BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

            Dated this the 18^th day of May 2018

                                                                                                Filed on : 30.06.2017

PRESENT:

Shri. Cherian K. Kuriakose,                                           President.

Shri. Sheen Jose,                                                          Member.

Smt. Beena Kumari V.K.                                               Member.

                        C.C.No. 254/2017

                                  Between

O R D E R

Sheen Jose, Member

1.  The case of the complainant is as follows:

The complainant is a business man and he has applied for a housing loan along with his wife Smt. Bindu Clement as co-applicant, to the opposite party and the opposite party offered two housing loans of Rs. 65 lakhs and 38 lakhs respectively, as per their two offer letters dated 01.07.2013.  The tenor of both the loans was 180 months with equated monthly instalment of Rs.74,288/- and Rs.43172/- respectively.  The interest was floating rate and at that time of offer it was 11.10% and it was also mentioned that “there would be no charges/fees on foreclosure of loan” in both the two offer letters. The opposite parties sanctioned both loans account Nos. were 4150 HL00097025 and 4150 HL 00097000 on the same date itself on 17.01.2017.  The complainant availed both loans and was regularly paying EMI without any default. Thereafter the complainant decided to foreclose the loans, by March 2017 because his Bankers M/s.Bank of Baroda, Pallimukku Branch was ready to take over the above home loans with lesser interest rate.  Accordingly the complainant approached the opposite parties and also sent a letter dated 07.03.2017 informing the opposite parties that the complainant is not willing to pay any amount towards foreclosure charges as per the directive of Reserve Bank of India and also informing the opposite parties about the Reserve Bank of India circular dated 07.05.2014 advising Bank and other institutions not to charge foreclosure charges on Home Loans.  But the opposite party sent an email on 16.03.2017 denying the complainant’s request and gave two letters dated 20.03.2017 for full prepayment of Home loan, ie., to pay Rs.60,17,273.08 and Rs.35,38,909.67 respectively which included foreclosure charges of Rs.68,070.08 and Rs,40,036.54 also, which was against the opposite parties assurance in their initial offer letter that there will not be any charges/fees on foreclosure of loans. The act of the opposite parties is deficiency in service and unfair trade practice in total violation their own  agreement and assurance not to charge any charges, fee on and also in violation of the regulation of circular of Reserve Bank of India.  Since the complainant’s Bank, M/s.Bank of Baroda was not inclined to wait, the complainant was forced to pay the full amount claimed by the opposite party for foreclosure of both home loans and closed both the accounts on 20.03.2017 by paying Rs,.60,23,217/- and Rs,.35,42,363/- inclusive of foreclosure charges of Rs.68,070.08 and Rs.40,036.54 respectively, totaling Rs.1,08,106.62 as demanded by the opposite party and the opposite party closed both loans on 23.03.2017.  Thereafter the complainant sent a lawyer notice dated 25.04.2017 to both the opposite parties asking them to refund the illegally and unfairly collected foreclosure charges of Rs.1,08,106.62.  But the opposite party neither sent any reply nor refunded the amount to the complainant so far.  The unfair and illegal act of the opposite parties in not adhering to their own initial offer letter, and collecting a huge sum as foreclosure charges illegally and arbitrarily for making unlawful gains is clearly unfair trade practice and deficiency in service. Thus complainant is before us seeking direction against the opposite parties to refund an amount of Rs.1,08,106.62 from the opposite parties which amount was illegally collected by the opposite party from the complainant with 18% p.a. He also sought for compensation and costs of the proceedings from the opposite parties.

2)      Despite service of notice from this Forum the opposite parties 1 and 2 appeared and filed their version after the statutory period.  Hence we rejected the version.

          Evidence in this case consisted of proof affidavit has been filed by the complainant and he was examined as PW1.  Exbt. A1 to A10 were marked on the side of the complainant.  No oral evidence adduced by the opposite parties.  Exbt.B1 to B3 were marked on their side.

Issues came up for considerations are as following

1. Whether the complaint is maintainable before this Forum?
2. Whether the complainant has proved any deficiency in service or unfair trade practice on the side of the opposite parties?
3. Reliefs and costs?

Issue No. (i)

The complainant stated in his complaint that he and his wife had availed housing loan facility from the opposite parties.  The opposite parties sanctioned both loans worth Rs.65 lakhs and 38 lakhs respectively on 01.07.2013.  The loan account numbers were 4150 HL 00094000 and 4150HL 00097025 respectively.  In the month of March, 2017 the complainant decided to foreclose the above loan accounts because his Bankers M/s.Bank of Baroda, Pallimukku Branch was ready to take over the above home loans with lesser interest rate.   Accordingly the complainant approached the opposite party Bank- Bajaj Finance Ltd. on 07.03.2017 and informed them that the complainant is not willing to pay any amount towards foreclosure charges in view of the directives given by the Reserve Bank of India in Exbt. A6 Circular dated 07.05.2014 wherein it is stated that the Banks will not permitted for the foreclose charge, prepayment penalties in all floating rate term loans sanctioned to ‘individual borrowers’ with effect from April 1^st, 2014.   In this case, we have gone through the Exbt. A1 loan application submitted by the complainant and it seen that the loan application was signed by the complainant Mr. Clement T L and the 1^st co-applicant Mrs.Bindu Clement and the 2^nd co-applicant M/s. Cochin Fire Tech and 4^th  co-applicant Cochin Fare Tech India Pvt. Ltd.  The name of the above two co-applicants are not seen included in the party array as other complainants ie., the facts regarding the application being signed by the 2 co-applicants other than the complainant were not disclosed by the complainant in the complaint filed before the Forum. The complainant herein has no exclusive right over the other 2 co-applicants in this matter.  The complainant ought to have made the parties the other 2 co-applicants also in the complaint, but this was not done.  Therefore the complainant has approached this Forum with unclean hands by suppressing material facts regarding the 2 co-applicants. Moreover, Exbt.A6 Circular of RBI is applicable to floating rate term loans sanctioned to individual borrowers only. Here the loan is not taken by an individual borrower.  Therefore, the directives in the above Circular is not applicable to the facts of the present case also. In view of the above findings we find that this complaint is liable to be dismissed.  The complainant contends that the opposite parties have violated the conditions of the agreement.  This Forum has no power to decide the question of violation of terms of the contract. Accordingly, the 1^st issue is decided against the complainant.

Issue No. (ii) and (iii)

        Having found issue No. (i) against the complainant, we are not inclined to consider and decide issue No. (ii) and (iii).

8)     In the result we find that this complaint is liable to be dismissed and is accordingly dismissed.

          Pronounced in the open Forum on this the 18^th day of May 2018.

                                           Sd/-Sheen Jose, Member

                                           Sd/-Cherian K. Kuriakose, President

                                           Sd/-Beena Kumari V.K., Member

                                                                   Forwarded by Order

                                                                   Senior Superintendent

APPENDIX

Complainants Exhibits

Opposite party's Exhibits:         

Depositions  :

PW1  :                   T.L. Clement

Date of Despatch   :

                   By Hand      ::

                   By Post       :

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