BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  : MEMBER

C.C. No. 384/2010 Filed on 02.12.2010

ORDER DATED: 30.06.2017

Complainant:

B. Gopalakrishnan Nair, Ambadi, Vazhayila Palam Junction, Karakulam P.O, Thiruvananthapuram.

                   (By Adv. V.G. Jayagopan & Jaideep G. Nair)

Opposite parties:

1. M/s HDFC Ltd. represented by Managing Director, Regd. Office, Ramon House, HT Prakash Marg, 169, Backbay Reclamation, Church Gate, Mumbai-400 020.

2. The Manager, M/s HDFC Ltd., HDFC House, Vazhuthacaud, Thiruvananthapuram-695 010.

(By Adv. C.S. Raj Mohan)

This C.C having been heard on 19.04.2017, the Forum on 30.06.2017 delivered the following:

ORDER

SMT. R. SATHI:  MEMBER

The case of the complainant is that complainant availed a loan of Rs. 4,00,000/- from the opposite party for purchase of 4.5 cents of property and a building in an auction sale conducted by the 2^nd opposite party.  The last bid of sale was confirmed for Rs. 5,05,555/-.  According to the terms and conditions of the auction sale the payment was effected in three installments.  The sanctioned loan amount of Rs. 4 Lakhs was adjusted in the balance payment and the remaining in the EMI.  The entire loan amount and the interest thereon has been repaid and the loan closed on 28.07.2010.  Though full sale consideration was received by 28.09.2007, the opposite parties forwarded the draft sale deed only on 16.05.2008 and executed the sale deed and delivered the property on 18.08.2008.  At the same time they have charged interest on the loan amount @ 10.5% during the period from 28.09.2007 to 18.08.2008. The complainant sent two communications vide letter dated 29.01.2008 and 07.04.2008 to expedite execution and delivery of the property, but the opposite parties did not care to reply to those communications.  The opposite parties withhold the execution of sale deed after accepting full consideration and at the same time charging interest on the loan amount which was utilized to pay the sale consideration is highly unreasonable and amount to unfair trade practice and deficiency of service.  The property tax of the building covering the period from 1999 August 2008 was paid in full together with interest for the same period and paid water charges for the period 8/99 to 8/08.  On 22.05.2010 the complainant issued a notice to the 2^nd opposite party requesting him to pay Rs. 68,470/- being the interest on sale consideration, property tax and water charges and interest thereon.  The 2^nd opposite party sent reply notice and was not ready for settlement.  There are many others allegations in the reply notice and those being not related to this complaint.  The complainant filed this complaint for directing the opposite parties to pay the amount as under : (a) Interest on Rs. 5,05,555/- for a period of 11 months from 28.09.2007 to 18.08.2008 as @ 10.5% which works out to Rs. 48,659/- and the interest on the said sum Rs. 11,644/- thus total amount Rs. 60,323/- as per details given in item No. (a) of statement of accounts. (b) Property tax and interest of the said sum amounting to Rs. 7730/-.  (c) Water charges and interest of the said sum amounting to Rs. 3,560/-.  (d) A sum of Rs. 25,000/- as compensation for harassment, inconvenience and mental agony suffered by the complainant.  (e) Cost of legal notice and other expenses of Rs. 3,000/-.  (f) Further interest 10.5% from 01.12.2010 till realization on all amount due from the opposite parties till its realization. 

The opposite parties accepted notice and filed version and maintainability petition. 

In the maintainability petition the opposite parties contended that the cause of action is based on an auction which will not come under the purview of Consumer Protection Act.  The complaint is also barred by limitation.  The complainant ought to have filed this complaint on or before 18.08.2010 and this complaint is filed only on November 2010. 

The opposite parties in their version contended that the complainant failed to pay the balance amount of Rs. 3,79,155/- within time.  The opposite parties sanctioned loan for Rs. 4 Lakhs and disbursed the 1^st installment of Rs. 3,79,155/- which was the balance 75% to be paid towards the opposite parties on 28.09.2007 and it was paid to the complainant by way of account payee cheque and it was never adjusted.  The 2^nd opposite party on 28.09.2007 itself handed over the draft sale certificate to the complainant.  As complainant’s part was not performed properly there arised the delay.  On 16.05.2008 the opposite parties agreed to hear 50% of the charges incurred for clearing electricity and water charges arrears and ready to reinsurance 50% of the expense incurred by the complainant on electricity and water charges.  The opposite parties are even now ready to pay Rs. 7,400/- as agreed to on 16.05.2008, but complainant was reluctant to receive the same.  There is no deficiency of service and the cause of action for filing this case was arised on 18.08.2010 and this case was filed after limitation of two years. 

The complainant filed affidavit in lieu of chief and documents.  The 2^nd opposite party filed affidavit in lieu of chief for the opposite parties and documents. 

Issues:

1. Whether the complaint is maintainable before this Forum?
2. Whether there is any deficiency of service or unfair trade practice on the side of opposite party?
3. Whether the complainant is eligible for any reliefs sought for?

Issue (i):- The case of the complainant is with regard to the purchase of property in auction sale and repayment of loan.  The complainant stated in the complaint that without holding execution of sale deed after accepting full consideration and at the same time charging interest on the loan amount which was utilized to pay the sale consideration is highly unreasonable and amount to unfair trade practice and deficiency.  The complainant also stated that delay in delivery of the property also caused to the complainant financial loss.  In paragraph 12 of the complaint, complainant furnished statement of account with regard to the interest in loan, payment towards property tax, water etc. 

The opposite parties filed maintainability petition on the ground that the auction will not come under the purview of the Consumer Protection Act and the complaint is barred by limitation.  The complainant filed petition to condone delay in filing the complaint (I.A 360/2011) was already allowed and delay was condoned.  So we need not look into that.  On going through the statements and documents apart from auction it is a clear case of statement of account.  In the prayer portion of the complaint the complainant sought for the amount described in paragraphs 13 (a) to (f).  The paragraphs (a) to (c) are with regard to interest and other amounts on the basis of statement of accounts in paragraph 12 of the complaint.  The only exception is the prayer for compensation and cost.  Thus on going through statements and documents we are of the view that complaint is not maintainable before this Forum and therefore complaint is dismissed on the ground of maintainability. 

In the result, complaint is dismissed. 

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

 Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of June 2017.

     Sd/-

R. SATHI                               : MEMBER

      Sd/-

P. SUDHIR                            : PRESIDENT

      Sd/-

                                                                        LIJU B. NAIR                        : MEMBER

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