BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.41 of 2016

Date of Instt. 19.01.2016

Date of Decision: 06.05.2019

Usha 60 year widow of Sh. Ram Avtar, resident of House No.288, Karol Bagh, Post Office Chogitti, Jalandhar through attorney Sh. Rajan son of Sh. Avinash Sharma, S/o Late Sh. Kharaiti Lal, resident of 108/10, New Guru Nanak Pura (West), Jalandhar.

..........Complainant

Versus

Union Bank of India, Civil Lines Branch, Jalandhar through its Branch Manager.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Jyotsna (Member)

Present: Sh. S. C. Sood, Adv Counsel for the Complainant.

Sh. A. S. Thakur, Adv Counsel for the OP.

Order

Karnail Singh (President)

1. This complaint has been filed by the complainant through her attorney Sh. Rajan son of Sh. Avinash Sharma, wherein alleged that he is the owner of the property bearing No.288 situated at Karol Bagh, Chogitti, measuring 4 marlas 172 Sq. Feet.

2. The OP is engaged in providing banking and financial services to public at large and OP is public sector undertaking and is advertising about its services at large scale. That accordingly, owing to the public belief of the OP, the complainant availed financial services and had mortgaged the above said property to the OP. The property was purchased, vide sale deed bearing number 3531 dated 21.07.2004. The complainant is the owner of the property since its purchase and believing the ownership of the OP mortgaged the property. The financial help was needed for the son of the complainant. That after completing all the formalities and taking the entire documentation, the property was mortgaged. As per terms, the original sale deed No.3531 dated 21.07.2004 was also deposited with the OP. Since then the original sale deed is in the possession of OP.

3. That the complainant had been regularly paying the installments and as of date the entire amount has been cleared and the OP had also issued a letter to this effect that the entire amount has been given and no amount is due in the said loan account. The OP has also issued a certificate to this effect that the entire amount has been cleared. At the time of receiving of the said amount, the OP had assured that the original sale deed shall also be returned, but the OP has inspite of numerous reminders has failed to return the said sale deed even after the expiry of nearly five months. The OPs are merely trustees and the sale deed had been given as bailment which was to be returned upon the clearance of the loan amount. The complainant is the original and exclusive owner of the property and there is no other title holder of the said property. The complainant herself and through her attorney requested number of times to the OP to release the sale deed, but the OP has failed to discharge its obligation, which is tantamount to unfair trade practice as well as deficiency in service on the part of the OP and thus, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP be directed to release the sale deed of property in question and further OP be directed to pay damages to the complainant, to the tune of Rs.1,00,000/- and further OPs be directed to pay Rs.5000/- per month till sale deed is not released.

4. Notice of the complaint was given to the OP, who appeared through its counsel and filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable under the law as such, the same is liable to be dismissed. It is further averred that the present complaint has not been filed by the competent person as such, the same is liable to be dismissed. It is further averred that the complainant is estopped from filing the present complaint by her own act and conduct and even the complaint is barred as the Civil Suit titled as “Vinod Kumar S/o Sh. Ram Avtar Vs. Union Bank of India” is pending in the Court of Sh. Arun Gupta. On merits, it is admitted that the complainant Usha is the owner of the property in question and further submitted that the complainant alongwith her son Vinod Kumar availed the loan facility and also mortgaged the property in her name by way of equitable mortgage by depositing original sale deed in favour of the OP and further admitted that No Due Certificate was issued on 30.07.2015 and before that the son of the complainant had filed a Civil Suit for permanent injunction and has sought the injunction restraining the OP from releasing the original sale deed, the said Civil Suit is pending in the Court of Sh. Arun Gupta, Civil Judge Jalandhar and the answering OP has replied that the OP is to abide by any direction given by the Court for releasing the document. The other averments as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

5. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit Ex.CW1/A alongwith some documents Ex.C-1 i.e. Copy of Attorney and Ex.C-2 Copy of No Due Certificate and then closed the evidence.

6. Similarly, counsel for the OP tendered into evidence affidavit Ex.OWA alongwith some documents Ex.OA to Ex.OD and thereafter, the evidence of the OP closed by order on 23.05.2018.

7. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

8. There is no dispute between the parties that the complainant alongwith her son availed the loan facility from the OP and admittedly, the said loan has been returned and regarding that 'No Due Certificate' was also issued by the OP and copy of the same is available on the file Ex.C-2. The allegations of the complainant are only that despite reimbursement of total loan amount, the OP miserably failed to return the mortgaged document i.e. Sale Deed and claimed compensation for that harassment.

9. That OP replied the version of the complainant simply giving the facts in the written reply that a 'No Due Certificate' was issued on 23.07.2015, but prior to that the son of the complainant has filed a Civil Suit on 31.12.2014, wherein the Court restrained the OP Bank from delivering the Original Sale Deed and due to that reason, the Sale Deed was not released to the complainant.

10. It is admitted that the complainant is sole owner of the property so mortgaged with the OP Bank for availing the loan facility. These facts have been very well narrated in the facts of said judgment Ex.OA. We have considered the plea taken by the complainant that a Civil Suit was filed on 31.05.2014 by the son of the complainant namely Vinod Kumar seeking restraining order from the Court, to restrain the Union Bank from delivering the Sale Deed to Smt. Usha. Admittedly, if Civil Court has passed a stay order, then the OP cannot deliver the document till the final decision of that Civil Suit and ultimately, the said suit was decided on 21.02.2018 and suit of the complainant Vinod Kumar was dismissed and in consequences of dismissal of the suit, the interim stay granted was automatically vacated and from 21.02.2018, the OP bank is duty bound to immediately deliver the copy of the sale deed to the complainant, but despite disposal of the Civil Suit, the OP did not bother to return the original sale deed to the complainant, which is tantamount to deficiency in service on the part of the OP and as such, the complainant is entitled for relief claimed.

11. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OP is directed to deliver the original sale deed to the complainant. Further, OP is directed to pay compensation and litigation expenses of Rs.10,000/-, to the complainant with interest @ 9% per annum from the date of disposal of the Civil Suit i.e. 21.02.2018, till realization. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Jyotsna Karnail Singh

06.05.2019 Member President