Delhi

StateCommission

A/143/2017

CHOLAMANDALAM INVESTMENT AND FINANCE CO. LTD. - Complainant(s)

Versus

MAHESH SHARMA - Opp.Party(s)

SHWETA KAPOOR

03 Dec 2020

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 03.12.2020

Date of Decision : 08.12.2020

FIRST APPEAL NO.143/2017

In the matter of:

 

Cholamandalam Investment and

Finance Company Ltd.,

Through its Authorized Representative,

Mr. Gaurav Kumar Dahiya,

 

Having its registered office at:

No.2 Dare House, NSC Bose Road,

Parrys, Chennai-60001.

 

Having branch office at:

1^st and 2^nd Floor, Plot No.6,

Pusa Road, Karol Bagh, New Delhi-110005.                                       …..Appellant

 

Versus

                                                                       

Mahesh Sharma,

72 New Rajdhani Enclave,

Near Preet Vihar Metro Station,

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

Present :        None for Appellant.

                        Shri Nikhlesh Jain, AR of Respondent.

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. By this common order I shall be deciding appeal bearing no.FA-143/2017. The OP has come in present appeals against exparte judgement dated 19.11.2018 passed by District Forum in CC no.136/16 vide which the complaints were allowed and the appellant was directed to pay foreclosure charges charged by it from respondent with interest @10% p.a. from the date of filing the complaint till realisation, to pay Rs.20,000/- as compensation and Rs.5,000/- as litigation charges.
2. The facts which can be recited from the  impugned judgement are that respondent took a loan of Rs.1,85,000/- vide loan account no. XOHEDHE 00000863062 in his individual name and paid instalment of Rs.2,60,058/- per month. After that the respondent applied to transfer his loan to other bank or foreclose the said loan. The appellant intimated to pay 4% as penalty for foreclosure charges and to pay pre payment extra. The case of the respondent was that as per RBI guidelines no. RB/2014-15/121, DNBS(PD) CC no.399/03.10.42/2014-15 dated 14.07.2014 as a measure of customer protection and in order to being in uniformity with regard to pre payment of various loans by borrowers of banks and NBFC’s shall  not charge foreclosure charges/ prepayment penalties on all  floating rate terms loans sanctioned to individual borrowers with immediate effect. Thus respondent could not be charged 4% as a foreclosure as well as pre payment charges. He sent legal notice dated  30.12.15 to which reply was received on 25.01.16. There was deficiency in service and unfair trade practices on the part of appellant. Hence appellant should be directed to return foreclosure charges to the tune of Rs.7,45,969.64 with interest, Rs.1,00,000/- for harassment  and Rs.50,000/- as litigation charges.
3. Notice was served on the appellant on 30.05.16  but it did not appear. Hence it was proceeded exparte on 02.08.16. In his exparte evidence the respondent filed his own affidavit.
4. After going through the material on record the District Forum found that sanction letter of financial facilities  Exbt. CW1/6  and letter of OP Exbt CW1/7 having cutting at the foreclosure charges made it crystal clear that loan was sanctioned  to respondent as main borrower and other applicants as co-borrower. Hence the complaint was allowed.
5. In appeal the contention of the appellant is that loan was sanctioned not to the respondent in his individual capacity. But it was sanctioned in the name of Umesh Apparels.  Thus circular of the RBI granting exemption from pre payment charges to individuals was not applicable to the respondent. In taking this plea the appellant relied upon letters dated 30.11.12 copies of which are pages 84 and 85 of the bunch of appeal.
6. I have gone through the material on record and heard argument advanced by respondent. I did not have the privilege of  listening arguments of appellant as none came forward on behalf of the appellant to argue the matter on 03.12.20.
7. The AR of the respondent drew my attention towards schedule to the loan agreement copy of which is at page-21 of the bunch of appeal. It contains the name of borrower as Mahesh Sharma (respondent) and Anita Sharma, Ankit Sharma, Vanu Sharma and Umesh Apparels as Co-borrower. The demand promissory note  executed by the borrower copy of which is at page 75 also contains the names of same individuals.  The same is the fate of letter of continuity executed by the borrowers copy of which is at page-76 of the bunch of appeal, copy of letter of General Lien and set off copy of which is at page-77 of the bunch of appeal.
8. Copy of welcome letter dated 14.12.12 Exbt. CW1/5 which has been relied upon by the District Forum in the impugned order is at page-33. The same is addressed to respondent in his individual name. Copy of letter dated 30.11.12 Exbt. CW1/6 which is at page-34 of the bunch of appeal contains the names of individuals. Demand letter  for pre payment charges dated 19.11.15 Exbt. CW1/7 which is at page-35  of the bunch of appeal is also in the name of respondent alone.
9. AR of the respondent further submitted that the loan was disbursed in the individual account of the respondent. Simply because a rubber stamp of M/s. Umesh Apparels has been affixed on same pages showing respondent as partner of the said firm, it does not mean that the borrower was partnership firm. It is simply description of the person taking the loan as to wo he is, what is status is.
10. Moreover  a partnership firm has no legal entity . it is simply a compendious name of the partners.
11. I find force in the arguments of AR of the respondent.
12. Once it is held that the borrower was an individual, there is no escape from the conclusion that RBI circular was applicable and appellant could not charge foreclosure charges/ pre payment charges. That being so there is no infirmity in the order of the District Forum. The appeal fails and is dismissed. FDR deposited by the appellant at the time of stay of execution be returned to the respondent.
13. Copy of the judgement be sent to both the parties free of cost.
14. One copy of the judgement be sent to District Forum for information.
15. File be consigned to record room.

 

(O.P. GUPTA)                                             MEMBER (JUDICIAL)

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