Punjab

Ludhiana

CC/16/776

Bhagwat Singh - Complainant(s)

Versus

PNB Housing Finance Ltd - Opp.Party(s)

Parveen Talwar Adv.

10 Oct 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. : 776 of 02.11.2016

   Date of Decision            :  10.10.2017

 

Bhagwant Singh son of Shri Tarlok Singh, resident of House No.81/A, Punjab Housing Board Colony, Jamalpur, Ludhiana.

….. Complainant

                                                            Versus       

 

1.PNB Housing Finance Limited, SCO 16-17, 2^nd Floor, Canal Colony, Pakhowal Road, Ludhiana, through its Branch Head.

2.PNB Housing Finance Limited, Registered office 9^th Floor, Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi-110001 through its Managing Director.

 

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

COUNSEL FOR THE PARTIES:

 

For complainant               :         Sh.Parveen Talwar, Advocate

For Ops                           :         Sh.Alok Mohindra, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                           Ops sanctioned housing loan facility of Rs.40, 73,394/- in favour of complainant for purchase of plot and raising construction thereon by disbursal of an amount of Rs.18,73,673/- through loan account No.HOU/LUD/0415/217268 on 11.5.2015. Rs.18 lac out of the disbursed amount paid to the vendor Sh.Ranjit Pal Singh Bhandal, from whom, the complainant purchased plot No.215, Sector 39A, Urban Estate, Chandigarh Road, Ludhiana vide sale deed bearing Wasika No.5079 dated 26.6.2015. However, an amount of Rs.73,394/- was paid to Bharati Axa Life Insurance Company Limited for purchase of insurance policy. Vide letter dated 4.2.2016, complainant requested OP1 to provide detail of amount due from him in the said loan account because he was aspiring to close the account by making one-time payment. Ops through letter dated 3.3.2016 called upon the complainant to deposit an amount of Rs.19,34,240/- for closure of the loan account. Rs.63,791/- claimed on account of pre-payment charges were also claimed. This claimed amount of Rs.63,791/- as prepayment charges claimed       to be against the instructions of circular of Reserve Bank of India, particularly when complainant availed the term loan on floating rate. Complainant had to pay Rs.19,34,240/- including the above referred amount of Rs.63,791/- as prepayment charges under compelling circumstances for getting the loan account closed, so as to get back the original sale deed of the mortgaged property. Pre-payment charges amount claimed against the rules and regulations and as such by pleading deficiency in service on the part of Ops and by claiming that complainant suffered mental tension, harassment and agony, prayer made for directing Ops to return the above said amount of Rs.63,791/- with interest @15% per annum. Compensation for mental harassment and agony of Rs.50,000/- and litigation expenses of Rs.22,000/- more claimed.

2.                 In joint written reply submitted by Ops, it is pleaded interalia as if inferences and conclusions drawn by the complainant for filing this complaint are false and wrong; complaint has been filed with malafide intention of getting undue and unwarranted monetary benefit from Ops. Besides, it is claimed that the complainant is guilty of perjury on account of making false statement before this Forum. National Housing Bank(hereinafter in short referred to as ‘NHB’) through circular No.NHB(ND)/DRS/Policy Circular No.63/2014-15 dated August 14, 2014 has specifically laid that on floating rate of interest structure, prepayment fee is recoverable, if either of the borrowers is a non-individual. Loan got by the complainant falls within the category of loans extended to ‘Non-Individual Borrowers’ because Sonu Garments and General Store, a Partnership Firm is one of the co-borrowers. That fact has been concealed from this Forum. Complainant and his co-borrowers had expressly and categorically agreed that prepayment charges on foreclosure of the loan facility shall be levied in accordance with the terms of the loan agreement. Levy of prepayment charges is justified being in accordance with the policy circulars issued by NHB. This Forum has no jurisdiction with regard to the amount, which  already stands paid and the      relief virtually is for recovery of said amount. Such a relief can be claimed from the Civil Court. The circulars/notifications/directives of NHB are applicable in respect of the persons contracting loans from Housing Financing Company.  It is claimed          that after repayment of loan amount, relationship of borrower and lender came to an end and as such, complainant is not a consumer. Moreover, there is no deficiency in service on the part of Ops. Further, it is claimed that in view of involvement of intricate question of law and facts requiring elaborate evidence, the matter needs  be got   decided from the Civil Court. Complainant along with M/s Sonu Garments & General Store, Sh.Dhyan Singh and Smt.Manju applied for credit facilities of amount of Rs.40,73,394/- inclusive of the insurance premium of Rs.73,394/-. Disbursal of Rs.18,73,673/- inclusive of insurance premium amount of Rs.73,394/- against   mortgage of property No.215 measuring 200 sq.yards situate in Sector 39-A, Chandigarh Road, Ludhiana admitted by claiming that remaining amount was to be disbursed at the time of construction stage. However, complainant has not availed the remaining loan amount. Complainant offered to create an equitable mortgage over his property in favour of Ops as security and for that purpose, he deposited sale deed dated 26.6.2015 bearing Wasika No.5079. One of the material condition of grant and sanction of loan was that repayment will be made by M/s Sonu Garments and General Store. All the installments of the loan were paid by the said firm from its account with Central Bank of India till the loan account was closed. Loan agreement was executed by the above named co-borrowers after duly understanding the terms and conditions including that of liability to pay the prepayment charges. Prepayment charges were calculated as per the terms and conditions of the agreement and loan admittedly was closed by complainant after payment of the entire amount. It is claimed that prepayment charges claimed as per circular of NHB and as such, there is no deficiency in service on the part of Ops. Each and every other averment of the complaint denied.

3.                 Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C11 and then he closed the evidence.

4.                 On the other hand, counsel for Ops tendered in evidence affidavit Ex.RA of Sh.Rajinish Gupta, Authorized Officer of OPs along with documents Ex.R1 to Ex.R4 and then closed the evidence.

5.                 Written arguments not submitted by any of the parties. Oral arguments by counsel for parties addressed and those were heard. Records gone through minutely. 

6.                 Admittedly, the loan in question was disbursed to the extent of Rs.18,73,673/-, out of the sanctioned loan amount of Rs.40,73,394/- and the same facts even borne from the contents of copy of statement of account produced on record as Ex.C1. Admittedly, the complainant opted for closure of loan account after paying the entire due amount in lump-sum and that is why, loan closure statement Ex.C2 was supplied to the complainant for disclosing as if amount of Rs.19,34,240.34P is payable by him inclusive of prepayment charges of Rs.63,791/-. Date of prepayment mentioned as 3.3.2016 in Ex.C2 and there is no dispute regarding the fact that said amount has been deposited inclusive of prepayment charges. Payment receipts are produced on record as Ex.C3, Ex.C6 and Ex.C7, whereas, request for closure of account submitted by complainant on letter pad of Sonu Garment & General Store is produced on record as Ex.C4. Ex.C5 is the pay order showing as if Rs.18 lac payable to PNB Housing Finance Limited.

7.                 It is vehemently contended by counsel for complainant that contents of Ex.C1 establishes that loan in question was housing loan raised for purchase of plot and construction thereon and same granted on floating rate of interest of 10.5% per annum and with the help of contracted loan, sale deed Ex.C10 was got executed by the complainant in his own name and as such, virtually loan in question was a loan contracted by an individual borrower. However, these submissions of counsel for complainant though looks ex-facie correct, but in fact they are not so, when looked into the light of the terms and conditions of disbursement letter along with produced documents of demand promissory note, letter of continuity, loan agreement and terms and conditions of the contracted loan.

8.                 Even if the complainant may have purchased the property through sale deed Ex.C10 in his individual name, but despite that general terms and conditions of Ops are produced on record. From perusal of clause 1.1(d) of General terms and conditions,  it is made out that the borrowers means and includes the person(s) named in the disbursement letter along with his/her/their address(s), unless it be repugnant to the subject or as the context may permit or require,  and in case of one or more individual(s) each             one being deemed to have agreed to the  general terms and conditions           individually. When such definition of borrower given in clause 1.1(d) of the Article-1 of      the general terms and conditions of Ops, then it means that borrower will include every person or persons, who is named in the disbursement letter. Copy of disbursement letter is part of disbursement kit placed on record as Ex.R2. After going through that disbursement letter, it is made out that borrowers named in column number-3,            are as under:-

*Mr.Bhagwant Singh; s/o D/o Tarlok Singh; R/o H.No.81-A, Labour Colony, Jamalpur, Ludhiana, Punjab-141001, India.

*Mr.Dhyan Singh, s/o D/o Tarlok Singh; R/o H.No.81-A, Labour Colony, Jamalpur, Ludhiana, Punjab-141001, India.

*Mrs.Manju Singh s/o D/o Gobind Singh; R/o H.No.81-A, Labour Colony, Jamalpur, Ludhiana, Punjab-141001, India.

*Sonu Garment And General Store, A partnership firm registered under the provisions of the Partnership Act, 1932 and any other law for the time being in force having its registered office/Office at Shop No.1445, Focal Point Road, Sherpur Chowk, Ludhiana, Punjab-141003, India acting through its Partner(s).

9.                 So, from the contents of disbursement letter Ex.R2, it is made out that the borrowers are Sonu Garment and General Store, a firm registered under the Partnership Firm along with the present complainant and Sh.Dhyan Singh and Mrs.Manju Singh. In view of general terms and conditions referred above, it has to be held that it is not the complainant alone, who is the borrower, but registered partnership firm i.e. Sonu Garment and General Store is also a co-borrower. If such is the position laid in the agreement itself and same borne from the produced documents of loan agreement, demand promissory note, letter of continuity and the disbursement request dated 25.6.2015 as well as from the receipts dated 25.6.2015;  form of cheque statement     and declaration and undertaking submitted in Form A1, then certainly it is made out that complainant is not the individual borrower. Had complainant been the individual borrower, then the above referred loan documents consisting of demand promissory note, letter of continuity etc would have been signed by the complainant alone and not by the others like Sh.Dhyan Singh, Mrs.Manju Singh or by the complainant as partner for Sonu Garments & General Store also. As the documents executed by the complainant along with other co-borrowers at the time of availing of loan and the contents of copy of statement of account Ex.C1 along with loan closure statement Ex.C2 and other produced documents Ex.C8 and Ex.C9 by the complainant itself reflects that borrowers are Bhagwan Singh, Dhyan Singh, Manju Singh and Sonu Garment and General Store and as such, submission advanced by counsel for complainant has no force that due to purchase of property with the help of contracted loan exclusively in the name of complainant Bhagwant Singh, it should be held as if the loan is contracted by an individual. It is well settled that whenever terms of contract reduced to writing, then evidence in abeyance to the same cannot be allowed to be produced unless plea of forgery or like that is taken. No plea of forgery or of mis-representation in getting the documents of loan executed from Dhyan Singh, Manju Singh and Bhagwant Singh as partner of Sonu Garment and General Store raised at all and as such, it has to be held that loan amount was not contracted by an individual, but by three borrowers along with a firm. If that be the position, then benefit from circular Ex.C11 issued by Central Bank of India cannot be availed by the complainant because benefit of that circular available, if floating rate term loan contracted by an individual borrower. However, the group borrowers in this case includes a partnership firm also and as such, in view of clause 2.10.1 of general terms and conditions of Ops, they are entitled to recover the prepayment charges, which they have done. So, no case for deficiency in service or of adoption of unfair trade practice is made out, particularly when prepayment charges recovered as per the terms and conditions of the loan agreement and also as per the terms and conditions of circular Ex.R3 issued by NHB to all the Registrars of Housing Finance Companies. This certificate Ex.R3 provides that if loan contracted by a company or a firm as borrower or co-borrowers, then clause with respect to non-charging of prepayment charges not applicable. As one of the co-borrower is a registered firm and as such in view of circular Ex.R3, act of demanding prepayment charges is quite as per rules and regulations of NHB and the same act is not violative of contents of circular Ex.C11 as produced by the complainant.

10.               Legal validity of the contract cannot be gone into by this Forum in view of law laid down in case titled as M/s WWICS Ltd vs. K.L.Bhagat(Dr.)-2015(3)CLT-604(Punjab State Consumer Disputes Redressal Commission, Chandigarh), because contract arrived at between the parties is binding on it. Even as per law laid down in case titled as Subodh Choudhary vs. New India Assurance Co.Ltd and another-2012(3)CLT-49(N.C.); in view of section 91 of the Evidence Act, when the contents of contract are reduced into writing, then documents pertaining to this contract to be taken as proof of the contract and no oral evidence is admissible to contradict the contents of documents and same to be taken into consideration. This proposition of law has been taken into consideration, while holding the above discussion.

11.               In case titled as Mithra Agencies vs. Bank of Baroda-2015(2)CLT-554(Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad), it has been held that if the closure of loan account had taken place, then the complaint itself is not maintainable because of non-existence of relationship of  service provider and borrower, who has closed the account without protest. Ratio of this case is fully applicable to the facts of the present case because complainant himself has closed the loan account by paying the prepayment charges prior to filing of the present complaint and as such, relationship of consumer and service provider came to an end between the parties. So, from the above discussion, it is made out that neither it is a case of deficiency in service and nor adoption of unfair trade practice on the part of Ops and as such, complaint merits dismissal.

12.               Therefore, as a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to parties free of costs as per rules.

13.                         File be indexed and consigned to record room.

 

 (Param Jit Singh Bewli)                                     (G.K.Dhir)

 Member                                                              President

Announced in Open Forum

Dated:10.10.2017

Gurpreet Sharma.