::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL COMMISSION AT BIDAR::

                                                                        C.C. No.66/2022.

                                                                                                Date of filing: 01.09.2022.

                                                            Date of disposal:09.03.2023.

P R E S E N Ts:-    

 (1) Shri. Mabu Saheb H.Chabbi,                                                                                                                   

     B.Com.,LL.B.,(Spl.),

                  President.,

            (2) Kum. Kavita,

               M.A.,LL.B.,(Spl.),

              Member.

        (3) Shri.Thriyambakeshwara,

            B.A.,LL.B.,(Spl.), 

           Member.

COMPLAINANT/S                     Vijaykumar S/o Sidramappa,

                                                      Age:63 years, Occ: Retired Govt.Employee,
                                                      R/o Basavkalyan Dist:Bidar.                                                                        

                                                      (Inperson.)                                                                    

V/s

OPPONENT/S        

  1.    Aspire Home Finance Corporation Limited
          Motial sowal Tower Rahimullah Sayani Road,
         Opp: ST Depot Prabhadevi Mumbai-400025.

 2.      The Authorised officer Motail,
         Oswal home finance Limited
         Business Center 8-814 Humnabad
         Base Lohar Galli Kalburagi 5854103.                                               

                                                      (Ex-parte.)

                                                                       :: JUD G M E N T::

By. Sri. Shri.Thriyambakeshwara, Member.

The complaint has been filed by complainant under section12 of the Consumer Protection Act, 1986, against the opponents for the deficiency of service by not settling the loan account claim of complainant.  Hence, passed the following judgement.

Brief facts of the complaint.

The brief facts of the complaint in nut-shell are summarized as follows:  

1.     The complainant obtained a house loan  for Rs.5,00,000/-  on 19.03.2017, from OP No.1 and 2 under comp No.1387/2022, and Com/1401/2022 loan Account No.LXMGULBAR119/200211869.  The above loan initially said to have availed from Aspire finance Corporation Limited and thereafter the OP No.1 said to have got merged the said Aspire finance Corporation Limited with it and hence, the said house loan of complainant said to have taken over by OP No.1, which is not at all within the knowledge of complainant at the time of taking over the said loan and further the same was not intimated by OP No.1.  In due course of loan repayment, the complainant said to have repaid Rs.10,289/- every month till Jan-2020.  Thereafter, due to Covid-19 pandemic there was lock Down of offices in entire India including the Ops offices.  Therefore, there was no repayment of loan by complainant till unlock of said Covid-19 lock down.  After unlock of lock down the complainant said to have visited the OP No.2 office and requested to close the loan account, which was not entertained by Ops.  Hence, complainant got issued legal notice to both Ops on 02.02.2021 through e-mail as well with post which went in vain.  The complainant complained to RBI Bangalore through letter and for which the OP No.2 sent possession notice dated 25.01.2022, of pledged property.  Thereafter, Ops sent letter dated 28.02.2022, by intimating complainant to write through ID

Written version of OP No.1 and 2.

2.         The notices issued by this commission to the OPs served upon OP No.1 and 2 but they remained absent before this commission, hence they have been placed ex-parte. 

           Evidence of complainant.

3.         The complainant examined himself by filing his evidence affidavit as P.W.1 and got marked 23 documents as per Ex.P.1 to Ex.P.23 on behalf of complainant which are as follows,

     1.    Ex.P.1-Copy of well come letter of OP No.1 dated 07.05.2022.

2. Ex.P.2-Copy of complainant representation dated 24/28-Nov.2020.
3. Ex.P.3-Copy of legal notice dated 24.03.2022.
4. Ex.P.4-Copy of e-mail dated 23.03.2022.
5. Ex.P.5-Copy of legal notice on e-mail to OP dated 02.02.2021.
6. Ex.P.6-Copy of postal receipts.
7. Ex.P.7-Copy of possession notice dated nil.
8. Ex.P.8-Copy of pre-payment of loan request by OP No.1.
9. Ex.P.9-Copy of possession notice dated 25.01.2022.
10. Ex.P.10-Copy of RBI letter dated 05.03.2022.
11. Ex.P.11-Copy of online complaint to RBI.
12. Ex.P.12-Copy of OP No.1 letter dated 28.02.2022 to complainant.
13. EX.P.13-Copy of complainant letter to OP No.1 dated 08.03.2022.
14. Ex.P.14- Copy of complainant letter to OP No.2 cluster loan recover Manager dated 29.06.2022.
15. Ex.P.15-Copy of reminder letter dated 26.07.2022 by complainant.
16. Ex.P.16-Copy of e-mail of reminder letter dated 26.07.2022.
17. Ex.P.17-Copy of loan demand notice of OP No.1 dated 28.02.2022.
18. Ex.P.18-Copy of e-mail dated 19.07.2022.
19. Ex.P.19-Copy of Ex.P.2.
20. Ex.P.20-Copy of Aadhar Card.
21. Ex.P.21-Copy of OP No.1 broacher.
22. Ex.P.22-Copy of loan demand notice dated 24.02.2023.

     23. Ex.P.23-Copy of Ops whatsapp message to complainant.

Points/Issues.

4.         Heard the argument advanced by the complainant and based on the pleadings and documents produced by the complainant, the points that arose for consideration before this Commission are as below. 

1. Whether the complainant proves that, he is consumer to OPs and further proves the deficiency of service from the OPs?
2. Whether complainant proves that he is entitled for relief as sought in the complaint?
3. What orders? 

5.         Our answers to the points raised above are as follows: -

1. In the affirmative.
2. In the affirmative.
3. As per the final order.

6.         In order to decide the complaint issues, this commission discussed points/issues No.1 and 2  together for discussion as both points are inter related to each other- as follows.

7.         On perusal of the complaint pleadings, documents and the evidence, and further Ex.P.1, Ex.P.7 to Ex.P.9, Ex.P.12,Ex.P.17,Ex.P.22 and Ex.P.23 it is clear that, the complainant availed loan form Ops of which details are as per Ex.P.1, reproduced as below.

On perusal of the above details, in the absence of Ops in this proceedings it can be presumed that, the Ops sanctioned loan to complainant whereby the complainant consumer/customer of Ops who are running banking business in general to public including complainant.  Hence, complainant is proved that, he is consumer to Ops and Ops are banking service provider to complainant. The above Ex.P.1 letter issued by OP. No.1 amply proves that, the complainant availed loan from Aspire Home Finance Corporation Limited Mumbai, and by observing  its date as 07.05.2022, shows that, earlier to Ex.P.1 Aspire Home Finance Corporation Limited Mumbai, sanctioned the above said housing loan in the year 2017, and during Covid-19 pandemic lock down period, it was amalgamated with OP No.1.  Because, the Ex.P.1 itself speaks that, it is wel-come letter dated 07.05.2022, as if it was sanctioned in the year 2022. But, in fact, as per the case of the complainant the said loan was sanctioned in the year-2017, by Aspire Home Finance corporation Limited Mumbai and the same was repaid Rs.10,239/- every month till Jan-2020.  The said amalgamation or merger of Aspire home Finance Corporation Limited with OP No.1 during the Covid-19 lockdown period was neither intimated by said earlier Aspire home Finance Corporation Limited nor by OP No.1 to complainant.  On perusal of the Ex.P.2=Ex.P.19, the request made by the complainant to OP No.1 in response to OP No.1 letter dated 10.11.2020, as found in the Ex.P.2 reference column, the OP No.1 did not act upon to said request of Ex.P.2.  Therefore, complainant got issued legal notice dated 24.03.2022, as per Ex.P.3, followed by Ex.P.4 to Ex.P.6; the OP No.1 did not intimate anything about the request of complainant. 

8.         On perusal of the Ex.P.7, it is said to be possession notice dated nil, issued by authorized signatory for Aspire home Finance Corporation Limited, to complainant without mentioning therein on which date he has taken the possession of said immovable property of complainant, which is incomplete in its format keeping the complainant under dark to his request and went on further calling upon the complainant as per Ex.P.8 and Ex.P.9.  The Ex.P.9 is also another possession notice dated 25.01.2022, issued by Aspire home Finance Corporation Limited for taking over the possession of the complainant site for an outstanding due of  Rs.3,92,105/- as on 28.01.2021, which details depicts that, the said Aspire home Finance Corporation Limited, demanded outstanding due after one year of due amount  i.e., as on 28.01.2021.  The possession was taken on 22.01.2022, and where as the notice was issued/published on 25.01.2022, which is after taking over possession of the immovable property  of complainant without due prior notice to complainant by providing an opportunity to complainant before taking over the possession of property.  In Ex.P.7 absolutely they have not mentioned any details of the taking over possession without showing the date on which it was served to complainant. Though the OP No.1 issued Ex.P.12 to complainant by calling upon him to visit the his branch office at Bidar, and when complainant requested said Bidar office as per Ex.P.13 and Ex.P.14 to Kalaburagi Branch both Branches of OP No.2 did not react and co-operate towards request made by complainant in accordance with Ex P-12 of OP No. 1.   Therefore, once again complainant represented to OP No.1 through letter dated 26.07.2022, as per Ex.P.15, and same was mailed as per Ex.P.16 to OP No.1 which also went in vain without any positive action as per Ex.P.12 of OP No.1.  Therefore, at one stretch OP No.1 issued direction to visit its branches as per Ex.P.12 and where as those branches did not consider the same request made by complainant as per Ex.P.13 and Ex.P.14.  Therefore, all these documents shows that, the Ops have adopted unfair trade practice in their loan lending business towards its customers like complainant without showing or following the due procedure contemplated in law. 

9.         Apart from the above, if it is observed from the documents on record Ex.P.2 =Ex.P.19, Ex.P.3 to Ex.P.6, Ex.P.13 to Ex.P.16, shows how the Ops have shown their attitude in not entertaining the request made by complainant for settling the loan account with Aspire home Finance Corporation Limited, taken over by OP No.1, which is proved from Ex.P.1, Ex.P.7  to Ex.P.9. Even subsequent to service of summons by this commission the Ops remained absent and despite having knowledge of initiation of proceedings against them, in the present case again Ops issued Ex.P.22 by calling upon the complainant to pay Rs.5,67,947/-.  This conduct of Ops shows that, they are at liberty to act as per their will and wish without caring the notices issued by this commission.  Apart from this, even the earlier Aspire home Finance Corporation Limited also did not intimate the complainant about merger/amalgamation of their institution with OP No.1.  If at all they deemed that, they are right in issuing possession notices as per Ex.P.7 and Ex.P.9, as per loan agreement existed with complainant, then they would have appeared before this commission and established their case, which was not done despite service of summon issued by this commission.  So, non-denial of the complainant’s present complaint by Ops, which impliedly establishes complainant case against Ops and said to have admitted the case of complainant. 

10.       Under the judicial notice of this commission, once the possession notice is issued under SARFAESI ACT, then this commission has no jurisdiction to entertain the complaint, but this commission entertained this complaint for the unfair trade practice played towards complainant by Ops, which is explicit from their conduct for having not intimated the merger of earlier Aspire home Finance Corporation Limited, with OP No.1 at any time subsequent to its amalgamation and issuing vague possession notice as per Ex.P.7 is absolutely deficiency in service, negligence, and unfair trade practice in eyes of law, which warranted interference in the action taken by Ops against complainant.  Hence, this commission is of the opinion that, the Ops did not run their lending business in fair manner for the reasons stated herein above in detail and accordingly we are of the considered opinion that, the interference of this commission in setting aside the possession notice is required under law.  Moreover, the Ops remained ex-parte despite having received summons from this commission and did not put forth their case by placing their records in dismissal  and rebuttal of the complaint filed by the complainant.  This conduct of Ops also warranted this commission to interfere with possession notice issued to complainant by Ops against to law. Accordingly, this commission set aside the possession notice issued under Ex.P.7 and Ex.P.9.

11.       In view of above facts and discussion by this commission, we are of the opinion that, the complainant has proved his case against OPs and accordingly the point No.1 and 2 answered in the affirmative in favor of complainant and proceed to pass the following order.

::ORDER::

The complaint filed by the complainant against OPs is allowed in part.

The possession notice issued under Ex.P.7 and Ex.P.9 are hereby quashed and directed to OPs to initiate course of recovery proceedings in accordance with law by providing an opportunity to complainant. 

The Ops are hereby directed to pay Rs.10,000/- as compensation for mental harassment and litigation charges as Rs.5,000/- to the complainant.                       

            Intimate the parties accordingly.

 (Typed to our dictation then corrected, signed by us and then pronounced in the open Commission on this 09^th day of March-2023).

Documents produced by the complainant.

Ex.P.1-Copy of well come letter of OP No.1 dated 07.05.2022.

2. Ex.P.2-Copy of complainant representation dated 24/28-Nov.2020.
3. Ex.P.3-Copy of legal notice dated 24.03.2022.
4. Ex.P.4-Copy of e-mail dated 23.03.2022.
5. Ex.P.5-Copy of legal notice on e-mail to OP dated 02.02.2021.
6. Ex.P.6-Copy of postal receipts.
7. Ex.P.7-Copy of possession notice dated nil.
8. Ex.P.8-Copy of pre-payment of loan request by OP No.1.
9. Ex.P.9-Copy of possession notice dated 25.01.2022.
10. Ex.P.10-Copy of RBI letter dated 05.03.2022.
11. Ex.P.11-Copy of online complaint to RBI.
12. Ex.P.12-Copy of OP No.1 letter dated 28.02.2022 to complainant.
13. EX.P.13-Copy of complainant letter to OP No.1 dated 08.03.2022.
14. Ex.P.14- Copy of complainant letter to OP No.2 cluster loan recover Manager dated 29.06.2022.
15. Ex.P.15-Copy of reminder letter dated 26.07.2022 by complainant.
16. Ex.P.16-Copy of e-mail of reminder letter dated 26.07.2022.
17. Ex.P.17-Copy of loan demand notice of OP No.1 dated 28.02.2022.
18. Ex.P.18-Copy of e-mail dated 19.07.2022.
19. Ex.P.19-Copy of Ex.P.2.
20. Ex.P.20-Copy of Aadhar Card.
21. Ex.P.21-Copy of OP No.1 broacher.
22. Ex.P.22-Copy of loan demand notice dated 24.02.2023.
23. Ex.P.23-Copy of Ops whatsapp message to complainant.

Document produced by the Opponent.

            -Nil-

Witness examined.

Complainant.

P.W.1- Vijaykumar S/o Sidramappa,      (complainant)

Opponent.

-Nil-