State Consumer Disputes Redressal Commission
Binapani Dash vs Branch Manager,Indian Bank on 6 December, 2007
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA: CUTTACK CONSUMER COMPLAINT NO.83 OF 2007 Binapani Dash, W/o. Ram Prasan Dash, Plot No.817, BJB Nagar, Bhubaneswar, Dist- Khurda. Complainant. -Versus- 1. Branch Manager, Indian Bank, Bapuji Nagar Branch, Bhubaneswar, Dist- Khurda. 2. Regional Manager, Indian Bank, 117/118 Station Square, Bhubaneswar, Dist- Khurda. 3. Rajadeepta Kumar Badajena, Prop. Sivasai Medical Store, Ashok Nagar, Rajmahal Square, Bhubaneswar, Dist- Khurda. Opposite Parties. For the Complainant : M/s. R.P. Dash & Assoc. For the Opposite party nos.1 & 2: M/s. S.K. Dey & Assoc. P R E S E N T : THE HONBLE SHRI JUSTICE R.K. PATRA, PRESIDENT A N D SHRI SUBASH MAHTAB, MEMBER. O R D E R
Justice R.K.PATRA, PRESIDENT.
DATE: - 06TH DECEMBER, 2007.
In this complaint, it is alleged that the opposite party bank is guilty of deficiency of service in accepting the complainants property as charge although she has not stood as guarantor.
2. The case of the complainant is that she purchased homestead land measuring Ac.0.084 decimal out of plot no.3550/3896 (present Hal plot no.696/817) situated in BJB Nagar, Bhubaneswar from Biswanath Mishra by registered sale deed no.5183 dated 12.09.1973 and constructed house thereon after getting the plan sanctioned from the erstwhile Bhubaneswar Notified Area Council (presently Bhubaneswar Municipal Corporation) and since then she has been in continuous and peaceful possession. The opposite party bank without properly verifying the records and without making spot inspection has accepted her property as security purported to have been offered by Manoj Kumar Nayak as guarantor for one loanee Rajadeepta Badajena.
3. The opposite party bank has filed written version denying the allegations. Its case is that the complainant is not a consumer inasmuch as she has not availed or hired any services for consideration from it. On merit, the opposite party bank says that Rajadeepta Badajena applied for loan of rupees 9,00,000/- and the amount was sanctioned on the basis of the guarantee furnished by Manoj Kumar Nayak who offered the property measuring Ac.0.085 decimal of plot no.696/817 in BJB Nagar, Bhubaneswar which was purchased by him from Lokanath Satpathy by registered sale deed no.634 dated 06.02.1998.
4. Counsel for the complainant relying on the judgment of the Supreme Court dated 14.07.2006 rendered in Civil Appeal no.2982 of 2006 (Standard Chartered Bank Ltd. vrs. Dr. B.N. Raman) contended that the complaint is maintainable as banks provide or render service / facility to its customers or even non-customers.
We may state here that although the complainant is not strictly a consumer vis--vis the opposite party bank in terms of section 2(1)(d)(ii) of the Consumer Protection Act, 1986, she is entitled to maintain this complaint as the decision of the opposite party bank has affected her interest.
The complainant seriously disputes the position that Manoj Kumar Nayak is the owner of the complainants property. To buttress his contention, the learned counsel placed reliance on the following documents which we may briefly indicate;
(i) Registered sale deed no.3434 dated 17.04.1968. It shows that one Lokanath Satpathy sold the land measuring A0.084 decimal out of plot no.3550/3896 to Biswanath Mishra (representing his minor son Rama Chandra Mishra) with boundary; south- Nishamani Devi, north- Padmabati Dei, east- canal, west- government land.
(ii) Registered sale deed no.5183 dated 12.09.1973. Under this sale deed, Biswanath Mishra sold the above described property to the complainant with the description of the same boundaries; south- Nishamani Devi, north- Padmabati Dei, east- canal, west- government land.
(iii) Registered sale deed no.5971 dated 10.11.1973. Under this, Nishamani Devi (whose land was to the south of the complainants property) sold her property to one Pravati Dash. In the said sale deed, the complainant was shown as northern land owner, east as Delta canal and west as Government land.
(iv) The erstwhile Notified Area Council, Bhubaneswar (now Bhubaneswar Municipal Corporation) in its letter no.6389/NAC dated 17.10.1974 sanctioned building plan of the complainant over plot no.3550/3896 (area Ac.0.084 decimals) indicating east as canal road.
(v) The erstwhile Notified Area Council, Bhubaneswar (now Bhubaneswar Municipal Corporation) in letter no.1394 dated 12.02.1975 accorded permission for construction of temporary shed over plot no.3550/3896.
(vi) On 01.04.1977, the erstwhile Notified Area Council, Bhubaneswar (now Bhubaneswar Municipal Corporation) assessed holding tax on the building over plot no.3550/3896 (present Hal plot no.696/817) in BJB Nagar, Bhubaneswar. The name of the complainant finds place in the column Name of the owner.
(vii) The electricity bill dated 08.10.1975 showing the complainant as consumer.
(viii) Settlement patta finally published on 30.03.1988 indicating that the complainant is in possession of an area of Ac.0.085 decimals pertaining to plot no.696/817 having residential house.
(ix) Affidavit dated 03.04.1986 sworn to by the vendor Lokanath Satpathy saying that he sold an area of Ac.0.084 decimals to (Biswanath Mishra) by registered sale deed no.3434 dated 17.04.1968 and the complainant after purchasing it from Biswanath Mishra has constructed house thereon. The deponent suggested that the patta may be handed over to the complainant and record may be accordingly corrected in her favour.
(x) Manoj Kumar Nayak filed civil suit no.445 of 2002 in the court of the Civil Judge (Junior Division), Bhubaneswar against the complainant for permanent injunction. The suit property was described in the plaint as area Ac.0.085 decimals of plot no.696/817. In the suit, Manoj Kumar Nayak filed an interim injunction petition (I.A. no.537 of 2002). The Trial Judge by order dated 07.02.2003 dismissed the interlocutory petition holding as follows;
No document has been filed by the petitioner whereas the O.P. has filed the sale deed bearing no.3434, dt. 17.4.68 executed by original tenant, Lokanath and sale deed bearing no.5183 dt. 12.9.73 executed by Rama Chandra Mishra through his father, Biswanath Mishra in favour of the O.P. The copy of the hal R.O.R. of 1988 has been filed wherein note of possession has been made in favour of the O.P. in respect of the suit land. There is no dispute that mutation proceeding by itself cannot be basis of the title of party. Considering these overwhelming documentary evidence, it is reasonable to hold that the petitioner has no prima facie case.
The petitioner has not established his possession over the suit land. On the other hand, the O.P. is in possession and has filed rent receipt. Therefore, balance of convenience does not lean in favour of the petitioner.
The petitioner is not in possession of the suit land. Despite mutation order in his favour which is under challenge in the appellate forum, therefore, he would not suffer any injury if injunction is not granted.
Hence, ordered.
The aforesaid civil suit no.445 of 2002 was dismissed on 25.04.2003.
5. Now let us look at the documents submitted by Manoj Kumar Nayak before the opposite party bank on the basis of which loan was advanced by accepting the property as security against the loan. They are as follows :-
(a) Registered sale deed no.634 dated 07.02.1998. It appears from the said document that Lokanath Satpathy sold Ac.0.085 decimals of land pertaining to plot no.696/817 with boundary as follows :-
east - government road.
west - Revenue plot no.796.
south - Revenue plot no.697(p) and 818 (p) north - Revenue plot no.923(p) and 922 (p) to Manoj Kumar Nayak.
The signature of Lokanath Satpathy appearing in this sale deed substantially differs from his signature appearing in the registered sale deed no.3434 dated 17.04.1968. His age was mentioned as 48 years in the aforesaid sale deed dated 17.04.1968 but in the sale deed dated 07.02.1998 produced by Manoj Kumar Nayak age of Lokanath Satpathy was indicated as 85 years. If Lokanath Satpathy was aged about 48 years in the year 1968, he would be 78 years in the year 1998 but not 85 years.
Besides this, Lokanath Satpathy could not have sold the land measuring Ac.0.84 decimals pertaining to plot no.3550/3896 (Hal plot no.696/817) to Manoj Kumar Nayak in the year 1998 in as much as he had no right, title and interest in it because he had already sold it to Biswanath Mishra in the year 1968.
(b) Mutation khata no.66/72 vide mutation case no.4936/2000. Law is well settled that any entry in the mutation cannot create title and it cannot override the entries made in the R.O.R. The R.O.R. finally published on 30.03.1988 shows that complainant is in forcible possession of an area of Ac.0.085 decimals pertaining plot no.696/817 having residential house.
(c) Tax receipt upto year 2005-06 in respect of plot no.696/817. In the rent receipt, BJB Nagar has been shown under ward no.11.
The complainant has produced office order no.12324 dated 24.07.1998 of the Bhubaneswar Municipal Corporation which shows that BJB Nagar comes under ward no.2. Notice dated 22.10.2007 published in Indian Express newspaper by the Bhubaneswar Municipal Corporation shows that Chandrasekharpur and VSS Nagar come under ward no.11. In view of this, the rent receipt in the name of Manoj Kumar Nayak needs to be explained.
(d) Encumbrance certificate no.2875.
It has been mentioned therein that area measuring Ac.0.085 decimals (full plot) pertaining to plot no.696/817 in BJB Nagar, Bhubaneswar is free from any encumbrance. This document appears to be a self-serving document. The certificate must have been granted on the basis of the sale deed no.634 dated 07.02.1998 which does not carry any evidentiary value.
6. At this stage, we may again turn to the affidavit dated 03.04.1986 sworn to by Lokanath Satpathy which was filed before the Charge-Officer, Settlement, Puri. He has stated that he purchased Ac.0.494 of land from Jogi Sahoo in April, 1959 and sold Ac.0.100 decimals to Nishamani Devi by registered sale deed dated 14.09.1965 and Ac.0.084 decimals to Ramachandra Mishra through Biswanath Mishra by registered sale deed dated 17.04.1968 and for balance 0.310 decimals he received rupees 10,810/- towards compensation for its acquisition for Daya West canal. He has further stated that the complainant after purchasing the land from Biswanath Mishra has constructed house over Hal plot no.696/817 with boundary, east canal acquired land, south Nishamani Devi. The plot sold runs upto the end of plot no.3896 and west was mentioned as sarkari. This affidavit fully corroborates the land acquisition plan of Daya West branch canal.
7. The fact of dismissal of civil suit filed by Manoj Kumar Nayak against the complainant for permanent injunction in respect of Ac.0.085 decimals pertaining to plot no.696/817 was not brought to the notice of opposite party bank. The complainant also made a representation to the opposite party bank challenging the authenticity of documents produced by Manoj Kumar Nayak. The opposite party bank without referring to the documents relied upon by the complainant accepted the complainants property as security by creating charge.
8. During hearing of this complaint, Manoj Kumar Nayak appeared in person before us and produced some documents including copy of the amin report and contended that the complainant got recorded some other plot by using her documents. To consider such allegation, demarcation of land boundary has to be taken into account.
The boundary of plot no.696/817 is as follows; east- canal road, west- plot no.697 belongs to Pravati Das who purchased it from Nishamani Devi. Therefore, the land sold by Lokanath Satpathy to Biswanath Mishra is plot no.696/817.
If the complainant has got recorded some other plot by using the same sale deed, it is for Lokanath Satpathy or the owner of the said plot to take action as per law in respect of that plot but such plea in respect of plot no.696/817 cannot be taken in as much as in the registered sale deed no.3434 dated 17.04.1968, boundary has been shown as east- canal (the east side of plot no.817 in canal road), south- Nishamani Devi who sold her plot to Pravati Das and thus plot no.817 is the area sold to the complainant by Lokanath Satpathy.
9. The counsel for the complainant produced certified copy of Municipal Corporation ledger which indicates that holding no.707, BJB Nagar, Bhubaneswar stands recorded in the name of one Laxmidhar Mohanty and not in the name of Manoj Kumar Nayak as has been submitted by the opposite party bank in its counter version. He accordingly doubts the genuineness on the tax receipt of Manoj Kumar Nayak.
10. We may note here that the dismissal of the civil suit filed by Manoj Kumar Nayak against the complainant is a material piece of evidence which cannot be brushed aside. The opposite party bank should consider the above document to judge the validity of the claim of Manoj Kumar Nayak. The counsel for the complainant further submitted that the sale deed of 1998 in favour of Manoj Kumar Nayak does not reflect existence of house.
According to him, any construction after 1998 (when the Bhubaneswar Development Authority came into being) requires approval of plan and without the plan getting approved no construction could be possible and this aspect needs to be examined. There appears to be some force in the above submission.
In view of the nature of this order, we are not expressing any opinion on the rival claims because the opposite party bank has to take a conscious decision after taking into consideration of the stand taken by the complainant and Manoj Kumar Nayak.
11. It is needless to mention here that the opposite party bank is a trustee of public money. While advancing loan it has to see that the property offered by a party as security actually belongs to him otherwise people offering fake documents may obtain loan which in future may create difficulty in realizing the loan amount. Responsibility of the opposite party bank in dealing with such matter cannot be overemphasized. We, accordingly, direct the opposite party bank to refer the matter to the Circle Head, Indian Bank, Regional Office, Station Bazar, Bhubanswar for taking appropriate decision according to law after giving an opportunity of hearing to the complainant and Manoj Kumar Nayak and communicate the decision within three months hence.
12. The complaint is disposed of with the above observation and direction.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA: CUTTACK C.D. CASE NO.60 OF 2002 Suman Agarwal, W/o.
Pramod Kumar Ray, D-14, Kedar Gouri Apartment, Bhubaneswar-2.
Complainant.
-Versus-
1. Utkal Hyundai through its Manager, S-3/61-A, Mancheswar Industrial Estate, Bhubaneswar-751010.
2. Managing Director, Hyundai Motors India Limited, A-30, Mohan Cooperative Industrial Area, Phase-I, Mathura Road, New Delhi-110044.
3. Sanjay Garg, National Customer Relation Manager, Hyundai Motors India (Ltd.), A-30, Mohan Cooperative Industrial Area, Phase-I, Mathura Road, New Delhi.
Opposite Parties.
For the Complainant : M/s.
R.K. Pattnaik & Assoc.
For the Opposite party no.1 : M/s. J. Panda & Assoc.
For the Opposite party nos.2 & 3: M/s. R.R. Sahoo & Assoc.
P R E S E N T :
THE HONBLE SHRI JUSTICE R.K. PATRA, PRESIDENT A N D SHRI SUBASH MAHTAB, MEMBER.
O R D E R Justice R.K.PATRA, PRESIDENT.
DATE: - 28TH NOVEMBER, 2007.
The complainant purchased Hyundai Accent-DLS silver colour car from the opposite party no.1 on 21.02.2001 which was registered as OR-02-R-0099. Her allegation is that from the very start the car gave trouble but opposite party no.1 despite repeated requests neither repaired it nor replaced it with a new one.
2. Opposite parties 1 and 2 have filed separate written versions denying the claim.
3. There is no dispute that the complainant purchased a new car from the opposite party no.1. Besides contending that the complainant is not a consumer, the opposite parties assert that the defects were duly rectified under warranty and the car has been road-tested and the complainant with a view to make monetary gain insisted for replacement of the car with a petrol one.
4. The complainant in paragraph 3 of the complaint says that she purchased the car for self-employment. If the vehicle was purchased for the purpose of running it as taxi thereby earning profits then the complainant cannot be held to be a consumer. But if the complainant uses the vehicle for earning her livelihood it would not be treated as commercial purpose for the purpose of Consumer Protection Act.
There is nothing on record to substantiate the allegation of the opposite parties that the complainant purchased the car for earning profit. In these circumstances, we are inclined to hold that the complainant is a consumer and is entitled to maintain the complaint.
5. The opposite parties assert that there was no manufacturing defect in the car and its performance has been found to be satisfactory.
6. On perusal of the documents available on record, we find that the car was delivered to the complainant on 21.02.2001 (annexure-2). On 16.03.2001, the car was brought to the workshop of opposite party no.1 for the first free service. Repair order (annexure-3) shows that the complainant wanted for general check-up of the car along with check-up of the clutch pedal. Necessary work was carried out and the car was delivered in a good running condition. On 12.05.2001 the vehicle was brought to the opposite party no.1 alleging that its air conditioning was not working. Necessary repairs were carried out including replacement of the rubber O rings.
Other check-up was also done and the vehicle was delivered to the complainant in a good running condition (annexure-4). Thereafter, whenever the car was brought for a repair/service to the work-shop of opposite party no.1, it was carried out free/paid service and after necessary repairs it was delivered in good running condition. On 26.11.2001 the car was brought for repairs. At that time it had recorded 9000 kms. mileage. At the request of the complainant the power steering and FIP pump was duly checked. Necessary work was carried out including fuel injection pump calibration and the car was delivered vide repair order (annexure-5). The opposite party no.1 in letter dated 24.12.2001 (annexure-6) informed the complainant that the car was tested and found roadworthy and it would be further inspected by the Service Engineer who would be visiting very shortly. By letter dated 04.02.2001 (annexure-7) the manufacturer informed the complainant that the East Regional Office at Calcutta had been advised to resolve the issue. On 12.02.2002 the car was again reported to the workshop of opposite party no.1 for running repairs. The repair order was opened when the mileage recorded was 11383 kms. The car was inspected and road tested in presence of the complainant. After thorough examination of the car no problem was noticed. This fact was brought to the notice of the complainant but it was insisted on her behalf for replacement of the car with a petrol one.
On 01.03.2002 the car was again brought to the workshop for running repairs. The repair order was opened and the mileage recorded was 11,818 kms. At the request of the complainant, necessary work was carried out and fuel injection pump was changed under warranty. On 31.03.2002 the vehicle was again brought and by that day its mileage was 12,000 kms. Necessary check-up was done but no problem was noticed. The complainant however purposely left the car at the opposite party no.1s workshop without taking it. On 09.04.2002 the opposite party no.1 wrote to the complainant that necessary repairs of the car had been done and the vehicle had been tested in the presence of HMIL Engineer and found roadworthy and requested to take delivery of the car (annexure-8). Thereafter the car was again road tested by Sanjay Patra, Engineer of Hyundai Motor India Limited. The complainant was called for a joint trial and the car was road tested in her presence. The performance of the car was found to be OK but with some ulterior motive she refused to take delivery of the car and wanted for replacement with a petrol car.
On 23.04.2002, the complainant was requested to take delivery of the car which was inspected and road tested on 11.04.2002 and found to be in a good running condition. But no steps were taken to take delivery of the car. From the above, we have no hesitation to hold that there was no deficiency in service by the opposite parties.
Whenever defects were noticed they were duly attended and rectified and the car was made road worthy and for the reasons best known to the complainant despite repeated requests she did not take delivery of it. The complainant does not seem to have filed the complaint bonafide.
7. For the reasons mentioned above, we do not find merit in this complaint which is dismissed.
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(JUSTICE R.K.PATRA) PRESIDENT .......
(SUBASH MAHTAB) Date:- 28.11.2007 MEMBER Mohapatra / Samal