IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA Dated this the 19th day of March, 2011. Present : Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C. No. 56/2010 (Filed on 29.03.2010) Between: 1. Dr. Charlie Cherian, Arapurackal House, Malakkara P.O., Aranmula, Kozhencherry Taluk, Pathanamthitta. 2. Dr. Ann Saleena, W/o. Charlie Cherian, --do-- --do— (By Adv. George. K. Mathew) .... Complainants. And: The Manager, ICICI Bank, Kumbanadu Branch, Pathanamthitta. (By Adv. Mammen Pappy Adeneth)` .... Opposite party. ORDER Smt. C. Lathika Bhai (Member): The complainants have filed this complaint against the opposite party for getting a relief from the Forum. 2. The facts of the complaint is as follows: The complainants have availed a loan from the opposite party on 31.03.2004 after executing a loan agreement. For the loan amount of ` 11,74,211 the complainants create an equitable mortgage of 22 cents of their landed property with a building therein of Aranmula Village covered by settlement deed No.1146/2003 of Aranmula SRO. At the time of agreement, the complainants had deposited the original title deed viz. settlement deed No.1146/2003 of Aranmula SRO in the joint name of the complainants with the opposite party’s bank. The complainants were promptly paying the monthly instalments and the outstanding loan amount is only ` 2,10,443. Now the complainants decided to sell the mortgaged property to a prospective buyer who was well aware of the fact that the property is mortgaged in the bank. The complainants and the prospective buyer approached the opposite party bank and informed the intention of selling the mortgaged property. And also informed that they were ready to repay the balance amount of loan where upon the opposite party agreed to return the original title deed mortgaged with the opposite party’s bank immediately on receipt of the outstanding loan amount. Believing this, complainants making arrangements for the sale of the said property. 3. The complainants approached several time in person and over telephone requested the opposite party to give a photocopy of the above said title deed. But there is no response from the opposite party. After that on 20.11.2008 the complainants sent a registered letter requesting the opposite party to give a photocopy of title deed. But the opposite party did not response. As the complainants were not able to give a photocopy of the title deed to the prospective buyer, he withdrew from the agreement made for purchase of the said property with the building, which caused immense loss and hardships to the complainants. 4. On 06.03.2009, the complainants caused a lawyers notice to be sent to the opposite party. The opposite party has received the notice. But till date he has not cared to send a reply or settle the matter. The complainants are entitled to get the original title deed or as an alternative to execute a fresh title deed at the expense of the opposite party with co-operation of both the parties. There is a misrepresentation and deficiency in service from the part of the opposite party. Hence the complainants are entitled to get compensation from the opposite party. Therefore, the complainants filed this complaint for getting an order for directing the opposite party to produce the original title deed before the Forum and hand over it to the complainants on repayment of loan amount or in the alternative to execute a fresh title deed at the expense of the opposite party with the co-operation of both parties and for directing to pay compensation and cost to the complainants. 5. The authorised representative of the opposite party filed a version stating the following contentions: The complaint is not maintainable either in law or on facts. The loan was taking over from another bank. The entire proceedings of agreement of loan was done by the complainants and opposite party on a photocopy of the title deed (settlement deed No.1146 of 2003 of Aranmula SRO) and it was agreed that the loan with the earlier bank will be closed and the opposite party will take over the loan, and further the complainants had agreed to withdraw and receive the title deed from the earlier bank and deposited the title deed with opposite party. But the complainants never deposited the original title deed with the opposite party till date even after several requests. If the complainants had handed over the original title deed with the bank, the bank would have issued a receipt for the same. Here the complainants are making a vague allegation without any proof. The complainants are duty bound to prove the same before the Forum. 6. This opposite party admitted that the complainants are making prompt payment and that was the reason the opposite party did not initiate any legal action against the complainants for production of the title deed before the opposite party. The opposite party has contacted the first complainant on several instances after he had sent registered letter and legal notice. Thereafter, the complainants approached the District Legal Service Authority alleging the same reason and it did not turn futile, the pre-litigation petition was terminated. After all, such attempts the complainants have approached this Hon’ble Forum with the same matter. If only the original document was given to the opposite party, the complainants would have the right to demand the same back from the opposite party. The complainants have come before this Forum with unclean hands by suppressing the material facts and thereby only to cause harassment and irreparable injury to this opposite party without any bonafides. On the reasons stated above, the complaint against this opposite party will not stand. This opposite party reserves his right to file a counter claim for damages before this Hon’ble Forum for filing a false case against this opposite party. The complainants are not entitled for any reliefs as prayed for in the complaint. Hence the opposite party prayed for the dismissal of the complaint with compensatory cost from the complainant. 7. On the above pleadings, following points are raised for consideration: (1) Whether the complaint is maintainable before this Forum? (2) Whether the reliefs sought for in the complaint are allowable? (3) Relief and Cost? 8. The evidence in this case consists from the complainants’ side is the oral evidence of the first complainant as PW1 and Exts.A1 to A6 marked for them. For the opposite party, Ext.B1 was marked. After closure of the evidence, both sides were heard. 9. Point Nos. 1 to 3: The complainants’ case is that they have availed a loan from opposite party after executing an agreement by mortgaging their 22 cents of land with a building therein of Aranmula Village covered by settlement deed No.1146/2003 of Aranmula Sub Registry Office. At the time of creating the equitable mortgage, the complainants had deposited the original deed with the opposite party. The complainants have promptly paying the loan instalments. Meanwhile, they have decided to sell the mortgaged property and approached the opposite party for getting the photocopy of the original title deed mortgaged with the opposite party bank. The opposite party agreed to return the original title deed on repayment of the balance loan amount. The complainants made arrangements for the sale of the property, but the opposite party did not give the photocopy of the title deed with his repeated request, then the prospective buyer withdrawn from the agreement made for the purchase of the above said property. The acts of the opposite party amounts to a deficiency in service and which caused financial loss and hardships to the complainants. Hence they filed this complaint for getting the reliefs as sought for in the complaint. 10. In order to prove the complainants’ case, the first complainant adduced oral evidence as PW1 and Exts.A1 to A6 were marked. Ext.A1 is the copy of legal notice dated 23.01.2009 issued by the complainants to the opposite party. Ext.A2 is the copy of the decision of complaint filed before the PLP by the complainant. Ext.A3 is the postal receipt of Ext.A1 and Ext.A4 is the acknowledgment card of Ext.A1. Ext.A5 is the copy of loan agreement. Ext.A5(a) is the 24th page of Ext.A5 loan agreement. Ext.A6 is the reply notice of Ext.A1 dated 04.02.2009. The opposite party’s counsel has cross-examined PW1. 11. The opposite party contended that the loan was taking over from another bank. At the time of availing the loan, the entire proceedings of loan were done by the parties on a photocopy of the title deed. The complainants never deposited the original title deed with the opposite party till date even after several requests. The complainants are making prompt payments. Hence the opposite party did not initiate any legal action against the complainants for production of the title deed. The complaint against the opposite party will not stated as it is false and frivolous and filed by suppressing the material facts. Hence the complainants are not entitled any reliefs as sought for in the complaint. 12. In order to prove the contentions of opposite party, the opposite party produced copy of the home loan application and it is marked as Ext.B1. 13. We have perused all the documents produced from both sides. From the documents, we could not say that the complainants had availed the home loan by depositing the original title deed before the opposite party or the opposite party had sanctioned the loan without depositing original title deed. According to the complainant, he had deposited all the original documents before the opposite party while applying the home loan. But the opposite party’s contention is that the loan is a take over from another bank and they have received only the photocopy of the title deed at the time of sanctioning the loan. The complainant had agreed to withdraw the title deed from the earlier bank and deposit the same with opposite party. But he did not do so. 14. Ext.B1 home loan documents are a bundle of papers containing loan application, agreement and other relevant documents relating to the loan taken by the complainants. On a perusal of it, some papers have shown the statement of account of the first complainant at Sudaram Home Finance from 01.04.2003 to 27.2.2004. And a certificate dated 30.03.2004 issued by them to the complainants shows that he had availed a home loan from them by an equitable mortgage of title deed No.1146/2003 in the name of the complainant and the list of the documents stated as original title deed No.1146/2003 and other relevant documents. The opposite party had sanctioned the loan to the complainants on 29.03.2004. The date of certificate issued by Sundaram Home loan seen as 30.03.2004. From these documents, it can presume that at the time of availing the loan, the original title deed No.1146/2003 and other documents of the complainants’ loan is under the custody of the Sundaram Home Finance. At the time of cross examination, PW1 stated as follows: “Ip¼\mSv ICICI Bank þ h¨v 2004 3þmw amkw BsW¶p tXm¶p¶p. Original title deed AhnSps¯ Hcp staff- sâ I¿nemWv sImSp¯Xv. AbmfpsS t]cpw aäpw AdnbnÓ. Further he stated that, “Fsâ tem¬ take over loan AÃ.. Cu hkvXp t\ct¯ Sundaram Financeþ CuSv h¨v tem¬ FSp¯ncp¶p“. The complainant has not produced any evidence to show that the loan taken from the Sundaram Finance had been closed by him and he had deposited the original title deed to the opposite party at the time of availing the loan. On a perusal of Ext.A5, home loan document schedule (details of title deed) only shows a list of title deed No.1146/03, parent document copy 14/94, Encumbrance Certificate, Possession Certificate, Land Tax Receipt. There is no seal or signature of the opposite party in Ext.A5 document. Hence this document cannot be accepted as an evidence for depositing original title deed with the opposite party. Moreover, in the schedule it was not mentioned whether the title deed produced is original or a copy. 15. The opposite party has a liability to return all the documents received from the complainant at the time of availing the home loan after closing the loan account. In this case, the complainants have not closed the loan account. The complainants failed to produce sufficient evidence to prove their case. In the circumstances, we could not find any deficiency in service from the part of opposite party. Hence, the complaint is liable to be dismissed due to lack of evidence. 16. In the result, the complaint is dismissed. No cost. Declared in the Open Forum on this the 19th day of March, 2011. (Sd/-) C. Lathika Bhai, (Member) Sri. Jacob Stephen (President) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainants: PW1 : Dr. Charlie Cherian. Exhibits marked on the side of the complainants: A1 : Photocopy of the legal notice dated 23.01.2009 issued by the complainants to the opposite party. A2 : Proceedings in PLP No. 196/2009 dated 22.10.2009 of the District Legal Services Authority, Pathanamthitta. A3 : Postal receipt of Ext. A1. A4 : Acknowledgment card of Ext.A1. A5 : Home loan document. A6 : Reply notice dated 04.02.2009 issued by the opposite party’s counsel to the complainants’ Advocate. Witness examined on the side of the opposite party: Nil. Exhibits marked on the side of the opposite party: B1 : Photocopy of the home loan application. (By Order) Senior Superintendent. Copy to:- (1) Dr. Charlie Cherian, Arapurackal House, Malakkara P.O., Aranmula, Kozhencherry Taluk, Pathanamthitta. (2) The Manager, ICICI Bank, Kumbanadu Branch, Pathanamthitta. (3) The Stock File. | 
