Haryana

Karnal

530/2012

Amit Arora S/o H.L. Arora - Complainant(s)

Versus

Branch Manager, HDFC Bank - Opp.Party(s)

V.S. Sehgal

07 Apr 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                              Complaint No.530 of 2012

                                                             Date of instt.:07.11.2012

                                                               Date of decision 7.4.2016

 

Advocate Amit Arora son of Shri H.L.Arora, resident of House no.711, Sector-13, Urban Estate, Karnal.

 

                                                                   ……..Complainant.

                                      Vs.

1. The Branch Manager, HDFC Bank, SCO no.242/FF Sector-12, Part-I Urban Estate, Karnal.

2. HDFC Ltd. SCO no.153-155, Sector 8-C, Madhya Marg, Chandigarh 160 018, through its Divisional Manager.

 

                                                                             ………… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

                   Ms. Veena Rani…….Member

 

Present:-      Complainant in person with Shri Rishi Chalia Advocate.

                    Shri Bhaskar Bhalla Advocate for opposite parties.                 

                    

 ORDER:

 

                     This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that on 30.6.2012 he applied for a loan of Rs.22 lacs to the opposite parties for purchasing some property and completed all the necessary documents for that purpose. He also handed over 12 cheques signed by him for the amount of Rs.28.199/- each and one cheque of Rs.799/- to the Branch Manager of opposite party no.1. The amount of      Rs.22 lacs was to be transferred in his account no.017301000206 of ICICI Bank Sector-12, by opposite party no.1. However, without transferring the amount in his account, the opposite parties got enchased three cheques of EMIs of Rs.28199/- each on 11.7.2012, 13.8.2012 and 11.9.2012. He could not check his statement of account of ICICI Bank, Karnal till September, 2012. When he received the statement of account, he found that the opposite parties’ bank had cheated him by getting three cheques of EMI’s enchased before paying the loan amount of Rs.22 lacs. The loan amount was infact transferred in his account on 14.9.2012. Thereafter, he stopped payments of the remaining cheques given for the purpose of EMIs and also served registered notice on 15.10.2012. Thus, the amount of EMIs prior to transfer of the loan amount in his account, was clear cut deficiency in service on the part of the opposite parties.

2.                Notice of the complaint was given to the opposite parties, who put into appearance and filed written statement disputing the claim of the complainant. Objections have been raised that the complainant has no cause of action; that the complainant has suppressed the material facts from this forum and that the complaint is completely misconceived.

                   On merits, it has been submitted that the complainant executed loan agreement on 30^th June, 2012 and on the same day he received a cheque bearing no.888605 dated 29.6.2012 for Rs.22 lacs. As per clause 2.5 (a) of the loan agreement, irrespective of the actual usage of the loan amount, repayment schedule commenced from 1^st July, 2012. The complainant has wrongly alleged that the loan amount was to be transferred by the opposite parties in his account, whereas the fact was that he had received the cheque on 30.6.2012 and he could have presented the same for clearance/realization, but he did not present till 14.9.2012. Therefore, no fault could be attributed to the opposite parties. The transaction between the parties was commercial, therefore, opposite parties were entitled to charge interest on the amount from the day of disbursement of the cheque, because for them the amount stood utilized/locked. The complainant did not want to use the loan amount immediately. He should not have taken the disbursement of the cheque, rather he could wait for six months for availing disbursement as per the sanction letter dated 29.6.2012. The other allegations made in the complaint have been denied.

3.                In evidence of the complainant, his affidavit Ex.CW1/A and document Ex.C2 to C14 have been tendered.

5.                On the other hand, in evidence of the opposite parties, affidavit of Nandan Singh Rawat Ex.OA and documents Ex.OB to Ex.OG have been tendered.

6.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

7.                The complainant availed loan facility of Rs.22 lacs from the opposite parties. Loan was sanctioned on 29.6.2012 and loan agreement was executed on 30.6.2012. Cheque of Rs.22 lacs dated 22.6.2012  was issued by the opposite parties for the purpose of advancing loan, but the same was got enchased by the complainant on 14.9.2012. The opposite parties got three cheques issued by the complainant for EMIs, encashed on 11.7.2012, 13.8.2012 and 11.9.2012. The complainant has raised dispute that opposite parties were not entitled to recover the EMIs before actual disbursement of the loan to him i.e.14.9.2012. On the other hand, the opposite parties have submitted that as per the repayment schedule, the opposite parties were entitled to recover EMIs w.e.f.1.7.2012.

8.                Learned counsel for the complainant laid emphasis on the contention that the opposite parties illegally got encashed his  three cheques of EMIs  for Rs.28199/- each on 11.7.2012, 13.8.2012 and 11.9.2012  though the cheque for loan was got encashed on 14.9.2012 and the same was presented by the then Manager of the bank of the opposite parties on that day. Therefore, complainant cannot be made to suffer the loss of three EMIs illegally recovered by the opposite parties and as such he is entitled to get back the amount so recovered by the opposite parties.

9.                To wriggle out the aforesaid contention, learned counsel for the opposite parties vehemently argued that the cheques of Rs.22 lacs  was issued in favour of the complainant on 29.6.2012 and if the complainant did not get the same encashed upto 14.9.2012, he could not escape from liability to pay the regular EMIs as per repayment schedule. After issuance of the cheque the opposite parties were bound to keep the amount of Rs.22 lacs reserve for payment to the complainant and the said amount could not be utilized by the opposite parties upto 14.9.2012 and in this way the opposite parties suffered loss of interest, therefore, neither there was any illegality nor deficiency in service on the part of the opposite parties in recovering the EMIs as per repayment schedule.

10.              No doubt as per the loan agreement, the copy of which is OB, the date of commencement of EMIs was 1^st day of July, 2012 and due date of payment of 1^st EMIs was 5^th day of August, 2012, but the loan was not actually utilized by the complainant and the loan of 22 lacs was transferred to his account on 14.9.2012. The amount remained with the opposite parties till transferring the same to the account of the complainant. Mere fact that the opposite parties could not utilize the amount after issuance of the cheques on 29.6.2012, could not give it any right to refuse adjustment of the EMIs recovered before actual disbursement of loan, at the time of final settlement of the loan account. Unutilized amount always remains with the bank, but that does not mean that the bank would have right to recover interest for the unutilized amount lying with it from the persons to whom loan is advanced at later stage. The bank could recover interest on the loan amount advanced to the complainant from the date of actual disbursement i.e. 14.9.2012, when the amount was transferred to the account of the complainant. It was incumbent upon the bank to adjust EMIs recovered from the complainant before actual disbursement of the loan, at the time of final settlement, but it is admitted fact that the said EMIs were not adjusted by the opposite parties, which amounted to deficiency in service on their part. However, this aspect also cannot be ignored that the complainant kept the cheque with him for some reasons and got the same encashed on 14.9.2012 and the bank could not be utilize that amount during that period.

11.               As a sequel to the foregoing discussion, we accept the present complaint and direct the opposite parties to refund the amount of Rs.84597/- to the complainant within 30 days from the receipt of copy of this order. We further direct the opposite parties to pay Rs.5500/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. It is made clear if the abovesaid amount is not paid within stipulated period, then this amount will carry interest @ 9% per annum from the date of announcement of this order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 7.4.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)  (Veena Rani)

                               Member`          Member