ORAL ORDER: (Per Honble Sri Justice D.Appa Rao, President.)
1) This is an appeal preferred by the opposite party Housing Development Finance Corporation (HDFC) against the order of the Dist. Forum directing it to return the registered sale deed dt. 27.12.1990 besides compensation and costs.
2) The case of the complainant in brief is that he was an employee of ECIL. Along with others he purchased 200 sq.yds of plot bearing No. 177 in S.No. 407, 409 and 412 at rampally village of Medchal mandal in Ranga Reddy Dist., under registered sale deed dt. 27.12.1990. The developer M/s. TPS Housing Pvt. Ltd., approached his employer ECIL to develop the plots by raising the construction for residential purpose, and his employer undertook to make payments by deducting the EMIs from out of their salaries. When the said developer did not raise any structures for several years, he raised structures in order to protect his property. There upon he filed C.D. 95/1995 against the Managing Director of the developer and the Dist. Forum directed it to pay Rs. 9,000/- with interest @ 18% p.a., from 10.8.1993 vide its order dt. 5.7.1995. On filing execution petition the said amount was paid. In order to avoid complications he filed a suit O.S. No. 380/1998 on the file of the Dist. Munsiff, Ranga Reddy against his employer ECIL and HDFC appellant herein for declaring that he was not liable to pay any amount under the loan and the said suit was decreed on 13.8.1999. It was also directed the appellant to pay Rs. 18,528/- however, it was not paid till date. In fact he deposited his title deeds with the appellant at the instance of his employer ECIL. Since the project was not completed and the loan was not withdrawn the documents deposited with the appellant is liable to be returned. Despite notice, it did not return and therefore he filed the complaint for return of registered sale deed dt. 27.12.1990 together with compensation of Rs. 30,000/- towards mental agony and costs.
3) HDFC the appellant resisted the case. It alleged that the complaint was barred by limitation. Even admittedly the decree in O.S. No. 380/1998 against it and his employer was obtained on 13.8.1999 and the present complaint was filed more than 9 years after the decree and therefore it was barred by limitation. In fact in the plaint filed by him he alleged that all the documents were fabricated and he did not obtain any loan from it. He never stated that he deposited the registered sale deed with it. His entire case is on falsification of documents and that fraud was played on him. Relief of return of document was not made in the suit. It has filed a petition to set-aside the ex-parte decree. However, the said petition was dismissed. The complainant was blowing hot and cold at the same time. He was not entitled to the documents. It has advanced an amount of Rs. 35,000/- to the complainant on 30.10.1991 and the loan amount was not discharged. Presently an amount of Rs. 1, 26,336/- was due. His employer ECIL stood as guarantor under a continuing guarantees dt. 26.9.1991. For recovery of an amount of Rs. 1,26,336/- in terms of guarantee it has filed a suit against his employer ECIL in O.S. No. 834/2009 on the file of Senior Civil Judge , Ranga Reddy. Original document was filed in the said suit. It was entitled to recover the amount. It is entitled to retain the documents till the amount was discharged by virtue of bankers lien in terms of Section 171 of Contract Act. Therefore it prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A5 marked while the appellant filed the affidavit evidence of its Manager (Legal) and got Exs. B1 to B3 marked.
5) The Dist. Forum after considering the evidence placed on record opined that the suit filed by the complainant in O.S. No. 380/1998 against the appellant and his employer ECIL guarantor of the appellant was decreed and no appeal was preferred and has become final,. When the dispute is with the guarantor the appellant was not entitled to retain the document any longer and therefore directed it to return the registered sale deed dt. 27.12.1990 together with compensation of Rs. 5,000/- and costs of Rs. 2,000/-.
6) Aggrieved by the said decision, the appellant preferred the appeal contending that the Dist. Forum did not appreciate the facts or law in correct perspective. It ought to have seen that the complaint was barred by limitation. Earlier in his suit O.S. No. 380/1998 he categorically stated that he did not deposit the documents and that the entire record was fabricated. Contrarily now he is claiming return of documents. A suit was filed by it against his employer ECIL in O.S. No. 834/2009 on the file of Senior Civil Judge, Ranga Reddy for recovery of Rs. 1,26,336/- and the same was filed in the said suit. Therefore the complainant was not entitled for return of documents. Therefore it prayed that the appeal be allowed by dismissing the complaint.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that the complainant along with others purchased 200 sq.yds of plot bearing No. 177 in S.No. 407, 409 and 412 at Rampally village of Medchal mandal in Ranga Reddy Dist., under Ex. A4 registered sale deed dt. 27.12.1990. He is working with ECIL. His employer ECIL entered into development agreement with the developer M/s. TPS Housing Pvt. Ltd. for developing the said plots and further undertook to make payments by deducting the EMIs from out of their salaries. However, no construction had taken place. He filed C.D. 95/1995 against the developer who in turn paid Rs. 9,000/- with interest @ 18% p.a. He also filed a suit in O.S. No. 380/1998 on the file of Dist. Munsiff, Ranga Reddy against the appellant as well his employer ECIL alleging that no amount was liable to be repaid by him and for a direction to refund Rs. 18,528/- recovered from out his salary. In fact he deposited the sale deed with the appellant to avail loan facility. The said suit was decreed in his favour for refund of the amount vide Ex. A2. It may be stated herein the complainant did not seek for return of the documents for whatever reason.
9) Earlier he submitted loan application with the appellant HDFC in the month of September, 1991 for sanction of loan for construction of a house. An amount of Rs. 75,000/- was sanctioned to him. His employer ECIL had stood as guarantor. According to him as per the norms he deposited Rs. 6,834/- towards premium and signed on printed forms and on blank stamp papers. However, he did not receive any amount. Later he learnt that some of the employees have formed into a housing society âThirumalesha Co-operative House Building Society (TCHBS). He further contended that the appellant as well as members of the society colluded and received cheque for Rs. 35,000/- from HDFC. He is no way concerned with the said loan. Alleging that fraud was played against him, he filed a suit O.S. No. 380/1998 for a declaration that he was not liable to repay the loan amount of Rs. 35,000/- besides for refund of Rs. 18,528/-. The said suit was decreed on 13.8.1999 where neither the appellant nor his ECIL had contested the matter vide Ex. A3.
10) No doubt the appellant filed a petition I.A. No. 522/2002 to set-aside the ex-parte order. The said application was dismissed and no revision or appeal has been preferred and the decree in O.S. No. 380/1998 has become final. The appellant has filed a suit in O.S. No. 834/2009 against the employer ECIL on the file of Senior Civil Judge, Ranga Reddy for recovery of Rs. 1, 26,336/- for the amount due on behalf of the complainant from the employer. The complainant was not impleaded as party to the said suit. Coming to know of it he filed the complaint for return of sale deed.
11) The appellant resisted the complaint on three grounds (i) in earlier suit the said relief was not claimed (ii) earlier in the counter filed in IA 522/2002 it was categorically mentioned that he has not deposited the title deeds with the appellant and that the documents lying with the appellant are all false and fabricated and (iii) it was barred by limitation. Even otherwise, since the document was kept with it by the employer who stood as guarantor, till such time the amount is recovered, sale deed filed in O.S. No. 834/1999 cannot be returned to him.
12) Evidently the complainant while filing the suit O.S. No. 380/1998 against the appellant as well as his employer ECIL sought only a declaration that he was not liable to repay the loan amount. Since an amount of Rs. 18,528/- was recovered from his salary, he sought for its refund. This suit was filed with the allegation a co-operative housing building society was formed for construction of houses which did not take up the work. Alleging that the members had colluded with the appellant the complainant filed a C.D. and recovered the amount paid by him. At no time none of the respondents had taken a contention that the complainant was liable to repay the amount, and was not entitled for refund of the amount. On the other hand the C.D. filed by him was allowed against the developer and the suit filed in O.S. No. 380/1998 against the very same appellant as well as his employer ECIL was decreed. Despite the fact that suit was decreed in favour of the complainant, the appellant filed O.S. No. 834/2009 against his employer ECIL for recovery of the amount as though it was payable by the complainant to the employer. Importantly the complainant was not impleaded as party to the said suit. Obviously the said suit would be barred by resjudicata or on the ground of estoppel. The appellant filed the sale deed in the said suit obviously showing it as a security for payment of suit amount. On that the complainant filed the present complaint for return of sale deed. There is no reason for the complainant to seek return of sale deed in the suit for declaration that he was not liable to pay the loan amount. In the counter filed in IA 522/2002 in O.S. No. 380/1998 to set-aside the ex-parte order the complainant has pleaded that he did not deposit the title deed and the documents were fabricated. This was a fleeting averment made in the context of the said suit. He pleaded that those documents would not bind him. It would not in no way estop from seeking return of document from the appellant, more so, when the suit against the very appellant was decreed. They could not have collected the amount basing on the so called security, when the very debt was found not binding on him.
13) Finally it was contended that the complaint was barred by limitation, in view of the fact that the document was entrusted in the year 1990. We may state that the appellant intends to use the document for recovery of the amount as security, and a such intends to retain the document. Undoubtedly the amount cannot be recovered from him by virtue of judgement in O.S. No. 380/1998. By no stretch of imagination this amount could be recovered on the basis of registered sale deed given as security. He is circumventing the very decree obtained against it. Since the document was filed in O.S. No. 834/2009 he sought for return of the document. It was within one year from the date of deposit of the document. Therefore it cannot be said that it was barred by limitation. We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard. We do not see any merits in the appeal.
14) In the result the appeal is dismissed. However, no costs. Time for compliance four weeks.