Ms. Yalamanchi Vandana Rao v. Syndicate Bank

(PER HONBLE SRI NIMMA NARAYANA, B.A., LL.B., PRESIDENT, ON BEHALF OF THE BENCH)

1. The Complainant filed this complaint under section 12 of the Consumer Protection Act, 1986, seeking a direction to the opposite party to handover the registered Sale Deed along with construction agreement either in original or in duplicate after complying with all legal formalities at their own expense and to pay compensation of Rs.5,00,000/- (Rupees five lakh only) for the mental agony and loss suffered by the complainant and other expenses of Rs.25,000/- (Rupees twenty five thousand only) incurred by the complainants and costs of Rs.10,000/- (Rupees ten thousand only).

2. The case of the complainants in brief as set out in the complaint is that the complainants approached the opposite party bank for a loan for construction of the house and the opposite party sanctioned Rs.3,00,000/- (Rupees three lakh only) loan to the complainants. The complainants deposited the title deeds in respect of plot bearing No.207, admeasuring 200 square yards, situated at Masjidpur Village, Shamirpet Mandal, Ranaga Reddy District and also the original construction agreement, dated 22.11.2005. The complainants also executed mortgaged deed as per the requirement of the bank. The complainants also further availed loan of Rs.2,25,000/- (Rupees two lakh and twenty five thousand only). The complainants actually availed loan from Syndicate Bank, Housing Finance Branch, a sister concern of the opposite party, which subsequently merged with the opposite party. The complainants repaid the loan amount by the end of November 2016 and approached the opposite party for issuance of No Due Certificate and to return the documents, but surprisingly the original sale deed which the complainants deposited with the opposite party bank is found without 1st page. The 1st page of the document was missing. Though, the opposite party bank searched for the missing page of the original Sale Deed, but the same was not traced out and accordingly, informed the complainants that the 1st page of the original documents was not traceable. The complainants insisted the opposite party bank to lodge complaint with the police with regard to missing of the 1st page of the original Sale Deed and to issue paper publication in daily newspaper and also obtain duplicate Sale Deed. The complainants were informed that the procedure of issuing duplicate Sale Deed by the Sub-Registrar, was not in vogue. However, paper publication was issued by the opposite party bank in the daily newspapers. The opposite party however did not agree for lodging complaint to the police. The complainants themselves lodged complaint to the police. Though, the complainants asked for indemnity bond, undertaking affidavits, but the opposite parties did not agree for the same. Alternatively, the complainants were asked to execute the gift deeds interse. The opposite party even did not agree to attest the gift deed. With the loss of 1st page of original Sale Deed and now the absence of duplicate sale deed indemnity bond, undertaking affidavit, the value of the plot of the complainants was reduced and there is every possibility that the complainants would not receive the adequate consideration if they intend to sell the plot. The opposite party is therefore, liable to pay compensation, in view of the mental agony and loss suffered by the complainants on account of loss of 1st page of the original Sale Deed of the complainants. The complainants are also entitled for registered sale deed and the construction agreement in original or in duplicate complying with all legal formalities at their own expense. Hence the complaint.

3. The opposite party filed written version opposing the complaint. The loss of 1st page of the original sale deed deposited by the complainants with the opposite party is admitted. It is further contended that since the entire sale deed is not lost, it is not proper for the opposite party to lodge complaint to the police. As regards filing publication in daily newspapers, it is contended that the opposite party has already issued publication to that effect. The opposite party is not willing to execute undertaking, indemnity bond and affidavit as demanded by the complainants, however, it is ready to issue a letter of comfort in favour of the complainants. It is also contended that loss of 1st page of original Sale Deed, does not in any way reduce the value of the plot. The authenticity of documents is also not affected by loss of 1st page of the original Sale Deed. The offer of the opposite party for issuing of comfort letter, along with the certified copy of the sale deed does not amount to restrictive trade practice. The non-attestation of the gift deed, to be executed by the complainants by the officers of the opposite party also does not affect its authenticity. There is no deficiency of service on the part of the opposite party bank. The complainant is therefore not entitled to the reliefs sought for by them. The complaint is liable to be dismissed with costs.

4. The points that arise for consideration are:- (1) Whether there is deficiency of service on the part of the opposite party? (2) Whether the complainants are entitled for return of the documents i.e. original sale deed and the construction agreement either in original or in duplicate as prayed for? (3) Whether the complainants are entitled for compensation of Rs.5,00,000/- (Rupees five lakh only) as prayed for? (4) To what relief?

5. During the course of trial, the complainant No.1, got himself examined as PW1 and got marked Ex.A1 to A10. The Assistant General Manager of the opposite party Shri Ashok Kumar Dash, is examined as DW1. Ex.B1 to B5 are got marked on behalf of the opposite party. Written arguments are filed by the complainants as well as the opposite party. Heard both sides.

6. Point No.1:- Admittedly, the complainants secured loan in the year 2014 from the Syndicate Bank, Housing Finance Branch, which is a sister concern of the opposite party for construction of their house by depositing original title deed in respect of Plot bearing No.207, admeasuring 200 square yards, situated at Masjidpur Village, Shamirpet Mandal, Ranaga Reddy District and the original construction agreement and also executed mortgaged deed. The complainants also subsequently repaid the loan amount and approached the opposite party for return of the original sale deed and the construction agreement lying with the opposite party, but surprisingly, the 1st page of the original sale deed, document bearing No.7905/2005, lying with the opposite party bank was found missing. Inspite of search, the opposite party could not trace the same and informed the complainant about the same. The opposite party having received the original sale deed, bearing document No.7905/2005, and the Construction of Agreement as security for the loan obtained by the complainants for construction of the house, has got obligation to return the said documents on repayment of the loan amount, as per the terms of the loan agreement. But by sheer negligence on its part, the 1st page of the original sale deed, dated 28.09.2005, was lost and not traceable. There is therefore, imperfection and shortcoming in the manner of retaining safe custody of the documents deposited by the complainants as part of the loan transaction. There is therefore, deficiency of service on the part of the opposite party in the matter of retaining the original sale deed deposited by the complainants as security for the loan. The complainants in fact also obtained loan of Rs.2,25,000/- (Rupees two lakh and twenty five thousand only) in the year 2007, subsequently. The complainant No.1 (PW1), categorically deposed in his evidence that further loan of Rs.2,25,000/- (Rupees two lakh and twenty five thousand only) was obtained by him and the complainant No.2 from Syndicate Bank, Housing Finance Branch, in the year 2007. DW1 has not disputed the same. There was therefore, a 2nd opportunity for the opposite party to verify the documents filed by the complainants as security for the loan. Assuming that the complainants filed the original sale deed, dated 28.09.2005, without the 1st page of the original sale deed and the along with the Xerox copy of the 1st page of the original sale deed, it can still be said that there was negligence on the part of the opposite party in verifying the documents filed by the complainants, since the documents have been received by the opposite party and retained as security for the loan, it can be inferred that the complainants filed the original sale deed in entirety including the 1st page of the sale deed and only because of negligence/shortcoming on the part of the opposite party, the 1st page of original sale deed, dated 28.09.2005 was lost, while it was in the custody of the opposite party. There is therefore, deficiency of service on the part of the opposite party in the matter of keeping custody of the original sale deed and the construction agreement deposited by the complainants as security to the loan obtained by them. This point is accordingly, decided in favour of the complainants and against the opposite party.

7. Point No.2:- It is the evidence of the complainant No.1 (PW1) that he along with the complainant No.2 obtained housing loan from the Syndicate Bank, Housing Finance Branch, which is a sister concern of the opposite party and which later merged with the opposite party and after repaying the loan amount, approached the opposite party to receive the original registered sale deed and construction of Agreement, deposited by them with the Syndicate Bank, Housing Finance Branch, as security for the loan, but the opposite party informed the complainants that the 1st page of the original Sale Deed, dated 28.09.2005, has found missing and was not traceable. There is no whisper in the evidence of DW1 disputing the repayment of the loan amount by the complainants. In fact, as per Ex.B5 Statement of Account, the entire loan amount was cleared by the complainants as far back as 30.11.2016. The complainants having repaid the entire loan obtained by them from Syndicate Bank, Housing Finance Branch, they are therefore entitled to receive the documents filed by them towards the security of the loan amount. Admittedly, the complainants filed original sale deed, dated 28.09.2005 and the construction Agreement dated 22.11.2005. They are therefore, entitled to receive the said documents, the loan amount having been repaid in full by them. But, the 1st page of the original sale deed having been lost in the custody of the opposite party, it is the apprehension of the complainant that they would not be able to sell the plot covered by the original registered Sale Deed for an attractive price, in the absence of the 1st page of the original registered sale deed. The price of the land would be considerably reduced thereby causing loss to the complainants. The complainants, therefore, seek resolution of the problem arising out of missing the 1st page of the original sale deed. The complainants therefore, pray for execution of indemnity bond, undertaking affidavit and publication in the daily newspaper, about the lost of 1st page of original sale deed, bearing No. No.7905/2005, dated 28.09.2005. The opposite party no doubt issued publication under Ex.B3, Times India (English Daily), dated 22.02.2017.and Ex.B4, Mana Telangana, dated 22.02.2017, whereunder the members of the public were notified about the loss of the 1st page of the original sale deed, dated 28.09.2005, but refused to execute the indemnified bond, undertaking Affidavit. It also refused to attest the gift deed to be executed by the complainants interse. In the absence of 1st page of the original Sale Deed, dated 28.09.2005, the prospective purchasers of the property covered by sale deed, dated 28.09.2005, undoubtedly may entertain suspicious with regard to the authenticity of the document and also quote a lesser consideration for the said property. To obviate this situation, it is therefore necessary that proper steps need to be taken to ensure that the prospective purchasers may not entertain any doubt with regard to the authenticity of the original sale deed and the value of the property may not also be reduced. In the facts and circumstances of the case, this Forum is therefore of the considered view that the proposed gift deed to be executed by the complainants interse, should be attested by the Manager of the opposite party and an affidavit, an undertaking should be executed by the opposite party bank in favour of the complainants to the effect that the 1st page of the original sale deed dated.28.09.2005, was lost in the custody of the opposite party bank and that the original sale deed in the absence of the 1st page thereof is authentic. It is seen from Ex.B3 and B4 that publication was already given in the daily newspapers to the effect that the 1st page of the original sale deed, dated 28.09.2005 was lost. The execution of the gift deed and the attestation thereof by the Manager of the opposite party and the execution of an undertaking an affidavit, ensure that no prospective purchaser would entertain, doubt with regard to the authenticity of the original sale deed, dated 28.09.2015 and the market value of the property covered by the original sale deed, was also not reduced on account of missing of 1st page of the sale deed, dated 28.09.2005. The complainants are therefore, entitled to receive the original sale deed, dated 28.09.2005 and construction agreement from the opposite party along with original publication under Ex.B3 and B4 and an affidavit and an undertaking that the 1st page of original registered sale deed dated 28.09.2005 was lost in the custody of opposite party and that said registered sale deed is authentic. This point is accordingly decided in favour of the complainants and against the opposite party.

8. Point No.3:- It is the evidence of the complainant No.1 (PW1) that he along with the complainant No.2 and their legal heirs could not be able to sell the property covered by the original sale deed, dated 28.09.2005 and they would be forced to sell at a low price in view of the loss of 1st page of the registered sale deed document No. 7905/2005, dated 28.09.2005 and they would suffer financial loss apart from suffering mental agony and injury to their rights. The complainants are therefore, entitled for compensation of Rs.5,00,000/- on account of deficiency of service on the part of the opposite party. The complainant also relied upon the decisions of the Honble National Commission, in Ebrahimkutty vs. Myyanad Regional Co-operative bank, wherein compensation of Rs.5,00,000/- (Rupees five lakh only) is awarded on account of loss of the documents belonging to the complainant. It also relied upon another decision of Maharasthra, Honble State Commission in Leenata Dhamankar vs. State Bank of India, wherein Rs.3,00,000/- (Rupees three lakh only) compensation was awarded to the complainants. The complainants relied upon yet another decision in Indian Overseas Bank vs, A.Bal Reddy, wherein the Andhra Pradesh State Consumer Disputes Redressal Commission, awarded compensation of Rs.3,00,000/- (Rupees three lakh only) to the complainant for loss of documents. In the instant case, in view of the finding on point No.1, there is deficiency of service on the part of the opposite party in the matter of keeping the original documents deposited by the complainants in safe custody. Admittedly the 1st page of the original sale deed, dated 28.09.2005 was lost from the custody of the opposite party, thereby affecting the authenticity of the document and the value of the property covered by the document dated 28.09.2005. In view of the finding on point No.1, that there is deficiency of service on the part of the opposite party and in view of the uncontroverted evidence of PW1 that the complainant suffered mental agony, financial loss and reduction of the value of the property covered by the document, dated 28.09.2005 on account of loss of 1st page of the original document and also authenticity of the sale deed dated 28.09.2005. The complainants are entitled for compensation. The complainants are therefore entitled for the compensation of Rs.1,50,000/- (Rupees one lakh and fifty thousand only) towards mental agony and financial loss suffered by the complainant on account of loss of 1st page of the original document, sale deed dated 28.09.2005. The complainants are also entitled for Rs.25,000/- (Rupees twenty five thousand only) towards expenditure and Costs of Rs.10,000/- (Rupees ten thousand only) as prayed for. This point is accordingly, answered in favour of the complainants and against the opposite party.

9. Point No.4:- In view of findings on point No.1 to 3, the complaint is partly allowed with the following terms:- (1) The opposite party is directed to return the original sale deed and the construction agreement to the complainants. (2) The opposite party is also directed to execute the undertaking affidavit that the 1st page of the document of Sale Deed, bearing No.7905/2005, dated 28.09.2005, was lost in its custody and the sale deed document No.7905/2005, dated 28.09.2005 is authentic. (3) The opposite party is also directed to furnish the original publication under Ex.B3 and B4 to the complainants. (4) The opposite party is also directed to pay compensation of Rs.1,50,000/- (Rupees one lakh and fifty thousand only) for mental agony and financial loss suffered by the complainant on account of missing of 1st page of original Sale Deed, dated 28.09.2005, apart from Rs.25,000/- (Rupees twenty five thousand only) towards expenditure and Costs of Rs.10,000/- (Rupees ten thousand only) as prayed for. Time for compliance is 30 (Thirty) days only. If the opposite party fails to comply the order within the stipulated time, the amount awarded in clause 4 shall carry interest @ 7% per annum till realization. Dictated to steno transcribed and typed by her pronounced by us on this the 08th Day of November 2018. PRESIDENT MEMBER APPENDIX OF EVIDENCE WITNESSES EXAMINED For Complainants:- PW1 : Yalamanchi Vandana Rao. For Opposite Party:- DW1 : Ashok Kumar Dash Documents Marked:- For Complainants: Ex.A1 is the Photostat copy of Miscellaneous Receipt, dated 22.07.2017 & Sale Deed, dated 28.09.2005. Ex.A2 is the Photostat copy of Construction Agreement, dated 22.11.2005. Ex.A3 is the Photostat copy of Certificate, dated 23.06.2010. Ex.A4 is the Photostat copy of Certificate, dated 23.06.2010. Ex.A5 is the Photostat copy of Certificate, dated 20.07.2015. Ex.A6 is the Photostat copy of Statement of Accounts, dated 01.04.2012 to 31.03.2013. Ex.A7 is the Photostat copy of Statement of Accounts, dated 01.01.2016 to 29.09.2017. Ex.A8 is the Photostat copy of Statement of Accounts, dated 01.03.2016 to 29.09.2017. Ex.A9 is the Photostat copy of letter, dated 20.01.2017. Ex.A10 is the Photostat copy of Reception Centre Acknowledgment, dated 25.01.2017. For Opposite Party: Ex.B1 is the Photostat copy of Sale Deed, dated 28.09.2005. Ex.B2 is the copy of original letter, dated 20.01.2017. Ex.B3 is the Newspaper (English Daily), Public Notice for loss of Sale Deed Page. Ex.B4 is the Newspaper (Telugu Daily), Public Notice for loss of Sale Deed Page. Ex.B5 is the Statement of Accounts, dated 01.01.2014 to 16.02.2017. PRESIDENT MEMBER