Andhra Pradesh

Nellore

CC/73/2015

Anthony Shipping Shieh, son of late F.S. Sheih - Complainant(s)

Versus

The Sub Registrar, Registration Office - Opp.Party(s)

M.Leela Mohan

10 Mar 2016

ORDER

                                          Date of filing       :  07-07-2015

                                          Date of disposal  :  10-03-2016

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Thursday, this the 10th day of MARCH, 2016.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                           

                                 C.C.No.73/2015

 

1.Anthony Shipping Shieh

   Son of late F.S.Sheih

 

2.Nagaihsi Shieh,

   Wife of Anthony Shipping Shieh

    Both are Indian Christians,

   Aged about 54, aged 52, respectively,

   Resident of Door No.15/423, Subedarpet, Nellore-1.

   SPSR Nellore District, A.P.                                                  … Complainants

 

                      Vs.                                                                    

 

1.The Sub-Registrar,

   Registration Office,

   District Court Compound,Nellore-3.

 

2. The District Registrar,

    Registration Office,

    District Court Compound, Nellore-3.

 

3. The Deputy Inspector,

    General of Registrations and Stamps Dept.,

    A.P.I.E., Nellore. SPSR Nellore District. A.P.                             …   Opposite parties

 

This matter coming on 10-03-2016   before us for final hearing in the presence of Sri M.Leela Mohan,  Advocate for the complainant and  the  opposite parties 1 to 3 were remained absent and having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU,PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

   This complaint is filed by the complainants against the opposite parties        1 to 3 to direct them to include the sale transactions dated 10-09-2007 bearing document no:16074/2007 and its particulars in favour of them in all computers net work and to seek that the same is duly reflected in the encumbrance certificate so as to enable confidence in the mind of the prospective purchasers that the sale is genuine and it is duly registered in accordance with law; to direct them to pay a sum of Rs.2,00,000/- towards causing of the mental agony to the complainants; to direct them to pay a sum of Rs.2,00,000/- towards monetary loss caused by them for non-entry of the sale transactions in the caused by them for non-entry of the sale transactions in the registration records and as the complainants could not sell their property on account of the same and also to pay the costs of the complaint and pass such other reliefs or reliefs as the Hon’ble Consumer Forum may deemed it fit and proper in the circumstances of the case in the interests of justice.

 

The factual matrix leading to filing of this consumer case is as stated as hereunder:

I(a) It is the case of the complainants that they are together had purchased immovable property which is situated at ward no:24, Dargamitta, Nellore Bit-I under a registered sale deed dt.10-09-2007 from one Mrs.Vijayalakshmi R.Bailal wife of Dr.Jagadeesh Rao, a resident of Chennai bearing document no.16074/2007.  The above said transaction was completed by the 1^st opposite party’s office and the said services were rendered on payment of stamp duty and fee to the 1^st opposite party as per the Registration Act in accordance with Law.  So, all the formalities required were complied with and further it is the case of the complainants that as stated in 5^th para of their complaint that in the year, 2015 during the January they were intended to sell away their property with an idea to purchase another property of their choice. As the matter stood thus, the prospective purchasers were being satisfied with the title deed obtained an “encumbrance certificate” from the 1^st opposite party on payment of requisite fee and found that the name of the complainants or the details of the purchase of the sale deed dated 10-09-2007 was not duly entered and incorporated in the records of the 1^st opposite party’s office which was duly registered. So,the transaction on the name of the purchasers i.e., complainants was not found in the “encumbrance certificate” and prospective purchasers of the property has not come forward due to the non-entry of the transaction in the registration record of the 1^st opposite party’s office and hence complainants were unable to obtain loans due to the deficiency of service of the opposite parties in subsequently prices of the property concerned were also decreased day by day.  Because of that, the complainants were suffered mentally very much.

(b)It is also further submitted by the complainants in para-8 at page no.3 of their complaint that they were estimated the mental agony suffered  at Rs.2,00,000/- and monetary loss also for Rs.2,00,000/- and they prayed for a direction against the opposite parties to duly enter the sale transaction relating to the above said sale deed dtd.10-09-2007 in computers as well as manuals which are maintained by the opposite parties and treat their sale deed as one fully qualified in the eyes of the general public and render the service of the registration which are contemplated under the Registration Act. The registration of the document is a general notice to the entire public.  It gives legal status and it is evidence only the encumbrance certificate.  Thereafter, the complainants had caused registered notice to all the opposite parties setting out facts for a remedy and complaining their non-services and though they had received the requisite registration stamp and fees.  The opposite parties 2 and 3 had acknowledged the notices.  But, they have not complied with the said demand since more than 2months and hence the complaint is for deficiency in service by the 1^st opposite party towards the complainants in this regard. 

( c )  It is also further submitted by the complainants that in para-7 at page no.3 of their complaint that there are causes of action mentioned in it and they may be read as part and parcel of the complaint and sought for reliefs as prayed for.  Hence, the complaint.

II. NO DEFENCE:

      As there was no response from the above said opposite parties by way of filing of written version as such. They are continuously absent inspite of several adjournments of the case granted by the Forum from time to time as the case may be.

III. The complainants have filed their chief affidavit as evidence on 24-11-2015 and marked their documents as Exs.A1 to A6.   The complainants have filed their written arguments of the case on 27-01-2016 in support of their case.

IV.   Basing on the material available on the record, the points that arise for consideration namely:-

(a) Is there any deficiency in service on the part of the opposite parties towards the complainants?

(b) Whether the complainants are entitled to get the reliefs as

     prayed for, if it is so, to what extent?

          (c) To what relief?

V.  POINTS 1 AND 2:

     In view of these two points are inter-related and depends on each other, they have been taken up together for discussion and determination of the case.  The complainants have once again reiterated the facts of the case, basing on the complaint, affidavit and documents filed herein.  It is nothing but repetition of them once again in their complaint.

Oral Submissions by the learned counsel for the complainants:

         Sri M.Leela Mohan, the learned counsel for the complainant has vehemently argued that the complaint, affidavit, documents and written arguments of the complainants may be read as part and parcel of his oral arguments. He has also further argued that the above said “encumbrance certificate” is not contained sale deed particulars of the complainants dated  10-09-2007 and same is not yet feeded in 1^st opposite party’s computer networks, inspite of requisite fee paid by the complainants.  He has also further contended that the complainants had demanded the 1^st opposite party’s office to issue the copy of the proceedings complying due records of the sale deed in their records and sent intimation to the municipal authorities and so that they may comply the mutation.  The amount of Rs.100/- was already collected for service charges.  Finally, the said learned counsel for the complainants has prayed that for compensation on the grounds of mental agony and their sufferings and they are entitled to get costs from the opposite parties and sought for reliefs as prayed for.

Forum’s Findings and observations

       Heard, the learned counsel for the complainants and perused the record very carefully. The nature of liability under the C.P.Act, 1986 is not strict liability but fault liability. The complainants have also filed their chief-affidavit evidence to establish the case.  Each case has to be judged on its own facts. 

     The first and foremost question for consideration is, whether the 1^st opposite party has acted legally or not, in responding to the demands made by the complainants.  The encumbrance certificate which was issued by the 1^st opposite party’s office to the complainants do not find place the particulars of the sale deed and those details were not yet take place in their computers networks.  The mistake of 1^st opposite party’s office in doing so and not yet corrected and the same was pointed out by issuing a notice dated 12-03-2015 by the learned counsel for the complainants and the said notice may be read as part and parcel of the contentions made by the complainants.   The learned counsel for the complainants have urged that the 1^st opposite party’s office is duty bound to computerize the transactions of registered sale deed and show it in the encumbrance certificate as of their duty.  The services by the 1^st opposite party’s office are not rendered free and the said service is also statutory duty and the complainants are of the victims of the 1^st opposite party.   Finally, he has further contended that registry of the documents is compulsory under section 17 of Registration Act and the same is general notice to the public.  The non-inclusion of the complainants name in the encumbrance certificate is the failure of service on payment made and sub-registry had failed to render the consumer service and exposed itself to all the penal consequences.  The sub-registry is also liable under the Principle Act and they are not rendering service to its customers as contemplated under the Registration Act of 1908.  The complainants have waited for several years and suffered in the hands of registration department.  Ex.A2 is the legal notice dated 12-03-2015 issued on behalf of the complainants by the learned counsel for the complainants to the opposite parties.  It is clear that demands set out in the notice addressed to the opposite parties, is abundantly a caution to them to correct themselves in rectifying their mistakes but for the reasons best known to them, they had kept quiet even in not replying the above said notice.  It means that it is their sheer negligence and deficiency in service on the part of the opposite parties towards the complainants.  According to the C.P.Act, 1986, service provider must be careful and caretaking to its customers. Here, is the case decided by the Hon’ble National Commission on this point and it is as follows:  

      In the case of Joint Sub-Registrar, District Registrar Office Vs.T.M.T.Maragatham, 2007 CTJ 728(NC) =2007(2) CPJ72), the Hon’ble National Commission held that though issuing of encumbrance certificate was statutory  function, it was also a service within the meaning of Section – 2(1)(o) of the Act and a complaint would be maintainable before Consumer Forum.  An encumbrance certificate is required to contain a complete list of encumbrances affecting a particular immovable property and any errors committed by the Registrar in the certificate would amount to deficiency in service or negligence in discharge of duty.  We are relying on the ratio of the above said decision and it is applicable to the facts of the case on hand.  

     The Forum will not sit and become spectator of the situation and it will act accordingly to punish the wrong doer.  Adverse inference against a party is usually to be drawn during the course of trial, if he deliberately abstains from adducing better evidence, which he is in a position to adduce.  It is not correct to say that keeping mum without disclosing required particulars of complainants by the 1st opposite party for which it received fee from him and demand also made through notice to that effect.  Sometimes, onus or burden shifts on the opposite parties to prove themselves that they are without blemish under the circumstances of the case.

 Compensation: Meaning and Object:-

     The “Rule of Law” requires that wrongs should not remain and un redressed.  All the individuals or persons committing wrongs should be liable in action for damages for breach of Civil Law or for criminal punishment.  The “compensation” means anything given to make things equivalent, a thing given or to make amends for loss, recompense, remuneration or pay; it need not, therefore, necessarily be in terms of money.

      The Sub-Registrar i.e., 1^st opposite party is ought to have taken into account the pleas of the complainants after receiving the above said notice dt.12-3-2015(Ex.A2) but for the reasons best known to 1^st opposite party, unanswered.  We do not know whether the 1^st opposite party had issued at any time an encumbrance certificate to the complainants because the 1^st opposite party did not appeared before the Forum to answer the allegations of the complainants. The complainants are also filed encumbrance certificate issued by the 1^st opposite party before us. (which is unmarked document)

 

LOSS MUST BE COUPLED WITH NEGLIGENCE:

          Loss signifies some detriment or deprivation or damage.  “Injury” also means any damage or wrong.  It means invasion or any legally protected interest of another.  It must be coupled with negligence.  The term “negligence” means absence of a reasonable or prudent are which a reasonable person is expected to observe in a given set of circumstances.

         So, in view of above mentioned aspects of Law, we can presume and assume that definitely there is lot of deficiency in service and also negligence on the part of the opposite parties towards the complainants.

         Having received the fee for furnishing the details of the particulars of sale transactions dated 10-09-2007 bearing document no:16074/2007 and thereafter the 1^st opposite party had kept quiet without giving any answer to the complainants. It amounts to clearly that deficiency in service and negligence on the part of the opposite parties towards the complainants.

         After having scanned the entire material on record and considered the complainants submissions in the light of well-settled legal principles, we are of the clear opinion that this consumer case is a fit case to award compensation of Rs.20,000/- to the complainants and also they are entitled to get Rs.3,000/- costs of the complaint.  The complainants have brought the case in detail and concerned documents are clearly proved their case.  Mental agony cannot be measured in terms of money.  There is a deficiency in service and negligence on the part of 1st opposite party towards the complainants.  The Sub-Registrar’s office must provide required information to all the consumers who are approached to it.  These two points are held in favour of the complainants and against the opposite parties 1 to 3, accordingly.

 

POINT NO.3: In the result, the complaint is allowed ordering the opposite parties 1 to 3 jointly and severally liable to pay Rs.20,000/- (Rupees twenty thousand only) to the  complainants as compensation for their mental agony caused to them; and also ordering them to include sale transactions         dt.10-09-2007 bearing document no.16074/2007 and its particulars in their favour in computers Network and it shall be reflected in the encumbrance certificate for all practical purposes and also to pay Rs.3,000/- (Rupees three thousand only) as costs of the complaint within one month from the date of receipt of the order, accordingly.

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 10th day of MARCH,              2016.    

 

             Sd/-                                                                             Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANTS:

 

PW1

24-11-2015

:

Anthony Shipping Shieh son of F.S.Shieh, Indian Christian, Dentist, aged about 54 years, residing at 15/423, Subedarpet, Nellore-1, SPSR Nellore District, Andhra Pradesh.

 

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

:

NIL -

                                                                               

EXHIBITS MARKED FOR COMPLAINANTS:

 

Ex.A1	10-09-2007	:	Photostat copy of registered sale deed.
Ex.A2	12-03-2015	:	Copy of legal notice got issued to the opposite parties by the complainant’s advocate.
Ex.A3	13-03-2015	:	Registered Post receipts (3 in nos.)
Ex.A4	14-03-2015	:	Acknowledgement from the  2nd opposite party.
Ex.A5	10-09-2007	:	The Photostat copy of the sale deed along with Photostat copies of PAN cards.
Ex.A6	10-12-2015	:	Eenadu Paper publication

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                      

 

			NIL -

 

         Id/-                                                                                                  PRESIDENT(FAC)

 

 

Copies to:

 

1. Sri M.Leela Mohan, Advocate, D.No.10/3/457, Sree Gayatri Nilayam, Kamakshi Nagar, Anicut Road, Santhapet, Nellore-524 001.
2. The Sub Registrar, Registration Office, District Court Compound,Nellore-3.

     3) The District Registrar, Registration Office, District Court Compound, Nellore-3.

     4) The Deputy Inspector, General of Registrations and Stamps Dept., A.P.I.E.,

          Nellore,SPSR Nellore District. A.P.

          

 

Date when order copies are issued: