BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 29^TH DAY OF AUGUST 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP to issue NOC and also to close the loan account of complainant.
2. To pay damages to the tune of Rs.1,00,000/- for the hardship, mental trauma and losses suffered by the complainant.
3. And such other costs and relief’s as this Hon’ble Forum deems fit in the circumstances.

2. The case set up by the complainant in brief is as under:-

The complainant with an intention to purchase a flat bearing No.1309, 1BHK, block C2, 13^th Floor at Doddabele Village, Kengeri Hobli, Bangalore South Taluk, from VBHC Mumbai Value Homes Pvt. Ltd., company, for a valuable consideration of Rs.24,48,219/- entered into an Agreement of sale in favour of the complainant on 30.05.2017.

3. After execution of the agreement of sale, complainant approached the OP branch to get loan to purchase the plot. The OP has provided a loan amount of Rs.15,00,000/- in favour of the complainant and the same was transferred in the name of the VBHC House.  Complainant also paid Rs.5,00,000/- to the builder.  After disburse of the loan amount EMI was started on August 2019 and the complainant was regular for more than two years to OP home finance, but the builder has not properly respond to the complainant and his wife, then that too after two years, the complainant got cancelled to purchase the plot from the builder and cancellation agreement was executed between the parties.

4. Complainant approached the OP to gave letter for cancel the loan and close the loan and to issue NOC for clearance certificate through mail, OP issued closure letter on 23.07.2021 to builder name and as per letter final settlement amount of Rs.12,50,524/- in the name of VBHC builder as full and final settlement.  VHBC builder has transferred the said amount as on 20.08.2021.

5. After payment the complainant has visited the OP bank and meet customer relation officer of Mr.Ramesh and shared the UTR details.  The OP officer has again demanded further amount of PMAY, then to close the loan.  The OP officer told that the complainant got pre closure letter not final amount letter, at the same time the complainant has informed all the mail and closure letter details to the OP officer and the same is confirmed by Mr.Deepak Kumar who is the manager of the bank. But the OP officer was not ready to issue NOC certificate.
6. It is further case of the complainant that, the complainant again contacted the OP officer and also Mr.Deepak Kumar who was the Manager to clear the issues on 03.09.2021. They have verified all the statements, mails and closure letter but the complainant has not given any pre-closure letter to the OP bank.  The OP bank did a mistake have issued closure letter to this complainant and the same is shared to VBHC and on that basis the builder has paid the amount.  This complainant is not responsible for the mistake committed by the OP bank.  Hence this complainant is not liable to pay the amount of PMAY to the OP bank.  Further the said PMAY amount is in the custody of VBHC builder because the said amount sent by the OP. In this regard the OP collected the amount from VBHC builder and not from the complainant.  After that the OP bank officer and also Mr.Deepak Kumar has convinced this complainant to pay only 10 days of interest amount and as per their assurance the complainant has agreed to pay 10 day interest amount to the OP bank. Even after the above discussion on 20.09.2021 the OP officer has send a mail say that this complainant had a word with builder for collecting the amount from the builder.  After that the OP collection centre has called this complainant and asked him to pay the EMI amount. At that time the complainant has informed all the above facts but the OP officer have not issued the NOC and also even till today not closed his loan account, because of the OP team negligence and also not given proper closure letter to the builder and now the OP is giving problem and also trying grab the amount from this complainant which is illegal one. This OP are harassing this complainant in one or the other way and causing mental agony and harassment and also causing loss to his livelihood. This complainant has also got issued legal notice on 18.10.2021 thereby demanding the OP to return the original documents and also to issue NOC for clearance of the loan in respect of the loan account details of the schedule. Inspite of service of notice, the OP has not given any reply and they have not come forward to issue NOC and also not cleared the loan of the complainant. All the efforts made by the complainant to get NOC and also to clear his loan but the OP are not ready to solve the dispute and their recovery centre is calling the complainant every day and harassing him. Hence the complainant has filed this complaint.

7. On the other hand, the case of the OP is that they are not liable to issue NOC or close the loan account of the complainant, since the complainant is yet to repay the loan account to the full satisfaction of the OP.

8. It is the specific contention taken by the OP that as per the request made by the complainant and the third party by way of email dated 28.07.2021 this OP has provided account details for pre-payment of the loan amount interalia along with the format of the letter that was to be addressed by the complainant and the third party after making the payment.  The purpose of the letter was to facilitate the OP in adjusting the payment towards repayment of the loan account of the complainant.  Neither the third party nor the complainant addressed the letter to the OP after the payment nor were the payment details made available to the OP.

9. It is further case of the OP that after a brief hearing before this Hon’ble Court the OP received a letter dated 13.09.2022 from the third party. After receiving the letter providing payment details the OP has reflected the said payment in the loan account of the complainant.  The OP has adjusted the said amount paid by the third party.  As per the directions of this commission, this OP has also adjusted the interest on the amount paid by the third party from 20.09.2021 till 10.09.2022 being a sum of Rs.1,02,262/-.  The rate of interest made applicable is the same as rate of interest that was made applicable to the loan account from 20.09.2021 till 10.09.2022.

10. It is further case of the OP that however the repayment of the loan account is still pending and that can be seen from the loan statement account and also the letter dated 21.09.2022 with an outstanding of Rs.3,18,128/-.  The complainant has not made any payment to this OP since September 2021.  The complainant has availed the loan facility by the OP under the PMAY scheme.

11. It is further case of the OP that the complainant has availed the benefits of the PMAY scheme by received Rs.2,67,280/- from National Housing bank. The said amount along with processing fees has been reversed by this OP to the National Housing Bank.  This OP is not liable to pay any cost as prayer No.2 of the complainant, since they have followed the due procedure. The non-issuance of the NOC is for the reason that the loan account was not fully repaid by the complainant.

12. It is further case of the OP that the complainant is not entitled for the equitable relief since the conduct of the complainant has rather been full of blemish.  The complainant has even suppressed the material facts before this Commission. Hence OP prayed for dismissal of the complaint.

13. The complainant has filed his affidavit evidence and relies on 09 documents.  Affidavit evidence of official of OP has been filed and OP relies on 07 documents.

14. Heard the arguments of both parties.  Perused the written arguments filed by OP.

15. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

16. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

17. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence and written arguments of OP and documents filed by both the parties.

18. There is no dispute that the complainant has borrowed the loan of Rs.15 lakhs from the OP.  After that as there was some misunderstanding between himself and the builder he has cancelled the sale agreement entered with the VBHC house.  As per the discussion the builder has to return the advance amount paid by this complainant to the OP. At that time the builder has informed to get a letter from the OP bank because the OP was provided loan in favour of the complainant and the same is transferred in the name of the builder.

19. After that this complainant has approached the OP and gave letter for cancel the loan and to close the loan account and issue NOC for clearance certificate. As per their information the complainant has to send letter for closure of the loan through mail only.  As per their information the complainant has sent a letter for cancel or closure of the loan to OP.  After receiving the email from this complainant, the OP have issued a closure letter on 23.07.2021 to the builder name since the loan amount was released in the name of the builder.  As per their letter the final settlement of the amount was Rs.12,50,524/-.  After issuance of the closure letter from the OP VBHC team had contacted the OP bank and reconfirmed the same for returning of the loan amount of the complainant.  Thereafter the OP once again reconfirmed the same on 28.07.2021 and the same is shared by OP to VBHC builder.  After reconfirm made by the VBHC builder and as per the OP closure letter, VBHC builder has transferred an amount of Rs.12,50,524/- as on 20.08.2021.  After transfer of the amount made by the VBHC Builder it is the duty of the OP to issue NOC certificate for close of the loan account in favour of the complainant.  Instead of issuing the NOC certificate to the complainant, the OP have dragged the matter for one or the other reason alleging that the complainant has not at all cleared the loan amount to their satisfaction and hence they have not closed the loan. Even today they are harassing the complainant through their collection center, even though the complainant has closed the loan amount as per their closure letter issued by the OP as on 20.08.2021 itself.

20. In support of their contention the complainant has filed his affidavit evidence and also relied on 09 documents. Ex.P1 is the foreclosure letter, Ex.P3 is the copy of the letter dated 26.07.2021 Ex.P4 is the copy of the mail communication letter, Ex.P5 is the cancellation of agreement of sale, Ex.P6 is the copy of the legal notice, Ex.P7 and 8 are the postal receipt and postal acknowledgment and Ex.P9 copy of the letter of OP dated 22.11.2021.

21. On the other hand it is the contention taken by the OP that they have sanctioned a loan amount of Rs.15,50,000/- by way of loan sanction letter dated 30.05.2017. The complainant along with co-borrower and the OP they have entered into a loan agreement on 30.05.2017 as per Ex.R3.  As per the loan agreement the loan amount is secured against the property by creating an equitable mortgage. The complainant’s availed the loan on floating rate of interest as per the terms and conditions of the loan agreement. The complainant has also executed disbursal request form along with the loan agreement as Ex.R4. Due to default committed by the complainant in repaying the loan amount, the account of the complainant was classified as a non performing asset (NPA) on 25.01.2022 and accordingly notice u/s 13(2) of the Securitization and reconstruction of financial assets and enforcement of security interest act 2002 has been issued calling upon the complainant to pay the outstanding amount of Rs.13,07,481.12 ps., within 60 days.

22. It is further contention taken by the OP that the disbursal of the loan amount and repayment of the loan amount and other details are maintained under the loan account bearing NO.HHLBAN00340052 as on 20.06.2022 the total sum of Rs.13,65,056.42 ps., is the total outstanding towards the repayment of the loan amount.

23. In support of their contention the OP has also produced the copy of the statement of account as Ex.R7 and also produced the foreclosure letter as Ex.R6.  it can be seen from the statement of account and the foreclosure letter the loan account of the complainant is still active and has not been repaid to the full satisfaction of the OP and hence the question of issuing no-due certificate does not arise.

24. It is further contention taken by the OP that after appearing before this commission, this OP has received a letter dated 13.09.2022 from the third party. After receiving the letter providing payment details, this OP has reflected the said payment in the loan account statement of the complainant.  The entry dated 20.09.2021 is shown in the statement of account produced by them before this Commission.

25. It is further contention taken by the OP that as per the direction of this Hon’ble Commission they have adjusted the interest earned on the amount paid by the third party from 20.09.2021 till 10.09.2022 being a sum of Rs.1,02,262/-. The rate of interest made applicable is the same rate of interest that was made applicable to the loan account from 20.09.2021 till 10.09.2022.  However the repayment of the loan account is still pending that can be seen from the loan statement and also the letter dated 21.09.2022 with an outstanding of Rs.3,18,128/-.  The complainant has not made any payment to this OP since September 2021.  This complainant has availed the benefits of PMAY scheme by way of receiving Rs.2,67,280/- from the National Housing Bank. On the said amount along with processing fee has been reversed by this OP to National Housing Bank.  The non-issue of NOC by this OP is for the aforesaid reason that the loan account is not fully repaid by the complainant.  The complainant has suppressed the material facts.

26. It is clear from the exhibits P1 to P4 that as per the instructions of the OP bank the complainant has cleared the loan amount as per the closure letter dated 23.07.2021.  As per the letter an amount of Rs.12,56,224.10 ps., was due towards the home loan amount. As per the OP instructions, the builder has transferred the amount of Rs.12,56,524/-  as on 20.08.2021.  After transfer of the amount it is the duty of the OP to issue NOC certificate in favour of the complainant for close of the loan account of the complainant.

27. It is also clear from the Ex.P3 the mail communication that after payment of VBHC the complainant has approached this OP customer relation officer Sri.Ramesh and the complainant has shared the UTR details.  At that time this OP officer again demanded further amount of PMAY then to close the loan.  After that the complainant has also explained to the OP that as per the closure letter the payment has been done.

28. It is pertinent to note here that as per the very statement produced by the OP along with their written submission, the VBHC has transferred the amount of Rs.12,50,525/- on 20.09.2021.  when the complainant has paid the entire amount as per the closure letter issued by the OP bank, the OP bank would have informed him before issuing the closer letter that he is due amount towards PMAY amount. It is also clear from the documents produced by both the parties that the loan amount was released directly to the builder and not to the complainant.  The builder VBHC has cleared the loan amount. If the amount is due it is the duty of the OP to give the correct calculation of the loan amount in the letter dated 23.07.2021. when they have clearly stated in the letter dated 23.07.2021 sent to the complainant with the mail Ex.P3 that the total amount payable is only Rs.12,56,224/-.  As per the assurance given by the OP officer the complainant has also agreed to pay 10 days extra interest to the OP bank. Even though the complainant has cleared the loan amount as on 20.09.2021 and it was taken into account by the OP bank they have not closed the account and they are not ready to issue NOC.  Again they have taken the contention that the complainant is due Rs.3,18,128/- as per the letter dated 29.01.2022.  As per their letter the outstanding principal amount is Rs.1,23,628.66 ps., and cheque bouncing charges Rs.9,440/- and interest for the month Rs.548/- and other charges Rs.2,86,773/- and they have deducted only Rs.1,02,262/- towards refund and they have shown the due amount as Rs.3,18,128.26 ps., after lapse of one year.

29. Even though the OP have not at all taken into account, the amount of Rs.12,50,525/- transferred by the VBHC on 20.09.2021 and they have continued to collect the EMI from the complainant even though the complainant has clearly explained and shared the documents for having paid the entire amount and the closure letter issued by the OP.  The complainant is not liable to pay any amount after 20.09.2021 as he has cleared the entire amount in view of the amount transferred by the VBHC as per the closure letter Ex.P2.

30. The OP without considering the loan amount paid by the complainant through the builder has initiated action under SARFAESI act against the complainant on 29.01.2022 and they have harassed the complainant even though he has cleared the loan amount as per their demand as on 20.09.2021.  

31. It is also clear from the evidence of the complainant that even today the OP collection centre officials are harassing the complainant and demanding the complainant to pay the amount. Under these circumstances the complainant has suffered mental agony and also financial loss and harassment from the OP.  Inspite of clearing the loan amount the OP have made the complainant to face the proceedings under the SARFAESI act for no fault of him. It is also clear from the entire evidence and documents that due to the negligence and lethargic auction on the part of the OP officials the complainant has suffered mental agony and harassment.  It is the duty of the OP officers to issue the closure letter of the loan amount after calculating the correct amount due from the party.  If really the complainant was due more than Rs.12,56,224.10 ps., as on 23.07.2021 nothing prevented the OPs for mentioning the correct amount due as on the date from the complainant.  When the complainant has cleared the amount as per the closure letter, is not liable to pay any amount either towards principle or towards interest after 20.09.2021.  Hence the complainant has clearly established the deficiency of service, negligence and unfair trade practice on the part of the OP. Therefore the complainant is entitled for the relief claimed in the complaint.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

32. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. The OP is hereby directed to issue NOC and close the loan account of the complainant immediately.
3. The OP is further directed to pay the damages to the tune of Rs.1,00,000/- for the hardship, mental trauma and loss suffered by the complainant.
4. The OP is directed to pay the litigation expenses of Rs.10,000/- to the complainant.
5. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 10% p.a. after expiry of 60 days on Rs1,10,000/- till final payment.
6. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 28^th day of AUGUST 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;