BEFORE THE DISTRICT CONSUMER FORUM: MEDAK AT SANGAREDDY
PRESENT: SRI P.V.SUBRAHMANYAM, B.A,B.L., PRESIDENT.
SMT U.SUNITA, M.A., LADY MEMBER.
SRI MEKALA NARSIMHAREDDY, M.A,LL.B.,P.G.D.C.P.L
MALE MEMBER.
Wednesday the 18th day of March, 2009
CC.NO.33/2008
Between:
Ch. Vittal Sharma,
S/o Kirshna Murthy, Age: 38 yrs,
R/o H.No. 7-25, Sairam Nagar, Jogipet,
Medak District.
… complainant.
And
1. The Branch Manager, UCO Bank, Branch,
At Sangareddy, Medak Dist.
2. The Sub-Registrar, Sangareddy, (Registrations)
Medak District.
… Opposite parties.
This case came up for final hearing before us on 25.02.2009 in the presence of the complainant in person and Sri P. Raghavendra Rao , Advocate for complainant . Sri R.V. Subba Rao, Advocate for Opposite party Nos.1 , Sri K. Narsing Rao, Government Pleader for Opposite party No. 2, upon hearing the arguments of the complainant ‘s advocate, on perusing the record and having stood over for consideration till this day, this forum delivered the following.
O R D E R
( Per Sri. P.V. Subrahmanyam, President)
The complaint is filed Under Section 12 of Consumer Protection Act, 1986 to direct opposite party Nos. 1& 2 to refund to the complainant Rs. 12,800/-
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which was spent by the complainant towards stamp duty, legal opinion and document charges and also to pay Rs. 27,000/- towards interest paid to private money lenders and to further direct opposite party No. 1 to pay Rs.50,000/- towards damages for causing mental agony and harassment, with interest at 12% p.a.
1) The contents of the complaint in brief are as follows:
The complainant is absolute owner of open place of house bearing No. 7-25 measuring 206.11 sq.yards situated at prabhu road , Jogipet town, Andole Mandal, Medak District. The complainant obtained permission from gram panchayat, Jogipet for construction of residential house in the above place. He approached opposite party No. 1 during June, 2007 for sanction of housing loan. Opposite party No. 1 agreed to sanction and directed the complainant to submit relevant records to send the loan file to their standing counsel for legal opinion. Accordingly the complainant submitted all the required documents. Opposite party No. 1 obtained legal opinion from their standing counsel and after satisfying with the same and with the title, directed the complainant to pay Rs.3,900/- towards processing charge/ fee for sanction of loan and insisted the complainant to pay the amount for creating equitable mortgage and also to endorse the charge in the books of opposite party No.2 in favour of opposite party No. 1. Accordingly the complainant deposited Rs.8,445/- (which includes Rs.3,900/-) towards stamp duty with the State Bank of Hyderabad, Branch at Sangareddy in current account No. 8577 standing in the name of opposite party No. 2 on 3.11.2007. The complainant of visited the bank of opposite party No. 1 number of times for sanction of housing loan. Without any reason opposite party No. 1 dragged on the matter on some pretext or other and finally returned the documents to the complainant without sanctioning the housing loan; without any valid reason, during the month of December, 2007. On the assurance of opposite party No. 1 the complainant borrowed money from private finances with interest @ 2% per month on Rs. 3 Lakhs and paid interest of Rs.27,000/- @ Rs.9,000/- per month for the said private loan and purchased material and raised structures. Due to the negligent attitude of
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opposite party No. 1 the complainant wasted five months precious time and spent Rs.2,000/- for obtaining all necessary documents and paid Rs.1500/- to the standing counsel towards opinion and Rs.3,900/- towards processing fee and Rs.3,900/- towards stamp duty for creating mortgage and Rs.1500/- towards conveyance. Thus the complainant paid a total amount of Rs.12,800/- for no fault of him. The complainant submitted his representation to opposite party No. 1 through register post on 20.05.2008 for return of stamp duty, Registration charges and other expenses. On receipt of the same opposite party No. 1 returned processing fees only of Rs.3,900/- and informed that stamp duty was paid to the government account. Further stated that there are defects in the title deed as such opposite party No. 1 was unable to refund Rs.3,900/-. Infact the complainant paid the said the stamp duty to the government on the assurance of opposite party No. 1. At this stage opposite party No.1 failed to sanction a loan to the complainant inspite of submitting all the required documents without any defects and also deposited required processing charge and stamp duty as per the direction of the opposite party No. 1. This amounts to deficiency in service on the part of the opposite party No. 1. Without confirmation of title of the complainant opposite party No. 1 should not have directed the complainant to pay all the above amounts which are paid by him on the confirmation of sanction of loan basing on the legal opinion. If the complainant did not have clear title, legal opinion could not have been given by the panel advocate.
2) However the complainant availed housing loan from another bank i.e. State Bank of Hyderabad, Sangareddy Branch basing on the same documents which were processed and returned by opposite party No. 1. The complainant suffered great loss and mental agony due to deficiency in service on part of opposite party No. 1 for which opposite parties No. 1 and 2 liable to pay Rs.50,000/- for cansing inconvenience to the complainant and for making him to go round opposite party No. 1 for nearly five months by cansing mental tension. Complainant got a legal notice issued to opposite parties No. 1 and 2 for which opposite party No. 1 sent a reply with vague allegations and falsely claimed Rs.50,000/- damages from the complainant. Opposite party No. 1 admitted in his
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reply that the complainant has submitted all the required documents and after verification the same was sent to legal opinion. Opposite party No. 2 has not given any reply hence the complaint.
3) Opposite parties resisted the claim by filing separate counters. The counter of opposite party No. 1 is to the following effect:
The relationship between the complainant and the bank will not come within the purview of the Consumer Protection Act. It is true that the complainant is owner of open place of house property as evidenced by documents filed along with the complaint. It is also true that the complainant obtained permission for construction of house from gram panchayat , Jogipet and that he approached the bank for housing loan of Rs. 10 Lakhs and submitted relevant documents. The bank has not intimated it’s decision over the application of the complainant. It is true that the bank has received opinion from advocate on the title of the property of the complainant, but it is not final. The bank has to go through the opinion and supporting documents and take a decision. While verifying the records /documents the bank has found the that the advocate who gave opinion is not in panel of advocates of the bank. On the request of the complainant the bank orally intimated him the expenditure to be incurred if housing loan is granted, i.e. expenses towards processing charges and stamp duty for creation of mortgage. While the matter was pending in the bank the complainant deposited processing fees of Rs.3,900/- without any demand from the bank. As the application of the complainant was rejected on the ground that the complainant did not have clear title over the property the process fee was refunded to him. The complainant has deposited the process fee even before issuing any sanction letter. Opposite party No. 1 is not concerned with sanction of housing loan to the complainant by the another bank, because opposite party No. 1 has got its own rules and regulations. The complainant got the opinion of the advocate who is not in the panel of opposite party No. 1. The allegation of deposit of Rs.8,445/- with opposite party No. 2 is baseless. Opposite party No. 1 bank has not advised the complainant to deposit any amount with opposite party No. 2 towards stamp duty. The challan
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filed by the complainant does not pertain to the amount paid by him to opposite party No. 2 towards stamp duty. The bank sent suitable reply to the notice of the complainant. The complaint may therefore be dismissed with costs.
4) The counter of opposite party No. 2 in brief is as follows:
Opposite party No. 2 is not concerned for refund of stamp duty on the deposit of title deed as the complainant has not approached the office for refund of stamp duty. However refund of stamp duty must be within four months from the date of remittance vide G.O.Ms. No. 222, dated. 19.02.2005, as such the relief sought by the complainant against opposite party No. 2 is out of the purview of opposite party No. 2 and hence the complaint is liable to dismissed. Refund is not available at this stage because the complainant has not made an application within four months for refund of stamp duty. The complaint may therefore be dismissed against opposite party No. 2.
5) Evidence affidavits of the complainant and opposite party No. 2 are filed to prove their respect averments. Exs. A1 to A22 are marked on behalf of the complainant. No documents are marked on behalf of opposite parties. No affidavit filed on behalf of the opposite party No. 1 to prove their counter allegations. Written arguments of complainant filed. No written argument are filed on behalf of the opposite parties. Oral arguments of complainant’s advocates heard. No oral arguments are advanced for opposite parties. Perused the record.
The point for consideration is whether the complainant proved deficiency in service on the part of opposite parties and that he is entitled for the various amounts claimed in the complaint?
6) The case of the complainant is that he applied for housing loan in opposite party No. 1 bank to construct house in his site bearing No. 7-25 ad measuring 206.11 sq.yards situated in Prabhu Road, Jogipet Town, Andole Mandal, Medak District and as per the instructions of opposite party No. 1 he
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submitted the required papers for sanction of loan and also paid Rs.3,900/- towards processing fee and also paid stamp duty for registration of mortgage but finally opposite party No.1 refused to sanction loan to the complainant on the ground that there is no clear title to the complainant over the property offered as security over which he intended to construct house and there by opposite party No.1 committed deficiency in service and therefore opposite party No. 1 is liable to pay Rs.12,800/- to the complainant which represents the amount incurred by the complainant towards expenses including deposit of processing fees and stamp duty for registration of mortgage. But the case of opposite party No. 1 is that it is true that the complainant approached opposite party No. 1 bank, for sanction of housing loan but when the application of the complainant was under consideration of the bank, the complainant hurriedly deposited processing fee and stamp duty for registration. According to opposite party No. 1 it has simply informed the complainant the amount to be deposited towards processing fee in the event of sanction of loan but when the application of the complainant was under consideration the deposit was made by the complainant for which opposite party No. 1 cannot be held responsible. It is the further case of the complainant that after deciding not to sanction loan, opposite party No. 1 informed the same to the complainant and there after on his request the amount of Rs. 3,900/- which was deposited by him in the bank, without any instructions there for, was refunded to him but the amount which was deposited by the complainant in the government account towards stamp duty for registration cannot be paid by the opposite party No. 1 as opposite party No. 1 is not concerned with the said deposit. It is the further case of opposite party No.1 that the legal opinion submitted by the complainant is not from the panel advocate of the bank of opposite party No. 1 and the said opinion is not binding on the bank and the bank is not concerned with the expenses incurred by the complainant.
7) In view of the rival contentions of the both parties let us now consider the evidence produced by the complainant to find out whether the same is sufficient to prove deficiency in service alleged against opposite party No. 1.
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8) Because it is the case of the complainant that as per the instructions of opposite party No. 1 bank and in view of the promise made by them to sanction housing loan, he barrowed loans from private persons to the tune of Rs.3 Lakhs and paid interest to the tune of Rs.27,000/- and also paid Rs.1,500/- to standing counsel of the bank towards opinion and paid Rs.3,900/- towards stamp duty to create mortgage and Rs.3,900/- towards processing fee and incurred Rs.1,500/- towards conveyance , the burden is on him to prove that all the above amounts were spent by him at the instance of opposite party No.1. Even though it is alleged by the complainant in his letter to opposite party No. 1 bank covered by Ex. A15 that field officer of the opposite party No. 1 bank, who is looking the after the shelter loans, advised him so he paid processing fee of Rs.3,900/- and even though the case of the opposite party No. 1 is that there were no such instructions to the complainant, the complainant has not furnished at least the name of the said field officer nor he is made a party to this proceedings or his affidavit is filed to prove the contentions.
9) In view of the point at issue it is not necessary to refer to the various documents marked by the complainant as exhibits on his behalf . Therefore such of the documents which are necessary will only be referred .
10) There is not even a scrap of paper from the complainant’s side to prove that the various amounts alleged to have been spent by him was at the instance or on the promise of opposite party No. 1. During arguments the learned counsel for the complainant contended that as per the oral instructions of opposite party No. 1 bank the complainant acted upon. When allegation of the complainant is not admitted by opposite party No. 1 it becomes a fact in issue and the complainant is bound to prove it. In the absence of any satisfactory proof from the complainant’s side, his version which is in dispute, cannot be taken as proved.
11) Normal procedure is that on receipt of any application for shelter loan/ housing loan the bank has to refer the said application together with the documents filed along with it to one of their panel advocates for opinion. But in this
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case without opposite party No. 1 bank referring the application of the complainant, the complainant himself obtained legal opinion from an advocate by name Sri. Anantha Rao Kulkarni. According to opposite party No. 1 the said advocate is not their panel advocate, but according to the complainant he is panel advocate of opposite party No. 1. To prove the same the complainant’s advocate filed Xerox copy of order dated.23.07.2008 passed by this forum in CC.No. 18/2007 which shows that Sri. Anantha Rao Kulkarni, advocate defended opposite party No. 1 hearing who is opposite party in the said case. An advocate appearing for a bank in a case cannot raise a presumption that the said advocate is a panel advocate of that bank. Even presuming for a moment that the said advocate is a panel advocate of opposite party No. 1 bank, the opinion furnished by him in a matter which is not referred by the bank cannot be said to deserve any consideration by the bank. On a perusal of the opinion furnished by said advocate, copy of which is marked as Ex.A22, Annexure B- “Form Of Legal Scrutiny Report” dated.7.2.2008 does not contain reference number, if the documents are received by the said advocate from opposite party No. 1 for his opinion. However at the end of sheet number 7 in Ex.A22 a computer printed matter is seen in one line as “the documents sent to me are returned herewith duly signed by me.” No where in Ex.A22, which is in 12 sheets, it is stated by the advocate Sri. Anatha Rao kulkarni from whom he has received the documents of the complainant for opinion. No such covering letter is obtained by the complainant from the said advocate to prove that opposite party No. 1 bank sought opinion of Sri. Anatha Rao Kulkarni advocate. At the instance of the complainant’s advocate the original opinion of the said advocate, which was submitted by the complainant to opposite party No. 1, was sent for. It is in 11 sheets on a perusal of it there are some differences, when the same is compared with Ex.A22. Even though the original report contains para numbers 1to 10 in page numbers 3, 4 and 5, Ex.A22 contains paras 1 to 7 only. It is curious to note that the report in paras 1 to 7 in Ex.A22 in a concluded report. Like wise in page 7 in Ex.A22 remarks are typed in one paragraph where as the original remarks are in four paragraphs. Another difference is Ex.A22 is dated 7.02.2008 where as the original shows 06.07.2007.
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12) As already stated above even if the opinion of Sri Anantha Rao Kulkarni, advocate was sought, it cannot be said that opposite party No. 1 has to accept the same and sanction loan, if the bank is not satisfied with the title of the complainant over the property on which house loan was sought.
13) If the complainant deposited Rs.3,900/- towards stamp duty for creating mortgage, it is for the complainant to approach the concerned government department in whose account the amount was deposited by him for refund, as rightly stated by opposite party No. 1 in their letter, copy of which is marked as Ex.A16.
14) The contention of the learned counsel for the complainant is that on the same set of documents State Bank of Hyderabad, Sangareddy Branch granted housing loan to the complainant, therefore the attitude of opposite party No. 1 must be presumed to be deficiency in service. Granting of loan on the same set of documents by State Bank of Hyderabad cannot by itself gives raise a presumption of deficiency in service on part of opposite party No. 1. On what considerations State Bank of Hyderabad sanctioned loan to the complainant are not known. State Bank of Hyderabad is not a party to the proceedings. Therefore this argument does not hold good.
15) In view of the discussion supra we are of the opinion that the complainant failed to prove any deficiency in service on the part of opposite party No.1. Opposite party No. 2 is not at all answerable to any of the grievances of the complainant. It is therefore held that the complainant is not entitled to any relief against the opposite party Nos. 1 and 2. The point is answered against the complainant.
16) In the result the complaint is dismissed. No costs.
Typed to dictation, corrected and pronounced by us in the open forum this the 18th day of March, 2009.
Sd/- Sd/- Sd/-
President Lady Member Male Member
Copy to:
1) The Complainant Copy delivered to the Complainant/
2) The Opp.Parties opp.Parties On ________
3) Spare copy
Dis.No. /2009, dt.
