ORDER

22.03.2024

Ms. Nipur Chandna, Member

1. In brief facts of the present case are that complainant had taken housing loan on 03.03.2006 and 16.03.2006 from OP vide loan A/c No. GDGL00004692 of Rs.15,72,000/- for 192 months and GDGL00004829 of Rs.4,28,000/- for 192 months total amounting to Rs.20,00,000/- (Twenty Lac Only), on 24.02.2006, on 2% below GE money floating reference rate on monthly reducing balance, which was 8.75% p.a. on 24.02.2006. It is further stated that the processing fee including service tax of Rs.12,359/- (Rs. Twelve Thousand Three Hundred Fifty Nine Only), was duly paid to the OP by the complainant.
2. It is stated that the complainant purchased the residential property at 249, Block ‘E’, consisting of a part of Second floor (Right Side), alongwith roof right, situated at Naraina Vihar, New Delhi-110028, by virtue of Regd. Sale Deed as Regd. No.3,283, Book No. I, Volume No.2692, Pages 173 to 180, dated 09.03.2006, before the Sub-Registrar, Delhi. It is further stated that the OP sent a statement dated 23.03.2006, stating that the rate of interest is 6.49% per annum. Whereas the statement dated: 14.11.2009 show the rate of interest at 12.36% per annum.
3. It is stated that in the month of November and December, 2009, the complainant requested the OP  to  foreclose her account which at that time was showing an outstanding principle amount of Rs.15,20,007/-.  The OP debited unauthorisedly and arbitrarily, complainant’s account with differential interest without due notice to the complainant. Whereas  at the time of sanction of loan the OP, allowed the complainant special offer on interest of 2% below GE money floating reference rate. This special rate of 2% below the floating rate was to continue during the pendency of the loan also which the OP have arbitrarily withdrawn again without any notice, the complainant after being mislead by the OP, decided to settle her account with the OP. The OP without any justification charged her with Rs.33,592.16 towards  prepayment charges and Rs.1,40,154.26 as overdue interest @ 16.75% in loan A/c no. GDGL00004692 and Rs.18,250.36 repayment charges and Rs.38,186.48 as  overdue interest @ 16.75% in loan account no.GDGL00004829.The letters of the OP  dated 15.12.2009 and 18.12.2009 wherein they have stated that the  account of the complainant is  in arrears, is completely false and misleading. The OP in order to penalize the complainant have arbitrarily and unilaterally charged  @ 16.75% per annum, whereas the OP have charged 12.36%. This 12.36%, is  the actual rate of interest which is to be levied and then 2% discount is to be allowed on the same, which the OP had promised at the time of sanction of the loan.
4. It is stated that the complainant through her counsel, issued notice on 02.02.2010. It is stated that a consumer dispute arises for the fact that, the  Respondent/Opposite Parties have not provided the services as widely publicized, agreed and promised to the complainants i.e which amounts to deficiency in service.
5. The complainant is seeking direction to OP to reimburse the amount i.e Rs.2,30,183.26 plus 2% discount which  the OP has not accounted for as  differential interest offered plus interest @ 24% p.a till the date of  payment of the claim, to pay Rs.1,00,000/- (Rs. One Lac Only), on account of harassment, mental torture and the public humiliation of having to live in a rented premises beyond the agreed period of time, to pay Rs.55,000/- (Rs. Fifty Five Thousand Only), on account of advocate fee and litigation charges and any other further order which deems fit and  proper, hence, this complaint.
6. OP filed detailed WS and taken preliminary objections that the. The allegations leveled against the OP in the present complaint are false and baseless, which are prima-facie not maintainable and as such the complaint is liable to be rejected in limine. It is further stated that the complainant is in need of financial facility for home loan of Rs.20 lacs against the mortgage of property. After processing the loan application of the complainant as per the procedure and policy OP company, complainant was found to be eligible for the loan of Rs.20 lacs as applied for. Therefore, loan sanctioned letter dated 24.02.2006 was issued by the OP  company to the complainant. In terms of said sanction letter home loan of Rs.20 lacs was sanctioned to the complainant at floating interest rate of 8.75% (being a special offer). It  is  pertinent to mention herein that the said  sanction letter was subject to the terms and conditions mentioned therein.
7. It is stated that the clause 11 of Terms and conditions  of said sanction letter categorically mentioned  that all the terms and conditions of the sanction letter were subject  to the loan agreement and other documents and writings and same shall prevail over  the terms  and conditions contained in said sanction letter. The said clause is:

“All the terms and conditions mentioned in this letter are subject to the execution of a loan agreement and other documents and writings as GEMHF may specify in its prescribed formats. The Loan agreement and other documents and writingsmay/will contains termsin addition to or in modification of those set out in this letter and the terms and conditions of the Loan agreement and/or other documents shall prevail over the terms and conditions contained in this letter”.

8. It is stated that at the  time of the loan the complainant were informed that though as per their  credibility they are entitled to housing loan for  a sum of Rs.20,00,000/-, however the same cannot be disbursed under the home loan category alone, the complainant then requested the respondent company for  disbursal of Rs.15,72,000/- as Home Loan and Rs.4,28,000/- as Home top up  loan, which was permitted under  the  policy of the company. It is further stated that accordingly  two agreements were executed between the parties for  Rs.15,72,000/- and Rs.4,28,000/- respectively containing all the terms and conditions with  respect to said loan facilities. It is stated that even though sanction letter contained that home loan of Rs.20 lacs has been sanctioned, however after communication and settlement between the parties the said loan amount was split into two as Home loan and top up loan and pursuant to same two loan agreements were executed, terms of which  shall prevail over the sanction letter.
9. It is stated that at the time of disbursal of the loan facilities the rate of interest was charged on both the loan accounts as per the loan agreements executed between the parties i.e 10.25%. However, since the rate of interest was floating, in terms of loan agreements, same were increased from time to time, which were duly informed to the complainant.
10. It is stated that in view of the aforesaid facts, it is crystal clear that the complaint filed by the complainant is false, frivolous and baseless and devoid of any merit; rather same is abuse of process of law. Hence the complaint is liable to be dismissed with exemplary costs. On merit all the allegations made in the complaint are denied by OP and reiterated contents of the preliminary objections It is further stated that as there is no deficiency in the services provided by the OP company, therefore present complaint is liable to be dismissed with exemplary costs.
11. Complainant filed rejoinder and denied all the allegations made in the WS and reiterated contents of the complaint.
12. Complainant filed evidence by way of her affidavit and reiterated contents of the complaint. Complainant relied on copy of loan sanctioned letter dated 24.02.2006 Ex.C-1/A, copy of loan no.4692 Ex.C-1/B, copy of loan no.4829 Ex.C-1/C, copy of sale deed Ex.C-1/D, copy of statement dated 23.03.2006 Ex.C-1/E, copies of statement of loan nos. 4692 and 4829 Ex.C-1/F and Ex.C-1/G, copy of letter for  the month of November and December 2009 Ex.C-1/H, copy of letter dated 15.12.2009 Ex.C-1/I, copy of legal notice Ex.C-1/J and original postal receipts Ex.C-1/K.
13. OP filed evidence by way of affidavit of Sh. Rohit Pathak, Attorney of OP company and reiterated contents of WS. OP relied on copies of request letter Ex.R/1 and Ex.R/2 respectively, copy of home loan agreements Ex.R/3 and Ex.R/4 respectively and copies of loan account ledgers with respect to both loan account Ex.R/5 and Ex.R/6
14. Written arguments filed by complainant as well as by OP.
15. We have heard the arguments advance at the bar by Ld. Counsel for complainant Sh. Anand Dubey. Despite opportunity OP failed to address the arguments.
16. It is argued on behalf of complainant that the OP had arbitrarily charged the prepayment charges as well as the arrears of interest without issuing any notice to the complainant at the time of foreclosure of the home loan in question. This act of OP squarely covered under the definition of deficiency in service, hence, complainant is entitled for the relief claim.
17. We have perused the record and found that vide sanctioned letter dated 24.02.2006 a home loan for a sum of Rs. 20 Lakh sanctioned in favor of the complainant. The type of interest charge is floating and the current rate of interest at the time of loan sanctioned was 10.75% on monthly reducing balance whereas as per the special offer provided to the complainant to the OP, OP has charged interest @ 8.75% on monthly reducing balance. As per the sanctioned letter two loans were disbursed to the complainant one for the Rs. 15,72,000/- and 2^nd the top up loan of Rs. 4,28,000/- in favor of the complainant. As the rate of interest on the home loan in question is floating one earlier the complainant has been charged @ 6.49% as per the statement dated 23.03.2006 and thereafter OP has charged the rate of interest @ 12.36% as per statement dated 14.11.2009.
18. The complainant has averred in her complaint that vide letter dated 22.12.2009 she paid the prepayment charges as well as the differential interest to the OP under protest while foreclosing the home loan in question, hence, she is entitled for the refund of the prepayment charges as well as differential interest arbitrarily charged by OP.

On the contrary it is stated by OP in its written statement that the prepayment charges as well as the differential interest was charged by OP as per the loan agreement signed between the parties.

19. We have gone through the copy of the loan agreement placed on record by OP. As per clause 2.7 (I) which reads as under:-

“the company may in its sole discretion and on such terms as to the prepayment charges as stated in serialno.11 of schedule i permits prepayment or foreclosure in payment of the EMIs at the request of borrower”.

“As per clause 2.7 (iv) the prepayment charges will not be waived by the companyunder any circumstances the above charges may be revised by the company at its sole discretion and without notice to the borrower and borrower shall be bound to pay the revised charges upon the foreclosure of the loan”.

20. The bare perusal of the aforesaid clause 2.7 of loan agreement signed by both the parties makes it clear that it is the sole discretion of the OP company to charge prepayment charges on foreclosure of the loan, hence, the complainant is not entitle for the refund of the prepayment charges as alleged by her in her complaint. The prepayment charges was collected by OP as per the terms of the loan agreement agreed between the parties, hence, justified.
21. The complainant has alleged in her complaint that OP had arbitrarily charged differential interest at the time of foreclosure. She requested that as per the loan agreement OP is bound to send notice to her in respect of the change in interest, hence, she is entitle for refund of the differential interest paid by her.
22. Admittedly, the home loan granted to the complainant on floating interest, hence, as per the loan agreement the interest component will vary as per the RBI guidelines, hence, complainant is liable to pay the differential interest as per the terms of loan agreement agreed between the parties. The clause 2.8 of home loan agreement speaks about the intimation of the change in interest, charges etc. The relevant contents of the Clause 2.8 are reproduced as under:-

“The company undertakes to inform the borrowing in writing of any change in interest, charges or any other additional payments required to be made by the borrower in terms of this agreement.However, any such a change would be effective with or without notice to the borrower and borrower undertakes to be bound with the same”.

23. The bare perusal of the aforesaid clause on the one hand bound the OP company to issue notice to the borrower before making any changes in the interest component, however, thereafter gave liberty to the bank to make the changes without intimating the changes of interest to the borrower and borrower is bound to pay the same.
24. Admittedly, in the present complaint, complainant has paid the differential interest to the OP at the time of foreclosure but OP had not intimated to the complainant regarding the change in interest at any point of time as per the loan agreement, hence, in our view since the borrower has honor 2.8 clause of the loan agreement and make the payment of differential interest, she is entitle for compensation from OP for non intimation of change in interest by OP as per the agreement agreed between the parties.
25. In view of the above discussion we partly allowed the complaint of the complainant thereby holding OP guilty of deficiency in service and directing it to pay a sum of Rs. 30,000/- on account of deficiency in service. With the above observation present complaint stands disposed off.     
26. OP is directed to comply the order within 30 days from the date of receipt of this order failing which OP is liable to pay to the complainant interest @9% per annum from the date of non-compliance till realization.
27. File be consigned to record room.
28. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  22.03.2024.

SANJAY KUMAR                                       NIPUR CHANDNA                

                          PRESIDENT                                                 MEMBER