Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2021 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainants have filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that M/s.Cheema Steel Balls (P) Limited is a private limited company and Harcharan Singh and Sominder Kaur are its directors. The complainants approached the Opposite Parties for availing the housing loan amounting to Rs.6.5 lakhs to which the Opposite Parties agreed and the said loan was to be returned in monthly installments of Rs.8954/- in 10 years with 10.25% interest per annum and said loan was sanctioned against the mortgaged of sale deed of complainant No.3. The complainants have already repaid the entire loan amount and not even this, the Opposite Parties have illegally received three installments in excess which they are liable to refund alongwith interest. In this way, the complainants have paid more than Rs.11,01,342/- against the loan amount of Rs.6,50,000/-. Thereafter, the complainants made visits to the Opposite Parties and made request to return the original sale deed and also to issue ‘No Due Certificate’ but the Opposite Parties did not pay any heed to the request of the complainant. As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to hand over the original sale deed and also to issue ‘No Due Certificate’ and further to refund the amount of four monthly installments i.e. Rs.26,862/- received in excess and to pay Rs.50,000/- on account of compensation for causing him mental tension and also to pay any other relief to which this District Consumer Commission may deem fit be also granted.
3. Opposite Parties No.1 and 2 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that as per the request and representation of the complainants, the loan was granted to them and the complainants had opted for the floating rate of interest on the loan amount availed by them and as per the prevalent rate at the time of grant of loan the amount was returnable in 120 instalments of Rs.8954/- each. However, as it evident from the nature of the rate of interest i.e. floating rate of interest, the tenure of the loan could increase or decrease in due course during the subsistence of the loan account. Similarly, if the rate of interest is lowered then the same can also be adjusted by decreasing the tenure by decreasing the monthly instalment. As per the contract that had been entered into between the complainants and Opposite Parties, the complainants were liable to pay interest @ 0.75% above i.e. margin the ICICI bank floating reference rate i.e. FRR. At the time of inception of loan, the ICICI Bank floating reference rate was 10.25% and as such, the effective rate of interest which was payable by the complainants to the Opposite Parties was 11% at the time of inception of loan. However, in case the borrower wishes to reduce the tenure then he may opt to increase the EMI or make a part prepayment or a combination of both. Moreover, the complainants have been making default in repayment of the loan amount in as much as the last payment received from the complainants is Rs.9000/- on 23.11.2016 and the complainants have paid only 123 instalments against 138 instalments payable as in January, 2018. In this way, 15 EMIs are pending in the loan account of the complainant and 31 future instalments are payable as on date. After receiving the entire outstanding amount, the loan account will be closed and the original property papers will be released to the complainants and as such, there is no deficiency in service on the part of the Opposite Parties. On merits, the Opposite Parties No.1 and 2 took up almost the same and similar pleas as taken up by them in the preliminary objections and hence, there is no deficiency in service on the part of Opposite Parties No.1 and 2 and prayed for the dismissal of the complaint.
4. In order to prove their case, the complainants tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C18 and closed the evidence on behalf of the complainants.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties No.1 and 2 also tendered into evidence the affidavit of Ex.RW1/A alongwith copy of document Ex.R1 to Ex.R18 and close the evidence.
6. We have heard the ld.counsel for the parties, perused the written submissions of the Opposite Parties and also gone through the documents placed on record.
7. Ld.counsel for the Complainants as well as ld.counsel for the Opposite Parties No.1 and 2 has mainly reiterated the facts as narrated in the complaint as well as in their written statement respectively. We have perused the rival contention of the ld.counsel for the parties. The case of the complainant is that despite repayment of all the loan amount alongwith interest, the Opposite Parties have not returned the original property papers to the complainants and hence there is deficiency in service on the part of the Opposite Parties. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that as per the request and representation of the complainants, the loan was granted to them and the complainants had opted for the floating rate of interest on the loan amount availed by them and as per the prevalent rate at the time of grant of loan the amount was returnable in 120 instalments of Rs.8954/- each. However, as it evident from the nature of the rate of interest i.e. floating rate of interest, the tenure of the loan could increase or decrease in due course during the subsistence of the loan account. Similarly, if the rate of interest is lowered then the same can also be adjusted by decreasing the tenure by decreasing the monthly instalment. As per the contract that had been entered into between the complainants and Opposite Parties, the complainants were liable to pay interest @ 0.75% above i.e. margin the ICICI bank floating reference rate i.e. FRR. At the time of inception of loan, the ICICI Bank floating reference rate was 10.25% and as such, the effective rate of interest which was payable by the complainants to the Opposite Parties was 11% at the time of inception of loan. However, in case the borrower wishes to reduce the tenure then he may opt to increase the EMI or make a part prepayment or a combination of both. Moreover, the complainants have been making default in repayment of the loan amount in as much as the last payment received from the complainants is Rs.9000/- on 23.11.2016 and the complainants have paid only 123 instalments against 138 instalments payable as in January, 2018. In this way, 15 EMIs are pending in the loan account of the complainant and 31 future instalments are payable as on date. After receiving the entire outstanding amount, the loan account will be closed and the original property papers will be released to the complainants.
8. On the other hand, ld.counsel for the complainant has vehemently denied this version of the Opposite Parties and contended that against the loan amount of Rs.6,50,000/- the complainant has already repaid the amount of Rs.11,01,342/-. Not only this, the Opposite Parties have recovered three instalments in excess from the complainant and now they are kept mum for returning the original sale deeds and other relevant documents deposited by the complainant at the time of availing the loan with the Opposite Parties. In such a circumstances, we are of the view that when the Opposite Parties have prepared 120 instalments of Rs.8954/- each against the advancement of Rs.6,50,000/- and said instalments have duly been paid by the complainant without any default, at this stage and cleared all the loan amount alongwith interest, the Opposite Parties are not entitled to retain the original documents of the complainant. The further contention of the Opposite Parties is that as per the terms and conditions of the agreement, they have charged the rate of interest on the loan amount sanctioned to the complainant. But the complainant has specifically denied to have received such terms and conditions of the Opposite Parties bank. But the Opposite Party could not produce any evidence to prove that terms and conditions of the agreement were ever supplied to the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party, it is clear that Opposite Party has failed to prove on record that they did supply the terms and conditions of the alleged agreement to the complainant. As such, these terms and conditions, particularly the exclusion clause of the agreement is not binding upon the complainant. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.” Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited also held so.
9. Keeping in view the aforesaid facts and circumstances of the case, we hold that the Opposite Party bank has illegally and wrongly retained the original loan documents i.e. sale deed etc of the complainants even on receipt of the loan amount alongwith interest and as such, we direct the Opposite Parties bank to return the original sale deed of the property in question which was retained by the Opposite Parties at the time of sanctioning the loan to the complainants and also to issue “No Due Certificate” in favour of the complainants without charging any amount. The compliance of this order be made by the Opposite Parties bank within 60 days from the date of receipt of copy of this order, failing which the complainants shall be at liberty to get the order enforced through the indulgence of District Consumer Commission, Ludhiana. All pending applications are disposed off accordingly. Copies of the order be furnished to the parties free of cost by District Consumer Disputes Redressal Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
10. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint at Camp Court, Ludhiana, as early as possible.
Announced in Open Commission at Camp Court, Ludhiana.
