.           This order shall dispose of the aforesaid two appeals, arising out of the order dated 27.7.2009, passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) in complaint case No. 173 of 2009, vide which it accepted the complaint qua OP No.1 (now appellant in appeal No.469 of 2009) filed by Sh.J.P.S.Pasricha, complainant and directed OP No.1 to pay Rs.13,673/-alongwith interest @ 12% p.a. w.e.f. 18.12.2007 till its actual payment to him (complainant). It was further directed to pay Rs.1 lac as compensation for deficiency in service and Rs.10,000/- as costs of litigation, within 30 days, failing which to pay the entire amount alongwith penal interest @ 12% p.a. since the filing of the complaint i.e. 3.2.2009 till its actual payment, to the complainant. The complaint qua OP No.2 was dismissed with no order as to costs.

2.         Briefly stated, the facts of the case, are that the complainant alongwith other members intended to purchase a house under construction, in the society namely “Yuvraj Apartments Co-op. G/H Society Limited GH-6, Sector 24, Panchkula (Haryana) for which the loan was required. OP No.1, after undertaking the bargaining process, with the Society, offered attractive loan package on a floating rate of interest. It was stated that the complainant gave an acceptance to the said offer, and, accordingly, the process for sanction of loan was initiated in terms of letter dated 27.3.2004 (Annexure C-2). As per Clause 3 of Annexure C-2 there was to be no pre-payment charges, after two years, if the payment was made from own sources. However, in case of transfer/takeover the pre-payment charges, as applicable, would be levied. Loan of Rs.10 lacs was sanctioned to the complainant, in two different installments, alongwith repayment schedule. It was further stated that the complainant after repaying the part payment of approximately 60% of the total loan i.e. Rs. 6 lacs amount made a representation to OP No.1, for giving waiver of prepayment charges but the same was not given. The complainant had paid all the remaining installments well in time but OP No.2, kept silent for sometime and ultimately, gave intimation to OP No.1 vide C-14, but no payment was made. It was further stated despite issuance of Clearance Certificate of the repayment of entire loan amount vide Annexure C-15 dated 12.8.2008, the OPs still showed Rs.3269/- outstanding against the complainant. Even after the payment of Rs.3269/- shown due against the complainant, the same was still shown outstanding against him by the OPs. The OPs also intended to encash cheque No.318428 dated 31.8.2008 in the sum of Rs.4519/- alleged to be issued by the complainant. The OPs also did not return the original file, which they took at the time of sanctioning the loan, as a result whereoif the complainant suffered a huge loss, as he intended to sell the property, but the deal could not mature, for want of original documents and he had to pay double the amount to the prospective vendee.  It was further stated that the above said acts of the OPs amounted to deficiency, in service, and indulgence into unfair trade practice. Hence, the complaint was filed.

3.         Reply was filed by OP No.1 wherein it admitted the factual matrix of the case. It was admitted that the letter dated 27.3.2004 was sent to the said Society stating therein that there would be no prepayment charges after 2 years of payment made from own sources.  It was also admitted that the loan of Rs.10 lacs was granted to the complainant, vide loan offer letter dated 13.9.2004, on the floating rate of interest. It was also admitted that the complainant applied for refund and the Head Office of OP No.1 at Delhi, was requested to refund the requisite amount of levy charges.  It was further stated that the complainant was intimated that the Head Office was sending cheque of refund of prepayment charges, and that the complainant may collect his original property documents from Area Office, Chandigarh, but he did not come to collect the same. The complainant was also requested in this regard, vide letters dated 1.11.2008 and 7.11.2008 sent by OP No.1 through courier. It was further stated that as regards the refund of prepayment charges, Cheque No.551039 for Rs.11,764/- and cheque No.549609 for Rs.1904/- received from Head Office, Delhi, were sent to the complainant vide registered letter dated 11.11.2008. Vide this letter, the complainant was again requested to collect his original documents from OP No.1 but this letter dated 11.11.2008 was returned unclaimed. It was further stated that, the loan account of the complainant became active, as cheque of installment amount of Rs.4195/- due on 1.8.2009, and sent by him, got bounced on 18.8.2008 and he deposited the amount of Rs.4519/- (including penalty) on 31.8.2008 vide cheque for which the complainant was issued receipt dated 31.8.2008. It was denied that the account of the complainant was closed on 12.8.2008, as alleged by him. It was further stated that the complainant himself did not claim the cheques of refund sent to him, and also did not collect the original documents from the office of OP No.1. All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of the OPs, nor they indulged into unfair trade practice.

4.         Reply was filed by OP No.2, wherein, he stated that he was just a Business Sourcing Agent of OP No.1, and any sanction or disbursement processing of such loan applications, was internal matter and procedure of OP No.1. It was stated that the housing loan was applied for by the complainant with OP No.1 way back in 2004. Accordingly loan offer letter dated 13.9.2004 had been issued to the complainant by OP No.1. It was further stated that in this matter, any decision whatsoever was absolutely within the purview of OP No.1.  It was further stated that on 31.8.2008 the complainant himself called OP No.2 and requested him to deposit Rs.4519/- in his loan account, as he would be unable to repay the same, being out of station, but he (complainant) concocted a false story of playing fraud, on him, whereas he had not paid the amount of Rs.4519/- to OP No.2 till date.  All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, nor he indulged into unfair trade practice.

5.         The parties led evidence, in support of their case.

6.         The learned District Forum allowed the complaint against OP No.1, in the manner, referred to, in the opening para of the judgment.  

7.            Aggrieved by the order, passed by the learned District Forum, the appellant/OP No.1 filed an appeal No.469 of 2009 for setting aside the impugned order, whereas, the complainant/appellant, filed appeal No.472 of 2009, for enhancement of compensation.

8.         We have heard the Counsel for the parties, and have gone through the evidence and record of the care, carefully.

9.         The learned Counsel for the appellant/OP No.1, in Appeal No.469 of 2009 contended that the learned District Forum gravely erred in ignoring the facts, evidence and record of the case. He further submitted that the District Forum was also wrong, in coming to the conclusion that the documents produced by the appellant were forged. He further submitted that the complainant was duly informed by the Corporate Office of the appellant vide letter dated 30.9.2008 that it was sending cheque of refund of pre-payment charges and he should collect the original property documents from the Area Office at Chandigarh. He further submitted that the cheques regarding the refund of prepayment charges were received by the Chandigarh Office of OP No.1. He further submitted that the complainant was sent messages to collect the cheques and the original property documents, but to no avail. Even letters were sent to the complainant through courier for collecting the cheques and the original documents of the property, but to no avail. He further submitted that the District Forum was wrong in coming to the conclusion that since the letters were addressed to J.P.Singh, whereas the loan was advanced to J.P.S.Pasricha, the same were fabricated. He further submitted that the complainant was writing his name in many documents as J.P.Singh, and, as such, J.P.S.Pasricha and J.P.Singh is one and the same person. He further submitted that the cheques of refund were sent to the complainant under registered letter. He further submitted that the original envelope was also shown to the learned District Forum, but while passing the impugned order, the Forum did not mention that it was shown the original envelope but wrongly mentioned that the original envelope was not produced and as such it could not be said as to on which date the said envelope was sent and on which date, it was received back, as unclaimed.  It was further submitted that in respect of the amount of both the cheques of Rs.13,673/- payable to the complainant demand drafts were got prepared afresh and submitted with the appeal alongwith the application for release of the same. It was submitted that the District Forum was wrong in coming to the conclusion that the appellant was deficient in service and indulged into unfair trade practice.  

10.       The learned Counsel for the appellant/complainant, in appeal No. 472 of 2009 argued that while allowing the complaint, the learned District Forum did not take into consideration the actual loss suffered by the complainant, as he had to pay double the amount (i.e. Rs.4 lacs as earnest money and Rs.4 lacs as penality), as the bargain to sell the property failed. It was further submitted that even the District Forum, was wrong, in dismissing the complaint against respondent No.2. He further submitted that the compensation awarded be enhanced.

11.       There is a dispute, between the parties regarding the refund of prepayment charges, which the OP No.1, had wrongly charged from the complainant. The prepayment charges could not be charged by the appellant as is evident from Annexure C-2. No doubt, OP No.1 claimed that it had sent the cheques regarding the refund of prepayment charges vide registered letter, copy whereof is R-VII. Original of R-VII was allowed to be produced at the time of admission of appeal. The report of the backside of R-VIII is not legible. It is not evident there from that it was received as unclaimed. The OP only produced R-VII, photocopy of front side of the Registered letter during evidence, before the District Forum. The photocopy of the reverse side of the envelope, with report of the Postman with stamp of the Post Office affixed thereon was not produced at the time of leading evidence by the OP. The District Forum came to the conclusion, that the documents were procured later on. Not only this, the loan was granted to J.P.S.Pasricha, whereas, the registered letter and the letter through courier were sent to J.P.Singh. From all these facts, the District Forum was right in coming to the conclusion that these documents were prepared later on by OP No.1 to justify its stand, that the cheques regarding refund of repayment charges were sent to the complainant, but the same were received back unclaimed.

12.       The District Forum was also right in coming to the conclusion that OP No.1 illegally charged repayment charges, contrary to Annexure C-2, from the complainant and, thereafter, failed to refund the same, as also return the original documents, despite repeated reminders, sent by him (complainant) and created a false story of sending the cheques through Registered letter R-VIII.

13.       The District Forum was also right in coming to the conclusion, that cheque of Rs.4519/- was not issued by the complainant on 1.8.2008 or that the same was dishonoured. Even memo of dishonour was not produced by the OP. On the other hand, OP No.2 admitted that he paid Rs.4519/- from his own pocket. There is nothing, on record, that he was authorized by the complainant to do so. The District Forum was, thus, right in coming to the conclusion that story regarding issuance of cheque of Rs.4519/- by the complainant was falsely created by OP No.1. The District Forum was, thus, right in coming to the conclusion that OP No.1 was deficient in rendering service and caused a lot of harassment to complainant by not refunding the repayment charges, which were illegally recovered by it, and by not returning the original documents, deposited by the complainant, even after clearance of loan and issuance of Clearance Certificate.

14.       The next question, that arises for consideration is whether the amount of compensation awarded by the District Forum is fair or excessive. In our considered opinion, the compensation of Rs.1 lac awarded by the District Forum, is highly excessive. The Consumer Foras are not meant to enrich the complainants at the cost of the service providers. The compensation should be fair and reasonable. Compensation of Rs.30,000/- in our considered opinion, can be termed as fair and reasonable. The compensation of Rs.1 lac awarded by the District Forum, being highly excessive, is reduced to Rs.30,000/-. With this modification, the order of the District Forum is liable to be upheld.

15.            Coming to appeal No. 472 of 2009, filed by the complainant/appellant, it may be stated here, that the same is liable to be dismissed. No agreement to sell regarding the property, in dispute, which was allegedly entered into between the complainant and Devender Kumar was produced. No document was also produced that the complainant had to pay Rs.8 lacs (4 lacs as earnest money + Rs.4 lacs as penalty), as the alleged bargain fell through, for want of original documents, which OP failed to return to him by that time. The oral evidence, in the absence of primary documentary evidence, cannot be relied upon. The case of the complainant for enhancement of compensation, being based on conjectures and surmises, cannot be accepted. The appeal filed by the appellant/complainant, thus, deserves to be dismissed.

16.       In this view of the matter, the appeal filed by the appellant/OP No.1 is partly accepted and the order passed by the learned District Forum is modified to the extent, referred to above.

17.          Appeal No.472 of 2009 filed by the appellant/complainant, for enhancement of compensation, is dismissed.

18.     The parties are left to bear their own costs, in both the appeals.

19.     A copy of the order be placed in appeal No. 472 of 2009.

20.          Certified copies be sent to the parties, free of cost.

 Pronounced.                                                                        

8^th July, 2011.