THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.158 of 2016

Date of Instt. 05.04.2016

Date of Decision: 20.03.2018

1. Raj Kumar S/o Sh. Karnail Chand, R/o Preet Nagar, Street No.3, Kapurthala.

2. Manjit Kaur W/o Sh. Raj Kumar S/o Sh. Karnail Chand, R/o Preet Nagar, Street No.3, Kapurthala.

..........Complainants

Versus

1. HDFC Bank Limited, 136, New Jawahar Nagar, Cool Road, Jalandhar.

2. Zonal Office HDFC, SCO No.153-155, Sector 8-C, Madya Marg, Chandigarh.

3. Head Office HDFC House, HT, Parekh Marg, 165/166, Backbay Reclamation, Chruch Gate, Mumbari.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Rajat Chopra, Adv Counsel for the Complainants.

Sh. Manu Jindal, Adv Counsel for the OP No.1 to 3.

Order

Karnail Singh (President)

1. This complaint is filed by the complainants, wherein stated that the complainants No.1 and 2 are husband and wife and they are permanent resident of Preet Nagar, Street No.3, Kapurthala. The complainants for better facility and better study for their children decided to shift from Kapurthala to Patiala for which they intended to purchase a plot and thereby to raise construction thereon. As per advertisement in the newspaper given by the Patiala Development Authority in 2006, the complainants applied for a residential plot of 299 Sq. Yards at PDA OMAXE CITY, Sirhind Road, Patiala in 2008. The complainants were allotted a residential plot in the year 2008 in the draw of plots. After the successful draw, the HDFC officials approached the complainants and offered to sanction a loan for the said plot. The complainants admitted the proposal of HDFC officials and signed the blank documents. Accordingly, a loan of Rs.11,50,000/- was sanctioned in April, 2008 by the OP No.1 by way of loan account No.564-918344. This loan was payable by the complainants in 15 years in equally monthly installments of Rs.12,713/- commencing from May 2008. These monthly installments were regularly paid by the complainants.

2. That the complainants being un-able to bear the burden of interest accruing on the said loan amount, decided to pay and clear the said loan amount from the OP No.1. The complainant and his wife both are government employees. They withdraw the amount from their saving accounts, encashed fixed deposits, sold their gold jewelry and also withdraw the amount from GPF account and the complainants also borrowed some amount from relatives, as such, the complainants managed to deposit the amount with the OP No.1 on 24.04.2014. The OP No.1 has also recovered an amount of Rs.22,665/- as pre-closure/pre-payment charges. These pre-closure/pre-payment charges were never brought to the notice of the complainants at the time of advancing the aforesaid loan and it against law and guidelines of Reserve Bank of India issued to all financial institutions. The complainants were threatened by the officials of HDFC that in case you will not deposit the pre-closure/prepayment charges, their loan account will not be cleared and Rs.22,665/- will remain due. The complainants also filed a complaint pertaining to this vide registered letter dated 27.06.2015, but they did not address the complaint of the complainant. The complainants were forced to make the said pre-closure/pre-payment charges under duress, but the aforesaid amount claimed by the OP No.1 is illegal, void and against the basic norms and guidelines of the RBI. As per the instructions of the RBI Circular No.RPCD CO RCBD BC No.84/03.03.01/2011-2012 dated 15.06.2012, vide which it has directed to the financial institutions for not charging any type of pre-closure/pre-payment charges. The complainants have been harassed by the OP without any reason and has caused great financial loss due to which the complainants suffered great mental tension and agony, as such, the complainants are entitled for damages and compensation as well as litigation expenses and hence, the present complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund a sum of Rs.22,665/- to the complainants alongwith interest @ 18% per annum from the date when the OP got deposited the same from the complainants till actually payment. They be also directed to pay a sum of Rs.50,000/- on account of mental and physical agony and harassment at the hands of the OP.

3. Notice of the complaint was given to the OPs and accordingly, all the OPs appeared and filed their joint reply and contested the complaint by taking preliminary objections that the allegation of the complainants is based upon fallible grounds, in as much as, as per the circular issued by the National Housing Bank on 26.09.2011, loans for purchase of plots are to be classified as housing loans provided the loanee raised construction over the plot within three years from the date of disbursement of the loan. The circular dated 19.10.2011 as relied upon by the complainant, clearly envisage benefit of waiving prepayment charges only in case of housing loans. A copy of the circular dated 26.09.2011 is annexed herewith and further averred that in this regard reference would also be necessary to the Master Circular dated 01.07.2013 issued by the Reserve Bank of India and copy thereof is also attached and further alleged that in the absence of any construction, the loan availed by the complainant cannot be termed as Housing Loan. It is submitted that during personal meetings with the complainants, this fact was made clear to them and they had agreed to pay prepayment charges, but at this stage, chose not to disclose it before this Forum. The complainants admittedly availed a loan for purchase of a plot. Further, it is a matter of record that till date they have not raised any construction over the said plot. In view of the guidelines issued by the Reserve Bank of India and National Housing Bank, the complainant cannot be granted benefits of a housing loan. The loan availed by the complainants cannot be termed as “Housing Loan”. It is further alleged that as per settled law that Courts would never re-write or alter the terms and conditions of a validly executed contract. It is not even the suggested case of complainant that he did not execute the loan agreement and the said agreement is void or voidable in law. In the loan agreement, the complainants gave an unequivocal undertaking that in case the loan amount is pre-paid, they shall pay pre-payment charges as may be determined by HDFC Ltd on the basis of its policy/rules. On merits, the factum in regard to getting a loan as well as making payment of the same is admitted by the OP, but it is alleged that the said loan was raised by the complainant for purchase of the plot not for housing loan. The other averments made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

4. In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Ex.C-1 to Ex.C-10 and then closed the evidence.

5. Similarly, counsel for the OP No.1 to 3 tendered into evidence affidavit Ex.O-1 along with documents Ex.O-2 to Ex.O-7 and closed the evidence.

6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

7. In order to establish the allegations as made in the complaint, the complainant has brought on the file his own affidavit Ex.CW1/A, whereby reiterated the entire factum as detailed in the complaint and further proved on the file an application Ex.C-1, whereby he sought some information from the OP through RTI, but the said information was never supplied by the OP as per version of the complainant and further complainant proved on the file Allotment Letter Ex.C-2 and Complaints made to the OP i.e. Ex.C-3 and Ex.C-4 and Certificate issued by the OP is Ex.C-5 and pre-payment charges obtained from the complainant is shown in the letter Ex.C-6. The complainant also produced on the file certain circulars of the RBI i.e. Ex.C-7 to Ex.C-10. The case of the complainant in nutshell is only that the loan obtained by the complainant for purchase of plot is paid along with interest, but the OP had illegally pre-closure/pre-payment charges were taken from the complainants, which are against the rule and regulation as well as circular of the RBI.

8. On the other hand, the case of the complainant is defused by the OPs, simply on the ground that the loan obtained by the complainant is not for house rather it is for purchase of the plot, regarding that the OP has brought on the file photostat copy of Loan Application Form submitted by the complainant, which is Ex.O-5 and in this Form, the type of loan is mentioned as Land Purchase Loan and further OP also brought on the file photostat copy of Agreement Ex.O6 and an other document produced on the file by the OP is Master Circular and Housing Finance issued by the RBI, which is Ex.O-3 dated 01.07.2013 and on the basis of the said letter, the OP alleged that the guidelines and instructions have been very well incorporated by the RBI and as per RBI Instructions, the borrower is not liable to pay pre-closure and prepayment charges, but if the loan is not for house loan, then said charges is liable to be paid by the borrower and similarly, we consider the case of the complainant in the light of above submission of the OPs and find that the loan obtained by the complainant is not for a house rather it is clearly mentioned in the Loan Application Form Ex.O-5 that it is a loan for the purchase of land. Apart from that the complainants themselves described in the complaint in para No.2 that they raised a loan of Rs.11,50,000/- for the purchase of the plot. So, further evidence is not required to adjudge when the loan was obtained by the complainants for purchase of plot or house rather it is clearly established from the pleading of the complaint that the loan was raised for the purchase of plot, if so then, as per circular produced by the complainants themselves Ex.C-7 to Ex.C-10 itself described that the bank will not be permitted to charge foreclosure charges/prepayment penalty on home loans, the home loan is very much incorporated in all the circulars proved on the file by the complainants themselves, so, it means that the said circulars are not helpful to the complainant because the loan of the complainant is not a home loan rather the same is a loan for purchase of plot and thus, we come to conclusion that the OP has rightly obtained the foreclosure charges from the complainants.

9. Apart from above, we are of the considered opinion that the complainants themselves deposited the pre-closure/prepayment charges without any protest, if so then, they are not allowed to later on challenge the said deposit or any loan. If the complainants deposited the said amount under protest, then they can challenge. So, from this angle, the complaint of the complainant is also not maintainable. So, with these observations, we are of the opinion that there are no substances in the argument put forth by the learned counsel for the complainant, therefore, the complaint of the complainant is dismissed with no order of cost. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.

10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

20.03.2018 Member President