DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __56_ _ OF ___2017
DATE OF FILING : 2.5.2017 DATE OF PASSING JUDGEMENT: 4 .2.2019
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Kartik Bagh, Vill. Salepur, Chandra Math, P.O & P.S Baruipur,South 24-Parganas, Pin-700 144.
O.P/O.Ps : 1. Housing Development finance Corporation Limited, Tribeni Market, 1129, Garia Main Road, near Garia Bridge, P.S Sonarpur, Kolkata-84.
2. Syndicate Bank ,Baruipur, 65, Kulpi Road, Meera Bhawan Katchary Bazar, Kolkata-700 144.
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J U D G M E N T
Non-return of the Title Deed of the complainant and demand of excessive money from the complainant by the O.P-1 have galvanized the complainant to file the instant case under section 12, C.P Act, 1986, alleging deficiency in service on the part of the said O.P.
The facts leading to the filing of the instant case may be epitomized as follows.
The complainant took a loan of Rs.2 lac from HDFCL (O.P-1) in 2004 for construction of house on condition to repay the same with agreed interest @8.2% p.a by 120 monthly installments. He repaid the installments, though a bit irregularly. When he asked for return of the title deed, the O.P-1 did not return it and also demanded Rs.63,920/- more from the complainant, vide O.P-1’s ,letter dated 20.3.2015. So, the complainant has prayed for return of his document and also for compensation. Hence, this case.
O.P-1 has been contesting the case by filing written statement ,wherein it is stated that the complainant and his wife took a loan of Rs.2 lac on 14.2.2004 ,having created equitable mortgage on deposit of title deed. The loan account number is 947745 . Initially, the rate of interest ( ROI) was 8.25% p.a i.e less than Prime Lending Ratio ( PLR), which was 9.75% p.a that time. Subsequently on the option of the complainant, Adjustable Interest Rate (AIR) was applied and AIR is directly proportional to PLR. Due to change of PLR, the tenure of repayment was modified without effecting any change in the amount of
EMI. Complainant is still liable to pay Rs.1,02,792/-. He is a defaulter in repayment of loan and interest and, therefore, the title deed of the complainant was not returned to him. There is no deficiency in service on their part and the case should ,therefore, be dismissed in limini.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the O.P -1 guilty of deficiency in service as alleged by the complainant ?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit is filed by the complainant. Similarly evidence on affidavit is also filed by the O.P-1. BNA filed by the O.P-1 is kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
Already heard the submissions of Ld. Lawyers appearing for the parties. Perused the petition of complaint, written version of O.P and also the other materials on record. Considered all these.
It is the case of the O.P-1 that rate of interest is variable and it has been increased from time to time in pursuance of the terms of the agreement. As the rate of interest has been increased from time to time, the number of EMIs has also been increased, although the tenure of the loan was for 120 months initially. The complainant is bound to pay the increased rate of interest. As the complainant has not repaid the loan and interest at increased rate of interest, the Title Deed of him has not been returned to him. The O.P-1 is still entitled to get Rs.1,02,792/-from the complainant. There is no deficiency in service on the part of the O.P-1 ,as goes the submission of the Ld. Lawyer ,appearing for the O.P-1.
It is true that the O.p-1 is entitled to apply Adjustable interest rate to the loan granted in favour of the complainant. Interest rate may also be increased from time to time. But, the O.p-1 should observe the terms and conditions of the agreement while proceeding to enhance the rate of interest and if the terms and conditions of the agreement are not complied with by the O.P-1, the O.p-1 cannot enhance the rate of interest. Any enhancement of rate of interest without complying with the terms and conditions of the agreement executed by and between the parties, is nothing but an arbitrary act on the part of the O.P-1 and in that case the O.p-1 is not entitled to recover the loan at enhanced rate of interest.
Let us see now, whether the terms and conditions of the agreement have been properly adhered to by the O.p-1 while enhancing the rate of interest or applying the adjustable rate of interest (ARI).
A copy of the agreement has been placed on record by the O.P-1. Article 2.6 (d) thereof runs as follows :
“ Save and except as provided under sub article ( e ) below for administrative convenience, the EMI amount is intended to be kept constant irrespective of variation in the AIR and as a result of these, the number of EMI is liable to vary. No intimation shall be given by HDFCL as to the number of EMIs required to be paid by the borrower upon each AIR application. Provided however, the information as to the applicable/applied AIR during the financial year of HDFCL and the number of EMIs payable from the last AIR application during such year, shall be intimated by HDFCL to the borrower annually. The borrower shall pay EMIs until loan together with interest is repaid in full”.
Enhancement of rate of interest or application of AIR must be intimated to the borrower. On the principle of natural justice, nothing can be done by the O.P-1 behind the back of the borrower. This principle of natural justice is also seen to be instilled in the provisions as quoted above. The above quoted provision of the agreement makes it clear that the O.P-1 must intimate the borrower annually the application of AIR i.e adjustable rate of interest. If this provision is not complied with strictly by the O.P-1, the enhancement of rate of interest may very well be called an arbitrary exerciser of the O.P-1.
Coming to the facts of the instant case, it is found that the O.P-1 has increased the rate of interest from time to time upon the loan of the complainant. The rate of interest (ROI) has been increased from 8.25% p.a to 15% p.a from time to time and this is reflected from the copy of the statement of account produced on record by the O.P-1 vide Annexure “ e “ of O.P-1. But, not a scrap of paper is forthcoming before the Forum to prove that the annual intimation of increase of rate of interest was ever given to the complainant by the O.P-1. This being so, we feel constrained to say that the O.P-1 has not adhered to the terms and conditions of the agreement while increasing the rate of interest applicable to the loan given to the complainant and, therefore, the enhancement of rate of interest from year to year by the O.P-1 is nothing but an arbitrary exercise of its authority . If the rate of interest is not increased in pursuance of the terms of the agreement, the O.p-1 cannot recover such rate of interest and in that case, the O.P-1 is entitled to recover the rate of interest as it was in its incipient stage i.e at the time of granting the loan to the complainant. At the time of granting loan to the complainant, the rate of interest was 8.25% p.a and taking into consideration such rate of interest, the repayment schedule was also made by the O.P-1. The loan was agreed to be repaid with interest by 120 monthly installments of Rs.2454/- each. From the statement of account placed on record by the O.P-1, it is found that the complainant has repaid the loan installments almost regularly up to 31.3.2015 . He took the loan on 14.2.2004 and the date of commencement of first EMI was in the month of 2004. So, it is found that the complainant has repaid the loan amount with interest at agreed rate of interest i.e @8.25% p.a. As the O.P-1 has not followed the procedure laid down in the agreement, it cannot claim recovery of loan at enhanced rate of interest and this being so, the claim of the O.P-1 for further amount from the complainant appears to be unlawful and O.P-1 cannot recover this amount from the complainant.
Upon scrutiny ,it is found that the liability of the complainant towards repayment of loan and interest of the O.p-1 has already been exhausted and, therefore, the complainant is entitled to get the return of the title deed and other related documents from the O.P-1. Due to unlawful claim of the O.P-1 for more money from the complainant, the complainant has certainly undergone a tremendous harassment and mental agony and, therefore, the complainant is also entitled to compensation for that purpose.
There is no cause of action against O.P-2 and the case should be dismissed against him.
In the result, the case succeeds in part .
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P-1 HDFCL with a cost of Rs.10,000/- and dismissed exparte against O.P-2 without any cost.
The O.P-1 is directed to deliver the title deed and other related documents of the complainant to the complainant and not to demand any money from the complainant , and also to pay a sum of Rs.10,000/- as compensation within a month of this order, failing which, the complainant is at liberty to recover his title deed etc. and also to realize the cost amount and amount of compensation ,which will then carry interest @10% p.a , by execution of this award through the instrumentality of this Forum.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
