DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, NORTH-WEST
GOVT. OF NCT OF DELHI
CSC-BLOCK-C, POCKET-C, SHALIMAR BAGH, DELHI-110088.
CC No: 836/2017
D.No._______________________ Dated: _________________
IN THE MATTER OF:
1. PAWAN KUMAR S/o LATE SH. GAJA NAND,
2. Smt. KUSUSM LATA W/o SH. PAWAN KUMAR,
BOTH R/o F-89, PHASE-I,
ASHOK VIHAR, DELHI-110052. … COMPLAINANT
Versus
M/s INDIABULLS HOUSING FINANCE LTD.,
(THROUGH ITS DIRECTOR),
HAVING ITS REGD. OFFICE AT: M-62 & 63,
FIRST FLOOR, CONNAUGHT PLACE,
NEW DELHI-110001.
CORPORATE OFFICE AT: INDIABULLS HOUSE,
H. No. 448-451, UDYOG VIHAR, PH-V,
GURGAON (GURUGRAM)-122016, HARYANA.
ALSO AT: INDIABULLS FINANCE CENTRE,
4th FLOOR, TOWER-I, ELPHINSTONE ROAD,
MUMBAI-400013, MAHARASHTRA. … OPPOSITE PARTY
CORAM:SH. M.K. GUPTA, PRESIDENT
SH. BARIQ AHMED, MEMBER
MS. USHA KHANNA, MEMBER
Date of Institution: 10.10.2017
Date of decision: 14.01.2019
SH. M.K. GUPTA, PRESIDENT
ORDER
1. The complainant has filed the present complaint against the OPunder Section 12 of the Consumer Protection Act, 1986 thereby alleging that on the application of the complainant for Home Loan,
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OP in the month of May-2014 duly sanctioned a loan to the tune of Rs.1,00,00,000/- (Rupees one crore only) vide loan account no. HHLVAS00233247 on the floating rate of interest and a total amount of Rs.94,08,950/- was disbursed in favour of the complainant no.2 after deducting process fee and other charges. The complainant further alleged that after disbursal of the home loan the complainants purchased & reconstructed C-2/18, Phase-II, Ashok Vihar, New Delhi through two sale deeds executed in favour of the complainant no. 2 by the previous owner of the said property and after complying with all the formalities and execution of sale deed, the complainants shifted alongwith their family members in new house i.e. C-2/18, Phase-II, Ashok Vihar, New Delhi. The complainants started paying the installments of the said loan amount regularly and paid from the account of the complainant no.2 to OP. Thereafter, the complainant no.1 approached to OP to the effect that he was ready and willing to make the pre-payment of entire balance loan amount to OP and further requested OP to comply with the directions given by Reserve Bank of India regarding the benefit to be given to the loanee/complainants if the complainants make the payment of the loan amount in lumpsum and apply for pre-closure of the loan amount after making the entire loan amount by the complainant. The complainants further alleged that after persistent efforts of the
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complainant no. 1, OP replied to the complainant on 13.01.2017 with a pre-payment schedule/ demand for home loan wherein OP charged foreclosure charges of Rs.1,88,129/- and after receiving the said letter the complainant was shocked and on the same date OP was paid the complete amount as demanded by the complainants under protest as the same was based on an illegal claim and charges but the same was necessary to get out of the vicious interests/charges arbitrarily levied by OP and OP issued a receipt dated 13.01.2017 after receiving DD/Cheque from the complainants. The complainants further alleged that the loan was disbursed in their personal account and all communications, payment of repayments and EMIs have been done from the account and after receipt of the remaining loan amount, OP returned the post-dated cheques to the complainants and the various charges have been included without any justification in the foreclosure of the account charges of the complainants and those charges are liable to be refunded back to the complainants. The complainants further alleged that the complainants sent a legal notice dated 26.08.2017 to OP by Regd. AD post thereby demanding damages and compensation on account of negligence and deficiency in service which was duly served upon OP and OP neither made a payment to the complainants nor replied to the said legal notice till
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date and OP is guilty of unfair trade practice and deficiency in service.
2. On these allegations the complainant has filed the complaint praying for direction to OP to refund the pre-closure amount of Rs.1,88,129/- alongwith interest @ 24% p.a. from the date of deposittill realization as well as compensation of Rs.1,50,000/- for causing mental torture and harassmentand also sought of Rs.51,000/- as cost of litigation.
3. However, none for the OP appeared on 23.11.2017 after service of notice which was personally delivered alongwith copy of complaint and documents in the office of OP on 17.10.2017 and as such OP was proceeded ex-parte vide order dated 23.11.2017.
4. SubsequentlyOP filed an application dated 22.01.2018 for re-calling/setting aside order dated 23.11.2017 and also filed an application u/s 11 (1) of the Consumer Protection Act, 1986 and also filed reply wherein OP submitted that there is no deficiency in service and the complaint is liable to be dismissed. OP further submitted that the complainants (borrowers) alongwith M/s Vogue Clothiers Pvt. Ltd., M/s Rachna Trading Co. Sh. Mayank Aggarwal, M/s Mayank Textiles, M/s Kusum Infrastructure Pvt. Ltd., M/s Kusum Clothing Co. and M/s Kusum Fabrics (Co-borrowers) had approached OP with a request for availing a loan facility to the tune of Rs.1,00,00,000/- on 21.04.2014 and on processing the Home
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Loan application and on certain terms & conditions, OP sanctioned to the complainants a loan facility in the sum of Rs.1,00,00,000/-. OP further submitted that the terms & conditions of sanction of the loan facility have always been within the knowledge of the complainants and all terms governing the loan transaction between the parties were duly explained to the complainants. OP further submitted that the terms and conditions of the sanction letter has been accepted by the complainants and consequently, OP acceded to granting the Loan Facility in question and the Loan Sanction Letter was duly signed by the complainants. OP further submitted that the loan agreement was executed by the complainants alongwith their companies as co-borrowers with respect to the loan facility availed from OP and as such the loan facility availed was in the nature of commercial/business loan and the loan facility for loan account no. HHLVAS00233247 was availed by the complainants for the purposes of purchasing the said property. OP further submitted that as per the agreed terms of loan agreements dated 17.09.2014 executed between the parties, the loan amount was availed by the complainants at a fixed and adjustable rate of interest 12% p.a. and as per the terms and conditions of the loan sanction letter and loan agreement, OP was entitled to levy penalty charges towards pre-payment of loan/foreclosure charges.
5. The complainant filed reply to both the applications of OP and the
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application for re-calling/setting aside ex-parte order dated 23.11.2017 was dismissed vide order dated 07.06.2018 and as such the defence of the OP as taken in reply/written statement shall not be considered.
6. In order to prove thecase the complainant no.1 filed his affidavit in evidence and has also filed written arguments. The complainants also placed on record copy of loan sanction letter alongwith term and conditions issued by OP, copies of letters dated 16.05.2014, 05.08.2015, 30.10.2015 & 05.05.2016 sent by OP to the complainant no.1, copies of cheques bearing no. 130799 dated 21.07.2015 of Rs.25,00,000/-, cheque no. 853227 dated 19.10.2015 of Rs.25,00,000/-, cheque no. 918985 dated 23.04.2016 of Rs.18,00,000/- drawn on Axis Bank Ltd., Mumbai copies of statement of account of the complainant no.2, copy of letter dated 07.11.2016 sent by the complainant to OP regarding request for foreclosure of loan, copy of letter dated 13.01.2017 sent by OP to the complainant, copy of collection receipt dated 13.01.2017 issued by OP, copy of e-mail communication sent by OP to the complainant, copy of letter dated 23.01.2017 sent by OP to the complainant about the pre-closure of home loan, copies of cheques no. 010844, 010845, 010846, 010847, 010848, 010849, 010850, 010851, 010852, 010853, 046348, 046349, 046350, 046351, 046352 & 046353 drawn on Union Bank of India, Ashok
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Vihar, New Delhi, issued by complainants in favour of OP, copies of cheques no. 387570, 387571, 387572, 387563, 387564, 387565, 387566, 387567, 387568 & 387569 drawn on IDBI Bank, Ashok Vihar, New Delhi and copy of legal notice dated 26.08.2017 sent by the complainant no. 1 through his counsel to OP by speed post alongwith postal receipts.
7. This forum has considered the case of the complainant in the light of evidence and documents placed on record by the complainant.The case of the complainant has remained consistentand undoubted. There is nothing on record to disbelieve the case of the complainant. Moreover, after dismissal of application of the OP for setting aside ex-parte order, OP has failed to appear and to challenge the said order before Hon’ble State Commission. Accordingly, the defence as taken by OP in its reply shall not be considered and this Forum is of opinion that OP has wrongly charged fore-closure charges of Rs.1,88,129/- and OP has failed to refund the same to the complainants despite service of legal notice. Thus, OP is held guilty of deficiency in service.
8. Thus, holding guilty for the same, we direct the OP to:
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ii) To pay to the complainants an amount of Rs.50,000/- as compensation for harassment and mental agony suffered.
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9. The above amount shall be paid by the OP to the complainantswithin 30 days from the date of receiving copy of this order failing which OP shall beliable to pay interest on the entire awarded amount @ 10% per annum from the date of receiving copy of this order till the date of payment. If OP fails to comply with the order within 30 days from the date of receiving copy of this order, the complainants may approach this Forum u/s 25 of the Consumer Protection Act, 1986.
10. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005. Thereafter file be consigned to record room.
Announced on this 14thday of January, 2019.
BARIQ AHMED USHA KHANNA M.K. GUPTA
(MEMBER) (MEMBER) (PRESIDENT)
