State Consumer Disputes Redressal Commission
G. Vishnu Prasad vs 1.Icici Bank Ltd., on 6 November, 2023
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BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.177/2019
Between :
Mr. G. Vishnu Prasad, S/o. Mukundam,
Aged about: 59 years, Occ: Retd. Employee of ICICI Bank
R/o. Flat No.501, 04th Floor, Carcherla Castle,
1-2-412/5, Gagan Mahal Colony, Domalguda,
Hyderabad - 500029.
...Complainant
And
1.ICICI Bank Ltd., Rep. by its Authorized Officer, Having its Corporate Office At ICICI Bank Towers, Bandra-Kurla Complex, Mumbai - 400051.
2. ICICI Bank Ltd., Rep. by its Authorized Officer, Regional Office at Plot No.12, Gachibowli, Hyderabad - 500032.
...Opposite parties Counsel for the Complainant : Mr. Rusheek Reddy K.V. Counsel for the Opposite parties : M/s. S. Nagesh Reddy & Associates.
QUORAM : Hon'ble Sri V.V.Seshubabu, M ember (M-J), & Hon'ble Smt.R.S.Rajeshree, M ember (N-J) MONDYA, THE SIXTH DAY OF NOVEMBER TW O THOUSAND TWENTY THREE Order : (Per Hon'ble Sri V.V.Seshubabu, M ember-Judicial)
1. The complaint is filed on 10.09.2019 U/s.17 (a) (i) of C.P. Act, 1986, seeking direction against the opposite parties to pay Rs.50,00,000/- towards damage, mental agony, harassment and financial loss suffered by complainant; to take all necessary steps for the return of original sale deed dt.28.01.2005; and to pay compensation of Rs.2,00,000/- towards costs. 2
2. The brief averments of the complaint are that the complainant is a retired employee of ICICI Bank; that while in service obtained Rs.25,00,000/- of staff loan facility and created equitable mortgage on 29.01.2005 by depositing the original sale deed dt.28.01.2005 relating to the flat No. 501 Karcherla Castle, 04th Floor, Gagan Mahal Colony, Valmiki Nagar, Domalguda, Hyderabad; that the opposite parties promised to return the original sale deed within ten days from the date of repayment of the loan; that 31.07.2018 the complainant retired from service and cleared the loan account by paying Rs.12,19,292.56 paisa; that the complainant intended to purchase a bigger flat by disposing of the flat which is the subject to matter of sale deed dt.28.01.2005 and the said fact was also informed to the opposite party via mail dt.24.07.2018; that the opposite parties failed to return the original sale deed inspite of several correspondence mails made by the complainant including to the payroll heads of the opposite parties namely Ms. Manisha Khot and Mr. Monideepa Chakravarthy; that the opposite parties always informed the complainant that they are searching for the original sale deed which was misplaced; that the complainant selected a flat in My Home Bhooja, Gachibowli @Rs.7,500/- for Sft.; that he also intended to sell away the flat No. 501 and various offers from prospective purchasers came to him around Rs.85,00,000/- for the flat; that one Mr. B. Venkata Ramana after negotiations agreed to purchase the flat for Rs.85,00,000/-, but insisted for the production of original sale deed to enter into agreement of sale and ultimately withdrawn his offer as the sale deed was found to be misplaced/not traceable by the opposite party as such the complainant suffered a good bargain; that in the meanwhile the flat rates are escalated by 900-1100 for Sft. relating to the intended 3 flat to be purchased by the complainant; that on 14.09.2018 the opposite party for the first time informed, that the original sale deed was stored with M/s. Writer Corporation by the bank and there was a delay in tracing of the document; that after several correspondence, it is informed to the complainant in the month of November, 2018 that the original sale deed was lost in the custody of M/s. Writer Corporation and on the request of the complainant informed that they are taking steps to lodge an FIR and also paper publication; that vexed with the attitude of opposite parties the complainant sent a legal notice dt.28.01.2019 demanding to pay damages tentatively @ Rs.36,00,000/- for the financial loss suffered by him; that a reply notice dt. 03.04.2019 was issued by the opposite parties refuting the claims of the complainant; that the opposite party also furnished a certificate dt.19.12.2018 issued by police authorities; that the original was lost when it was in the custody of Mr. Tejraj Kotian during transit from Teenhath Naka to Hari Nivas Circle in Naupada Thane on 17.12.2018; that the opposite party also enclosed publications made in English new paper, "The Free Press" and Marathi newspaper Nava Shakthi on 28.12.2018 in respect of misplacement of the original document and even attached certified copy of sale deed, encumbrance certificate obtained from Mee Seva Centre; that to wriggle out from its obligations, the opposite parties have supplied the above documents, which amounts to deficiency in service; that opposite parties are playing fraud on the complainant with their evasive replies; hence, the complaint.
3. The brief averments of the written version of opposite party No.1 & 2 are that the complaint is not maintainable either on facts or under law; that the complainant is put to strict proof of all 4 the averments made in the complaint except those that are admitted; that the deposit of original title deed by the complainant towards equitable mortgage is admitted; that the clearance of loan by paying Rs.12,19,292.56 paisa on 25.07.2018 by the complainant is also admitted; that the exchange of correspondence goes to show the bonafide efforts made by the opposite parties to trace out the original sale deed; that the complainant not filed any agreement of sale entered with Mr. B. Venkata Ramana to show the offer was @Rs.85,00,000/-; that no document is filed by complainant to show that he entered into any agreement with My Home Booja to purchase a flat and initially the square feet rate was @Rs.7,500/- and subsequently enhanced to Rs.8,400 to Rs.8,600/-; that only for the purpose to make wrongful gain the sworn affidavit Mr. B. Venkata Ramana was filed with inflated rates; that no registered document is filed to give approximate value of the flat No.501; that the bank made all efforts to trace out the original sale deed and even gave a complaint to the police and obtained a certificate about the missing of document; that it made publications in the papers informing the missing of original sale deed; that obtained certified copy of the document including encumbrance certificate etc., to establish that no encumbrance is created over the property in question by that time; that it is known to everybody that police will not register an FIR for the missing of document; that after thorough search the opposite party came to know that the original sale deed was lost, when it was custody of Mr. Tejraj Kiran that too while in transit; that the demand of complainant, to the opposite parties, to file declaratory suit for missing of the sale deed is not a proper demand because the opposite parties cannot file such suit being not the owners of the property; that the opposite party obtained a loan of Rs.25,00,000/- 5 with a concessional rate of interest @2.5% thereby benefited to an extent of Rs.19,21,980/- and the real benefit to the tune of Rs.36,32,754/- as mentioned in the statement incorporated in page No.13 of the written version; that the complainant cannot blame the opposite parties being its employer with the allegations of fraud etc.,; that the complaint is purely speculative in nature; that the opposite parties having taken all necessary steps to recreate the sale deed, with this requested to dismiss the complaint with costs.
4. To prove the case, complainant filed evidence affidavit as PW1 and got marked Ex.A1 to A14. Mr. B. Venkata Ramana filed evidence affidavit to prove that, he intended to purchase the flat No. 501 for Rs.85,00,000/- and subsequently, withdrawn the offer due to the loss of original sale deed. Mr. Anantha Bhut the authorized signatory of opposite parties filed evidence affidavit as RW1 and got marked Ex.B1 to B4.
5. Now the point for determination are:-
(i) Whether there is any deficiency of service on the part of opposite parties No.1 & 2 due to the loss of original registered sale deed dt.28.01.2005?
(ii) Whether the complainant is entitled for any compensation? If so, for what amount?
(iii) Relief?
6. Point No.1 to 3:- For the sake convenience, the parties will be addressed as they arrayed in the complaint and the property which is the subject to matter of the lost registered sale deed as the flat No.501. Admittedly, PW1 deposited the original registered sale deed bearing Doc. No.221/2005 duly registered with the Sub-Registrar of assurances Chikkadapally, Hyderabad 6 towards equitable mortgage, to avail a staff loan facility for a sum of Rs.25,00,000/-; that just before retirement PW1 cleared the entire loan account by paying Rs.12,19,292.56 paisa on 25.07.2018. It is known to one and all; that once loan was cleared the bank should return the original sale deed which was created towards equitable mortgage to the borrower or concerned depositor of the document. In the case on hand, the opposite parties failed to return the original sale deed and dodged the matter with representation that they are in search of the document till November, 2018. Only in the said month for the first time , informed that the document was lost and informed PW1 at his request that they would file FIR and also a paper publication to recreate the document. It shows for nearly four months the opposite parties subjected PW1 with anxious moments. Naturally, any person will be disturbed for loss of an original sale deed because in the absence of the same, such person cannot sell the property to its true value in the market, and difficult to borrow amounts by giving security of the original registered sale deed. In the absence of registered sale deed, the value of the property will become less in the market since many of the intending purchasers insist for the original and will also back out from purchase , due its absence.
7. Failure to return the deposited original sale deed by the bank is a clear cut case of deficiency in service. The subsequent efforts put forth by the bank to trace out the original is not a substitute for the deficiency of service. We are of the emphatic view that, the opposite parties have miserably deficient in service towards PW1. Merely because PW1 was once the employee of opposite parties, the bank cannot contend that the loss of 7 document is unintentional and bonafide. Whether bank is bonafide or not is not the criteria for a depositor, who deposited the original document, and he is only concerned about the diminishing value of the property. In other words bank should compensate such person for the loss of original registered sale deed.
8. PW2 not filed any agreement of sale entered by him with PW1 to purchase the flat No.501 for Rs.85,00,000/-. It is also not his contention that it was only an oral agreement of sale. In every agreement of sale, almost all the vendors will receive some advance or the other from the purchasers. In the case on hand, PW2 who intended to purchase the flat No. 501 not spoken about payment of any advance. However, PW2 might have backed out from the purchase of the flat, even if it is admitted for a moment without a proof that, he intended to purchase the property. PW1 not filed any valuation certificate of the flat No.501 issued by concerned Sub-Registrar to prove the registered value of the property by year 2018 or by the date of intended sale. It is also to be observed, that encumbrance certificate of the flat is filed by PW1 shows that he purchased a second hand flat. By the date the document was lost, the flat was 13 years old one. Naturally for the residential flats, there will be depreciation. Even if there is no depreciation, the hike of the value will be very less or nominal. As per the certified copy of the document, the value of the flat by the time of its purchase was @ Rs.11,00,000/-. As per the encumbrance certificate dt.04.12.2019 the market value of the property was Rs.9,13,000/-. A judicial notice can be taken that, actual values of the properties in most of the times will be different from the registration value as recorded in the books of registration department.
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9. The above encumbrance certificate further goes to show that, in the year 1998, the flat was first purchased by one Mr. Vishnuvardhan Reddy for Rs.4,80,000/- vide Doc. No.1281/1998 and it was sold to PW1 on 28.01.2005 in Doc. No.221/2005. It means, by the year 2018, the property was already 20 years old. Therefore, we are of the view the claim of PW1 for damages to the tune of Rs.50,00,000/- is nothing but inflated value.
10. PW1 also not filed any documents to show that he entered into an agreement with My Home Bhooja to purchase a flat @Rs.7,500/- per Sft. The brochure issued by the said developer is also not filed to show the Sft. rate. So, also no document is filed to show that the square feet rate was enhanced to Rs.8,400-8,600/-. Therefore, we are of the view that the alleged intended purchase of a flat by PW1 in My Home Bhooja cannot be considered to award the compensation.
11. It is to be observed that in the absence of original document, the owner can deposit the certified copy of the original sale deed with the same bank from which the document was lost, and can obtain another loan. The owner can personally reside in the property and can enjoy the same. He can as well give the flat for rents and enjoy the same. The property can even be sold of course, to a lesser value. The counsel for complainant relied upon following case law reported in
(i) 2020 SCC online NCDRC 263-State Bank of India Vs. Amitesh Mazumder.
(ii) 2020 SCC online NCDRC 12-ICICI Bank Ltd, & others Vs. Rajesh Khandelwal & another.
(iii) 2014 SCC online NCDRC 674-Indian Overseas Bank, 9 Hyderabad Main Branch......Vs. Sri K. Balreddy & another.
(iv) SCDRF, Telangana in complaint case No. 86/2014 dt.08.03.2018 between Putcha Srinivasulu Vs. Union Bank of India, Ramanthapur Branch, Hyderabad & 3 others.
12. In the above case law it is clearly observed that the value of the property shall be taken into consideration at first and then around 20% to 30% of its value shall be considered as the loss to the owner of the property due to missing of the original registered sale deed. As already stated supra, PW1 not furnished the value of the property as on the date of loss of the registered sale deed during the year 2018. As per encumbrance certificate when the value of the property is mentioned as Rs.11,00,000/- during the year 2005. If the market value is taken into consideration its value cannot be more than Rs.25,00,000/-. Therefore, we are of the view that damages can be awarded for the loss of document @Rs.5,00,000/- The opposite parties shall order to pay compensation of Rs.1,00,000/- for mental agony sustained by the complainant besides costs of Rs.15,000/-. The points are answered in favour of the complainant.
13. In the result, the complaint is partly is allowed directing the opposite parties to pay Rs.5,00,000/- towards damages for the loss of document; that to pay Rs.1,00,000/- as compensation and Rs.15,000/- towards costs with joint and several liability. They are also further directed to obtain fresh certified copy of the document duly making an endorsement on the document itself that, the original registered sale deed was lost, when it was in their custody and also furnish newly obtained encumbrance certificate for the property in question and shall also furnish bank guarantee for Rs.5,00,000/- in favour of complainant 10 for a period of ten years against any fraudulent transaction being conducted on the property in question by any unauthorized person.
Time for compliance is 30 days from the date of receipt of this order.
Typed to the dictation to the steno on system, corrected and pronounced by us in the open bench on 06.11.2023.
SD/- SD/-
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MEMBER(J) M EMBER(NJ)
Dated : 06.11.2023.
BSR
APPENDIX OF EVIDENCE
WITNESS EXAMINED
Evidence affidavit of Evidence affidavit of
The complainants: Opposite parties:
PW1: Mr. G. Vishnu Prasad RW1 & 2 : Mr. Anantha
PW2: Mr. B. Venkat Ramana Bhat
EXHIBITS MARKED
For Complainant:
Ex.A1: is the Photostat copy of Email, dated: 24.07.2018. Ex.A2: is the Photostat copy of Email, dated: 26.07.2018. Ex.A3: is the Photostat copy of Email correspondence on various dates.
Ex.A4: is the Original copy of Affidavit of Mr. Venkata Ramana. Ex.A5: is the Photostat copy of Email correspondence on various dates.
Ex.A6: is the Photostat copy of Email, dated: 03.10./2018. Ex.A7: is the Photostat copy of Email, dated: 09.11.2018. Ex.A8: is the Photostat copy of Email correspondence on various dates.
Ex.A9: is the Photostat copy of Email, dated: 12.12.2018. Ex.A10: is the Photostat copy of Email, dated: 31.12.2018. Ex.A11: is the Photostat copy of Legal Notice, dated: 28.01.2019. Ex.A12: is the Photostat copy of Letter, dated: 03.04.2019. Ex.A13: is the Photostat copy of Certificate, dated: 19.12.2018. Ex.A14: is the Original copy of Newspapers Publications, dated:
28.12.2018 & 01.04.2019.11
For Opposite Parties:
Ex.B1: is the Photostat copy of Certificate, dated: 19.12.2018. Ex.B2: is the Photostat copy of Public Notice, dated: 28.12.2018. Ex.B3: is the Photostat copy of Paper Publication at Mumbai in Vernacular Language.
Ex.B4: is the Photostat copy of Certificate issued by Advocate, dated:
16.01.2019.
SD/- SD/-
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MEMBER(M-J) MEMBER (M-NJ)
Dt: 06.11.2023.
BS R