DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/ 614/2008
No. DF/ Central/
- SHRI MUNI LALGOEL,
S/o Late Shri M.L. Goel,
R/o 80, AGCR Enclave,
Vikas Marg Extension,
Delhi – 110092.
- SMT VEENU MANGLA,
W/o Shri Suresh Mangla,
R/o 122-A/4, Gautam Nagar,
New Delhi.
- SHRI SURESH MANGLA,
S/o Late Shri Mangat Ram Mangla,
R/o 122-A/4, Gautam Nagar,
New Delhi.
……..COMPLAINANTS
VERSUS
1. ING VYSYA BANK LIMITED,
Consumer Assets Division,
871, East Part Road
Karol Bagh, New Delhi.
2. ING VYSYA BANK LIMITED,
Registered and Corporate Office,
ING Vysya House , 22-M.G. Road,
Bangalore - 560001
…..OPPOSITE PARTIES
ORDER
Rekha Rani, President
- This is third round of litigation initiated by the complainant.
- Facts of the case leading to first, second and third round of litigation are as under:
Complainant along with his daughter and son-in-law applied for home loan from ING Vsya bank Ltd (in short the OP) for construction of first and second floor of his house on 11.01.2005. The OP issued provisional sanction letter dated 09.02.2005 and final sanction letter dated 19.02.2005 for an amount of Rs. 9.4 Lakhs which sanction was cancelled by the OP having lapsed on expiry of 90 days. The complainant vide letter dated 10.06.2005 protested that he had submitted requisite documents for home loan to the OP within 90 days and therefore withdrawal of sanction of home loan was unjustified. On request of complainant OP issued another sanction letter dated 04.08.2005. On 27.09.2005 complainant approached the OP for disbursal of the loan amount. But OP. refused to disburse the loan amount and demanded some more documents. On 27.10.2005 sales manager of the bank of the OP collected all the documents ,yet vide letter dated 07.11.2005 the OP demanded Nil Encumbrance Certificate and latest house tax receipt. Although AR of complainant submitted requisite documents. OP refused to disburse the loan and demanded interest from the date of preparation of demand draft i.e. 31.10.2005. Several meetings took place with the senior officials of the OP but to no avail.
- OP’s case is that final sanction letter for Rs. 9.04 Lakhs towards home loan was issued on 19.02.2005 and as the loan was not availed by the complainant within a period of 90 days the sanction had lapsed and the complainant was intimated about the same vide their letter dated 02.06.2005. On request of the complainant OP again sanctioned loan vide letter dated 04.08.2005 however complainant failed to submit latest house tax payment receipt and non encumbrance certificate with respect to the property in question. According to the OP on assurance of the complainant that he would submit latest house tax payment receipt and non encumbrance certificate of the property in question the OP prepared demand draft on 31.10.2005 but complainant failed to submit the two documents and therefore the OP cancelled the DD on 25.11.2005.
- At this stage began the first round of litigation when the complainant filed petition before Banking Ombudsman on 17.02.2006 and vide award dated 23.08.2006 Ombudsman concluded that the complainant had not complied with the procedural formalities within a period of 90 days from the date of sanctioning of the housing loan. However banking Ombudsman found that the charges received from complainant towards process fee, insurance fee pursuant to his housing loan application was unjustified and accordingly said amount was ordered to be refunded to the complainant. No compensation was granted towards loss of rental income or escalation of cost of construction.
- Complainant being not satisfied with the order of Banking Ombudsman preferred an appeal before the Appellate Authority under the Banking Ombudsman Scheme 2006 and Appellate Authority disposed of the appeal vide order dated 07.08.2007.
- At this stage began the second round of litigation when the complainant filed a complaint U/s 12 of the Consumer Protection Act 1986 as amended before the District Consumer Disputes Redressal Forum (Central) and vide order dated 17.01.2011 this forum concluded that the complaint was time barred. It was observed that:
“According to the case of the complainants themselves, a final meeting was held with Shri Yash Chawla, Vice President of the bank, Home Loan at Karol Bagh branch. Shri Chawla told the complainant that if he wanted to avail the home loan then he would have to pay half interest from 31.10.2005 and other half would be borne by the bank. The complainant turned down the demand, vide letter dated 23.11.2005 Ex-I. Therefore, on 20.12.2005, the complainant sent the minutes of the meeting with Shri Chawla, dated 14.12.2005 and documents demanded by the bank vide letter dated 07.01.2005. It was received by the bank on 23.12.2008 therefore the bank did not communicate with the complainant. Thus for all practical purposes, the bank declined to disburse the loan amount on 14.12.2005, unless the complainant would agree to pay half of the interest w.e.f. 31.10.2005. The complainant did not accept the demand and communicated to the bank on 20.12.2005. Hence, cause of action to file the complainant before the Consumer Forum arose in December, 2005. In the aforesaid circumstances, the complainants could have filed the complaint before the District Forum within the period of two years from the date of cause of action as per Section 24(a) of the Consumer Protection Act. They did not do so and voluntarily choose to file petition before the Ombudsman of the bank. The complainants have not filed the application to condone the delay nor any plausible explanation has been given to condone such delay. Therefore, the complaint has been filed beyond the period of limitation and it cannot be looked into to decide on merit.
The Consumer Forum is not the Appellate Authority to adjudicate upon the award passed by the Ombudsman. Further, the District Consumer Forum is not executing forum to get execute the award passed by the said Appellate Tribunal. If there is any deficiency in service on the part of the bank by not complying with the directions issued by the Appellate Tribunal, then the complainant shall find out the forum where he can get his grievances redressed. In any case, the bank found that the complainant had not complied with its requirements to disburse the loan amount and, to honour the award passed by the Tribunal and, as such it sent demand drafts of Rs. 4983/- towards the amount of processing fee and Rs. 1932/- towards insurance amount.”
- Being aggrieved by the order of District Consumer Forum (Central) the complainant filed appeal bearing no. FA-1100/96 before the State Commission and vide order 29.04.2011 the State Commission dismissed the appeal in limine by observing that :
“3. The first thing which needs mention is that under no Law and procedure, a bank can be compelled to give loan, and that is what the complainant wants. If in the process of furnishing documents or other materials some expenses have been incurred by the complainants, as argued he cannot be entitled to the same.
4. There is another ground on which the appeal is liable to be dismissed, and that is, that the matter was adjudicated by the Banking Ombudsman under the Banking Ombudsman Scheme and the award passed by the Banking Ombudsman was challenged in appeal before the Appellate Authority which is set aside the award passed by the Banking Ombudsman vide order dated 07-08-2007. The order passed by the Appellate Authority is attached as Annexure ‘B’. The Forum cannot therefore re-open the proceedings, and cannot pass another judgment, on the dispute. There is no question of deficiency in service involved.”
- Being unhappy with the verdict of the State Commission complainant approached National Commission vide revision petition no. 2304/2011 and vide order dated 03.05.2016 National Commission observed
“As agreed by both the parties, the matter is remanded to the concerned District Forum with a direction to hear the parties afresh on merits as well as question of delay, if any, and then pass an order within three months from today in the consumer complainant. The revision petition stands disposed of accordingly”.
- Persuant to the said order notice was issued to the OP who has appeared and contested the claim vide its written statement. Parties have adduced evidence and also filed written arguments.
- That OP has inter-alia taken an objection that the complaint is hopelessly time barred. It is stated that the cause of action, if any , arose in December 2005 whereas the instant complaint was filed on 30.10.2008. Complainant , on the other hand, has submitted that he was pursuing his remedy before Banking Ombudsman and thereafter before Appellate Authority. He submitted that the time consumed in litigation before Banking Ombudsman and Appellate Authority be considered and delay if any, in approaching this forum may be condoned.
- OP has further submitted that having already approached Banking Ombudsman and thereafter Appellate Authority for redressal of his grievances, the complainant cannot initiate another round of litigation before consumer forum under Consumer Protection Act.
- We have carefully applied our mind to the submissions made on behalf of both sides.
- In Vivek Harsh International Vs Corporation Bank , III (2009) CPJ 299 (Raj.) it was held that order passed by Banking Ombudsman is recommendatory in nature having no legal section and therefore complaint is maintainable under Consumer Protection Act which provides additional remedy even though complainant approached Banking Ombudsman earlier.
- In IDBI Bank V/s Pardeep Tayal , IV (2010) CPJ 315 (Chd) it was observed that Banking Ombudsman is not a statutory authority and therefore consumer after claiming relief in front of Banking Ombudsman can approach consumer fora under section 3 of the Consumer Protection Act 1986 which provides for an alternative remedy.
- In Ashminder Pal Singh vs The New India Assurance Co. Ltd Complaint No.C-47/2002 vide order dated 27.03.2009 SCDRC Delhi observed that it has been stated in the order of the Hon’ble High Court dated 12.07.2005 that the award passed by the Insurance Ombudsman dated 03.12.2001 is not binding on the complainant. It was further observed as under :
“33. As regards the verdict of Ombudsman relied upon by the counsel for the OP it is neither binding though may be persuasive nor has any relevance as the remedy under section 3 of Consumer Protection Act 1986 is in addition to and not in derogation of any other law for the time being in force. While widening the scope of Section 3 of Consumer Protection Act, Supreme Court in large number of cases has taken a view that even if there is remedy available in any other legal forum or even if there is arbitration clause between the parties, still the aggrieved party can file complaint under Section 12 of the Consumer Protection Act 1986 seeking indemnification of the loss, compensation for mental agony, harassment, physical discomfort and other injustices suffered by him as no other statute provides such reliefs .
34. It is an additional remedy arising from the charge of deficiency in service, as defined by Section 2(1)(g) of Consumer Protection Act 1986 which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertake to be performed by a person in pursuance of a contract or otherwise in relation to any service and if the service provider is held guilty for deficiency in service it has to compensate the consumer as to the expected loss, actual loss, mental agony, physical discomfort, emotional suffering, and all other injustice suffered by him.”
- It is also relevant to note that District Forum vide order dated 07.01.2011 had concluded that since the complaint is time barred there was no requirement to adjudicate the claim on merits which order was set aside by National Commission and matter was remanded back with the direction to adjudicate the claim on merits.
- Accordingly in view of the judgments Vivek Harsh International , IDBI Bank and Ashminder Pal Singh (supra) time consumed by the complainant in pursuing remedy before Banking Ombudsman and Appellate Authority for seeking redressal of his grievances has to be condoned.
- Prasada Rao Apkari , who filed his affidavit on behalf of OP ,deposed in para 10 of his affidavit that considering the request of the complainant OP released first tranche of Rs. 2,26,000/- which was to be paid to him on 31.10.2005 and accordingly vide letter dated 07.11.2005 OP requested the complainant to collect the demand draft of Rs. 2,26,000/- after submitting the required documents i.e. latest house tax receipt and non encumbrance certificate with regard to the property in question. It is further deposed that complainant did not bother to comply with the said letter. It is also deposed in para 11 of the said affidavit that when complainant did not bother to submit the documents as required vide letter dated 07.11.2005 OP was constrained to cancel the demand draft on 25.11.2005 and credit back the loan amount.
- Ex R-7 is the letter dated 07.11.2005 bearing reference no.IVBL/530075006848/CAD/HL/2005-06 addressed to the complainant vide which he was informed that first tranche of loan was released in his favour and he could collect the demand draft for the said amount on submission of two documents namely affidavit of nil encumbrance and latest house tax receipt. Complainant has not proved that he complied with the said letter.
- During the course of the arguments complainant submitted that he had submitted these two documents namely house tax receipt and affidavit of nil encumbrance alongwith his letter dated 20.12.2005. Even if it is presumed that he did submit these two documents along with his letter dated 20.12.2005 the submission was quite delayed as the OP had already cancelled the demand draft and credited back the loan amount on 25.11.2005.
- The complainant had approached Banking Ombudsman who passed award dated 23.08.2006 (Ex. R-8) as under :
“Since the loan was not finally disbursed and the bank was at fault by preparing a demand draft without complete documents , the bank should refund all the charges received from the complainant in the shape of processing fee, insurance if any, etc. The claim of the complainant for disbursement of loan is not tenable as all the formalities/ documents were not completed as per bank’s requirement. In case the complainant still wishes that his fresh loan application may be considered by the bank, he may file the same with the bank with all the supporting documents as per the requirement of the bank.The bank may consider the application on merits and dispose it of within the stipulated period of time as per the laid down instructions of RBI or its own. As far as claim of compensation is concerned, it is observed that since the complainant had not submitted any documentary proof to show the actual loss caused as a direct consequence of alleged omission or commission of the bank, the same is not acceptable in terms of the Banking Ombudsman Scheme ,2006.”
- OP complied with the order of Banking Ombudsman as is indicated in their letter dated 12.10.2006 Ex. R- 9 addressed to the complainant. Complainant replied to the said letter vide his letter dated 17.12.2006 Ex. R-10 wherein he stated that that award passed by the ombudsman has already been rejected by him therefore he returned the demand drafts sent by the OP.
- Appellate Authority vide order dated 07.08.2007 had directed the appellant (complainant herein ) to submit all documents considered necessary by the bank before disbursal of the loan to him. Relevant part of the order is extracted hereunder:
“(i) The bank is directed to disburse the housing loan to the appellant under the sanction letter dated August 4, 2005 without insisting for any interest on the amount covered under the DD dated August 31,2005 after the appellant submits all documents required by the bank in that regard Considering period of time that has elapsed after the sanction letter dated August 4,2005 the bank can demand from the appellant such additional documents as they may considered necessary before disbursal of the loan. The appellant shall submit the documents required by the bank within ten days from the date of receipt of intimation from the bank specifying the documents to be submitted before the disbursal of the loan. In case of failure on the part of the appellant to submit the documents within the said ten days or thereafter to avail disbursement of the loan within the time as may be specified by the bank in that behalf in writing by registered post, the sanction letter dated August 4, 2005 shall lapse and the appellant’s option to avail disbursement of the housing loan under this award shall cease to operate.
(ii)The direction to disburse the housing loan under (i) above will arise only if the appellant furnishes to the bank his letter of acceptance under sub. Cause (8) of clause (12) of the Banking Ombudsman Scheme, 2006 as amended upto date.
(iii) If the appellant fails to furnish his letter of acceptance under sub clause (8) of clause (12) of the Banking Ombudsman Scheme referred to above or otherwise fails to avail disbursement of the housing loan, the bank shall return to the appellant the process fee. Insurance premium , if any received from the appellant towards the sanction of the loan under the sanction letter dated August 4, 2005.”
- OP vide their letter dated 18.08.2007 intimated the complainant that in compliance with the order of Appellate Authority dated 07.08.2007 for re-sanction and disbursal of the home loan he was required to submit the following documents within 10 days to enable the OP to process the loan:
(i) Last two year income tax returns along with computation of income.
(ii) Six month bank statement (saving and current accounts).
(iii) Copy of rent agreements/ other supporting income documents.
(iv) Copy of age /ID/Address Proof
(v) Application form duly filled and signed.
25. Complainant vide his reply dated 24.08.2007 rejected the demand of submission of aforesaid documents the OP for disbursal of housing loan alleging the said requisition of documents to be unjustified. Then OP vide their reply dated 24.09.2007 treated the loan case of the complainant as closed in view of refusal of the complainant to comply with the terms of the order of Banking Ombudsman Appellate Authority.OP also sent a DD to the complainant towards refund of processing fee and insurance amount as required in terms of clause 3 of order of Banking Ombudsman Appellate Authority. Order dated 07.08.2007 of the Appellate Authority clearly indicates that the Appellate Authority had directed the appellant (complainant herein)to submit documents which may be considered necessary by the bank for disbursal of the loan. It clearly indicatesuncalled for persistent defiance on the part of the complainant to comply with the procedural formalitiesrequired for grant of a bank loan.It is therefore clear that complainant has failed to prove any deficiency in service or unfair trade practice on the part of OPs.The complaint is accordingly dismissed.
Announced on this th Day of February 2018.
