BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 9TH January 2017
PRESENT
SRIVISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDER IN
C.C.No.110/2014
(Admitted on 21.03.2014)
Y. MahabaleshwaraBhat,
S/o SubrayaBhat,
Aged years,
r/o Betta House,
NellurKemraie Village,
SulliaTaluk, Post Bollaje.
….. COMPLAINANT
(Advocate for the Complainant: Sri BNGB)
VERSUS
The Syndicate Bank,
Sullia, represented by its Branch Manager,
At Sullia, D.K. District.
......OPPOSITE PARTY
(Advocate for the Opposite Party: Sri. GKM)
ORDER DELIVERED BY HON’BLE MEMBER
SRI T.C. RAJASHEKAR:
1. The above complaint filed under Section 12 of the Consumer Protection Act 1986praying return of his title deeds and also compensation for its non return at Rs. 50,000/ and in case not able to return the same pay compensation of Rs.20,00,000/ and to facilitate procuring duplicate documents by giving required publication in news paper.
2. In support of the above complainant Mr. Y MahabaleshwaraBhat filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents marked Ex.C1 to C5 detailed in the annexure here below. On behalf of the opposite party Mr. SanjeevaNaik(RW1)Manager, Syndicate Bank, Sullia also filed affidavit evidence and answered the interrogatories served on him.
The brief facts of the case are as under:
On perusal of the complaint and the version of the parties we understood the dispute is with regard to loss of tittle deeds given for security in the instance of the court destroyed it. The complainant alleges that he had given his tittle deeds for availing the loan and on clearing the loan the Opposite party not returned the original documents of tittle hence deficiency in service. The Opposite party contends that the tittle deeds given for the security was submitted to the court as per summons issued in connection with an execution case and the same has been destroyed by the court. Since the documents submitted to the court which was in the knowledge of the complainant and the court had destroyed the documents the Opposite party is not liable for the complainant and there is no deficiency in service on the part of the Opposite party. The Opposite party also contended that the complaint is barred by limitation. These being the facts in our opinion in resolving this dispute the following
POINTS FOR ADJUDICATION
On taking into considering the evidence and the documents, the admitted facts are, the complainant availed the loan from the Opposite party and pledged his documents as security. The complainant had cleared the loan in 1994. The Opposite party received a summons dated 25.08.88 from the court of Civil Judge Puttur in respect of execution case No 158/87 to produce the original documents of the complainant on 24.09.88, the Opposite party produced those documents to the court. It is also admitted that the complainant handed over the summons in the year 1994 to the complainant when he repaid the loan in full. It is evident from the documents that the complainant’s documents were destroyed by the Mangalore Central Record Room in the on 27.02. 2006 which was submitted by the Opposite party. The execution case no 158/87 was closed on 31.03.1992. The complainant denied the limitation bar to the complaint. We consider the following points for adjudication in resolving this dispute.
- Whether the complaint is a consumer under the consumer protection Act 1986?
- Whether the Opposite party proved there is no deficiency in service from their part?
- Whether the complainant is entitled for the relief prayed for?
- What order?
On critical examination of facts and the law and the produced evidences and the documents we heard the parties and answered the above points on adjudication as under:
- In the affirmative.
- In the negative.
- In the affirmative.
- As per delivered order.
REASON
POINT NO 1: From the pleadings and the evidence it is established that the complainant had availed loan from the Opposite party and as security deposited the original tittle deeds of his property. Hence there formed the relation of consumer and the service provider between the complainant and the Opposite party. This fact is not denied by the Opposite party and the answer for point No 1 in the affirmative.
POINT NO 2: The complainant alleges that he had deposited his tittle deed documents with the Opposite party as security to the loan availed. On clearing the loan in full the Opposite party not returned the documents and hence there is deficiency in service. It is admitted by the Opposite party the depositing of documents as security and also clearing of the loan. So it is the burden of the Opposite party to prove that the failure to return the documents will not amount to deficiency in service and point no 2 taken for adjudication. The Opposite party contention is the documents deposited by the complainant is submitted to the court in complying summons issued in connection with an execution case in which banker is not the party, and later the documents were destroyed by the court Central Record Room at Mangalore. Since the Opposite party is not a party to the execution case he did not have either communication or documents returned from the court. Since the documents were submitted in the court and destroyed they are not liable and contend that they have handed over the summons in 1994 itself on clearing of loan from the complainant, hence there is no deficiency is service.
2. We have gone through the evidence and documents produced and marked the following facts.
The chronological order of facts is important to be considered.
- The different loans were availed by depositing tittle deeds by the complainant in the years 1984 to 1987.
- The bank received summons from the civil court Puttur signed by court officer on 25.08.1988 and the Opposite party s presence ordered with documents on 24.09.1988.
- The above documents were produced before the court on 24.09.1988.
- The Puttur court had transferred the execution to the JMFC court sulya, and the execution petition was closed on
- 31.03.1992 and the documents shifted from Munsiff court sulya to central record room Mangalore on 06.04.1993(As per list of execution cases disposed during the month of March 1992 issued by Munsiff and JMFC Sulya).
- The complainant closed the loan and requested to handover the tittle deeds and the Opposite party claims the court summons were handed over to the complainant on 29.06.1994.
- The Central Record room destroyed the documents 27.02.2006(No CRS-I/7150 dated 02.06.2015issued by District judge office Mangalore).
- The complaint is filed on 21.03.2014 after legal notice sent on 04.03.2013(notice not replied by the Opposite party).
The facts emanate from the above that, the Opposite party even though received the summons on 25.08.1988 and produced the documents on 24.09.1988 to the court but informed the complainant only in 1994 that too on the instance of the complainant clearing the loan and demanded the tittle deeds. Our doubt is, is it not duty of the Opposite party to inform the complainant about court summons before producing the documents to the court? It is pertinent to note that the tittle deeds pledged as security and it is the duty of the Bailee to safe guard the tittle deeds pledged with them. It is true the Opposite party cannot disobey the court order to produce the documents but it is not explained what problem the Opposite party had in informing the complainant before producing the documents to the court. The section 130 of the evidence Act manifests an obligation on the part of the Opposite party to inform the owner of the document before parting with it. Section is engrossed below for convenience.
Section 130 of evidence Act
No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document in virtue of which he holds any property as pledge or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims
From 1988 to 1994 the Opposite party kept the complainant in blank about the tittle deeds kept with them for custody. The documents had left the custody of the Opposite party well back in 1988 and the Opposite party had no possession and control on the tittle deeds where the Opposite party expected to protect legally the pledge given by the complainant till 1994. In our opinion the Opposite party neither protected the complainant property documents nor allowed him to protect it by giving prior information about the summons and the execution case number and the court in which it is submitted. There was no opportunity to the complainant to follow up the execution case and trace out his documents. It is to be mentioned here that the complainant is also not a party to the Execution case 158/87.
3. It is contended by the Opposite party that the complainant was handed over with the summons issued by the court in the year1994 when the loan was closed. In our opinion handing over of the summons is only an information of having produced the documents to the court but not instruction to the complainant to collect back his documents from the court. There is no any record to show that the Opposite party had informed the complainant to collect the documents from the court and hence the Opposite party’s contention that the complainant was informed to collect the documents from the court and it is complainant’s duty to collect from the court is not tenable. Also not found any documents where the Opposite party authorized the complainant to collect the documents from the court. It is needless to state the courts will not handover the documents to the complainant without authorization. We also noticed that on 26.09.1994 the Opposite party given a letter to the village accountant about closure of the loan account and deletion of mortgage entry in the RTC. But with this letter the Opposite party would have given an authority to collect documents from the court.
4. The complaint pleads that he had asked for the documents on completion of loan and in spite of asking several times the Opposite party not given documents. The Opposite party’s contention that the complaint barred by limitation is not tenable as once the loan is cleared it is the bounden duty of the Opposite party to release the tittle deed documents and the cause of action continues till the delivery made because it is deposited with the Opposite party as security for loan availed to the custody of the Opposite party. From the file it is not established when the Opposite party came to know about the destroying of the documents by the Central Record Room and the same has been informed to the complainant. Hence the complaint is not barred by limitation. However one more point flashed for us is the Opposite party keptsilence for over 6 years of producing the documents to the court in informing the complainant how he can now claim limitation. Also there are no documents to show that the Opposite party informed the complainant to collect the documents from the court authorizing him. Hence claim of complainant is not barred by time.
5. As per documentation the execution was closed in the year 1992 itself. The record shifted to Central Record room in the year 1993 and the said documents were destroyed in the year 2006. The complainant demanded his title deeds in the year 1994 itself. It is not answered by the Opposite party why they have kept quietfor such a long period from 1994 to 2006. It is the primary duty of the Opposite party to act upon in collecting back the tittle deeds produced by them which was given as security for loan for the safe custody but not acted upon which shows negligence on the part of the Opposite party towards complainant. There is no any record to show the Opposite party had tried in procuring the documents from the court expect posing the duty on the complainant to get the documents from the court. It conveys a message that once the loan is cleared they are not bothered to the consumers/complainant s problem A lethargic attitude to be curbed. On all angle we see there is negligence and the deficiency in service on the part of the Opposite party. The Opposite party not proved that there is no deficiency in service from their part. Hence the point no 2 in the negative.
POINT NO 3: The Opposite party not proved his case under point no 2 as we hold the primary duty is of the Opposite party in safe guarding the documents of the complainant and there is no either effort from Opposite party to get documents or authorizing the complainant to get the documents from the court, we hold the Opposite party is liable for negligence and deficiency in service towards the complainant. The complainant had asked the return of documents which is not possible at this juncture as the documents already destroyed. In alternative the complainant prayed for a compensation of Rs 20,00,000/ In our opinion taking into consideration the loss of value for property because of want of original deed, and the difficulty in selling if he wishes, and the Opposite party’s grave negligence towards their bounden duty an amount of Rs 1,00,000/ will sub serve as compensation and an amount of Rs 10,000/ towards litigation expenses. The Opposite party shall cooperate with the complainant in obtaining the duplicate title deed at opposite party’s cost and in furnishing documents for obtaining the duplicate title deed whatever in their custody and authority and any authorization required.
POINT NO 4: In the light of the above discussion and the adjudication of points we pass the following
ORDER
The complaint is partly allowed. The Opposite party shall pay the complainant an amount of Rs1,00,000/ (Rupees One lakh only)towards compensation and an amount of Rs 10,000/ (Rupees Ten thousand only) towards cost. The order shall be complied with in 30 days from the date of order received. The Opposite party shall cooperate with the complainant in obtaining the duplicate titledeeds at opposite party’s costs. The failure to pay the award with in stipulated period will carry the future interest at the rate of 10% per annum on the compensation amount.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 11 directly typed by member revised and pronounced in the open court on this the 9th January 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRIVISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr.YMahabaleshwaraBhat
Documents marked on behalf of the Complainant:
Ex.C1: 04.03.2013: Office copy of notice sent to opposite party
Ex.C2: 27.06.1994: Postal Acknowledgement
Ex.C3: 27.06.1994: Copy of letter of Village Accountant showing the Complainant has cleared the loan on 29.06.1994
Ex.C4: 25.08.1988: Witness summons issued to the Bank Manager for production of title deeds in Ex. 158/87 on the file of Civil Judges Court Puttur
Ex.C5: 24.09.1988: List of Documents produced by the Manager With endorsement of the Court for having received the documents.
Witnesses examined on behalf of the Opposite Party:
RW1 Mr. SanjeevaNaik, Manager, Syndicate Bank, Sullia
Documents produced on behalf of the Opposite Party:
Nil
Dated: 09.01.2017 MEMBER
