State Consumer Disputes Redressal Commission
Motilal Chandak, vs General Manager, Central Bank Of India & ... on 26 August, 2011
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
(A/11/2339)
Appeal No.48/2011
Instituted on : 29/01/2011
Motilal Chandak, S/o Shri Bishanlal Chandak,
R/o : Main Road,
Jagdalpur, District Bastar (C.G.) ... Appellant
Vs.
1. General Manager,
Central Bank of India,
Central Office - Chandramukhi, Nariman Point,
Mumbai - 400021
2. Senior Manager,
Central Bank of India,
Branch - Near Head Post Office,
Jagdalpur, District Bastar (C.G.) ....Respondents
PRESENT :
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SMT. VEENA MISRA, MEMBER
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES :
Shri K. Anandani, for appellant.
Shri R.K. Shukla, for respondents.
ORDER (ORAL)
DATED : 26/08/2011 PER :- HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT This appeal is directed against the order dated 30.12.2010 of District Consumer Disputes Redressal Forum, Bastar at Jagdalpur (C.G.) (hereinafter called "District Forum" for short) in Complaint Case No.01/2008, whereby the District Forum awarded Rs.10,000/- by // 2 // way of compensation for mental agony to the complainant, payable jointly or severally by both the respondents, along with interest @ 6% p.a. from the date of filing of the complaint till date of payment and also to pay a sum of Rs.1,500/- as compensation separately. The complainant was not satisfied with this award and has come up before us by way of this appeal with a prayer to enhance the amount of compensation.
2. In nutshell, the facts of the case are that one sale deed was deposited by the complainant with the respondents bank for the purpose of creating equitable mortgage by deposit of title deeds. During the custody of the Bank, the sale deed was damaged by white ants. When transaction between the parties was complete, then at the place of providing original sale deed, respondents Bank returned the damaged document of title to the complainant. When complainant contacted other Banks to ascertain as to whether they are ready to provide loan to him on the basis of that document, then such other Banks refused to grant any loan on the basis of such damaged documents. It was also informed by the other Banks that in such cases it would be necessary for the complainant to execute registered mortgage deed in favour of the Bank and for the property valuing Rs.30,00,000/-, the stamp duty would be Rs.1,20,000/- along with registration charges Rs.24,145/-. Thus, total expenditure would be // 3 // Rs.,1,44,145/-. The complainant by filing complaint before the District Forum claimed that amount by way of compensation from the Bank on the allegation of deficiency in service along with additional amount of Rs.10,000/- as compensation for mental agony.
3. The respondents Bank in reply of the complaint averred that the sale deed was upto some extent already in damaged condition, when deposited by the appellant with the respondents Bank. When it remained in custody of the Bank for a very longer period from the year 1991, then such damages extended more on account of lapse of time. It has also been averred that as per rule framed by Reserve Bank of India, if some document is damaged or lost, then on the basis of certified copy of that document also, equitable mortgage can easily be created. It has further been pleaded that the then Senior Manager of the Bank Shri N. Subramaniyam, has advised the complainant accordingly and has further assured that if affidavit is given by the complainant to that effect that sale deed is damaged by white ants, then he will help the complainant in getting loan by creating equitable mortgage and the affidavit of Shri N. Subramaniyam was also given simply to help the complainant for that purpose. It has further been pleaded that the Bank has not committed any deficiency in service and the damages to document was on account of the fact that they were already damaged by white ants and by lapse of time, the damages extended.
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4. Learned District Forum, after having considered the material placed before it by both parties, did not find any substance in this contention of the complainant that it is not possible for him to get loan from any other bank and for the purpose of obtaining loan, he will be required to execute registered mortgage deed, which will be very expensive. Only it was found that by returning white ant damaged sale deed, which was deposited to create equitable mortgage, some deficiency in service has been committed by the Bank and so, compensation for mental agony has been awarded in favour of the complainant.
5. We have heard arguments of both parties in detail and perused record of the District Forum.
6. During the course of arguments, we have specifically asked to learned counsel for the appellant that if he is in a position to show any provision of law to the effect that equitable mortgage can not be created by depositing certified copy of the title-deed, which has already been destroyed or damaged, then learned counsel for the appellant could not show us any such law. However, learned counsel for the respondents Bank has drawn our attention towards the book "Law of Mortgage" written by S.P. Sen Gupta and submitted that in this book different aspects of creating equitable mortgage by // 5 // depositing certified copy of damaged or lost documents, have been considered. He first of all has drawn our attention towards the reported judgment passed in case of C. Assiamma Vs. State Bank of Mysore & Others, I (1990) BC 327, in which a Division Bench of High Court of Kerala, has held that "registration copy of the title deed Ext. A19, tax receipts Exts. A21 and A21[a] and the certificate issued by the President of Kumbala Panchayat Ext.A22 to the effect that door Nos. referred to therein are situated in Sy. Nos.119/5 and 113/7 of Koipady Village clearly establish the title of the 2nd defendant to the properties in Sy. Nos.119/5 and 113/7 of Koipadi Village clearly establish the title of the 2nd defendant to the properties in Sy. Nos.119/5 and 113/7 of Koipadi Village covered by Ext.A19. The intention of the appellant to create an equitable mortgage in respect of those properties was confirmed by the 2nd defendant in Ext. A17 in clear and unambiguous terms. In our view, this is sufficient to constitute an equitable mortgage by the 2nd defendant in favour of the bank in respect of 2nd defendant properties in schedule âFâ to Ext.A19. It is evident from the correspondence between the 2nd defendant and the Bank that the 2nd defendant had made it clear to the bank that the original title deed was not available with her as properties were gifted to her mother, brothers and sisters also thereunder. It was impossible for all the donees in such circumstances to possess the original deed."
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7. In the aforesaid judgment, the Division Bench of High Court of Kerala High Court has mainly held that it is the intention of the party, which is required to be considered for the purpose of creating equitable mortgage and the nature of the documents which have been deposited, do no have much importance. In that case only tax receipt and Certificate issued by President of Kumbala Panchyat was filed which was found sufficient for creating equitable mortgage. The same High Court of Kerala in case of State Bank V. Velayudhan Pillai, AIR 1996 Ker. 32 (DB) has held that "duplicate of a partition deed submitted as collateral security is acceptable where there is no evidence to show that the original deed was with the borrower. Deposit of original need be insisted only as rule of prudence and caution and not as a legal requirement for the purpose of validly creating an equitable mortgage and it cannot be said that duplicate can be accepted only when the original is lost." The Apex Court also in the case of K.J. Nathan V. S.V. Maruty Reddi, AIR 1965 SC 430, has held that "The three requisites of a mortgage by deposit of title deeds are (i) debt (ii) deposit of title deeds, and (iii) an intention that the deeds shall be security for the debt. Whether there is an intention that the deeds shall be security for the debit is a question of fact in each case. The said fact will have to be decided on the basis of the evidence." The Madras High Court in the case of Ride Master Rims V. ING Vijaya Bank, AIR 2007 Mad 34 has held that "deposit of // 7 // xerox copy of a sale deed along with receipt of Sub-registrar showing registration of that sale deed with the intention to create equitable mortgage fulfils the requirement of law."
8. Thus, on the basis of aforesaid discussion, it is clear that for the purpose of creating valid equitable mortgage, it is always not necessary to deposit only original title-deeds. In case the original title- deed is lost or damaged, then equitable mortgage can very well be created by depositing its certified copy along with certificate of the competent person to the effect that such sale deed was executed between the parties and the title is still with the purchaser. If such certified copy of sale deed along with certificate of competent person is filed, then anybody can very well create equitable mortgage by depositing title-deed and when original title deed is lost or damaged, then it can never be insisted to deposit the original documents only.
9. Thus, it is clear that the appellant can very well create equitable mortgage with the help of certified copy of title deeds as well as certificate of the competent person for that purpose. Compensation for the alleged deficiency in service of Rs.10,000/- toward mental agony has already been awarded along with interest @ 6% p.a. from the date of filing of the complaint till date of payment in favour of the complainant by the District Forum and in our view it appears appropriate which calls for no enhancement.
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10. So, the appeal fails and is hereby dismissed. No order as to the cost of this appeal.
(Justice S.C.Vyas) (Smt.Veena Misra) (V.K. Patil)
President Member Member
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