S.M. Kantikar ORDER
Dr. B.C. Gupta, (Presiding Member)
1. This first appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 25.11.2013, passed by the Kerala State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission'), vide which, the Consumer Complaint No. C-05/13, filed by the present respondent, was allowed and the appellant/opposite party (OP) was directed to return the original sale deed number 1959/92 to the complainant within one month, failing which to provide compensation of 10 lakh with interest @ 12% p.a. from the date of petition till realisation.
2. The facts of the case are that the complainant/respondent availed a loan from the appellant, Mayyanadu Regional Cooperative Bank, by mortgaging his property in survey No. 150/2 in block 26 of Mayyanadu Village and by pledging his original title deed No. 1959/92 of the said property with the Bank. The complainant repaid his loan, but the OP Bank did not return the original title deed. It has been stated that the Bank orally informed him in the year 1999 that the original deed was missing, and the OP Bank was on search to recover the same. However, loan was advanced to the complainant a number of times thereafter. The loan case was finally closed on 08.09.2012 and an endorsement to that fact was made by the Bank in the loan passbook. The Bank informed the complainant at that time that the title deed was lost, when the Bank shifted their building premises. The complainant stated that the property was valued at about 75 lakhs and due to lack of original document, the complainant was unable to sell the property to the third parties. Alleging deficiency in service on the part of the OP Bank, the consumer complaint was filed, seeking compensation of 25 lakhs from the OP for deficiency in service/unfair trade practices etc.
3. Though, the OP Bank entered appearance before the State Commission, but they did not file any written version. The State Commission after taking into account the evidence of the parties, directed as follows:-
"Therefore complaint is allowed. The opposite party is directed to return the original sale deed No. 1959/92 of SRO Kottiyam to the complainant within one month from this day, failing which the complainant is entitled to a compensation of 10 lakh with interest at the rate of 12% from the date of petition till realisation. The opposite party is also directed to give a certificate to the complainant to the effect that the title deed is lost if they are unable to return the title deed."
4. Being aggrieved against the said order of the State Commission, the OP Bank is before this Commission by way of the present first appeal.
5. Heard the learned counsel for both the parties. Written arguments have also been placed on record by the learned counsel for the appellant Bank.
6. It was vehemently argued by the learned counsel for the appellant that the complaint was hopelessly time barred as the same had not been filed within the permissible time prescribed under section 24A of the Consumer Protection Act, 1986. It was mandatory on the part of the complainant to have filed the complaint within 2 years of the cause of action, but the complaint was filed after 12 years of the accrual of cause of action. The learned counsel argued that during all these years, the complainant availed himself of fresh loans on a number of occasions. It was, therefore, unfair on his part to allege deficiency in service on the part of the Bank in any manner. The learned counsel has drawn attention to a copy of letter dated 06.04.99, written by the Bank, in which a clear direction was given that loan could be given to the complainant, after taking a certified copy of the title deed of the property. The complainant had not been able to show if they had suffered any damage on account of the title deed having been misplaced/lost. The learned counsel has drawn attention to an order passed by the Hon'ble Supreme Court in "V.N. Shrikhande (Dr.) vs. Anita Sena Fernandes" [MANU/SC/0868/2010 : (2011) 1 SCC 53], saying that the cause of action arises on the date on which negligence was committed. It was clearly stated in the said judgment made by the Hon'ble Apex Court that consumer complaint could be filed within two years of the cause of action, having been accrued as per section 24A of the Consumer Protection Act, 1986. The learned counsel has also drawn attention to another judgment of the Hon'ble Apex Court in "Haryana Urban Development Authority (HUDA) vs. Tej Refrigeration Limited" [MANU/SC/0784/2013 : (2013) 14 SCC 758], on the issue of limitation.
7. The learned counsel stated in his written arguments that the Secretary of the Bank had filed evidence affidavit on 31.10.2013 before the State Commission, saying that the factum of missing of the title deed was communicated in writing to the complainant in the year 1999. It was wrong on the part of the complainant to say that only an oral communication was made to him about the sale deed being missing.
8. The learned counsel for the respondent/complainant in his arguments has tried to draw a distinction between the terms "lost" and "misplaced". The learned counsel argued that if an item was lost, it was clear that it was not in the possession of the party concerned. However, if something was misplaced, it amounted to say that the said article was at a wrong place and could be recovered later on. In the present case, the Bank had been taking the plea all along that the documents had been 'misplaced' and not 'lost'. The learned counsel has drawn attention to the evidence affidavit filed by the Bank before the State Commission, in which, it was stated that the Bank never intimated to the petitioner that the title deed had been lost. From the above stand taken by the Bank, it is clear that the document in question had not been 'lost', but 'misplaced' by the Bank. It was, therefore a case of continuing cause of action. The learned counsel also stated that they had sent a legal notice to the OP Bank, before filing the consumer complaint.
9. In reply, the learned counsel for the appellant stated that the complainant had himself mentioned in the consumer complaint that the loss of the document had been communicated to him.
10. We have heard the learned counsel for the parties and examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
11. The main thrust of the arguments taken by the appellant is that the consumer complaint was hopelessly barred by limitation in terms of section 24A of the Consumer Protection Act, 1986. It requires to be determined, therefore, as to when the cause of action accrued to the complainant, in the given facts and circumstances of the case. The crucial document to decide the question is the evidence affidavit filed by the appellant/OP. The Secretary of the Appellant/OP, Mayyanadu Regional Cooperative Bank stated in para 3 of the said affidavit as follows:-
"I state that the Bank has never intimated the petitioner that the original title deed was lost and assured him that it will be returned as soon as it was traced."
12. This affidavit executed on 31.10.2013 establishes beyond doubt that the Bank has always been taking the position that the document has been 'misplaced' and not 'lost'. In the consumer complaint itself, the complainant took the plea that when the loan was closed finally on 08.09.2012, he was informed by the OP that the document of title deed had been lost.
13. The plea taken by the learned counsel for the Respondent that the fine distinction between the words 'misplaced' and 'lost' has to be carefully seen, while deciding about the date of cause of action. In case the Bank takes stand that the document had been 'misplaced', there shall still be a possibility that the document could be recovered at a later stage and returned to the complainant. However, if the Bank had intimated to the complainant that the documents had been "lost", the cause of action would have started from the date of receiving the said intimation. In the present case, therefore, it is established beyond doubt that since the Bank has been taking the stand that the document was 'misplaced', the cause of action had not accrued to the complainant all these years, and hence, the complaint filed by them cannot be stated to be beyond limitation in terms of section 24A of the Consumer Protection Act, 1986. The appellant, therefore, cannot take shelter under the orders made by the Hon'ble Supreme Court in "V.N. Shrikhande (Dr.) vs. Anita Sena Fernandes" (supra) and "Haryana Urban Development Authority (HUDA) vs. Tej Refrigeration Limited" (supra), because the facts of the case make it clear that the cause of action would have accrued form the date of intimation of loss of the document to the complainant. It may be true that the OP/appellant allowed the complainant to avail himself of loans from time to time all these years, even in the event of title deed having been misplaced/lost. However, this does not mean that other financing institutions shall also extend the loan facility to the complainant in the absence of title deed. It is made out, therefore, that the complainant did suffer due to the loss of the title deeds. The deficiency in service on the part of the Bank is clearly established, because the title deed under their custody got lost.
14. The matter has been duly examined in a number of cases recently decided by the Commission. In FA No. 226/2016, Bank of India vs. Mustafa Ibrahim Nadiadwala', decided on 30.11.2016, the orders earlier passed by this Commission in RP No. 3800/2014, "Indian Overseas Bank, Hyderabad vs. K. Bal Reddy & Ors., decided on 15.10.2014 and "C.L. Khanna vs. Dena Bank [MANU/CF/0065/2005 : IV (2005) CPJ (NC)]", were discussed in detail. It was held that the Bank was liable to pay compensation to the complainant, because the value of the property was bound to be affected, if the original title deed had been lost.
15. In the above case, the complainant was held to be entitled to a sum of 5 lakh as compensation from the Bank for loss of title deed, alongwith a sum of 10,000/- as cost of litigation. In another case FA No. 624/2012 decided on 08.12.2016, "LIC Housing Finance Company Ltd. vs. Rajeev Kumar Jain" also, the appellant LIC Housing Finance Company was directed to pay a compensation of 5 lakh to the complainant for the loss of the title deed. In this case also, the earlier orders passed in "C.L. Khanna vs. Dena Bank (supra)" and "Indian Overseas Bank, Hyderabad vs. K. Bal Reddy & Ors." were discussed.
16. In view of all these orders, the matter in the present case is no more res-integra. The loss of the title deed has been fully established from the material on record. It is felt, however, that the compensation of 10 lakh alongwith interest @ 12% p.a. allowed by the State Commission is on the higher side. Keeping in view the orders passed by this Commission in, "Bank of India vs. Mustafa Ibrahim Nadiadwala" (supra), and "LIC Housing Finance Company Ltd. vs. Rajeev Kumar Jain" (supra), it is ordered that the OP/appellant shall be liable to pay a sum of 5 lakh to the complainant for the loss of the title deed alongwith 10,000/- as cost of litigation. The said amount shall be payable within four weeks of passing this order, failing which the Bank shall be liable to pay interest @ 12% p.a. for the period of delay in making the said payment. This First Appeal stands disposed off accordingly.
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