ADITYA AGRAWAL vs CHAIRMAN AND C.E.O., HONKONG And SHANGHAI BANKING CORPORATION LTD.

SHRI Aditya Agrawal and Mrs. Kusum Agrawal have filed a joint complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act''), averring therein that for the purchase of a residential accommodation (No. 16/2, First Floor, Kalkaji, New Delhi), they had taken a Housing Loan of Rs. 18.36 lakhs from opposite party No. 1, which was repayable in eight years. It is stated that as required by the opposite party, the complainants had executed all the documents in response to opposite party''s letter dated 16th January, 2001. It is stated that in consultation with the opposite parties, the date of the execution of the sale deed was fixed as 23rd February, 2001 and as the complainant had already advanced a sum of Rs. 5 lakhs to the seller as advance money, the opposite party was requested to advance a sum of Rs. 15 lakhs only out of the sanctioned loan of Rs. 18.36 lakhs. It is stated that the representative of O.P.-Bank, on the appointed day, came at the office of the Sub-Registrar, I.N.A. Market, New Delhi, with a cheque for Rs. 18.36 lakhs, instead of Rs. 15 lakhs. Thereafter, the complainants informed him that the cheque should have been for an amount of Rs. 15 lakhs and not for Rs. 18.36 lakhs. It is stated that the complainants were advised by the O.P.-Bank to send back the cheque, so that another cheque for Rs. 15 lakhs may be issued. It is also stated that the opposite party-Bank further advised the complainants to deliver the original registration receipt to its representative, so that the same may be kept as security pending collection of the original sale deed from the office of the Sub-Registrar. It is stated that as per the above instructions of the O.P.-Bank, the representative of the O.P. brought another cheque for Rs. 15 lakhs. It is stated that, as advised, the original receipt was handed over to the representative of the O.P.-Bank, so that the O.P.-Bank may collect the sale deed from the office of Sub-Registrar, New Delhi. It is stated that the date for collection of sale deed from the Sub-Registrar was mentioned as 28th March, 2001 and the opposite parties were supposed to collect the same from the Sub-Registrar on that date but the same was not done by the opposite parties.

IT is stated that it was on 25th May, 2001 that the representative of the O.P.-Bank disclosed to the complainants that the original receipt of the sale deed had been lost from the custody of the Lawyer of the O.P.-Bank and an indemnity bond in favour of the Sub-Registrar would be required to be submitted to him in order to have the original sale deed released from the office of the Sub-Registrar, New Delhi. IT is stated that thereafter the OP''s representative brought the indemnity bond in the morning of 26th May, 2001, which was signed by complainant No. 2 in good faith. IT is stated that in the evening of 26th May, 2001, O.P. No. 5 came to the complainants and informed that the original sale deed had already been collected by someone else after submitting the original receipt in the office of the Sub-Registrar New Delhi, on 21st May, 2001. IT is stated that thereafter the complainants gave a legal notice dated 14th June, 2002, to which a reply was given by the opposite parties vide letter dated 2nd August, 2002, denying the claim of the complainants. Alleging ''deficiency in service'' on the part of the opposite parties, the complainants in the present complaint have prayed that appropriate direction be issued to the opposite parties to make good the loss suffered by the complainants and compensate them to the tune of Rs. 22 lakhs plus interest at the rate of 18% per annum w.e.f. 21st May, 2001 till payment. IT has also been prayed that the opposite parties be directed to execute an indemnity bond in favour of the complainants, indemnifying the complainants against all loss, injury or damage that may be caused to them due to the loss of the title document. The complainants have also claimed a compensation of Rs. 10 lakhs for harassment, mental agony and delay in settlement and also cost of litigation amounting to Rs. 1,00,000/-. We have heard the learned Counsel for the complainants at length on the question of admission of the present complaint and have also carefully gone through the documents/material on record. The alleged acts of deficiency in service (alleged acts of commission and omission) as per the case of the complainants, in the present complaint can be summarised as under : (i) that the receipt of the sale deed was intentionally not kept by the O.P.-Bank in safe custody; (ii) that no instructions were given to ensure that the receipt, pertaining to a valuable security, is handled only through a fail safe and accountable security procedure by officers of the O.P.-Bank, authorized to do so; (iii) that the intention of the O.P.-Bank was to enable the culprit to misappropriate the receipt and eventually the sale deed document; (iv) that though the sale deed document was lost, the O.P.-Bank did nothing during intervening 3 months, like reporting the matter to the police and the Sub-Registrar; (v) that the O.P.-Bank has done nothing, for the last two years, to effectively take up the crime at the highest level in the police, which a Bank of O.P.''s stature has the capacity to do. The attempts of the O.P.-Bank appear to be to shelve the matter; (vi) that in an institution like Bank notwithstanding what investigations are done by the police it is customary that internal investigations are done by the Bank also to fix responsibility and penalize the officers, agents and servants of the Bank entrusted with the charge of a valuable security, if such a security gets misappropriated from their custody but, no such investigations have been done and no officer, servant or agent of the O.P.-Bank has been penalized. The attempt of the O.P.-Bank is once again to shelve the matter; (vii) that the sale deed document of the complainants has been misappropriated with the criminal intent of the culprit to strike at the complainants at will, at time and place of his choice, aided and abetted by the O.P.-Bank, its officers, agents and servants, whom the O.P.-bank is protecting; and (viii)that the disappearance of the sale deed document of the complainants which was entrusted to the O.P.-Bank as a security, by a criminal act, has made the life of all family members of the complainants insecure, resulting in mental agony and complete loss of peace of mind.

All the above alleged acts of commission and/or omission on the part of the opposite parties, as alleged by the complainants in the present complaint, by no stretch of imagination can be treated or termed as a consumer dispute within the meaning of Section 2(1)(e) of the Act and, therefore, the present complaint, filed by the complainants, is not maintainable and deserves to be dismissed on the above ground alone.

MOREOVER, the present complaint, filed by the complainants, on the face of it involves complex and complicated questions of facts which would require voluminous evidence including evidence of experts and thereafter their detailed cross-examination. Considering the complex questions of fact involved in the present complaint, it is not possible for us to decide the same in our summary jurisdiction. In our above views we stand fortified by a decision of the Hon''ble Supreme Court in case Synco Industries v. State Bank of Bikaner & Jaipur & Ors., I (2002) CPJ 16 (SC)=1986-2002 Consumer 5105 (NS), and a recent decision of the Hon''ble National Commission in case M/s. Doon Valley Rice Ltd., Karnal v. State Bank of India, Karnal, reported as II (2003) CPJ 196 (NC)=1986-2002 Consumer 6785 (NS). In view of the position explained above, the present complaint, filed by the complainant, is dismissed in limine being not maintainable before a redressal agency established under the Act. No order as to costs. However, before concluding we would like to make it clear that the dismissal of the present complaint by this Commission, will not operate to the prejudice of the complainants in the matter of pursuing any other remedy that may be available to them under any other law for the time being in force. The above mentioned complaint, filed by the complainants, stands disposed of in above terms. Complaint dismissed.