CONSUMER DISPUTES REDRESSAL FORUM
Palakkad, Kerala
Dated this the 30th day of March 2017
PRESENT : SMT. SHINY.P.R, PRESIDENT Date of filing: 02/03/2015
: SMT. SUMA K.P, MEMBER
: SRI. V.P. ANANTHA NARAYANAN, MEMBER
CC/27/2015
T,K. Unnikrishnan
S/o. Ramakrishna Mannadiyar,
Mandatham Veedu, Kallur Amsom Desom,
Kallur(PO), Mankara Village, Palakkad.
(By Adv. A.P.Udayakumar) : Complainant
Vs
1.The Manager
M/s. LIC Housing Finance Ltd.
Bombay Life Building,2nd Floor, 45/47,
Veer Nariman Road, Fort, Mumbai – 400 001.
2.The Manager
M/s. LIC Housing Finance Ltd.
Thrissur Area Office, 2nd Floor,
chamber of commerce Building,
Palce Road, Thrissur – 680 020.
3.The Mananger
M/s. LIC Housing Finance Ltd.
Mannil Arcade, 2nd Floor,
Shornanur Road, Palakkad. : Opposite parties
(By Adv K. Krishnadas & Sajitha Krishnadas)
O R D E R
By Smt. Suma K.P.Member
The case of the complainant are as follows:-
The complainant is the owner and is in absolute physical possession of 5.14 cent of property comprised in survey number 389/11 of Mankara Village by virtue of B schedule of partition deed No. 3296/2003 of Parli SRO . He availed a housing loan of Rs. 9,80,000/- from the opposite parties by creating mortgage over the said property and an amount of Rs. 4,41,000/- is disbursed to him by two installments. The complainant spent an amount of Rs. 8,50,000/- that includes the amount disbursed to him by the opposite parties and construction of the house is partly completed. At that time the complaint got a communication from the opposite parties stating that one Mr. Jayan sent a letter to them to stop further payment in the loan account . Though the complainant submitted a detailed explanation, the opposite parties are not ready to release the balance amount . Due to the act of opposite parties, the complaint is forced to stop the entire construction of the house by the end of September 2014. The above act of opposite parties amount to deficiency in service and unfair trade practice and caused inconvenience and mental agony to the complainant. Hence this complaint is filed for directing the opposite parties to pay an amount of Rs. 5,09,000/- with interest @ 12% p.a. to the complainant as compensation and to refrain the opposite parties from taking further proceedings for realizing the amount of RS. 4,41,000/- from the complainant which is disbursed to him.
The opposite party entered appearance upon the notice from the forum and filed version contenting the following .
From the very inception of the loan transaction, the complainant had the intention to cheat the LIC HFL and obtain a home loan. He suppressed material facts and misrepresented throughout the transactions and obtained loan from the LIC HFL through fraudulent means. The availing of loan of Rs. 9,80,000/- and disbursement of Rs. 4,41,000/- to the complainant by two installments is admitted but denied the fact that the opposite parties stopped further disbursement of loan amount on the basis of a letter given by one Mr. Jayan . No letter is obtained from Mr. Jayan with a request to stop further payment in the loan account as alleged by the complainant. The complainant suppressed the existence of an easement deed, disputes with regard to the title of property, and sworn a false affidavit and thereby violated the terms and conditions of the agreement. Though the opposite parties gave a chance to settle the dispute amicably, the complainant did not turn up but filed a case before this forum and hence further disbursement of amount is stopped.
Complainant filed chief affidavit. Opposite party filed application as IA No. 189/15 seeking permission for cross examination of complainant. Application was allowed and complainant was examined as PW1. Ext. A1 to A14 was marked from the part of the complainant Ext.A 11 to A14 was marked subject proof. Opposite party also filed prove affidavit and complainant filed application seeking permission to cross examine opposite party. Opposite party was cross examined DW1. Ext. B1 to B12 was marked on the part of opposite party Ext. B9 and B12 marked with objection. Evidence was closed and the matter was heard.
The following issues that arises for consideration:-
- Whether the stoppage of disbursement of balance loan amount to the complainant is justified?
- Whether there is any deficiency of service on the part of opposite party?
- If so, what is the relief and cost entitled to the complainant?
Issue 1 & 2 :-
After disbursing the 1st installment, the opposite party got a request from one Mr. Jayan stating that there is a dispute regarding the right over the property which is mortgaged with the opposite parties and that a civil case is pending before the Munsiff Court at Palakkad and hence he requested not to give loan to the complainant until the case is disposed by the court (The letter is marked as Ext. B1) . More over on 4/09/2015, the opposite party got a lawyer notice from Adv. Nouphal , Palakkad to the effect that a suit for partition of the properties including the property mortgaged with LIC HFL is filed before the Honourable Munsiff Court, Palakkad as O.S. No.532/2014 and annexed the copies of caveat O.P filed by the complainant before the Sub Court, palakkad and copy of plaint filed against the complainant. Furthermore, the opposite party got another letter from one Mr. Ravi Thekke Kumbalat by warning the opposite parties from further disbursement of the loan amount. Even after that warning and notices these opposite parties disbursed 2nd installment of loan to the complainant.
Soon after receipt of above said letters and notice, incident, the opposite party communicated all the above aspects to the complainant and asked for his explanation. To that, he informed the opposite party that he would visit the office of opposite party with his advocate and explain the entire aspect at once. Since there was no response from the side of complainant, on 17/10/2014, the 3rd opposite party sent a registered letter to the complainant informing him that since there was no response from the side of complainant, the 3rd opposite party will not release further amount of loan till the above issues are solved ( Marked as Ext. B2). But after sending the letter, on the same day that is on 17/10/2014 at 5.45 pm, the 3rd opposite party got the explanation from the complainant by writing dated 15/10/2014.
The 3rd opposite party has considered his explanation dated 15/10/2014 and it is revealed from his reply that the complainant had executed a easement deed in favour of Mr. Jayan with regard to right of way through 0.15 cent of property which was set apart to the share of complainant as per the partition deed no. 3296/2013 of Parali SRO and copy of the easement deed was Marked as Ext. B3.
Complainant submits that opposite party has sanctioned the loan only after verifying all the documents submitted by the complainant and obtaining a legal scrutiny report, and the same was intimated to the complainant. Accordingly an amount Rs. 9,80,000/- was sanctioned by the opposite party on 17/06/2014 . By utilizing the said amount which was disbursed ( Rs. 4,41,000) and adding the amount of Rs. 4 Lakhs from his pocket, he partly completed the construction of the 1st floor of his house during the month of October 2014. Subsequently he received a communication from the opposite party stating that on Mr. Jayan sent a letter to them stating that the property allotted to complainant is co - ownership property and the person issued the letter requested to stop further payment in the loan account . The complainant submitted his detailed explanation to the letter received from opposite party stating the entire true facts and submitting the relevant documents. He submitted that the property mortgage by him is absolute property and he is having absolute and clear marketable title of the sale. He had also submitted the original partition deed, back documents, basic tax receipts and possession certificate. He had also submitted that though some person claiming co – ownership of the property filed a suit for partition before the Munsiff Court at Palakkad O.S 5532 /14, they had not submitted any evidence to the prove their joint title and joint possession over the property to disprove his absolute right, title and interest of the property. Moreover he had enclosed the copies of plaint, counter statement and other papers to the opposite party to show that any other person is not having any joint title and joined possession over the properties. Moreover the legal and proper documents stands in the name of the complainant and had not been cancelled and revoked so far, by virtue of any legal proceedings. The easement which was produced and marked Ext. B3 has not been seen registered. Since opposite party stopped the further payments of the loan amount he was forced to stop entire construction of the building by the end of September 2014. The opposite party has alleged that the complainant has violated the terms and condition entered with the opposite party, hence they had stopped for further disbursement of balance loan amount. The existence of legal process with regard to the property mortgaged was not informed to opposite party by complainant . The complainant suppressed the existence of easement deed and thereby right of way through the property mortgaged with opposite party. The opposite party informed the complainant that if he is ready to furnish additional security of the sufficient value, they are ready to disburse the remaining installments. But it was not acceptable to the complainant. Since complainant had not informed the opposite party with regard to the existence of a partition suit before the Munsiff Court it cannot be construed that, the complainant has suppressed the material facts before the opposite party . Furthermore the right of way given to the 3rd party will not confer title of the property to the party . He has created equitable mortgage over 5.14 cents which was set apart to his share and his absolute right over the entire property. He has obtained basic tax receipt, possession certificate and location sketch from the Mankara village office. Even if it is assumed that the complainant is having mortgage only over 4.99 cents, the opposite party will not be prejuced by sanctioning the entire loan amount .Hence in our view the opposite party cannot be justified by stopping the disbursement of balance loan amount to the complainant. The complainant was put to severe suffering and hardship due to the act of the opposite party. The above act of opposite party amounts to deficiency of service on their part. Hence we direct the opposite party to disburse the balance amount of Rs. 5,39,000/- to the complainant as per the agreement entered between them before the institution of the complaint before the Forum. We also direct the opposite party’s to Rs. 50,000/- as compensation for mental agony and suffering suffered by the complainant due to the act of opposite party. The aforesaid amount shall be paid within one month from the date of receipt of this order failing which the opposite party shall pay interest @ 9% from 30/03/2017 till date of realization. No order as to cost.
Pronounced in the open court on 30th March 2017.
Sd/-
Smt. Shiny. P.R
President
Sd/-
Smt. Suma. K.P
Member
Sd/-
Sri. V.P.Anantha Narayan
Member
A P P E N D I X
Exhibits marked on the side of complainant
Ext.A1 - Letter dated 17/10/2014 issued by the Third opposite party to the
Complainant.
Ext.A2 -Copy of Letter dated 15/10/2014 sent by the complainant to the third opposite party.
Ext.A3 - Copy of letter dated 22/10/2014 issued by the complainant to the third
opposite party.
Ext.A4 - E-mail dated 24/11/2014 sent by the complainant to the third opposite party.
Ext.A5 - E-mail dated 25/11/2014 sent by the complainant to the third opposite
party.
Ext.A6 - E-Mail dated 13/12/2014 sent by the complainant to the 3rd opposite
party.
Ext.A7 - E-Mail. Dated 31/12/2014 sent by the 3rd opposite party to the
complainant.
Ext.A8 - E-Mail dated 04/03/2015 sent by the complainant to the 3rd opposite
party.
Ext.A9 - Estimate of the Residential Building.
Ext.A10 – Building plan of the Residential Building.
Ext.A11 - Location sketch dated 04/03/2014 issued by the Village Officer,
Mankara.
Ext.A12 - Location certificate dated 04/03/2014 issued by Village Officer,
Mankara.
Ext.A13 - Possession and Non – attachment Certificate dated 04/03/2014
issued by the Village Officer, Mankara.
Ext.A14 - Legal Opinion dated 05/12/2014.
Witness marked on the side of complainant
T.K. Unnikrishnan
Exhibits marked on the side of opposite parties
Ext. B1 – Letter dated 17/10/2014 issued by 3rd opposite party to the
complainant.
Ext. B2 – Clarification letter dated 15/10/2014 handed over by the complainant
to the 3rd opposite party on 17/10/2014
Ext. B3 – Easement deed executed by the complainant in favour of Mr. Jayan
Ext. B4 – Loan application dated 24/05/2014 submitted by the complainant to
the 3rd opposite party
Ext. B5– Copy of Caveat OP filed by the complainant and his sister before the
Hon’ble sub court, Palakkad. Dated 07/06/2014
Ext. B6– Loan agreement executed on 26/06/2014 by the complainant with
opposite parties.
Ext. B7– Affidavit sworn by the complainant on 26/06/2014 through Notary public .
Ext. B8 series– Possession Certificate dated 04/03/2014
Ext. B9– Letter sent by one Mr. Jayan to the 3rd opposite party. (Marked with
objection)
Ext. B10– Letter dated 1/10/2014 sent by one Mr. Ravi to the opposite party.
(Marked with objection)
Ext. B11– Basic tax receipt dated 19/05/2014 issued from Mankara Village Office.
Ext. B12– Duplicate No.1 of partition deed no. 3296/2013 of Parali SRO
Witness examined on the side of opposite party
C.I. Joji
Cost Allowed
No cost.
