Delhi

North

CC/252/2015

ASHA BATHLA - Complainant(s)

Versus

LIC HOUSING FINANCE LTD. - Opp.Party(s)

07 Dec 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

CC No.:252/2015

 

In the matter of

 

Mrs. Asha Bathla

W/o Sh. G. D. Bathla,

H. No. 40 R, Model Town, Sonepat,

Haryana-131001.                                                    …                         Complainant No.1

 

Ms. Anuradha Bathla

D/o Sh. G. D. Bathla,

H. No. 40 R,

Model Town Sonepat,

Haryana-131001.                                                  …                          Complainant No.2

 

                                                          Vs

LIC Housing Finance Ltd.

Through Area Manager,

Lakshmi Insurance Building,

Asaf Ali Road,

New Delhi-110002.                                                …                          Opposite Party

 

ORDER

    07/12/2023

 

Ashwani Kumar Mehta, Member:

 

1.       The complaint was originally registered as Complaint Case No.366/2011 before this Commission under section 12 of the consumer protection act, 1986 and was dismissed on 13.01.2015 due to non-appearance of both the parties. Thereafter, the complainant had filed FA No.105/2015 before the Hon’ble State Commission wherein the case was restored to its original position vide order dated 03.07.2015 with the directions to this Commission to proceed further in the matter in accordance with the law. Accordingly, the case was registered as Complaint Case No.252/2015 in this Commission & further proceedings were initiated.

 

2.        The brief details of facts, as alleged by the Complainants in the Complaint in hand, are that the complainants were allotted a residential plot developed by Taneja Developers & Infrastructure Panipat Limited in TDI Panipat (Hereinafter shall be called as Developer)  and the complainants were sanctioned a home loan of Rs. 11 lakh by OP on 23/07/08.  The Loan was to be disbursed as per clause 3 of the terms and conditions of loan agreement. Further, loan was were to be paid by the OP in instalments whenever demanded by Developer after the payment of margin amount by the complainants. As per the terms, the complainants have contributed their share of Rs.4,33,000/- and  OP disbursed Rs.6,75,000/- in two instalments on 14-08-2008 and 23-03-2010. Thereafter, the OP did not release any amount and the complainants wrote letters to the OP on 14/07/10, 22/07/10 and 05/12/10 requesting them to give the remaining amount of the loan by issuing a demand draft in favour of Developer but there was no response from the OPs and therefore, the complainants also sent a legal notice to the OP. However, despite complainant’s requests and legal notice, the OP didn’t release the remaining amount and as a consequence of the same, Developer demanded interest at 21% per annum on the default amount and also threatened to cancel the allotment on non-payment of the amount. After this, the complainants contributed a share of Rs.2,35,250/- and requested the OP to release its share of Rs. 3,47,000/- for the total sum of Rs.5,82,250/- as asked by the developer. However, the OP didn’t release the asked amount to the developer. The developer rejected the complainants payment of Rs.2,35,250/- Instead, it demanded full payment of Rs.5,82,250/- along with interest of delayed payment of Rs.2,43,861/- and  the total demand from developer reached to Rs.8,26,111/-. Due to fear of getting the plot cancelled by the developer, the complainants had no option but to borrow money at a high interest rate and paid the dues of the developers. Afterwards, the complainants requested the OP via letter to release the loan’s remaining amount by issuing a cheque in favour of the complainant but the respondent refused to do so and started the process of recovering the loan.

 

3.       It has also been alleged that the complainants, later, applied for a top up loan of Rs.5,00,000/- but the said loan was withheld by the respondent due to late payment of loan instalments. The complainants have further alleged  that  withholding of top up loan was on false grounds because the OP had recovered two instalments in advance on the loan granted. The OP recovered two instalments of Rs.15,147/- in Oct’08 and Nov’08. The complainants objected to this appropriation of loan recovery made by the OP without the complainants consent. These acts of the respondent amounts to deficiency of service on their part which has caused mental torture and harassment to complainants beside financial loss for which the OP are liable to pay compensation. Therefore, the complaint have filed this complaint praying to :-

 

1. Direct the OP to disburse the Balance Sanctioned Loan amount of Rs.4,25,000/- in favour of the Complainants.
2. Direct the OP to reimburse interest amount of Rs.2,43,861/- paid by the Complainants to Developer.
3. Direct the OP to reimburse future interest @ 21% on Rs.4,25,000/- from, 09.11.2011 till the balance amount of loan Rs.4,25,000/- is disbursed by it.
4. Direct the OP to appropriate the recovery of Rs.30,294/- in Oct, 2008 and November 2008 towards advance recovery of loan instalments instead of pre-payment of loan principal amount.
5. Direct the OP to refund the loan instalment recovered in excess of the recovery due in proportion to the loan amount disburse in stages.
6. Direct the OP to pay a total sum of Rs.4,00,000/- (Rupees Four lacs only) as compensation for physical, mental agony suffered by the Complainants due to the deficiency in service rendered by the OP including Rs.20,000/- as litigation expenses;
7. Grant any other appropriate relief which the Hon’ble Commission may deem fit and proper in the interest of justice may kindly be granted to the Complainants.

4.       In support of the allegations, the complainants have filed copy of the sanction letter of loan granted by OP, copies of  letters dated 14-07-2010, 22-07-2010, 05-12-2010 and 27/09/2011 sent to the OP, email dated 23-07—2010, copy of the legal notice dated 30/09/10,  and demand letter given by the developers demanding Rs. 8,26,111/- (Total annexed pages -17).

5.       In response to the notice issued in this consumer dispute, the OP has filed its reply stating that out the loan of Rs 11 lacs, Rs 6,75,000/- were released when the complainants complied with the terms and conditions. The OP has further stated that that the loan of the complainants was sanctioned on certain terms and conditions which the complainant failed to comply with and instead of complying with the same the complainant opted to send false and frivolous information. The complainant never visited the OP’s office and a third person used to visit on complainant’s behalf who has been informed with the formalities which are to be fulfilled by the complainant. The OP has stated that the complainant was supposed to fulfil the following formalities:-

1. Client/Borrower consent letter
2. letter from the builder
3. Builder ledger
4. Promissory note and receipt duly signed by the applicant
5. Proportionate share receipt (deposited with the

Builder by the borrower/complainant)

 

6.       The OP has further contended that the complainants failed to adhere to these formalities. The OP has also denied the receipt of the complainant’s letters dated 14/07/10, 22/07/10 and 05/12/10 and  legal notice also. The OP has also denied that they are in possession of demand letter issued by the developer. It is further contended by the OP that if the documentation is pending then loan will not be disbursed. The OP has further denied that they are in possession of demand letter sent by the Complainant on 27/09/11. It is further stated by the OP that in a situation where flats are under construction and loan is to be disbursed on instalments then the payment is released to the builder provided the OP receives demand receipt from the builder as per the terms and conditions of Tripartite Agreement. In case of a dispute between a builder and allotee, the builder shall refund the amount back to allottee, which has been paid directly from the allottee’s account. The amount paid by the complainant to the builder will not be refunded by the OP, hence the issuing of cheque in favour of the complainant was not possible. The OP contends that that complainant hadn’t gone through the contents of the loan agreement wherein it is mentioned that in case the loan is not drawn within 1 year from the date of sanction then the EMI shall be paid on the sanctioned amount and not on the disbursed amount, however, interest can be charged only on disbursed amount and the instalment taken in excess shall be adjusted with the borrower’s principle and hence no monetary loss is caused.

7.       Regarding allegations of  non-sanctioning of top up loan, the OP has also contended that top up loan is given only when the previous sanctioned loan has been entirely withdrawn by the borrower and the release of top up loan is on the OP’s discretion as per the policy. The OP has further contended that there is no deficiency of service on their part and it is the complainant who didn’t fulfilled the terms and conditions of the loan agreement.

8.       Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence put forth by the complainant & OP and it has been observed that the OP has contended against the allegations on the following reasoning:-     

I.        The loan was sanctioned to the complainants on certain terms and conditions which the complainant failed to comply with and instead of complying with the same the complainant opted to send false and frivolous information. The complainant never visited the OP’s office and a third person used to visit on complainant’s behalf who has been informed with the formalities which are to be fulfilled by the complainant. As per the OP, following formalities were supposed to be fulfilled by the complainant:-

a.       Client/Borrower consent letter

b.       Letter from the builder

c.       Builder ledger

d.       Promissory note and receipt duly signed by the applicant

e.       Proportionate share receipt (deposited with the

builder by the  borrower/complainant)

 

II.       As per the terms of the loan offer letter, the Complainants should have given the original demand letter issued by the builder but that has not been provided to enable the Opposite Party for the release of the loan.

III.      The loan was sanctioned in July, 2008 but the same has not been withdrawn by the Complainant within two years and as per the terms of the loan agreement the same should have been withdrawn otherwise the sanction of loan becomes freeze and further disbursement cannot be given unless the party again furnishing the complete details.

IV.      Receipt of Legal notice dated 30.09.2020 from the complainants, as alleged in Para No.5 of the complaint, has been denied by the Opposite Party.

V.       Whenever the representative of the Complainant visited OPs office, he was apprised about the requirement of completion of formalities.

9.       To examine the allegations and reply of the OP judicially, we have carefully gone through the records and found that the contentions of  the OP explained in reply and in evidence by way of affidavit appear irrelevant & contrary to the facts emerging from the records available in this case as per following details:-

A.      The complainant has filed copy of email dated 23.07.2010 (sent on 09:32 PM and 10:10 PM) to alongwith two files of 50 KB in attachment, to the official email id i.e.ashvarykumar.jain@lichousing.com and the same has not been denied by the OP. The OP is completely silent over the receipt of this email though it has denied the receipt of hard copies of letters dated 14-07-2010, 22-07-2010 and 05-12-2010.

          In our opinion, the delivery of two documents (50KB) through official email id confirms the receipt of letters / grievances of the complainant/consumer by the OP and it has not been attended to as per the LIC HFL Fair Practices Code by the OP.

B.       The complainant has also filed a Copy of receipt of booking of registered post-dated 27-09-2011 to the Area Manager, LIC, New Delhi which is sufficient to prove that the letter dated 27-09-2011 was delivered to OP.

C.      The loan of Rs.11,00,000/- was sanctioned on 23-07-2008 and the OP has released payment of Rs.4,54,000/- on 14-08-2008 and 2,21,000/- on 23-03-2010. As such, contention of the OP, that the loan has not been withdrawn by the Complainant within two years, is not correct. The Loan was to be disbursed as per clause 3 of the terms and conditions of loan agreement. 

D.      The OP has admitted that someone used to visit on complainant’s behalf who was informed about the formalities to be fulfilled by the complainants. The OP has failed to produce any documentary evidence to prove that the complainants were duly informed in writing to complete the required formalities as per the provisions of LIC HFL Fair Practices Code.

E.       The OP has not clarified as to why the formalities were required specifically when the two instalments i.e. Rs.4,54,000/- and 2,21,000/- have already been released to developer on 14-08-2008 on 23-03-2010? The OP has also failed to explain as to why it has not issued any show cause notice to the complainants in case they were not following the terms and conditions of the loan agreement?

F.       The loan was granted for the residential plot but the OP has submitted reply contending the loan for flat to be built by the builder.

G.      The OP has not clarified the reasons of the recovery of Rs.30,294/- in Oct, 2008 and November 2008 towards advance recovery of loan instalments as pre-payment of loan principal amount without the consent of the complainant. The reasons for charging pre-payment penalty of Rs.1,649/70paise has also not been clarified by the OP in its reply.

10.     In view of the observations made in the para 9 above, we are of the considered view that the complainant has suffered directly due to deficient service of the OP ( LIC Housing Finance Ltd.) in terms of the deficiency defined in the Act which includes  any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer. Further, due to the deficiency in service on the part of OP, the Complainants have also suffered mental pain, agony & harassment.

11.     Therefore, we feel appropriate to direct the OP (M/s LIC Housing Finance Ltd.) to :-

a)       Recast the loan granted to complainants for Rs.6,75,000/- ( Rs. Six lakh Seventy Five thousand only)  instead of Rs.11,00,000/-( Rs. Eleven lakh only)  within 30 days from the receipt of this order because the OP has disbursed only Rs.6,75,000/- ( Rs. Six lakh Seventy Five thousand only) and the balance amount has already been paid to the Developer by the complainants from their own funds. As such, the total loan amount remains Rs.6,75,000/- ( Rs. Six lakh Seventy Five thousand only) which was disbursed by the OP and the OP is directed to recast the same for Rs.6,75,000/-( Rs. Six lakh Seventy Five thousand only)  as sanctioned on 23-07-2008 and interest will be charged as per the terms & conditions of loan prevailing on 23-07-2008. The interest will be as per the disbursal of instalments of loan to the developer and the OP shall not charge any default fee from the complainants during the period of filing the complaint in the commission i.e. 07-12-2011 till the date of receipt of this order;

b)       Adjust Rs.30,294/- (Rs. Thirty Thousand Two Hundred Ninety Four only) towards recovery of loan instalments instead of pre-payment of loan principal amount without charging any prepayment penalty or charges;

c) Pay/Re-imburse Rs.2,43,861/( Rs. Two lakh forty Three Thousand Eight Hundred Sixty One only) to the Complainants which was paid as interest amount on delayed payment of instalment of loan share to Developer due to in-action of the OP. This amount shall carry interest @9% per annum from the date of payment to Developer i.e. 10-11-2011 till the date of actual payment as per this order;

 

d) Pay Rs.1,00,000/- (Rupees One Lakh only) as compensation formental pain, agony, and harassment suffered by the Complainants due to the deficiency in service on the part of OP.

12.     It is clarified that the above ordered amount is to be paid by the OP within 30 days from the date of receipt of this order failing which the OP shall be liable to pay interest @12% per annum from the date of expiry of 30 days period.

13.     Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

 

ASHWANI KUMAR MEHTA                                              HARPREET KAUR CHARYA   

              Member                                                                                  Member

   DCDRC-1 (North)                                                                    DCDRC-1 (North)

                                                           

                                                DIVYA JYOTI JAIPURIAR  

                                                          President       

                                                    DCDRC-1 (North)