Tamil Nadu

South Chennai

148/2011

S.Govindarajan - Complainant(s)

Versus

LIC Housing Finance Ltd - Opp.Party(s)

M/s.Nathan & Associates

04 May 2018

ORDER

                                                                        Date of Filing  : 18.03.2011

                                                                          Date of Order : 04.05.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                                : MEMBER-I

 

C.C. No.148 /2011

DATED THIS FRIDAY THE 04^TH DAY OF MAY 2018

                                 

S. Govindarajan,

S/o. Mr. Sethuraman,

Old No.15, New No.21,

Sreenivasa Street,

West KK Nagar,

Chennai – 600 078.                                                   .. Complainant.                                                  

 

                                                                ..Versus..

1. LIC Housing Finance Ltd.,

Rep. by its Regional Manager,

Harrington Chambers, Block C,

No.30/1A, Abdul Razzack 1^st Street,

Saidapet,

Chennai – 600 015.

 

2.  LIC Housing Finance Ltd.,

Rep. by its Area Manager,

No.83, Yasoda Towers, 1^st Floor,

Opp. Bus  Stand,

Hosur – 635 109.                                               ..  Opposite parties.

          

Counsel for complainant         :  M/s. Nathan and Associates

Counsel for Opposite parties  :  M/s. B.B. Sendhil Kumar

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying withdrawal of all the notices, replies and proceedings to refrain from acts and to pay a sum of Rs.5,00,000/- towards compensation for mental agony and to pay the cost of the complaint.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that, the complainant availed a housing loan of Rs.12,00,000/- from the 1^st opposite party for construction of the building and for the other incidental expenses after verification of necessary documents by the 2^nd opposite party on deposit of title deeds.  The complainant further submits that by suppressing the facts / non disclosing the consequences, the opposite parties included his wife as a co-applicant and obtained several signatures without disclosing the contents while disbursing the loan.  Further the complainant states that, the complainant is a prompt and regular payer of all instalments (EMI) without any default.  The complainant issued post dated cheques towards EMI.  The 2^nd opposite party is very lethargic in handling and encashment of Postdated cheques issued towards EMI.  The same is evident from the statement as to the status of cheques, which reflects non-presentation of cheques on the relevant period, which amounts to accumulation and overdue of EMI amounts, causing a burden to the complainant.   Further the complainant  submits that the opposite party sent Goondas under the guise of default in payment of loan  and issued notice taking steps under the SARFAESI Act are unethical.   Further the complainant states that the act of the opposite party is squarely coming under the purview of unfair trade practice and deficiency in service.  The complainant states that the same was not at all considered by the 2^nd opposite party and an evasive reply was given by them in letter dated:01.10.2010, for which, the complainant also sent a reply dated:19.10.2010 and further the 2^nd opposite party replied on 27.10.2010 had talked about some irregularities and also threatened the complainant for proceeding under the Debt Recovery Act and for recovery in compliance under the SARFAESI Act.  Hence the complaint is filed.

2.      The brief averments in the written version filed by the opposite parties is as follows:

The opposite parties specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.  The opposite parties contended that after preliminary discussion and perusal of all records, and on undertaking and accepting the terms and conditions in the loan agreement the loan was sanctioned.  The complainant’s wife stood as a co applicant.  All the signatures were affixed by the complainant and co -applicant in the relevant records of their own accord without any influence.   It is admitted by the opposite parties that the complainant issued post dated cheques towards EMI.  The opposite parties further state that the cheques would be deposited in the account upon clear instructions from the customer / borrower.  Therefore, it is stated that the cheques are not deposited solely at the instance of the opposite parties.  That even after deposit of cheque under instructions from the complainant, there was no sufficient balance in the account of the complainant at many occasions.  Therefore, the averment that the complainant is a law abiding citizen and had not bad antecedents is absolutely denied by  the opposite parties.  Further the opposite parties state that, from July 2009, the complainant defaulted in payment of loan.  Hence the recovery agent visited the premises and stuck the bill stating carrying the message that “property is under attachment”.     Hence there is no deficiency on the part of the opposite parties and the complaint is liable to be dismissed.

3.   In order to prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A11 are marked.  Proof affidavit of the opposite parties filed and documents from Ex.B1 & Ex.B2 are filed and marked on the side of the opposite parties.

4.     The points for consideration is:

1. Whether the oppose parties are liable to withdraw all the notices, replies and proceedings, including their men to refrain from acts as prayed for by the complainant?
2.  
3.  

2. Whether the complainant is entitled to a sum of Rs.5,00,000/- towards compensation for mental agony with cost as prayed for?

5.     On point:-

Heard both sides.  Perused the records namely the complaint, written version, proof affidavits, documents, written arguments of the opposite parties etc.  The complainant pleaded and contended that admittedly, the complainant availed a housing loan of Rs.12,00,000/-  from the opposite party on deposit of title deeds. Ex.B1 is the loan agreement.  The learned Counsel for the complainant further contended that by suppressing the facts / non disclosing the consequences, the opposite party included his wife as a co-obligant  and obtained several signatures without disclosing the contents while disbursing the loan.  Further the contention of the Counsel for the complainant is that the complainant is a prompt and regular payer of all instalments (EMI) without any default.  The allegation of default on the part of the complainant by the opposite party is baseless and deliberate since the complainant issued post dated cheques towards EMI is not denied by the opposite party.  It is seen in the written version in para No.5 that “It is submitted that the averments in para. No. 5 was post dated cheques were issued by the complainant for encashment of repayment of loan EMIs”  “The cheques would be deposited in the account only upon clear instruction from the customer / borrower.   Therefore, it is stated that the cheques are not deposited solely at the instance of the respondents”.   It is also apparently seen from Ex.A7, letter issued by the Indian bank showing details of cheque presented and the balance amount available in the complainant’s account is as follows”

Details of cheques presented:

Cheque No.	Status	Date	Amount
998661	PRESENTED	14.08.2010	10000.00
998662	NOT PRESENTED
998663	PRESENTED	20.08.2010	52715.00
998664	PRESENTED	16.08.2010	7000.00
998665	PRESENTED	17.08.2010	5000.00
998666	PRESENTED	17.08.2010	35000.00
998667	PRESENTED	17.08.2010	97000.00
998668	NOT PRESENTED

proves that the opposite parties deliberately not presented the cheques in order to create a wrong colour of default.   

6.     Further the learned Counsel for the complainant  contented that the opposite party sent Goondas under the guise of default in payment of loan  and issued notice taking steps under the SARFAESI Act are unethical also proved from Ex.A7 and Ex.A11, the statement of account.  Further the learned Counsel for the complainant contended that the act of the opposite party is squarely coming under the purview of unfair trade practice and deficiency in service.  Further the learned Counsel for the complainant contended that the opposite party at the time of oral argument, admitted that  the entire loan amount was paid and the loan account was closed.  The complainant is claiming a sum of Rs.5,00,000/- towards compensation for mental agony. 

7.     The learned Counsel for the opposite parties contended that after preliminary discussion and perusal of all records, and on undertaking and accepting the terms and conditions in the loan agreement the loan was sanctioned.  The complainant’s wife stood as a co applicant.  All the signatures were affixed by the complainant and co -applicant in the relevant records of their own accord without any influence.  But the opposite parties has not produced any documents to prove that the copy of documents including loan agreement were handed over to the complainant.  Further the contention of the opposite parties is that, from July 2009, the complainant defaulted in payment of loan.  Hence the recovery agent visited the premises and stuck the bill stating the message that “property is under attachment”.   But the opposite parties has not produced any proper records to prove such default in payment of EMI since admittedly the complainant issued post dated cheques towards EMI and kept suitable balance amount in the bank account.   Ex.B2 is the statement of the opposite party and Ex.A7 is the statement of Indian bank account showing the details of cheques not presented for collection proves the utter negligence and disregard of collecting the EMIs after receiving the post dated cheques which amounts to deficiency in service.  Thereby issuing notice, sticking message, taking action under SARFAESI Act amounts to unfair trade practice.  Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite parties shall pay a sum of Rs.25,000/- towards compensation for mental agony with cost of Rs.5000/- to the complainant.

In the result, this complaint is allowed in part.  The opposite parties 1 & 2 are jointly and severally directed to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees five thousand only) to the complainant.

The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 04^th day of May 2018. 

 

MEMBER –I                                                                      PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:

		Copy of representation given by the petitioner to the opposite parties
		Copy of reply by the 2nd opposite party
		Copy of representation given by the petitioner to the opposite parties
		Copy of reply by the 2nd opposite party
		Copy of representation given by the petitioner to the opposite parties
		Copy of reply by the 2nd opposite party
		Copy of communication with the Indian Bank by the complainant
		Copy of article in Times of India
		Copy of representation given by the petitioner to the opposite parties
		Copy of reply by the 2nd opposite party
		Copy of Statement of Accounts

 

OPPOSITE  PARTIES SIDE DOCUMENTS

Ex.B1	30.09.2008	Copy of Loan Agreement
Ex.B2		Copy of statement of Accounts from January 2008 to January 2012

 

 

MEMBER –I                                                                      PRESIDENT