IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 28th day of September, 2017
Filed on 21.01.2017
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier(Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.21/2017
between
Complainant:- Opposite Parties:-
Sri. Iype Chandapilliai The Mavelikara Primary Co-operative
S/o Kottapurath Iype Agriculture & Rural Development Bank
Chandapillai, Aged 63 years Ltd, No. A-836
Kottappurathu Veedu Alappuzha
Chennithala.P.o, Alappuzha
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The father of the complainant had availed a loan from the opposite party bank under the Agriculture scheme and created mortgage over property by depositing title deeds with the opposite party bank. Upon the demise of the complainant’s father, the right title and interest over the property described in the complaint vested with the complainant. The original of the title deed bearing No.749 of 1971 on the file of Mannar SRO was deposited with the Opposite party Bank ( original document of tile relating to 4.500 Acres of land pertaining to the immovable properties comprised in old survey No. 352/1, 353/3, 350/9, B/1, 340/5, 340/4 & 340/3 Resurvey no. 204/14, 204/13, 200/6 & 200/1 in Block No. 11 of Thriperunthura Village under T.P Account No. 1357) along with the original of the prior title deed, encumbrance certificate and other related documents pertaining to the subject matter were also entrusted with the opposite party bank. Though the loan was closed by paying excess amount demanded by the opposite party, the original title deed relating to the subject matter had not yet been returned to the complainant. That the complainant approached the opposite party on several occasions. It is submitted, despite being approached the opposite party with a view to get back the original title deed, all attempts made in this behalf ended in wild goose chase. The opposite party’s wrongful action has resulted in untold agony to the complainant. The loss sustained by the complainant in the matter cannot be equated in terms of money. The complaint modestly estimate the damages at Rs.5,00,000/- The opposite party is liable to pay the said amount of Rs. 5,00,000/- with interest. Alleging deficiency in service on the part of the opposite party the complaint is filed.
- Version of the opposite party is as follows:-
The complaint is not maintainable. The complaint is hit by section 69 &100 of the Kerala Co-operative Societies Act and Rules. The father of the complainant had originally availed the undernoted loans from the opposite party bank and created mortgage over the property by depositing the title deed with the opposite party bank. During the currency of the said mortgage the mortgagor, the father of the complainant died and the legal heirs of the mortgagor filed suits before the Sub Court Mavelikkara with respect to the properties mortgaged to the opposite party which are numbered as OS Nos. 238 of 2016 and 106 of 1998. In the said suits the sub court Mavelikkara issued summons to the opposite party to produce the documents. Accordingly the opposite party produced the title deeds except the cancellation deed No. 429 of 1991. Hence it is most respectfully submitted that the title deeds deposited by the father of the complainant were produced before the court of law in compliance with the summons. The opposite party is in custody of the cancellation deed No. 429 of 1991. It is submitted that the opposite party is not in possession of the deeds mentioned in the complaint. The complainant and other legal heirs of late Iype Chandapilla are fully aware of the release of the documents under the custody of the opposite party. The complainant told the opposite party that the deeds were misplaced from the court records. Being so, the opposite party represented to the complainant that they would arrange certified copy of the said deed together with a certificate from the authorized signatory of the bank regarding the loss of the original in transit while the same was in the custody of the Bank. No case amount was not collected from the complainant by opposite party. There is no deficiency in service entired the opposite party.
3. Complainant was examined as Pw1; the documents produced were marked as Ext.A1 to Ext.A8 series. Opposite party produced 2 documents which were marked as Ext.B1 and Ext.B2.
4. Points for consideration are:-
1)Whether the complaint is maintainable?
2)Whether there is any deficiency in service on the part of the opposite parties?
- If so the reliefs and costs
5. Point. No.1:-
The first contention raised by the opposite party is that the complaint is hit by section 69&100 of the Co-operative Service Act and Rules and hence complaint is not maintainable. This opposite party bank is registered under the Kerala Co-operative Societies Act and the alleged dispute is one enumerated under section 69 of the said Act. As per the provisions of the Kerala Co-operative Societies Act, if there is any dispute, the same is to be resolved by referring to the Registrar for Arbitration. The Kerala Co-operative Societies Act is applicable to the customers of the opposite party bank, whereas the consumer protection Act is applicable to consumer at large. Therefore, as against the Consumer Protection Act, the Kerala Co-operative Societies Act is a special Act and would prevail over the Consumer Protection Act. For dealing with the above arguments, Section3 of the Consumer Protection Act, 1986 is required to be considered.’ Act not in derogation of any other law- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force’. Consumer Courts have jurisdiction to try and entertain such complaints in view of the decision of the Apex Court in the case of Secretary, Thirumurugan co-operative Agriculture Society vs. M. Lalia reported in 1(2004) CPJ1 (SC)=I (2004) SLT 200=2004(1) SC 305 in which it has been held that, “Co-operative Societies Act does not oust the jurisdiction of Consumer Forum to adjudicate upon dispute between members and Co-operative Society. Consumer Protection Act, 1986 should be interpreted broadly, positively and purposefully having to the additional extended jurisdiction conferred under Section 3.” In the view of the above discussion complaint is found maintainable.
6.Point.No.2:-
It is an admitted fact that the father of the complainant had originally availed a loan from the opposite party bank and created mortgage over the property by depositing a title deeds with the opposite party bank. The opposite party admitted in the version that the said title deeds were not in their custody.
According to the complainant even though the loan was closed the original title deeds had not been returned to him by the opposite party. The documents produced by the complainant marked as Ext.A1 to Ext.A8 series. Ext.A2 series receipt issued by opposite party to the complainant which shows that the loan transaction was closed by the complainant. Ext.A5 is letter dated 27/3/2015 issued by the opposite party to the complainant also shows that all the liabilities cleared off by the complainant.
In the version it is admitted by the opposite party that the title deeds deposited by the father of the complainant were produced before the civil court in compliance with the summons issued against them. In Ext.A5 letter opposite party stated that they will start necessary arrangements to settle the case and return the documents which submitted before the court and whenever which is received from court they will inform him for collecting documents from the bank. So far the documents had not been returned to the complainant.
In the decision reported in R.P.No.3800 of 2014 Indian Oversease Bank Hydrabad vs. K. Bal Reddy and others, it was held that on account of loss of title deed there would be erosion in the re-sale value of the property. Hence the opposite party bank is liable to pay the compensation to the complainant because the value of property is bound to be affected if the original title deeds had been lost. In the version the opposite party bank stated that they represented to the complainant that they would arrange certified copy of the title deeds together with certificate from the authorized signatory of the bank.
7. From the above discussion we are of opinion that the failure on part of the opposite party in returning original title deeds to the complainant even after closing the loan amount amounts to deficiency in service and opposite party is bound to pay compensation to the complainant.
In the result, complaint is allowed. Opposite party is directed to give compensation of Rs.1,00,000/- (Rupees One lakh only) to the complainant. Opposite party is directed to publish the public notice in any of the prominent Malayalam daily malayala manorama or mathrubhumi regarding the irrecoverable loss of title deeds. The expenses for the publication shall be paid by bank, that should be done within 30 days from the date of receipt of this order otherwise it will carry penalty or Rs.100/- per day till need full is done. Bank will get certified copy of the title deeds and link documents with the help of the complainant and all expenses shall be borne by the bank. Complainant will approach them within the period of 15 days from the receipt of this order and the needful should be done within 60 days and other wise penalty of Rs.100/- per day shall be imposed upon the bank. The opposite party is directed to give Rs. 2000/- towards cost of the proceedings to the complainant.
Dictated to the Confidential Assistant transcribed by him corrected by me and pronounced in open Forum on this the day 28th September 2017
Sd/-Smt.Elizabeth George (President) :
Sd/-Sri. Antony Xavier(Member) :
Sd/-Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
Pw1 - Iype chandapilliai(Witness)
Ext.A1 - Cash Receipt
Ext.A 2 - Receipt
Ext.A3 - Circular
Ext.A4 - Copy of arbitration
Ext.A5 - Letter dtd. 27-3-2015
Ext.A6 - Letter dtd. 27-3-15
Ext.A7 - List of documents
Ext.A8 series - Copy of letters
Evidence of the opposite parties:-
Ext.B1 - Copy of letter dtd.09/7/17
Ext.B2 - Copy of execution petition
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- br/-
Compared by:-
