Delhi

North

CC/267/2023

FANCY READY MAD STORE - Complainant(s)

Versus

INDIABULLS HOUSING FINANCING LIMITED - Opp.Party(s)

14 Dec 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.267/2023

In the matter of

Fancy Readymade Store

Through its Proprietor Mr Satish Chand Aggarwal

S/o Late Shri Shankar Lal

Office Add.: 2709, Main Bazar, Sabji Mandi

Ghantagarh, North West Delhi- 110033      …      Complainant

 

Vs.

Indiabulls Housing Finance Limited

Regd. Off.: First Floor,

25, Najafgarh Road, Shivaji Marg

Moti Nagar, New Delhi-110015                            …     Opposite Party No. 1

 

Dhami Finance Limited

Corporate Regd. Off.: 202, Vasant Vihar

District Consumer Complex, DRCG Road

Chembur, Mumbai, MH- 400074               …     Opposite Party No. 2

 

ORDER

14/12/2023

(Divya Jyoti Jaipuriar)

1.       By way of this Complaint, the Complainant M/s Fancy Readymade Store has alleged wrongful charging of the foreclosure charges by the OPs on premature repayment of three loans. The Complainant has also filed an application seeking condonation of delay of 85 days in filing the complaint. We have heard the arguments of Sh. S N Pandey, Ld. Advocate for the Complainant on the admissibility of the complaint on last date of hearing before reserving orders.

2. The Complainant herein is a proprietorship firm managed by Sh. Satish Chandra Aggarwal. There are three loans which are subject matter of this complaint- (i) HLAPNO100302091 for a sum of Rs. 30,00,000/-disbursed on 16.11.2016 in the name of Complainant Firm with Ms Seema Aggarwal and Shri Satish Chand Aggarwal as co-applicants/ guarantor (ii) HLAPNO100302096 for a sum of Rs. 45,50,000/-disbursed on 18.11.2016 in the name of Complainant Firm with Sh. Mayank Aggarwal, Ms.  Seema Aggarwal, Sh. Priyank Aggarwal and Shri Satish Chand as co-applicants/ guarantor and (iii) HLAPNO100302096 for a sum of Rs. 15,15,000/-disbursed on 21.09.2076 in the name of Complainant Firm (details of co-applicants/ guarantor cannot be ascertained as the loan sanction letter for this loan has not been filed). All these three loans were sanctioned and disbursed by M/s Indiabulls Housing Finance Company Limited (OP-1). In the entire complaint, there is no pleading or document on record to suggest any role of M/s Dhami Finance Limited (OP-2).

3. In the condonation of delay application, the Complainant has pleaded that the cause of action arose in this matter on 27.08.2019 when the Complainant made the payment of pre-closure charges to the OP-1. It is further pleaded that after factoring the extension of limitation period in terms of the various orders passed by Hon’ble Supreme Court in the matter of In Re: Cognizance for Extension of Limitation [MA No. 21 of 2022 in MA No. 665 of 2021 in Suo Motu Writ Petition (C) No. 3 of 2020], the limitation period ended on 12.08.2023. Thereafter, due to the illness of the AR of the Complainant, he could not contact the Advocate for drafting and filing of the Complaint. The time between filing of the earlier complaint bearing CC No. 232/2023 (Satish Chand Aggarwal vs Indiabulls Housing Finance) before this Commission on 04.10.2023 and its withdrawal on 20.10.2023 has also been pleaded to be excluded from the calculation of limitation period. It is contended that in total, there is a delay of 85 days in filing of this Complaint.

4. The period between 14.03.2020 and 28.02.2022 (both days included) in view of the various orders of Hon’ble Supreme Court in Re: Cognizance for Extension of Limitation (supra), is excluded from calculation of limitation. Further, delay because of pendency of CC/232/2023 before this Commission can also be condoned in view of the judgment of Hon’ble Supreme Court in the matter of Laxmi Engineering Works vs. P.S.G. Industrial Institute [(1995) 3 SCC 583]. However, there are no medical records to explain the ailments of the AR of the Complainant Firm as pleaded in the application.

5. Further, the calculation of delay has been done from the date when the Complainant has made the payment of the foreclosure charges. This is wrong calculation. The loan sanction letters on record suggest that the OP-1 has intimated the Complainant at the time of sanctioning of loan about the foreclosure charges. The loan sanction letter dated 16.11.2016 clearly indicates that the OP-1 has informed the complaint that in case one of the borrowers/ co-borrowers is a non-individual i.e. Company, Firm, HUF, LLP, Trust, Society, or a Proprietorship entity, pre-payment charges shall be applicable as per the policy of IHFL (OP-1) and such charges are available on the website of OP-1. Subsequent loans are linked to the loan as granted on 16.11.2016, hence the said communication regarding pre-payment charges are equally applicable to subsequent loans as well.

6. As the intimation about the pre-payment charges was given by the OP to the Complainant for the first time when the first loan was sanctioned and disbursed on 16.11.2016, the limitation has to be calculated from the said date. This is because of the settled principle in consumer cases that the calculation of limitation is done from the date when first cause of action has arisen. In this context, we would like to refer to the judgment of Hon’ble Supreme Court in the matter of Kandimalla Raghavaiah Vs. National Insurance Company Ltd. [(2009) 7 SCC 768], in which Hon’ble Supreme Court has held that for the purpose of calculating the limitation under the provisions of Consumer Protection Act, the date on which first cause of action has arisen should be considered.

7. Further, in Kandimalla Raghavaiah case (Supra), Hon’ble Supreme Court has also held that the complaint is liable to be dismissed, if the delay is not duly explained. In the case in hand, the Complainant has not explained the reasons for the delay of more than five years in filing this complaint. In the matter of State Bank of India vs B S Agriculture (I) [(2009) 5 SCC 121], Hon’ble Supreme Court has held that Consumer Forum should deal with the merit of the case only if the complaint is filed within the limitation period or if the Complainant has explained the cause of delay. In such case, the Consumer Forum is required to pass a reasoned order on the application seeking condonation of delay.

8. In the case in hand, the Complainant has not explained the reasons for the delay as calculated from the instance of first cause of action as on 16.11.2016. If we calculate the limitation from the said date, the limitation came to an end on 16.11.2018, which was much before the extension of limitation as granted by Hon’ble Supreme Court in Re: Cognizance for Extension of Limitation (supra). There is no explanation for such delay since 16.11.2018. Hence, on this ground of limitation, this application seeking condonation of delay is liable to be dismissed.

9. Even otherwise, the circular issued by Reserve Bank of India vide RBI/2020-21/60/ DOR.NBFC (HFC). CC. No. 118/03.10.136/ 2020-21 dated 22.10.2020 on the subject: “Review of regulatory framework for Housing Finance Companies (HFCs)” is applicable only to, inter alia, individuals or group of individuals including co-operative societies for construction/ purchase of new dwelling units, corporates/ Government agencies for employee housing. In cases, where the borrower or co-borrower is not an individual, the said circular is not applicable. Further, the said circular provides that Housing Financial Companies shall not impose foreclosure charges/ pre-payment penalties on any floating rate term loan sanctioned for purposes other than business to individual borrowers, with or without co-obligant (s). In the case in hand, the borrower namely M/s Fancy Readymade Store is not an individual borrower. Hence, the circular dated 22.10.2020 issued by RBI is not applicable in the case in hand.

10. As this complaint is filed beyond the limitation period since the date of first cause of action, which has not been properly explained, this application seeking condonation of delay is liable to be dismissed. Accordingly, the application seeking condonation of delay is dismissed.

11. In view of the fact that the application seeking condonation of delay is dismissed, the complaint is also dismissed at admission stage itself on the ground of delay.

12. Office is directed to supply the copy of this order to the parties as per rules. Thereafter, file be consigned to the record room.

 

 

___________________________

Divya Jyoti Jaipuriar, President

 

 

___________________________

Ashwani Kumar Mehta, Member

 

 

___________________________

Harpreet Kaur Charya, Member