DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

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[Consumer Complaint Case No: 189 of 2012]

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              Date of Institution : 17.04.2012

                   Date  of Decision   : 26.10.2012

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Abhishek Gupta C/o S.K. Gupta, 2527-A, Army Flats, Sector 47-C, Chandigarh.

                                     ---Complainant

V E R S U S

AXIS Bank, SCO No. 134-135, Sector 34-A, Chandigarh.

   ---Opposite Party

BEFORE:  SH. LAKSHMAN SHARMA            PRESIDENT

         SH. JASWINDER SINGH SIDHU MEMBER

Argued By:    Sh. S.K. Gupta, Authorized Agent of Complainant.

Sh. Ankur Rishi, Counsel for Opposite Party.

PER JASWINDER SINGH SIDHU, MEMBER

1.       Complainant has filed the present complaint, against the Opposite Party on the ground that the Complainant preferring to purchase a Flat in ‘Nirmal Chhaya Towers” VIP Road, Zirakpur, entered into an agreement for sale, with the owner of the flat Mrs.Lalita Nagpal of Zirakpur, on 11/1/2011 (copy annexed). The Complainant in order to arrange finances, approached the Opposite Party for a Housing Loan and got sanctioned a housing loan for Rs.38.03 lacs, offered to him through their letter dated 7/2/2011 (copy enclosed). On 3/3/2011, the Complainant approached the Opposite Party for the disbursement of Rs.33,67,312/- against the housing loan to the Seller/Builders, in the break-up of the amount mentioned against each:-

          [a]  To Builders        :    Rs.28,38262/-

          [b]  To Seller          :    Rs.4,56,702/- 

              Mrs. Nagpal

          [c]  To Insurance Co.   :    Rs.62,942/-

          [d]  To Bajaj Allianz   :    Rs.9,406/-

              T O T A L          :    Rs.33,67,312/-

         The Complainant having already made a payment of Rs.7.6 lacs to Mrs. Lalita Nagpal, requested the Opposite Party to release the amount as per the agreement of sale. The Opposite Party confirmed the completion of its pre-disbursement requirements and conveyed that disbursement from their side shall be made in the office of the builders i.e. Pearls Infrastructures Limited at New Delhi. Accordingly, the Complainant along with the Seller Mrs. Lalita Nagpal reached the office of the Builders at New Delhi at Cannaught Place on 8/3/2011.  The Opposite Party demanded that a tripartite agreement was required to be signed before the disbursement could be made, but the builders could not sign the agreement, as they had some dispute over outstanding installment with the Seller. Eventually, the Opposite Party did not hand over/ disburse the Cheques to any of the Parties and retained the same with themselves without disclosing the contents of these Cheques to anybody. The Complainant on the next day informed the Opposite Party vide his letter dated 9/3/2011 (copy enclosed) that due to some dispute between the Seller and the Builder, the disbursement cannot be made, therefore, the Cheques in question be cancelled, till the dispute is resolved. The Complainant claims that the Opposite Party did not respond to his letter dated 9/3/2011. Thereafter, Complainant vide his letter dated 4/4/2011 once again reminded about the cancellation of the cheques and also informed that in order to settle the dispute required an additional loan of Rs.2.5 lac and sanction of the same too was requested. The Opposite Party did not respond to this communication either. A reminder dated 18/4/2011 was sent through which the disbursement of loan was deferred for further three months. The Opposite Party failed to answer this communication also.  

         The Complainant claims that the Opposite Party in the meanwhile recovered the interest on the amount of Rs.33,67,312/- from the Complainant on 7/3/2011 amounting to Rs.56,277/-. The Complainant called on the Opposite Party to object on the deduction of this amount claiming that the same to be illegal as no payment towards the loan disbursement was received by him. However, the Opposite Party replied it to be as per their bank’s policy. The Complainant being harassed on account of charging of undue and illegal interest, and fining on other alternative, was compelled to request the Opposite Party vide his letter dated 17/5/2011 to cancel the loan, so as to stop the recovery of interest amount from his account with the Opposite Party. The Complainant was advised by the Opposite Party to deposit an amount of Rs.8,920/- immediately  so that the cancellation of the loan can be processed. Thus, as per the Complainant the Opposite Party had recovered a total amount of Rs.65,197/- in addition to the initial charges of Rs.20,924/-, even though he had not availed the loan amount subscribed with the Opposite Party.

         The Complainant further claims that having done his part of the responsibility the Opposite Party have not released the original documents to the Complainant, which were demanded by him through his letter dated 28/5/2011. The Opposite Party in reply to the Complainant’s communication was further advised to pay Rs.10,000/- towards interest and another Rs.10,000/- towards insurance, even though the loan still stood un-disbursed in favour of the Complainant.     The Complainant also claims that it was in the month of June, 2011 the bank cancelled the loan and returned the documents to the Complainant, putting him into a considerable loss of time and money in getting the same processed again. In the due process, the value of the flat in given area have escalated to an additional Rs.10.00 lacs approx., for which the Complainant held the Opposite Party liable. 

         The Complainant thus alleging deficiency in service as well as unfair trade practice on the part of the Opposite Party for charging of processing fees, interest amount, even on the loan, which was not disbursed and also claiming the premium of insurance, has prayed for the refund of Rs.86,121/- collected by the Opposite Parties against these heads along with interest 24% p.a. Further, an amount of Rs.10,000/- as compensation is claimed on account of physical and mental agony caused to him, as well as Rs.2,000/- towards cost of litigation, are prayed.       

         The complaint of the complainant is duly verified and is supported by his detailed affidavit.

2.       Notice of the complaint was sent to Opposite Party seeking their version of the case.

3.       The Opposite Party has contested the claim of the Complainant by raising preliminary objections to the effect that the present complaint is false, frivolous and vexatious and the same is filed with ulterior motive to get undue benefit from the Opposite Party. At the same time, the necessary parties to the agreement i.e. the builder and the seller of the property in question has not been made party to the present complaint; and claiming that the Complainant had failed to make out a case of deficiency in service against them, as he has no locus standi on account of misconceived and misdirected allegations towards the Opposite Parties.  

         On merits, the Opposite Party has repeated their preliminary objections, while replying to the averments of the present complaint, in their para-wise reply. The Opposite Party has denied the very fact of the Complainant having purchased the property in question for which the loan was got sanctioned. The fact that the Complainant approached the Opposite Party for obtaining a home loan for purchasing a property at Zirakpur i.e. Flat No. 101, Tower No.B-13, Nirmal Chhaya Towers, V.I.P. Road, Zirakpur. The Opposite Party after having completed the required formalities sanctioned a home loan of Rs.38,66,348/- subject to the terms and conditions mentioned therein vide their sanction letter dated 7/2/2011. Thereafter, in pursuance of the same, a home loan agreement dated 24/2/2011 had been executed and the Complainant is bound by the terms & conditions of both the above sanction letter and the home loan agreement. Copy of the G.P.A., Sanction letter and the Home Loan Agreement are at Annexure R-1 to R-4 respectively. In reply to para 3 to 7, the Opposite Party claims that it was on the request of the Complainant himself that a loan amount has been disbursed by the Opposite Party and the Opposite Party had not unilaterally out of its own disbursed anything. As the entire process of disbursement was as per the instructions of the Complainant, and after adopting a proper procedure, there is no deficiency in service on the part of the Opposite Party, as the loan amount of Rs.32,94,964/- had been disbursed on 8/3/2012 by way of two demand drafts i.e. DD No. 686448 of Rs.4,56,702/- in favour of Mrs. Lalita Nagpal and DD No. 686429 dated 8.3.2011 of Rs.28,38,262/- in favour of PACL India Limited - the Builder, which were sent through the representatives of the Opposite Party at the office of the builder at New Delhi, where the transfer transaction was to take place. As the builder/seller failed to complete the formalities on their part and resolve the dispute within themselves on or before the disbursal of the loan and date fixed for the transfer of the property in favour of the complainant, for which he had asked the opposite party to disburse the loan amount, hence the fault lay with the complainant for which the opposite party cannot be held liable. In reply to paras 12 to 16 the opposite party has quoted the clause 5.1 of the Loan Agreement Dated 24.02.2011 which relates to the Interest & Home Loan Account. At the same time it is further claimed that the Processing Fee and/or Login Fees are Non Refundable as per the agreement which the complainant has also  signed the declaration to this effect. Thus the complainant cannot lay claim to these charges through the present complainant.

4.       The opposite party has also claimed that the complainant would not have applied for another Loan copies of the same are annexed as Annexure R-7 & R-8, if there was any grouse against it. Thus claiming it to be an after thought, to lay an illegal claim, the present complaint has been filed. Thus, claiming no deficiency in service or unfair trade practice on their part, the answering Opposite Party has prayed for the dismissal of the complaint with heavy costs.  

         The reply of the Opposite Party is duly verified and is supported by a detailed affidavit of Mr. Baiju Thomas, Asset Sale Centre Head.

5.       Having gone through the entire complaint, version of the Opposite Party, the evidence of the parties and with the able assistance of the learned counsel for the parties, we have come to the following conclusions. 

6.       The fact about the Complainant having availed a Home Loan of Rs.38,66,348/- which was duly sanctioned vide the sanction letter dated 7/2/2011 subject to terms and conditions mentioned therein and duly accepted and signed by the Complainant through his general power of attorney (Complainant) is admitted. The Opposite Party has also admitted to the fact that the loan so sanctioned to the Complainant. The Opposite Party has also admitted that an amount of Rs.20,924/- were charged towards the processing fees/ login fees and the same was non-refundable as per the declaration singed by the Complainant on 24/2/2011 through which the Complainant had appended his signatures below the declaration which read as “I understand and agree that the processing fee and administrative fee are non-refundable and not be entitled for refund of the same either in part or full”. The same fact stands corroborated from the declaration clause (Annexure R-3) of the reply filed by the Opposite Party. Thus, the claim of the Complainant with regard to the refund of the same without assigning any particular reason cannot be looked into.     

7.       However, the main issue with regard to the deduction of interest amount from the account of the Complainant towards the disbursement of the loan, that the Opposite Party claims to have made as per the directions of the Complainant, through two demand drafts of Rs.28,38,262/- and 4,56,702/- vide D.D. No. 686429 and 686448 each dated 8/3/2011 respectively, totaling to Rs.32,94,964/-. These demand drafts were to be delivered to the PACL India Limited (the Builder) and the original allottee (Mrs.Lalita Nagpal) respectively, at the time of signing of the Agreement, at the premises of the PACL India Limited, New Delhi. The agent of the Opposite Party who had carried these bank instruments with him to be delivered after the due signing of the agreement between the parties, in his presence, had actually brought them back to the office of the Opposite Party as because of some confusion, the deal did not go through. The Complainant claims that as the money was not utilized by him, nor the property for which the loan was availed had been transferred in his name, after the payment of the due consideration amount, the question of payment of any interest against the said sanctioned loan is illegal. The Complainant further claims that as the money remained with the Opposite Party after the sanctioning of the loan and was not delivered to any of the parties to the deal, or to the Complainant himself, the loan amount has actually not been disbursed at all.  

         The Opposite Party, in its defence, has cited the relevant portion of clause 5 of the loan agreement, which deals with the interest part. This clause is also found reproduced in the reply/ version of the Opposite Party and the same reads as under:-

             “5.    Interest & Home Loan Account:

5.1    Interest on the Home Loan shall begin to accrue from the date of debit to the Home Loan Account simultaneously with the Bank’s Disbursement of the Home Loan by issuing Disbursement Payment Order/ Demand Draft or otherwise without the Bank concerning itself with the receipt of such disbursement by the beneficiary/ recipient and also with the realization of such payment Order/Demand Draft or the time taken in such realization.” 

         The bare perusal of aforesaid clause indicates that the interest on the home loan shall begin accrue  from the date of debit to the home loan account simultaneously with the Bank’s disbursement of home loan by issuing Disbursement Payment Order/ Demand Draft. In the present circumstances, the Opposite Party did not bring on record the detail of home loan account to which the said amount was debited by it. We have gone through the Annexure R-5 which is Account Opening and Disbursal Memo, through which the Opposite Party had requested the Complainant to authorize it for opening the account for App ID 496376 with details of its contents expressed in a tabulated form. The Opposite Party has not brought on record the authorization from the side of the Complainant which would qualify the Opposite Party to claim interest on the amount debited in the loan account of the Complainant. Hence, the very first opening line of the clause 5.1 has not been adhered by the Opposite Party before claiming the interest and debiting the same from the regular account of the Complainant held with the Opposite Party. Even the last line of clause 5.1 expressly details that the payment order/ demand draft to be realized by the beneficiary alone would qualify the Opposite Party to claim interest on the home loan account.

8.       We have also gone through the Accounts Statement of the Complainant (Annexure R-6) tendered by the Opposite Party with their reply, showing different details of his loan account. However, we prefer to ignore the details of Annexure R-6 as the same was to be opened only after a due authorization from the side of the Complainant as desired by the Opposite Party through Annexure R-5, hence, the creation of this loan account by the Opposite Party is totally out of context and the same is ignored out rightly.

9.       It is found that the Opposite Party itself has not followed the procedure mandated by its own rules and regulations while claiming the interest amount from the Complainant. The Opposite Party has also failed to explain the fact that if it had actually disbursed the loan, then in that eventuality, there was no reason for it to stop the realization of loan EMI of Rs.41,548/- as found mentioned in Annexure R-5, but as the Opposite Party did not disburse the amount in favour of the Complainant, or any other entity, as per his directions, the Opposite Party was not qualified to claim the EMI which also included the interest component and the portion of principal amount, which they were entitled to claim from the Complainant, on the disbursement of the loan amount. Hence, the Opposite Party had failed to satisfy us about its qualification of claiming the interest amount of Rs.65,197/- claimed to be realized from the Complainant by it.  In such a situation, the Opposite Party is found deficient in rendering proper service as it itself had failed in its qualification of claiming the interest on the loan amount which was not disbursed by it at all.

10.      In the light of above observations, we are of the view that the present complaint deserves to succeed against the Opposite Party and the same is allowed, partially, to the extent of wrongful realization of interest amount alone. The claim of the Complainant towards the initial charges and the insurance amount not being refundable are ignored. The Opposite Party is directed, to:-

[a] To refund Rs.65,197/- i.e. the amount of interest realized by it from the Complainant.

[b] To pay Rs.10,000/- as compensation on account of deficiency in service and causing mental harassment to the Complainant;

 [c] To pay Rs.2,000/- as cost of litigation;

11.      The above said order shall be complied within 45 days of its receipt by Opposite Party; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] & [b] above, from the date of this order, till it is paid, apart from cost of litigation of Rs.2,000/-. 

12.      Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced  

26^th October, 2012

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER