DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS,

AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

                  C.C. CASE NO. 139  OF  2017

DATE OF FILING: 20.11.2017                                         DATE OF PASSING JUDGEMENT:  01.11.2018

Present                        :   President       :   Ananta Kumar Kapri

                                        Member(s)    :   Subrata Sarker          

COMPLAINANT                  : Sri  Ranojit Karmokar, son of late Nemai Karmokar of C/o Chasma Ghar, Sonarpur Bazar, P.O & P.S Sonarpur, Kolkata – 150.

                                                                          - VERSUS  -

O.P/O.Ps                            :  Shriram Housing Finance Limited, at Mira Tower, 9^th floor, DN-27, Salt Lake, Sector-V, Kolkata – 91.

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J U D G M E N T

Sri Ananta Kumar Kapri, President

        With the allegation of deficiency in service and unfair trade practice against Shriram Housing Finance Ltd. ,the O.P, the complainant has filed the instant case under section 12 of the C.P Act, 1986 ,praying for passing a direction granting several reliefs as pleaded in the complaint.

            The facts leading to the filing of the instant case may be epitomized as follows.

            The complainant took loan of Rs.43,16,056/- sanctioned by the O.P on 17.6.2015 with interest @16% p.a for purchasing residential house on condition to repay the same by 180 EMIs of Rs.63,390/- each. He repaid 10 installments and thereafter wanted to foreclose the loan before time, when Tata Housing Finance Ltd. agreed to advance the amount then lying outstanding to O.P from the complainant at low interest i.e 9.7% p.a. On 9.2.2016 , the complainant made a request to the O.P through e-mail for supply of information regarding amount of foreclosure; but, no reply was given to the complainant by the O.P despite repeated persuasions from the complainant. Last of all, information was supplied about the outstanding amount as on 24.2.2016. Accordingly, cheque for Rs.43,57,375/- was prepared on 3.3.2016 by Tata Finance Ltd.; but, the said cheque was refused by the O.P, when produced by the complainant. Thereafter, the O.P accepted the said cheque on 9.4.2016 when complainant had lodged a complaint before the R.B.I on 2.3.2016. Complainant had, therefore, to suffer loss for payment of interest to the O.P for the month of March and April in the year 2016 to the tune of Rs.1,14,000/-. Moreover, O.P has received Rs.96,795/- as excess amount , as he received Rs.43,57,375/- as against Rs.42,60,580/- which lay outstanding on 7.4.2016. Rs.90,619/- has been refunded by the O.P to the complainant and Rs.6,176/- is yet to be refunded to the complainant by the O.P. The complainant also claims a further refund of Rs.5,212/- which the O.P has received unscrupulously as processing fees. He has also claimed a sum of Rs.5 lac as compensation for harassment and mental agony.

            The O.P has been contesting the case by filing written statement. The positive case as made out in the written statement by the O.P is that the loan was granted to the complainant . According to the O.P, a request was received on 9.2.2016 from the complainant for foreclosure of loan amount and having received such request, they processed the sme for getting approval of higher authority. Finally, on 24.2.2016 , the Finance Company communicated to the complainant the amount required for foreclosing the loan amount . Thereafter, the complainant paid Rs.43,57,375/- on 9.4.2016 only after expiry of deadline for payment of EMI, i.e the 7^th day of every month. So, the O.P received the interest for the month of March and April 2016 in terms of the agreement and also agreed as a mark of good gesture to pay back Rs.5212/- - the amount recovered as processing fee. The complainant did not approach the O.P even after the communication of foreclosure on 24.2.2016. He paid the foreclosure amount on 9.4.2016. So, the O.P is entitled to EMI of March and April, 2016. There is no deficiency in service nor any unfair trade practice on the part of the O.P and the case filed by the complainant should be dismissed in limini.

Upon the averments of the parties the following points are formulated for consideration.

POINTS FOR DETERMINATION

1. Is there any deficiency in service in foreclosing the loan as per O.P’s system generated letter dated 9.2.2016 plus its attachment?
2. Is there any unfair trade practice on the part of the O.P as alleged by the complainant?
3. Is the complainant entitled to get relief / reliefs as prayed for?

EVIDENCE OF THE PARTIES

            Both the parties have led evidences on affidavit which are kept in the record. BNA filed by the O.P only is also kept in the record after consideration.

DECISION WITH REASONS

Point nos. 1, 2& 3 :

             Already heard the submissions of Ld. Lawyers ,appearing for both the parties. Perused the pleadings of the parties, the evidence led on behalf of the parties and the BNA filed by the O.P. Considered all these.

            On an in-depth study of the evidences and the materials on record ,it is found that the O.P Finance Company has left no stone unturned to prevent foreclosure of the loan by the complainant. It is also found on record that the said company has felt no compunction whatsoever even to go down to despicable extent. On perusal of foreclosure letter dated 9.2.2016 of the O.P, which was sent to the complainant through email on 24.2.2016, it is found that the date of foreclosure was fixed by the O.P on 20.2.2016. We cannot understand how the date of foreclosure was fixed on 20.2.2016, when the said letter was communicated to the complainant on 24.2.2016. Surprisingly enough, the letter was communicated through email to the complainant on 24.2.2016, as it is envisaged from its attachment, but the letter bears the date 9.2.2016. The issuance of a letter by giving a back date thereupon, is certainly a deficiency in service and also an unfair trade practice. A fair person is never expected to issue such kind of letter; it is only a person with malafide intention who can issue such kind of letter. The attachment of the said letter is dated 24.2.2016 and a copy thereof is also filed on record by the complainant. It is seen from that attachment document that the date for foreclosure was fixed on 20.2.2016, whereas the attachment letter was communicated to the complainant on 24.2.2016. No opportunity whatsoever has been given to the complainant by the O.P to act in terms of the said attachment document. The intention of the O.P is almost clear through his own act. Intention of the O.P is malafide; intention of the O.P is to prevent the complainant by hook or crook from acting in terms of the attachment issued by it and thereby to earn profit more and more by delaying foreclosure of the loan to whatsoever extent the O.P can . Another letter dated 6.4.2016 was communicated to the complainant by the O.P and a copy thereof  has also been filed by the O.P before the Forum.  By this letter, the O.P fixed the date of foreclosure on 15.4.2016. This is the letter which also goes to substantiate our conclusion that the O.P never intended to give any effect to the earlier letter dated 9.2.2016 whereby the date of foreclosure was fixed on 20.2.2016. The letter dated 6.4.2016 goes to prove that the earlier letter dated 9.2.2016 was only an eye-wash and the said letter dated9.2.2016 was issued to the complainant by the O.P with the intention of delaying the foreclosure of the loan amount. This practice of the O.Ps is not a fair practice and it is also a deficiency in service as defined in Consumer Protection Act.

            It is the version of the O.P that the complainant did not act on the basis of letter dated 9.2.2016 whereby the date of foreclosure was fixed on 20.2.2016. According to the version of the O.P, the O.P made the payment of foreclosure amount by a cheque only on 9.4.2016 and ,therefore, the O.P is entitled to recover the interest upon the loan amount for the month of March 2016 and
April 2016 in terms of the agreement reached between the parties. This submission on behalf of the O.P also appears not acceptable as we come to find that the material facts have been kept suppressed by the O.P. The complainant issued a cheque for the foreclosure amount on 3.3.2016 ,but the said cheque was not accepted by the O.P on some pretext or other. The cheque was not accepted by the O.P only for recovering the interest on the entire loan amount from the complainant for two months i.e March 2016 and April 2016. What are the explanations furnished by the O.P for not accepting the cheque issued by the complainant? Explanations are that payment in March was not to be accepted by virtue of their circular and that the EMI was not paid by the complainant by 7^th day of April 2016 in terms of the agreement. No Circular whatsoever has been placed by the O.P on record to prove that no payment was to be accepted in the month of March. As regards the payment of EMI after 7^th April 2016, it is found that the complainant was ready and willing to make payment of foreclosure amount by way of cheque dated 3.3.2016 and it is the O.P who did not accept the payment of that money. The explanations furnished by the O.P appears to be preposterous and ludicrous and hence it is not acceptable.

            We have already mentioned it that the intention of the O.P was to earn more profit by hook or crook. Refusal to accept the cheque by the O.P only goes to strengthen our foregone conclusion that the O.P did not accept the cheque with a view to earning more profit by way of interest for two months i.e March 2016 and April 2016. This act on the part of the O.P is a clear instance of deficiency in service as well as unfair trade practice.

            Now to see whether the complainant is entitled to get relief or reliefs as prayed for and if so, to what extent.

            We have already held that the O.P has earned interest for two months i.e for the month of March 2016 and April 2016 by adopting various types of subterfuge to delay the foreclosure of the loan amount by the complainant. The O.P will have to return the said amount of Rs.1,14,000/-,which has been received by it unscrupulously ,having adopted deceptive tactics. It is also admitted by the O.P in their written version that they wanted to pay Rs.5212/- to the complainant as excess processing fee taken by them. So, this amount is also tobe given to the complainant by the O.P and complainant is entitled to get it. The complainant has also demanded payment of Rs.6176/- from the O.P as the excess being taken by the O.P with the foreclosure amount. It is undisputed case of the parties that the O.P received Rs.43,57,375/- as foreclosure amount from the complainant as against the outstanding loan amount of Rs.42,60,580/-. The O.P accepted Rs.96,795/- as excess amount from the complainant and he has also refunded Rs.90,619/- to the complainant. So, the complainant is also found entitled to get payment of the balance amount i.e Rs.6,176/- from the O.P company. The O.P has employed many tactics to prevent foreclosure of the loan amount., Even after sanction of the foreclosure by it, the complainant had to run from pillar to post with allegation of harassment against the O.Ps. he has certainly undergone a good amount of harassment and mental anguish for unscrupulous act of the O.P and, therefore, the O.P will have to pay compensation to the complainant.  

            In the result, the case succeeds.    

Hence,

ORDERED

That the complaint case be and the same is decreed on contest against the O.P with a cost of Rs.10,000/-.

The O.P is directed as follows :

1. To pay Rs.1,14,000/- to the complainant, recovered as interest from the complainant unscrupulously.
2. To pay Rs.5212/- which has been recovered as process fee from the complainant beyond the terms of the agreement .
3. To pay Rs.6,176/- ,which is the balance of the excess amount taken by the O.P from the complainant with foreclosure amount.
4. To pay Rs.50,000/- as compensation for harassment and mental agony caused to the complainant by the act of the O.P.

All the amounts as mentioned above including the cost amount are to be paid by the O.P to the complainant within a month of this order, failing which all these amounts will bear interest @10% p.a till full realization thereof.

    Let a free copy of this order be given to the parties concerned at once.   

                                                                                                                                 President

I / We agree

                        Member                                                        Member

Dictated and corrected by me

  President