By: Sri. Mohamed Ismayil C.V., Member
1. The complaint is filed under section 35 of the Consumer Protection Act, 2019.
The father of the complainant named Uruniyan Paramban Hamza availed a loan of Rs.6,00,000/- from the bank of the opposite party for his business under the name and style of M/s Hamna enterprises. At the time of availing loan Hamza pledged his property having extent of 17.50 cents comprised in survey No.509/4 of Malappuram Amsom, Keezhumuri Desam in Ernad Taluk to the opposite party. Father of the complainant owned the above said property by virtue of document No.1534/1986. The loan was sanctioned 15/01/2007 by the first opposite party . But on 26/02/2014 father of the complainant died and as a result repayment of loan was defaulted. Subsequently the opposite party filed a suit against the complainant and 4 other legal heirs of deceased Hamza before the Hon’ble Munsiff’s Court, Manjeri for recovery of money . But the complainant and other legal heirs of deceased Hamza repaid the entire loan amount and interest to the opposite party on 30/03/2017. On 17/07/2017 the opposite party issued a loan closure statement to the brother of the complainant. Then the complainant and the legal heirs of deceased Hamza repeatedly contacted the opposite party to get back the original title deed of the mortgaged property. But the employees of opposite party sent back every time by saying frivolous excuses and even behaved indecently and ridiculed the legal heirs of deceased Hamza. Because of the non availability of document the complainant and others could not make partition of the property for the last 4 years. The complainant even constrained to complete the construction of the new house due to lack of money as the share of property could not be disposed of. The value of property was decreased due to failure of return of original document by the opposite party. According to the complainant the property lies on the side of Kozhikode- Palakkad highway and market value of the property was 18 lakh rupees per cent. But after the missing of original document the market value of the property has came down to the tune of Rs.10,00,000/- per cent. The negligent act and deficiency in service of the opposite party caused in decrease of market value of the property and for the last 4 years the complainant and others were approaching different branches of the opposite party for getting back the original document of the property. The bad behavior of the employees of the opposite party and non return of document caused suffering of mental agony and hardship to the complainant . So the complainant approached this Commission praying for a direction to return the original document of the property and if the document had lost then direct the opposite party to publish the matter of loss of original document in one leading English news paper and one Malayalam news paper. The complainant also prayed for a direction to the opposite party to make arrangement for a duplicate document to the complaint if the original document had lost. The complainant demanded compensation of Rs.5,00,000/- from the opposite party for suffering of mental agony and hardship due to the misbehavior and negligent act of the opposite party and also prayed for Rs.25,000/- as the cost of the proceedings.
2. The complaint was admitted and issued notice to the opposite party . The opposite party entered on appearance and filed version.
3. In the version it was contended that no cause of action had arisen to file this complaint before this Commission. According to the opposite party one of the legal heirs of deceased Hamza named Assya.K.K died and the complaint’s brother produced the legal heir certificate of deceased Assya K.K only on 05/11/2021. So the complaint is devoid of merits and bonafides. It was admitted by the opposite party that Uruniyan Paramban Hamza availed a mortgage loan for Rs.6,00,000/- from the opposite party on 16/07/2007 and he had deposited title deed ( Document No.1534/1986 of SRO, Malappuram) for creating equitable mortgage in favour of the bank. Later Mr. Hamza committed default in repayment of loan and as a result loan became NPA. Meantime Mr. Hamza died on 26/02/2014. So the bank approached some of the legal heirs of deceased Hamza to remit the due amount or at least to produce revival letter for the loan amount, but they refused to do so. According to the opposite party the bank had no information about the details of the legal heirs of lat Hamza. It is stated by the opposite party that a suit for realisation of money was filed (OS. No.11/2017 ) before the Hon’ble Munsiff’s Court, Manjeri after collecting details of legal heirs from the locality . At the time of availing loan by deceased Hamza and filing of suit, the bank was part of State Bank of Travancore and later it was acquired by the State Bank of India as per order of Govt. of India. After filing the suit the entire due amount of loan was paid by the legal heirs of deceased Hamza . The opposite party contended that all the legal heirs together or the legal heirs with proper authorization have not approached the bank with any request for taking back the deposited documents from the bank for a long time. Later Mr. Harshad , the brother of the complainant approached the bank for getting back the document on 15/07/2021. On that day the copy of legal heirship certificate was produced by Mr. Harshad along with application. Later opposite party came to notice that one of the legal heirs named Assya K.K who is the wife of deceased Hamza has also died. Hence the opposite party directed the brother of the complainant and other legal heirs to produce legal heir ship certificate for releasing the document. According to the opposite party the complaint was filed in the month of September 2021. At the time of filing of this complaint the complainant or any other legal heirs have not produced the legal heir certificate of deceased Assiya.K.K from a competent authority. After receiving notice from CDRC Malappuram, the opposite party contacted brother of the complainant to produce legal heirship certificate of deceased Assya .K.K in order to hand over the original documents. The opposite party received request letter along with legal heirship certificate only on 05/11/2021. According to the opposite party the legal heirship certificate of deceased Assya .K.K was issued on 28/10/2021. It is contended by opposite party that there was no laches on the part of the bank in handing over the document to the legal heirs of the deceased Hamza. It is also stated in the version that since there are several legal heirs , the bank has to make sure and confirm that all the legal heirs have consented for handing over the deposited title deed (Doc. No.1534/1986 of SRO, Malappuram) to a particular person or else all of them have to receive the title deed together . After obtaining the legal heirship certificate of Assya .K.K the bank had informed the legal heirs to visit the bank to receive the documents. The opposite party was always ready and willing to hand over the original document. It is stated in the version that the complainant along with other legal heirs had approached the bank several times in the last 4 years and bank officials behaved with them in an unholy manner and teased them are incorrect, false and denied. The averment that the said property will fetch a value of Rs.18 lakh per cent and that the value of the property has been affected is also denied by the opposite party . The opposite party was acted in accordance with law and there was no negligence and no deficiency in service on the part of the opposite party and prayed for dismissal of complaint with compensatory cost.
4. The complainant and opposite party filed affidavits as part of their respective evidences. Both parties also produced documents in support of affidavits. The documents filed by the complainant marked as Ext. A1 to A4. Ext. A1 document is the copy of plaint in OS 11/2017 filed by the opposite party before the Hon,ble Munsiff’s Court , Manjeri against the legal heirs of deceased Hamza. Ext. A2 document is the copy of loan closure statement dated 17/07/2017 issued by the opposite party in favour of brother of the complainant. Ext. A3 document is the copy of letter dated 24/08/2021 issued by the opposite party to the legal heirs of deceased Hamza stating that title deed No.1534/1986 was not traced out. Ext. A4 document is the copy of letter dated 06/11/2021 issued by the opposite party stating that title deed has been traced out.
5. The documents produced by the opposite party marked as Ext. B1 to B4. Ext. B1 document is the copy of letter dated 15/07/2021 issued by the legal heirs of deceased Hamza to the opposite party requesting to release the title deed No.1534/1986 of SRO, Malappuram . Ext. B2 document is the copy of legal heirship certificate of deceased Hamza dated 05/11/2018 issued by Tahsildar , Ernad Taluk. Ext. B3 document is the copy of letter dated 05/11/2021 issued by the brother of the complainant to the opposite party requesting to release the title deed No.1534/1986 of SRO, Malappuram. Ext. B4 document is the copy of surviving family membership certificate of deceased Assya K.K dated 28/10/2021 issued by the village officer Panakkad.
6. Heard both parties. Perused the documents and affidavits submitted by both sides. The points arise for the considerations are:-
- Is there any deficiency of service or negligent act on the part of the opposite party?
- Relief and cost.
7. Point No.1 and 2
The complainant contended that his deceased father availed a mortgage loan from the opposite party on 15/01/2007 and he died on 26/02/2014. So default was occurred in repayment of loan. Then the opposite party bank proceeded for realisation of money by filing suit No.11/2017 before the Hon,ble Munsiff’s Court, Manjeri. During the pendency of the suit the legal heirs of deceased Hamza paid entire due amount to the opposite party bank and thereby closed the mortgage loan . The grievance of the complainant is that all the legal heirs of deceased Hamza including the complainant repeatedly contacted the opposite party bank to get back the title deed No.1534/1986 which was deposited as security at the time of availing the loan. But the opposite party bank did not return the document so far. As a result the legal heirs of deceased Hamza could not enjoy their respective shares in the property fruitfully. Moreover the employees of opposite party bank ridiculed and misbehaved towards the legal heirs of deceased Hamza.
8. In the version and affidavit filed by the opposite party it was admitted that the deceased father of the complainant availed a loan for Rs.6,00,000/- from the opposite party after depositing the original title deed No.1534/1986 of SRO, Malappuram. The commission find that the entire due amount of the loan was repaid by the legal heirs of the deceased Hamza on 30/03/2017. This fact was admitted by the opposite party in the version and affidavit. Ext. A2 document also reveals the same. It has come out in evidence that the opposite party did not returned the original title deed to the legal heirs between 30/03/2017 (the date on which the entire due amount was remitted) and 15/07/2021 (the date on which Ext. B1 letter was issued to the opposite party to release the titled deed. At the same time Ext. B2 document which is the legal heirship certificate of deceased Hamza shows that same was issued by the authority on 05/11/2018. But as per Ext. B1 document one of the legal heir Assya K.K died on 16/07/2019. This fact was not challenged by the opposite party . So it can be seen that after repayment of loan on 30/03/2017 all legal heirs of deceased Hamza was available between 05/11/2018 (the date of issuance of Ext. B2 document) and on 16/07/2019(the date of demise of Assya.K.K). During this period of more than 7 months no steps were taken by the opposite party to return the original title deed to the complainant and other legal heirs. The consistent case of the complainant was that after repayment of loan legal heirs of deceased Hamza was constantly contacting the opposite party to release the original document . This averment of the complainant is more reliable and trustworthy especially in a situation where the entire due amount was paid to the bank.
9. Ext. A1 document is the copy of plaint in OS No.11/2017 produced by the complainant before this commission. The suit numbered as O S 11/2017 was filed by the opposite party bank for realisation of money impleading the legal heirs of deceased Hamza. Ext. B2 document also shows that the wife named Assya .K.K and 4 other are legal heirs of deceased Hamza. When going through item No.8 of list of document in Ext. A1 document it can be seen that the original document of sale deed 1534/1986 was possessed by the opposite party at the time of filing of the suit before Hon’ble Munsiff’s Court , Manjeri. During the pendency of suit the entire amount was also paid by the legal heirs of the deceased Hamza. Ext. A2 document is the copy of account closure statement dated 17/07/2017 issued by the opposite party stating that the loan was closed on 30/03/2017 by remitting entire due amount to the bank. So there was nothing to prevent the opposite party legally to hand over the original document especially when all the legal heirs of the deceased Hamza was alive between 05/11/2018 and 16/07/2019. The opposite party initiated legal proceedings to realise the money from the legal heirs of deceased Hamza after collecting information from the locality. But it can be seen that no steps were taken by the opposite party to return the original document to its owners especially when they became parties in the suit No.Os11/2017 of Munsiff’s , Court , Manjeri.
10. The complainant produced Ext. A3 document dated 24/08/2021 issued by the opposite party to the legal heirs of deceased Hamza stating that the original title deed No.1534/1986 was yet to trace out from the branch premises till date and loan was closed on 30/03/2017. So Ext. A3 document shows the negligent act and deficiency in service of the opposite party in handling valuable document of its customers. In banking transaction like loan availed by the deceased Hamza and its subsequent closure a duty was cast upon the opposite party to exonerate the legal heirs by releasing the document pertaining to the mortgaged of property with immediate effect. But he opposite party failed to do so. The complainant also produced Ext. A4 document dated 06/11/2021 issued by the opposite party. As per the contents of Ext. A4 document the original title deed No.1534/1986 has been traced out by the opposite party and expressed readiness to hand over the same to the legal heirs of deceased Hamza. From the perusal of Ext. A3 and Ext. A4 documents it is crystal clear that the original document was mismanaged by the opposite party for the reason best known to them and definitely this situation could have create panic among the owners of the property . So the date of issuance of Ext. B4 document is absolutely immaterial especially when the loan was closed on 30/03/2017 and one of the legal heirs Assya K.K was alive till 16/07/2019. In this situation the contents of Ext. A3 document has no significance as all legal heirs were available during the time of closure of the loan. Moreover the version and affidavit filed by the opposite party keep silence about the issuance of Ext. A3 and Ext. A4 document to the legal heirs of the deceased Hamza.
11. In the evidence adduced by the opposite party it can be seen that the original title deed was not available with the bank when Ext. B1 request was made out on 15/07/2021 by the brother of the complainant. So non production of legal heirship certificate by the legal heirs cannot be taken as a guard by the opposite party in the place of discharging the duty. It is very pertinent to note that Ext. B2 document was issued on 05/11/2018 and loan amount was repaid on 30/03/2017. The definite case of the complainant was that she along with other legal heirs constantly approaching the opposite party to release the document . In this juncture the contents of Ext. A3 document got importance in evaluating the evidence of the case. As per Ext. A3 document the original title deed was missing . The Ext. A4 document which was issued by the opposite party on 06/11/2021 revealed that the original title deed was traced out by the opposite party. Moreover in the affidavit and version the opposite party expressed its willingness to hand over the original title deed. So other aspect regarding the procurement of title deed need not be addressed. Considering all the above analyzed facts and circumstances along with documentary evidences there was negligence as well as deficiency in service on the part of opposite party and then allegation in the complaint stands proved and this commission allows the complaint as follows:
- The opposite party is directed to hand over original title deed No.1534/1986 of SRO to Malappuram to the legal heirs of deceased Hamza or to any of the legal heirs with duly executed authorization letter.
- The opposite party is directed to pay compensation of Rs.5,00,000/ - to the legal heirs of deceased Hamza for the mental agony and hardship suffered due to the negligent act and deficiency in service on the part of the opposite party .
- The opposite party also directed to pay Rs.10,000/- as the cost of the proceedings to the complainant .
The opposite party shall comply this order within one month from the date of receipt of copy of this order otherwise the entire amount shall bear 9% interest per annum till realization .
Dated this 17th day of October , 2022.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A4
Ext.A1: Copy of plaint on OS 11/2017 filed by the opposite party before the Hon,ble Munsiff’s Court , Manjeri against the legal heirs of deceased Hamza.
Ext.A2: Copy of loan closure statement dated 17/07/2017 issued by the opposite party in favour of brother of the complainant.
Ext A3: Copy of letter dated 24/08/2021 issued by the opposite party to the legal heirs of deceased Hamza stating that title deed No.1534/1986 was not traced out.
Ext A4: Copy of letter dated 06/11/2021 issued by the opposite party stating that title deed has been traced out.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B4
Ext.B1: Copy of letter dated 15/07/2021 issued by the legal heirs of deceased Hamza to the opposite party requesting to release the title deed No.1534/1986 of SRO, Malappuram .
Ext.B2: Copy of legal heirship certificate dated 05/11/2018 issued by Tahsildar , Ernad Taluk.
Ext.B3: Copy of letter dated 05/11/2021 issued by the brother of the complainant to the opposite party requesting to release the title deed No.1534/1986 of SRO, Malappuram.
Ext.B4: Copy of surviving family membership certificate of Assya K.K dated 28/10/2021 issued by the village officer Panakkad
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
