Tamil Nadu

South Chennai

CC/82/2020

S.Sriramulu - Complainant(s)

Versus

Kotak Mahindra Bank Ltd., - Opp.Party(s)

M/s. Saravana Prakash

05 Jun 2023

ORDER

  Date of Complaint Filed:18.11.2020

  Date of Reservation     :26.05.2023

  Date of Order             : 05.06.2023

          DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                   THIRU. T.R. SIVAKUMHAR, B.A., B.L.,              :  MEMBER  I 

                               

CONSUMER COMPLAINT No.82/2020

MONDAY,THE 5^th DAY OF JUNE 2023

S. Sriramulu,

S/o N. Subramanian,

“Sree Homes”, Plot No.8, 6^th Street,

Annanur Railway Station Road,

Chennai 600 077.                                                                .. Complainant.

 

-Vs-

The Authorised Officer,

Kotak Mahindra Bank Ltd.

Ceebros Centre,

No.40, Montieth Road,

Egmore, Chennai 600 008.                                           .. Opposite Party.

* * * * *

 

Counsel for the Complainant         : M/s. Saravana Prakash S,    

                                                               D. Bhuvaneshwari, R. Latha

         

Counsel for Opposite Party           : M/s. M. Arunachalam

 

On perusal of records and upon treating the written arguments as oral arguments on endorsement made by the Counsel for the Complainant and the Counsel for the Opposite Party, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

(i)     The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to pay a sum of Rs.10,00,000/- towards mental agony suffered due to the deficient and negligent service rendered by the Opposite Party and to pay a sum of Rs.1,20,000/- towards causing loss to the complaint by not returning the original title deeds on time, returning of Rs.36,400/- excess paid by the Complainant and to pay a compensation of Rs.50,000/- for the cost.

I.  The averments of Complaint in brief are as follows:-

1.     That the Complainant was sanctioned with a sum of Rs.6,00,000/- on 11.7.2005 by the Opposite Party vide loan account No was 413075006370, repayable in 120 EMIS commencing from 08.08.2005 and ending on 08.07.2015.

2.     That the Complainant had paid the entire EMIS promptly without any single default and also closed the loan, where the Complainant was demanded with 12 post-dated cheques in advance so as to enable them to deposit the cheques into their account for realization.

3.     That the Complainant by his own mistake issued five extra cheques to the then ING Vysya Bank on 29.4.2015 by Speed Post and never noticed that there are additional blank cheques issued to them and those cheques have been deposited by the then ING Vysya Bank and realized the amounts for the period from August 2015 to December 2015 to the tune of Rs 36,400/-. Therefore, it is crystal clear that the said ING Vysya Bank Ltd. had collected an extra amount of Rs.36,400/- from the Complainant.

4.     That the Complainant had cleared the entire principal amount and interest due thereon without any default and demanded back the original title deeds relating to the schedule mentioned property, vide letter dated 02.02.2016 sent to the ING Vysya Bank Ltd. Despite his reminders on various dates, the bank had remained deaf to head the Complainant's request for returning of the original title deed.

5.     That the Complainant was put informed that with effect from 01.04.2015, the said ING Vysya Bank got merged with M/s. Kotak Mahindra Bank Ltd., and a new loan Account No.IHL 104603 has been furnished with. Thereby the onus lies on the new Kotak Mahindra Bank for returning the original title deeds to the Complainant.

6.     That the Complainant to his shock and surprise was served with two demand notice dated 19.04.2016 and 02.11.2016, where it was informed that the loan account had become NPA and the Opposite Party demanded a sum of Rs.12,64,896/ which was said to be outstanding, where it is evident that they had not bothered to adhere the KYC policy of the bank and their credentials. Despite the fact that the Complainant had paid the entire EMIs and also demanded the original title deeds to be returned by the letter dated 24.05.2016, without assessing the Complainant's letter and statement of accounts, the Opposite Party had chosen to serve another legal notice claiming that the loan account became NPA. The said act of the Opposite Party is nothing but sheer negligent and deficient of service and depicts the scant regard which they show towards their longstanding and valued customer as it has harmed the reputation of the Complainant.

7.     That the Complainant had given his reply dated 22.11.2017 to all the concocted stories which had beleaguered him and the Opposite Party had not bothered to return the original title deeds. When the Complainant contacted the customer care number of the Opposite Party herein; they informed that as on date a sum of Rs.2,26,036/- is due towards Account No.IHL 104603, where the Complainant could find one thing that Opposite Party them self do not have any consistency in conclude what quantum of dues they want to recover from the outstanding accounts, where each time they quote different amount.

8.     That the Complainant duly after paying all the dues without any default, sought for returning of the original title deeds pertaining to his property in-order to sell his property to a prospective purchaser. Accordingly an agreement to sell dated 10.09.2018 had been entered upon for the value of Rs.30,00,000/-, with one Mr. M.Senthil Kumar, S/o. Mr. B.Moorthy, Chennai, where the compliant had received an advance of Rs.50,000/-.

9.     That the Complainant was forced to file a limited prayer suit for return of original documents which was filed on 03.06.2019 before the Hon'ble City Civil Court, Chennai in OS 3924 of 2019, where upon filing the suit, the Opposite Party had made the Complainant to collect his original deeds without even feeling sorry for making a senior citizen to run between posts and pillars. But even though the Opposite Party authorities had failed to provide the No-Objection Certificate till date where, the Complainant can produce the acknowledgment for having submitted the request to issue the NOC upon completion of paying the entire loan amounts.

10.    That the Complainant was served with a legal notice received from Mr. Senthil Kumar, through his advocate dated 21.10.2019 demanding Rs. 1,20,000/-, (advance amount with interest), which is purely due to the negligent and deficient service of the Opposite Party. However the Complainant had persuaded the proposed purchaser to execute the sale agreement as by now he had got the original documents, but the purchaser was not at all convinced in proceeding further, for which Complainant was forced to suffer in paying the same. Hence the complaint.

II. Written Version filed by the Opposite Party in brief is as follows:

11.      The Opposite Party submitted that the Complainant entered into a loan agreement with the erstwhile ING Vysya Bank Ltd vide Loan agreement dated 26.07.2005 and availed Home Loan facility of Rs 6,00,000/-. The said ING Vysya Bank Ltd Amalgamated with Kotak Mahindra Bank Ltd vide order dated 31.03.2015 issued by RBI. This Opposite Party submits that the Loan availed by this Complainant was taken over by this Opposite Party on 08.10.2015 and the outstanding payable by the Complainant on the said dated is Rs 1,40,270/- which the Complainant has agreed to pay in tenure of 22 months and the EMI amount is Rs 7280/- payable from 08.11.2015 to 08.07.2017 due to the revision of the rate of interest since the Complainant ha availed the loan at floating rate of interest which is subject to revision from time to time.

12.    The above loan has to be paid by the Complainant in 120 EMIS at the rate of interest agreed with the erstwhile ING Vysya Bank Ltd, the rate of interest at the time of sanction of the loan was 8%, the interest type is floating interest rate wherein it was agreed by the Complainant that the rate of interest is subject to revision from time to time. As on 25.09.2019, the Complainant is liable to pay a sum of Rs.2,38,743.98. The Complainant failed to repay the loan availed as agreed. The Complainant has availed loan under floating rate of interest, when the loan account from ING Vysya Bank Ltd was merged with this Opposite Party as per the revision in the rate of interest the due to this Opposite Party as on 08.10.2015 was Rs.140270/- since there was revision in the rate of interest the number of installments increased, and towards the increase in tenor initial payments were made by the Complainant, who committed default thereafter.

13.    This Opposite Party submitted that the Loan availed by this Complainant was taken over by this Opposite Party on 08.10.2015, the Complainant has filed a Statement of Accounts dated 19.11.2014 issued by ING Vysya Bank wherein tenure is specifically mentioned as 145 and the installment period is between 08.08.2005 to 08.08.2017. So before amalgamation itself the Complainant was very well aware that the rate of interest is floating which is subject to revision and at the time of availing the loan the tenure is 120 and as per the statement dated 19.11.2014 as filed by the Complainant the tenure got increased to 145. Since there was amalgamation, taking advantage of the same the Complainant raised an issue stating that he has paid all the 120 EMI, knowing very well that the rate if interest is floating and the tenure is increased to 145. The averment of the Complainant is strictly denied that he has paid the entire EMIS promptly without any single default and also closed the loan. It is further denied that the Complainant had issued 5 extra cheques and there was additional cheques too which was realized for the period from august 2015 to December 2015 to the tune of Rs 36400/-. The Opposite Party further states that due to revision of interest the tenure was extended and towards the extended tenure the payment was made by the Complainant initially.

14.    The Complainant without payment of the full loan amount he cannot demand back the entire original documents the Complainant but he taking advantage of the amalgamation have got back the original title deeds without paying the entire amount since his request for waiver of the outstanding was considered positively.

15.    The Opposite Party submit that in respect of the demand notice date 19.04.2016 filed as Ex.A-6 by the Complainant, it is clearly mentioned the over due outstanding as Rs 46233/ as on 08.04.2016, the Complainant has admitted that he has not paid the installments as per the revised rate of interest. Since the Complainant has failed to make the payments as per the revised tenure due to revision of the interest rate, the loan account of the Complainant was declared as NPA on 07.04.2016 and another demand notice cum loan recall notice was sent dated 02.11.2017 calling upon the Complainant to pay the outstanding dues of Rs.1,75,171.29/-. The Complainant failed to make payment as per the revised tenure which he is aware of even before the amalgamation as per the revised rate of interest. The Complainant is called upon to show proof that he has paid the entire loan outstanding with sufficient documentary proof, his loan outstanding was waived off by this Opposite Party as per his request after filing of OS No 3924 of 2019, only after the dues were waived off the original documents were returned to the Complainant and thereafter the Complainant withdrew the suit. As on 25.09.2019, the Complainant is liable to pay a sum of Rs 2,38,743.98/-.

16.    The averment of the Complainant that in order to sell his property he entered into an agreement to sell dated 10.09.2018 for a value of Rs.30,00,000/- was entered with one Senthil Kumar and the Complainant received a sum of Rs 50,000/-. The copy of agreement to sell filed by the Complainant cannot be relied since the same is an unregistered document and there is no valid reliable proof to show that an advance of Rs.50,000/- was received by him. It is pertinent to mention here that the Complainant herein filed a suit in OS No 3924 of 2019 pertinent to mention here that the Complainant on the file of the XVII Asst City Civil Court, Chennai seeking a relief of mandatory injunction directing the defendant herein to return title deeds. The said suit was withdrawn by the Complainant herein on 20.11.2019.Opposite Party the defendant in the said suit returned the original documents on 08.11.2019. If the above mentioned agreement for sale was really entered upon on 10.09.2018, then the Complainant would have surely made a mention in the Plaint copy in OS No 3924 of 2019 filed on 03.06.2019 stating that he has entered into an agreement for sale with one Mr.Senthil kumar on 10.09.2018 and have received an advance of Rs 50,000/- and renewed the said agreement on 20.04.2019 and received a further advance of Rs 50000/-. If these things were true the same would be pleaded in the plaint and copies of the documents namely agreement for sale with details as to advance received. The agreement for sale and the subsequent legal notice from the advocate of the potential purchaser are created by the Complainant for the purpose of this consumer complaint. Hence, there is no loss suffered by the Complainant as alleged.

III.   The Complainant has filed his proof affidavit and Written Arguments,  in support of his claim in the complaint and has filed documents which are marked as Ex.A-1 to A-15. The Opposite Party submitted his Proof Affidavit and Written Arguments. On the side of the Opposite Party, documents were marked as  Ex.B-1 to Ex.B-3.

IV. Points for Consideration:-

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

POINT NO. 1 :-

17.    The contention of the Complainant is that he had availed Housing Loan for a sum of Rs.6,00,000/- from the Opposite Party (formerly known as ING Vysya Bank Ltd.,) on 11.07.2005 by executing Loan Agreement No.413075006370 to be repayable in 120 EMIs commencing from 08.08.2005 to 08.07.2015. The Complainant had paid the entire dues without default. The Complainant by his own mistake had issued 5 extra cheques which was deposited by the Opposite Party from August 2015 to December 2015 and have collected an extra amount of Rs.36,400/- from the Complainant. After clearing the entire amount the Complainant had demanded return of original title deeds vide letter dated 02.02.2016 to the surprise of the Complainant, the Opposite Party had issued demand notices informing that the loan account has become NPA and to pay the outstanding amount. Even after paying the entire dues the Complainant was not able to sell his property as the Opposite Party did not return the original title deeds. Hence the Complainant was forced to file O.S.No.3924 of 2019 before the Hon’ble City Civil Court, Chennai, where upon filing the suit the Opposite Party returned the original deeds. Further the proposed purchaser of his property Mr. Senthil Kumar had sent notice demanding Rs.1,20,000/- which was paid by the Complainant, which was due to the deficiency of the Opposite Party.

18.    The Opposite Party contended that the Complainant entered into a loan agreement with the erstwhile ING Vysya Bank Ltd vide Loan Agreement dated 26.07.2005 for Rs.6,00,000/-. The said ING Vysya Bank was amalgamated with the Kotak Mahindra Bank Ltd, on 31.03.2015. The Opposite Party had taken over the loan availed by the Complainant on 08.10.2015 on which date a sum of Rs.1,40,270/- was overdue to be paid in 22 EMIs of Rs.7280/- each from 08.11.2015 to 08.07.2017 due to the revision of rate of interest since the Complainant had availed the loan at the floating rate of interest which is subject to revision from time to time. Before amalgamation itself the Complainant was very well aware that the rate of interest is floating which is subject to revision and at the time of availing the loan the tenure is 120 which got increased to 145, due to revision of rate of interest. The Complainant taking advantage of the amalgamation has got the original title deeds without paying the entire amount since his request for waiver of outstanding are considered positively.

19.    The undisputed facts are that the Complainant had availed Housing Loan for a sum of Rs.6,00,000/- by executing Loan Agreement, dated 11.07.2005 bearing No.413075006370 repayable in 120 EMIs commencing from 08.08.2005, which according to the Complainant was paid entirely to the Opposite Party. The dispute arose when the Opposite Party increased the loan tenure to 145 months due to the floating rate of interest as agreed by the Complainant, and for the delay in handing over the original title deeds by the Opposite Party when according to the Complainant he had paid the entire loan amount to the Opposite Party.

20.    A perusal of Ex.A-2 would show that the Complainant had availed loan for Rs.6,00,000/- with repayment period of 120 months at a Equated Monthly instalments of Rs.7280/- with the rate of interest @8%. He had secured his loan by Mortgage by deposit of title deeds in respect of his property. As per Ex.A-5, he had sought for return of original title deeds from the Opposite Party claiming to have paid all the 120 EMIs. However as the Opposite party failed to return the original title deeds, the Complainant had filed a suit for return of documents before the City Civil Court, Chennai in O.S. No.3924 of 2019, as seen from Ex.B-1 which was later withdrawn by the Complainant as the original title deeds was received by the Complainant as evident from Ex.A-12. The contention of the Opposite Party is that having claimed waiver of outstanding due and having received the original title deeds the Complainant is estopped from filing this complaint seeking compensation from the Opposite Party.

21.    Upon perusal of records and in the given facts and circumstances of the case, though the Complainant claiming that he had cleared the entire loan tenure of 120 EMIs, as per Ex.A-3, the statement of Accounts dated 19.11.2014 the rate of interest was 11.6%, as the agreed interest rate was floating and the tenure was increased to 145. By virtue of Ex.A-3 the Complainant had knowledge about the change in interest rate and of the tenure of repayment. It is pertinent to note that the type of interest rate was floating interest rate, which is subject to revision from time to time. It is specifically mentioned that it shall be deemed to have notice of changes in the interest whenever the changes in the floating rates are notified / published in the Newspaper or made through the entry of changes in the Statement of Account that may be obtained from time to time.

22.    The Complainant had repaid the tenure of 120 EMIs as against the revised tenure of 145 months due to variation in the interest rate. Ex.A-6 to Ex.A-9 are the exchange of notices between the Complainant and Opposite Party,  regarding the demand of outstanding due by the Opposite Party and the reply of the Complainant informing about the clearance of entire loan amount and seeking return of original title deeds deposited with the bank. As the Complainant intended to sell his property he cleared his tenure of 120 months without default, and sought for return of original title deeds.

23.    The Complainant had agreed for the floating rate of interest at the time of availing loan, due to which his loan tenure was increased to 145 months and a sum of Rs.2,28,132/- became due and repayable as on 29.07.2019. However it is seen that the Complainant had obtained return of the title deeds deposited by him with the Opposite Party and had withdrawn the suit filed by him against the Opposite Party which is after waiver of the due amount according to the Opposite Party. Hence, the Complainant had not proved his case that the Opposite Party has committed deficiency in service. Therefore this Commission is of the considered view that there is no deficiency of service on the part of the Opposite Party. Accordingly, Point No.1 is answered.

POINTS NO 2 & 3:-

24.    As discussed and decided Point No.1 that the Opposite Party has not committed deficiency in service and further the Complainant has not proved that he had paid an excess amount of Rs.36,400/- to the Opposite Party by substantial evidence and hence he is not entitled for the refund of Rs.36,400/- or for the reliefs sought for in the complaint. Accordingly Point Nos.2 and 3 are answered.

In the result, the complaint is dismissed. No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 5^th June 2023.

 

 

 T.R. SIVAKUMHAR                                                                   B.JIJAA

      MEMBER I                                                                        PRESIDENT

List of documents filed on the side of the Complainant:-

Ex.A1	27.07.2005	Copy of Sale Deed No.7817 of 2005
Ex.A2	11.07.2005	Home Loan sanction letter by the Opposite Party
Ex.A3	19.11.2014	Statement of accounts for the period from 26.07.2005 till 12.11.2014
Ex.A4		Statement of accounts for the period from 10.10.2014 till 10.02.2016
Ex.A5	02.02.2016	Letter from complaint to Opposite Party demanding the original title deeds
Ex.A6	19.04.2016	Demand letter from Kotak Mahindra Bank
Ex.A7	20.05.2016	Communication from the Complainant
Ex.A8	02.11.2017	Demand letter from Kotak Mahindra Bank
Ex.A9	22.11.2017	Reply notice from the Complainant’s advocate
Ex.A10	10.09.2018	Agreement to sell entered by the Complainant with Potential purchaser
Ex.A11	21.10.2019	Legal Notice to Complainant from the Potential Purchaser through his Advocate
Ex.A12	02.11.2016	Closure of loan letter from the Opposite Party and acknowledgement of receipt of original title deeds
Ex.A13	20.11.2019	Order by Hon’ble City Civil Court, Chennai
Ex.A14	18.02.2020	Statement of Accounts of the Complainant for the period from 02.02.2020 to 18.02.2020
Ex.A15	21.02.2020	Legal notice from Complainant to Opposite Party

List of documents filed on the side of the Opposite Party:-

 

Ex.B1	June 2019	Copy of plaint in OS. No.3924 of 2019
Ex.B2	01.04.2022	Copy of Authority letter
Ex.B3		Copy of EC in respect of the Complainant’s property

 

 

T.R. SIVAKUMHAR                                                                     B.JIJAA

      MEMBER I                                                                        PRESIDENT