BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.300 of 2020
Date of Instt. 18.09.2020
Date of Decision: 17.05.2023
1. Nankuram son of Rama
2. Sonu s/o Nanku
Both residents of House No.T-28-G, Railway Road, Jalandhar.
..........Complainants
Versus
1. Deewan Housing Finance Ltd. Near Taj, SCHO-13 Chotti Baradari, Part-I, Jalandhar through its Branch Manager.
2. Deewan Housing Finance Ltd. Circle Office, A-301-302, 3rd Floor, Elante Office Complex Industrial Area, Phase-I, Chandigarh-160002 Through its Manager.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Ankush Sharma, Adv. Counsel for Complainants.
Sh. Vikas Sood, Adv. Counsel for OPs No.1 & 2.
Order
Dr. Harveen Bhardwaj (President)
1. This complaint has been filed by the complainants, wherein alleged that earlier the complainant approached the OPs for taking the financial assistance against the property measuring 3 marlas situated at Ekta Nagar, Jalandhar. At that time, OPs assured the complainant that they would provide the proper and sufficient services. They also assured that no hidden charges would be there. Relying on the assurances of OPs the complainants agreed for taking the financial assistance against this property from the OPs. Accordingly, a loan of Rs.4,08,692/- wans sanctioned on 21.10.2010. The tenure of the loan was 11 years. The EMIs were 132 and the calculations were as 12 Months x 6072 and 60 Months x 2836. It is pertinent here to mention that at that time, the complainant requested the OPs to provide the copy of loan documents including copy of sanction letter, loan agreement, repayment schedule etc. but the OPs assured that they would get all these document through post. The rate of interest was @ 9.50% per annum. The complainant has never committed any default and is paying the installments/EMI since inception of loan tenure in the year 2010 till date. Each and every installment has been paid on time without any default. In the intervening period, the complainant has requested many times to OPs to provide the statement of account, repayment schedule, attested copy of sanction letter, loan agreement documents and every time OPs assured that they would receive the document through post but they never provided the above said documents to the complainant. Right from the beginning, the opposite parties used to get the monthly installments from the account of the complainants on regular basis. The complainants always provided sufficient balance for the payment of the installment in account. As stated above, the complainant never committed any default. The OPs have not deducted any amount of installment from the account of the complainants. They requested the opposite parties many times to deduct the installment as usual they were doing earlier. But since March, 2020 they never deducted any installment amount from the account. The complainants never opted for the moratorium period. Inspite of this fact, the OPs never got the installment amount from the account of the complainants. The complainants are not liable to pay any single penny to the opposite parties as the complainants always provided sufficient balance in account from which the loan installments would be deducted. The complainants never requested the OP not to deduct any installment amount nor ever requested to enhance the loan tenure or interest. In July 2020 the complainants again approached the OPs and requested to close the loan after making due payment. It is pertinent here to mention that this is a housing loan so, no foreclosure charges are applicable. So, the complainant requested the opposite parties to accept the balance loan and to issue the NOC. 12. The complainant was shocked that the OPs informed the complainants that the loan tenure is extend to 2030. No notice/intimation was ever given to the complainant in extending the loan tenure. The OPs with malafide intention and with intention to extract more money from the complainants, increased monthly Installments at their own which is against the principle of natural justice. Even till today, the complainants have not committed the single default. The OPs, increased the installments without any intimation. They have not accepted any installments after March 2020. They never provided any statement of account, repayment schedule, attested copy of sanction letter, loan agreement documents till now. The complainant is still ready to pay the balance loan amount due on the basis of the EMIs as 132 and as per the calculations- 72 Months X 6072 and 60 Months X 2836. The OPs are adamant and they are pressing upon to the complainant not to close the loan account and pay the remaining EMIs with increased months and as per their wish and wisdom. The act and conduct of the OPs is against the principal of natural justice. The OPs have committed unfair trade practice and restrictive trade practice, deficiency in service and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainants may be accepted and OPs be directed to supply the copies of statement of account, repayment schedule, attested of sanction letter, loan agreement documents etc. immediately. Further OPs be directed to accept the balance amount considering the loan tenure as 132 EMIs as settled earlier as per calculation as the EMIs were 132 and the calculations were as 72 months x 6072 and 60 months x 2836 and to issue the NOC and also to release and handover each and every title documents to the complainants after the closure of the loan. Further OPs be directed to pay a compensation of Rs.1,00,000/- for causing mental tension and harassment to the complainant and Rs.25,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs, who filed joint written reply and contested the complaint by taking preliminary objections that during the pendency of the present proceedings, the Reserve Bank of India has filed on 29.11.2019 an application for initiation of Corporate Insolvency Resolution Process Corporation Limited, against Dewan Housing Finance under Section 227 read with clause (zk) of sub-section (2) of Section 239 of the Insolvency and Bankruptcy Code (IBC), 2016 read with Rules 5 and 6 of the Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Providers and Application to Adjudication Authority) Rules, 2019. It is further averred that as per the mandate of the Section 14 Sub Section (1), (2) and (3) of Insolvency and Bankruptcy Code, 2016 as amended up to date, a moratorium will be declared for prohibiting the institution of suits or continuation of suits. It is further averred that in addition to the above said provision of law, Rule 5 (b) (1) of the Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Providers and Application to Adjudicating Authority) Rules, 2019 ("ESP Rules") mandates that an interim moratorium shall commence on and from the date of filing of the application till its admission or rejection. The explanation to Rule 5 (b) of the FSP Rules provides that ‘interim moratorium’ shall have the effect of the provisions of sub-sections (1), (2) and (3) of Section 14. Sub-sections (1), (2) and (3) of Section 14 of the Insolvency and Bankruptcy Code, 2016 as amended up to date. It is further averred that after filing of the application by the RBI, the National Company Law Tribunal, Mumbai Bench has admitted the application filed by the RBI and passed inter alia. It is further averred that from the above cited statutory provisions, and the above said order it is evident that an interim moratorium commences on and from the date of filing of the application till its admission or rejection. Since the application has been filed by the Reserve Bank of India on 29.11.2019 so from the said date, the interim moratorium has commenced. Further, on passing of the order dated 03.12.2019 by the Hon'ble NCLT, Mumbai Bench, moratorium u/s 14 has commenced from the date of the said order. It is further averred that the legislature in its wisdom has used the words ‘shall’ in the above said provisions of law and as such the said provision is mandatory in nature. In view of the above-said circumstances, details and provisions of law and the order mentioned above, the present proceedings against the corporate debtor i.e. the applicant Dewan Housing Finance Corporation Limited, cannot continue as the moratorium has commenced and become applicable on the present proceedings. Therefore, an appropriate and necessary orders are required to be passed by this Commission in the said regard and lastly prayed that an appropriate and necessary orders may kindly be passed by this Commission to the effect that the present proceedings be adjourned sine die in view of the commencement and applicability of moratorium u/s 14 of the Insolvency and Bankruptcy Code, 2016.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
6. The complainant has proved that he applied for the financial assistance from the OP against his property measuring 3 marlas situated at Ekta Nagar, Jalandhar. A loan of Rs.4,08,692/- was sanctioned on 21.10.2010. The tenure of the loan was 11 years and the total EMIs were 132. The complainant has proved on record the request and application for housing loan Ex.C-1. Ex.C-2 is the statement of account of the complainant showing that the complainant has been paying the installment and has also been depositing the amount to return the loan from time to time. The complainant has proved on record the statement of account from the year 2010 to 13.07.2020. The complainant has also proved on record Ex.C-3 showing the cheques paid by the complainant to the OP from 13.11.2010 to 12.11.2016. This shows that total amount of Rs.4,43,256/- has been paid by the complainant and Ex.C-4 is the same account statement showing the payments to the OP by way of cheque from 14.12.2016 till 07.12.2021 amounting to Rs.1,67,724/-. The sanctioning of the loan has been proved Ex.C-5. The complainant has alleged that the OP assured the complainant that they would provide the sufficient services and no hidden chares would be there.
7. The OP has filed written statement. Perusal of the written statement shows that the OP has not stated even a word on merits. They have not stated about the loan sanctioned or obtained by the complainant nor have mentioned anywhere in the written statement about the installments paid by the complainant nor have mentioned anywhere about the default in the payment on the part of the complainant. In the entire written statement, they have alleged that on 29.11.2019, an application of initiation of Corporate Insolvency Resolution Process against Deewan Housing Finance Corporation Limited was filed and the OPs have mentioned in the written statement about the Insolvency proceedings only against the OPs. They have also produced on record the application for initiation of Corporate Insolvency Resolution Process against Deewan Housing Finance Corporation Limited Ex.O-2. Though, document Ex.O-3 is the letter written to the complainant showing that his loan was sanctioned, but this fact has not been referred in the written statement. The documents relied upon by the OPs by filing the same in the Court, nowhere finds mentioned in the written statement. It has been alleged by the OPs, the RBI has filed an application for initiation of corporate insolvency resolution process against Dewan Housing Finance Corporation Limited under Section 227 read with clause (zk) of sub-section (2) of Section 239 of the Insolvency and Bankruptcy Code (IBC), 2016 read with Rules 5 and 6 of the Insolvency and Bankruptcy Rules, 2019. As per Ex.O-2, the application for initiation of corporate insolvency was moved against the OPs on 29.11.2019. The complaint was filed on 18.09.2020 and written statement was filed on 05.01.2021. Till today, no order or copy of the proceedings of the application, have been filed on record by the applicants. Section 12 of the IBC provides the time to decide the application and the time provided as per provisions of the Code is 180 days extendable to further 90 days and maximum period granted is 330 days and by the end of 330 days, the application is to be decided. By now more than mandatory period of 330 days has elapsed and the outcome of the application has not come on record, therefore it cannot be said that any proceedings are pending or not. Therefore these proceedings have no connection with the present complaint.
8. The complainant has alleged that he has already repaid Rs.6,10,980/-, whereas he was to pay the amount of Rs.6,07,344/-. The OP in the written statement have not denied the documents Ex.C-3 and Ex.C-4, which is the calculation vide which the complainant has repaid the loan amount. With regard to the rate of interest, whether it was floating rate of interest or it was fixed rate of interest, there is no evidence on record nor this fact has been admitted nor denied by the OPs in the written statement. The OPs have also not produced on record any document to show the increase or decrease in the rapo rate to show the default, if any, on the part of the complainant in the repayment of the loan amount. The documents produced on record by the complainant and the plea of the complainant regarding the repayment of loan and rate of interest remained un-rebutted as in the written statement nothing has been mentioned by the OPs. The complainants have alleged that the OPs have increased the loan tenure and number of EMIs in violation of the RBI Guidelines at the back of the complainant without giving any intimation or notice to the complainant. To rebut this evidence also the OP has not produced on record any document to show that the loan tenure and number of EMIs was increased as per the guidelines or instructions of the RBI after giving notice to the complainant. In such circumstances, the complainant has proved on record that nothing is due and he has repaid the entire loan amount and thus, the complainant is entitled for the relief as claimed.
9. In view of the above detailed discussion, the complaint of the complainants is party allowed. Since the loan has been repaid, the OPs are directed to issue the NOC to the complainant. Further, OPs are directed to pay a compensation of Rs.10,000/- as compensation for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance and payment be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Dr. Harveen Bhardwaj
17.05.2023 Member President
