VERDICTUM.
IN
2025:KER:31505
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947
WP(C) NO. 11247 OF 2024
PETITIONERS:
1 SHEELA FRANCIS PARAKKAL
AGED 64 YEARS
W/O LATE FRANCIS PARAKKAL,
PARAKKAL HOUSE, ASSISILANE,
ALUVA, PIN - 683101
2 DEEPAK FRANCIS PARAKKAL
AGED 47 YEARS
S/O LATE FRANCIS PARAKKAL,
PARAKKAL (H), ASSISSILANE,
ALUVA, PIN - 683101
3 RUPAK FRANCIS PARAKKAL
AGED 44 YEARS
S/O LATE FRANCIS PARAKKAL 2C,
NOEL ECOTAT, VALLATHOL JUNCTION
TRIKKAKKARA, PIN - 682021
BY ADV PRAVEEN K. JOY
RESPONDENTS:
1 THE AUTHORISED OFFICER
SOUTH INDIAN BANK BUILDING NO.11
THRIGGAYA AVENUE PRIYADHARSINI ROAD
ALUVA, PIN - 683101
2 THE BRANCH MANAGER
SOUTH INDIAN BANK
ALUVA BRANCH, PIN - 683101
3 THE GENERAL MANAGER
RESERVE BANK OF INDIA BAKERY JUNCTION
P.B NO.6507 THIRUVANANTHAPURAM, PIN - 695033
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4* HDB FINANCIAL SERVICES LTD.,
2ND FLOOR, DOOR NO.37/1912, JK CHAITHANYA
BUILDINGS, OPPOSITE SWAPNIL APARTMENT,
KALOOR, KADAVANTHRA ROAD,
KADAVANTHRA, COCHIN-682017
REP BY ITS MANAGER
*[ADDL.R4 IS IMPLEADED AS PER ORDER DATED
07.01.2025 IN I.A.01/2024 IN WP(C)11247/2024
BY ADVS.
SUNIL SHANKAR A
VIDYA GANGADHARAN(K/000424/2020)
P.PAULOCHAN ANTONY
SREEJITH K.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 08.04.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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BECHU KURIAN THOMAS, J.
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W.P.(C). No.11247 of 2024
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Dated this the 8th day of April, 2025
JUDGMENT
Petitioners seek for a direction to release their title deeds and
also for a declaration that the second respondent has no authority to
retain petitioners’ original title deeds, despite closure of the loan
account. Petitioners have also sought for a compensation of
Rs.10,00,000/- for illegal retention of documents for nine years after
closure of the loan.
2. The first petitioner and her husband had availed a loan
from the second respondent in the year 2009. Second and third
petitioners who are their children, were the guarantors to the said loan.
Husband of the first petitioner expired on 20.10.2011. Petitioners are
the legal heirs, as is evident from the legal heirship certificate dated
20.3.2013.
3. On 16.07.2015, the bank issued Exhibit-P4 letter
acknowledging the deposit of four title deeds by the petitioners as
security for the housing loan availed from them. The document which
included two exchange deeds bearing Nos. 1924/1992 and 2039/1992,
a release deed No.1350/1975 and a sale deed No.3625/1971 all of
Aluva Sub Registry Office, were retained by the second respondent
bank. Subsequently, on 04.08.2015, as per Exhibit-P5, petitioners
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requested the second respondent to close the loan account and release
the collateral securities mortgaged with the bank, after remitting
Rs.58,01,320/-. According to the petitioners, after crediting the cheque
issued by them, the bank closed the loan account on 05.08.2015. The
statement of accounts is produced as proof of closure of the loan.
However, despite closure of the loan account, the title deeds relating to
the property mortgaged, were not returned. Though several letters
were issued, the bank did not return the original title deeds. Petitioners
contend that refusal to release the original title deeds, even after
closure of the loan account is illegal and the unilateral action of the
bank in withholding the security documents, after closure is arbitrary.
Hence, they have approached this Court seeking the reliefs mentioned
earlier.
4. A counter affidavit has been filed by the Chief Manager of
the second respondent stating that the writ petition is not maintainable
and that they are not amenable to the writ jurisdiction of the court. It is
further stated that the loan availed by the first petitioner and her
husband was secured by equitable mortgage which was also a general
security for a cash credit limit availed by M/s. Parackel Cartel who had
enhanced the cash credit limit by deposit of title deeds on 09.07.2010
and the credit limit was closed and later the title deeds of the
properties mortgaged by M/s. Parackel Cartel was released. It is also
pleaded by the second respondent that the housing loan availed by the
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petitioners was closed on 05.08.2015 following take over by HDB
Financial Services and on receipt of Exhibit-P8 request, a detailed
examination was conducted at the branch which revealed that no files
or documents were available there. Despite a detailed search to rule
out the possibility of any misplacement, the title deeds could not be
traced out. It was also stated that the second respondent branch had
moved to a new premises in July 2023 and many closed files were
disposed of during the shifting process. The second respondent
asserted that the title deeds of the petitioners were not retained or
withheld at any point in time since there were no pending dues and
they are not retaining the documents. It was also stated that the
documents requested by Exhibit-P8 letter have not been able to be
traced out. Inspite of the above pleading, second respondent asserted
that when a financial institution takes over a loan facility they normally
demand the original title deeds be released from the earlier institution
and be deposited with them. According to the respondents, it is
unbelievable that the HDB Financial Services who took over the loan
would have waited more than 8 years to submit the original title deeds
and that the petitioners have not disclosed the entire details. It is also
stated that second respondent has not retained the original title deeds
for any other amounts due from the petitioners and the reliefs sought
for are not liable to be granted.
5. Since during the course of arguments, it was suggested on
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behalf of the second respondent that there is a possibility that HDB
Financial Services who had taken over the home loan of the petitioners
in 2015, may have collected the original documents of title and be
retaining it, petitioner impleaded the said institution as additional
respondent No. 4. In the counter affidavit filed by respondent No.4, it
was categorically stated that based on the deeds mentioned in the
mortgages it was evident that the property mortgaged with the second
respondent was distinct from the property mortgaged with respondent
No.4.
6. I have heard Sri. Praveen K. Joy learned counsel for the
petitioner as well as Sri. Sunil Shankar learned standing counsel for
respondents 1 to 3 as well as Sri. Poulochan Antony learned counsel for
the 4th respondent.
7. Petitioners have been attempting to obtain their original
four title deeds over which equitable mortgage by deposit of title deeds
was created with the second respondent. Exhibit-P4 acknowledged the
existence of those title deeds with the second respondent as on
16.07.2015. There is no document evidencing return of the title deeds.
Hence, the second respondent is bound to answer the whereabouts of
the title deeds.
8. In the counter affidavit filed by the second respondent as
well as during the course of hearing, a vain attempt was made to
convey that the home loan having been taken over by the fourth
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respondent, even the title deeds would have been handed over to the
said respondent. Thereupon, the fourth respondent was impleaded and
in their affidavit they have asserted that the loan availed from the
fourth respondent was covered by mortgage of some other properties
and not the property covered by the documents submitted to the
second respondent. Therefore, the responsibility for return of the
documents of title of the petitioners vests with the second respondent.
9. The counter affidavit filed by the second respondent
reveals that despite their search, they have not been able to trace the
four title deeds. It is quite evident that the documents of title of the
petitioners have been lost from the second respondent. Since the
documents have not been traced, and the obligation is upon the second
respondent to return the title deeds, it is necessary that they return
the documents or initiate appropriate proceedings to enable the
petitioners to obtain a certified copy of the documents as a
replacement for the original title deeds.
10. In a Circular dated 13.09.2023 issued by the Reserve
Bank of India, bearing No. DOR.MCS.REC.38/01.01.001/2023-24, it has
been specifically mentioned that, in case of delay in releasing original
documents of title, the bank shall compensate the borrower at the rate
of Rs.5,000/- for each day of delay. It was also clarified that the
compensation provided as per the said direction shall be without
prejudice to the right of the borrower to get any other compensation as
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per the applicable law.
11. Petitioners have claimed compensation of Rs.10,00,000/-
payable by the second respondent. It is evident that the documents of
title have been retained without authority from the date of closure of
the loan account. Petitioners had requested by Exhibit-P5
communication dated 04.08.2015 to release the respective collateral
securities mortgaged. Therefore, the obligation was upon the second
respondent to return the documents. Till date the documents have not
been returned. Obviously the Reserve Bank's Circular applies in all its
rigour to the second respondent. There is no reason to assume that the
second respondent will ignore the binding directions of the Reserve
Bank of India.
12. As far as the relief of compensation is concerned, it is for
the petitioners to initiate proceedings in accordance with law, before
the appropriate forum if the second respondent refuses to abide by the
RBI Circular. However, the public law remedy under Article 226 of the
Constitution of India cannot be resorted to by the petitioners for
claiming compensation in a matter of this nature, as the petitioners
have efficacious remedy before other forums. Further, this is not a case
of violation of any fundamental right of the petitioners for exercsing the
power to grant compensation under Article 226 of the Constitution of
India. Therefore, for the purpose of the claim for compensation raised in
this writ petition, the petitioners ought to initiate appropriate other
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remedies.
13. Taking into consideration the non availability of the
original four documents of title of the petitioners, a direction to release
the title documents, as prayed cannot be issued. A direction incapable
of compliance cannot be issued under Article 226 of the Constitution.
Notwithstanding the above, it has to be declared that the second
respondent has no authority to retain the original title deeds of the
petitioner after closure of a loan account.
14. However, considering the conduct of the second
respondent and the tone and tenor of the affidavit filed, coupled with
the stance adopted, this Court is of the view that, respondents 1 to 3
are bound to pay costs, for the judicial time wasted by them while
trying to divert their burden to another establishment, who had to be
subsequently impleaded and be called upon to attend this Court.
In the result:
i. There will be a declaration that the second respondent has
no authority to retain the original title deeds of the petitioner
after closure of a loan account.
ii. The direction to release the title documents belonging to the
petitioners is declined due to non-availability of the
documents.
iii. The claim for compensation raised in this writ petition is
declined reserving the right of the petitioners to approach
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appropriate other forum.
iv. An amount of Rs.50,000/- is imposed as costs on the second
respondent of which Rs.25,000/- shall be paid to the
petitioners and the balance Rs.25,000/- shall be paid to the
Kerala Legal Services Authority. The costs shall be paid
within 15 days from the date of receipt of a copy of this
judgment. It is clarified that, these costs shall not be set off
against the compensation, if any, claimed by the petitioner.
Writ petition is disposed of as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
Jka/08.04.2025.
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APPENDIX OF WP(C) 11247/2024
PETITIONERS’ EXHIBITS
Exhibit P1 TRUE COPY OF THE PHOTO OF
SANCTION/RENEWAL OF CREDIT FACILITY
DATED 26.06.2009 OF SOUTH INDIAN BANK
Exhibit P2 TRUE COPY OF THE DEATH CERTIFICATE
ISSUED ON 27.10.2011 BY REGISTRAR OF
BIRTH AND DEATH, MUNCIPAL OFFICE
ANAGAMALLY
Exhibit P3 TRUE COPY OF THE LEGAL HEIRSHIP
CERTIFICATE DATED 20.03.2013 OF
TAHSAILDAR ALUVA
Exhibit P4 TRUE COPY OF THE LETTER DATED 16.07.2015
ISSUED BY 2ND RESPONDENT
Exhibit P5 TRUE COPY OF THE REQUEST DATED
04.08.2015 TO THE 2ND RESPONDENT
Exhibit P6 TRUE COPY OF THE CHEQUE DATED 01.08.2015
TOGETHER WITH MAIL OF HDFC BANK
Exhibit P7 TRUE COPY OF THE STATEMENT OF ACCOUNT
DATED ON 07.08.2015 ISSUED BY 2ND
RESPONDENT
Exhibit P8 TRUE COPY OF REQUEST DATED 01.03.2024
BEFORE THE 2ND RESPONDENT
Exhibit P9 TRUE COPY OF THE ACKNOWLEDGMENT CARD OF
THE 2ND RESPONDENT DATED 05.03.2024
Exhibit P10 TRUE COPY OF THE JUDGMENT IN WPC NO.
4806/2023 DATED 17.03.2023
