Per Justice Sham Sunder , President This appeal is directed against the order dated 16.5.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it dismissed the complaint of the complainant (now appellant). 2. The facts, in brief, are that for purchasing a flat in Zirakpur, the complainant applied for housing loan of Rs.21,00,000/- to the OPs, on 23.06.2009, after complying with all the requisite formalities. On 27.06.2009, a sum of Rs.11,036/- was charged as processing fee by the OPs. Thereafter, the OPs sanctioned home loan of Rs.21,00,000/- in favour of the complainant. However, the said loan amount was not disbursed by the OPs. Instead, the complainant was asked to bring the property documents. Since the seller, too had taken a loan of Rs.10,00,000/-, from Axis Bank, the original papers of the property had already been deposited by him (the seller) with the said Bank. The complainant apprised the OPs, with regard to the aforesaid factum, whereupon, he was asked to clear the said loan of Rs.10,00,000/- from his own pocket, and to bring the original documents, to have the loan amount disbursed. When the OPs did not pay any heed to the request of the complainant, that he was not able to pay the loan of Rs.10.00 lacs of the seller, to the Axis bank, and obtain, the title deed therefrom, left with no alternative, he requested the OPs to refund the processing fee paid by him, so that he could apply for the loan to some other bank. It was stated that the amount of Rs.5515/- i.e. half of the processing fee, was refunded to the complainant and the remaining amount was forfeited by the OPs. It was further stated, that thereafter, on 10.7.2009, the complainant approached Union Bank of India, Sector-35, Chandigarh, for the grant of housing loan and, thus, he had to pay again processing fee of Rs.11,000/- to that bank. The Union Bank of India, sanctioned a sum of Rs.22 lacs as housing loan, and disbursed the same to him on 20.8.2009. It was further stated that the OPs, even after the sanction of loan, failed to disburse the same, as a result whereof, a lot of physical harassment and mental agony was caused to the complainant, and he also suffered financial loss by approaching the other bank. It was further stated that the aforesaid acts of the OPs, amounted to deficiency in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter to be called as the Act only) was filed by him, for the refund of remaining half of the processing fee obtained by the OPs, interest from 11.8.2009 till the date of actual payment of the remaining processing fee, a sum of Rs.8500/- paid by the complainant towards house rent because of delay, Rs.5000/- towards costs of complaint and litigation expenses and Rs.one lac on account of expiration of period of agreement to sell, executed by the seller. 3. The OPs, in their joint reply, admitted the factual matrix of the case. It was stated that the complainant never disclosed the fact that the property intended to be purchased was already mortgaged with some other Bank. It was further stated that the sanction letter of loan was issued in favour of the complainant, in good faith, and he was asked to bring the title deed mortgaged with some other bank, by the seller. It was further stated that since the property, which the complainant intended to purchase, had already been mortgaged with Axis Bank, the loan could not be disbursed to him, by the OPs. It was further stated that there was no deficiency in service, on the part of the OPs, nor did they indulge into unfair trade practice. The remaining averments were denied, being wrong. 4. The parties led evidence, in support of their case. 5. After hearing the complainant, the Counsel for the OPs, and, on going through the evidence and record of the case, the District Forum dismissed the complaint. 6. Feeling aggrieved, the instant appeal, was filed by the appellant/complainant. 7. We have heard the appellant in person, Counsel for the respondents , and have gone through the evidence, and record of the case, carefully. 8. The appellant, submitted that, it was only after verifying all the facts, that the sanction letter was issued, regarding home loan, in his favour by the OPs, but the same was not disbursed to him. He further submitted that, in case, the OPs had any doubt with regard to the factum, that the complainant was not entitled to get loan, as the property, which he intended to purchase, was under mortgage, with some other bank, having been created by the seller, they should have raised such an objection before the sanction letter was issued. He further submitted that, even despite repeated requests, the full processing fee, was not refunded by the OPs. He further submitted that the complainant had to approach another bank, after payment of the processing fee, as a result whereof, the loan was sanctioned by that bank, resulting into a lot of physical harassment and mental agony to him. He further submitted that the District Forum was wrong, in dismissing the complaint. 9. On the other hand, the Counsel for the respondents, submitted that, the complainant did not disclose the factum that the property, in question, had already been mortgaged, by the seller, in favour of Axis Bank, and, thus, misled the OPs. He further submitted that the sanction letter was issued, in good faith, but when the factum came to the notice of the OPs, that the property, by the seller, had already been mortgaged with another bank, the loan was not disbursed. He further submitted that half of the processing fee has already been refunded. He further submitted that it was the prerogative of the bank, to decide whether to disburse the amount of loan, even after sanction, and no direction could be given to it, for disbursement of loan. It was further submitted that the District Forum was right, in holding that there was no substance in the complaint. He further submitted that the District Forum was right, in dismissing the complaint, as there was no deficiency in service, on the part of the OPs. 10. After giving our thoughtful consideration, to the rival contentions, advanced by the appellant, the Counsel for the respondents, and, on going through the evidence and record of the case, we are of the considered opinion, that the appeal is liable to be partly accepted, for the reasons, to be recorded hereinafter. Admittedly, the complainant applied for home loan with the OPs and deposited processing fee of Rs.11036/-. Before sanction of loan, it was the duty of the OPs, to verify all the facts, as also, as to whether the property he intended to purchase was already mortgaged with another bank. The complainant was only having ‘agreement to sell’ in respect of the property, in question, which did not confer any right or title upon him. Since, the OPs failed in their duty, in verifying the aforesaid fact, before the sanction letter was issued, the complainant could not be blamed. However, there is, no dispute, with regard to the proposition of law, that even after the sanction of loan, it is the sole prerogative of the bank, whether to disburse the same, in favour of the loanee or not. The Consumer Fora, could not give a direction to the OPs to disburse loan, in favour of the appellant, after the same had been sanctioned. Similar principle of law, was laid down in Jagmohan Lal Mohan Vs ICICI Home Finance Company Limited & Ors. II(2010)CPJ 189 (NC). To this extent, the OPs were not deficient, in rendering service. 11. The next question, that arises for consideration, is, as to whether, the complainant was entitled to the refund of entire processing fee, deposited by him, or not. The services of the OPs were availed of, by the complainant, for consideration, for getting loan. The loan was sanctioned, but was not disbursed, on the ground, that the property intended to be purchased by the complainant was already mortgaged with another bank by the seller. In our considered opinion, since, the OPs did not verify the factum that the property, in question, was already mortgaged, which the complainant intended to purchase, and issued letter regarding the sanction of loan, for their fault, he (complainant) could not be held responsible. The OPs, for their own fault, could not retain half of the processing fee, deposited by the complainant, as they failed to render perfect service to him. The OPs were, thus, deficient in rendering service to the complainant. R2 is the letter written by the OPs to the complainant, stating therein that refund of Rs.5512/-, half of the processing fee, was in full and final settlement of the claim. The mere fact that half of the amount of processing fee, vide cheque dated 19.8.2009, was accepted by the complainant did not estop him from claiming the remaining half. Since the complainant was not satisfied with the refund of half of the amount of processing fee, he issued legal notice dated 24.9.2009. R2 letter did not affect the legal right of the complainant. The District Forum was wrong, in holding that the complainant was not entitled to the refund of the remaining processing fee. The complainant is, thus, entitled to the refund of remaining half of the processing fee to the tune of Rs.5515/- . The findings of the District Forum, to the contrary, being illegal are reversed. 12. The next question, that arises for consideration, is, as to whether, the complainant is entitled to interest on the amount of Rs.5515/-, relating to half of the processing fee, which was, not refunded to him. This amount was illegally and improperly withheld by the OPs, from 19.8.2009, when the remaining half of the amount was refunded to the complainant. Had this amount been paid at that time, the complainant would have spent the same, for meeting his necessary expenses, or deposited the same in some bank. The complainant was illegally deprived of the amount of Rs.5515/- and, thus, he is entitled to interest @ 8% p.a. on this amount. 13. No document was produced by the complainant that he paid the house rent to the tune of Rs.8500/-, on account of non-disbursement of loan, by the OPs. Had the complainant produced some receipt, evidencing the payment of rent, the matter would have been different. The complainant is, thus, not entitled to this amount. 14. The complainant is also not entitled to a sum of Rs. one lac, on account of expiration of the period of ‘agreement to sell’. The agreement to sell was executed, between the complainant, and the vendor. He could get the date extended. If any consequential loss was caused to the complainant, on account of expiration of the date of agreement to sell, the OPs could not be held responsible for the same. The claim of the complainant, in this regard, is rejected. 15. The complainant did not claim any relief of compensation for physical harassment and mental agony, which he underwent, on account of non-disbursement of loan to him, and due to the fact, that he approached another bank and paid the processing fee to the said bank, as a result whereof, the loan was, ultimately, sanctioned in his favour, by that bank. Had for physical harassment and mental agony, compensation been claimed by the complainant, this Commission would have considered the same. In the absence of any relief having been claimed, in this regard, this Commission cannot consider the same. 16. The order of the District Forum, being illegal, is liable to be set aside. The same is accordingly set aside. 17. For the reasons recorded above, the appeal is partly accepted, with costs, quantified at Rs.5000/-, in the following manner ; (i) The Respondents/OPs are directed to refund the remaining processing fee, to the tune of Rs.5515/- to the complainant/appellant, with interest @ 8% p.a. from 19.8.2009 till realization. (ii) The order shall be complied with, by the OPs, within 30 days from the date of receipt of a copy thereof, failing which, the aforesaid payable amount, shall be paid with interest @ 9% p.a. instead of 8% p.a. till realization, besides costs. 18. Certified Copies of this order be sent to the parties, free of charge. 19. The file be consigned to Record Room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
