DOF.23.12.2008 DOO.18. 2.2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy : Member Dated this, the 18th day of February 2011 CC.317/2008 TomyJoseph, Valia Veettil, House No.AP.XIII 477A, Arangam, Alakode.P.O. 670 571. Complainant (Rep. by Adv.P.K.Mahesh) 1.ICICI Home Finance Co. Ltd. Branch Kozhikode, IV Floor, Shafeer Complex, Kannur Road,YMCA, Calicut 1 2.ICICIHome Finacne co.Ltd., ICICI Bank Tower, Bandra Kurla Complex, Muymbai 51 3.The Manger, ICICI Bank Ltd. Kannur Beranch, Bank Road, Kannur. (Rep. by Adv.M.Jameel Ahamed) Opposite parties O R D E R Smt.K.P.Preethakumari, Member This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite parties to pay an amount of `2,00,000 as compensation with cost. The brief of the complainant’s case is that he had availed `4, 64,760 as housing loan during November 2005. Due to high rate of interest the complainant has decided to foreclose the loan during September 2008 and tried to contact the 1st opposite party. But he was succeeded in this task only in October and requested for foreclosure statement and the 1st opposite party agreed to give it within two days and hence he has paid the EMI for October 2008 on 30.10.08. But the 1st opposite party had issued the foreclosure statement only on November 20th and accordingly the complainant had tried to pay the entire amount through the cheque of SBI. But the 1st opposite party represented that they will receive only the cash or the cheque or at par cheque of ICICI so on 22.11.08 the complainant paid `3,82,186 by way of cheque of ICICI bank and `80000 byway of At par Cheque of IDBI. The above said amount calculated by opposite party is as follows: Principal amount `4,43,354, late payment penalty `245, cheque bouncing and other charges `675, interest for the month `3362.10, foreclosure charge `9975.47 and pending instalment `4575. The 1st opposite party issued receipt for the above said amount and advised to come and receive the documents within 20 days. But on 24.11.08, bank had issued another foreclosure statement. As per the statement, the principal amount is `4,43,354, late payment charge `245, cheque bouncing charge `675, interest for the month 3682.30, Foreclosure charge `9975.47 and refund `268. On 2.12.08 the opposite party had issued a statement of account as per the request of the complainant by paying `112 and it is seen that an amount of `4843 was included as EMI even after closing of the loan account. More over opposite party has charged `675 as cheque bouncing charge and `245 as late payment penalty. But according to the complainant cheque was bounced only once and hence he was not liable to pay `675 as bouncing charge. Because of the above acts of opposite parties the complainant had suffered so much of mental as well as physical hardship. Hence the complaint. In pursuance to the notice issued by the Forum all opposite parties appeared and filed their version admitting that the complainant was the holder of loan account No.LBICNR 00001198747. They denied the allegation that due to excessive interest the complainant decided to close the loan and tried to contact the 1st opposite party during first week of September 2008 onwards but the opposite party was not ready to accept the call etc. The opposite parties admit that the 1st opposite party has demanded the complainant to pay the EMI on 20th October, but he did not paid the EMI. The opposite party further admits that he had demanded the complainant to pay the EMI on 28th October and also admits that the opposite party has refused to accept the cheque of SBI. The cheque was returned Since it is a cheque of local clearance at Kannur. The opposite party can receive cheque at par, the local clearance cheque at Calicut, by cash or DD which is clearly stated in the agreement itself. They further admits that the complainant paid `4,62,186.57 towards the foreclosure of the loan. According to the opposite party they have issued a foreclosure statement on 24th November to opposite party and the same was issued mistakenly before the foreclosure of the loan and hence it is not binding. It is also admitted by the opposite parties that the complainant has got statement from the counter by paying `112. The customer is liable to pay the amount for the statement demanded by them as per the agreement. Since the complainant has not submitted the stop payment letter, it was happened to debit `4843 towards EMI. Opposite party was ready to return the said amount but was helpless because the account of the complainant was closed earlier. Even after repeated demands the complainant was not ready to receive the said amount from the opposite party. It is not correct to say that the cheque has been bounced due to the default of opposite party and opposite party has received some amount without reason and caused monetary loss etc. The above mentioned amount has been reversed to the complainant at the time of foreclosure. The complainant’s averment that the opposite party has not informed the enhancement of EMI from` 4309 to `4596 and hence the cheque was bounced etc. also is not correct. The EMI is being changed as per the change in the interest rate as per the rules and regulations of RBI and hence the complainant is liable to pay the EMI and the same has been duly informed to the complainant. More over the charges levied from the opposite party is also reversed to the complainant during Foreclosure of the account. The further allegation that opposite party has not helped the complainant to foreclose the loan, due to the default on the part of opposite party the complainant sustained monitory loss the bank failed to provide statement as agreed etc. are false and baseless. The opposite party has sent the statement by post regularly to the complainant. The complainant have no cause of action and hence the complaint is liable to be dismissed. Upon the above pleadings the following issues have been raised for consideration. 1. Whether there is any deficiency on the part of opposite parties? 2. Whether the complainant is entitled for the relief as prayed in the complaint? 3. Relief and cost. The evidence consists of oral evidence of PW1, DW1, Exts. A1 to A8 and B1 to B7. Issue Nos.1 to 3 The complainant contended that the opposite parties have received 2.25% foreclosure charge instead of 2%, supplied statement of account only thrice in three years even though there is a stipulation to supply it in every 3 months, Received `112 each for statement of account twice, received an excess amount of `4843 as pending installments, not duly informed the increased rate of interest and enhancement of EMI and thereby cheated the complainant by keeping the pending of EMI by saying that there is no sufficient balance in the account even though there is sufficient balance since the complainant’s account is zero balance. In order to prove this contention the complainant was examined as PW1 and produced Exts.A1 to A7 such as Foreclosure statement dt.22.11.08, payment receipt dt.22.11.08. Account statement from 25.11.05 to 22.11.08, Account statement dt.22.11.08, foreclosure statement dt. 24.11.08., Account statement dt.2.12.08, Home loan document and FAQ. In order to disprove the case opposite party also produced documents such as statement from 26.4.00 to 26.4.2010, extract of entries from 1.6.06 to 30.11.06, letter dt.10.4.07, welcome kit from ICICI bank, schedule of charges and fees, schedule of service charges and fees, statement of account from 8.11.00 to 8.11.2010. According to the complainant the opposite party had received 2.25%for foreclosure charge. The Exts.A1 and A5 i.e. foreclosure statement dt.22.11.08 and 24.11.08 proves that the opposite party has received foreclosure charge as stated by the complainant. But Ext.A8 which is the frequently asking question (FAQ) published in the website of the opposite party and as per this the question No.13 is ‘can I prepay my loan? Its answer is that “Yes, you can make your prepayment in either part or full. In case of full prepayment, the charge levied is 2% of the principal outstanding at the time of foreclosure and amounts prepaid in the last one year. The PW1 also admits the same. But he contended that 12.1.08\v R§-fpsS website  \n¶v FSp¯ document BtWm F¶v ]d-bm³ Ignbn-Ã. .12.1.08 sâ FAQhnsâ certified copy lm-P-cm¡m³ Ign-bp-T.. But he has not produced the above stated document, even though it is in his custody. So an adverse inference can be drawn infavour of the complainant and hence we hold the view that the rate of foreclosure charge prevailing at the time of foreclosure of the account of the complainant is 2% and hence the opposite parties re liable to returned the excess amount of `1108.39 received by opposite party with 6% interest from 20.1.08 up to the date of payment. The complainant further contended that there is stipulation to issue statement of account in every three months and was not issued and the opposite party levied `112 each for two times for account statement. The opposite party admits that they have received `224 from the complainant as the charge for issuing the statement of account and it is levied as per the terms of the agreement. But the opposite party has not pointed out that they have received `224 as per which terms of the agreement. Usually banks used to issue statement of account without receiving amount. So in this case in the absence of contra evidence we hold that the opposite party is liable to repay the `224 to the complainant. Yet another contention of the complainant is that the opposite party has received `4843 as pending installment. The opposite parties admitted in the version that it was happened to debit `4843 against towards EMI, since the complainant has not submit the stop payment letter and shows their willingness to return the above said amount of `4843. So the complainant is further entitled to receive the amount of `4843 from the opposite party. Finally the complainant contended that the opposite parties have not informed the complainant the increased rate of interest and enhancement of EMI and thereby cheated the complainant by keeping the pending of EMI of 1.8.06 by saying that there is no sufficient balance in the account, though there is sufficient balance to pay EMI of `4309. But the opposite party stated in their version that the charges levied from the complainant has been reversed to the complainant during the foreclosure of the loan account and in Ext.A5 foreclosure statement the refund is shown as `268. So it is seen that the opposite party has reversed the above amount at the time of foreclosure and hence the complainant is not entitled to receive any more amount in this account. So from the above discussion it is seen that there is deficiency of service on the part of opposite parties by levying foreclosure charge at the rate of 2.25% instead of 2%, receiving `224 as the cost for statement of account and levy of one EMI of `4843 for the month of December even though the account was closed. So the complainant caused so much of mental and financial hardship. So the complainant is entitled to receive `2000 as compensation and `1000 as cost also from the opposite parties. So the opposite party is liable to refund the following amounts such as `1108.39 with 6% interest from 22.11.08 to the date of payment, `224 received as charge for statement and `4843 with 6% interest from 1.12.08 to the date of payment and order passed accordingly. In the result, the complaint is allowed directing the opposite parties to refund `1108 (Rupees One thousand one hundred and eight only) with 6% interest from 22.11.08 till the date of payment and `4843 (Rupees Four thousand eight hundred and forty three only) with 6% interest from 1.12.08 till the date of payment and also to refund `224 (Rupees Two hundred and twenty four only) with `2000 (Rupees Two thousand only) as compensation and `1000 (Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is at liberty to execute the order as per the provisions of consumer protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of the foreclosure statement issued by OP A2.Copy of the payment receipt issued by OP A3. Account statement dt.22.11.08. A4. Account statement dt.22.11.08 A5. Foreclosure statement dt.24.11.08 issued by OP. A6. Copy of Account statement A7. Copy of the Loan document (Brochure) A8.Copy of the FAQ (questionnaire) issued by OP Exhibits for the opposite party: B1. Copy of account statement from 26.4.00 to 26.4.10 B2. Extract of entries issued from 1.6.06 to 30.11.06 B3. Copy of the letter dt.10.4.07 sent to complainant B4. Copy of the relationship form B5. Copy of schedule of charges & fees of regular savings account. B6. Schedule of service charges and fees of OP Bank B7. Copy of the account statement from 8.11.00 to 8.11.10 issued to complainant. Witness examined for the complainant PW1.Complainant Witness examined for the opposite party: DW1.Sandeep Nair /forwarded by order/ Senior Superintendent Consumer Dispute Redressal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
