BEFORE THE DISTRICT FORUM (UNDER CONSUMER PROTECTION ACT, 1986), MEDAK AT SANGAREDDY
Present: Sri P.V.Subrahmanayma, B.A.B.L., PRESIDENT
Smt U.Sunita, M.A., Lady Member
Sri Mekala Narsimha Reddy, M.A.,LL.B.,
P.G.D.C.P.L. Male Member
Thursday, the 22nd day of October, 2009
CC.No. 21 of 2009
Between:
Faizullah Khan S/o Yaseen Khan,
Aged : 35 years, Occ: Business,
R/o H.No. 1-9-45/A, Golconda Street,
Medak town, Dist. Medak.
….. Complainant
And
The Manager, State Bank of Hyderabad,
Main Branch, Medak town – 502 110.
….Opposite party
This case came up for final hearing before us on 08.10.2009 in the presence Sri. M.S. Khan, advocate for complainant and Sri. G. Laxman Kumar, advocate for opposite party, upon hearing the arguments of both sides, on perusing the record and having stood over for consideration till this day, this forum delivered the following:
O R D E R
(Per Sri. P.V. Subrahmanyam, President)
This complaint is filed Under Section 12 of Consumer Protection Act, 1986 to direct the opposite party to return original documents and to award compensation, damages of Rs.50,000/- each and costs.
The averments in the complaint in brief are as follows:
1. The complainant had availed M.T.L. loan from the opposite party bank in year 1988 by depositing original documents viz. Original sale deed dated. 19.09.1966, original municipal permission dated 2.02.1984 and original approved map of the building on 08.03.1988 pertaining to H.No. 1-9-45/A, Golconda Street, Medak town which was standing in the name of his mother. The complainant’s mother stood as guarantor /surety for the said loan. The opposite party bank acknowledged the receipt of the documents.
The complainant had cleared off the loan in the year 2001 and the bank issued no dues certificate on 31.03.2001 but did not return the documents. Inspite of several requests made by the complainant the opposite party has not returned the documents and postponed on some pretext or other. Finally the complainant made a representation to the Revenue Divisional Officer, Medak on 31.03.2007 and the same was forwarded to the opposite party, but no action is taken to return the documents. Then the complainant got a legal notice issued to the opposite party on 13.04.2007 which was served on the opposite party. There is neither compliance nor a reply. Then the complainant lodged a complaint before Banking Ombudsman, Hyderabad but the same was closed with a finding that Banking Ombudsman is not the appropriate authority to adjudicate such complaints. The complainant suffered much mental pain due to the deficiency in service of the opposite party and hence the opposite party is liable to pay exemplary damages, compensation and costs to the complainant. Even though there was high rise in the prices of houses in the year 2007 and even though the complainant wanted to sell the house, he could not, for want of the original sale deed. Hence the complaint.
2. The opposite party resisted the claim by filing its version, in the form of affidavit of its Branch Manager, to the following effect:
It is true that the complainant has availed M.T.L. loan from the opposite party by depositing documents pertaining to the house bearing No. 1-9-45/A, Golconda Street, Medak and that he had cleared off the loan and the bank issued no dues certificate on 31.03.2007. At the time of issuing no due certificate itself the documents were returned to the complainant but the complainant created false and baseless allegations, in order to clause loss to the opposite party and to create problems. After clearing the loan the complainant remained silent for more than seven years and filed this false and baseless complaint. The opposite party has not violated any principle of law, equity and justice. The complainant mis-represented this forum and filed this false complaint which is not maintainable in law or on facts. The complaint may therefore be dismissed with costs.
3. In order to prove the pleadings, both parties filed their evidence affidavits, which are almost similar to the pleadings. On behalf of the complainant Ex.A1 to A5 are marked. No documents are marked on behalf of the opposite party. Written arguments of the complainant filed. Oral arguments are also heard on behalf of the complainant. On behalf of the opposite party written arguments are not filed. Oral arguments are also not advanced. Perused the record.
The point for consideration the whether the complainant is entitled to return of documents and for compensation and damages as prayed for?
Point:
4. The case of the complainant is that in the year 1988 he availed M.T.L. loan from the opposite party by depositing original agreement of sale, approved building plan together with its map relating to the house of his mother bearing No. 1-9-45/A, Golconda Street, Medak town, and in the year 2001 he has cleared off the loan and obtained no dues certificate also, but the opposite party failed to return the above documents which were deposited by him at the time of obtaining loan, therefore this case is filed for return of the said documents and for compensation and damages. The opposite party admits that the complainant availed M.T.L. loan in the year 1988 on the security of documents relating to the house bearing NO. 1-9-45/A, Golconda Street, Medak town standing in the name of his mother and cleared of the loan in the year 2001 and no dues certificate was also issued. But the opposite party denies that the documents which were deposited by the complainant at the time of grant of the loan are not returned. According to the opposite party the documents are returned at the time of issuing no dues certificate itself.
5. The defence of limitation set up by the opposite party can not sustain because the complainant is not enforcing any rights under any documents. More over non return of documents is a continuing cause of action. Therefore this contention has no force.
In the circumstances stated above the only point that arises for consideration is whether the opposite party has proved return of the documents to the complainant or not.
The documents marked as exhibits on behalf of the complainant are:-
i). No dues certificate
ii). Acknowledgement given by the opposite party for receipt of the documents
iii). Office copy of representation of the complainant to R.D. O.
iv). Office copy of legal notice.
v). Letter from the office of the Banking Ombudsman to the complainant
As already stated above, no documents are marked on behalf of the opposite party.
In view of Ex. A2 there is clear evidence that the opposite party has received from the complainant on 28.03.1988 three documents relating to the house bearing No. 1-9-45/A, Golconda, Medak standing in the name of his mother. Further the opposite party admitted the receipt of the said documents from the complainant as security for M.T.L. Loan granted in favour of the complainant. According to the opposite party, on 31.03.2001 at the time of issuing no dues certificate i.e. Ex. A1, the documents were also returned. But the complainant denied the said version. Therefore under section 101 of the Indian Evidence Act the burden is on the opposite party to prove return of the said documents to the complainant. But the opposite party has not produced any evidence to prove its version that the documents were returned to the complainant. In the circumstances we are of the opinion that the complainant’s version that the opposite party has not returned the above said three documents to him, inspite of clearing the loan, is believable and hence it is held that the complainant is entitled for return of the said documents from the opposite party. The point is answered accordingly in favour of the complainant.
6. In the result the complaint is allowed directing the opposite party to return within one month the three documents mentioned in Ex. A2 namely viz. i) Sale deed dated. 19.09.66 on stamp paper wroth Rs. 2 /- un-registered. Ii).Municipal Council Medak permission to construct residential house No. 1-9-45/A, Golconda, Medak dated. 20.02.1984. iii). Approved map of the building which were acknowledged by the opposite party. The opposite party is further directed to pay to the complainant a compensation of Rs.5,000/- towards deficiency in service and for mental agony and to pay a sum of Rs.2,000/- towards costs of this litigation. The above amounts shall be paid within one month from today.
Typed to dictation, corrected and pronounced by us in the open forum this 22nd day of October, 2009.
Sd/- Sd/- Sd/-PRESIDENT LADY MEMBER MALE MEMBER
Copy to
1) The Complainant
2) The Opp.Parties
3) Spare copy copy delivered to the Complainant/
Opp.Parties On ___________
Dis.No. /2009, dt.
