Order-12.
Date-14/12/2016.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in short is that he took a loan of Rs.3 lakhs from Erstwhile Tata Home Finance Ltd. for purchasing a plot of landed property situated at the premises No.928, Natunpally, Purba Putiyari, Dakshin Para, Kolkata – 700 093 in the year 2001. Tata Home Finance Ltd. got amalgamated with IDBI Finance Ltd. and thereafter, in the year 2011 the Erstwhile IDBI Home Finance Ltd. got amalgamated with IDBI Bank Ltd. and all the loans, liabilities, assets etc. of the said THFL (Tata Home Finance Ltd.) since then belonged to IDBI Bank Ltd. Loan A/c. No.135675100001913. The sale deed was registered on 13-11-2001 at the office of District Sub Registrar, Alipore, IGR No.P-2209 dated 13-11-2001 issued by the said office and as a security the complainant deposited the original IGR to the OP on 13-11-2001. Though the recovery of loan period was 15 years, the complainant repaid the loan amount within 2013. The complainant paid an amount of Rs.5,61,660/- to the OP as repayment of loan (principal + interest). Despite such payment the complainant is not in a position to become owner of the said loan without original sale deed. The complainant vide letter dated 05-08-2014 requested the OP to hand over the original deed for the plot of land registered on 13-11-2001. Despite receipt of the letter OP did not pay any heed to the request of the complainant. On 27-01-2015 the complainant again wrote a letter to the Centre Head of the OP at their office at 6, Royd Street, Kolkata – 16 and requested them to hand over the deed of land but to no result. It is alleged that OP has original IGR and original unregistered sale agreement in their custody. OP has also avoided their responsibility for collecting the original deed. OP has failed and neglected to collect the sale deed. It is alleged that OP is deficient and negligent in service for not collecting the sale deed despite full repayment of the said loan amount. Hence, this case.
OP has contested the case in filing written version contending, inter alia, that the instant case is not maintainable either in law or in fact. it is stated that the complainant availed a home loan of Rs.3 lakhs from the Erstwhile Tata House Finance Ltd. for purchase of land by signing various loan documents and the deed was registered on 13-11-2001, all being matter of record. The deed was pending being P. No.2209 dated 13-11-2001 was in the custody of the complainant for payment of balance stamp duty. The said pending IGR has not hand over to the Erstwhile Tata House Finance Ltd. on repeated reminders with some mala fide intentions by the complainant. Subsequently, the complainant handed over the IGR to the OP Bank in the month of December, 2011. The complainant repaid the entire outstanding dues of the OP Bank in the year 2013 and the OP Bank also issued ‘no due’ certificate in favour of the complainant vide its letter dated 19-07-2013. Thereafter, the OP Bank asked the complainant to take back the original IGR with the other documents against proper receipt. But the complainant refused to take back the original IGR from the OP with some mala fide intention. The complainant held the original IGR till 2011 and has not withdrawn the deed from Registration Office. It is denied that the IGR was handed over to Tata Home Finance Ltd. on 13-11-2001. It is the duty of the complainant to pay the balance stamp duty to the concerned Registration Office for complete registration of the deed of conveyance. OP bank has started that the original deed of conveyance is still in the custody of the District Sub Registrar, Alipore, South 24 parganas. It is stated that the complainant did not take back the original IGR bearing no.2209 deposited to bank with an ulterior motive. It is denied that the complainant is entitled to Rs.18 lakhs and in part thereof from the OP. It is stated the complainant has not hired service of the Bank against consideration for collecting the deed from Registration Office and OP Bank is not a service provider. This OP has prayed for dismissal of the case.
Points for Decision
- Whether the OP Bank is deficient in rendering services of the complainant?
- Whether the complainant is entitled to get the relief as pryed for?
Decision with Reasons
We have perused the documents on record i.e. Xerox copy of IGR, Xerox copy of letter dated 19-07-2012 in respect of closure of housing loan of the complainant, copy of letter dated 05-08-2014 addressed to the OP Bank by the complainant, copy of letter dated 27-01-2015 addressed to the OP Bank by the complainant, legal notices and other documents on record.
It appears that the OP took a loan of Rs.3 lakhs from Erstwhile Tata Home Finance Ltd. for purchasing a plot of landed property situated at 928, Natunpally, Purba Putiyari, Dakshin Para, Kolkata – 700 093 in the year 2001. Tata Home Finance Ltd. was subsequently amalgamated with IDBI Home finance Ltd. (IDBI Home Finance Ltd.) and in the year 2011 the Erstwhile IDBI Home finance Ltd. got amalgamated with IDBI Bank Ltd. We find that Tata Home Finance Ltd. or IDBI Home finance Ltd. has not been made a party in this case for the reason as thought fit and proper by the complainant. It appears from the own version of the complainant that IDBI Home finance Ltd. got amalgamated with IDBI Bank Ltd. in the year 2011 and since then all the loans, liabilities, assets etc. of the THFL belonged to IDBI Bank Ltd.
Be that as it may, it appears that the complainant paid off the entire loan amount including principal in 2013. It appears that the IDBI Bank also issued clearance certificate on the subject property as the total home loan amount was repaid by the complainant in full to IDBI Bank Ltd. The controversy arose when the complainant did not receive the deed of conveyance in respect of the subject plot from the OP Bank. The complainant vide letters dated 05-01-2014 and 27-01-2015 requested the OP Bank to hand over the Deed of Land but to no result. It is stated by the OP Bank that the original IGR was held by the complainant since the date of issue till December, 2011.
Curiously, on one hand OP has stated that original IGR was in custody of the complainant and the original IGR was not deposited to Tata Home Finance Ltd. on 13-01-2001, whereas it has again admitted that the complainant handed over the original IGR to the OP sometime in December, 2011. Be that as it may, it is a general practice that the registered Sale Deed is to be deposited to Bank as security in respect of mortgage of immovable property. In the present case, the deed was registered on 13-11-2001 and was pending for payment of balance stamp duty and registration fee as it appears from the No.PO-2209 dated 13-11-2001. It is admitted by the OP Bank that the complainant handed over the original IGR to the OP Bank sometime in December, 2011 and the loan was liquidated in the year 2013 by the complainant. So, as a matter of fact all the documents including the original sale deed should be handed over to the complainant after repayment of loan. It is the rule of law that the sale deed is to be deposited to the Bank as security in respect of mortgage of immovable property. Mortgage has no meaning if the deed is not deposited with the OP Bank. Bank is to collect the original sale deed from the concerned Registration Office and keep it under its custody till the liquidation of the loan amount by the loanee. So, it is the liability of the Bank to collect the original sale deed as the concerned deed is treated as mortgage of the immovable property till clearance of the loan amount. It is true that there is no document forthcoming before us as to the date, month and year the complainant paid off the balance stamp duty and registration fee with the Registration Office. The complainant has not also produced any receipt to show the payment of balance stamp duty for completing the registration of the deed of conveyance. The period of collection of the original deed of conveyance is within a period of two years to be computed from the date when the balance stamp duty and registration was completed. The DSRI at Alipore is not made a party in this case for the reason best known to the complainant. So, we cannot make any direction to the matter of anomaly of deed number appearing on ISR as alleged by the OP Bank. It is given to understand to us that the deed number mentioned on the original IGR is incorrect and as a result, the sale deed is not traceable. We also find corroboration about it from the copies of lawyer’s letter dated 24-07-2015, on record filed by the OP.
We find that OP Bank slept over the matter till 24-07-2015. OP should have taken the initiative for collection of the deed or should have persuaded the complainant to complete registration of the deed of conveyance on payment of balance amount. But OP has failed and neglected to do so. Deed is kept in the custody of bank for creating mortgage. The complainant liquidated the loan in the year 2013. OP Bank did not enquire with the complainant whether he paid off the balance stamp duty to complete the registration of the deed of conveyance or not or to furnish receipt before the bank showing payment of balance stamp duty. OP also did not inform the complainant alleging incorrect number of deed appearing on the IGR.
The quality and standard of service has to be tested on the anvil of definition provide by Section 2(1)(g) which means any fault, imperfection, shortcoming or any inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being inforce or has been undertaken to perform by a person in pursuance of a contract or otherwise in relation to any service. While it is a duty of the OP bank to collect the concerned sale deed from the registration office, non-return of the same to the complainant or not collecting the same amounts to shortcoming, fault, imperfection, inadequacy in the quality, nature and manner of performance which it was supposed to maintain but failed.
In our considered opinion it appears from the documents on record that the deed of conveyance was not collected or misplaced due to negligence on the part of the OP Bank because the Bank was under legal obligation to return the document being collected from the Registration Office or from the complainant. Failure to return the deed of conveyance is a clear case of deficiency of service for which consumer is entitled for compensation besides getting back of loan paper. It is stated by the complainant that he requires the sale deed as a document of ownership of the subject land. As we find, owing to the careless conduct of the concerned staff/official of the OP, the complainant has been suffering so long.
We, therefore, deem it fit and proper to direct the OP to.
- Lodge FIR regarding loss of sale deed,
- Given public notice in a widely circulated newspaper regarding loss of sale deed and
- Take necessary steps to return the original deed and, in case the deed cannot be traced out, arrange and ensure the complainant gets certified copy of sale deed from the concerned authority forthwith,
- Bear entire incidental costs in this regard, and
- Pay compensation and litigation to the complainant.
Subsequently, the instant case succeeds.
Hence,
Ordered
That the instant case be and the same is allowed on contest against the OP.
OP is directed to return the original deed to the complainant and in case, the deed cannot be traced out, to ensure and arrange issuance of certified copy of sale deed in favour of the complainant through the concerned authorities in the manner as laid down hereinbefore within 60 days henceforth and pay compensation and litigation cost of Rs.20,000/- and Rs.10,000/- respectively to the complainant within the aforesaid stipulated period, failing which the complainant may initiate execution proceeding against OP in accordance with law and in that case OP shall be liable to pay a penal fine at the rate ofRs.100/- per diem to be paid to this Forum from this date till compliance of order in toto.
