Punjab

Sangrur

CC/660/2016

Ram Pal Garg - Complainant(s)

Versus

HDFC Limited - Opp.Party(s)

Shri Ritesh Jindal

18 Jan 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

                                                          

                                                Complaint No.  660

                                                Instituted on:    11.11.2016

                                                Decided on:       18.01.2018

 

1.     Ram Pal Garg son of late Sham Lal 2. Amit Garg son of Ram Pal Garg, 3. Aman Garg son of Ram Pal Garg, all residents of Sham Niwas, situated at Banasar Bagh Road, Patiala Gate, Sangrur, Tehsil and District Sangrur.

                                                        …Complainants

                                Versus

1.     HDFC Limited, Housing Finance Corporation Limited, SCF 6, Leela Bhawan Market, Patiala, Tehsil and District Patiala through its Manager/Authorised Signatory.

2.     HDFC Bank Ltd. Head Office: 1^st Floor, C.S No.6/242, Senapati Bapat Marg, Lower Parel (W), Mumbai through its Managing Director/Manager/Authorised Signatory.

3.     HDFC Bank Ltd. Shop No.1-2-3, Kaula Park Market, Sangrur, Tehsil and District Sangrur through its Manager/Authorised Signatory.

                                                        …Opposite parties

 

For the complainant  :               Shri Ritesh Jindal, Adv.

For OP No.1             :               Shri SS Ratol, Adv.

For OP No.2&3         :               Shri S.S.Punia, Adv.

 

 

 

Quorum:   Sukhpal Singh Gill, President

                Sarita Garg, Member

                Vinod Kumar Gulati, Member   

 

 

Order by : Sukhpal Singh Gill, President.

 

1.               Shri Ram Pal Garg, Amit Garg and Aman Garg, complainants (referred to as complainant in short)  had earlier filed the present complaint against the opposite parties (referred to as OPs in short) on 11.11.2016, which was dismissed vide orders of this Forum dated 18.04.2017. Aggrieved with the orders of this Forum, the complainant filed First Appeal No.403 of 2017 before the Hon’ble Punjab State Commission, whereby the Hon’ble Commission accepted the appeal of the complainant and held that the complaint in its entirety is not barred by limitation as such remanded back to this Forum to decide the complaint on merits.

 

2.               The complainants had preferred the present complaint against the opposite parties  on the ground that they availed the services of the OPs  by taking a home loan from the OP number 1 in the year 2009 and the OP number 1 fixed an instalment of Rs.14,476/- and subsequently the complainant again took further loan and thus the instalment was increased to Rs.18,887/-, which was being recovered by debiting the saving account number 02621570001183 of the complainant.  Further case of the complainant is that the OP number 1 gave a copy of account statement as on 16.3.2016 and as such they came to know that the OP number 3 has been illegally debiting the said account of the complainants with a monthly instalment of Rs.22073/- instead of Rs.18887/-, meaning thereby the Ops were charging Rs.3206/- per instalment in excess, whereas the complainant was not intimated ever about the above said increase, which is said to be gross negligence on the part of the Ops. Further grievance of the complainant is that though they approached the Ops for refund of the excess amount so recovered, but all in vain.  Thus, alleging   deficiency in service on the part of the OPs, the complainant has prayed that the OPs be directed to refund to the complainants the amount of Rs.3206/- per instalment for 65 instalments i.e. from 15.7.2011 to 15.11.2016 along with interest  and further to recover the instalment at Rs.18887/- per month and further claimed compensation and litigation expenses.

 

3.               In reply filed by the OP number 1, preliminary objections are taken up on the grounds that this Forum has no territorial jurisdiction to hear and try the present complaint, as the loan was reimbursed from Patiala and the agreement was executed at Patiala, that the complaint is barred by limitation as the complainant has sought to challenge the increase in the amount of EMI from the year 2011, that the complaint is not maintainable, that at the time of availing of the house loan, he chose to either opt for a fixed rate loan, where the rate of loan on the loan does not vary or opt for  variable rate of interest, however, the complainant opted for an adjustable/variable rate loan and benefited from falling interest rate in the earlier years.  On merits, the case of the OP is that the complainant took a housing loan of Rs.20,00,000/-. Initially  the complainant availed a house loan amount of Rs.15,00,000/- and the EMI was fixed as Rs.14,476/- with their prior consent and the same amount was debited to the account of the complainant. Subsequently, on 22.9.2009, the complainant availed balance amount of Rs.5,00,000/- and the monthly instalment was increased to Rs.18,867/-.  It is further stated that as per clause 2(e), the quantum of EMI was further increased from Rs.18,867/- to Rs.22,073/- as on account of increase in prime lending rate, an imbalance occurred in the interest and principal component of the Equated Monthly Instalment.   It is further stated that the legal notice dated 18.5.2016 has been addressed to HDFC Bank Limited and the Op never received the aforesaid legal notice from the complainant.  The other allegations levelled in the complaint have been denied in toto.

 

4.               In reply filed by Op number 3 , Preliminary objections are taken up on the grounds that the complainants have unnecessarily dragged the OP into unwanted litigation, that the complainant has no locus standi and cause of action to file the present complaint, that this Forum has no jurisdiction to try the present complaint. On merits, it is denied that the OP illegally debited the saving account of the complainants with the monthly instalment of Rs.22073/- instead of Rs.18887/-. It is stated that the OP number 3 deducted the instalments from the saving account of the complainants as settled between the complainants and Ops number 1 and 2.  However, any deficiency in service on the part of the Op has been denied.

 

5.               Record shows that OP number 2 was proceeded exparte on 20.12.2016.

 

6.               The learned counsel for the complainants has produced Ex.C-1 to Ex.C-6 copies of documents and affidavits and closed evidence. On the other hand, the learned counsel for the OP number 1  has produced Ex.OP-1 affidavit along with Annexure R-1/1 to Ex.R1/5 and closed evidence. The learned counsel for OP number 3 has produced Ex.OP3/1 affidavit and closed evidence.

 

7.               We have carefully perused the complaint and heard the arguments of the learned counsel for the parties. In our opinion, the complaint merits acceptance, for these reasons.

 

8.               In the present case, it is an admitted fact that the complainant availed a house loan for Rs.20,00,000/- from the OP number 1 on floating rate basis, as is evident from the copy of loan application Annexure R-1/2. Further case of the complainant is that initially the complainant availed a loan of Rs.15,00,000/- on 1.5.2009 @ 10% interest and the EMI was Rs.14,476/- and later on 1.10.2009, the complainant availed a loan of Rs.5,00,000/- and the instalment of the loan was increased from Rs.14,476/- to Rs.18,867/- per month, but now the grievance of the complainant is that the OP number 1 illegally and arbitrarily enhanced and recovered the instalment of Rs.22073/- from 1 July 2011, which is said to be wrong and illegal, whereas the complainant was never intimated about the increase of the instalment.  On the other hand, the learned counsel for the Op number 1 has contended vehemently that first of all the complaint is barred by limitation as the cause of action arose to the complainant on 1.7.2011, whereas the present complaint has been filed on 11.11.2016 after a period of about five years and should be dismissed on this score alone.  Further the learned counsel for the Op number 1 has contended vehemently that since the loan was on floating rate basis, there is no requirement to give any intimation to the complainant and the increase in the instalment was due to increase of rate of interest. To support this contention, he has drawn our attention towards the loan agreement adjustable rate home loan, Annexure R1/1, wherein it has been clearly stated that no intimation shall be given by HDFC as to the number of EMIs required to be paid by the borrower upon each AIR application. Provided however, the information as to the application/applied AIR during the financial year of HDFC and the number of EMIs payable from the last AIR application during such year shall be intimated by HDFC to the borrower annually.  This agreement is duly signed by all the complainants. But, we may mention that the Hon’ble Commission vide its order dated 14.09.2017 in para number 9, it has been held…..”No doubt that the counsel for the opposite parties had argued that the complaint was rightly dismissed by the District Forum being barred by limitation but he was unable to satisfy this commission how the complaint is time barred qua the impending EMI for which the complainant have a recurring cause of action.”  In the circumstances, we are of the considered opinion that this complaint is maintainable and not barred by time. 

 

 

 

9.               Further the learned counsel for the complainant has contended vehemently that the OP number 1 has illegally charged and recovered monthly instalment to the tune of Rs.22073/- instead of Rs.18887/- for the period from 15.7.2011 to 15.11.2016, as is evident from Annexure R-1/4, as such the Op number 1 has charged an amount of Rs.3206/- per instalment in excess for 65 months, as the Op number 1 did not serve any prior notice before raising the interest and instalment.   Further the learned counsel for the complainant has contended that the OP number 1 has acted illegally and without any basis.  To support such a contention, the learned counsel for the complainant has cited ICICI Bank Limited and another versus Surinder Singh 2009(4)CLT 621, whereby the Hon’ble State Commission, Chandigarh has held that since the OP has failed to produce any evidence on record to either prove any change in the rate of interest or to confirm any intimation of the changed rate of interest having been given to the complainant, as such it was held that the OP bank was not entitled to charge the enhanced rate of interest from the complainant.  We may mention that the same is the position in the present case, as the OP has not produce iota of evidence to support their contention as held by the Chandigarh State Commission in the above mentioned case.  Further the Hon’ble Chandigarh State Commission has taken the similar view in Maharaj Krishan Datta and others versus ICICI Bank Ltd. 2010(2) CPJ 284.   In the circumstances of the case, we are of the considered opinion that the OP number 1 acted illegally and recovered the enhanced EMI of Rs.3206/- per month from the complainant for the period from 15.7.2011 to 15.11.2016 and the same amount deserves to be refunded to the complainant.

 

 

10.             In view of our above discussion, we allow the complaint of the complainants and direct the OP number 1 to refund the excess amount of Rs.3206/- per month so recovered for the period from 15.7.2011 to 15.11.2016 along with the interest @ 9% per annum from the date of recovery till its refund in full. The OP number 1 is further directed to pay to the complainant an amount of Rs.10,000/- in lieu of consolidated amount of compensation for mental tension, agony and harassment and Rs.5000/- on account of litigation expenses. 

 

 

9.               This order of ours be complied with within a  period of thirty days of its communication. A copy of this order be issued to the parties free of cost. File be consigned to records.

                Pronounced.

                January 18, 2018.

                                                (Sukhpal Singh Gill)

                                                     President

                               

 

                                       

                                                     (Sarita Garg)

                                                         Member

 

 

 

                                                (Vinod Kumar Gulati)

                                                        Member