /> <br /> Complaint No.MDF/C.C.No.11/2010<br /> Order dated this the 9th day of July 2010<br /> <br /> COMPLAINANT/S Smt.Gangamma D/o Chikka Rangappa and W/o M.C.Anneyappa, R/at House No.2705, Mathrushri Nilaya, 3rd Cross, Gandhinagar, Mandya City.<br /> (By Sri.M.B.Rajashekara., Advocate)<br /> -Vs-<br /> OPPOSITE PARTY/S<br /> 1.The House Building Co-operative Society Ltd., 2nd Cross, Subashnagar, Mandya City. Rep. by its Secretary.<br /> 2.Karnataka Housing Board, Rep. by its Manager, Bannur-Mandya Road, Mandya.<br /> 3.The Managing Director, Karnataka State Co-operative House, Federation Limited, Divan Madhva Rao Road, Basavanagudi, Bangalore – 560004.<br /> (By Sri.K.M.Basavaraju(Kundur)., Advocate for O.P.1, Sri.C.Chikkaraju., Advocate for O.P.2 & <br /> Sri.M.K.Bhaskaraiah., Advocate for O.P.3)<br /> <br /> Date of complaint 22.01.2010<br /> Date of service of notice to OPs 11.02.2010<br /> Date of order 09.07.2010<br /> Total Period 4 Months 28 days<br /> Result The complaint is allowed, directing the 2nd Opposite party to return the title documents of site No.141 in Poor Hindu Block, Hosahally Extension, Mandya with damages of Rs.1,000/- to the Complainant within six weeks<br /> <br /> Sri.Siddegowda,<br /> President<br /> <br /> 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 for a direction to Opposite parties to return the title documents pledged and damages of Rs.5,000/-. <br /> 2. The case of the Complainant is that being the member of the Opposite party Society, the Complainant obtained loan of Rs.10,000/- from 1st Opposite party by mortgaging her property vide pass book No.SLF-309/9 and thereafter, she discharged the said loan amount on 15.02.1991 and accordingly the 1st Opposite party executed the discharge loan certificate to the Complainant. Even though, the Complainant has discharged the said loan amount, the 1st Opposite party has not returned the original documents of the property mortgaged by the Complainant, while advancing the said loan. In spite of several requests made by the Complainant with 1st Opposite party, they have not returned the entire documents to her, on one reason are the other and 1st Opposite party has been dodging the matter. It is learnt that the above said documents are in the custody of 2nd Opposite party. In fact, the Complainant approached the 2nd Opposite party and requested to return the documents. Even, the 2nd Opposite party has not considered the request of the Complainant and they have not rendered their service to the Complainant. When the Complainant has discharged the loan and 1st Opposite party has issued the loan discharge certificate, there is no reason for 1st & 2nd Opposite parties to with hold the said original documents. Though, the Complainant approached several times requesting the Opposite party to return the documents, but they have failed to deliver and their act amounts to deficiency in service and Complainant got issued a legal notice dated 15.06.2009 and though served on 1st & 2nd Opposite parties have not complied with the said notice. On these grounds, the Complainant has sought for direction to the Opposite party to return the original documents and pay damages of Rs.5,000/-.<br /> 3. The notices were served on Opposite parties 1 to 3.<br /> 4. The 1st Opposite party has filed version pleading that the borrowing of loan by the Complainant by mortgaging the property and discharge of loan and execution of discharge shara are not within the knowledge of Opposite party, as the alleged transaction had taken place in the year 1966 and the original documents are not at all in possession of 1st Opposite party. It may be true that the Complainant had executed the mortgage deed. The allegation that the Complainant requested the 1st Opposite party to return the original documents and 1st Opposite party dodging the matter are all false. There is no iota of material, to show which documents are given to the 1st Opposite party. The cause of action arisen is false. The complaint is liable to be dismissed.<br /> 5. The 2nd Opposite party has filed version, denying the allegations made in the complaint in toto. But, admitted that the title documents of the mortgage property of the Complainant are in the custody of 2nd Opposite party. Since, the Complainant has not discharged the loan of Rs.10,000/- drawn from 2nd Opposite party, the 2nd Opposite party is not liable to return the documents. The question of repaying the entire loan amount to the 1st Opposite party does not arise and so-called loan discharge certificate said to have been issued by 1st Opposite party is concocted document. The Complainant ought to have repaid the entire loan with accrued interest to 2nd Opposite party. Since, it is the 2nd Opposite party which has paid the mortgage loan to the Complainant. There is no cause of action. The Complainant is due of Rs.67,701/- including the principal and interest and the Opposite party is ready to return the documents if the loan is paid. In fact, 1st Opposite party has intimated the 2nd Opposite party vide its letter dated 20.02.2010 that there are no entries in its records to show that the Complainant has cleared the said outstanding loan. Therefore, the Complainant has not cleared the outstanding loan to 1st Opposite party. The Complainant is not entitled to any relief and therefore, the complaint is liable to be dismissed with cost.<br /> 6. The 3rd Opposite party has filed version contending that the Complainant is not maintainable against the 3rd Opposite party as there is no averments made against 3rd Opposite party and no cause of action has arisen between the Complainant and 3rd Opposite party. The other allegations are denied and sought for dismissal of the complaint.<br /> 7. During trial, the Complainant is examined as C.W.1 and got marked Ex.C.1 to C.3. The Secretary of 1st Opposite party is examined as R.W.1 and the Secretary of 2nd Opposite party is examined as R.W.2 and got marked Ex.R.1 & R.2.<br /> 8. We have heard the both sides.<br /> 9. Now the points that arise for our considerations are:-<br /> 1. Whether the 1st & 2nd Opposite parties have committed deficiency in service?<br /> 2. Whether the Complainant is entitled to the relief sought for? <br /> 10. Our findings and reasons are as here under:-<br /> 11. POINT NO.1:- The undisputed facts are that the Complainant is the member of the Opposite party Co-operative Society. In view of Ex.C.2 the pass book and Ex.C.1 mortgage discharge deed and version of 1st & 2nd Opposite parties, it is admitted fact that Complainant has borrowed loan of Rs.10,000/- from Opposite parties by mortgaging the title deeds of the site. <br /> 12. According to the Complainant, she has discharged the loan and 1st Opposite party has executed the deed of discharge of mortgage on 15.02.1991. Though, the 1st Opposite party has taken stand that the loan by mortgaging the property and discharge of loan and execution of the discharge shara are not within the knowledge of the Opposite party, as the alleged transaction has taken place in the year 1966, but as per Ex.C.1 on 03.09.1966, the Complainant has hypothecated the site submitting the title deeds for Rs.10,000/- and the said loan has been discharged and so the mortgage discharge document was executed on 15.02.1991, it is a registered document, executed by the President and Secretary and two members of the executive committee in favour of the Complainant and there is no reason to suspect this document, since it is more than 30 years old document. Further, the pass book Ex.C.2 issued by the 1st Opposite party Bank in favour of the Complainant, clearly proves that the Complainant is the member of the 1st Opposite party Society and she has taken loan of Rs.10,000/- and she was paying regularly, the installments from 1967 to 1982 and this document is not disputed by 1st Opposite party. According to 2nd Opposite party, the Complainant has borrowed loan from 2nd Opposite party and mortgaged the property with documents in its favour and the Complainant has not discharged the said loan and the Complainant is still due of Rs.67,701/-. According to the 1st Opposite party, the title documents of the Complainant are not in the custody of 1st Opposite party, but they are in custody of 2nd Opposite party. The contention of the Complainant is that though she has discharged the loan and 1st Opposite party has executed mortgage discharge deed as per Ex.C.1. 1st Opposite party has failed to return the title document of the property and coming to know that the said documents are in the custody of 2nd Opposite party, she approached the 2nd Opposite party, but they have failed to return the documents and in spite of legal notice Ex.C.3, they have not returned. The contention of 2nd Opposite party is that the Complainant has availed the loan of Rs.10,000/- from 2nd Opposite party on 18.07.1966 by mortgaging the original document of her property and the Complainant has not paid the said loan with interest and the Complainant is not entitled to seek the return of the documents. But, the Opposite party has produced the documents Ex.R.1 & R.2, the copies Ex.R.1(a), Ex.R.2(a). Ex.R.1(a) is a registered deed of mortgage dated 03.09.1966 executed by Complainant Gangamma in favour of 1st Opposite party for Rs.10,000/- mortgaging her site. Ex.R.2(a) is the copy of the assignment deed dated 14.09.1966 executed by 1st Opposite party President and Secretary in favour of 2nd Opposite party in respect of property of Complainant Gangamma. So, the defence taken by 2nd Opposite party is quite contrary to the documents Ex.R.1 & R.2. There is no document to prove that the 2nd Opposite party demanded the loan from the Complainant and whether the assignment of the mortgaged property in favour of 2nd Opposite party by 1st Opposite party was brought to the knowledge of the Complainant or not. It cannot be accepted that Ex.C.1 loan discharge deed is a concocted document. Further, the 2nd Opposite party has not taken any legal action against the Complainant mortgager and 2nd Opposite party assignor to enforce the claim of loan within law of limitation, though the assignment deed is dated 14.09.1966. So, prima-facie the claim of mortgaged debt against the Complainant is barred by limitation and 2nd Opposite party cannot enforce it. On the other hand, the Complainant has discharged the loan drawn from 1st Opposite party as per the documents Ex.R.1(a) and Ex.C.1 & C.2 and discharged the loan in view of the discharge deed Ex.C.1 and if at all 2nd Opposite party is entitled to claim, the loan borrowed by 1st Opposite party, it has to proceed against the property of 1st Opposite party and not against the property of Complainant. Therefore, the 2nd Opposite party is bound to return the title deeds of the site property of the Complainant and 1st & 2nd Opposite party have failed to discharge their duty and hence, they have committed deficiency in service.<br /> 13. The Complainant is made to wander and suffered mental agony by the act of 1st & 2nd Opposite parties not returning the title documents, though she has discharged the loan amount. Therefore, she is entitled to damages apart from a direction to the 2nd Opposite party to return the title documents of the Complainant’s site. <br /> 14. In the result, we proceed to pass the following order;<br /> ORDER<br /> The complaint is allowed, directing the 2nd Opposite party to return the title documents of site No.141 in Poor Hindu Block, Hosahally Extension, Mandya with damages of Rs.1,000/- to the Complainant within six weeks. <br /> <br /> (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 9th day of July 2010).<br /> <br /> (PRESIDENT) (MEMBER)<br /> <br /> <br />