Versus
The Manager, HDFC Bank Limited, Sector-32-A, Chandigarh Road, Ludhiana.
…..Opposite party
Complaint Under section 35 of the Consumer Protection Act, 2020 as amended upto date.
QUORUM:
SH. SANJEEV BATRA, PRESIDENT
SH. JASWINDER SINGH, MEMBER
MS. MONIKA BHAGAT, MEMBER
COUNSEL FOR THE PARTIES:
For complainants : None.
For OPs : Sh.Sarabdeep Singh, Advocate
ORDER
PER SANJEEV BATRA, PRESIDENT
1. In brief, the facts of the case of the complaint are that the complainants had taken the home loan of Rs.35 lacs from the account No.658346256 from the OP on 14.01.2021 with the assurance of OPs that the complainants will be eligible for Pardhanmantri Awaas Yojna Scheme which was launched by the Government of India. The complainants came in the category MIG-II as per details provided by Govt. of India and HDFC Bank Limited and submitted all the documents to Mr.Ayush of officials of OP on 02.02.2021. Thereafter, the complainants approached the OP to send the documents/reference of complainants for approval of Prime Minister subsidies scheme but nothing has been done by the OP. Rather, Op got the signatures of the complainants on some documents with the assurance that they will send the file of the complainants for its approval from the concerned higher authorities. Despite repeated visits made by the complainants with the OP for getting the needful, the officials of OP always showed oblique attitude towards the complainants. Finally, the officials of OP did not accede to the requests of the complainants and refused to send the file of the complainants to concerned department on the ground that the complainants are not eligible for the same. On account of non-sending the file of the complainants by the OPs, the complainant could not get the subsidy amount of Rs.2,37,000/-. Such act and conduct of OP is claimed to be deficiency in service and unfair trade practice, due to which, the complainants have suffered mental harassment, pain, agony etc. So, by filing the present complaint, the complainants have prayed for issuing directions to OPs to pay Rs.20 lacs as compensation on account of mental tension and agony.
2. Upon notice of the complaint, opposite party appeared and filed written statement and assailed the complaint on the ground of maintainability; jurisdiction of this Hon’ble Commission to try and decide the matter, barred by limitation and mis-joinder and non-joinder of necessary parties. It is submitted that the present complaint is filed against HDFC Bank Limited whereas answering OP is HDFC Limited which have separated and distinct legal entity apart from HDFC Bank Ltd. Moreover, the instant complaint is misconceived in as much as the relief sought against answering OP is not tenable in law.
The grievance, if any, of the complainant should have been directed against authorities of Pardhanmantri Awaas Yojna Scheme of Government of India who had opportunity and reason to check eligibility of particular scheme. It has been submitted that the annual household income of complainants is Rs.10,49,000/- as per documents/salary slips supplied by them which comes under CLSS MIG I category but carpet area of complainant property is 182 sq.meters which is exceeding the maximum carpet area i.e.( 160 sq.meter). Valuation/Technical report is also shows the said fact. Thus, the complainants are not eligible under CLSS MIG I as well as MIG II category of government policy. The answering OP is nothing to do with the sanctioning credit link subsidy scheme under Pardhan Mantri Awas Yojana(Urban) and strictly governed as per the loan agreement executed by the complainant and as per rules, regulations and guidelines of NHB(National Housing Bank) and the guidelines of RBI and other government agencies. On merits, it is submitted that since the time of submitting of document, the complainants were told about their ineligibility of both category of scheme CLSS MIG I as well as MIG II, so there is no question of any stipulated time for sending the file for approval of particular scheme. Rest of the allegations levelled in the complaint have been specifically denied and prayed for dismissal of the complaint with costs.
3. In the present case, no evidence of the complainants produced since 02.12.2022 despite grant of sufficient opportunities including last and final chance. Even costs of Rs.200/- and 500/- imposed vide orders dated 21.07.2023 and 13.09.2023 were not paid by the complainants. In these circumstances, this Commission is of the considered view that the complainants have failed to produce any evidence in order to establish their pleadings as alleged in the complaint. Therefore, the complainants have failed to discharge the initial burden of proving deficiency in service on the part of the opposite parties by way of any credible evidence.
4. In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon'ble Supreme Court of India whereby it has been held as under:-
19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.
In the above cited case, the Hon'ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. "6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent." 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-
"28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service."
The Hon'ble Supreme Court of India has further upheld this view in recent judgment II(2023) CPJ 83 (SC) in Chairman & Managing Director, City Union Bank Ltd. & Anr. Vs R. Chandramohan. In the given facts and circumstances, the complainants have failed to prove the deficiency in service on the part of the opposite party by any cogent and convincing evidence.
5. As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
(Monika Bhagat) (Jaswinder Singh) (Sanjeev Batra)
Member Member President
Announced in Open Commission.
Dated:23.11.2023.
Gurpreet Sharma
