(BEFORE       :-          PRESIDENT :-          Smt. Pranali Sawant                 )

                                    MEMBER       :-          Smt. Sujata Patankar               )

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Complaint No. : APDF/184/2010

                                                                                                                                                                                                            Date of filing      :-   14/12/2010

                        Date of decision :-    30/12/ 2011

 

Ms. Saroj Shrinivas Kadam,                                       ..          )

R/at : Namrata Housing Society, Building No.44,     ..          )

Sector 21, Flat No. 23, Nigadi,                                   ..          )

Pune – 411 044.                                                         ..          )… COMPLAINANT

                       

1. Housing Development Finance Corporation Ltd. ..          )

    Through Its Managing Director,                             ..          )

    Add :- Ramon House H.T. Parekh Marg,               ..          )

     169, Backbay Recamation                                     ..          )

     Mumbai – 400 020.                                               ..          )

                                                                                    ..          )

                                                                                    ..          )

 2. Housing Development Finance Corporation Ltd.            ..          )

     Through its Branch Officer,                                 ..          )

      H.D.F.C. Colony, Shahu Nagar, MIDDC,           ..          )

      G Block,  Pune – 411 010.                                   ..          ).. OPPONENTS

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            For Complainant         :           Adv. Smt. Jayashri Kulkarni    

Per : Smt. Sujata Patankar, Member

 

 

[1]                   The facts of the present case briefly stated  as follows :-

                        The Complainant is the wife of late Shrinivas Kadam and he dies dtd.2/7/2005. Afterwards the Complainant is the legal heir of the Shrinivas Kadam. The Opponent No.1 is the  Corporate Body incorporated under the provision of Companies Act, 1956.   The Complainant is the owner of Unit No. 23 on the first floor in the building know as Namrata Housing Society Limited, Building No. 44, Sector No. 21, Nigadi, Pune – 4110 44.   The Complainant wants to take housing loan from the Opponent hence she approached to the Opponent. The Opponent also sanctioned the loan in favour of the Complainant after compliance of legal formalities suggested and directed by the legal department before disbursing the said loan. The loan agreement executed between the Complainant and the Opponent, the rate of interest was fixed at 12.5% p.a.. The period of repaid the said loan for 13 years i.e. 156 monthly installment and monthly installment was of Rs.4,520/-. The Complainant’s loan account No. is 230920524. For securing the said loan the Complainant has mortgaged the said unit for convenience the secured assets. The Complainant always obeyed the rules and regulations of the Opponent and never violated them. It is agreed that the loan is repaid by the Complainant through the ECS system and the Complainant also repaid the loan regularly.  In the month Feb.2010, the Opponent  hanged the board on the property of the Complainant and the following lines were returned on the said board. “ही मिळकत एच. डि. एफ.सी.कडे गहाण असून सदर कर्जदार हा हेतूत: एच.डि.एफ.सी. चा थकबाकीदार आहे. तरी या सदर मिळकत जप्‍तीसाठी कारवाई चालू करणार” . The loan was sanctioned in July – 2001 and installment of Rs.4,520/- with interest was to be paid per month from August 2001. The Opponent has received Rs.4,29,370/- towards loan amount and interest. There is no any due to be received on the date of fixing the Board as the secured asset. The Opponent has not followed the process for attachment of mortgage property.  As per agreement, the Complainant is not the defaulter but the Opponent without sending any notice for the outstand amount directly took this legal action which denoted the deficiency in service and also the unfair trade practice and therefore, the Complainant prayed as follows :-

 

1.      The order may be passed against the Opponent to pay rest 10,00000/- as the compensation for the mental agony and harassment to the Complainant by the Opponent. Order may be passed against the Opponent to give the apology letter to the Complainant.

2.      Order may be passed against the Opponent to stop the procedure of

                  The order may be passed against the Opponent to pay Rs.10,000/- to the 

 

                  Complainant for the cost of the proceeding. 

 

 

[2]                    In pursuance of the notice of appearance issued by this Forum, the Opponents appeared and filed their common written statement on  affidavit and has stated that the complaint filed by the Complainant is bad at law and illegal hence deserves to be rightly rejected. The complaint is expressly barred by the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (SARFAESI) which is a special enactment having overriding effect over all other laws. Hence this Forum has no jurisdiction to try, entertain and decide the complaint. The complaint are misleading false and incorrect and therefore denied by the Opponents.      It is admitted by the Opponent that housing loan of Rs.3,40,000/- was availed by the Complainant  along with  her husband Mr. Shriniwas Kadam and despite being well aware of the said fact the Complainant has suppressed the same from this Forum and has further mislead by saying that ‘The Complainant wants to take housing loan from Opponent.   The loan Agreement has been executed by the Complainant and her husband Shriniwas Kadam jointly in favour of Opponent No.1. The Opponents admit the contention about rate of interest @12.5% per annum, loan term, EMI and loan account number, the concerned property being a secured asset. The statement and references to Opponent as Bank is absurd and irrelevant. Because of the default in payment of loan, the Opponent affixed the said board and secured the assets from creating third party interest by the Complainant. The Opponents have further taken action under the SARFAESI Act by issuing the notice dtd.30/6/2010 u/s 13 [2] of the SARFAESI Act. The Opponents have also issued Public Demand Notice dtd.25/7/2010 in Marathi Daily Loksatta dtd.25/7/2010 u/s.13[2] of the SARFAESI Act and in furtherance thereof initiating action u/s. 13 [4] of the same. It is the Complainant and not the Opponent  who has committed a breach of terms and conditions of the loan agreement entered into by the Complainant in favour of HDFC. The actions taken by HDFC Opponent including publishing of Public Notices were and are as per the provisions of the SARFAESI Act. The Complainant has mischievously not stated the date and reference of the alleged notices in the complaint. The Opponent  replied the legal notice of the Complainant. This Opponent has never caused mental agony to the Complainant hence this Opponents cannot be held liable to pay the alleged compensation of Rs.10,00,000/- as claimed by the Complainant. The Complainant is neither entitled to claim the costs of the complaint nor is the Complainant legally entitled to the alleged compensation of Rs.10,00,000./- nor seek an apology letter from the Opponents as the Opponents  have done no wrong what so ever. No illegal recovery is being undertaken by the Opponent HDFC. Proper details of the dues payable by the Complainant to HDFC have been stated in the notice u/sec. 13[2] of the SARFAESI Act 2002 despite the same the Complainant has intentionally avoided and failed to repay the dues of HDFC in respect of relevant housing loan under the grab of present complaint  the Complainant is abusing process of law and of Court to defraud the Opponent HDFC and to delay the action initiated by the Opponent HDFC under the SARFAESI Act 2002. The Complainant has not challenged any action under the SARFAESI Act 2002 before the DRT which itself shows that the mischievous and ulterior motive of the Complainant. Hence the Opponents prayed to dismiss the complaint alongwith the compensatory costs of Rs.100000/-.

 

                           The Opponent has filed documents, comprising, loan agreement, reply notice dtd.10/3/2010 with acknowledgment, Demand notice sent by the Opponent to the Complainant dtd.30/6/2010, the notices sent by the Opponent to the Complainant returned with postal remarks “Not Claimed Returned to Sender”, demand notice published by the Opponent in the newspaper “Loksatta” dtd. 25/7/2010, reply to objection by the Opponent dtd.30/8/2010 to Advocate Kiran Patil, the appointment of authorised officer dtd . 18/11/2010 by the Opponent.       

 

[3]                    On 29/9/2011, the Complainant filed letter given by the Opponent to the Complainant and the Bank statement. On 3/11/2011, the Opponent filed their written argument and on 19/12/2011, the Complainant filed her written notes of arguments and on same day the Complainant filed purshis stating therein that her written arguments be treated as her oral submissions.  

 

[4]                    Taking into consideration, the complaint, written statement, documents on the record and the written notes of arguments, the following points arose for our consideration :

 

                        Points                                                                                 Answers

1)      Whether the Complainant proves that the Opponents have

      rendered deficiency in service to the Complainant?               …      No.

 

       2)   What order?                                                               … As per final order.

 

[5]               Point No.1 :- It is admitted fact that the Complainant and her deceased husband jointly borrowed the loan from the Opponent in the year 2001. It means that the Complainant availed the loan from the Opponent and repaid some amount to the Opponent through EMI by virtue of agreement. Therefore it is undisputed fact that the Complainant is a “consumer” of the Opponent.  

 

[6]                    The Complainant came with the case that the Opponent hang the board on the property of the Complainant illegally. And the Opponent followed illegal procedure for the recovery of loan by the Complainant. As against this it is the contention of the Opponent that the Complainant became defaulter and therefore the Opponent proceeded as per  the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (SARFAESI)  After perusal of the documents, it reveals that the Opponent sent reply notice by Advocate Mahajan to Advocate Ippe on 10/3/2010. It is evident that the Opponent sent Demand Notice by Registered A.D. Under Sub Section 2 of Section 13 of the   Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 on 30/6/2010. It also denotes that the notice sent by the Opponent returned with postal remarks as “Not Claimed Returned To Sender”. The Opponent filed one Demand Notice published in Newspaper “Loksatta” dtd.26/7/2010, by which it proves that the Opponent followed the proper legal procedure against the recovery of the loan under SARFAESI 2002.  Thereafter, on 30/8/2010, the Opponent Bank sent reply objection by RPAD to Advocate Kiran Patil. All these aforesaid facts are not challenged by the Complainant by way of evidence affidavit if any. Hence the points raised in the written version of the Opponent remained unchallenged. 

 

[7]                    After perusal of the documentary evidence it is crystal clear that the Complainant is a defaulter of the Opponent Bank and therefore, the Opponent initiated proper legal steps for recovery of the loan. By following proper legal procedure, the Opponent fixed  the Board on the property of the Complainant for securing the mortgaged asset.   The Complainant admitted the fact that some outstanding amount is due and payable through EMI by the Complainant to the Opponent.   In the complaint application itself the Complainant has stated that “thus as per the agreement the Complainant is not the defaulter but the Opponent without sending any notice for the outstanding amount directly took this legal action which denoted the deficiency in service and also the unfair trade practice.” It means that the Complainant herself admitted the fact that the amount is outstanding against the loan taken from the Opponent. And the Complainant failed to prove that the Opponent without sending any notice for the outstanding amount directly took legal action. Hence the Complainant has not prove her case that the Opponents have rendered deficiency in service to the Complainant. On the contrary, the Opponent with cogent documentary evidence proved that the Opponent followed the proper procedure for recovery of the loan from the Complainant as per the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (SARFAESI).   Therefore we opioned that the complainant has not prove that the opponent have rendered   deficiency in service to the Complainant     Hence we answer the points No. 1 and 2 accordingly. 

                                                                                                                                                                    

With the aforesaid discussions, we opined that the complaint is liable to be  

Dismissed.   And  therefore we pass the following order:

(3)      Certified copies of this order be furnished to the     Complainant and   the Opponents free of costs.

 

 

 

 

 

 (Smt. Sujata Patankar)                                              (Smt. Pranali Sawant)

          MEMEBR                                                               PRESIDENT

 

ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,PUNE.

 

 

Place : Pune               

Date : 30/12/2011