PER MR.B.S.WASEKAR, HON’BLE PRESIDENT

1)     The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986. According to the complainant, she was in need of finance in July,2011 therefore she approached Mr.Mohit Swar, sales manager of opponent no.1. He was informed that, the flat at Dadar was already mortgaged with ICICI Bank against home loan.  The opponent suggested for the repayment of home loan subject to furnishing document in time.  On the request of opponent no.1 the complainant signed number of blank documents.  She spent Rs.39,400/- towards franking.  On 30/07/2011 she issued nine blank cheques duly signed in favour of opponent no.1.  Opponent no.1 issued loan sanction letter dated 30/07/2011 for Rs.1,08,00,000/- in favour of complainant. She foreclosed the ICICI home loan on 16/08/2011 and paid Rs1,21,158/- towards foreclosure charges and Rs.40,421/-as termination charges to ICICI bank.  She also spent Rs.39,400/-towards franking.  The complainant complied all the formalities but the opponents failed to disburse the loan amount as per sanction.  The complainant requested the opponents vide letter dated 12/09/2011 to return the documents and cheques.  But the opponents failed.  The opponents fraudulently deposited the cheques.  The cheques were returned unpaid.  The opponent no.1 issued notice dated 14/09/2011 and filed case U/s 138 of Negotiable Instrument Act. The opponents failed to disburse the loan amount as per sanction without any reason thereby the complainant suffered.  Therefore, the complainant had filed this complaint for refund of Rs39,400/- with interest towards franking charges, Rs.1,21,158/- towards foreclosure charges, Rs.40,421/- towards termination charges,Rs.6,18,180/- towards NOC charges, Rs.15,000/- litigation cost and Rs.1,00,000/- towards mental agony. 

2)     The opponents appeared and filed written statement.  It is submitted that, the complaint is bad for non-joinder of necessary party i.e. Mr. Gaurav Khandar, Tejas Khandar and M/s.Elysium Resort Pvt Ltd. The complainant is not the consumer as services were obtained for commercial purpose.  The opponent issued sanctioned letter dated 30/07/2011 on condition of submitting necessary documents.  The original title deed of flat no.402 Dadar was lying with ICICI home finance company by way of equitable mortgage.  The complainant along with co-applicants jointly executed declaration and undertaking stating that, the complainant should not procure or receive the original documents and the same should be collected by opponent.  The opponent paid the amount to ICICI bank towards closure of loan account.  The ICICI agreed to handover original title deed in favour of opponent.  The complainant collected the original documents from ICICI and failed to submit it before the opponent.  The complainant failed to comply with under taking therefore opponent issued legal notice dated 16/01/2012.  The opponent deposited six cheques but the same were returned unpaid.  The opponent issued notice and started prosecution U/s 138 of Negotiable Instrument Act.  The complainant has suppressed the material facts from the forum therefore the complainant is not entitled for the relief as prayed. 

3)                 After hearing both the parties and after going through the record, following points arise for our consideration.

POINTS

REASONS

4) As to Point No.1 & 2 :- Admittedly, the complainant had taken  home loan from ICICI bank and it was outstanding.  The complainant had deposited original title deed of her flat no.402 with ICICI bank by way of mortgage.  Opponent no.1 agreed for loan to repay the home loan from ICICI bank.  Accordingly, opponent no.1 repaid the entire outstanding home loan of complainant to ICICI bank. The complainant executed several documents in favour of the opponent no.1 and agreed to transfer original title deed of her flat no.402 to opponent.no.1.  Opponent no.1 repaid the entire home loan of complainant from ICICI bank on the promise of complainant to handover original title deed of her flat no.402.  After closure of home loan account the complainant had taken away original title deed of her flat no.402 from ICICI bank.  It was necessary for the complainant to handover the original title deed of her flat no.402 to opponent no.1.  She failed, therefore the opponent no.1 could not pay balance amount to the complainant. The complainant failed to comply with the undertaking.  The opponent no.1 started the prosecution as per law. It appears that, the complainant has filed this complaint as a counter blast. There is no deficiency in service or unfair trade practice on the part of opponent.  The complainant herself is at fault and filed this false complaint.  Therefore, it deserves to be dismissed with cost.   Hence, we proceed to pass the following order.

ORDER

1. Complaint stands dismissed with cost.
2. The complainant is directed to pay Rs.10,000/- (Rs.Ten thousand only) to the opponent no.1 as cost of this proceeding.
3. Inform the parties accordingly. 

Pronounced on 05^th July, 2016