Date of Filing:18/01/2017
Date of Order:05/10/2018
BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated:05th DAY OF OCTOBER 2018
PRESENT
SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT
SRI D.SURESH, B.Com., LL.B., MEMBER
COMPLAINT NO.407/2017
COMPLAINANT: | | Sri B.Rajappa, Aged about 51 years, S/o Basappa, No.79/2, 7th Cross, Magadi Road, Bengaluru 560 023. (Sri K.P.Thrimurthy Adv for Complainant) |
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Vs
OPPOSITE PARTY: | | The Branch Manager, The Karnataka Bank Limited, Sahakaranagar Branch, D.No.2257, Kodigehalli Main Road, Opp. Sterling Apartments, Sahakaranagara D Block, Bangalore 560 092. (Sri N.D.Satishchandra Adv For O.P) |
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ORDER
BY SRI.H.R.SRINIVAS, PRESIDENT:
1. This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service in not returning the original documents deposited by him with the O.P directing O.P to pay Rs.50,000/- towards compensation for deficiency in service, causing mental agony inconvenience, hardship and other consequential reliefs as this Forum deems fit.
2. The brief facts of the complaint are that complainant borrowed a sum of Rs.6,00,000/- from O.P by mortgaging his immovable property i.e. bearing site No.112A, Kengeri CMC Katha No.1007, Situated at Nagadevanahalli Village, Kengeri Hobli, Bangalore South Taluk, measuring East to West 40 Feet and North to South 30 feet as described in the schedule to the complaint,by depositing the title deeds of the said property and also his wife Smt.Pushpalatha stood as guarantor. As the complainant became defaulter O.P filed a suit before the City Civil Court, Bengaluru in O.S.No.7379/2010. The same was compromised on 24.04.2013 and he(complainant) paid the amount in that respect and sought for return of the original documents deposited by him with the O.P. O.P refused to return the same on the ground that the bank had filed a criminal complaint against this complainant before Yelahanka Police in Crime No.434/2007 registered before IV Addl. CMM Bengaluru. Since he has cleared the entire loan amount and as it is the duty of the O.P to return the original documents and since O.P has not returned the same, there is deficiency in service on the part of the O.P. He issued a legal notice on 13.02.2017 demanding the O.P to return the documents and inspite of service of notice O.P has not returned the same and hence, the complaint.
3. Upon the service of notice, the O.P appeared before the Forum and admitted the contents of the complaint regarding sanctioning of loan and depositing of the title deeds in respect of the property of the complainant. It is contended in the version that since the complainant became defaulter and the loan was classified as non Performing Asset (NPA). On 31.12.2006, when they were to proceed to take necessary steps under SARFAESI Act, it came to know that the documents were fabricated and fraud has been played on the bank involving the co-obligant Pushpalatha, introducer Gopalrao, valuer H.S. Nagaraj and the then Manager, Suresh and a criminal case was filed against them.
4. It is further contended that after filing of O.S.No.7379/2010, the complainant came forward for One Time Settlement and the same was settled and Original Suit was closed. Though the complainant demanded them to return the documents given to them at the time of loan, they were not in a position to return the same since the same was handed over to the police for investigation and the same is with the police. There is no cause of action for the complainant and complaint filed is barred by limitation since the complainant cleared the loan under one time settlement on 24.03.2013, and now after lapse of four years issued a legal notice dated 13.02.2017 and hence prayed the forum to dismiss the complaint.
5. In order to substantiate case, the complainant examined himself by filing affidavit evidence and One Mr.Deepak.N.L, Branch Manager of O.P and filed documents. Heard the arguments. The following points arise for our consideration:-
(1) Whether the complainant has proved the
deficiency in service on the part of the O.P?
(2) Whether the complainant is entitled to
the relief prayed for in the complaint?
6. Our answers to the above points are:-
POINT 1: In the Negative.
POINT 2: Do not survive for consideration
for the following:
REASONS
POINT No.1:-
7. On perusal of the pleadings of the complainant and O.P., it becomes clear that the complainant by depositing documents obtained a loan of Rs.6,00,000/- and later it was found that the documents produced i.e. Encumbrance Certificate and Khatha documents were fabricated and a complaint was lodged by the Manager of O.P to take action against the borrower, the guarantor, introducer and manager who lent the loan, when the same was found to be fabricated at the time of taking action against O.P under SARFAESI Act. It is also not in dispute that O.S was filed by the O.P and the One Time Settlement was entered into and amount was paid by the complainant. That was on 24.04.2013. From that day onwards, till issuing of notice complainant has not demanded the said documents. Further the said documents are the encumbrance certificate, and khatha the copy of which can be obtained from the concerned authorities. Further a complaint has also been registered against the complainant in respect of fabricating the documents wherein a criminal case is pending and the complainant along with other have obtained bail. The said documents as per the say of the O.P are with the Police. Hence O.P. is not in a position to hand over the same to the complainant as the same is the subject matter of investigation. In view of this, there is no dereliction of duty or deficiency of service on the part of the O.P and further the complaint filed is after two years after the cause of action and hence we answer Point No.1 and 2 in the negative and pass the following order.
ORDER
- The Complaint is hereby dismissed with cost.
- The Complainant is ordered to pay Rs.5,000/- as exemplary cost of this complaint to the O.P.
- The Complainant is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
- Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 5th Day of OCTOBER 2018)
MEMBER PRESIDENT
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1 | Sri B.Rajppa – Complainant |
Copies of Documents produced on behalf of Complainant/s:
Doc.No.1: Copy of Letter dated 14.11.2007.
Doc.No.2: Copy of FIR bearing No.0434 dated 03.12.2007.
Doc.No.3: Copy of Order sheet in Crime No.434/2007.
Doc.No.4: Copy of plaint in O.S.No.7379/2010.
Doc.No.5: Copy of Order Sheet in O.S. No.7379/2010
Doc.No.6. Copy of Memo dated 08.04.2013 in O.S. No.7879/2010
Doc.No.7: Copy of Legal Notice dated 13.02.2017
Doc.No.8: Copy of Postal Receipt and acknowledgment.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: Deepak.N.K, Senior Branch Manager of O.P.
Copies of Documents produced on behalf of Opposite Party/s
Doc.No.1: Copy of Police Notice dt: 25.07.2010.
Doc.No.2: Copy of Letter by O.P to police dt:17.02.2016.
Doc.No.3: Certified copy of the Deposition of O.P is O.S.
No.7379/2010-CCH-30, Bangalore.
MEMBER PRESIDENT
