D.O.F:10/01/2019
D.O.O:14/09/2021
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.05/2019
Dated this, the 14th day of September 2021
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Mr. Mohammed Kuresh M. Aged 37 years
S/o Sayyed Abideen
Abideen Cottage, Mannamkuzhi Maidan
Mulinje village, Uppala Post : Complainant
Manjeshwara Taluk, Kasaragod Dist- 671322
(Adv: Suresh.K.P)
And
The Branch Manager
Vijaya Bank, Hassan Complex
Mulinje village, Uppala Post : Opposite Party
Manjeshwara Taluk, Kasaragod Dist- 671322
(Adv: Damodara Shetty)
ORDER
SRI.KRISHNAN.K :PRESIDENT
The case of the complainant is that he availed a housing loan of Rs. 5 Lakh from Opposite Party by depositing his original title deeds of his property in R.S. No.80/3 Kodibail village along with other documents. Several signatures were obtained by Opposite Party in blank papers at that time on 21/03/2014. The complainant cleared the loan amount but in turn Opposite Party failed to return the documents collected from complainant. Opposite Party demands to clear the loan of elder brother of complainant pending in Canara bank. There was a delay in filing complaint and it was condoned. There is deficiency in service from the part Opposite Party caused mental tension, financial loss and therefore prayed to direct Opposite Party to return documents and pay Rs. 2 lakh as compensation and cost of the litigation.
2. The Opposite Party filed written version. Opposite Party admits that complainant availed the loan but name of village is different. Obtaining of signature in several printing forms as alleged is denied. Further case is that Sayyed Irfan availed housing loan of Rs. 8 Lakh from the Canara Bank, bank road Kasaragod. A second charge of properties of complainant is created with Canara Bank as per letter dated 14/09/2009. Canara Bank forwarded the same with a covering letter dated 15/09/2009 request was accepted and second charge was created. Amount covered by second charge is still due to Canara Bank, title deeds are not returned yet. Opposite Party is ready to handover title deeds once loan due to Canara Bank by Irfan is cleared. Complainant sent a lawyer notice dated 06/10/2016. Complainant t is not entitled to any reliefs and complaint is liable to be dismissed.
3. The complainant filed chief affidavit. Complainant produced documents marked as Ext A1 to A4. Ext A1 is copy of passbook. Ext A2 seafarer identity card and copy of passport is Ext A3, Ext A4 is the certified copy of FIR in Crime No; 278/2009 of Manjeshwar Police. Opposite Party filed chief affidavit and cross examined as Dw1. Also examined one witness as Dw2. Ext B1 to B4 documents marked from their side. Ext B1 is copy of letter by complainant received. Letters dated 15/09/2009, 01/06/2016 and 25/01/2019 marked as Ext B2 to B4.
4. As per the contentions following points arise for consideration in this case.
a) Whether Opposite Party is legally entitled to refuse to return of title deeds of complainant after clearing the loan amount?
b) Whether complainant is entitled for compensation? If so for what reliefs?
Points discussed together for convenience.
5. The case of the complainant is that he availed a loan on 05/12/2003 and cleared it on 21/03/2014. But his title deeds are not returned claiming loan dues to Canara Bank, Kasaragod as second charge. However Opposite Party stated that bank has right of general lien to proceed against mortgaged properties of the complainant for the outstanding due of loan amount of one Sayyed Irfan. The loan transaction referred to in the letter dated 14/09/2009, is an independent loan transaction and complainant is not a guarantor.
6. The primary difference between creation of a subsequent charge on the same property is subject to consent of prior mortgage. Ext B1 is dated 14/09/2009 there is no mention of loan number or date of disbursement name of borrower description of property with boundaries particulars of title deeds original or copy or intention to create charge over the property by deposit of the title deeds.
7. The deposit of title deeds by which the mortgage was created by the complainant was for a specific purpose to cover an advance for a specific loan. When such is the situation, the borrower having deposited the documents in order to secure a specific transaction, the bank cannot contend that they could hold the documents for a balance due in a different loan account where the complainant is not a borrower. Legal obligation of the mortgage to return the title deed of the mortgages up on discharging of mortgage loan, for which the title deeds were secured, can be certainly treated as an implied contract contrary to section 171 of the Indian Contract Act.
8. Ext B1, there is no endorsement by bank of its receipt or consent is given accepting second charge. A person voluntarily creates a second charge of his properties without knowing disbursement prior discussion with bank, is hard to believe. Ext B1 addressed to manger Vijaya Bank informing creating second charge with Canara bank. Ext B2 shows that Canara Bank informing Vijaya bank of creating second charge over 80/3 of Mulinje village without even referring to letter dated 14/09/2000 allegedly sent by complainant. Even having received Ext B2 there is no endorsement by Vijaya Bank having received Ext B2, date of receipt or stamp or seal of Vijaya bank or description of title deed. Ext B3 is dated 01/08/2016 informing Vijaya bank by Canara Bank not to release the title deeds of complainant as second charge is still subsisting. Ext B3 also does not contain any endorsement of date, seal or signature of recipient . No prior communications regarding discharge of primary loan of complainant strait away informing not to release title deeds, rather appears very strange. Absolutely no reply by Vijaya Bank to Ext B3 letter. But surprisingly Ext B4 is written referring to E- mail dated 22/01/2019 after three years of B3 remaining Vijaya bank to keep the title deeds until liabilities of Canara bank is cleared. B4 also contains no seal of Vijaya bank date or initial of manger having received it. Ext B1 to B4 are not proved as per mandate of law. Furthermore signature in B1 is disputed by complainant though admitted in cross. Disputed signature is not confronted to complainant while in box. No steps are taken to prove it as per law. No communication sent to complainant by Canara Bank or Vijay bank of having accepted the alleged second charge. Second charge should be subject to consent of the first mortgage.
9. The commission is of the view that the respondent bank cannot retain the title deeds or proceed with the properties which were offered as security in relation to an independent loan transaction, even after the borrower discharged the entire liability of borrower in connection with the loan which is secured by deposit of title deeds. In the present case bank is not willing to release the title deeds, even after complainant discharged the entire loan.
10. The said act and conduct of Opposite Party bank in not returning title deeds for a such a long period shows serious deficiency in service and negligence. Thus complainant suffered mental tension and agony and financial loss thereof. The Commission hereby consider taking note of long delay and nature and circumstances of the case awards a sum of Rs. 1,00,000/-(Rupees One lakh only) reasonable amount of compensation in this regard. Complainant is also entitled for cost of litigation.
In the result complainant is allowed in part. Opposite Party bank is directed to return all documents/title deeds mortgaged by complainant to him and pay Rs.1,00,000/- (Rupees One lakh only) as compensation and Rs.5000/- (Rupees Five thousand only) as cost of litigation within 30 days of receipt of the order.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1- Copy of the Pass book
A2- Copy of the Passport
A3- Copy of the seafarer identity card
A4- Certified copy of FIR
B1-A letter Dt: 14/09/2009
B2- A Letter Dt:15/09/2009
B3- A Letter Dt: 01/08/2016
B4- Copy of letter Dt: 25/01/2019
Witness Examined
Pw1- Mohammed Kuresh.M
Dw1- Bharat
Dw2- Sudheesh.K.P
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Senior Superintendent
Ps/
