Complainant by filing this complaint has alleged that complainant wanted to avail a home equity loan from the op no.1 and for which the complainant met with op no.1and applied for an Equity Home Loan of Rs. 4 lakhs for the purpose of buying a flat for himself and his family members.  On 31.10.2011 the said loan was disbursed after a month after completion of all formalities as required by the Bank itself and the sakd loan was sanctioned with condition of repayment of same by 120 EMIs @ Rs.58,551/- and having schedule date of payment on 8^th of every month and EMI starts from 8^th December, 2011 and at the time of preparting the loan matter, the employee of the said op’s Sri BiswajitSaha who was looking after the said matter and took several signatures on blank papers as per request of that Sales Executive and handed over those papers to that complainant.

          Fact remains date of loan disbursement was 30.11.2011but complainant did not receive any Demand Draft on that day but received the same on 07.12.2011 after expiry of 8 days from the fixed date of disbursement on 30.11.2011.  But actually the said loan amount should be received on 30.11.2011.  But it was received on 07.12.2011 and that was brought to the notice of the op and complainant requested the op to correct the date of disbursement and also to change the date of EMI deposit in place of 8^th January 2012.  But even after communication made by the complainant, the op has sent a fake demand of interest of Rs.11,112/- extra for 7 days which is not liable to be due by the complainant and fact remains complainant paid such fake amount because if the amount was not paid the sanctioned loan amount would not have been disbursed by the op.

          After such payment of the fake demand complainant wrote many letters to the regional as well as head office and ran from pillar to post but all in vain and for instance cause of action arose on 09.12.2011 when the complainant wrote letter to the ops about such discrepancies and waited for their reply.  But in the meantime 6 months have already expired and no reply is made.  So, complainant being dissatisfied about the conduct of the ops and for causing harassment etc complainant fails this complaint for redressal.

          On the other hand the op nos.1 & 2 by filing written statement admitted that complainant was granted housing loan for a sum of Rs. 4 lakhs and upon receipt of the application for loan, op/bank considered the same on the basis of the documents furnished by the complainant and issued a sanction letter dated 31.10.2011 and further bank issued a Demand Draft bearing No.887796 dated 30.11.2011 for a sum of Rs.4 lakhs but the demand draft was not taken delivery by the complainant to be encashed till the following documents were submitted with the bank i.e. updated Tax Receipt and NOC Cooperate Society, Power of Attorney favouringRajendraAgarwal by Jatin Devi Agarwal to be submitted in original, Revised Valuation Report is to be obtained and Afidavit for No Suit, Genuiness Certificate on Original Deeds to be done through Panel Counsel and Loan Agreement partly filled up and it is further submitted that complainant on 07.12.2011 furnished those documents as mentioned hereinabove and took delivery of the demand draft for a sum of Rs. 4 lakhs dated 30.11.2011 and as per the sanction letter the complainant was obliged to make deposit of the agreed Equal Monthly Installments from 8^th December 2011.

          It is further submitted that complainant in view of the disbursement of the loan amount by issuance of demand draft dated 30.11.2011 agreed to pay the Pre EMI Interest in writing which entitled the bank to recover the amount of Rs.11,112/- calculated for the period i.e. 30.11.2011 i.e. till 07.12.2011 when the demand draft was prepared and lying ready on account of the complainant.

          Further it is submitted that the agreement was executed in the normal and usual course of business in acceptance of the terms and conditions contained therein and the contents of the agreement are all true and correct.

          Further it is submitted that the bank being in the business of commercial lending was entitled to such Pre EMI interest since issuance of demand draft dated 30.11.2011 for Rs. 4 lakhs and due to delay on the part of the complainant in not furnishing the required documents as aforesaid, the demand draft was taken delivery on 07.12.2011 and say the bank was in no manner responsible for the delay on the part of the complainant.  The copy of the Customer letter for Disbursal with Pending Documents dated 30.11.2011 and letter dated 30.11.2011 issued by the complainant are also filed collectively for the purpose of considering the entire fact of the op.

          It is further submitted that letter for disbursal dated 30.11.2011 was received by the bank in the normal and usual course of business.  The contents whereof all true and correct and it is further submitted that as per terms and conditions of the above loan agreement ops are entitled to get interest for 7 days calculated from the date of disbursement till 08.12.2011 which comes to the sum of Rs.11,112/- as agreed and accepted by the complainant in writing and so bank rightly as per banking practice duly debited the sum in the account of the complainant and the bank by its letters dated 25.05.2012 duly notified the aforesaid facts to the complainant and complainant suppressed the said fact and for which complainant is not entitled to get back the said amount.  It is further alleged that due to non-furnishing of the required documents by the complainant and though demand draft was prepared on 30.11.2011, the same was taken delivery by the complainant on 07.12.2011 upon furnishing the required documents and the demand draft was immediately handed over to the complainant after furnishing required documents during banking hours and in view of the above fact there was no question of postponement of EMIs from 08.12.2011 to 08.01.2012 and in the above circumstances, the entire complaint should be dismissed.

          Decision with reasons

          On proper consideration of the entire material on record including the version of the complaint and the written version of the , it is undisputed fact that loan was sanctioned to the extent of Rs.4 lakhs as per prayer of the complainant as per Home Equity Scheme and no application was taken from Rajendra Kumar Agarwal along with UttamAgarwal and it is admitted fact that sanction was made on 30.11.2011 and EMIs would be paid on 8^th each month but considering the account statement as submitted by the op dated 05.12.2013 (generated on that date) and as filed by the op it is found that on 30.11.2011 loan account was started and Rs.4 lakhs as shown as credited in the account of the complainant.  But truth is that on that date complainant did not receive the said demand draft as stated by the op.  But as per account statement it is found that op has recorded in their account statement that amount of Rs.3,97,425/- was paid vide cheque No.887796.  But truth is that on that date no such cheque was hanced over to the complainant.  But it is admitted fact that demand draft was handed over by the op to the complainant on 07.12.2011.  Then how before encashment of the demand draft by the complainant on 07.12.2011 the loan account can be opened when in between 30.11.2011 to 07.12.2011 some other parafarnalia complied with by the complainant as per letter of the op, then it is clear at the relevant time i.e 30.11.2011 the loan matter was not matured finally.  So, it is clear that from 30.11.2011 to 07.12.2011 in fact the demand draft was not handed over to the complainant.  Then it is clear that the account statement as submitted by the bank is fabricated one and if any proof and reasonable means shall opine after considering the bank loan account statement of the complainant that bank as per his own desire prepared the account because complainant received the demand draft and on 07.12.2011 but not on 30.11.2011.

          Most peculiar factor is that the first entry of the account statement is on 30.11.2011 wherefrom it is found that Rs.27,575/- is shown as received but peculiar factor is that complainant did not pay Rs.27,575/- on 30.11.2011 and there is no scope to extra account in such a manner if loan amount is not deposited.

          Further it is found that in the account statement on 30.11.2011 2^nd Column is shown amount finance payable and it was shown as proof that was not credited.  Further fact is that on 30.11.2011 it is shown that amount paid vide Cheque No.887796 but amount is shown as Rs.39,72,425/- but not Rs.4 lakhs.  But truth is that on 3011.2011 complainant did not receive, did not get the said demand draft of Rs.4 lakhs on the ground op required further documents and after satisfaction of submission of those documents demand draft shall be handed over.  Then it is clear that op did not hand over the said demand draft of Rs.4 lakhs for want of certain documents which was not reported to the complainant by the op prior to 30.11.2011 but it was reported on 30.11.2011 and op stopped to hand over the said cheque.  Thereafter complainant collected all those documents and submitted it on 07.12.2011 of which date bank was satisfied that all the required documents were submitted by the complainant and then the said demand draft was handed over to the complainant.  So, it is proved that op did not hand over demand draft and there was no scope on the part of the op to prepare any demand draft when op required more documents.  Then for what purpose they prepared such demand draft when that amount was within the custody and possession of the op.  So, considering all the above fact and also the admission of the op it is clear that demand draft of Rs.4 lakhs was not handed over.  Actually they deposited Rs.39,7425/- on 07.12.2011 but no such column is shown in the account statement and such an act is no doubt an unfair trade practice on the part of the op and fact remains from 30.11.2011 to 07.12.2011 complainant did not enjoy the said amount and there was no scope on the part of the op to hand over such cheque and for which under any circumstances op/bank have not authority to charge any interest over the non-disbursed loan amount of Rs.4 lakhs and to that effect the allegation of the complainant is quite correct and it bear merit and at the same time complainant has been able to prove that the present op/bank adopting unfair trade practice and claimed a vexatious interest to the extent of Rs.11,112/- and under any circumstances, op/bank had his no authority to charge such interest which is in the eye of law completely bad in law.

          In this context we have consulted the RBI guide lines about charging of interest and wherefrom we have gathered that the interest can only be charged against in loan amount from the date of the cheque or demand draft has been handed over to the Lonee member but not prior to that and if this principle is applied in this case it can safely be said that there was no clause on the preparation of demand draft on 30.11.2011 because on that date the op asked the complainant to file some other documents that means the total loan matter was not matured for want of documents and it is the principle of law that the process of preparing demand draft or cheque for issuance in favour of the lonee member shall arise after all the required documents of the op/bank is filed by the lonee member complainant and after satisfaction of the op, the op/bank shall have to hand over the demand draft or chequeetc showing as disbursement.  But in this case before conception birth was caused.  But anyhow such sort of private banks can give birth such sort of disbursement before conception that is before delivery of demand draft to the complainant and that is their business that is the practice of the private banks and no doubt in this case RBI guide line some other private banks such as HDFC, ICICI etc are leading private banks who are adopting unfair trade practice in so many cases and they found continuing such unfair trade practice and unmenchantable practice in so many cases has been admitted by the Forum in some other cases also and by adopting unfair means they are squeezing money from the customers when customers already enter into the agreement and when the cheque or demand draft is subsequently delivered and acknowledged by the complainant.

          Considering all the above facts and materials we are convinced to hold that in fact the op/bank adopting unfair trade practice assessed illegal interest of Rs.11,112/- without disbursing the loan in the credit of the complainant and fact remains to prove their genuinity they prepared account statement in such a fashion all before birth of child was borne in the account statement and it was started with such false bringing case on 30.11.2011.  There was no transaction but on 30.11.2011 3 transactions were shown.  Another factor is that on 30.11.2011 no amount ought to have been credited in the name of the complainant in view of the fact the loan matter for want of documents and op asked the complainant to file those documents and those documents were filed by the complainant on 07.12.2011.  Therefore, as per op’s version, op handed over the said demand draft then how op can charge interest from 30.11.2011 to 07.12.2011 and that is no doubt an unfair trade practice on the part of the op and for which no doubt the op should be penalized for adopting unfair trade practice and the allegation of the complainant against the op is proved well for which this complaint succeeds.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against the ops.

          Ops are directed to return the deducted interest amount of Rs.11,112/- within 15 days to the complainant along with compensation of Rs.5,000/- to the complainant for harassing in such a manner and for adopting unfair trade practice.

          For adopting such unfair trade practice ops are imposed punitive damages to the extent of Rs.10,000/- which shall be paid to this Forum for adopting unfair trade practice and for also adopting unmerchantable trade with the poor consumers.

          Ops are directed to comply the order within 15 days from the date of this order and to satisfy the decree within 15 days from the date of this order failing which for reluctant attitude to comply this order op shall have to pay penal interest @ Rs.200/- per day till full satisfaction of the decree.  If ops even after that defies and disobeyance  the Forum’s order in that case criminal proceedings u/s 27 of C.P. Act 1986 for which ops shall be liable for this.