BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 31st MARCH 2016
COMPLAINT NO.137/2012
(Admitted on 28.04.2012)
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
BETWEEN:
Ramakrishnan Nair,
S/o. Kunhiraman Nair,
Aged about 74 years,
R/a. Guthigar, Nadugal Post,
Kanathota House,
Nalkuru village, Sullia Taluk,
Karnataka State. …….. COMPLAINANT
(Advocate for the Complainant: Sri. K.S. Namlur)
VERSUS
The Sullia primary Co-Op
Agri and Rural Development
Sullia, P O Sullia, Dakshina Kannada,
Karnataka State, Pin Code 574 239
Represented by its Manager. ……. OPPOSITE PARTY
(Advocate for the Complainant: Sri. Thimmayya.P.)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act 1986, wherein the complainant alleges deficiency in service as against the Opposite party claiming certain reliefs.
The brief facts of the case are as under:
The complainant is the absolute owner of the agricultural immovable property situated in Sy No. 167/1 and 167/2 of Nalkuru village. It is stated that complainant obtained loan from the Opposite Party for the purpose of his agriculture on 07.04.1988 on the charge of his aforesaid immovable properties by depositing the title deed relating to the aforesaid property i.e. sale deed dated 03.12.1979 registered as document number 266/1979 in the office of sub registrar Sullia with the Opposite Party. That the complainant has repaid the entire loan amount along with interest to the Opposite Party in the year 2004. Even thereafter the Opposite Party has failed to return the aforesaid title deed of the complainant, in-spite of the repeated requests and reminder.
It is stated that the complainant is ready and willing to repay the said amount but the complainant has been intimated by the Opposite Party that the original title deed is misplaced and hence the complainant has issued a legal notice to the Opposite Party to return the original title deed but the Opposite Party not returned the title deed till this date, hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to return the aforesaid original title deeds to the complainant along with compensation and cost of the proceedings.
II. 1. Version notice served to the opposite party by R.P.A.D. The Opposite Party appeared through their counsel filed version denied that the title deed has been misplaced etc., The Opposite Party stated that the complaint is premature as the complainant is not discharged entire loan for return of sale deed. And again it is stated that complainant is bad for non-joinder of necessary party. It is stated that the Opposite Party is lending money financed the by the KSCARD Bank Mangalore and submitting the original records submitted by the borrower to him. The KSCARD Bank is returning the original records after discharge of the loan. It is stated that Opposite Party has sanctioned loan on the security of the immovable property by creating mortgage by deposit of title deed of sale deed belong to the complainant. On the security of the property the KSCARD financed to the Opposite Party and hence entire original documents submitted to them.
It is stated that in the year 2000 the complainant again applied for grant of loan by depositing title deed and it has been settled on 07.12.2004 and the complainant taken the original document on 19.02.2005.
The Opposite Party has written letter to the KSCARD Bank before tracing the original document the complainant approached the Opposite Party and requested he needs endorsement for obtaining loan from other bank. Hence on 07.03.2005 the Opposite Party issued certificate stating that the original document is misplaced.
In the year 2005 the complainant approached Opposite Party with a request stating that he require loan of rupees 99,000/- for improvements of Arecanut garden and Rs. 47,880/- for terracing the Rubber by producing original Sale Deed document No. 265/1979-1980 dated 03.12.1979 and requested to sanction loan. Then the opposite party told the land mentioned in this document is not sufficient for sanction the loan. Then complainant requested to sanction loan on security of misplaced document also. Hence after obtaining the Certified copy of the Sale Deed document No. 266/1979-1980 dated 03.12.1979 the opposite party sanctioned the loan to the complainant and submitted it to KSCARD Bank.
That the KSCARD Bank on receipt of the loan papers of the complainant financed a sum of rupees 47,880/- for terracing and rupees 99,000/- in total 1,46,880/- and same is paid to the complainant as per loan account No. 212/2004-2005 on 30.03.2005. The term for repayment of loan amount of rupees 99,000/- is 11 year that is on before 30.03.2016 and for repayment of loan amount of rupees 47,888/- is 12 years that is on or before 30.03.2017 and both loans are pending now.
It is stated that the earlier Manager Channappa Gouda was retired in the month of February 2011 and one Mr. Balakrishna took in charge of Manager post. In charged Manager came to know about misplace of document only after receipt of legal notice and he made immediate enquiry with earlier manager. It is stated that on 22.06.2011 the complainant gave a letter to Opposite Party stating that he had received original sale deed and the complainant signed in the ledger pertaining to his loan and received the original sale deed. The complainant made false complaint and sought for dismissal of complaint.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Party committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
III. In support of the complaint, Sri. Ramakrishnan Nair (CW1) filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C-8. One Sri B. Balakrishna (RW1) filed counter affidavit and answered the interrogatories served on him. Ex R1 to R5 were marked for the Opposite Party as per list.
We have considered the oral/notes arguments submitted by the learned counsel and also considered the materials that was placed before the Forum and answer the points are as follows:-
Point No.(i): Affirmative
Point No.(ii) to (iii): As per the final order.
Reasons
IV. Point No. (i) to (iv):
The facts which are admitted that complainant is the absolute owner of the agricultural immovable properties, he had obtained a loan from the Opposite Party for the purpose of his agriculture for the charge of his aforesaid immovable property by depositing the title deed with Opposite Party.
Now the points are in dispute between the parties are that he had obtained loan from Opposite Party in year 2005 and a sum of Rs. 99,000/- is due from the complainant to the Opposite Party and the complainant is ready and willing to repay the said amount and intimated the Opposite Party and has sought for return of the original title deed of the complainant. The Opposite Party not returned the title deed till this date.
The Opposite Party on the contrary stated that title deeds have been handed over to the complainant and the complainant have executed a letter acknowledgment for the receipt of the documents and also affixed his signature on the loan ledger.
On perusal of the material evidence available on record we noted that the complainant denied the receipt of the title deeds and also the signature found on documents including ledger produced before this FORA. However the loan ledger and some of the documents contained the admitted signature of the complainant were sent to the handwriting expert for comparison. The expert has given clear finding in this regard. Expert stated that the signature of the complainant in Ex R-5 is forged and that the same is not the signature of the complainant. However, counsel appearing for the Opposite Party argued that the signature in letter i.e. Ex R-5 Q-2 B1 2and Q-1-C is the endorsement written on a loan ledger but nowhere stated Q-2 a signature is written by the same person. Further argued that as per the procedure the Opposite Party normally obtaining the signature on the loan ledger while returning the documents, but in this case the complainant already harassed Opposite Party and hence requested him for giving letter for having received the documents. Further argued that the complainant has created document before receiving documents to file a complaint. However on perusal of the handwriting expert opinion and the other documents it is made us clear that the documents are misplaced by the Opposite Party and therefore we are of the considered opinion that the complainant has still due a sum of Rs. 81,182/ with the opposite party if at all the complainant closed the account and then the matter would have been different. But in the instant case without closing the loan due the complainant seeking written of title deeds giving scope for doubts. By considering both the sides and also the expert opinion we are of the clear finding that the documents have been misplaced by the opposite party officials. Therefore, the opposite party directed to return the documents by causing paper publication and thereafter the complainant is at liberty to obtain the certified copies from the concerned sub-registrar office and the expenses incurred for publication shall bear by the opposite party. The complainant should clear the loan amount immediately within 30 days.
In view of the above discussion, we hold that the Opposite Party shall cause paper publication at their costs for loss of title deeds and obtain certified copy of the title deeds with the co-operation of the complainant. The complainant in turn shall close the loan account immediately i.e. within 30 days. The opposite party is not entitled to collect interest from the complainant for the loan dues from the date of complaint till the date of payment. Opposite party shall pay Rs. 3,000/- as cost of litigation expenses. Payment and compliance shall be made within 45 days from the date of receipt of this order.
In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party shall cause paper publication at their costs for loss of title deeds and obtain certified copy of the title deeds with the co-operation of the complainant. The complainant in turn shall close the loan account immediately i.e. within 30 days. The opposite party is not entitled to collect interest from the complainant for the loan dues from the date of complaint till the date of payment. Opposite party shall pay Rs. 3,000/- as cost of litigation expenses. Payment and compliance shall be made within 45 days from the date of receipt of this order.
In case of failure to pay the above mentioned amount within the stipulated time, the Opposite Party is directed to pay interest at the rate of 12% per annum on the above said total amount from the date of failure till the date of payment.
The copy of this order as per the statutory requirements be forwarded to the party free of charge and therefore the file be consigned to record.
(Page No.1 to 9 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31st day of March 2016.)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Ramakrishnan Nair – Complainant.
Documents produced on behalf of the Complainant:
Ex C1: The copy of the sale Deed dated 03.12.1979 Registered as document No. 266/1979 in the office of the Sub-Registrar, Sullia.
ExC2: The copy of the Sale Deed dated 03.12.1979 Registered as Document No. 265/1979-80 in the office of the Sub-Registrar.
Ex C3: The copy of the lawyer’ Notice.
Ex C4: The copy of the Reply Notice issued by Opposite Party.
Ex C5: The copy of lawyer’s Notice.
Ex C6: The copy of the reply Notice issued by the Karnataka State Co-Op. Agricultural and Rural Development Bank, Mangalore Branch.
Witnesses examined on behalf of the Opposite party:
RW1 – B. Balakrishna – Complainant.
Documents produced on behalf of the Opposite Party:
Ex R1: 07.04.1988 – True copy of the ledger book pertaining to the loan No. 259/RDS.
Ex R2: 03.05.1988 – True copy of the ledger book pertaining to the loan L.A. No. 484 well.
Ex R3: 26.02.2000 – True copy of the ledger book pertaining to the loan L.A. No. 651 Sprinkler.
Ex R4: 30.03.2005 – Computerized copy the loan L.A. No. 212/2004-2005.
Ex R5: 22.06.2011 – Original letter of undertaking given by the complainant.
Dated:31.03.2016 PRESIDENT
31.03.2016.
ORDER
The complaint is allowed. Opposite Party shall cause paper publication at their costs for loss of title deeds and obtain certified copy of the title deeds with the co-operation of the complainant. The complainant in turn shall close the loan account immediately i.e. within 30 days. The opposite party is not entitled to collect interest from the complainant for the loan dues from the date of complaint till the date of payment. Opposite party shall pay Rs. 3,000/- as cost of litigation expenses. Payment and compliance shall be made within 45 days from the date of receipt of this order.
In case of failure to pay the above mentioned amount within the stipulated time, the Opposite Party is directed to pay interest at the rate of 12% per annum on the above said total amount from the date of failure till the date of payment.
The copy of this order as per the statutory requirements be forwarded to the party free of charge and therefore the file be consigned to record.
(Page No.1 to dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31st day of March 2016.)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
