DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 29^th day of November  2012 

Present : Smt.Seena.H, President

            : Smt.Preetha.G.Nair, Member

            : Smt.Bhanumathi.A.K, Member                 Date of Filing : 07/08/2012

CC No.151/2012

A.Radhakrishnan,

S/o.Late Lakshmanan Nair,

Ellan Villa,

Near Civil Station, Koppam Amsom & Desom,

Palakkad Taluk.                                             -        Complainant

(By Adv.V.K.Venugopalan) 

Vs
 

1.The Palakkad Co-operative Urban Bank Ltd.,

   No.F997, HO.Court Road,

   Palakkad – 678 001

   Rep.by Ramdas.P.G.

   General Manager

(By Adv.A.V.Ravi)

 2.The Secretary,

    Palakkad Co-operative Urban Bank Ltd.,

    Puthur Branch, Palakkad

(By Adv.A.V.Ravi)

3.Visruthakumar,

   S/o.Kutty Krishnan Nair,

   Proprietor,

   Charutha Buildings,

    Puthur, Palakkad.                                     -        Opposite parties

O R D E R

By Smt.PREETHA G NAIR, MEMBER

The complainant was in title and possession to the properties of 20 cents of  land in survey No.1171/2, Ward 2, Block 27 of Palakkad II Village, which was sold to 3rd opposite party for construction of flats in it. 3rd opposite party had availed loan from 2nd opposite party for mortgaging the properties. The complainant had advanced an amount of Rs.8,00,000/- to purchase a flat in the apartment building to be constructed by the 3rd opposite party. The 3rd opposite party failed to make construction as promised.

The complainant filed suit against 3rd opposite party for  realisation of the sum and in the execution proceedings, the properties were bid in auction by the complainant for a sum of Rs.28,00,000/-. The sale was confirmed and sale certificate was issued to the complainant on 19/09/08. The property was ordered to be delivered by the Hon’ble Court on 3/09/2009. The property was delivered to the complainant on 13/02/12 by the Amin deputed by Court.

The complainant settled the dues towards other creditors of 3rd opposite party also. 2nd opposite party preferred to file suit for injunction before the Munsiff Court, when the complainant started demolition of the building in the property stating that the properties stands attached in arbitrations proceedings and as such not to alter the physical features of the suit property. The Bank also approached the complainant and offered a full and final settlement for an amount of Rs.38,49,000/-.

Then the complainant issued a letter dated 23/3/12 agreeing to discharge the liability of 3rd oppoiste party and requesting for delivery of all the documents of the title relating to the properties. On 26/3/12 the 1st opposite party issued a letter assuring the complainant that the benefit of OTS Scheme will be given to the loan account if it is paid on or before 31/3/12. It is also undertaken that a certificate to the effect that the complainant paid the entire loan amount in full, satisfaction will be duly issued. Also undertaken  that the documents in respect of the properties will be kept in the safe custody of the Bank until otherwise directed by a competent authority / Court to release the same to the complainant. The complainant remitted the entire amount of Rs.38,49,000/- on 27/3/12 itself and submitted a letter to deliver the title deeds.

On 5/6/12 complainant issued a letter to the Joint Registrar                 Co-operative Society for return of documents. On 16/7/12 the Joint Registrar ordered that the loan in the name of 3rd opposite party is finalized as closed by virtue of resolution dated 12/4/12 of the Board of Directors and attachment raised. Thereafter the complainant issued a letter to the 1st opposite party for release of the documents in respect of the properties to the complainant on executing a proper receipt. The 1st opposite party preferred a reply that the documents will be returned to 3rd opposite party only. The matter is in the knowledge of 3rd opposite party as served with notices in the legal proceedings before Civil Courts and he failed to attempt to resist it. Denial to deliver the title deeds to the title holder  who paid the entire liability is a clear deficiency in service from the side of the Bank. Hence the complainant prays an order directing the opposite parties to

1.    Delivery of the title deeds in respect of the properties deposited by the 3rd opposite party in mortgage loan No.ML182 and

2.    Pay the cost of the proceedings and

3.    Pay Rs.95,000/- as compensation for the mental agony.

1st and 2nd opposite parties filed version stating the following contentions. It is admitted that the 3rd opposite party has availed loan from them and it was over due for a quite long time and the 3rd opposite party is a willful defaulter to opposite party bank as he has miserably failed to repay the loan amount. When the complainant started demolition of the building constructed in the property,  the 1st and 2nd opposite parties approached Munsiff Court and obtained an injunction. It is also admitted that the loan amount in respect of the loan availed by 3rd opposite party has been repaid by the complainant and a receipt was also issued to him. Since the property was mortgaged with the opposite party bank by the 3rd opposite party, they had no powers or right or privilege to hand over the documents in respect of the property to the complainant.

Whether the complainant has obtained certificate of purchase etc., in respect of the property is not known to 1st and 2nd opposite parties because they were not in the party array during the proceedings before the Hon’ble Sub Court. Even though the loan amount availed by the 3rd opposite party has been  repaid by the complainant, the documents pertaining to the property has not been returned to him since the  1st and 2nd opposite parties have no such right confered upon them under the prepositons of law. However the amount has been repaid by the complainant on behalf of the 3rd opposite party and the entire loan amount has been closed. The allegation that the opposite parties   1 & 2 promised to consider the issue in favour of the complainant is incorrect and there was no promise from the side of them. The 1st and 2nd opposite parties are unaware of the sale certificate issued by the Sub Court in favour of the complainant.

The opposite parties 1 & 2 are quite unaware of the sale certificate issued by the Sub Court in favour of the complainant and also unaware whether the complainant is having charge on the property and he had absolute marketable title over the property.

The 1st and 2nd opposite parties have no right or powers vested with them as to hand over the documents to the complainant. The complainant will not come under the definition of a consumer under the Consumer Protection Act. There is no deficiency in service on the part of opposite parites 1 &2. Hence the oppostie paries 1 & 2 prayed that dismiss the complaint with cost.

3rd opposite party absent and was set exparte.

Complainant and 1st and 2nd opposite parties filed their affidavits. Ext.A1 to A12 marked on the side of the complainant.  Matter heard.

Issues to be considered are;

1.    Whether the complainant is a consumer under the Consumer Protection Act ?

2.    Whether there is any deficiency in service on the part of opposite parties? 

3.    If so, what is the relief and cost?

Issue No.1  

We perused relevant documents on record and heard from both sides. Admittedly the complainant paid the entire loan amount on behalf of the 3^rd opposite party to opposite party bank. It is evident from Ext.A6 that the complainant paid an amount of Rs.38,48,919/- to 2^nd opposite party. No objection raised by the opposite parties 1 & 2 to marking of Ext.A6 document. Also 3^rd opposite party was absent and set exparte. Opposite parties 1 & 2 admitted that the loan amount availed  by the 3^rd opposite party has been repaid by the complainant and the property was mortgaged by the 3^rd opposite party.  As per Ext.A3  letter dated 26/3/12 to the complainant the 1^st opposite party stated that the bank has no objection to pay the loan outstanding in the name of Mr.Visruthakumar as per loan No.182 and the benefit of OTS scheme will be given to the loan account if the amount is paid on or before 31/3/2012. Under Section 2(1) (o) of the Consumer Protection Act, banking comes under the definition of service. So the complainant is a consumer under the Consumer Protection Act. Hence 1^st issue answered in favour of the complainant.

Issue No.2 & 3

Admittedly the 3^rd opposite party has availed a loan facility from the 1^st and 2^nd opposite parties for which he has deposited the title deeds.

3^rd opposite party not filed version and affidavit. Opposite parties 1 & 2 stated that they had no power or right or privilege to hand over the documents in respect of the property to the complainant. But the opposite parties had not produced evidence to show that they had no right to hand over the documents to the complainant. Opposite parties 1 & 2 argued that there is no evidence to the fact that there are some transactions in between the complainant and them. As per Ext.A3 copy of letter dated 26/3/12, 1^st opposite party stated that the bank has no objection if the complainant is ready to pay the loan outstanding in the name of 3^rd opposite party as per loan No.182  and the benefit of OTS scheme will be given to the loan account if the amount is paid on or before 31/3/12. Thereafter the complainant paid the loan amount to the 2^nd opposite party on 30/3/12. The complainant produced  the original documents at the time of marking of documents and verified and returned the original documents.

As per Ext.A1 the property  of 3^rd opposite party in Survey No.1171/1,2, 1172/1 0.1496 Hectre was ordered to be delivered by the Sub Court, Palakkad. As per Ext.A5 letter dated 30/3/12 1^st opposite party stated that 3^rd opposite party mortgaged the property of 20 cents in survey No.1171/2, Ward No.2, Block 27 and the complainant closed the loan. In Ext.A8 copy of order by the Joint Registrar (General) stated that “the attachment order passed and effected against the properties of Sri.Visruthakumar are cancelled and raised.” Consequently the bank does not have any right or claim over the properties of Sri.Visruthakumar.

Thereafter the complainant sent a letter dated 23/7/12 to 1^st opposite party requesting to hand over the original title deeds / documents deposited to the Bank by 3^rd opposite party while availing the loan. But 1^st opposite party sent a reply letter dated 26/7/12  stating that the property has been mortgaged with the bank by Visruthakumar to avail loan facility. So even if the entire loan is closed the documents can be returned to Visruthakumar only as it was mortgaged by himself.

The opposite parties had not produced evidence to show that they had taken steps to hand over the original documents to 3^rd opposite party.  After filing the complaint notice issued to 3^rd opposite party.  Notice returned with endorsement that ‘left’. Thereafter complainant has filed application for substituting service against 3^rd opposite party.  Application allowed and the paper publication produced. 3^rd opposite party absent and was set exparte.  3^rd opposite party has not filed version and affidavit.  The opposite parties had not produced evidence to show that 3^rd opposite party approached them to settle the loan.

As per Ext.A11 the complainant produced the copy of tax receipt dated 16/5/12 mentioned that Survey and Sub division  No.2/27, 1171/1,2, 1172/1  37 cents of property. As per Ext.A12 the copy of possession certificate dated 21/02/12 stated that the complainant is under the possession and enjoyment of property of old Survey No.1171/1,2,  1172/1 pt. of 37 cents vide order in O.S.110/02, EP 107/66, EA 13/09, EA 498/12 of Sub Court, Palakkad. So the complainant is the present owner of the property in Survey No.1171/1,2 1172/1 pt. of 37 cents.

3^rd opposite party has mortgaged with opposite parties 1 & 2 to avail the loan of property in 20 cents of 1171/2 as per Ext.A8.  As per Ext.A8 the bank does not have any right or claim over the properties of 3^rd opposite party.  Also 3^rd opposite party has not produced any contradictory evidence. According to the opposite parties 1 & 2 the documents can be returned to 3^rd opposite parties only as it was mortgaged by himself. The 1^st and 2^nd opposite parties had not produced evidence to show that the documents can be returned to 3^rd opposite party only. On the available evidence the complainant is the present title holder in possession to  the property of 37 cents in Survey No.1171/1,2 & 1172/1 pt. as per Sale Certificate and delivery obtained from Sub Court, Palakkad and also he paid the entire loan amount of 3^rd opposite party to 1^st and 2^nd opposite parties.

In the above discussions we are of the view that there is deficiency in service on the part of opposite parties 1 & 2. In the result complaint partly allowed.

The original documents was in the custody of 1^st and 2^nd opposite parties.  The complainant has not prayed any relief from 3^rd opposite party. So 3^rd opposite party was exonerated. We direct opposite parties 1 & 2 to return the original title deeds in respect of the properties deposited by 3^rd opposite party in Mortgage Loan No.ML182 within 10 days from the date of receipt of order, failing which opposite parties 1 & 2 liable to pay  an amount of Rs.15,000/- (Rupees Fifteen thousand only) as compensation to the complainant. Also directed to pay Rs.1,000/- (Rupees One thousand only) as cost of the proceedings.

 Order shall be complied within two months from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.      

Pronounced in the open court on this the 29^th day of November  2012.

    Sd/-

Seena.H,

President

    Sd/-

Preetha.G.Nair,

Member

    Sd/-

Bhanumathi.A.K,

Member 

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 – Photocopy of  Sale certificate issued in the name of complainant

             dtd.19/9/08 by Sub Court, Palakkad

Ext.A2 – Photocopy of Notice dated 23/3/12 issued by the complainant to the

            1^st and 2^nd opposite party

Ext.A3 – Photocopy of reply notice dated 26/3/12  from 1^st opposite party

Ext.A4 – Photocopy of   notice dated 27/3/12 issued by complainant to 1^st

             opposite party

Ext.A5 – Photocopy of reply notice dated 30/3/12  from 1^st opposite party

Ext.A6 – Photocopy of receipt dated 30/3/12 issued to the complainant by the

             2^nd opposite party

Ext.A7 – Photocopy of notice dated 5/6/12 issued to Joint Registrar demanding

             raising of attachment and release of document

Ext.A8 – Photocopy of order of Joint Registrar dated 16/7/12  issued to the

            complainant

Ext.A9 – Copy of notice dated 23/7/12 issued by the complainant to the 1^st

            opposite party

Ext.A10 – Photocopy of reply notice dated 26/7/12 from 1^st opposite party to

              the complainant

Ext.A11 – Photocopy of basic tax paid receipt dated 16/5/12  issued to the

              complainant

Ext.A12 –Possession Certificate dated 21/2/12 issued to the complainant

Exhibits marked on the side of the Opposite party

Nil

Cost