This is an application under Section 12 of Consumer Protection Act,1986.

Brief facts of the complainant’s case is that, the complainant is a businessman, having requirement of fund and had approached for a Mortgage Loan, from O.P. No. 3, in the month of March 2019, for an amount of Rs. 65,00,000/-(Rupees Sixty Five Lakh Only). In the month of April 2019, on demand by the O.P. No. 3, had handed over his K.Y.C. details, Xerox Copy of the Registered Deed, to be kept as mortgage and eight (8) copies of signed Blank Cheque of his Current Account with Axis Bank, Siliguri Bearing No. 915020054916687, in favour of Fullerton India Credit Company Limited, to O.P. No. 3. The complainant had been issued one(1) Application I.D. being no. 4660661 on 5^th April 2019, by the O.P.s and bureau check to be performed by the O.Ps. The O.P. No. 3, then visited the resident of the complainant, sometime in the month of May 2019 and forced the complainant to sign on certain  blank documents, with an assurance that the O.P. No. 3 would provide copies of the same, shortly. The O.P. No. 3 also submitted that the O.Ps were ready to sanction the loan amount of Rs. 61,00,000/-(Rupees Sixty One Lakh Only), subject to mortgaging the original Title Deed with the O.Ps. and the loan would be sanctioned by the O.Ps. No.1 & 2, being the higher authorities of the O.P. No. 3. But after the passing of two (2) months i.e. March & April 2019, the O.Ps., were yet to sanction the loan and were only giving false assurances to the complainant.

The complainant being frustrated by the assurances of the O.P. No. 3 and being in urgent need of emergency working capital, approached another Financial Institution, namely Capital First Finance Company, Sevoke Road, Siliguri.  The complainant already had a loan account with the later company and who proposed to enhance the complainant’s existing loan amount from Rs. 23,00,000/- (Rupees Twenty Three Lakh Only) to Rs. 50,00,000/- (Rupees Fifty Lakh Only) on 16.05.2019. Consequently the complainant visited the office of O.P. No.3, in the last week of May 2019 and intimated to O.P. No. 3 that the complainant had no requirement for the loan, applied to the O.Ps. and requested O.P. No. 3 to return all his documents and blank cheques, which were in the custody of O.P. No. 3. The O.P. No. 3 requested the complainant to visit after a few days. Surprisingly the complainant received a text message on 3^rd June 2019, from the O.Ps., showing that another Application I.D. being no. 5149031, had been allotted to the complainant. On 4^th June 2019 the complainant received a notification from O.P. No. 4 Bank, than an amount Rs. 28901/- ( Rupees Twenty Eight Thousand Nine Hundred One Only) had been debited from his Bank Account in favour of the O.Ps. The complainant immediately contacted Mr. Samrat Saha, the Manager of O.P. No. 3, to enquire about the illegal deduction and he was informed by the O.P. No. 3 Manager, that the amount had been deducted as E.M.I., towards the loan. The complainant requested the O.P. No. 3 over phone as well as by visiting the office for refund of the deducted E.M.I., but the O.P. No. 3, intimated that the deducted amount could not be refunded. On 17.06.2019 at 6.07 p.m. the complainant received an email from the email I.D.

On receipt of the notice O.P. No. 3 threatened the complainant with dire consequences, on phone. On 27.06.2019 at 07.12 p.m., the complainant received a mail from Samrat Saha, Manager of O.P. No. 3, asking for conformation as without the complainant’s conformation, the O.P. No. 3 was unable to cancel the deal. The complainant on 27.06.2019 at 07.59 p.m. replied to the earlier mail asking the O.P. not to harass him, as he had intimated verbally when he had visited the office of O.P. No. 3, in the last week of May, 2019. The complainant had not been issued any sanction letter nor had he been given any amount from the O.Ps., toward the loan. The complainant had then lodged a complaint before the Bhaktinagar P.S., but the Bhaktinagar P.S. did not receive the complaint and took the complainant along with police officials on 02.07.2019 and when to the office of O.P. No. 3. On 04.07.2019 the complainant received another notification that a sum of Rs. 28901/- ( Rupees Twenty Eight Thousand Nine Hundred One Only) had been credited in the O.Ps. Account, from the account of the complainant. It was thus, evident that without the sanction of loan in favour of the complainant, the O.Ps. had been fraudulently and with malafide intention, deducted an amount of Rs. 28901/- ( Rupees Twenty Eight Thousand Nine Hundred One Only), from the complainant’s account. Moreover, unless the Original Deed of Mortgage is deposited, no Finance Company would disburse the loan amount.

The complainant had provided the document and cheques, being satisfied with the assurances and trust, but the O.Ps., had deducted a huge amount of Rs. 57,802/- ( Rupees Fifty Seven Thousand Eight Hundred Two Only) illegally. As the O.Ps. failed to return the above amount the complainant finding no option, filed this instant case. Hence this case.

    The O.P. No. 1, 2 & 3 have appeared to contest the claims made by the complainant by filing a Written Version. In the said Written Version they have stated, that the complainant had applied for a Loan Against Property Loan (L.A.P.), amounting to Rs. 85,00,000/-(Rupees Eighty Five Lakh Only) and not Rs. 65,00,000/-(Rupees Sixty Five Lakh Only) as claimed by the complainant. It is further contended that the Opposite Parties did not delay the loan process, but it was the complainant who showed least interest, to complete the loan process. The email dt. 17.06.2019 is a testimony to the above contention. The formalities with regard to the sanction of the above loan was almost ready, but could not be completed as the complainant failed to provide the documents. Moreover, the complainant failed to intimate the O.P. No. 1,2 & 3 with regard to the enhancement of the loan amount from Capital First Finance Company. On the contrary, the complainant served a legal notice to the O.Ps., after which they requested the complainant to hand over the cancelled cheque, but the complainant failed to do so. Even then on 3^rd September 2019, the refund amount through Demand Draft Bearing No. 591545 dt. 03.09.2019 for an amount of Rs. 61656/- (Rupees Sixty One Thousand Six Hundred Fifty Six Only) had been prepared, in the name of the complainant and he had been asked to collect the same. Therefore, no deficiency in service had been committed, nor any unfair trade practice.

As the O.P. No. 4 did not appear the case was heard ex-parte against O.P. No. 4.

Ld. Lawyer for the complainant at the time of argument had submitted that though initially a sum of Rs. 65,00,000/-(Rupees Sixty Five Lakh Only) had been applied as a mortgage loan, but ultimately the loan did not materialize, the complainant have no longer requirement of the loan and had intimated the same, but installment amounting to Rs. 28901/- ( Rupees Twenty Eight Thousand Nine Hundred One Only) had been deducted, on 4^th June 2019. In spite of making several representations, the O.P. No. 3 intimated that the deducted E.M.I. could not be refunded. The complainant even submitted on 17.06.2019, 18.06.2019, 19.06.2019 and 24.06.2019 with regard to the non-requirement of the above loan, but the complainant still kept receiving mails to complete the process and provide documents. Even after issuance of the legal notice dt. 25.06.2019, the complainant received mail from O.P. No. 3 asking for conformation for further process, without which the O.P. No. 3 would be unable to cancel the deal. Even after replying the same the O.Ps. debited Rs. 28901/- ( Rupees Twenty Eight Thousand Nine Hundred One Only) on 04.07.2019. The contention of the Ld. Lawyer for the complainant is that, is even without submission of the Original Sale Deed and other documents, the E.M.I. from the complainant’s account, was being deducted without the actual loan being sanctioned. The O.P. therefore, has acted recklessly, carelessly and in a negligent manner and violated the guidelines from the R.B.I. She has therefore, prayed for granting of the prayers, made in the complaint.

   Ld. Lawyer for the O.P. Nos. 1, 2 & 3 has argued that the complainant had lodged this complaint on the basis of false allegation in as much as the loan applied was for a sum of Rs.  Rs. 85,00,000/-(Rupees Eighty Five Lakh Only) and not Rs. 65,00,000/-(Rupees Sixty Five Lakh Only) as stated. That apart, even though the loan had been sanctioned, but the complainant failed to deposit the necessary documents on numerous occasions, causing unnecessary delay. Ld. Lawyer has further assailed on the ground that the case was bad for non-joinder of parties. He has further argued that the Commission did not have any pecuniary jurisdiction to entertain this dispute. Moreover, the withdrawal amount had already been prepared through a Demand Draft, but the complainant failed to collect the same. He has relied in the Judgements passed in Ludhiana Improvement Trust, Ludhiana and another - Vs- Shakti Co- Operative House Building Society Ltd. reported in (2009) 12 SCC 369/ II (2009) CPJ 40 (SC),  in SJS Business Enterprise (P) Ltd. Vs State of Bihar & Others reported in (2004) 7 SCC 166, in MCD Vs State of Delhi and & Others reported in 2005 SCC (Cri) 1322,  in K.D. Sharma V. Steel Authority of India Ltd. & Ors reported in (2008) 12SCC481,  in Dalip Singh Vs. State of U.P. and others reported in (2010) 2 SCC 114 and Ambrish Kumar Shukla -Vs- Ferrous Infrastructure Pvt. Ltd. Before the  Hon’ble National Consumer Disputes Redressal Commission (2017) 1 CPJ 1.

At the very outset, the Ld. Lawyer for the O.Ps.  have challenged the maintainability of the case on the ground that the Commission did not have the pecuniary jurisdiction, needs to be decided. The same had already been raised earlier during the pendency of the case and Vide Order No. 10 dt. 10.01.2020, when the prayer had been rejected.  No appeal had been preferred against the above order and therefore, the same stands. In any case the Law has been clearly laid down in Ambrish Kumar Shukla -Vs- Ferrous Infrastructure Pvt. Ltd. Before the  Hon’ble National Consumer Disputes Redressal Commission (2017) 1 CPJ 1, as, “It is evident from a bare perusal of Section 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods and services and the compensation, if any, claimed which determined the pecuniary jurisdiction of the Consumer Forum”.  Hence, when the amount claimed in the instant case, is clearly within the jurisdiction of the Commission, the contention of the Ld. Lawyer on this ground therefore, fails.

With regard to the contention of the Ld. Lawyer, that the instant case is bad for non-joinder of parties, it can be stated that the specific action of deducting the installments amounting to Rs. 28901/- ( Rupees Twenty Eight Thousand Nine Hundred One Only) on two (2) occasion by the O.Ps., without the loan being sanctioned, resulted in the arising of the cause of action. Therefore, when the entire case arose on the action of the O.Ps, the question of involvement of the third party does not arise, and therefore, the necessity of the addition of any third party does not arise. This contention of the O.Ps. also fails.

The complainant’s case is that the complainant had applied for a loan and the acknowledgement for the loan had been received on 5^th April 2019 vide Annexure-A of the complainant, where as the O.Ps’ contention is that, the complainant had filed for loan application on 26.03.2019 vide Annexures- A, B & C of the O.P.s . The contention of the complainant is that the O.P.s failed to act upon the said application, following which the complainant was uninterested in pursuing with the loan application, with the O.Ps. The Annexures- A, B, C & D which are emails dated 17^th June 2019, 18^th June 2019 and 19^th June 2019, clearly goes to show that the loan had not been sanctioned. Moreover, Annexure-E dt. 24.06.2019 also shows that the complainant did not intend to pursue with the loan and therefore, had prayed for cancellation, during his visit to the O.P’s offices. Therefore, from the above mails it becomes clear that the O.Ps had failed to sanction the loan nor is there any evidence to show, that they had earnestly tried to sanction the loan within a short period, after the loan application had been made on 26.03.2019. Therefore, the contention that the failure of the O.P.s in sanctioning the loan within a short period, had prompted the complainant to opt out, from the said loan, appears to be in consonance with the complainant’s case. In this regard the principles percolating from the Judgements passed in in SJS Business Enterprise (P) Ltd. Vs State of Bihar & Others reported in (2004) 7 SCC 166, in MCD Vs State of Delhi and & Others reported in 2005 SCC (Cri) 1322,  in K.D. Sharma V. Steel Authority of India Ltd. & Ors reported in (2008) 12SCC481,  in Dalip Singh Vs. State of U.P. and others reported in (2010) 2 SCC 114, also do not come to the rescue of the O.P.s In any case, the deviation of the facts in the complaint’s case can not be said to of material one.

Therefore, once that decision was conveyed to the O.P.s and which appears to be admitted vide mails dt. 24.06.2019 Annexure-E, the O.P.s’ action of deducting the E.M.I.s from the complainant’s account and not refunding the same in spite of service of legal notice Annexure-F, thus, appears to be not only deficiency of service, but also of unfair trade practices. The  attempt of the O.P.s to return the deducted E.M.I.s, also do not appear to be helpful to the OPs, contention and appears to be a feeble attempt and a motivated one, as the demand draft was made on 03/09/2019, which is well after the filing of this case.

As a result the instant case succeeds. And the O.P.s are liable to refund Rs. 57,802/- ( Rupees Fifty Seven Thousand Eight Hundred Two Only) along with Rs. 20,000/-(Rupees Twenty Thousand Only) as compensation on account of mental pain and agony and Rs. 5000/-( Rupees Five Thousand Only) towards litigation costs and Rs. 10,000/-( Rupees Ten Thousand Only)  towards Legal Aid Fund Account.

It is therefore,                                                                                                       

O R D E R E D

That the case be and the same is allowed on contest against the O.P. Nos. 1,  2 & 3 and dismissed ex-parte against O.P. No. 4.

O.P. Nos. 1,  2 & 3 are jointly and severally directed to refund Rs. 57,802/- ( Rupees Fifty Seven Thousand Eight Hundred Two Only) along with Rs. 20,000/-(Rupees Twenty Thousand Only) as compensation on account of mental pain and agony and Rs. 5000/-( Rupees Five Thousand Only) towards litigation costs and Rs. 10,000/-( Rupees Ten Thousand Only)  towards Legal Aid Fund Account.

 The above amounts shall carry an interest @ 8 % p.a. till the date of payment.

Copies of the Judgement/ Final Order be handed over to the parties free of cost.