DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, NORTH-WEST
GOVT. OF NCT OF DELHI
CSC-BLOCK-C, POCKET-C, SHALIMAR BAGH, DELHI-110088.
CC No: 152/2016
D.No.________________________ Date: ________________
IN THE MATTER OF:
ASHISH GUPTA S/o SH. H.K. GUPTA,
R/o C-7/32-A, 2nd FLOOR,
KESHAV PURAM, DELHI-110035.… COMPLAINANT
Versus
KOTAK MAHINDRA BANK LTD.,
3rd FLOOR, 6, VAISHALI ENCLAVE,
ADJACENT GULAB SWEETS,
PITAM PURA, NEW DELHI-110088. … OPPOSITE PARTY
CORAM:SH. M.K. GUPTA, PRESIDENT
SH. BARIQ AHMED, MEMBER
MS. USHA KHANNA, MEMBER
Date of Institution: 22.01.2016
Date of decision:29.06.2020
SH. M.K. GUPTA, PRESIDENT
ORDER
1. The complainant has filed the present complaint against OP under the Consumer Protection Act, 1986 thereby alleging that the complainant in the 2nd week of December-2014 approached OP bank for disbursement of Home Loan of Rs.80,00,000/- for purchase of DDA built SFS Flat no.160 in New L D Block, Pitam Pura, Delhi and the required documents were provided by the complainant to the bank and OP bank agreed to finance Rs.80,00,000/- @ 10.15% p.a. towards the purchase of said
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property. On 24.12.2014, an agreement to sell was executed by the complainant with the seller of the said flat by making an advance payment of Rs.15,00,000/- as earnest money by cheques to the seller and the deal of the flat was done at Rs.58,50,000/- and in the agreement to sell, it was specifically mentioned that the amount will be paid by 24.01.2015 as full and final payment. On 27.12.2014, OP bank confirmed the sanction of loan of Rs.80,00,000/- vide sanction letter dated 26.12.2014 and on 27.12.2014, OP bank informed the complainant that the loan of Rs.80,00,000/- has been sanctioned to him alongwith co-borrowers namely Veena Gupta, Sonia Gupta & Ruchi Gupta and all of them have to execute loan kit of the bank and the co-borrowers are the relatives of the complainant, however, OP bank asked the complainant to get the countersignature of his brother Deepak Gupta as Sonia Gupta is not having sufficient income and while executing the loan kit on 30.12.2014, it was told to the officer concerned that the loan would be required in the 3rd week of January-2015 as per agreement to sell for which he assured that loan would be disbursed as and when demanded. On 07.01.2015, the complainant received a letter from OP bank stating that the loan has been disbursed on 30.12.2014 and interest of Rs.24,472/- is payable on 10.01.2015 towards 1st EMI amount and it is evident from the loan statement and the loan was disbursed on 30.12.2014 with the value dated 22.01.2015 whereas the interest has been charged by OP bank from 30.12.2014
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which is wrong and not justify the action of OP bank and this shows the malafide intention of OP bank to cheat the complainant. The complainant further alleged that despite the complainant’s objection and the date of payment was very near, the complainant was compelled and was not left with other alternative but to pay a sum of Rs.24,472/- on 10.01.2015 vide cheque no. 71044 as the registration date of the flat was very near and accordingly on 21.01.2015, the sale deed of the flat was executed with Sub-Registrar VIA, Rohini, New Delhi and at the time of Registration, the representative of OP bank delivered the cheques of Rs.80,00,000/- i.e. cheque no.083252 of Rs.42,91,500/- FVG. Ashish Gupta, cheque no.083253 of Rs.12,36,166/- FVG. Ashok Kumar Chawla, cheque no.083254 of Rs.12,36,167/- FVG. Kanahya Lal Chawla and cheque no.083255 of Rs.12,36,167/- FVG. Gangesh Kumar Chawla. Thereafter, the complainant was not happy with the attitude and services of OPbank so he decided to pay off the loan amount and for this he sent the mail on 04.03.2015 for foreclosure of the loan account and in response of the mail, OP bank sent 2 mails on 20.03.2015 & 23.03.2015 which are self-explanatory and after hassling too much, the loan was repaid on 05.05.2015 by making payment vide bankers cheque no. 052831 dated 30.04.2015 of Rs.79,89,000/-, cheque no.154774 dated 30.04.2015 of Rs.35,909/- and IMPS of Rs.6,741/- on 05.05.2015 and handed over all the documents relating to loan amount. The complainant
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further alleged that the complainant was harassed too much at the time of foreclosure also, so on 03.06.2015, the complainant lodged a complaint with OP bank vide mail dated 03.06.2015 and on 11.06.2015, the complainant lodged the complaint with Banking Ombudsman, Delhi complaining against OP explaining how the bank disbursed the loan on 30.12.2014 instead of disbursing the loan in the 3rd week of January-2015and on 15.07.2015, the complainant received the mail from the Nodal Officer of OP and the reply of which was sent on that very day and OP bank sent a cheque of Rs.2,296/- towards one day excess interest charged and the complainant is entitled for remaining interest and on 15.07.2015, the complainant received the reply from banking Ombudsman stating that the complaint no.201516014000287 is not maintainable as BOS requirement is not met. Again on 28.09.2015, the complainant received the mail from New Delhi Banking Ombudsman asking the complainant to provide documentary evidence in connection with request submitted by the complainant to release the loan amount in the 3rd week of January-2015 and on 29.09.2015, a copy of agreement to sell dated 24.12.2014 was sent to new Delhi Banking Ombudsman pointing out the clause 2 of the agreement in which it was clearly mentioned that the transaction is to be completed by 24.01.2015. The complainant further alleged that the act of OP amounts to unfair trade practice and deficiency in service.
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2. On these allegations the complainant filed the complaint praying for direction to OP to re-imburse Rs.71,904/- (interest 32 days charged @ Rs.2,247/- per day @ 10.15% on the loan of Rs.80,00,000/- which they have charged wrongly as well as compensation of Rs.4,00,000/- for causing mental agony and physical harassment and has also sought cost of litigation.
3. OP has been contesting the case and filed reply wherein OP submitted that the complaintis not maintainable and is liable to be dismissed and no cause of action arose for filing the present complaint. OP further submitted that the complaint deserves to be dismissed under the provisions of Order 7 Rule 11 of CPC and the complaint is liable to be dismissed for non-joinder of all the other borrowers as parties to the complaint and further that as per clause 12.9 of the loan agreement executed between the parties all the disputes have to be settled by arbitration and this Forum has no jurisdiction to adjudicate the present complaint.
4. The complainant filed rejoinder and denied the submissions ofOP.
5. In order to prove his case, the complainant filed his evidence by way of affidavit and the complainant also filed written arguments. The complainant also filed copy of statement of account, copy of agreement of sell/Bayana, copy of terms & conditions of sanction, copy of Loan Agreement alongwith terms & conditions, copy of letter dated 07.01.2015 sent by OP to the complainant, copies of e-mail
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communication and copy of complaint against Mahindra Bank-Home Loan dated 11.01.2015 through e-mail.
6. On the other hand, Sh. Prasada Rao Apkari, Authorized Signatory ofOP filed his affidavit in evidence and also filed written arguments. OP has also filed copy of Disbursal Request Form.
7. During course of arguments, Ld. Counsel for OP contended that this Forum has no pecuniary jurisdiction to adjudicate upon the present complaint.
8. In support of his submissions, Ld. Counsel for OP relied on the following authority/case law:
i) Ambrish Kumar Shukla & 21 ORS. Vs. Ferrous Infrastructure Pvt. Ltd. decided by Hon’ble National Commission vide order dated 07.10.2016.
9. The complainant has not disputed the amount of loan which was applied, sanctioned and disbursed by OP bank which is Rs.80,00,000/-. Thus, the value of the subject matter exceeds Rs.20 lakhs which is beyond the pecuniary limit of jurisdiction of this Forum as per Section 11 (1) of the Consumer Protection Act, 1986. Thus, this Forum has no pecuniary jurisdiction to adjudicate the present complaint.
10. Hon’ble National Commission vide order dated 26.04.2017 in case titled as Tushar Batra & ANR. Vs. Unitech Ltd. issued the following directions:
i) The complaint be returned to the complainant (s), alongwith an endorsement containing the date of presentation and return of the complaint, the name of the complainant (s) presenting the complaint and a brief statement of reasons for returning the complaint,
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ii) The complaint shall be returned within one week from today alongwith the requisite endorsement and can be presented before Delhi State Consumer Disputes Redressal Commission within 2 weeks thereafter,
iii) The parties shall appear before the Delhi State Consumer Disputes Redressal Commission at 10:30 a.m. on __________,
iv) The State Commission need not issue a fresh notice requiring the parties to appear before it on the aforesaid date.
11. In view of above observations, as this Forum has no pecuniary jurisdiction to entertain and try the present case, the complaint is returned with appropriate endorsements on the complaint to the complainant with the direction to present the complaint before Hon’ble Delhi State Consumer Disputes Redressal Commission within 2 weeks from the date of return of the complaint and be presented before Hon’ble Delhi State Consumer Disputes Redressal Commission within two weeks thereafter and both the parties to appear before Hon’ble Delhi State Consumer Disputes Redressal Commission on 05.08.2020 at 10:30 a.m.
12. Let a copy of this order be sent to each party free of cost as per regulation 21 of The Consumer Protection Regulations-2005.
Announced on this 29thday of June, 2020.
BARIQ AHMED USHA KHANNA M.K. GUPTA
(MEMBER) (MEMBER) (PRESIDENT)
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UPLOADED BY: SATYENDRA JEET
