PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        The case of the Complainants against the Opposite Party in short is as under -

            The Complainants had borrowed the housing loan of Rs.19,07,000/- from the Opposite Party.  As per Clause No.2.8 of the loan agreement dtd.23/01/2002 executed between the parties the borrower shall be entitled to prepay the loan, either partly or fully and no prepayment charges shall be payable to the Opposite Party.  The copy of the said agreement is at annexure ‘C1’.  The Complainant No.1 is represented by his power of attorney holder Mr. Marri Ramchandra Rao.  The copy of the said power attorney is at Exh. ‘C2’.

 2)        According to the Complainants, they had borrowed the housing loan from the Opposite Party to purchase flat no.904, Raj Heritage Tower Co-op. Housing Soc. Ltd. Laxman Mhatre Rd., Borivali (E), Mumbai–103. The Complainants agreed to sale, transfer and assign the said flat to Mr. Ashish Ajeet Shah and Mrs. Reshma Ajeet Shah alongwith all rights, title and interest for a total consideration of Rs.22,50,000/- as per agreement dtd.02/11/04 with prior consent of the Opposite Party.  It is alleged that the Complainants crave leave to refer and rely upon the said agreement when required. According to the Complainant, it was agreed by the Opposite Party to transfer the balance loan amount then outstanding to the Home Loan Account No.1430482 of Mr. Ashish Ajeet Shah and accordingly the Opposite Party issued letter copy of which is marked at annexure ‘C3’. 

3)        It is submitted that the Complainants have cleared all the dues of Raj Heritage Tower CHS. and obtained no dues and no objection certificate from the said society which is marked as annexure ‘C4’.  It is the case of the Complainants that after completing all procedures and formalities the Opposite Party issued cheque bearing No.416220 dtd.11/07/04 for Rs.2,53,273/- as the balance amount due to the Complainants copy of which is marked as annexure ‘C5’. According to the Complainant, on going through the calculations the auditors of the Complainants realized that the Opposite Party had overcharged the account of the Complainants and they called clarification from the Opposite Party as per the copies of the letters marked as annexure ‘C6’.  Collectively, dtd.10/02/05, 07/06/05 to which the Opposite Party replied vide letter dtd.14/03/05 and 19/07/05 wherein it was confirmed that the loan balance was as on 30/06/04 was Rs.16,93,735/-, however, in the said letter the Opposite Party contradicted their own statement saying that EMI’s outstanding were Rs.1,53,814/- without giving any details such as the period/month for which the alleged EMI was due, penal interest and incident charges Rs.27,463/- and simple interest for six days in July, 2004 at Rs.2,715/-.  The copy of the said letter is annexure ‘C7’ addressed to the Chartered accountant of the Complainant M/s. GVN Hari & Co. 

4)        According to the Complainants, there was no outstanding EMI and the same is falsely alleged by the Opposite Party.  The Complainants therefore, sent a notice to through their Advocate Shri. K.M. Jhon to refund the excess amount recovered alongwith interest @ 18% p.a. from the date of closer of loan account till its realization.  The copy of the said notice dtd.01/11/05 is annexure ‘C8’.  According to the Complainants they have worked out the complete details of EMI paid by them.  According to which the balance amount due and payable by the Opposite Party works out Rs.4,34,550/- and after adjusting the amount of Rs.2,53,273/- already paid as balance amount to the Complainant, the Opposite Party is liable to pay remaining amount of Rs.1,81,277/-.  The copy of said statement is marked as annexure ‘C9’.   

5)        The Complainant submitted that inspite of their repeated request the Opposite Party has not paid an amount of Rs.1,81,277/- alongwith interest and failed and neglected to furnish the correct status of the loan account and has thus, recovered excess amount from the Complainants. It is submitted that the Opposite Party is therefore, liable to refund the said amount with interest @ 18% p.a. from 11/07/2004 till date of realization.  It is submitted that therefore, it be declared that the Opposite Party is guilty of deficiency in service and unfair trade practices as the Complainants are the consumers of the Opposite Party and the Opposite Party has violated the provisions of the Consumer Protection Act, 1986. The Complainants have prayed that they may be granted compensation of Rs.2 Lacs for mental agony and stress suffered by them.  It is also prayed that the Opposite Party be directed to pay Rs.20,000/- towards legal and incidental expenses incurred by the Complainants.   

6)        The Opposite Party contested the claim by its written statement. It is contended that the Complainants have though referred clause No.2.8 of the loan agreement but they have completely ignored the clause 2.7 of the said agreement.  It is contended that the Complainants have made wild allegations presuming that they are charged prepayment charges although no such charges have been levied to that effect. The Opposite Party contended that the Complainants have not approached with clean hands.  They have suppressed the fact that some of their cheques of EMI had bounced and that the said EMI for the bounced cheques had not been made good and on account of these bounced cheques issued for the EMI’s which had remained unpaid had been adjusted by the Opposite Party.  It is denied that there is any deficiency in service on the part of Opposite Party.  It is denied that the Complainants had obtained prior consent of the Opposite Party before agreeing to sale and transfer the rights in the title and interest of their flat with Mr. Ashish A. Shah.  It is contended that the said transaction was concluded and then the Opposite Party was informed.  According to the Opposite Party since the purchasers agreed to take over the loan from where the same was left by the Complainant and continue to keep the flat in question as security by way of mortgage till repayment of the loan so the Opposite Party consented to the transaction which had already been clinched.  It is thus, contended that the aforesaid transaction was not with prior permission as purported by the Complainants.  It is contended that the report relied by the Complainant of their auditors and the calculations therein are based on the information given by the Complainants therefore, the same can be incorrect or incomplete or even untrue.  It is contended that the notice sent by the Complainants have been answered by the Opposite Party and the Complainants have deliberately not disclosed and have in fact made a false statement “that without giving any details” that alongwith the reply of the Opposite Party a detailed statement of account providing information about how the said amount that had become due to the Complainants was calculated was shown in it.  The copy of the said statement alongwith the reply dtd.14/03/05 is annexed as Exh.2 to the written statement.  It is contended that the Complainants have concealed the facts that there have been a number of instances when the EMI cheques issued by the Complainant were bounced which is reflected in the statement annexed Exh.‘D’.  It is contended that as per the terms of clause 2.7 of loan agreement the Complainants were liable to charged interest for that period for the amount under unpaid EMI.  They were also liable to pay penal interest as per the said agreement.  It is thus, submitted that the certificate of the Chartered Accountant below the statement relied by the Complainants is not correct.  It is contended that an entire extract of the loan account of the Complainants form disbursement till payment is marked at Exh.‘B3’ colly.   It is contended that the complaint is filed due to wrong notation and misconceptions  and the same is liable to dismiss there is no deficiency of service or unfair trade practice on the part of the Opposite Party and therefore, the same may be treated as frivolous vexatious, meriting penal implications as provided under Sec.26 of the Consumer Protection Act.        

 7)        The Complainant has filed affidavit in evidence of the constituted attorney of the Complainant No.1 Shri. Marri Ramchadra Rao. The Opposite Party filed affidavit of Ms. Raji Avinash, the Asst. Manager, Operation (Legal) in support of their contentions. Both the parties have filed their written arguments. We heard oral argument of Shri. Bhaskar Yogi, the Ld. Advocate for the Complainants and the Ld.Advocate for the Opposite Party Shri. Tarsem Singh.

 8)        While considering the entitlement regarding the claim made by the Complainant it is necessary to be seen whether the claim made by the Complainant against the Opposite Party is just and proper.  It is also necessary to be seen that whether the Complainants have proved deficiency in service and unfair trade practices against the Opposite Party. While considering the said aspect it is necessary to be considered that in the loan agreement executed between the Complainants and Opposite Party.  As per clause No.2.7 of it the liability agreed by the Complainants for the delayed payment of EMI etc. as under -

 a)  No notice reminder or intimation will be given to the borrower regarding his obligation to pay the EMI or PEMII regularly on due date.  It shall be entirely his responsibility to ensure from and regular payment of EMI or PEMII.

 b) The delay of EMI or PEMII shall render the borrower liable to pay additional interest @ 18% p.a. or at such higher rate as per the rules of HDFC in that behalf as in force from time to time.  In such event, the borrower shall also be liable to pay incidental charges and cost to HDFC. 

 9)        The Complainants have alleged that there were no outstanding EMIs when the loan account of the Complainants was settled by the Opposite Party i.e. on or about 14/07/04. The Complainants have come out with the case that the Opposite Party without giving any reasons such as the period, month for which the alleged EMIs were due has claimed total outstanding against the Complainants to the tune of Rs.18,77,727/- and wrongly paid the remaining amount of Rs.2,53,273/- out of the sanctioned and disbursed amount to Mr. Ashish Shah. Upon considering the documents on the record alongwith the complaint i.e. annexure ‘C7’, it appears that the Complainants have not filed the statement of account which was enclosed for their ready reference for the period April, 2002 till the time the loan was fully settled.  In our view on perusal of the copy of the loan account produced by the Opposite Party at Exh.2 with written statement which appears to have been enclosed with annexure ‘C’ issued to the Chartered Accountant of the Complainant by letter dtd.19/07/05, the total amount was payable by the Complainants was Rs.18,77,727/- and not as claimed by the Complainants. It is the admitted fact that an amount of Rs.21,31,000/- was sanctioned to the flat purchaser of the Complainants Mr. Ashish Shah by the Opposite Party by deducting the total amount payable by the Complainants of Rs.18,77,727/- the Opposite Party in our view has rightly paid the remaining amount of Rs.2,53,273/-. The Opposite Party has shown all the details as to how the Complainants were liable to pay total dues of Rs.18,77,727/- on 11/04/2007 as per the documents filed at Exh.2 and Exh.3 alongwith the written statement.  In the present case the Complainants in our view have suppressed the statement of account which was enclosed with the letter issued by the Opposite Party to the Chartered Accountants of the Complainant dtd.19/07/05 i.e. annexure ‘C7’.  It appears that the Complainants did not bother to go into the details mentioned in the said loan account of their own and come out with some hypothetical calculations prepared by their Chartered Accountants based on the information given by the Complainants themselves. We therefore, hold that the submission made by the Ld.Advocate for the Complainants that the Complainants are entitled to an amount of Rs.1,81,277/- besides the amount already paid by the Opposite Party of Rs.2,53,273/- as claimed in the complaint is totally wrong and improper.  The submission made by the Ld.Adv. for the Opposite Party relying on the observations in the case of Life Insurance Corporation of India V/s. Smt. S. Sindhu, 2006 CTJ 625 (SC) that the Courts and Tribunals cannot re-write contracts and direct payment contrary to the terms of the contract, that too the defaulting party, if taken into consideration, the Complainants are not entitled for the relief claimed in this complaint can be said just and proper. In our view the claim made by the Complainants is based on assumptions and presumptions and same is not supported by any documentary proof.  In our view the Complainants have improperly dragged the Opposite Party for unjust and improper reliefs by filing this complaint and therefore, the Complainants are liable to saddle with costs of Rs.2,000/- to the Opposite Party.  In the result the following order is passed –

O R D E R

i.                    Complaint No.287/2006 is dismissed with cost of Rs2,000/- (Rs. Two Thousand Only) to the Opposite Party.

ii.                 The Complainants to comply with the aforesaid order within 1 month from the receipt of the copy of this order.

iii.               Certified copies of this order be furnished to the parties.