Haryana

Ambala

CC/122/2011

MANPREET KAUR - Complainant(s)

Versus

CITI FINANCIAL - Opp.Party(s)

H.S GILL

30 Jan 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

             Complaint Case No.    : 122 of 2011

Date of Institution       :  20.04.2011

            Date of Decision         :  30.01.2017

Manpreet Kaur W/o Sh. Tajinder Singh R/o H.No.116, Housing Board Colony,

Ambala Cantt.                                                                                               

……Complainant.

Versus

Citi Financial Consumer Finance India Ltd., Ground Floor Alexandra Road, near Capital Cinema, Ambala Cantt, through its Branch Manager.

                                                                                    ……Opposite Party.

Complaint Under Section 12 of the Consumer Protection Act.

BEFORE:       SH. D.N. ARORA,  PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.                       

Present:          Sh. P.K. Goel, Adv. counsel for complainant.

                        Sh. Mohinder Bindal, Adv. counsel for Op.

ORDER.

                        In nutshell, brief facts of the complaint are that complainant  borrowed a home loan  as a co-borrower alongwith her husband Sh. Tajinder Singh vide loan account no.16019439.   It has been submitted that  the loan amount advanced by the Op was already pre-paid to the opposite party vide two drafts dated 29.03.2010 of Rs.15,50,000/- and dated 31.03.2010 of Rs.74251/- and this way the home loan was settled by the complainant on 31.03.2010. However, the complainant has submitted that  OP wrongly and illegally charged the amount of Rs.76157/- as pre-payment charges @ 5% and thus the amount was charged  just to extract more money from the complainant. The OP has  also issued an acknowledgement dated 22.04.2010 in wherein the OP has admitted that  the home loan of complainant has been duly closed  and also acknowledged the receipt of the documents furnished to OP  at the time of advancement of the loan to complainant. It has been submitted that at the time of advancement of the loan, OP had also taken post dated cheuqes for the purpose of EMI/monthly installments for the re-payment of the amount advanced to the complainant and her husband. Further, it has been submitted that OP has also deducted an amount of Rs.21789/- from the account of complainant  through a cheque  dated 13.05.2010 of Syndicate Bank of complainant. Complainant has submitted that this fact came to the knowledge of complainant when on 28.05.2010. It has been alleged that OP has also charged illegally a sum of Rs.7844/- as service tax from the complainant.  So, a legal notice dated 11.06.2010 was served upon the OP but of no avail. Hence, the present complaint seeking relief as per prayer clause.

2.                     Upon notice, Op appeared through counsel and  filed written statement raising preliminary objections qua non-maintainability of complaint.  Upon notice, it has been admitted that   complainant deposited two drafts dated 29.03.2010 of Rs.15,50,000/- and Rs.74,3251/- dated 31.03.2010 and an acknowledgement dated 22.04.2010 was issued by them to the complainant wherein it had been mentioned that  the total loan has been paid up and no dues are left after realization of the said cheques on16.04.2010.  However,  it has been specifically denied that OP had illegally and wrongly charged the amount of Rs.76157/- as prepayment charges whereas it was  as per terms and conditions of the loan agreement.  Further it has been submitted that  the cheque given by the complainant in advance  was presented for encashment in normal course of business and it was realized that amount of Rs.21789/-  is to be refunded to the complainant. It has been submitted that  complainant was fully aware of the terms and conditions  of loan agreement from the very beginning that incase the account is closed before the expiry of term of repayment, the same would be charged @ 5% as pre-payment charges.  As such, there is no  deficiency in service on the part of Op and prayed for dismissal of complaint with costs.

3.                     To prove his version, counsel for complainant tendered  affidavit of complainant as Annexure CX alongwith documents as Annexures C-1 &  C-10 and closed his evidence. On the other hand, counsel for Op tendered affidavit Annexure RX alongwith documents as Annexures R-1 to R-3 and closed their evidence.

4.                     We have heard learned counsel for the parties and gone through the case file very carefully. The grievance of the complainant is that the home loan so received by her from the OP was deposited by her before its maturity, so the OP charged an amount of Rs.76157/- in excess from the complainant.  Counsel for complainant has argued that  the OP has also charged an amount of Rs.7844/- illegally from the complainant  as service tax and  OP also  got  encashed  a  post dated of Rs.21789/-. Counsel for complainant thus argued that the Op has violated the terms & conditions of loan agreement Annexure C-8. Counsel for complainant to prove his case has placed reliance on a judgment delivered by Hon’ble State Consumer Disputes Redressal Commission, U.T., Chandigarh in First Appeal No.262 of 2011 decided on 18.10.2011 titled The ICICI Bank Ltd. Vs. Prem Kumar Verma  wherein it has been observed that “Foreclosure charges relate to the mortgage of immovable property and is not synonymous for prepayment charges.  The Ops could  recover foreclosure charges only, if there was an agreement to recover the same but as discussed above there is no such agreement between the parties  to pay/recover foreclosure charges.” Counsel for complainant has also placed reliance on case law delivered by Hon’ble Punjab & Haryana High Court, Chandigarh titled Seema Tulisan Vs. India Housing Finance Ltd. decided on 09.04.2013 wherein guidelines issued by RBI on 05.06.2012 has been discussed.

                        On the other hand, counsel for OP has argued that they have rightly charged the loan amount from the complainant as per terms & conditions of loan agreement.  However, they have admitted that a post-dated cheque was wrongly got encashed by them after settling of the loan amount and they  have refunded the same to the complainant vide  cheque dated 04.07.2011  (Annexuare R-3).

5.                     After hearing learned counsel for the parties and going through the record, it has been admitted case of the OP that   the loan amount has been deposited by the complainant  vide cheques Annexure C-7 & C-8 amounting to Rs.15,5000/- dated 29.03.201 and Rs.74251/- dated 31.03.2010 respectively and  the loan account of complainant  and her husband Tajinder Singh Suri was settled  vide letter dated 22.04.2010 Annexure C-4 wherein it has been mentioned ‘Home Loan Account No.16019439 stands closed. The agreement signed by you stands null and void. The total loan has been paid up and no dues are there.’  It has been admitted by the OP that a post dated cheque of Rs.21789/- was got encashed by them in normal course of business but the same  has been placed on record for returning to the complainant vide cheque dated 04.07.2011 (Annexure R-3).

6.                     After going through the Loan Agreement; Clause 2.6, we are satisfied that the OP has acted upon as per the loan agreement and they have rightly charged the amount vide Annexure C-7 & C-8.  But as per admission of the OP, they have got  encashed the post dated cheque of complainant in normal course of business after closing of  the loan account of complainant. The refund cheque of Rs.21789/- dated 04.07.2011 has been placed on record by the OP after receipt of notice of the Forum and now the cheque has become out of order. The case law ICICI Bank (supra) is fully applicable to the present case whereas  guidelines of RBI discussed in case law Seema Tulisan (supra) are not applicable to the present case as the case has been settled before coming into force of RBI’s guidelines dated 05.06.2012.  However, Op has wrongly got encashed a post dated cheque of Rs.21789/- on 13.05.2010 after settlement of the loan account of complainant vide closure letter dated 22.04.2010 whereas the duty of the Ops was to send the unused post dated cheques of complainant at the time of closure of the account but they misused the cheque by encahsed the same. Thus we hold that the act and conduct of OP tantamount to unfair trade practice. Accordingly, the complaint is partly allowed with costs and OP is directed to comply with the following directions within thirty days from the receipt of copy of the order:-

(i)        To refund Rs.21789/- to the complainant alongwith interest @ 13.5% (which they have charged from the complainant) from 13.05.2010 i.e. the date of encashment of the cheque till actual realisation.

(ii)       Also to pay a sum of Rs.5000/- on account of harassment and litigation expenses.

                        Copies of the order be sent to the parties concerned, free of costs, as per rules.  File after due compliance be consigned to record room.

 

ANNOUNCED ON: 30.01.2017

                                                                                                          Sd/-

                                                                                               (D.N. ARORA)

                                                                                                   PRESIDENT  

 

                                                                                                         Sd/-

                         (PUSHPENDER KUMAR)

                                                                                                       MEMBER