FINAL ORDER / JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is an application filed by the complainant U/s 35 of the Consumer Protection Act, 2019.
The fact of the case in brief is that the Complainants intend to purchase the premises no. 23/29/1, Gariahat Road South, P.S. Gariahat, Kolkata – 29 within the KMC Ward No. 90 for a total consideration of Rs. 5,95,00,000/- from the land owners being named as Ratan Kanti Paul, Prabal Paul, Raju Paul and Asis Kanti Paul who offered to sell the subject premises as mentioned above. After having all the documents in respect of the subject property the Complainant made search of the same and intend to pay bank loan for financial assistance had approached the O.P i.e. Area Sales Manager Punjab National Bank Housing Finance Ltd. and handed over all the related documents in respect of the subject property to the O.P and all other documents as were required by the O.Ps.
The O.P after making search in respect of all the documents submitted by the Complainant and after considering the CIBIL Score of the Complainants had sanctioned a sum of Rs. 3,29,06,190/- on 21/06/2022 vide Loan A/c No. HOU/KOL/0622/1004237 and as per the terms of the said loan it was agreed and understood that the O.P shall hand over the Banker’s Cheque in favour of the owners of the said premises no. 23/29/1, Gariahat Road South, P.S. Gariahat, Kolkata – 29 at the time of execution and registration of the deed of conveyance as per wish of the owners of the subject property. The date was fixed in the month of September 2022 for registration of the deed of conveyance in respect of the transfer of the subject property in favour of the Complainants. Accordingly the Complainants obtained e-Assessment Slip from the Govt. of West Bengal, Directorate of Registration and Stamp Revenue on 03/09/2022. At that time the owners illegally and unlawfully demanded additional money beyond the agreed consideration money of Rs. 5,95,00,000/-. The Complainants did not agree with the proposal of the owners and thus the owners refused to transfer the subject property in favour of the Complainants and also to execute and register the deed of conveyance in favour of the Complainants.
Under such circumstances, the Complainants requested the O.P Bank to cancel the loan so the proposed loan was not materialized, but surprisingly the Complainants noticed that the O.P Bank has withdrawn Rs. 85,765/- on 05/07/2022 allegedly for pre EMI interest and more surprisingly noticed that Rs. 3,16,833/- has been debited from the A/c of the Complainants and credited in favour of the O.P on 05/08/2022 as first EMI against the said loan and subsequently on 05/09/2022 the O.P again withdrawn a sum of Rs. 3,16,833/- as second EMI against the said loan from the Savings Bank A/c No. 110001507013 lying with the ICICI Bank of the Complainants.
The Complainants further stated that for sanction of the said loan and on demand of the O.P, the Complainants issued those cheques in advance in favour of the O.P but the O.P misappropriate those cheques for their wrongful gain and wrongful loss on the part of the Complainants. The said loan was not materialized then the Complainants immediately made contact with the O.P for such unlawful withdrawn from the Savings A/c of them for the purpose of alleged pre EMI interest of Rs. 85,765/- and two EMIs on 05/08/2022 and 05/09/2022 @ Rs. 3,16,833/- and requested the O.P to refund the said amount which has been debited from the A/c of the Complainants and credited in the A/c of the O.P and inspite of repeated request personally and through email the O.P Bank did not pay any heed to their request.
Under such circumstances, without having any other alternative the Complainants served a legal notice demanding the refund of Rs. 7,19,431/- upon the O.P Bank but inspite of communication of the said notice the O.P remained silent.
It is alleged by the Complainant that the Complainants as and when the O.P debited the amount as mentioned above from the A/c of the Complainants for the purpose of said loan as mentioned in the petition of complainant and when the A/c is lying with the ICICI bank since then the Complainants are the consumers and the O.P bank is the service providers. But the O.P bank did not provide the service to the Complainants rather it caused harassment, mental pain and agony to the Complainants. So the O.P is liable to pay compensation to the Complainants. hence, this case is filed by the Complainants with a direction to refund a sum of Rs. 7,19,000/- which has been withdrawn by the O.P from the Savings A/c of the Complainants and also give direction to the O.P to pay Rs. 2,00,000/- as compensation along with litigation cost of Rs. 50,000/-.
The O.P did not appear in this case even after getting the notice and did not file the Written Version within the statutory period.
In view of facts and circumstances of this case and the evidence in ex-parte as adduced by the Complainants points of considerations are as follows:-
- Is the Complainant a consumer?
- Has the Complainant any cause of action to file this case?
- Is there any deficiency in service on the part of the Opposite Parties?
- Is the Complainant entitled to get the relief as prayed for?
All the points are taken up together for conveyance of discussion and to avoid unnecessary repetitions.
On a close scrutiny of the materials on record and the ex-parte evidence as adduced by the Complainants as well as the position of law it appears that this Commission has got ample jurisdiction both territorial as well as pecuniary to try this case.
From the facts and circumstances of this case it is also revealed that the Complainant has filed this case within the period of limitation.
It is the case of the Complainants that for the purpose of purchasing the premises no. 23/29/1, Gariahat Road South, P.S. Gariahat, Kolkata – 29 within the KMC Ward No. 90 for a total consideration of Rs. 5,95,00,000/- from the land owners being named as Ratan Kanti Paul, Prabal Paul, Raju Paul and Asis Kanti Paul. The Complainants intend to take loan from the O.P Bank and after going through all the required documents the O.P bank had sanctioned a sum of Rs. 3,29,06,190/- on 21/06/2022 vide loan account no. HOU/KOL/0622/1004237 and as per terms and conditions of the said loan it was agreed and understood that the O.P shall hand over the Banker’s cheques in favour of the owners of the sale premises as mentioned above at the time of execution and registration of the deed of conveyance of the subject property but subsequently the owners had deviated from their stand and they demanded more money of Rs. 5,95,00,000/- as consideration money in respect of the subject property. But the Complainants did not agree with the demand of the land owners as mentioned above. Hence, the purchase of the subject property cannot be materialized and the Complainants have requested the O.P Bank to cancel the loan.
It is alleged by the Complainant that even on repeated request to cancel the proposed loan the O.P Bank surprisingly withdrawn Rs. 85,765/- on 05/07/2022 for pre EMI interest and also debited Rs. 3,16,833/- each on 05/08/2022 and 05/09/2022 from the Savings Bank A/c No. 113331507013 lying with the ICICI Bank of the Complainants. The Complainants by adducing ex-parte evidence has established their case and from the unchallenged evidence as adduced by the Complainants this Commission is of opinion that there is no reason to disbelieve the unchallenged testimony of the Complainants.
It is also held by this Commission by their unchallenged testimony the Complainants could be able to prove that even after cancellation of the loan agreement the O.P Bank arbitrarily debited the pre EMI interest of Rs. 85,765/- and two EMIs dated 05/08/2022 and 05/09/2022 of the sum of Rs. 3,16,833/- each from the Savings Bank A/c No. 113331507013 lying with the ICICI Bank of the Complainants by using the Banker’s Cheques issued by the Complainants in favour of the owners of the subject premises as per terms of the alleged loan. It is evident from the unchallenged testimony of the Complainants that they informed the O.P Bank and requested the bank to cancel the loan as the purpose of loan was not materialsed. Inspite of the same the O.P Bank illegally and arbitrarily debited the amount as mentioned above from the Savings A/c of the Complainants which is nothing but the deficiency in service and unfair trade practice on the part of the O.P for which the O.P should be liable to pay compensation to the Complainants and also to refund the amount debited by them from the A/c of the Complainants.
Hence, in view of the discussions made above it is held by this Commission that the Complainants could be able to prove the case against the O.P and is entitled to get the relief as prayed for.
All the points for consideration are considered and decided favorably to the Complainant.
The case is properly stamped.
Hence,
Ordered,
That the case be and the same vide no. C.C./197/2023 is decreed ex-parte against the Opposite Party with a cost of Rs. 5,000/-.
The Opposite Party is directed to pay to refund a sum of Rs. 7,19,000/- which has been withdrawn by the O.P from the A/c of the Complainants within 45 days from this date of order.
The Opposite Party is further directed to give compensation to the Complainant for the sum of Rs. 30,000/- for negligence, harassment, mental pain and agony along with litigation cost of Rs. 20,000/- within 45 days from this date of order i.d. the Complainants shall be at liberty to execute the decree as per law.
Copy of the judgment be uploaded forthwith on the website of the Commission for perusal.
