DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.144/2010
Ms. Nishi Mehrotra
W/o Sh. S.N. Mehrotra
117, Pocket- B,
Sukhdev Vihar,
New Delhi
….Complainant
Versus
ICICI Home Finance Ltd.
Green Park Branch
26, Green Park Extension,
New Delhi- 110016
….Opposite Party
Date of Institution : 10.03.2010
Date of Order : 19.05.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
The complainant has filed the present complaint seeking return of her documents, as well as return of undated blank cheque, refund of foreclosure charges and unexplained late pre-payment charges (LPP) and for seeking a compensation of Rs.15,00,000/- for causing loss to the value of the flat and further compensation of Rs.4,00,000/- for causing mental agony and cost of litigation.
Complainant had taken a home loan having LAN no. LBDEL 00000388244 for a sum of Rs.7,00,000/- from the OP bank for purchase of Flat no.117, 3rd floor, Pocket B, Sukhdev Vihar, New Delhi 110025. She states that for obtaining the loan she had mortgaged the said flat by depositing the title deals with the OP which included original letter of allotment, original demand letter for payment of 5th and final instalment of the said flat issued by DDA and one undated blank security cheque no. 732007 drawn on ICICI Bank, Sector 14, Gurgaon.
The complainant made prepayment of the entire outstanding amount of loan of Rs.6,31,041.20/- on 30.07.2007, thereafter the OP after a long time returned some of the documents however, did not return the original letter of allotment, original demand letter for payment of 5th and final instalment of the said flat and the undated blank cheque number 732007. The complainant states that she had made the prepayment of the entire loan so that she could sell the said flat to buy another one at ground floor or first floor but in the absence of such documents she could not get the said flat converted to freehold from DDA and as such she could not sell it further.
It has also been stated by the complainant that as she is old, it is not possible for her to go up and down using stairs which was causing great hardship to her. It is also stated the complainant suffers from diabetes and had to undergo three operations for removal of cataract, transplantation of cornea and other diseases in kidney and removal of stone in the urinary tract. In short, she is suffering from various diseases for which she has to keep going to the hospitals and in this regard she has annexed a summary of her medical record which are exhibits CW 1/1-CW 1/12. It is stated by the complainant that the LPP and foreclosure charges are excessive and not justified and that the non-return of the documents by the OP bank amounts deficiency of service on the part of the OP bank and has caused loss to the complainant as she was not able to have the flat converted to free hold and thereafter sell it.
In the reply (which was filed after three rounds of litigation in the State Commission), the OP has stated that the present proceedings are summary proceedings and therefore this Commission cannot entertain disputed questions of fact. It has also been stated that the complainant is not a consumer and also that the complaint is barred by limitation. It is also stated that the forum does not have the jurisdiction to deal with the present complaint and that the OP reserves it's right to file a separate reply in case it is directed to do so by the Forum.
On merits, the loan is not denied, on the question of foreclosure charges, the OP states that as a goodwill gesture, the OP has refunded the same in August 2015 through memo approval number Icbk/mortgage product/2015- 2016/1334 880 and this fact is also reflected in the statement of account for the above loan vide entry dated 22.08.2015 amount of Rs.13,768.83 as well as in the statement of account of the Co-applicant Mr. Rajat Mehrotra, in savings account No. 002101018993. Therefore, it is stated that there is no grievance of the complainant against OP.
As far as the return of the documents is concerned, the OP states that those were never received by the bank. It is also submitted by the OP that without prejudice to their rights and contention and as a goodwill gesture, the OP is ready to bear the expenses which may reasonably be incurred towards re-creation of any documents for which the cooperation of the complainant is required. Regarding cheque No. 732007 the OP states that the same was dispatched to the complainant on 07.08.2007 through Overnight Express Courier vide consignment/POD number 541752688.
Further, regarding the late payment penalty charges of Rs.504/- is concerned it is submitted that the same was correctly debited by the OP on account of delay in receipt of EMI and again as a service gesture, the OP has offered to reverse Rs.504/- though it is legally entitled to charge it.
It is observed from the file that evidences of both the parties as well as written submissions are on record. It is also observed that after the complainant raised an objection to the evidence filed by the OP that the evidence was filed based on the Power of attorney which had expired, the OP has filed another evidence on record along with proper power of attorney.
During the final hearing the counsel for the complainant moved an application under Order XXII Rule 2 R/w S.151 of CPC for bringing on record the LRs of the complainant, who is stated to have died on 05.09.2021. The application was allowed and the LRs were brought on record. The LRs have adopted the arguments of the complainant and have given power of attorney to their father and counsel Sh. S.N Mehrotra (Power of Attorney holder i.e. POA)
After having carefully gone through the Complaint, reply, evidence and written submissions of both the parties, all the objections would be dealt with one by one.
The first preliminary objection of the OP relates to limitation which has been aptly explained by the counsel for the complainant in para 13 of the complaint and duly supported by the order of the Hon’ble State Commission dated 29.01.2010, therefore we arrive at a finding that the present complaint is not barred by limitation.
The second preliminary objection relates to jurisdiction raised by the OP is without any basis or explanation or any documents to support his contention therefore it has no merit.
The third objection also pertains to jurisdiction of this Forum and it is contended that disputed questions of fact are being raised in this complaint and therefore the Forum does not have the jurisdiction to entertain the present complaint. We are of the view as this case does not relate to complex questions of fact where elaborate evidence is required therefore; this contention of the OP is also without any merit.
The fourth objection relating to complainant being not a consumer is also devoid of any merit as the Consumer Protection Act 1986 defines service as:
"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
Having dealt with the preliminary objections, we now come to the merits of this case, the LPP charged by the OP stands reversed by them in the account of Sh. Rajat Mehrotra in August 2015 therefore, we would refrain from commenting whether these charges were leviable or not. The Hon’ble Supreme Court in Union Bank of India vs Krupanidhi Educational Trust Civil Appeal No. 6380/2010 and Civil Appeal No. 6382 of 2010 decided on July 13, 2021 has held The Respondent-Bank was the beneficiary of the pre-closure charges and therefore if it opted to waive a part of the benefit by reducing the pre-closure charge from 2% to 1%, it was their discretion and jurisdiction which obviously inures to the benefit of the Complainant.
Secondly, the other allegation of the complainant regarding the late payment charges of Rs.504/- is concerned, the OP, has as a goodwill gesture, accepted and agreed that they would refund Rs.504/- although they are within their right to levy it.
The other allegation of the complainant regarding non returning of documents, the OP has stated that these documents have never been given to them by the complainant however, again as a goodwill gesture they have offered to pay reasonably for the re-creation of these documents with cooperation from the complainant. This Commission is of the view that the documents filed by the complainant i.e. Original letter of allotment, Original demand letter for payment of 5th and final instalment of the said flat issued by DDA have been misplaced/lost by the OP as the OP could not have processed the loan without these requisite documents. On this account the OP is found deficient, therefore the OP is directed to co-operate with the complainant in having/arranging the duplicate copies of these documents from the DDA.
In these terms, the complaint is partially allowed and the OP is directed to pay Rs.1,00,000/- for causing mental harassment to the complainant within three months from the date of this Order and also co-operate with the complainant’s POA in getting the duplicate copy of the documents from DDA. In case the order of the Commission is not complied with in a period of three months from the date of this order then the OP would be further liable to pay a sum of Rs.10,000/- to the complainant’s POA.
File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.
