Haryana

Karnal

CC/342/2021

Dr. Kamal Charaya - Complainant(s)

Versus

PNb Housing Finance Limited - Opp.Party(s)

Sanjay Gupta

18 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 342 of 2021

                                                        Date of instt.20.07.2021

                                                        Date of Decision 18.05.2023

 

Dr. Kamal Charaya, c/o Shri Ram Chand Memorial Hospital Private Limited, House no.12, Ashoka Colony, Karnal.

 

                                               …….Complainant.

                                              Versus

 

1.     PNB Housing Finance Ltd. SCO no.218-219, 1^st floor, Sector-12, Part-1, City Centre, HUDA, Karnal-132001 through its Manager.

 

2.     PNB Housing Finance, 9^th floor, Anatriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi-110001 through its Manager.

 

                                                                      …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Shri Vineet Kaushik……Member

      Dr. Rekha Chaudhary…….Member

                   

 Argued by: Shri Sanjay Gupta, counsel for the complainant.

                    Shri Vineet Rathore, counsel for the OPs.

 

                    (Dr. Rekha Chaudhary, member)

ORDER:   

                

                   The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant availed two loans from the OPs, vide account no.00076660004061 of Rs.1,07,37,316/- on 10.06.2015 and the said loan was to be repaid in equal monthly installment of Rs.1,16,701/- in 178 installments and the first installment was commenced on 10.06.2015 and the last installment was to be paid on 10.04.2030 and in this regard OPs have issued a Loan Amortization schedule. Complainant was regularly paying the installments and in between the complainant paid Rs.84,67,515/- on 21.01.2021 and entire loan amount alongwith upto date interest was returned and nothing was due against the complainant, but the OPs have charged pre-closure charges of Rs.1,95,600.34 illegally without any right, title or interest. Likewise the complainant also availed loan vide account no.NHL/KAR/0316/273715 of Rs.99,88,409/- on 30.03.2016 and the said loan was to be repaid in equal monthly installments of Rs.1,21,429/- in 138 installment and the first installment was commenced on 30.03.2016 and the last installment was to be paid on 10.06.2027 and in this regard, the OPs have issued a Loan Amortization Schedule. The complainant deposited Rs.10,00,000/- on 10.01.2019 but OPs have only credited a sum of Rs.9,65,810/- in the account of the complainant in this way, the OPs have credited a less amount which comes Rs.34,190/- and in between the complainant paid Rs.69,12,410/- on 21.01.2021 and entire loan amount alongwith upto date interest was returned and nothing was due against the complainant, but the OPs have charged pre-closure charges of Rs.2,37,498.60 illegally without any right, title or interest. On scrutiny of record, the complainant came to know that the above amount deposited by the complainant includes pre-closure charges which is an illegal act on the part of the OPs and complainant is entitled for the refund of pre-closure charges charged in the above loan accounts which comes to Rs.4,67,288.00. Complainant requested the OPs several times to refund the abovesaid amount alongwith interest from the date of deposit till its realization but OPs did not pay the same. Then complainant sent a legal notice dated 22.06.2021 to the OPs but it also did not yield any result. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi; mis-joinder and non-joinder of necessary parties and concealment of true and material facts. On merits, it is pleaded that the pre-closure charges are justified in accordance with the agreed terms of the loan documents, besides being in accordance with the directions/ Circulars issued by NHB (National Housing Bank) in this regard. The prepayment charges are in accordance with the terms, conditions and covenants as envisaged in the loan agreement executed between complainant and PNBHFL in relation to the said loan as well as the schedule of charges, complainant as well as the other co-borrowers had expressly and categorically agreed, that prepayment chares on foreclosure of the loan facility shall be levied in accordance with the terms laid down in this respect by PNBHFL and which are applicable at the relevant point of time. It is further pleaded that the NHB in its circular no.NHB(ND)/DRS/policy circular no.63/2014-15 dated August 14, 2014 readwith NHB (ND)/DRS/Policy circular no.66/2014-15 dated September 03, 2014 has specified that the loan availed by the borrowers under floating rate of interest structure, if pre-closed, shall attract a pre-payment fee if either of the borrowers is a non-individual. The said policy circulars are public documents availed in public domain. It is further pleaded that the said loan falls within the category of loans that were/are extended to “Non individual Borrowers”  as Shri Ram Chand Memorial Hospital Private Limited is one of the co-borrower to the loans availed by complainant. It is further pleaded that the loan/s were taken by “Non individual Borrowers” as Dr. Kamal Charaya, Ms Noopur Taneja and Shri Ram Chand Memorial Hospital Pvt. Ltd. (non-individual) are the borrowers/co-borrowers in all of loan accounts and it is further stated that as per the policy Circulars issued by NHB (National Housing Bank), the loans availed by borrower/s under floating rate of interest structure, if pre-closed, shall attract a pre-payment fee if either of the borrowers are non-individual. Therefore, the prepayment charges as charged are absolutely justified and within parameters of loan agreements and circular/guidelines floated by regulating authorities.  It is further pleaded that the said loan falls within the category of loans that were/are extended to “Non individual Borrowers” as the complainants Dr. Kamal Charaya, Ms. Noopur Taneja and Shri Ram Chander Memorial Hospital Pvt. Ltd. are the co-borrowers to the loans. It is further pleaded that the pre-closure amount has been rightly charged and claimed. Hence, complainant is not entitled to refund the amount of Rs.4,67,288/- as the pre-closure charges are justified in accordance with the agreed terms of the loan documents. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied by the OPs and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of payment slip Ex.C1, copy of loan Amortization Schedule Ex.C2, copy of loan schedule Ex.C3, copy of payment slip Ex.C4, copy of loan statement Ex.C5, copy of loan schedule Ex.C6, copy of legal notice Ex.C7, postal receipts Ex.C8 and Ex.C9, AD Ex.C10, copy of reply of legal notice Ex.C11 and closed the evidence on 08.02.2022 by suffering separate statement.

5.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Ankur Kaushik Ex.OP1/A, copy of sanctioned letter Ex.OP1, copy of disbursement Kit Ex.OP2, copy of application dated 26.03.2016 Ex.OP3, copy of loan agreement Ex.OP4, copy of foreclosure charges dated 03.09.2014 Ex.OP5, copy of foreclosure charges dated 14.08.2014 Ex.OP6, copy of statement of account Ex.OP7, copy of reply dated 28.10.2020 Ex.OP8, copy of general conditions Ex.OP9, copy of terms and condition of agreement Ex.OP10, copy of deed of General power of attorney Ex.OP11 and closed the evidence on 22.11.2022 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that on 10.05.2015, complainant availed two loans from the OPs of Rs.1,07,37,316/- and the said loan was to be repaid in 178 monthly installments. Complainant was regularly paying the installments. The complainant paid Rs.84,67,515/- on 21.01.2021 and entire loan amount alongwith upto date interest was returned and nothing was due against the complainant, but the OPs have charged pre-closure charges of Rs.1,95,600.34 illegally. Complainant also availed loan of Rs.99,88,409/- on 30.03.2016 and the said loan was to be repaid in 138 monthly. The complainant deposited Rs.10,00,000/- on 10.01.2019 but OPs have only credited a sum of Rs.9,65,810/- in the account of the complainant in this way, the OPs have credited a less amount which comes Rs.34,190/- and complainant also paid Rs.69,12,410/- on 21.01.2021 and entire loan amount alongwith upto date interest was returned and nothing was due against the complainant, but the OPs have charged pre-closure charges of Rs.2,37,498.60 illegally. Complainant is entitled for the refund of pre-closure charges charged in the above loan accounts which comes to Rs.4,67,288.00. Complainant requested the OPs several times to refund the abovesaid amount alongwith interest but OPs did not pay the same and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that the pre-closure charges are justified in accordance with the agreed terms of the loan agreement and with the directions/ Circulars issued by National Housing Bank. He further argued that the loan availed by the borrowers under floating rate of interest structure, if pre-closed, shall attract a pre-payment fee if either of the borrowers is a non-individual. The prepayment charges as charged are absolutely justified and within parameters of loan agreements and circular/guidelines floated by regulating authorities and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, on 10.06.2015 complainant availed two loans from the OPs and said loan was to be repaid in equal monthly installment of Rs.1,16,701/- in 178 installments and the first installment was commenced on 10.06.2015 and the last installment was to be paid on 10.04.2030.

11.           Complainant also availed second loan on 30.03.2016 and said loan was to be repaid in equal monthly installments of Rs.1,12,429/- in 138 installments and first installment was commenced on 30.03.2016 and last instllment was to be paid on 10.06.2027.

12.           Complainant had repaid entire loan amount on 21.01.2021 and OPs have charged pre-closure charges of Rs.1,95,600/-.

13.           Complainant deposited Rs.10,00,000/- on 10.01.2019 but OPs have only credited a sum of Rs.9,65,810/-. This fact has not denied by the OPs and OPs have submitted that amount has been credited as per terms and condition of the loan agreement. But OPs have failed to explain the reason for not crediting the whole amount in the loan account of the complainant. Thus, OPs have credited a less amount of Rs.34,190/-.

14.           Complainant had cleared the whole loan on 21.01.2021. OPs have charged pre-closure charges f Rs.2,37,498/-.

15.           In the both loans, OPs have charged the pre-closure charges of Rs.4,33,098/- (Rs.195600+237498). OPs have charged the pre-closure charges on the basis of Circular no. National Housing Bank (NHB)(ND)/DRS/policy circular no.63/2014-15 dated August 14, 2014 readwith NHB (ND)/DRS/Policy circular no.66/2014-15 dated  September 03, 2014. Penalty against the loan availed by complainant is in the name of only Ms. Noopur Taneja. Generally, banks/financial companies add others family members as co-borrowers just to save the loan amount.

16.           Reserved Bank of India (RBI) vide circular RBI/2019-20/29-30 dated August 2, 2019 has clarified that bank shall not charged foreclosure charges/pre-payment penalties on home loans/all floating rate term loans sanction to individual borrowers.  It is also clarified that banks shall not charge foreclosure charges/pre payment penalties on any floating rate term loan sanctioned, for purpose other than business, to individual borrower with or without co-obligant(s).

17.           The definition of individual is reproduced as under:-

“An individual is that which exists as a distinct entity. Individuality (or self-hood) is the state or quality of being an individual; particularly (in the case of humans) of being a person unique from other people and possessing one's own needs or goals, rights and responsibilities”.

18.           The OPs have credited less amount of Rs.4,33,098/- (Rs.195600+237498) at the levy of foreclosure charge and also charged the foreclosure charges of Rs. 4,33,098/-, which are arbitrarily and unjustified. Hence act of the amounts to deficiency in service and unfair trade practice.

19.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to refund Rs.4,33,098/- (Rs.195600+237498) to the complainant. We further direct the OPs to pay Rs.20,000/- on account of mental agony and harassment and Rs.11,000/- towards litigation expenses to the complainant. It is made clear if the said amount is not paid within stipulated period then this amount will carry interest @ 9% per annum from the date of order till its realization. The parties concerned be communicated of announcement of  the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:18.05.2023                                                                      

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)             (Dr. Rekha Chaudhary)

           Member                         Member