Chandigarh

DF-I

CC/196/2015

Arvind Kumar Singh - Complainant(s)

Versus

UCO Bank - Opp.Party(s)

Munish Goel

23 Sep 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/196/2015
Date of Institution	:	27/03/2015
Date of Decision	:	23/09/2015

 

 

1.      Arvind Kumar Singh s/o late Sh. Ram Parvesh Singh, H.No.1630, Saini Vihar, Phase-III, Baltana, Distt. Mohali.

2.      Gita Singh w/o Arvind Kumar Singh, H.No.1630, Saini Vihar, Phase-III, Baltana, Distt. Mohali.

…..Complainants

V E R S U S

UCO Bank, SCF 3-4, Sector 22C, Chandigarh through its Branch Manager.

……Opposite Party

 

 

 

QUORUM:	P.L.AHUJA	PRESIDENT
	MRS.SURJEET KAUR	MEMBER
	SURESH KUMAR SARDANA	MEMBER

                                               

                                               

                       

ARGUED BY	:	Sh. Munish Goel, Counsel for complainants
		Sh. Rajesh Mahajan, Counsel for OP

                       

                 

PER P.L.AHUJA, PRESIDENT

1.         Sh. Arvind Kumar Singh (husband) and Smt. Gita Singh (wife), complainants have filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against UCO Bank, Opposite Party (hereinafter called the OP), alleging that that they submitted an application for availing housing loan from the OP in the year 2005. The OP sanctioned loan and released the amount of Rs.4 lakhs in August, 2005 and further Rs.3 lakhs in between March 2010 and May 2010. The complainants duly deposited original property papers with the OP as token of security.

                According to the complainants, the whole loan was cleared in November 2013 and thereafter when the complainants demanded the property papers, the OP informed that the same had been lost.  The complainant (No.1) wrote letter dated 23.12.2013 (Annexure C-1) to the OP to issue No dues certificate and further return original plot deed. The OP issued the no due certificate on 23.12.2013 (Annexure C-2). Thereafter the complainant (No.1) further wrote letters dated 10.2.2014 and 4.4.2014 (Annexure C-3 & C-4) for return of original plot deed, but, nothing was done. The complainant approached the Banking Ombudsman vide complaint dated 8.4.2014 (Annexure C-5) and vide order dated 31.7.2014 (Annexure C-6), the Banking Ombudsman directed the OP to lodge FIR or insert an advertisement in local newspaper which would corroborate the facts of loss of title deed by the bank, recreate the document/title deed at its own expense and also to compensate the complainant as per compensation policy.  Subsequently, the complainants received a letter dated 14.8.2014 (Annexure C-8) from the OP seeking their consent. In reply, complainant (No.1) vide letter dated 19.8.2014 raised certain queries to the OP. Thereafter, the complainant (No.1) through his advocate issued a legal notice dated 16.12.2014 to the OP asking it to handover original sale deed and recreate new one at its own expense and to pay compensation etc., but, to no avail.  It has been alleged that due to misplacement of original property papers by the OP, the complainant would not get loan from any bank.  The complainant is not in a position to sell the property at present market price in absence of original property papers.  It has been further alleged that there is every possibility that any third person who gets hands on original property papers may misuse the same by selling the property to third person. There is a risk of killing the present complainant every day and they are living in fear that there can be any more litigation by misusing the original property papers.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OP, the complainant has filed the instant complaint. 

2.         In its written reply, OP has taken a number of preliminary objections including that the complainant (No.2) cannot maintain a complaint against it as she is not a consumer; that the complainant has to choose his remedy and after having availed one remedy in one forum cannot avail the other alternative remedies one by one and cannot go forum hunting. It has been averred that the complainants first applied for loan under UCO Shelter Scheme on 10.8.2005 for construction of ground floor of the premises, which was sanctioned for Rs.4 lacs. In the said account complainant (No.2) was the co-borrower and had created equitable mortgage of her property by deposit of title deeds. The said loan was adjusted by complainant No.1 on 9.11.2013.  In the meantime complainant No.1 and his son applied for a fresh term loan for construction of first floor on 3.3.2010 and his wife (complainant No.2) became the guarantor which was sanctioned for Rs.3 lacs.  The property was remortgaged by constructive deposit of title deeds. The said loan was adjusted on 14.12.2013. It has been admitted that the title deeds were not traceable. It has also been admitted that the complainant filed a complaint before the Banking Ombudsman and that the same was decided.  It has been contended that in terms of the order of the Ombudsman, the bank (OP) had offered to create the title documents i.e. gift deed to be executed by the present owner namely Smt. Gita Singh in favour of her sons S/Sh. Abhishek Singh and Anupam Kumar Singh and had asked complainant No.1 to give his consent, but, nothing was done. It has been stated that the complainant has been unnecessarily apprehensive and compensation is to be given for the actual loss caused and not on imagination and hypothesis.  Pleading that there is no deficiency in service or unfair trade practice on its part, OP has prayed for dismissal of the complaint. 
3.         In the replication by way of affidavit, Sh. Arvind Kumar Singh, complainant No.1 has controverted the stand of the OP and reiterated their own. It has been contended that as the original property papers were lost by the OP and the property is in the name of complainant No.2, she is entitled, being beneficiary, to file the present complaint against the OP.
4.         The parties led evidence in support of their contentions.
5.         We have scanned the entire evidence, written arguments submitted by both sides and heard the arguments addressed by the learned Counsel for the parties. 
6.         Admittedly, Sh. Arvind Kumar Singh, complainant No.1 and his wife Smt. Gita Singh, complainant No.2 firstly applied for a loan under UCO Shelter Scheme on 10.8.2005 (Annexure R-1) for construction of ground floor of the premises for which a loan of Rs.4,00,000/- was sanctioned vide account No.01340600009394. The complainant No.2 had created equitable mortgage of her property by deposit of title deeds.  The said loan was adjusted by complainant No.1 on 9.11.2013 as per the statement of account Annexure R-2. The complainant No.1 and his son Sh. Abhishek Singh applied for a fresh term loan (Annexure R-3) for construction of first floor on 3.3.2010 and complainant No.2 became the guarantor for which a loan of Rs.3,00,000/- was sanctioned vide account No.01340610001905.  The property of complainant No.2 was re-mortgaged by constructive deposit of title deeds. The said loan was adjusted on 14.12.2013 from the account of complainant No.1 as per the statement of accounts (Annexure R-4).  Admittedly, the title deeds of the property of complainant No.2 have not been returned to her after repayment of the loan though the OP has issued a no due certificate (Annexure C-2) in respect of repayment of both the loan accounts. Complainant No.1 sent letters to the OP for return of his original property papers, but, nothing was done.  Thereafter, the complainant filed a complaint (Annexure C-5) before the Banking Ombudsman on 8.4.2014. The Banking Ombudsman vide order dated 31.7.2014 (Annexure C-6) directed the OP to lodge FIR with police authorities or insert an advertisement in the local newspaper which will corroborate the fact of loss of title deed by the bank. He further directed the OP to recreate the documents/title deed at its own expense and to pay compensation as per compensation policy.  Then the OP got one DDR No.39 dated 13.8.2014 (Annexure C-7) recorded with the police post, Sector 22, Chandigarh qua the loss of the property papers of complainant No.2.  However, the title deed of the property of complainant No.2 has not yet been recreated by the bank nor the complainants have been compensated for the loss as per the orders of the Ombudsman.
7.         The first material question for consideration before this Forum is whether complainant No.2 falls within the definition of ‘consumer’ as defined in Section 2(1)(d) of the Consumer Protection Act?  The learned counsel for the OP has contended that complainant No.2 is only the guarantor of the loan for repayment of the loan and provided collateral security.  He has contended that the complainant has not paid any consideration to the bank and has not hired the services of the bank and cannot be termed to be a consumer. The learned counsel for the OP has further argued that the dispute arose only after the second loan was adjusted on 14.12.2013 from the account of complainant No.1 in which the complainant No.2 was a guarantor, therefore, complainant No.2 cannot file a joint complaint with her husband. He has further argued that since complainant No.1 does not own the property, therefore, he has no grouse or cause of action to agitate the issue of return of the title deeds and the application for permission to file joint complaint is liable to be dismissed.
8.         We have given our careful consideration to the above arguments, but, we are not impressed with the same.  It is the admitted case of the OP that complainant No.2, Smt. Gita Singh is a co-borrower of the first loan account for which she also filed a loan application and deposited the title deeds of her property.  Admittedly, those title deeds ought to have been returned to complainant No.2 after the repayment of the loan, but, the same have not been returned. Hence, the complainant No.2, who had hired the services of OP as a co-borrower for the loan of Rs.4.00 lakh on 10.8.2005, is definitely covered under the definition of ‘consumer’.  The mere fact that while taking the second loan, complainant No.2 was not a co-borrower does not mean that she has lost the right to get her title deeds back from the OP. 
9.         As far as the question of filing a joint complaint by the complainants is concerned, it is important to note that the complainants were allowed to file a joint complaint vide this Forum’s order dated 31.3.2015. The OP did not file any appeal or revision against that order and that order has become final. This Forum cannot review or modify its own order. Complainant No.2 is proved to be a consumer even if she was not a party to the complaint before the Banking Ombudsman. Complainant No.1 has also suffered immensely because the property of his wife was mortgaged by the OP for taking loans by him and his son from the OP and the same has not been returned and furthermore the OP has not taken any action for compensating both the complainants. Thus, a joint complaint by both the complainants is maintainable before this Forum. 
10.         The next point for determination is whether the present complaint before this Forum is maintainable, particularly when the Banking Ombudsman has already passed an order on 31.7.2014 (Annexure C-6)?  It has been argued by the learned counsel for the OP that the Banking Ombudsman has directed that if the grievance of the complainant is not resolved in terms of his order, then he can approach him again.  He has further argued that the complaint of complainant No.1 was closed under clause 13(a) of Banking Ombudsman Scheme 2006 and no appeal lies against that order. The learned counsel for the OP has argued that the complainant had to choose his remedy and after having availed one remedy in one forum, he cannot avail the other alternative remedy and indulge in forum hunting. He has argued that the complainant cannot establish his right in one forum and claim consequential relief in the other forum.  The learned counsel for the OP has vehemently argued that the bank had offered the complainants to create a gift deed to be executed by Smt. Gita Singh in favour of her sons S/Sh. Abhishek Singh and Anupam Kumar Singh and complainant No.1 was asked to give his consent, but, he has failed to give his consent.  He has urged that the question of compensation to be granted to the complainants was being considered at the higher level when the present complaint was filed, therefore, the order of the Banking Ombudsman could not be implemented.  He has submitted that in any case, since complainant No.1 had availed the remedy before the Banking Ombudsman, the present complaint is not at all maintainable. 
11.         On the other hand, learned counsel for the complainants has cited Kamleshwari Prasad Singh Vs. National Insurance Co. Ltd., 2004 STPL (CL) 101 NC and has contended that the decision of the Ombudsman is not binding on the complainants and the decision of the OP to repudiate the claim of the complainants is subject to adjudication by the Fora constituted under the Consumer Protection Act.  The learned counsel for the complainants has strenuously argued that the OP has lost the original property papers and the same amounts to deficiency in service and the duplicate certified copy of the property papers have no value in the market for the sale of the property.  He has submitted that even if the remedy before the Banking Ombudsman was availed, as per Section 3 of the Consumer Protection Act, the remedy under the Act is additional remedy available to the consumer for redressal of his grievances. 
12.         After giving our thoughtful consideration to the rival contentions, we feel that the arguments of the learned counsel for the complainants have considerable force and the same must prevail. A perusal of the Public Grievances Rules, 1998 detailed in Kamleshwari Prasad Singh Vs. National Insurance Co. Ltd. (supra) show that where the complaint is not settled by agreement under Rule 15, the Ombudsman shall pass an order which he feels fair in the facts and circumstances of the claim.  The complainant has to furnish to the OP within a period of one month from the date of receipt of the award a letter of acceptance that the award is in full and final settlement of his claim. In the instant case, there is absolutely no material on record which could show that the complainant sent any letter of acceptance of the award of Banking Ombudsman in full and final settlement of his claim.  Hence, in view of the law laid down in Kamleshwari Prasad Singh Vs. National Insurance Co. Ltd. (supra), the decision of the Banking Ombudsman is not binding on the complainant No.1 and he can approach the Fora constituted under the Consumer Protection Act, 1986 for adjudication of his claim.
13.         Now we advert to the question of deficiency in service on the part of the OP.  It is the admitted case of the OP that the title documents of complainant No.2 are not traceable. The learned counsel for the OP has submitted that in the course of banking activities, documents of one case sometimes get mixed up with others and are traced later on.  He has contended that in this case the bank, after the order of the Ombudsman, lodged a DDR with the police and asked for the consent of the complainant for the transfer of the property in the name of children but complainant No.1 has not given any consent.  The learned counsel for the OP has strenuously argued that there is no evidence of deficiency in service on the part of the OP. 
14.         We have given our anxious consideration to the above contentions. The copy of DDR dated 13.8.2014 (Annexure C-7) lodged by the Chief Manager of the OP Bank with Police Post, Sector 22, Chandigarh shows that Sh. Arvind Kumar Singh had deposited the original sale deed pertaining to the property in the name of Smt. Gita Singh and the original sale deed lying with the bank had been misplaced and was not traceable. The OP has failed to either trace the original sale deed or recreate the original sale deed in favour of complainant No.2. When the original sale deed was in favour of complainant No.2, the alternative suggested by OP for execution of the gift deed in favour of children of complainant No.2 at the expenses of the OP is obviously not acceptable to the complainants. It is quite evident that the OP has not rendered necessary assistance to the complainants in providing a legal proof on the basis of which complainant No.2 can be held to be the owner of the property in question. The OP has also not published advertisement in the newspapers about the loss of title documents of the property of complainant No.2. The contention of the complainants that complainant No.2 is not in a position to sell the property at the present market price in the absence of original property papers carries weight. Due to misplacement of the original documents, there is also a risk of misuse of the original property papers by somebody else. Despite the order dated 31.7.2014 passed by the Ombudsman, OP has not made payment of any compensation for the loss of documents to complainant No.2 so far. Considering all these circumstances, we feel that both the complainants have suffered incalculable loss on account of the negligence and deficiency in service on the part of the OP.  The trouble and efforts to get the documents reconstructed is immense to be borne by the complainants besides great mental stress, anxiety and agony which they have already suffered.  Accordingly, we are of the opinion that the complainants are entitled to get compensation from the OP for the harassment, financial loss and deficiency in service on its part.
15.         In view of the above discussion, the complaint filed by the complainants is partly allowed. The OP is directed  :-

(i)     To issue an appropriate certificate to the complainants that the documents of title received by it in respect of the plot in question were lost by it.  The OP shall also get published an advertisement in two national daily newspapers about the loss of the title documents of the property of complainant No.2 at its own expenses. The OP shall also write to the concerned departments about the loss of property documents and reimburse the expenses in obtaining the certified/duplicate copies from them to the complainants. OP would also render all necessary assistance to the complainants in getting the record straightened with the Registrar where the sale deed was registered.  OP would also take all other steps, as may be required by the concerned authorities, to safeguard the interest of the complainants.

(ii)    To make payment of an amount of Rs.2,00,000/- to the complainants as compensation for deficiency in service and negligence on its part on account of the loss of the original title deeds of complainant No.2.  Out of the said amount, complainant No.2 shall be entitled to the share of Rs.1,50,000/- and the remaining amount of Rs.50,000/- shall be payable to complainant No.1.

(iii)   To also make payment of an amount of Rs.11,000/- to the complainants towards costs of litigation.

16.         This order be complied with by OP within two months from the date of receipt of its certified copy, failing which it shall make the payment of the amount mentioned at Sr.No.(ii) above, with interest @ 12% per annum from the date of filing of the present complaint till realization, apart from compliance of directions at Sr.No.(i) & (iii) above.
17.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
23/09/2015	[Suresh Kumar Sardana]	[Surjeet Kaur]	[P. L. Ahuja]
hg	Member	Member	President