| Final Order / Judgement | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM CACHAR :: SILCHAR Con. Case No. 7 of 2018 Sri Kirit Bikram Bhattacharjee S/o Lt. Karunamoy Bhattacharjee 2nd Link Road (Main), House No.15. P.O- Link Road, Silchar ………………………………………………………………………… Complainant. -V/S- - ICICI Bank
A Body Corporate registered under Indian Companies Act. with registered office located at landmark, Race Course Circle, Vadodara-390007 India Represented by its Branch Manager, Silchar Branch, N.S Avenue, Rangirkhari, Silchar-5. ………… O.P. Present: - Sri Bishnu Debnath, President, District Consumer Forum, Cachar, Silchar. Sri Kamal Kumar Sarda, Member, District Consumer Forum, Cachar, Silchar. Appeared: - Mr. Santanu Nandan Bhattacharjee, Advocate for the complainant. Mr. Debasish Som, Advocate for the O.P. Date of Evidence 18-07-2018, 09-08-2018 Date of written argument 14-09-2018, 04-10-2018 Date of oral argument 22-04-2019, 23-04-2019, 30-05-2019 Date of judgment 11-06-2019 JUDGMENT AND ORDER Sri Bishnu Debnath, - This case under the provision of the Consumer Protection Act,1986 has been brought by the Complainant Shri Kirit Bikram Bhattacharjee (referred as Complainant) against the ICICI Bank, represented by Branch Manager, Silchar Branch (referred as OP) for refund of the amount of Rs 7,753.53 debited from his SB A/C No.06190100900 of ICICI Bank as process fees for sanctioning and disbursing Home Loan. He also brought this case for award of compensation of Rs.2,00,000/- for non-disbursement of Home loan in his favour and Rs.20,000/- for expenditure of procuring documents for sanctioning and disbursing Home loan. He also brought this complaint for award of Rs.50,000/- as compensation for mental agony for dis-service and harassment for non-disbursement of Home loan.
- To get the aforesaid reliefs the Complainant brought the fact in the complaint, which is briefly stated below :-
The complainant applied for home loan of Rs.10,00,000/- to the OP in the month of December,2014 for completion of construction of his residential premises. On acceptance of his application the OP instructed him to open Saving Bank Account to the Bank of the OP. Accordingly, he opened SB A/C No.06190100900 and deposited Rs.10,200/- on 18.12.2014 as per advice of the OP. Subsequently, the Officials of the OP visited the residential premises of the complainant where construction was going on. Thereafter, the OP sanctioned Rs.12,50,000/- in the month of February,2015 in favour of the complainant under Loan A/C No. LBSLC00002355750 and debited Rs.7,753.54/- from his aforesaid SB A/C No.061901000900 as loan processing fees. It is to be mentioned here that Rs.7,585/- was debited on 14.02.2015 and balance amount of Rs.168.54/- debited on 16.02.2015. - However, on advice of the OP, the complainant furnished required documents including title deed to the OP to process the loan application for the purpose of creating of equitable mortgage of his residential landed property for the sake of securing the loan. But the OP did not disburse the loan amount in spite of repeated request of the complainant. As a result, having felt harassed, he gave up the hope of loan and served a pleader's notice dated 28.03.2016 with claim of refund the amount debited from his SB A/c No. 06190100900 and payment of compensation of Rs.50,000/-. The OP on receipt of the pleader's Notice did neither refund the debited amount nor compensation, rather by its reply letter No.L/013-445-2016-17 dated 05.05.2016 the OP tried to justify its stand of non-disbursement of the loan and non-refund of the debited amount on flimsy ground of agreement which are false and concocted for the purpose of misappropriation of the deposit of the complainant.
- The OP in its W/S stated inter-alia that Rs.12,50,000/- were sanctioned and letter in that aspect issued on 10.02.2015 but same could not be disburse due to non-clearance of legal & technical valuation of the property which is a condition precedent for disbursement of such loan as per Clause 4(f) and 17(7) of the Sanction letter dated 10.02.2015. The OP further stated that the fact of non-disbursement of loan amount has been communicated to the complainant, vide letter No.L/013-445-142/2016-17 dated 05.05.2016. The OP further took defence plea that in the aforesaid communication letter it has been informed the complainant that the amount which has been debited from the SB A/C No. 06190100900 of the complainant is non-refundable because the said amount levied as Administrative fee to process the sanction of the loan and same has been mentioned in the application Form signed by the complainant.
- During hearing the complainant submitted his deposition supporting an affidavit and exhibited some documents including the letter of the OP for information regarding non-disbursement of loan amount and alleged Sanction Letter. The OP also submitted deposition of its legal Manager. Mr. Farid Ahmed Laskar is the DW. He also exhibited original Loan Application in addition of alleged Sanction Letter dated 10.02.2015, letter regarding rely to the Legal Notice of the complainant, individual technical report etc. After ending of the deposition both sides' Counsels submitted their written argument.
- I have heard both sides' Counsels and perused the written arguments including the exhibited documents. From the evidence on record it is transpired that the Complainant did not receive the house building loan amount or in other words the loan amount has not been disbursed in favour of the Complainant due to non-clearance of legal & technical valuation of the property. The said fact is undisputed to the parties of this litigation. For which it is redundant to appreciate the evidence on record in that aspect. But in this case the complainant has prayed for refund of his money which has been debited from his SB Account by the OP as processing fee and compensation for disservice.
- The OP admitted the fact that Rs.7,585/- debited on 14.02.2015 and Rs.168.54/- debited on 16.02.2015, vide Ext.2,Ext. B and Ext. C. It is also admitted fact that the said debited amount is not yet refunded by the OP to the SB A/C No. 06190100900 of the Complainant. The plea of the OP is that the said amount has been debited from SB A/C No. 06190100900 of the Complainant not as process fee but Administrative fee and the administrative fee is non-refundable. The complainant did not agree with the plea of the OP. He said that the amount has been deducted from his bank account by the OP bank in whatever name may be but it has been debited for processing the loan application and ultimately loan amount has not been disbursed, so he is entitled to get refund of the said amount.
The learned advocate of the complainant argued that it is established principle of law that if loan is not disbursed for any reason the process fee collected by the bank must be refunded. In that aspect the learned advocate of the Complainant relied on the case law of State Commission, Punjab, vide Deutsche Post Bank Home Finance Vs. Kunal Nagpal, First Appeal No.228 of 2012 (First Appeal No.228 of 2012). In that case Justice Sham Sundar the President of the State Commission, Punjab held that if the sanctioned loan is not disbursed, the Bank cannot withhold the process fee deposited by the loan applicant. The relevant portion that judgment is reproducedbelow:- “It is settled principle of law that until or unless, the offer is accepted, no concluded contract comes into being, between the parties. Instead of accepting the offer of loan, given by the Opposite Party, vide letter Annexure A-3, to the complainants, the requested for the deletion of condition number 3,11 and 12. It means that concluded contract never came into existence, between the parties. Had the concluded contract come into existence, between the parties , it would have been said that the processing fees deposited by the complainant, with the Opposite Party was not refundable. In the absence of concluded contract, regarding sanction of loan, having come into existence, between the parties, there was no justification on the part of the Opposite Party, to withhold the processing fees, deposited by the complainants. By not refunding the amount of processing fees, as no concluded contract came into being, between the parties, the Opposite Party was deficient, in rendering service, as also indulged into unfair trade practice.” - The plea of the OP is that aforesaid amount has been deducted from the SB Account of the Complainant not as processing fee but administrative fee and administrative fee is non-refundable, which is within the knowledge of the complainant since the time of putting signature on the loan application. To support the aforesaid defence plea the OP adduced evidence and exhibited relevant papers and documents, vide Ext. D (Reply of the OP to the Complainant in response to the Legal Notice dated 28.03.2016) Ext. C (Offer Letter for Loan Facility in view of Loan Application) and Ext. B (Original Loan Application).
- In the Ext. C it is mentioned that Administrative Fees (non-refundable) Rs 7023. Out of which Rs.6,250 is towards Administrative fees and Rs.773/- is towards Service Tax and Education Cess. It is also written in that letter that Non-refundable Processing Fess will be deducted at the time of disbursement. It is admitted fact that the complainant received the Loan Sanctioned Letter and put signature in the Loan Application on 20.01.2015. But nothing is clear from evidence on record as whether the complainant received the Offer Letter, vide Ext. C which is appeared to be issued on 10.02.2015. However, by adducing oral evidence the complainant stated that loan was sanctioned in the month of February,2015 but amount of loan was not disbursed by the OP. If that is the real fact than it may be opined that the complainant had knowledge about the content of Ext. C. The OP also by adducing evidence tried to establish the fact that loan was sanctioned and communicated by issuing Ext. C on 10.02.2015. It is mentioned that OP has deducted non-refundable Administrative charges of total Rs.7,585/-. It is also mentioned in the Ext. C that processing fees will be collected on disbursement. Thus, it is of opinion that the complainant had knowledge about the fact that the OP deducted Administrative Charges from his Bank account.
- During hearing the learned advocate of the OP tried to convince the District Forum that the administrative fee is collecting by the bank from the borrower to defray the expenditure of legal expert for verification of the title deed of the borrower on which the building to be constructed, expenditure of the valuer of the share of the borrower on the land, expenditure for inspection of the land on which building to be constructed with the financial aid of the bank, etc. But in this case nothing produced by the OP regarding such expenditure. Rather, evidence on record leads me to conclude that the OP Bank sanctioned loan in favour of the complainant and generated loan Account, vide Ext. C. and subsequently, loan amount was not disbursed on the ground of non-clearance of legal & technical valuation of the property. Thus, matter is confusing, becausethe administrative fee collected for processing the loan application to sanction the loan and accordingly Ext. C issued but subsequently stopped disbursement on the ground stated above. The OP has not clarified the reasons as why second thought adopted.
- In this case both sides are stating that loan was sanctioned in the month of February,2015 and to support that fact the OP exhibited the letter , vide Ext. C. So, the OP tried to establish that the Ext. C is Sanction letter. But bare perusal of the content of the Ext. C I have understood that Ext. C is not a sanction letter rather a letter for offer for loan facility in connection with the loan application of the complainant because in the subject clause of that document it is written as “Offer letter for loan facility vide Application no.777997790(Franchisee Code : BRANCH-0619). But in this when both sides have considered the Ext. C is a sanction letter, this District Forum has no difficulty to consider treating the Ext. C is the sanction letter and in reality the complainant did not receive the loan amount from the OP in spite of sanctioning the amount and deducting the amount from the bank account of the complainant as administrative fees. In the reply to the legal Notice, vide Ext.4 the OP stated as below, vide Ext. D -
“We would like to state that the administrative fee is levied for the processing of the loan application and it covers the cost involved in sanctioning an application. Since your application has gone through the sanction process, charges for the same would be applicable. Further the administrative fee charge is banked immediately on sanction of your loan. This fee is non-refundable and the same has been mentioned in the sanction letter issued to you.” - I have gone through the content of loan application, vide Ext. B. In the relevant column of Fee Details in Ext. B Loan Application, it has been mentioned in the Clause Non-refundable processing / administrative fee Rs.7585/- both in figure and words, cheque No.012106, dated 12.02.2015. Whereas, it is transpired from the Ext. B that the Loan Application has been signed on earlier date on 20.01.2015. Thus, it is clearly indicated that the column of Fee Details was remained blank on the date of putting signature on the Ext. B and said column has been filled up subsequently on 12.02.2015, i.e., two days prior to the actual date of clearing the balance by the Bank, vide Ext.2 (Bank statement).
- So, it is clear from the above documents that the plea of the OP that the Complainant was aware of the fact of non-refundable administrative fee is not convincingly made out. Moreover, if we go through the content of the Fee Details of Ext. B it is confusing
us as whether the OP collected Non-refundable Administrative Fee or Non-refundable Processing Fee of Rs.7585/- by Cheque No.012106 dated 12.02.2015.because there is no tick mark put on the relevant category of the fee. - However, the established principle of law as stated above is that if loan is not disbursed for any reason, the processing fee collected earlier must be refunded but we have found nothing as whether in such situation administrative fee collected earlier may be refundable. Accordingly, I have asked both sides' counsels to apprise the issue with supporting legal materials as whether administrative fee is refundable when loan amount is not disburse but no convincing materials produced by the parties. Therefore, in this case when there is no convincing material/evidence available in the case record regarding collection of administrative fee, I have taken the view in favor of the complainant that the OP collected Rs.7,585/- without furnishing proper information to the complainant that the OP was not collected processing fee but administrative fee and subsequently when loan was sanctioned on 10.02.2015 communicated that the deducted amount was collected as administrative fees.
- It is a fact that in the terms and conditions mentioned in the Ext. B loan application the OP clearly stated that Administrative Fees is non-refundable and subsequently without knowledge of the complainant the OP filled up the previously signed application because the Ext. B is exhibited by the OP which was brought from the custody of the OP and subsequently on 10.02.2015 by issuing the Ext. C communicated the fact of administrative fee to the complainant and 2(two) days after issuing of Ext. C the complainant issued a cheque No.012106, dated 12.02.2015 for collection of the aforesaid amount from the bank account of the complainant.
- Nevertheless, it is established from the evidence on record as discussed above, that the complainant knowingly make payment of Rs.7,753.54/- as administrative fee for processing his loan application for sanctioning the loan and said amount of administrative fee collected by the OP at the post sanction stage of the loan but loan was not disbursed in his favour by the OP. Thus, applying the same principle as stated above in respect of processing fee, it is concluded that contract was not completed between the complainant and the OP regarding loan due to non-disbursement of the loan amount. So, the complainant is entitled to get refund the amount which was deducted by the OP from his Bank Account in view of Ext.2.
- Therefore, the OP is directed to refund the amount of Rs.7,753.54/- to the SB Account No.06190100900 belonging to the complainant and also ask to pay compensation for mental agony of Rs.5,000/- (Rupees Five Thousand) and Rs.2000/- (Rupees Two Thousand ) for cost of this proceeding. The OP is ask to make arrangement for payment of the award within 45 days from today. In default, interest at the rate of 10% per annum will be added to the awarded amount.
- With the above, this case is disposed of on contest. Supply free certified copy of judgment to the parties of the litigation. Given under my hand and seal of this District Forum on this the 11th day of June,2019.
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