KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No. 812/2006

     JUDGMENT  DATED:  12-01-2011

PRESENT:

SHRI. S. CHANDRA MOHAN NAIR        :   MEMBER

SHRI. M.K. ABDULLA SONA                  :   MEMBER

M/s HDFC Bank Ltd.,

32/1182, Palarivattom Junction,              : APPELLANT

Cochin-25, R/by its Branch Manager.

(By Adv: Sri.K.R.Ganesh, Jayachandran.C & others)

          Vs.

1.      Navas.K.H,

XIV/1792, Rameswaran Lane,

K.K.Viswanathan Road,

Chullikkal, Thoppumpady, Kochi.

                                                          : RESPONDENTS

2.      Mumthasd P.K, W/o Navas,

XIV/1792, Rameswaran Lane,

K.K.Viswanathan Road,

Chullikkal, Thoppumpady, Kochi.

(By Adv. M/s Karippapparambil Associates)

                             JUDGMENT

SHRI. M.K. ABDULLA SONA : MEMBER

This appeal prefers from the order passed by the CDRF, Ernakulam in CC.339/06 in the order dated:31-10-2006.  The appellant is the opposite party and the respondents are the complainants in the above OP.  This appeal prefers under the order in which the Forum directed the opposite parties to pay the complainant Rs.19,591.88 and costs of Rs.1000/- within 30 days from the date of receipt of the copy of this order.

2.      On this day this appeal came before this commission for final hearing the counsels for both appellants and respondents are present and they argued vehemently their own respective cases.

3.      In short the complainants are the owners of optical shop for earning their livelihood by means of self employment.  They took loan of Rs.4,92,850/- from the opposite party bank by mortgaging some property.  The opposite party’s tenor was 84 months from 7-4-2005 to 7-3-2012 for Rs.8461/- each per month.  The opposite party had agreed to enhance the loan amount to Rs.8,00,000/- after repayment of 6 months.  The complainants already remitted 15 instalments but the opposite party did not enhance the loan amount.  Hence they were forced to close the loan amount.  On closure of the account, the opposite party unauthorisedly collected pre payment charges and therefore alleging deficiency of service of Rs.1,95,591.88.  There was no condition regarding payment of pre-payment charges and therefore alleging deficiency of service of Rs.1,95,591.88 paise and a compensation of Rs.20,000/- where loss of business has been claimed.  The opposite parties appeared and contended in their written version that they paid Rs.5.lakhs as a loan to the complainant.  But they did not given any promise to enhance the loan amount to Rs.8.lakhs.  The complainants were entitled to get Rs.5.lakhs only as loan.  The allegation that Rs.1,95,591.88 was unauthorisedly collected by the opposite party is not correct.  The complainants are bound by the terms and conditions of the agreement dated:28/2/2005.  According to this the opposite parties can collect pre payment charges of 4% of the outstanding principal amount of the loan or at such rates as decided by the bank.  There is no deficiency of service and the complainant is not entitled for any relief.

4.      The evidence consists of the oral testimony of the complainant who examined as PW1 and marked Exts.A1 to A6.  The opposite party has not adduced any oral evidence but marked Ext.B1.  Both parties filed their argument notes and the Forum below heard both sides and perused the entire evidence, then allowed the complaint and passed the above impugned order.

5.      This impugned order was challenged by the opposite parties through this appeal.  The counsel for the appellant argued on the grounds of the appeal memorandum of the appeal and he submitted that the Forum below did not peruse Ext.B1 loan agreement produced by them and they mainly relied on Ext.A1 letter issued by the opposite parties dated:25/2/2005.  He submitted that Ext.A1 is only a proposal form.  In this proposal form, nowhere is given a promise for enhancement of the loan amount to Rs.8.lakhs but in Ext.B1 the agreement strictly gives a provision in clause 11 to collect pre payment charges of 4% of the outstanding principal amount of the loan or at such rate as decided by the bank. But the counsel for the respondent/complainant argued that the copy of the agreement was not given to the complainant and was kept in the office of the bank and so they don’t know anything about such a provision in Ext.B1 loan agreement.  They did not notice such a provision in the absence of the copy served to them.

6.      This commission heard in detail and perused the entire case records and we are seeing that Ext.A1 is only a proposal form.  In Ext.A1 nowhere it is said that the opposite party bank has given an assurance to the complainant for the enhancement of the loan amount to Rs.8.lakhs.  The loan agreement is Ext.B1, produced and marked by the appellant/opposite parties.  In clause 11 it is clearly stated that the opposite parties have the liberty to collect the interest of 4%.  This is a document signed between the complainant and the opposite parties.  This fact is admitted by the complainant himself.  In the complaint, the complainant is not having any case that the opposite party did not give a copy of B1 agreement to the complainant.  In the circumstances we are seeing that the order passed by the Forum below on the strength of Ext.A1 is illegal and not in accordance with the provisions of law and evidence.  Forum below did not discuss anything about Ext.B1 and clause11 of Ext.B1 agreement.  In the circumstances we decided to interfere in the impugned order passed by the Forum below and this order passed by the Forum below without appreciating the provisions of law and evidence.

In the result, this appeal is allowed and set aside the order passed by the Forum below.  Both parties are directed to suffer their own cost.  The points of the appeal discussed one by one and answered accordingly.

M.K. ABDULLA SONA :  MEMBER

S. CHANDRA MOHAN NAIR         :  MEMBER

VL.