DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

[Complaint Case No:  83 of 2011]

                                                                          Date of Institution : 16.02.2011

                                                                               Date  of Decision  : 23.05.2012

                                                                                 -----------------------------------------

[1]      Kunal Nagpal s/o Sh. Vijay Nagpal, aged 28 years, resident of H.No. 3140, Sector 21-D, Chandigarh, through his attorney Vijay Nagpal,  r/o H.No. 3140, Sector 21-D, Chandigarh.

[2]      Usha Nagpal w/o Sh. Vijay Nagpal, resident of H.No. 3140, Sector 21-D, Chandigarh.

                                                                   ---Complainants.

VERSUS

Deutsche Post Bank Home Finance Ltd., through its Branch Manager, SCO No. 118-119, Sector 8-C, Madhya Marg, Chandigarh – 160017.

---Opposite Parties.

BEFORE:            SHRI LAKSHMAN SHARMA                   PRESIDENT

                        MRS. MADHU MUTNEJA                             MEMBER

                        SHRI JASWINDER SINGH SIDHU            MEMBER

Argued By:            Shri Varun Baanth, Advocate for the Complainants.

                                Ms. Jyoti, Advocate for the Opposite Party.

PER JASWINDER SINGH SIDHU, MEMBER.

1.                 Complainants have filed the present complaint against the Opposite Party on the grounds that the Complainants applied for a house finance loan as co-applicants vide application no. 248418 customer ID 289584, 289597, file No.CHD/030979 in the month of Sept., 2010, to the Opposite Party. The loan of Rs.35 lacs for a term of 20 years was sought for financing Flat No. 304, Block-A, Imperial Residency, Peer Mushalla, Zirakpur (Pb).  The Opposite Party obtained a demand draft of Rs.19,864/- dated 3.9.2010, as processing fees along with the loan application. The copy of the DD is annexed at Ex.  A-2.

2.                 The Opposite Party vide its loan office communication dated 28.9.2010 offered a loan of Rs.30,88,000/- for a tenure of 15 yrs. instead of 35 lacs for a term of 20 years as desired by the Complainants. The Complainants were surprised while having come across the conditions that the loan offer letter contained the terms and conditions mentioned at Sr. No. 3, 11 and 12. These conditions were not in accordance with the assurances made to them by the marketing agent of the bank. The copy of the letter dated 28.9.2010 is at Ex.  A-3.  Complainants also mentioned that it is revealed from the offer letter that the process fee was to be apportioned after the conveying of the acceptance of the borrowers/ Complainants.

3.                 The Complainants vide their letter dated 5.10.2010 protested qua the terms mentioned at Sr. No. 3, 11 and 12 and returned  the loan offer letter dated 28.9.2010 in original without accepting the same, along with a request to review the matter in the light of facts mentioned in their letter.  The terms mentioned at Sr. No. 3, 11 and 12 were with regard to pre-payment charges clause and a condition qua the guarantor in this loan application. The copy of the letter dated 5.10.2010 is at Ex.  A-4.

4.                 The Complainants thereafter wrote two different letters dated 15.10.2010 and 19.10.2010 requesting the Opposite Party to make necessary amends/ deletions in the clauses 3, 11 & 12 or in the alternate to refund the processing fees charged by the Opposite Party. The copies of these letters are at Ex.  A-5 and A-6.

5.                 The Complainants claim that thereafter the Opposite Party has maintained a stony silence and had failed to respond to the request made to them vide Ex. A-3 to A-6.  Thereafter, the Complainants once again sent a reminder dated 27.10.2010 through a registered post dated 28.10.2010 (Ex.  A-7).  

6.                 The Complainants having failed to elicit any response from the side of the Opposite Party were forced to avail the loan from another Banker, because of the delay in finalizing the loan offer by the Opposite Party, despite having made as many as 07 requests to that effect.  Complainants claim to have suffered mental and financial harassment, as well as financial loss of processing fees paid to the Opposite Party, which according to the Complainants has been appropriated without any legal basis.  The Complainants issued a legal notice dated 26.11.2010 which was replied by the bank through its reply dated 6.12.2010. The same are annexed at Ex.  A-10 and  A-11.

7.                 The stand of the Opposite Party with regard to non-refund of process fee as mentioned in their reply to the legal notice of the Complainants. The Complainants claim that the apportioning of the processing fee without having completed the entire process of loan sanctioning is deficiency in service on the part of the Opposite Party and aggrieved of the act of the Opposite Party, and alleging harassment at their hands, have preferred the present complaint seeking the following reliefs:-

[i] Direction to Opposite Party to refund process fee of Rs.19,864/- along with interest @ 12% w.e.f. 3.9.2010;

[ii] Compensation to the tune of Rs.50,000/- on account of mental agony and harassment caused at the instance of the Opposite Parties.

[iii] Legal expenses qua notice Rs.5500/- and qua the present complaint amounting to Rs.23,000/- .

8.                 The Opposite Party has contested the claim of the complainant by filing its reply, taking preliminary objections to the effect that the present complaint is misconceived, groundless, frivolous, vexatious and scurrilous, which is not unsustainable in law as the same is falsely cooked up and has been filed against the Opposite Party without justified reason/ cause and is just to harass, defame and blackmail the Opposite Party, hence same is liable to be dismissed as such. 

9.                 The Opposite Party claims that the preset complaint is not maintainable in its present form on the ground that the sanction of the loan is conditional to establishing the fact with regard to the credit worthiness of the customer and its disbursal is subject to all compliances as per loan offer letter.  The clauses of the loan offer letter are applicable to all the customers of the bank uniformly.  The Opposite Party has also claimed that the Complainants do not fall under the definition of consumers hence the present complaint deserves to be dismissed on this ground too.  

10.               On merits, the Opposite Party has contested the claim of the Complainant repeating the submissions mentioned in the preliminary objections and claiming that the present complaint deserves to be dismissed as the Complainants have not approached this Forum with clean hands.  The Opposite Party has also claimed in its reply to Para No. 3 that while offering the loan, the amount of loan sanctioned and the payment schedule is calculated keeping in view the re-payment capacity of the applicant and is purely calculated on the parameters of the bank which are uniform for all its customers.

11.               The contents of para no. 4 are denied for being false, baseless and misconceived, as it is claimed that the Complainants had given their consent to sanction of the loan and the terms and conditions mentioned therein in the offer letter are uniform to all the customers of the bank. Even the receipt of letter dated 5.10.2010 or any other letter of offer is also denied.  While denying the contents of para no. 5 to 9, being false and baseless, the Opposite Party has denied any wrong on their part.

12.               The Opposite Party in their reply to para 10 through which the Complainant has raised the demand of refund of the process fee is vehemently denied as the same being false, baseless and untrue. The Opposite Party claims that the demand of refund of the process fee is non-refundable after sanction of loan by the Opposite Party.  Finally, on the aforesaid reasons the Opposite Party has prayed for the dismissal of the present complaint with exemplary costs.  

13.               Parties led their respective evidences.

14.               Having gone through the entire complaint, version of the Opposite Party, the evidence of the parties and with the able assistance of the learned counsels for the parties, we have come to the following conclusions.

15.               In the present complaint, the facts with regard to the application for a loan amounting to the tune of Rs.35 lacs for a term of 20 years and the payment of processing fees of Rs.19,864/- by way of a demand draft dated 3.9.2010 is admitted.  The Opposite Party has categorically stated that the Housing Loan offer letter dated 28 Sept., 2010, was issued and the loan of Rs.30,88,000/- for a period of 15 years at RBLR of 15% was offered. While offering the loan of Rs.30,88,000/- for a period of 15 years, was subject to the assessment of the creditworthiness of the Complainants.

16.               The Opposite Party has contested the claim of refund of the processing fees, paid by the Complainants, on the ground that as the loan stood sanctioned. As such, the processing fee has become non-refundable, as the Opposite Party had done the needful and the loan stood sanctioned. In the present case we feel that the reply tendered by the Opposite Party deserves to be seen in the light of the request appended on Pg. 18 of the offer letter dated 28.09.2010 (Ex.C/3), wherein the Complainants have requested the Opposite Party to review the offer of loan in the light of the facts mentioned in the letter accompanied the Ex.C-3, which was returned to the Opposite Party in original.  It is also important to consider the letter dated 19.10.2010 (Ex.C/6)  written by the Complainant to the Opposite Party, wherein the Complainants have categorically stated that as the Opposite Party has failed to consider their request, the loan application filed along with all documents and the processing fee of Rs.19,864/- be returned to them.

17.               It is also important to go through the two letters dated 21.10.2010 and 27.10.2010 (Ex.C/12 and C/8) respectively, through which the Opposite Party has categorically claims to have replied to the subject matter of review of loan offer dated 28.8.2010 and it finds mentioned that as the loan has been sanctioned, and the Complainants were at liberty to avail its disbursement at any point of time within the validity period, thus, as the loan stood sanctioned, the processing fee has become non-refundable.  It is a matter of surprise that while issuing the loan offer dated 28.8.2010, the Opposite Party had mentioned a number of conditions and the sanction of the loan was subject to the Complainants consent to the loan sanction letter in its totality.  While reviewing the request of the Complainants, the Opposite Party has unilaterally without taking the consent of the Complainants had intimated the Complainants about the sanctioning of the loan which was ready for disbursal to the convenience of the Complainants, within a specified time period.  The dual stand taken by the Opposite Party vis-à-vis the consent to the loan sanction letter 28.9.2010 (Ex.C/3) and thereafter, sanctioning of the loan with the same terms and conditions, which were not agreeable to the Complainants, is beyond comprehension. It is also important to mention that the Complainants, who had preferred a loan of Rs.35 lacs for a period of 20 years while applying for the Housing Loan, may  actually have a definite requirement and any lesser amount was sure to jeopardize their obligation in meeting with the expenses of the dwelling they were interested in buying. 

18.               The Opposite Party, in our view, is totally unjustified in unilaterally sanctioning the loan, which was not acceptable to the Complainants, and then, claiming its qualification to retain the processing fee in the light of this sanctioning of the loan.  This exercise of the Opposite Party is nothing, but an act of deception played on the Complainants, with a view to retain the processing fee which it was not  entitled to, as the Opposite Party has failed to bring on record any consent from the side of the complainants, for the disbursal of the loan that was offered to them.  The version/ reply of the Opposite Party is not supported by any document from where we could satisfy ourselves that the Complainants have actually consented to the loan sanction letter dated 28.8.2010.  Though the reply/ version of the Opposite Party is supported by an affidavit of one Sh. Vikas Swarup Bhagnagar, whose age, father’s name and address is not given, and this affidavit is a ditto replica of the reply/version filed by the Opposite Party.  In the absence of any consent, the act of sanctioning of the loan is totally uncalled for and the Complainants are entitled for refund of the processing fee as per the judgment Ashokan P.K. Versus Tata Home Finance Ltd., reported as I (2004) CPJ 5 (MRTP), wherein it is specifically mentioned as under:-

“Monopolies and Restrictive Trade Practices Act, 1969 – Financial Services – Loan offer sent – Administrative fees for processing of loan paid – Offer not accepted by Complainant – Respondent liable to return administrative fees with interest.” 

                    In the light of the above cited judgment which is squarely applicable to the present complaint,  the Complainants are qualified for a refund of their processing fees, and the act of the Opposite Party in illegally retaining the same amounts to deficiency in service on their part.  The negative response of the Opposite Party while dealing with the request of the Complainants for the review of the offer is also a bad  business practice. 

19.               Hence, in the light of above observations, we find a definite deficiency in service on the part of the Opposite Party. The present complaint of the Complainants succeeds against the Opposite Party, and the same is allowed. The Opposite Party is directed to refund Rs.19,864/-, along with interest @9% p.a. w.e.f. 3.9.2010, along with litigation expenses to the tune of Rs.10,000/-. 

20.               The above said order shall be complied within 45 days of its receipt by Opposite Party; thereafter, Opposite Party shall be liable for an interest @18% per annum on the awarded amount of                     Rs.19,864/- w.e.f. 3.9.2010, till it is paid, besides costs of litigation of Rs.10,000/-.  

21.               Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced          

23^rd May, 2012                                                                                       Sd/-

 (LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER