Punjab

Ludhiana

CC/14/67

Suraj Singh - Complainant(s)

Versus

Cholamandalam - Opp.Party(s)

A C Gupta

27 Mar 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Complaint No: 67 of 23.01.2014

                                                                                    Date of Decision: 27.03.2015

                                                                                                                   

Suraj Singh aged about 70 years s/o S.Harbhajan Singh, resident of 2871/1, Gurdev Nagar, Ludhiana.

……Complainant

Versus 

1. Cholamandalam Investment and Finance Co. Ltd. SCO-145, Ground Floor, Ferozegandhi Market, Ludhiana, through its Credit Manager Sh.Sukhbir Singh/Chairman.

2. The Chairman, Cholamandalam Investment and Finance Co. Ltd. Dare House, 2 NSC Bose Road, Parrys, Chennai.

3. Amit Verma, Agent, Cholamandalam Investment and Finance Co. Ltd. C/o M/s Shiv Credits 108, Partap Colony, Neat Gita Mandir, Model Gram, Ludhiana.

 

…..Opposite parties 

 

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

 

Quorum:     Sh.R.L.Ahuja, President

                     Sh.Sat Paul Garg, Member

                     Smt.Babita, Member

 

Present:       Sh.Gaurav Gupta, Advocate for complainant.

                   Sh.Rishi Bansal, Advocate for OP1 and OP2.

                   Sh.Nitin Gulati, Advocate for OP3. 

 

                   

                        ORDER

 

(R.L.AHUJA, PRESIDENT)

 

 

1.               Present complaint under Section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed by Sh.Suraj Singh s/o S.Harbhajan Singh, resident of 2871/1, Gurdev Nagar, Ludhiana (herein-after in short to be referred as ‘complainant’) against Cholamandalam Investment and Finance Co. Ltd. SCO-145, Ground Floor, Ferozegandhi Market, Ludhiana, through its Credit Manager Sh.Sukhbir Singh/Chairman and others (herein-after in short to be referred as ‘OPs’)- directing them to return title deeds/documents of the property of the complainant, to return security cheques of the complainant and the demand of foreclosure charges 2% (i.e. Rs.7,10,000/-) be quashed. Further OPs be directed to pay Rs.5.00 lac as compensation for mental agony and harassment to pay Rs.50,000/- as litigation expenses to the complainant.

2.                Brief facts of the complaint are that complainant took a home loan of Rs.3,55,00,000/- under loan account no.XOHELIN0000641520 from OP1. It is agreed between the complainant and OPs that in case of foreclosure of the said loan account, after one year from own funds by the complainant, then the OPs will charge 0% foreclosure charges. The complainant was paying the EMI, through ECS System to the OPs. The complainant paid 12 EMIs regularly to the OPs. The OPs have also given a writing in this regard that the foreclosure charges @ 0% will be charged from the complainant if the complainant pay the amount from own funds after one year. After payment of 16-17 EMIs, the complainant has paid the balance amount of the said loan from his own funds. The Ops have to return the original title deed of the property of the complainant immediately on foreclosure of the said loan account alongwith six undated security cheques drawn on oriental Bank of Commerce Model Town, Ludhiana. The Ops failed to return the original sale deed and six undated security cheques to the complainant in spite of repeated requests made by the complainant on foreclosure of the said loan account. Instead of returning the title deed and cheques, the Ops raised a demand of 2% as foreclosure charges. As per the contract between the OPs and the complainant as well as the instructions of the Reserve Bank of India, the OPs are not entitled to claim any foreclosure charged. Complainant also served a notice dated 14.11.13, through his counsel upon the OPs. The Ops received the said notice, but failed to do the needful. Rather Ops sent a false, frivolous reply. Claiming the above act as deficiency in service on the part of the Ops, the complainant has filed this complaint.

3.                On notice of the complaint, OP1 and OP2 appeared through their counsel and filed written statement taking preliminary objections that the complaint has not come to this Forum with clean hands and he has suppressed true and material facts from this Forum. Further submitted that complainant approached the OP company for financial assistance/facility by way of Home Equity Loan and a sum of Rs.3,55,00,000/- was sanctioned and the same was to be repaid in 120 monthly EMIs as per the schedule of the Loan Agreement no.XOHELIN0000641520 by providing his property as a security for the said loan. The complainant executed the loan agreement and accepted the terms thereof by signing the loan agreement and he is bound by the same especially prompt repayment as per schedule. The OPs company use to give offers on foreclosures as a preferential gesture to its customers and accordingly, the complainant was also intimated by letter stating that if he wishes to foreclose the account, the charges for foreclosure will be 0%, if payment were made with his own funds and the said term is applicable, if there are no EMI bounce during the period. The complainant has concealed this fact that before foreclosing his account, certain EMI/transactions were bounced which is clear from the statement of account and for the said reason the offer of 0% foreclosure charges was not applicable to the complainant. The complainant paid the foreclosure amount without paying the foreclosure charges and he is liable to pay the same at 2%. As such, the complainant is not entitled to get any relief from this Forum. There is an arbitration clause in the Loan agreement executed between the parties and the present dispute is within the ambit of the said arbitration clause; the complainant has misled this Forum. On merits, denying the contents of all other paras of the complaint, OPs prayed for the dismissal of the complaint.

4.                On notice of the complaint, OP3 appeared through his counsel and filed written statement taking preliminary objections that the complaint is not maintainable against the answering OP3; the complaint is bad for misjoinder of parties; the complainant approached the answering OP for guidance of taking a home loan and the answering OP guided the complainant to avail the loan facility from the OP1 and OP2. Thereafter, the answering OP had no concern or knowledge whatsoever with the agreement between the complainant and the OP1 and OP2. The answering OP is neither in possession of the title deeds/documents of the property of the complainant nor has any security cheques of the complainant nor he has any knowledge about the same as alleged in the complaint; the complainant has not come to the Forum with clean hands and has suppressed the material facts from this Forum. On merits, denying the contents of all other paras, answering OP prayed for the dismissal of the complaint.

5.                In order to prove his case, Ld. counsel for complainant has placed on record affidavit of complainant Ex.CA, wherein, the same facts have been reiterated as narrated in the complaint and also placed on record documents Ex.C1 to Ex.C18. On the other hand, Ld. counsel for OP1 and OP2 has placed on record affidavit Ex.Raghubir Sekhri, Sr. Area Sales Manager, Home Equity, Punjab and Power of Attorney holder of M/s Cholamandalam Investment and Finance Company Limited, having its branch office situated at SCO-145, Ground Floor, Feroze Gandhi Market, Ludhiana Ex.RA, wherein, the same facts have been reiterated as narrated in the written statement and also placed on record documents Ex.R1 to Ex.R3. Whereas, Ld. counsel for OP3 has placed on record affidavit of Sh.Amit Verma, aged about 33 years, s/o Prem Pal Verma, resident of House no.31, Makkar Colony, Basant Avenue, Dhandra Road, Ludhiana Ex.RA3, wherein, the same facts have been reiterated as narrated in the written statement.

6.                We have heard the Ld. counsel for the parties and have also perused the entire record placed on file.

7.                The perusal of the record reveals that it is undisputed fact between the parties complainant availed the home loan of R bns.3,55,00,000/-. Before taking the loan, he had issued certain cheques and executed documents in favour of OP1 and OP2. It is further undisputed fact that the entire loan amount was repaid by the complainant to the OP1 and OP2. At the time of taking the loan, complainant deposited original titled deed with the Ops as a security signed by him. But despite the payment of the entire loan amount by the complainant, OP1 and OP2 have failed to return the original title deed and blank cheques, which were deposited as security.

8.                On the other hand, there is specific plea of the OP1 and OP2 that at the time of the sanctioning of the loan, it was agreed that the charges for foreclosure will be 0%, if payments were made with his own funds and the said term is applicable, if there are no EMI bounce during the period. Since two cheques was bounced. As such, the complainant is liable to pay 2% foreclosure charges, which he agreed, vide letter dated 26.09.11. Ld. counsel for OP1 and OP2 has relied upon the judgement passed in case titled as Standard Chartered Bank Vs Krishan Lal Juneja-II (2013) CPJ 498 (NC).

9.                We have considered the rival contents of Ld. counsel for the parties and have gone the judgement placed on record by OP1 and OP2 and the entire record placed on file.

10.              It is proved fact on record that the complainant has paid the entire loan amount from his own source and now the only dispute is qua the 2% foreclosure charges, which the OPs have claimed on account of bouncing of 2 EMIs. The perusal of the statement of account, which has been placed on record by the Ops Ex.R3 reveals that two installments were bounced and further Ex.R2 Sanction letter reveals that the terms of same were accepted by the complainant by putting his signatures, which has not been denied by Ld. counsel for the complainant. So, as per the terms of the loan agreement Ex.R1 as well as Sanction letter Ex.R2, the complainant had agreed to pay foreclosure charges under the specific circumstances, in case, the foreclosure is made from the own source or the EMIs are not bounced. Since the 2 EMIs were bounced. As such, the complainant cannot claim the benefit. However it is settled principle of law that if any agreement is executed between the parties, both the parties are bound by the terms and conditions of the agreement.

10.              Sequel to the above, discussion, the present complaint is partly allowed and OPs are directed to return the original title deed of the complainant and hand-over the blank cheques to the complainant, which are in their possession, subject to deposit of the amount on account of foreclosure charges, if any, for which the complainant is liable to pay, as per the terms and conditions of the agreement Ex.R1 within 30 days of receipt of the copy of the order. Keeping in view of the peculiar circumstances of the complaint no order as to cost and compensation is passed.  Copy of the order be supplied to the parties, free of costs. File be consigned to record room.

 

                   (Babita)                          (S.P.Garg)                      (R.L.Ahuja)

                   Member                           Member                         President

Announced in Open Forum.

Dated:27.03.2015 

Hardeep Singh