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Judgment
Heard Mr. Yashdeep Sethi, Advocate, for the appellant. Since none appeared on behalf of the respondent, she is proceeded ex-parte.
Above appeal has been filed against the order of Karnataka State Consumer Disputes Redressal Commission, Bangaluru, dated 05.07.2022, partly allowing Consumer Complaint No.113 of 2019, with cost of Rs.25000/- and directing the appellant to return original title deeds of the collateral property, subject to discharge of loan. In the event of failure to return the title deeds, the appellant was directed to pay Rs.3 lacs as compensation to the respondent within 30 days, failing which the amount shall carry interest @6% p.a. from such date till realization.
The office has reported delay of 75 days in filing the appeal. The appellant has filed IA/11993/2022, for condoning the delay, in which, it has been stated that certified copy of the order dated 27.12.2022 was received on 10.11.2022. Thereafter, the appellant applied for certified copies of certain documents with the State Commission, which were made available to them on 07.12.2022. Thereafter, the Advocate drafted the appeal and subsequently filed before this Commission. The delay is neither intentional nor deliberate. If the delay is not condoned, the appellant shall suffer irreparable loss which cannot be compensated in any terms. For the reasons stated in the application and in the interest of justice, IA/11993/2022 is allowed and delay condoned.
Smt. Shailaja N.K. filed CC/113/2019 for directing the appellant to pay (i) compensation and punitive damages for misplacing the original title deeds of the collateral property by paying 30% of the value of the collateral property i.e. Rs.3000000/- alongwith interest @ 18% p.a. from 03.03.2017 till realization; (ii) pay Rs.500000/- as compensation to the complainant for mental agony, stress and trauma caused to the complainant because of the negligence and deficiency in service; (iii) Rs.50000/- to the complainant as cost of litigation; and (iv) grant any such other and further reliefs, as this Forum may deed fit and proper, in the facs and circumstances of the case.
Smt. Shailaja N.K. took a loan of Rs.650000/- from the appellant. For availing the loan facility, she deposited (a) Original Deed of Confirmation dated 26.10.2004; (b) Agreement for Sale Deed dated 18.03.1995; (c) G.P.A dated 19.06.1998; (d) G.P.A dated 09.07.1984; (e) Affidavit sworn by Carmin D'Silva before Notary swearing that she has sold the property in favour of V.C. Venupogal; (f) Receipt for having paid Development Charges Byatarayanapura CMC; (g) Tax paid receipt for the period from 1997 to 2000; (h) Tax paid receipt for the period from 2001; (i) Particulars of self-assessment for the period of 2003-2004; (j) E.C. for the period of 29 years from 01.04.1971 to 31.03.2000 issued by Sub-Registrar, Bangalore North Taluk; and (k) RTC Extract and Pahani in respect of Sy.No.11/1 of Hennur Village, Kasaba Hobli, Bangalore North Taluk, showing the property transferred to Ramanjani by inheritance as per M.R. No.5/1988-89 for creating equitable mortgage of the said loan. Due to financial crunch, the complainant wanted to sell her house for which she required the copies of the title deeds. On 08.03.2017, the complainant sent a letter to the opposite party and also paid requisite fees for obtaining certified copies of the title deeds and the documents deposited with the opposite party. Thereafter, the complainant sent various reminders from 02.06.2017 to 31.03.2018 but the opposite party failed to supply the documents on one pretext or the other. On 09.04.2018, the opposite party sent a letter to the complainant informing that the original title deeds and the documents have been misplaced and the same would be supplied to the complainant as soon as traced out. The complainant deposited 11 original documents but the opposite party alleged that the complainant had deposited only 4 original documents. In the loan agreement, 180 EMIs were fixed against which the complainant had paid 182 EMIs. The opposite party also informed that due to increase in the interest rate the tenure of loan was increased to 195 months and also issued letter dated 07.08.2018 disclosing that an amount of Rs.410298.37 was overdue. Then the complaint was filed.
The appellant filed written version and contested the complaint. The appellant stated that the complainant had deposited only 4 documents with the opposite party and not 11 documents as alleged. They are ready to recreate 4 documents and supply the same to the complainant. Regarding excess interest charged, it is stated that the complainant has opted for floating rate of interest and due to change in the PLR of the company, the rate of interest was accordingly changed which also resulted in change of the EMI tenure. The opposite party has changed the rate of interest as per guidelines of Reserved Bank of India and in accordance with the terms & conditions of the loan agreement. The opposite party also raised the preliminary issue of limitation on the ground that the documents were demanded in March, 2017. Therefore, the complaint ought to have been filed in or before March, 2019. The loan was sanctioned in the joint names of the Mrs. Shallaja N.K. (complainant), Mr. Venugopal Nair and Jagadish, who had not been made parties to the complaint. Therefore, the complaint suffers from non-joinder of necessary parties.
State Commission, after hearing the parties, by the impugned order dated 05.07.2022 held that the documents were deposited with the opposite party in the year 2004. The complainant sought certified copies of the documents in June, 2017 but the opposite party could not trace out the documents upto 2022. The State Commission held that the opposite party was deficient in service and directed it as stated above. Hence, this appeal has been filed.
It is admitted by the appellant that the documents have been misplaced. In the appeal, it is stated that they are willing to create the lost documents to the respondent. It is stated that the appellant is still searching the lost documents. The appellant has failed to comply with the directions of the State Commission to return the documents. In the reply filed in the complaint it is stated that the appellant is still searching the documents. If the appellant could not search the documents even after expiry of more than five years, it cannot be expected that it an search the documents now. Therefore, the State Commission has rightly directed the appellant to pay compensation of Rs.3 lakhs to the complainant for misplacing the documents.
As far as question of increase in tenure of loan from 180 months to 195 months is concerned, the appellant took plea that as the respondent had opted for floating rate of interest, the tenure of loan was increased due to the guidelines issued by the Reserve Bank of India and as per terms & conditions of the loan agreement. The respondent has not controverted this fact. Rather the respondent has applied for foreclosure of the loan. In any case, the respondent has not claimed any relief in this respect. Therefore, the State Commission directed the appellant to return the title deeds after discharge of loan. As far as question of non-joinder of necessary party is concerned, it is admitted by the appellant that the loan was sanctioned in the joint names of the (complainant), Mr. Venugopal Nair and Jagadish. The complainant has no grievance against the co-borrowers nor any allegation has been made by the appellant against them. Therefore, they are not necessary parties.
Regarding the question of delay, it is admitted by the appellant in the appeal filed on 16.12.2022 that they are still searching the documents. Therefore, the cause of action is still continuing.
Counsel for the appellant relied on the judgment of this Commission in Chief Manager, United Commercial Bank & Anr. Vs. Akhileshwar Kumar Srivastava in RP/3095/2014 decided on 09.10.2014 and the District Forum in Kuldeep Singh vs. Indusind Bank Vehicle Finance Ltd. in CC/151/2018 decided on 30.07.2019 and submitted that the loanee of a financial institution is not a consumer. The above decisions are not applicable to the facts of the case for the reason that in the instant case the respondent had taken a housing loan. Therefore, there is a relationship of consumer and service provider between the appellant and the respondent. The impugned order passed by the State Commission does not suffer from any illegality or irregularity and the appeal deserves to be dismissed.
ORDER
In view of aforesaid discussions, the appeal is dismissed.