State Consumer Disputes Redressal Commission
Amit Bhat vs Indiabulls Housing Finance Ltd. & Anr. on 19 November, 2019
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under section 9 of the Consumer Protection Act, 1986) Date of Hearing:19.11.2019 Date of decision:22.11.2019 Complaint No.624/2019 IN THE MATTER OF Amit Bhat S/o Sh. Ashok Bhat R/o F-406, DDA LIG, Ayush Enclave Gautampuri Awas Yojna Near-All India Institute of Ayurveda ....Complainant VERSUS India Bulls Housing Finance Ltd. Though it's Managing Director/Authorised Representative Regd. Office:- M-62 & 63, 1st Floor, Connaught Place New Delhi-01 Corp. Office:- India Bulls House 448-451, Phase-V, Udyog Vihar Gurgaon, Haryana-12204....Opposite Party-1 M/s Information Management Services A company of PN Writers Office at: 34/1-7, kheri Daula, NH-8 Gurgaon, Haryana-12204 Also at:- Omaxe Gurgaon Mall Sector-49, Gurgaon Haryana-122018 ....Opposite Party-2 HON'BLE SH. ANIL SRIVASTAVA, MEMBER 1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes Present: Ms. Indu Kaul, Counsel for the complainant Ms. Surbhi Mehta, Counsel for the OP-1 Ms. M.P. Bhargava, Counsel for the OP-2 ANIL SRIVASTAVA, MEMBER JUDGEMENT
This complaint under Section 17 of the Consumer Protection Act 1986, the Act, has been filed by Sh. Amit Bhat resident of Delhi, against India Bulls Housing Finance Ltd. and M/s Information Management Services, hereinafter referred to as OPs, alleging deficiency of service on the part of the OPs they having lost their original sale deed etc. submitted to them by the complainant while taking the loan and praying for relief as under:-
Allow the complainant a compensation of Rs. 10,00,000/- towards mental harassment and deficiency in services by OP-1 & 2 caused due to loss of Original Sale Deed dated 11.04.2013, withholding the knowledge of loss of documents since 2015 to complainant and filing of forged and misleading FIR in name of complainant Allow the complainant Rs. 10,00,000/- towards loss in sale value of the said property due to loss of original title documents.
Direct the OP-1 to publish an advertisement in leading newspaper in Hindi & English for loss of documents by the OPs.
Direct the OP to provide Certified Copy of the complete chain of title documents leading to transfer of title to complainant vide Sale Deed Dated 11.04.2013 Allow the complainant Rs. 50,000/- towards litigation cost.
Any other just and equitable order in favour of complainant and against the Defendants.
Facts of the case necessary for the adjudication of the complaint are these.
The complainant had obtained a Housing Loan by creation of equitable mortgage through depositing of Original Sale Deed dated 11.04.2013 for purchase of Flat No. F-3, 1st Floor, (M.I.G Type, R.H.S Middle) in Plot No. 20, Shalimar Garden Extn.-1, Village Pasonda, Pargana Loni, Tehsil & District Ghaziabad, U.P. The complainant made full & final payment of the above-said Loan Account in Jan, 2019 and Op-1 issued No. Dues Certificate on 18.03.2019. The complainant consequently requested for handing over the original documents but he came to know that the Original Sale Deed dated 11.04.2013 was lost.
In these circumstances the complaint has been filed before this Commission for the redressal of his grievances on the ground that the loan amount procured by him from the Op-1 having been repaid he is entitled for taking back the documents deposited as security which documents having been lost by the OPs the complainant has been subjected to harassment. Deficiency of service on the part of the OPs is writ large on the face.
OPs were noticed and both the OPs have filed separate reply resisting the complaint.
Reply furnished by the OP-1 The OP-1 in their reply have broadly submitted that OP-2, vender of OP-1, had misplaced/lost the Original Sale Deed dated 11.04.2013 and Original Agreement to Sell and the said fact has been communicated by the OP-2 to OP-1 only in the month of March 2019, when Op-1 requested the OP-2 to retrieve the said documents from its safe custody. Thus, as soon as OP-1 come to know about the loss of original title documents, the said fact has been immediately communicated by the OP-1 to the complainant. Not only this, OP-1 has even retrieved the copy of the Non-Cognizable Report and Newspaper Publication from the OP-2 and has duly handed it over to complainant. The OP-1 had even supplied the Certified True Copy of the Sale Deed dated 11.04.2013 to the complainant on 18.03.2019 and the same has been accepted and acknowledged by the complainant without any protest. Thus, no deficiency of services or unfair trade practices can be attributed on part of the OP-1.
Reply furnished by the OP-2 The OP-2 in their reply have stated that the issues involved in the complaint being of complicated nature cannot be adjudicated upon by the consumer forum in summary proceedings. Secondly there exists no privity of contract between them and the complainant. Thirdly the complainant being Investor cannot be treated as consumer within the meaning of Section 2(1)(d) of the Act and thus not entitled to raise a consumer dispute.
The complainant has filed the rejoinder in response to the reply of OP-1 rebutting the contentions raised by the OPs and reiterating the averments made in the complaint.
This matter was listed before this Commission on 19.11.2019 when the counsel for the complainant and the OPs appeared and advanced their arguments, the complainant alleging deficiency of service on the part of the OPs causing harassment to him and thus arguing for compensation and OPs on the other hand, argued that certified copies of the lost documents have been handed over to the complainant and thus there subsists no cause of action as of now. I have heard the arguments, perused the records of the case and given a careful consideration to the subject matter.
Point for consideration in the facts and circumstances of the case is whether there is any deficiency of service on the part of the OPs or any cause of action survives when the certified copy of the lost documents have been made available to the complainant and whether the complainant is entitled to compensation.
The Hon'ble Supreme Court of India in the matter of Ravneet Singh Bagga vs. Royal Dutch Airlines & Anr as reported in (2000) 1 SCC 66 is pleased to lay down the proposition(s) of law as under:-
The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service.
The burden of proving the deficiency in service is upon the person who alleges it.
If on facts it is found that the person or authority rendering had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service.
If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act.
The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fides, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service. (para-6) The Hon'ble Apex Court in yet another matter, in the matter of Interglobe Aviation Ltd. vs. N. Satchidanand as reported in (2011) 7 SCC 463 is pleased to observe that what is relevant is whether there was any cause of action for claiming damages, that is, whether their was any deficiency in service or whether there was any negligence in providing facilitation.
Cause of action, as per the verdict of the Hon'ble NCDRC in the matter of Santa Banta Company Ltd. vs. Parsha Cars reported in I [2014] CPJ 516 (NC) gives occasion for and forms the foundation of suit.
The fact that the original documents submitted to the OPs by the complainant were lost is indisputed. But this is also indisputed that certified copies of the documents so lost have been obtained by the OPs and handed over to the complainant. Grievances to this extent stand redressed. However what remains to be answered is the compensation the complainant is entitled to he having suffered for long owing to the loss of important documents pertaining to the complainant. The argument of the complainant is that the loss of these documents resulted in the reduction of the value of his property and therefore he is entitled for compensation.
Compensation, as per the settled law has to be commensurate with the loss or injury suffered. Consumer Forum is not meant to enrich consumers at the cost of service providers by awarding unfair, unreasonable and highly excessive compensation.
Having regard to the facts and circumstances of the case and legal position explained in the preceding paragraph I am of the considered view that the ends of justice would be met if a direction is issued to the OPs to pay to the complainant compensation of Rs. One Lakh jointly and severally within 45 days from the date of receipt of the copy of this order.
Ordered accordingly. A copy of this order be forwarded to the parties to the case free of cost as statutorily required. Files be consigned to record.
(ANIL SRIVASTAVA) Member