ORDER

SMT.SHARAVATHI S.M.  MEMBER

1.     This is the complaint filed by the complainant U/S Section 35 of the Consumer Protection Act 2019 against the opposite party (herein referred in short as OP) alleging the deficiency in service in not properly maintaining the documents offered as mortgage by deposit of title deed, in returning the same in a damaged condition thereby deficiency in service and for Rs.60,00,000/- towards the damages and Rs.15,00,000/- for deficiency in service for causing mental agony, strain  and costs of the complaint and for other reliefs as the Commission deems fit.

2.     The brief facts of the complaint are that; the complainant borrowed Rs.20,30,000/- from the OP by way of availing home loan to purchase a plot No.71,CMC, Katha No.385, Ferns City, Doddanakundi Village, Krishnarajapura Hobli, Bangalore on 05/03/2005 by mortgaging the property by depositing the original documents to the OP  bank. On 30/11/2019 in order to sell the property as he is getting  a good customer for Rs.3,45,00,000/-, he wanted to pre-close the loan and paid the amount to the OP and closed the loan account. He also paid a sum of Rs.2,360/- as the document handling charges to the OP and he was instructed to come and collect the title deeds and other related documents which he had deposited on 13.12.2019.  After closure of the loan on 05.12.2019 he entered into an memorandum of understanding with one P.N.Uttappa to sell the schedule property Rs.3,45,00,000/- and got the memorandum of understanding registered. 

3.     On 13.12.2019 when he went to collect the original documents of the house property he found that the said documents damaged/burnt condition with water mark to an extent to the contents could not be read out and understood. Initially he denied to receive the same as the same in a damaged condition, but due to the intervention of senior executives of OP assuring that they will redress the grievance and damage he received the same in the damaged condition under protest endorsing on the letter that all the documents received in damaged conditions accept it under protest without prejudice to legal remedies.

4.     It is learnt that the said documents were stored with “Stock Holding Corporation of India Ltd.,” wherein on 11.12.2017 there was a fire in the stock area due to which the documents stored therein got burnt. The same was not disclosed to him. The original sale deed, original allotment letter, original sale agreement are the only document to show the payment of one time development charges to the developer of the flat , payment charges towards life membership fee, to the clerk to various civic amenities provided to the plot owner to get mutilated, for which the purchaser under Memorandum of Understanding backed out as his financier rejected his request for loan for want of title documents. Thereafter no other person has come up to purchase the property for want of proper documents.

5.     It is alleged that the very purpose of closing the pre-closure of the loan was to sell the property for a good amount hoping for a good return on the investment. The value of the property got diminished to the extent of Rs.60,00,000/- solely for want of original documents. Hence the same caused him mental agony and hardship and diminished the value of the property which is due to the careless negligence approach of the OP in handing the document. Further he is entitle for damages of Rs.15,00,000/- for suffering mental agony and trauma for which, he issued a legal notice demanding the same which the OP neither replied nor complied. Hence the complaint.  

6.     Upon service of notice,  OP appeared before the commission and filed its version, contending that the complaint is not maintainable either in law or on facts by admitting the sanction of the loan and deposit of title deeds in respect of the said property by way of mortgage and receiving the original title deeds of the said property.  As per the procedure and policy, the original documents of the title deed of its customer including the documents deposited by the complainant was stored with its custodian i.e. Stock Holding Corporation of India  Limited at Mumbai.  Though itself and its custodian i.e. Stock Holding Corporation of India Limited have taken all necessary precaution to keep the original and title deeds in fire proof and strong storage space, there was a fire occurred and some of the documents were partly or fully damaged due to the fire and the sale deed of the complainant’s property was partly got damaged in the fire accident the same was published in the news paper.

7.     Since the complainant cleared all the dues, it closed the housing loan account of the complainant on 02.02.2019 and on 05.12.2019 issued a thanks giving letter to the complainant informing to collect the original documents. One more letter dated 13.12.2019 was sent to the complainant informing the fire accident at SHCIL Mumbai on 11.12.2017.  It was also informed to the complainant that bank will assist him in obtaining the certified copy of the documents from the concerned sub-register. The complainant has collected all the document deposited with it and has given the acknowledgement.  It has denied that it did not inform the complainant regarding the damage caused to the document due to the fire accident in its SHICL storage, when the complainant came to the bank to pre-close the loan amount.  It will only call for the original documents return after the entire loan amount is cleared or closed.  It has also denied that the value of the property got diminished to the extent of Rs.60,00,000/- as contended in the complaint due to the damage caused to the documents and further that they are to pay the said amount along with Rs.15,00,000/- as damages.

8.     The fire accident that took place in the premises of Stock Holding Corporation of India Limited is not a deliberate one though it has taken all possible due care and caution to keep the said documents safely. Under the circumstances, it prayed the commission to dismiss the complaint.

9.     In order to prove the case, both complainant and OP filed affidavit evidence and produced documents. Arguments heard. The following points arise for our consideration:-

1. Whether the complainant has made out the case of deficiency and  negligence of service on the part of the opposite party?

2. Whether the complainant is entitled for the claim made in the complainant?

10.   Our answers to the above points;

 POINT NO 1 & 2: PARTLY IN THE AFFIRMATIVE

  for the following:

REASONS

POINT NO 1:

11.   This is a case wherein the complainant alleged that after foreclosing the housing loan taken by him,  OP hand over the damaged documents which was deposited with the OP and damage was due to burnt condition with water marks. As a result complainant could not able to sell his property though he has entered into a Memorandum of Understanding with one Sri.PN.Uttappa for Rs.3,45,00,000/- who backed out from the said deal due to the damaged original documents in respect of the property which the complainant had deposited. 

12.   It is an admitted fact by OP that,  at the time of sanctioning of the loan, complainant created mortgage in respect of the said property by deposit of title deeds which was sent to the stock holding corporation of India Ltd for keeping safely as per the procedure and policy of the bank and later due to the fire that took place in the premises of the stock holding Ltd in the year 2017, some of the documents were destroyed and some of the documents were damaged and in the case of the complainant all the documents were retrieved upon the complainant closing the loan much prior to the date of closure and when they sent requisition to the Stock Holding Corporation of India Ltd to return the original documents, they received the documents in a damaged condition which was due to the act of god and there is no negligence on its part.

13.   It is also admitted by the complainant that after pre-closure of the loan, he received the documents which was in a damaged state.  Accepting all the contentions of the rival parties though the documents have been damaged due to the fire and water, the same cannot be attributable solely to the OP. OP has no role to play directly whereas it is the duty of OP as well as the Stock Holding Corporation India Limited to keep the documents in safe custody.  Inspite of taking all precautionary measure ultimately, one has to bow to the act god i.e. vismajure as has happened in this case. 

14.   In this case, the entire documents as per the say of the complainant is available whereas the same has not been produced before this commission to assess how much of damage the said documents have suffered.

15.   Further it is to be noted here that, complainant has entered into Memorandum of Understanding with one PN Uttappa for Rs.3,45,00,000/- just after a day of pre-closure. The said documents is a registered one. The same has been produced before the forum. We have gone through the contents of the same.  From it, one can gather that the complainant has got a good offer for his property. There is no consideration amount given to the complainant by the said person on that day.  Further it is mentioned there in that 10% of the total consideration would be paid at the time of executing the agreement of sale. No documents placed to show that agreement of sale entered.

16.   Further the evidence of Sri PN.Uttappa has not been placed on record to show that he in fact he backed outfrom the deal of purchasing the said property. 

17.   If at all the entire sale deed and other relevant original documents were destroyed in the fire, then the say of the complainant that the purchaser insisted for the original documents, and in case the original documents are not available they would ask for a lessor amount for lessor consideration, could have been accepted. Whereas in this case, the original documents are available which are mutilated/damaged. Copy of All the documents that are mutilated in the fire accident could be obtained in the Sub-registrar office and also builder/developer from whom the complainant has purchased. In view of this, there is no supporting evidence to convince this commission that the value of the property has been diminished by Rs.60,00,000/-. In view of the above reasons, we answer POINT NO.1 PARTLY IN THE AFFIRMATIVE, to the extent that the Stock Holding Corporation of India Limited (SHCIL) has not taken due care and caution as required of it. On whom OP had relayed, thereby there is deficiency in service and to the little extent negligence.  

POINT NO.2:

18.   As per the letter written to the complainant by the IDBI dated 05.12.2019, after closure of the loan amount of Rs.20.30,000/-, OP has returned the original allotment letter dated.18.10.1999 i.e., the original sale agreed dated 24.11.1999, original EC from 01.04.2001 to 31.03.2003 original insurance policy issued by United India Insurance company original registered sale dated 24.12.1999, original tax paid challen, original tax receipt and kahtha extract.

19.   The complainant has received the same with an endorsement that all the seven documents received in damaged condition accepted it under protest without prejudice to his right to legal remedies signed by the complainant on 13.12.2019. When this is taken into consideration, it cannot be held that the document has been destroyed in the fire totally.  The complainant has not produced the documents as received by him from the OP for the first time assessment to know exactly what is the damage caused to the documents.

20.   Further it is to be observed here that, the complainant can get all the certified copies of the said original documents coupled with this damaged documents along with certified document he can convince the prospective purchaser if any to purchase the property without there being any depreciation for the property due to the reason of the damage condition of the document. Under these circumstances the complainant is not entitle for any of the damages claimed in the complaint as he has not suffered damage and further has not placed material to show he has suffered damage likely to suffer damage in respect of value of his property.

21.   However it is to be observed here that, the negligence cannot be imputed to the OP alone as it is the practice and policy of the bank to keep the documents in safe custody and in this case it was entrusted to Stock Holding Corporation of India Limited which is the custodian of the documents.  We are of the opinion that, in view of the little damage that has caused to the documents, we are of the opinion that a sum of Rs.10,000/- ordered to be paid to the complainant to obtain the certified copy of the documents, a sum of Rs.5,000/- towards suffering mental agony and hardship, and Rs.5,000/- towards litigation expenses would be just and proper, besides directing OP to publish in widely circulated newspaper where the property is situated stating that the original title deeds have been damaged while it was in its custody and the financial institutions shall not deny the loan on the ground of stale or damaged title deeds has been produced in case the complainant approaches any of the financial institution for loan if the complainant is otherwise eligible for the loan. Hence we answer POINT NO 2  PARTLY IN THE AFFIRMATIVE and pass the following:-

ORDER

1. The complaint is partly allowed with cost.
2. The OP i.e. The IDBI Bank Limited represented by its Manager/Authorized Signatory is hereby directed to pay a sum of  Rs.10,000/- to the complainant to obtain the certified copy of the documents and further OP to pay a sum of Rs.5,000/- towards damages for compensation and Rs.5,000/- litigation expenses. Besides directing OP to publish in widely circulated newspaper where the property is situated stating that the original title deeds have been damaged while it was in their custody and the financial institutions shall not deny the loan on the ground of stale or damaged title deeds in case the complainant approaches any of the financial institution for loan if the complainant is otherwise eligible for the loan.
3. The OP is hereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
4. Send a copy of this order to both parties free of cost.                    

   Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 17^th day of February 2022)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Welcome letter dated 05.03.2005.

Ex P2: Copy of the closure letter dated 05.12.2019.

Ex P3: Copy of  MOU dated 06.12.2019.

Ex P4: Copy of the damaged documents

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Sivikumar.S, Manager/Branch head of OP

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the paper article.

Ex R2: Copy of the email

Ex R3: Copy of the letter dated 13.12.2019.

Ex R4: Copy of sale deed deposited with OP duly returned to the complainant.

MEMBER                PRESIDENT

RAK*