State Consumer Disputes Redressal Commission
Nandigam Ramakrishna Rao S/O Late ... vs State Bank Of Hyderabad And Another on 7 August, 2013
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD F.A.No. 675 OF 2012 AGAINST C.C.NO.35 OF 2010 DISTRICT CONSUMER FORUM NELLORE Between Nandigam Ramakrishna Rao S/o late Subramanyam aged about 46 years, R/o D.No.1-86-1, Lingabalija Street, Nawabpet, Nellore-2 Appellant/complainant A N D 1. The Branch Manager State Bank of Hyderabad Dargamitta Branch, Nellore-4 2. Dr.Syed Munwar Sulthana W/o Khader Basha Aged about 54 years, R/o 2nd Street Lakshminarasimhapuram, Podalkur Road Centre Nellore-4 Respondent/opposite parties Counsel for the Appellant M/s P.V.Raghuram Counsel for the Respondent M/s REC Vidyasagar(R1) Smt M.Suguna(R2) QUORUM: SRI R.LAKSHMINARSIMHA RAO, HONBLE MEMBER
& SRI THOTA ASHOK KUMAR, HONBLE MEMBER WEDNESDAY THE SEVENTH DAY OF AUGUST TWO THOUSAND THIRTEEN Oral Order ( As per R.Lakshminarsimha Rao, Member) ***
1. The unsuccessful complainant is the appellant. The respondent no.1 sanctioned a housing loan to the respondent no.2 under loan account No.62006116815 for which the respondent no.2 paid few instalments and approached the appellant and requested to purchase the complaint scheduled property which is mortgaged with the respondent No.1. In terms of due negotiations appellant has paid `10,000/- on 18-09-2009, `1,50,000/- on 19-09-2008, `25,000/-
on 05-11-2008, `12,016/-
on 16-11-2009, `5,32,000/-
on 16-11-2009 and also `2,586/-
on 05-03-2010 towards loan on behalf of respondent no.2 and he discharged the entire housing loan amount due by respondent no.2 to the respondent no.1.
2. The appellant requested the respondent no.1 to handed over the original documents pertaining to the said house. on 17-11-2009 the appellant demanded for delivery of original document for which the respondent no.1 informed that the respondent no.2 also availed loan in S.B.H., Rebala Street branch, Nellore and asked him to discharge the loan amount for return of the said house documents. The appellant got issued notice on 18-11-2009 to the respodnents. The appellant lodged complaint No.200910009002844 before the Banking Ombudsman (A.P.,) Hyderabad and the Ombudsman allowed the complaint against respondent No.1.
3. The respondent no.1 resisted the case contending that there is no privity of contract between appellant and the bank and the appellant is neither customer, nor borrower or mortgager to the bank. The respondent No.1 further contended that there is no agreement entered into, by the bank with the appellant that he should make the payments towards outstanding amount of the housing loan of the respondent No.2 and that the bank would release the security documents in favour of appellant. The bank is not a party to the personal transaction / understanding between the appellant and the respondent No.2 in respect of the housing loan availed by the respdonent.2 from the bank.
4. As per the guidelines of a RBI, the bank is entitled to retain the title deeds until discharge of the debt by the respondent no.2. The appellant is notl entitled to receive the original documents deposited by the respondent no.2. The appellant approached the Banking Ombudsman and the complaint was dismissed on 06-02-2010. As the matter was decided by competent authority / ombudsman the District Forum has no jurisdiction to entertain the complaint and the respondent no.1 prayed to dismiss the claim with exemplary costs
5. The respondent no.2 filed counter stating that the appellant availed housing loan under account bearing No.62006116815 from the respondent No.1 and paid some instalments. During the course of loan period the appellant approached her and offer to purchase the mortgaged property by paying the balance instalments to respondent no.1 and he also gave undertaking to that effect. The respondent no.1 after entire payment made by the appellant to the respondent No.2 executed a registered sale deed on 10-09-2008 in favour of appellant. The respondent no2 is no way concerned with the complaint, as the appellant discharged the entire loan amount to the respondent no.1 bank subsequent to the execution of the registered sale deed .
6. The appellant filed his affidavit and the documents, Exs.A1 to A17. On behalf of the respondent no.1, its Branch Manager and the respondent no.2 filed their affidavits and the document, Ex.B1 which is complaint given by the appellant to the Ombudsman.
7. The District Forum dismissed the complaint on the premise that there was no agreement entered into between the appellant and the respondent no.1 bank for return of the documents deposited by the respondent no.2 in connection with loan obtained from the respondent no.1 bank.
8. Aggrieved by the order of the District Forum, the complainant has filed the appeal contending that the District Forum has not considered admission of the respondents no.1 and 2 in Ex.A17 and in their written version as also receipt of balance loan amount under Exs.A3to A7 as per the understanding under Ex.A17. It is contended that u/s 171 of Indian Contract Act the right of general lien has no application to the facts of the case as respondent no.1 bank has not exercised right of general lien and that the first respondent bank having received the amount from the appellant is estopped from contending that there was no privity of contract between the appellant and the respondent no.1 bank. It is contended that the District Forum failed to appreciate the decisions relied upon by the appellant.
9. The counsel for the appellant and the respondents no.1 and 2 filed written submissions.
10. The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
11. The appellant claims for return of the documents, title deeds deposited by the respondent no.2 with the respondent no.1.
It is undisputed fact that the respondent no.2 availed loan from the respondent no.1 bank by creating equitable mortgage over her immoveable property and after paying some installments the respondent no.2 became irregular in repayment of the loan. It is also not disputed that the respondent no.2 availed personal loan from the main branch of the respondent no.1 bank and she was irregular in repayment of personal loan as a result of which the bank had filed suit O.S.No.553 of 2007 on the file of Principle Senior Civil Judge, against the second respondent and obtained decree for a sum of Rs.1,75,000/-.
12. The appellant contends that there was an agreement and on understanding among the respondents and the appellant and basing on the understanding the appellant paid balance loan amount to the respondent no.1 and claimed for return of the documents deposited with the respondent no.1 bank. A perusal of the record would show that there is no document in the shape of agreement in writing to the effect there was an understanding for repayment of the loan by the appellant and return of the documents by the respondent no.1 bank.
13. The appellant relied upon Exs.A3 to A7 and Ex.A17 to contend that the respondents no.1 and 2 made therein admission of his right to claim for return of the documents from respondent no.1 bank. Exs.A3 to A7 are receipts which evidence payment of loan amount pertaining to respondent no.2. The name of the person who remitted the amount is shown as the name of the respondent no.2. The contention of the appellant that there was understanding gains support from possession of the receipts.
14. The District Forum has applied ratio laid in Kesavanchari Gopalakrishnan Achari Vs. Velu Achari Pappukutty Achari & Others, AIR 1996 SC 1075 wherein the Honble Supreme Court held that a stranger who had volunteered to pay off the mortgage debt and obtained a deed of release from the concerned mortgagee, does neither acquire a right of subrogee nor of the mortgagee.
15. The learned counsel for the appellant except stating that the District Forum has not applied the ratio laid in the decisions relied upon by the appellants, has not filed the decisions nor he had shown how those decisions can be made applicable to the facts of the case on hand. However, whether the equitable mortgage created by deposit of title deeds with the respondent no.1 bank can be extended to a personal loan availed by the respondent no.2 in some other branch of the respondent no.1 bank is a question that can be decided on evidence requiring examination and cross examination of the parties as also such other facts as the payment of balance loan amount by the appellant pertaining to the respondent no.2 in consequence of which execution of the sale deed was made by the respondent no.2 in favour of the appellant pertaining to the mortgaged property is also a fact to be determined requiring elaborate trial before civil court.
16. During the period the loan account is in force pertaining to the personal loan obtained by the respondent no.2 from the main branch of the respondent no.1 bank, the respondent no.1 can always exercise general lien over the documents till discharge of the loan amount by the respondent no.2. The decision relied upon in L.P.Shashi Kumar Vs Industrial Dev.Bank of India Ltd., and Others, CDJ 2007 SC 167 has no application to the facts as in the present case the personal loan account of the respondent no.2 is still alive and in force.
17. The National Commission has on several occasions considered the scope of consumer complaint as to whether it can be decided by civil court where the dispute involves allegation of forgery of the customers signature on cheque by the manger or the official of the Bank and held that such matter cannot be decided in summary proceedings before Consumer Forum.
18. In Bhagwanji D.Patel and Another vs Indian Bank and Others III (2011) CPJ 175, the subject matter of the complaint was that 5 cheques NRE/SB account signed by the power of attorney holder for different amounts were questioned and CBI investigated into allegations of fraud and forgery against 8 persons who included the Manager of the Bank and filed charge sheet. Honble National Commission held that the complaint raises very complicated questions of facts and law which can be answered by civil court and not consumer forum.
19. The National Commission in Safe Home Developers and Contractors vs S.S.B. Ltd IV (2012) CPJ 729 referred to the decisions of the Honble Supreme Court in Synco Industries vs State Bank of Bikaner & Jaipur and Others I(2002)CPJ 16 and Trai Foods Ltd vs National Insurance Company Ltd and others III(2012)CPJ 17 that where detailed evidence is required to be led by both parties to prove the claim and damages the complainant suffered , necessarily the parties have to be relegated to Civil Court.
20. In Trai Foods Ltd)supra), the Honble Supreme Court considered the nature and scope of the dispute whether amenable to the jurisdiction of Consume Forum and Civil Court as under:
The only question to be decided is, when should this jurisdiction be exercised by the Commission. In our view the Commission should address itself to the quantity of the claim, the nature of the claim, the nature of the evidence which would be required to be submitted both in respect of the claim and the damages suffered and the nature of the legal issues before deciding that the matter ought to be decided by the Civil Courts in the regular course. It is not disputed that the Consumer Forum has been set up to grant speedy remedy. The Consumer Forums have been given the responsibility of achieving this object. They were not meant to duplicate the civil courts, and subject the litigants to delays which have become endemic in the Civil Courts.
Although the reasons given in the impugned order of the Commission for referring the present matter to the Civil Court is cryptic, we have been through the records filed before us and are satisfied that the Commissions decision was correct. There is no doubt having regard to the nature of the claim, the large amount of damage claimed, and the extensive inquiry inot the evidence which would be necessary in order to resolve the disputes between the parties that this is not matter to be decided summarily at all
21. In view of the complex questions involved in the subject matter of the complaint as to the understanding between the respondents and the appellant in regard to repayment of loan and extension of equitable mortgage created on the property sold to the appellant, we are of the opinion that the parties can be relegated to the civil court.
22. In the result, the appeal is disposed setting aside the order of the District Forum. The appellant is at liberty to approach to the Civil Court or any other Forum for redressal. In the event the appellant approaches the Civil Court, the period spent between the filing of the claim before the District Forum and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Honble Supreme Court in Trai Foods Ltd vs National Insurance Company Ltd and others reported in III (2012) CPJ 17.
MEMBER MEMBER Dt.07.08.2013 కె.ఎం.కె*