BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.118 of 2016

Date of Instt. 15.03.2016

Date of Decision: 05.09.2018

Sh. Narinder Kumar Aggarwal son of Late Sh. Lekh Raj Aggarwal R/o 24-New Gobinbdgarh, Jalandhar.

..........Complainant

Versus

1. Oriental Bank of Commerce, New Railway Road Branch, Jalandhar through its Chief Manager.

2. Oriental Bank of Commerce, Regional Office, G. T. Road, Jalandhar, through its Deputy General Manager.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Kapil Batra, Adv Counsel for the Complainant.

Sh. Ashish Bhandari, Adv Counsel for the OP No.1 and 2.

Order

Karnail Singh (President)

1. The instant complaint has been filed by the complainant, wherein alleged that the OPs sanctioned and released a housing loan amounting to Rs.46,00,000/- for residential premises i.e. Scot Villa No.32 at The Green County, Ladhewali, Jalandhar. The said loan was released by the bank on 01.11.2010 and all the amount were directly given to the builders i.e. M/s Millennium Real Estate Developers Pvt. Ltd. The loan was sanctioned on interest @ 9.75% per annum and accordingly, the complainant started paying the installments to the OP bank as per the agreed schedule. The complainant had been regularly paying all the installments including interest thereon and there never had been any default in the payment of the installments to the OP. The complainant suddenly observed from the account statement of the OP and found that OP bank has started charging interest @ 16.75% per annum w.e.f. September 2013 on the ground that the sale deed of the property in question is required to be executed and for that reason instead of charging agreed rate of interest as applicable on housing loan, the bank started charging commercial rate of interest.

2. That the bank at the time of sanctioning of the housing loan and as per the sanction letter, the OP bank had never stipulated that any commercial rate of interest is chargeable under any circumstances and non execution of the sale deed could lead to the charging of interest at the commercial rate. The loan amount is being used for the purpose it was sanctioned and the amount was directly disbursed to the builder. The builder has not delivered the possession of the said residential property to the complainant. The property in question is a residential property and is not a commercial property, so the commercial rate cannot be applied on the loan given for purchase of residential property. The OP No.1 pressuring the complainant to get the sale deed executed in his name or otherwise commercial rate of interest shall be charged on the housing loan account of the complainant. The complainant gave representation to the OP No.1, vide letter dated 26.09.2013 and 26.12.2013 requesting them that the loan has been disbursed directly to the builders for purchase of residential villa and loan has been utilized for the purchase of residential villa and the builders have not given possession of property to the complainant and further that the complainant is regularly paying all the installments along with interest in time to the OP and further requested that if the OP has to charge the commercial rate of interest, then the complainant is ready to repay the entire loan amount and asked the OP to advise accordingly, but the OP never gave any intimation to the complainant in this regard. The OPs kept mum and did not respond to the genuine request of the complainant. The complainant again made representation in this regard to the OP, vide letters dated 10.06.2014, 22.09.2014 and 05.05.2015 and in all the letters and by way of oral requests, the complainant showed his willingness that he is ready to repay the entire loan amount and requested the OP to charge/calculate the interest as per the housing loan and waive off the excess interest charged, so that complainant may adjust the entire loan amount within one week, but the OP kept deaf ear to the requests of the complainant and ultimately, OP No.2 declined the request of the complainant, vide letter dated 11.06.2015, thereby charging the commercial rate of interest @ 16.75% per annum from the complainant. The complainant had even given the FDRs amounting to Rs.50,00,000/- as additional security to the OP. The complainant ultimately on 07.08.2015 deposited an amount of Rs.27,00,000/- in his housing loan account with the OP and left the balance of Rs.3,91,753/- in the said housing loan, which was the amount of excess interest charged by the OP. The complainant kept on requesting the bank to waive of the excess amount of interest charged in their housing loan account. The complainant even wrote to the Banking Ombudsman, Chandigarh vide letter dated 05.11.2015. But OP No.1 with malafide intention, on 20.11.2015 adjusted the remaining loan amount of Rs.2,17,266/- from the amount FDRs of relatives of complainant namely Smt. Renu Aggarwal and Smt. Poonam Aggarwal, lying with the OP, for which they had no right to do so and thereafter, showed balance loan amount of Rs.1,98,376/- and the OP is further wrongly demanding the said amount from complainant, vide letter dated 20.11.2015.

3. That the OP had sanctioned some other loans also for the purchase of the Villas in the area of The Green County, to Mr. Rakesh Khanna, Mrs. Sarita Khanna and Mrs. Kiran Singh and in these accounts also the payments were directly made to builders and in these cases also sale deeds were not executed, as in the case of complainant. The OP started charging commercial rate to these borrowers also w.e.f. September 2013, on the same grounds as of the complainant. The above said persons made representation and request to the bank to waive off the excess interest charged to them and to charge them only the interest rate as applicable on the housing loan and the OPs accepted their requests made calculations as per the rate of interest charged on housing loan accounts and accordingly, the above said borrowers liquidated their loan amounts with the OP bank, after calculating the interest of housing loan and the excess interest charged to the said persons was waived off by the OP. The OP has wrongly and malafidely repudiated and turned down the request of the complainant, which is nothing else, then the unfair trade practice and harassment of the consumers on the part of the OPs and as such, necessity arose to file the present complaint with the prayer that complaint of the complainant may be accepted and OPs be directed to calculate the interest @ 9.75% PA, as agreed at the time of sanctioning and disbursement of loan and further OPs be directed to refund the excess interest amount charged from the complainant and further OPs be directed to refund the amount of Rs.2,17,266/- along with interest @ 12% per annum, which was wrongly adjusted from the FDRs of Smt. Renu Aggarwal and Smt. Poonam Aggarwal and further OPs be directed to pay Rs.1,00,000/- as compensation for the mental tension and harassment and Rs.20,000/- as litigation expenses.

4. Notice of the complaint was given to the OPs and accordingly, both the OPs appeared through its counsel and filed joint written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable. That the complainant has already filed complaint before Banking Ombudsman, therefore, the present complaint is not maintainable and even the present complaint is bad for non-joinder and mis-joinder of necessary parties i.e. M/s Millennium Real Estate Developers Pvt. Ltd. of which complainant are share holders/directors had executed tripartite agreement along with complainant in favour of the OPs, who is a necessary party, but has not been impleaded in the present complaint, therefore, the present complaint is liable to be dismissed on this score. It is further averred that the complainant is barred, excluded and precluded by their own acts, conduct, omission and commissions to file the present complaint. The real facts are that the complainant was to get the sale deed executed and submitted the same after registration within stipulated period of 24 months and the construction had also to be completed within stipulated period of 24 months and the completion certificate was not submitted despite several reminders of OPs. As per banking norms and circulars, if construction is not completed within 24 months from the date of loan, commercial rate of interest was to be charged, therefore, the bank has rightly charged commercial rate of interest w.e.f. 23.09.2013. It is further averred that the complainant has concealed the material facts from the Forum and even the complaint of the complainant is time barred and liable to be dismissed on this score because as per own admission of the complainant, the bank started charging commercial interest from September, 2013 and that he gave representation to the OP on 26.09.2013, therefore, the present complaint is beyond limitation and even this Forum has got no jurisdiction to entertain the present complaint. Even the complainant had grossly violated the terms and conditions of loan agreement. In fact, the agreement to sell in question is a sham transaction between complainant and builder company. The loan was never used for the residential purpose. On merits, the factum in regard to availing a loan facility by the complainant and deposit of the same as well as charging of interest @ 16.75% from September, 2013 is admitted by the OP, but the remaining allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

5. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C-1 to Ex.C-10 and closed the evidence.

6. Similarly, counsel for the OPs tendered into evidence affidavit Ex.OP/A along with some documents Ex.OP/1 to Ex.OP/12 and then closed the evidence.

7. We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and also gone through the case file very minutely.

8. In the present case, it is established on the file that the complainant had obtained a housing loan from the OPs on 01.11.2010 and it was agreed the rate of interest @ 9.75% per annum upon the aforesaid house loan and thereafter, the complainant was regularly paying the installments including interest thereon time to time and he never become defaulter in the payment of the installments, but in the month of September, 2013, the OPs illegally and arbitrarily started charging interest @ 16.75% per annum from the complainant, whereas the said rate of interest has neither been mentioned in the agreement of loan or loan sanctioned letter and as such, the OPs are illegally deducting the said higher rate of interest upon the loan amount, even the complainant sent numerous letters for not charging such a huge interest @ 16.75% per annum and the said letters are proved on the file by the complainant are Ex.C-2 to Ex.C-6 and even the statement of the account Ex.C-8 also proved that the OPs were charging higher rate of interest and ultimately, the request of the complainant was declined on 11.06.2015 and thereafter, the complainant deposited a sum of Rs.27,00,000/- on 07.08.2015 and there left due loan amount of Rs.3,91,753/-, which was also got adjusted by the OP from the FDR deposited by the complainant in lieu of security and as such, there is a discrimination with the complainant by the OPs, being a reason the similar loan had been obtained by Rakesh Khanna his wife Mrs. Sarita Khanna and Mrs. Kiran Singh, but the rate of interest from them had been charged by the OP as agreed i.e. 9.75% per annum and thus, there is a clear cut deficiency and unfair trade practice on the part of the OPs and therefore, the complainant is entitled for the relief as claimed.

9. We have sympathetically considered the case of the complainant as well as reply given by the OPs and find that the complainant alleged that there is no condition mentioned in the sanctioned letter or in the agreement in regard to charging of excessive rate of interest, for that purpose, we like to refer copy of agreement Ex.OP/2, wherein specific condition is incorporated in Para No.5 of the agreement that the construction work of the house/flat shall be completed within 24 months from the date on which first disbursement of loan was made, failing which the bank can charge penal interest and similar condition has been incorporated in Para No.9, wherein a discretion was given to the bank to charge a floating rate of interest as per RBI Guidelines and then, we like to refer Para No.13 of the Agreement, whereby again a discretion was given to the OP to charge excess rate of interest in case of any default or violation of terms and conditions, admittedly, in this case, as per version of the OP, the complainant has to execute a sale deed and also complete the construction work within 24 months from the date of disbursement of first installment of the loan, but the complainant has miserable failed to get the sale deed executed as well as construction was not raised and regarding that the OP sent a letter to the complainant on 04.10.2013 Ex.OP/1 with the request to submit sale deed to the bank, in response to this letter, the complainant only wrote one letter on 26.09.2013 and then Ex.C-2 on 10.06.2014, but it has not been mentioned in the letters Ex.C-1 and Ex.C-2 whether the sale deed was submitted or not nor any explanation given. The learned counsel for the OP categorically referred a letter dated 04.10.2013 Ex.OP/1, wherein the complainant was informed and make cautious that if he failed to submit the copy of sale deed within stipulated time as given in the letter, then the finally bank has started charging commercial rate of interest in your loan account i.e. @ 16.75% per annum w.e.f. 23.09.2013. Its postal receipt is also attached with this letter, so it means the letter was actually delivered to the complainant, but he did not bother and even thereafter, the complainant deposited the amount after about 2 years i.e. in the year 2015 and even settled the remaining loan amount from the FDR. There is an other document available on the file, which shows that the complainant himself agreed to charge a rate of interest @ 16.75% per annum in case of default and this document is balance and security confirmation Ex.OP/7, which bear the signature of the complainant and as such, we are of the opinion that the complainant cannot wriggle out from his own consent given through the aforesaid letter Ex.OP/7. So, with these observations, we are of the opinion that there is no deficiency in service or unfair trade practice on the part of the OPs rather the complainant himself deposited the entire amount of the loan along with interest @ 16.75% per annum and if the said amount had been deposited by the complainant under protest, then he can come and re-agitate the said rate of interest in the Consumer Forum, but if he voluntarily deposited, without any protest, then he cannot challenge the same, which he deposited voluntarily and thus, the complainant is not entitled for the relief claimed.

10. Apart from above, there is an other legal lacuna in this case that the complaint of the complainant seems to be not within limitation because as per the version of the complainant, as alleged in the complaint in Para No.3 that the OPs started charging interest @ 16.75% per annum and this fact has also come to the notice of the complainant as the complainant himself wrote a letter to the bank on 26.09.2013 Ex.C-1 and thereafter, continuously paying the said disputed rate of interest and ultimately, deposited the entire loan amount along with interest in the year 2015 without any objection and thus, the cause of action accrued to the complainant in the month of September, 2013 i.e. 26.09.2013 when the letter Ex.C-1 was sent by the complainant to the OP for not charging higher rate of interest and period for filing of the consumer complaint is two years and if we reckoned the period of two year from 26.09.2013, then it comes 26.09.2015, but the instant complaint filed by the complainant on 15.03.2016, beyond the period of two years, therefore, according to our opinion the complaint of the complainant is also time barred.

11. In the light of above detailed discussion, the complaint of the complainant is without merits, therefore the same is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

05.09.2018 Member President