…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Ashok Sharma, counsel for the complainant.
Sh. Sagar Bhatia , counsel for opposite parties Nos.1 to 3.
ORDER:
The facts in brief of the complaint are that the complainant alongwith his wife Asha Garg as co-applicant applied for loan to the opposite party No.1 under home loan scheme vide application NO. 7721081981. The opposite parties issued an offer letter dated 12.06.2017 to the complainant and his Co-applicant Ms. Asha Garg. In the said letter the opposite parties sanctioned a facility to the complainant, the details of which were given in the said letter dated 12.06.2017. The complainant agreed to the offer as contained in opposite party’s letter dated 12.06.2017 accordingly the opposite parties issued a sanction letter dated 16.06.2017 and the opposite parties disbursed a loan of Rs.1,59,31.359/- to the complainant. The complainant took the loan from the opposite party No.1 in June 2017 in his individual capacity alongwith his wife Ms. Asha Garg as C-applicant for purchasing SCF No. 151-152, Sector-9, Faridabad under home loan scheme for non residential property. The opposite parties sanctioned the said loan of Rs.1,59,31,359/- to the complainant and his wife Ms. Asha Garg vide letter dated 12.06.2017 at a floating rate of interest. The repayment of the said loan was to be done in equated monthly installments (EMIs) of 180 months. Each EMI was of Rs.1,66,360/-. The complainant had been paying the EMIs of the said loan to the opposite party No.1 regularly without any break till 10.07.2020. During this period the complainant had deposited huge amounts with the opposite party No.1 on account of part payment of the loan amount. As on 05.07.2020 a total sum of Rs.15,11,820/- was outstanding on account of principal loan against the complainant after the EMI payment of July 2020. The complainant on 10.07.2020 deposited a cheque bearing No. 001783 dated 10.07.2020 worth Rs.13,50,000/- drawn on ICICI Bank, Sector-29, Faridabad towards part payment of his loan amount with a request to adjust the cheque amount in the outstanding principal amount and reschedule the above said loan account without any change of installment. The said cheque was duly honored and the amount of the cheque was credited in the loan account of the complainant. After the payment of Rs.13,50,000/- on 10.07.2020, only a sum of Rs.1,61,820/- remained the total due loan amount. The opposite parties did not take any action on the request of the complainant regarding adjustment of the amount of Rs.13,50,000/- towards regarding adjustment of the amount of Rs.13,50,000/- towards the outstanding amount and to reschedule the loan account and in August 2020, the opposite parties got in cashed the next EMI of Rs.1,66,360/- through ECS on 05.08.2020 instead of Rs.1,61,820/- accordingly the opposite parties had taken Rs.4540/- in excess from the complainant till 05.08.2020. Now the complainant was not liable to pay even a single penny to the opposite parties rather he had to take Rs.4540/- from the opposite parties as on date. The opposite party No.1 had received a total amount of Rs.15,16,360/- (13,50,000/- +1,66,360/- ) till 05.08.2020 whereas the total outstanding amount of loan against the complaint on 0308.2020 was Rs.15,11,820/- as per the screen shot of mob. App of the complainant and the letter dated 03.08.2020 of the opposite parties which was received by the complainant by hand on 06.08.2020 when the complainant visited the opposite party No.1. As on date opposite party No.1 had already received a sum of Rs.4540/- in excess after settling all the outstanding loan amount after adjusting Rs.13,50,000/- paid on 10.07.2020. In its letter dated 03.08.2020 the opposite parties had charged superfluous interest of Rs.10,961/- and prepayment charges Rs.2,17,667.90/-. The opposite parties were not entitled to claim interest worth Rs.10,961/- and prepayment charges worth Rs.2,17,667.90/- as mentioned in letter dated 03.08.2020 as per letter of offer dated 12.06.2017 and sanction letter dated 16.06.2017 of opposite parties and the circulars of Reserve Bank of India foreclosure of loan account. The Reserve Bank of India with reference to its earlier circulars dated 05.06.2012 and 07.05.2014 vide letter dated 02.08.2019 had clarified to all the scheduled commercial banks (excluding RRBs) all small finance Banks and all local area banks that in terms of the said circulars banks were not permitted to charge foreclosure charges/prepayment penalties of home loans/all floating rate term loans sanctioned to individual borrowers. RBI further clarified that banks should not charge foreclosure charges/prepayment penalties on any floating rate term loan sanctioned, for purposes other than business, to individual borrowers with or without co-applicant(s). The loan sanctioned letter dated 12.06.2017 also speaks about nil fees on full and final pre-payment for loan with floating rate interest at the time of pre-payment where loan was given to individual borrowers. The complainant vide E-mails dated 07.08.2020 and 11.08.2020 requested the opposite parties not to charge foreclosure/prepayment charges and interest and for stopping the future EMIs i.e the EMI of 5th September 2020 and onwards and his CIBIL record should not the damaged, due to the delayed action of opposite parties and to close the said loan as soon as possible and return his all original papers. The opposite parties replied to the complaint NO. ICICICARE=022-879-595 of the complainant through e-mail dated 14.08.2020 stating therein that their branch team had inadvertently accepted the part payment request on the complainant as the part payment request for the captioned loan account cannot be processed if the remaining loan tenure was less than or equal to 12 months and the amount of Rs.13,50,000/- paid by the complainant was lying as excess in the captioned loan account of the complainant and informed the complainant to make timely payment of EMI to avoid inconvenience or CIBIL irregularities in future and refused to return the property papers. All the contentions of opposite parties as contained in mail dated 14.08.2020 were wrong and irrelevant and were illegal and null and void. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) stop ECS of future EMIs (i.e EMI which falls on 5th September 2020 and onward) and to clear the loan account of the complainant after adjusting the amount of Rs.13,50,000/- +1,66.360/- (EMI of August 2020) and to refund the excess amount of Rs.4540/- taken from the complainant alongwith interest @ 18% p.a. from due date till payment.
b) not to charge any interest and fore-closer/prepayment charges as mentioned in letter dated 03.08.2020 from the complainant and further not to damage the CIBIL record of the complainant.
c) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .
d) any other relief which this Hon’ble Commission deems fit and proper may kindly be awarded n favour of the complainant.
2. Opposite parties put in appearance through counsel and filed written statement wherein Opposite parties refuted claim of the complainant and submitted that the complaint was not maintainable in as much as on the ground of mis-joinder and non-joinder of parties as well as the complainant was not a consumer qua the opposite parties. The opposite parties Nos.1 & 2 i.e Branch Manager and Managing Director were merely employees of ICICI Bank Ltd and not the service provider to the complainant. It was submitted that the complainant availed the service of credit/loan facility from ICICI Bank Ltd and the same was granted and disbursed by ICICI Bank Ltd. As such, ICICI Bank Ltd. was the service provider to the complainant. The complainant was “consumer” qua ICICI Bank Ltd. And not the opposite parties. The complainant was not maintainable in as much as the complainant was not a consumer under section2(7) of the Consumer Protection Act, 2019.the complainant alongwith his wife Smt. Asha Garg applied to ICICI Bank Ltd., Branch Sector-16, Faridabad to avail credit/loan faculty for purchase of Two Commercial properties bearing shop-cum flat (SCF) No. 151 & 152 at Sector-9, Faridabad. The complainant/borrowers stated that the purpose of availing credit/loan facility was for purchase of Office premises for commercial purpose. After processing credit facility application of the borrowers, ICICI Bank Ltd. Sanctioned and disbursed loan amount of Rs. 1,59,31,359/- on 12.06,2017 under loan account No. LBFDB00003541808 to be repaid in 180 monthly installment of Rs.1,66,360/- each. The loan facility was granted under equitable mortgage where the borrowers mortgaged the aforementioned purchased property The opposite part parties submitted that the complainant/borrowers availed the credit facility from ICICI Bank Ltd., for purchase of Two commercial properties i.e. office premises for commercial purposes and as such, the complainant did not fall within the ambit of Consumer as defined under seciton2(7) of the Consumer Protection act, 2019. The complainants were seeking to avail of the benefit of above restricted definition of the commercial purpose by contending that they had booked the above noted commercial space in the commercial plaza undertaken to be developed by opposite parties with a view to set up their chartered accountant firm office to earn their livelihood. I did not find merit in the above contention because perusal of the complaint would show that in the entire body of the complaint, the complainant had not mentioned that at the time of booking of the above noted units the complainants intended to use the aforesaid commercial space for setting up their office in order to earn their livelihood. Neither of the complainant had averred in his affidavit that the subject commercial space for setting up their office in order to earn their livelihood. Neither of the complainants had averred in his affidavit that the subject commercial u it was booked with the object of setting of their office in the said unit for the purpose of earning livelihood by means of self employment. Thus, the benefit of the explanation to section 2(i)(d)(ii) of the Act was not available to the complainants. Opposite parties denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite parties–ICICI Bank with the prayer to: a) stop ECS of future EMIs (i.e EMI which falls on 5th September 2020 and onward) and to clear the loan account of the complainant after adjusting the amount of Rs.13,50,000/- +1,66.360/- (EMI of August 2020) and to refund the excess amount of Rs.4540/- taken from the complainant alongwith interest @ 18% p.a. from due date till payment. b) not to charge any interest and fore-closer/prepayment charges as mentioned in letter dated 03.08.2020 from the complainant and further not to damage the CIBIL record of the complainant. c) pay Rs.1,00,000/- as compensation for causing mental agony and harassment . d) any other relief which this Hon’ble Commission deems fit and proper may kindly be awarded n favour of the complainant.
To establish his case the complainant has led in his evidence, Ex.CW-1/A – affidavit of Sanjay Garg, Ex.C-1 – offer letter for facility vide application No.7721081981, Ex.C-2 – letter dated June 16,2017, Ex.C-3 - prepayment of your Non Residential Property loan account xxxxxxxxxxxx1808, Ex.C-4 – letter dated August 02,2019,, Ex.C-5 to 7– emails, Ex.C-8 – Loan Account statement for DB00003541808,
Shri Sagar Bhatia, counsel for the opposite parties has made a statement that the written version alongwith documents filed by the opposite parties may be read as evidence on behalf of opposite parties and evidence be closed on behalf of opposite parties vide order dated 28.09.2023. Annexure OP/1 Facility agreement, Annexure OP2 - notifications dated May 07,2014.
6. It is evident from Facility agreement vide Annexure OP/1, The complainant alongwith his wife Smt. Asha Garg applied to ICICI Bank Limited, Branch Sector -16, Faridabad to avail Credit/Loan Facility for purchase of Two Commercial Properties bearing Shop-cum-flat (SCF) No. 151 & 152 at Sector-9, Faridabad. The complainant borrowers submitted credit/loan application No. 7721081981 wherein the borrowers stated that the purpose of availing credit/loan facility is for purchase of “Office Premises” for commercial purpose. Hence, the complainant is not a consumer under section 2(7) of the Consumer Protection Act., 2019.
7. The complainant/borrowers availed the Credit Facility from ICICI Bank Ltd, for purchase of two commercial properties i.e office premises for commercial purpose and as such, the complainant does not fall within the ambit of consumer as defined under section 2(7) of the Consumer Protection Act, 2019. Hence, the complaint is dismissed. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 26.02.2024. (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
