State Consumer Disputes Redressal Commission
1. Housing Development Finance ... vs Mandeep Sharma on 30 January, 2014
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.333 of 2010
Date of institution:04.03.2010
Date of Decision : 30.01.2014
1. Housing Development Finance Corporation Limited, (HDFC)
Registered office Raman House, 169, Back Bay, Reclamation,
Church Gate, Mumbai - 400 020 through its Managing Director.
2. Housing Development Finance Corporation Limited (HDFC) 136,
New Jawahar Nagar, Coolroad, Jalandhar City through Senior
Officer Operations.
3. Resident Manager, Housing Development Finance Corporation
Limited (HDFC) 136, New Jawahar Nagar, Coolroad, Jalandhar
City.
All through Mr.Nandan Singh Rawat, Junior Accounts Officer,
HDFC, duly authorized representative of HDFC, SCO No.153-
155, Sector 8-B, Madhya Marg, Chandigarh.
........Appellants.
Versus
Mandeep Sharma son of Sh.Upadhi Parkash Sharma, resident of
H.No.EE-106, Panjpeer, Bagh Karm Baksh, Jalandhar.
.........Respondent.
First Appeal against the order dated
27.01.2010 of the District Consumer
Disputes Redressal Forum, Kapurthala.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member
Shri Jasbir Singh Gill, Member.
Present:-
For the appellant : Ms.Anita, Advocate for Ms.Promila Nain, Advocate For the respondent :None JASBIR SINGH GILL, MEMBER This is an appeal filed by the appellants/OPs (hereinafter called 'the appellants') under Section 15 of the Consumer Protection First Appeal No.333 of 2010 2 Act against the order dated 27.01.2010 of the District Consumer Disputes Redressal Forum, Jalandhar (hereinafter called the 'District Forum') vide which the complaint of the respondent/complainant (hereinafter called as 'respondent') was allowed by the District Forum.
2. Brief facts of the case are that the respondent was granted loan of Rs.1,45,000/- vide loan agreement dated 29.12.2003 for the purchase of plot measuring 6 marlas 168 Sq.ft. at Village Salempur Masalmana, Tehsil & District Jalandhar. At the time of execution and registeration of sale deed an amount of Rs.1,45,000/- was advanced by HDFC vide cheque No.75351 dated 14.12.2003 to the seller namely Bhawna Kapoor against the loan granted to the respondent and remaining sale consideration of Rs.55,000/- was paid by the respondent directly to Bhawna Kapoor seller at the time of sale agreement. The appellant took the sale deed as security of the loan amount and equitable mortgage was created against the said property. As per the terms and conditions of the loan agreement, the respondent never defaulted in making the payment nor breached any condition of the agreement. On 01.04.2008, the respondent paid the entire due amount to the appellants No.1&2. The appellants issued No Due Certificate to the respondent vide LAC No.560586534 dated 08.05.2008. After liquidating the entire due amount, the respondent requested the appellant to return the original sale deed as he has repaid all the amount. The appellants No.1&2 assured that the sale deed was in the safe custody of appellant No.3 and shall be returned soon. Respondent visted several times in the office of the appellants for obtaining the sale deed but the appellants failed to return the same. Hence the respondent filed the complaint with the prayer that the appellant may be directed to give the original sale deed and award compensation of First Appeal No.333 of 2010 3 Rs.2.00 Lacs, award cost of proceedings amounting to Rs.10,000/- to the respondent and Rs.1000/- on account of fee paid for making complaint and expenses of typing.
3. Upon notice the appellants No.1,2&3 filed their joint written reply while taking preliminary objections that the present complaint is not maintainable against the appellants and the same is not maintainable under the law. The respondent is not a consumer under Consumer Protection Act. The respondent is estopped from filing the present complaint by his own act and conduct and there is no deficiency on the part of the appellants. On merits, it was admitted that respondent has availed a loan of Rs.1,45,000/- from the appellants to purchase the plot and it was also admitted the respondent paid all the outstanding dues and other allegations were denied by the appellants.
4. Parties led evidence in support of their respective contentions by way of affidavits and documents.
5. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum accepted the complaint and directed the appellants jointly and severally to pay Rs.22,000/- to the respondent on account of non-issuing of original sale deed. The appellants were also directed to pay Rs.3000/- on account of compensation and costs of complaint within one month from the receipt of the copy of the order.
6. Aggrieved by the impugned order dated 27.01.2010, the appellant has come up in appeal.
7. The appeal was filed by the appellants on the grounds that the respondent has not complied with the duly sworn/notarized affidavit executed by him on 27.11.2003 whereby he had agreed to deposit the original title deed along with mutation and non encumbrance certificate First Appeal No.333 of 2010 4 within 45 days from the date of execution of the sale deed with the appellants. It is further stated that at the time of No due Certificate was issued by the appellants after the repayment of the total loan amount at that time the respondent never demanded the original sale deed after making the repayment of the loan amount because he was aware that same was never deposited by him with the appellants. District Forum has unnecessarily relied on the fact that due to a clerical oversight by the concerned employee, HDFC failed to mention that a certified copy of the sale deed is being returned where the documents submitted by the respondent including Personal guarantees Sale Agreement etc. were returned and the word "original" is pre-printed on the letter and not mentioned along with the Sale Deed. The letter was prepared by someone in routine without realizing inadvertent error. There is no deficiency on the part of the appellant and prayed for the acceptance of the appeal.
8. We have gone through the pleadings of the parties, perused the record of the learned District Forum and heard the arguments of the learned counsel for the appellants.
9. It is admitted that loan was granted by the HDFC Bank on 04.12.2003 and the amount of loan was repaid on 01.04.2008 and No Due Certificate Ex.C-1 was issued by the appellants on 08.05.2008. Only dispute in this case is that HDFC has not returned the original sale deed. We have perused the affidavit Ex.O-3 of Mandeep Sharma in which para 4 reads as under :-
"That hereby undertake to arrange to get the sale deed in respect of the above property executed in our favour and arrange to get the same registered with the office of the Registrar by _________ and First Appeal No.333 of 2010 5 submit the same to HDFC (with the intention of creating a security favour of HDFC, mortgage by way of deposit of title deed immediately thereafter latest by _________________ in any case.
I also undertake to arrange to submit the Non- Encumbrance Certificate with 45 days thereafter."
10. Affidavit was signed by the Mandeep Sharma and attested by the Notary on 27.11.2003.
11. Letter Ex.O-4 by the Advocate Sh.A.S.Thakur dated 22.4.2004 where it has been stated that he went to collect the sale deed and it was disclosed by the deed writer that the original sale deed has been taken by Sh.Mandeep Sharma from him. As per the affidavit on record, it shows that respondent has not deposited the original deed in the bank. In notice as Ex.C-1, allegations against the appellants were made by the respondent while returning the document hoodwinked the respondent by giving him attested copy of the original sale deed. These allegations were denied by the appellant in Ex.C-4. There is no reason for withholding the original sale deed by the employee of the bank. It is also not clear how the sale deed can be misused by any of the person of the bank. Neither the Sale Deed is in his name nor the same was in his possession. No purpose will be served to the bank by not returning the sale deed.
12. We are of the view that there is no evidence of depositing the original sale deed with the bank and have not produced any receipt from HDFC regarding the acceptance of the original sale deed from the respondent. It is not plausible and conceivable that an educated person will deposit the original sale deed without obtaining any receipt from the bank.
First Appeal No.333 of 2010 6
13. In view of the above discussions, we accept the appeal and set-aside the order of the District Forum. Consequently, the complaint filed by the respondent is dismissed. No order as to costs.
14. The arguments in this appeal were heard on 22.01.2014 and the order was reserved. Now the order be communicated to the parties.
15. The appellants had deposited an amount of Rs.12,500/- with this Commission at the time of filing of the appeal. This amount of Rs. 12,500/- with interest accrued thereon, if any, be remitted by the registry to the appellants by way of a crossed cheque/demand draft after the expiry of 45 days.
16. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Inderjit Kaushik)
Presiding Judicial Member
January 30, 2014. (Jasbir Singh Gill)
Lb/- Member