BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 14/10/2009

Date of Order : 29/02/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 552/2009

Between

And

C.C. No. 553/2009

Between

 

And

C O M M O N O R D E R

A. Rajesh, President.

1. After the completion of the evidence of the complainants in the above cases, the opposite parties filed a petition dated 30-12-2010 stating that the evidence adduced on their behalf in C.C. No. 552/2009 may be adopted in C.C. No. 553/2009. Since, the dispute involved in the above complaints are similar and the opposite parties are the same, we are disposing off the above complaints by this common order.

2. The case of the complainants in C.C. No. 552/2009 is as follows :

The complainants availed themselves of a housing loan from the opposite parties for Rs. 56,00,000/- as per sanction letter dated 20-04-2007. As per the brochure of the opposite parties, the loan can be closed at any time without any pre-closure charges. The complainants had been paying the instalments promptly. In view of the high interest rate, the complainants decided to close the loan and in July 2009, they informed the opposite parties to do the same. Accordingly, an amount of Rs. 47,66,850/- was paid towards full and final discharge of the loan. However, as per demand notice dated 05-08-2009, the opposite parties demanded further amount of Rs. 1,05,157/- towards pre-closure charges. The complainants had to collect their original documents and a release certificate from the opposite parties and so they had no other option but to pay the pre-closure charges. The collection of pre-closure charges in spite of the assurances and agreement amounts to unfair trade practice and also amounts to deficiency in service. Thus, the complainants are before us seeking direction against the opposite parties to refund the pre-closure charges that had been collected from the complainants together with a sum of Rs. 10,000/- towards compensation and costs of the proceedings. Hence the complaint.

2. The case of the complainant in C.C. No. 553/2009 is as follows :

The contentions of the complainants in C.C. No. 552/2009 and in this case are no different except regarding the loan amount and the pre-closure charges above.

3. The version of the opposite parties in C.C. No. 552/2009 is as follows :

The complainants availed a loan of Rs. 65,00,000/- from the opposite parties vide sanction letter dated 20-04-2007 to purchase an apartment. As per the agreement dated 15-06-2007, the loan so sanctioned was “Adjustable Rate Home Loan” repayable in 180 equal monthly instalments of Rs. 73,879/- each. The applicable rate of interest was 11.75%. In fact, the loan was granted for the period from 01-07-2007 to 30-06-2022. The complainants have acted contrary to the terms and conditions of the agreement and have chosen to withdraw from the agreement. Though the sanctioned loan was for Rs. 65,00,000/-, the complainant had availed only Rs. 47,66,850/- in July 2009. The complainant approached the opposite parties to get his loan foreclosed. The complainants are liable to pay Rs. 95,337/- together with 10.3% service tax totaling Rs. 1,05,157/- as per clause No. 2.8 in the loan agreement. There is neither unfair trade practice nor deficiency in service on the part of the opposite parties. The opposite parties request to dismiss the complaint.

4. In C.C. No. 553/2009 as well the opposite parties raised the very same contentions in C.C. No. 552/2009.

5. No oral evidence was adduced by the complainants in C.C. No. 552/2009. Exts. A1 to A5 were marked on their side. The witnesses for the opposite parties were examined as DW's 1 to 3 and Exts. B1,B2,X1 and X2 were marked on their side. In C.C. No. 553/2009, no oral evidence was adduced by the complainant necessarily and Exts. A1 to A5 were marked on his side. X1 and X2 also were marked on the side of the opposite parties. Heard the counsel for the parties.

6. The points that came up for consideration are :-

1. Whether the complainants in the above cases are entitled to get refund of the pre-closure charges from the opposite parties?

2. Whether the complainants are entitled to get compensation and costs of the proceedings from the opposite parties?

7. Point No. i. :- Admittedly, the complainants availed a home loan from the opposite parties. It is also not in dispute that the complainants could pre-close the loan accounts for their own reasons. According to the complainants, there was no agreement between the complainants and the opposite parties to collect any charges at the time of pre-closure of the loan accounts. On the contrary, the opposite parties vehemently contended that as per clause 2.8 in the loan agreement, the complainants are liable to pay pre-closure charges to the opposite parties.

8. Clause 2.8 as per Ext. A3 loan agreement reads as follows :

“Prepayment

The borrower shall be entitled to prepay the loan, either partly or fully, as per rules of HDFC, including as to the prepayment charges, for the time being in force in that behalf.”

9. The only question that arises for consideration is whether the opposite parties are entitled to collect pre-closure charges from the complainants? It is pertinent to note that the bank is not supposed to levy pre-closure charges since the bank has not sustained any loss due to the pre-closure of the loan account and no such clause is evidenced in Ext. A1 brochure, which pre-closes the claim of the opposite parties squarely. The Hon'ble Karnataka State Consumer Disputes Redressal Commission in M. Anees. UR. Rehman and Others Vs. Jemmu Kashmir Bank Limited and Others III (2008) CPJ 178, held that it is not appropriate for the bank to collect the pre-closure charges in the event if the borrower had come forward to discharge the loan much earlier to the expiry of the period of loan.

10. It is also to be noted that in Ext. A1 brochure, the opposite parties have not mentioned anything regarding the pre-closure charges which consumer goes to show that they have fallen back on their promise. More pertinently the decision of the Hon'ble State Commission has not been uncontroverted in lieu . In view of the above, we have no hesitation to hold that the acceptance of pre-closure charges from the complainants amounts to deficiency of service, and also to unfair trade practice which this Forum cannot find justifiable. In short, the opposite parties are legally liable to refund the pre-closure charges to the respective complainants together with interest at the rate of 9% p.a. from the date of receipt till realisation for the reasons stated.

11. The opposite parties have produced a few documents which had been marked as Exts. B1, B2, X1 and X2 which relevantly has no significance to the present case for reasons which they have been not taken into account necessarily.

12. Point No. ii. :- Since, interest is been awarded on the pre-closure charges, we feel that a claim for compensation and costs are not uncalled for justice having been met squarely without demur.

13. In the result, we partly allow the complaints and direct as follows :

1. In C.C. No. 552/2009, the opposite parties shall jointly and severally refund the pre-closure charges collected from the complainants to them together with interest at the rate of 9% p.a. from the date of receipt of the amount till payment.

2. In C.C. No. 553/2009, the opposite parties shall jointly and severally refund the pre-closure charges collected from the complainant to them together with interest at the rate of 9% p.a. from the date of receipt of the amount till payment.

The above order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 29^th day of February 2012

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

In C.C. No. 552/2009 :-

Complainant's Exhibits :-

Opposite party's Exhibits :-

In C.C. No. 553/2009 :-

Complainant's Exhibits :-

Opposite party's Exhibits :-

Depositions :: Nil

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