Tamil Nadu

StateCommission

FA/60/2018

Gomathi Laxshmi - Complainant(s)

Versus

The HDFC Bank - Opp.Party(s)

P.Srividhya

31 Jan 2022

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:   Hon’ble THIRU. JUSTICE. R. SUBBIAH                     :     PRESIDENT

                 Tmt. Dr. S.M. LATHA MAHESWARI                            :      MEMBER

F.A. No. 60 of 2018

(Against the order passed in C.C. No.453/2014 dated 04.01.2018 on the file of the D.C.D.R.F.(South), Chennai)

Monday, the 31^st day of January 2022

Mrs. Gomathi Laxmi

Rep. by her Power Agent

Mr. S. Govindarajan

Plot No.199, Ganesh Nagar

Door No.32/25,

Chitlapakkam Main Road

Selaiyur, Chennai- 600 073.                                                                                          .. Appellant/ Complainant

- Vs -

The HDFC Bank

Ground Floor

Park Way Apartments

No.122, Marshalls Road

Egmore, Chennai -600 008.                                                                                        .. Respondent / Opposite Party

    Counsel for Appellant /Complainant                  : Mrs. P.Srividhya

    Counsel for the Respondent / Opposite Party    : M/s. K.J.Parthasarathy

               This appeal is coming before us for final hearing on 25.01.2022 and on hearing the arguments of the Appellant/Complainant and Respondent / Opposite Party and on perusing the material records, this Commission made the following :-

O R D E R

HON’BLE THIRU JUSTICE R.SUBBIAH, PRESIDENT

1.        This appeal has been filed by the Appellant / Complainant under Section 15 of the Consumer Protection Act, 1986 to set aside the order dated 04.01.2018 made in C.C. No.453 of 2014 by the District Consumer Disputes Redressal Forum, Chennai (South), dismissing the complaint of the Appellant herein.

2.       The factual background culminating this appeal is as follows:  The case of the Complainant before the Appellate Forum is that she has approached the opposite party for availing housing loan with respect to Plot No.1 & 2 in Kamaraj Street, Old No.143, New No.54, Madampakkam Village, Tambaram Taluk, Kancheepuram District on 28.09.2013. She was allotted Loan Account No.610066341 on 17.10.2013.  As she was residing out of India, for the purpose of purchasing the property in Chennai, she had executed a Power of Attorney in favour of her father Mr.S.Govindarajan, by way of Document No.201/13 dated 27.09.2013 and the same was registered on the file of SRO Selaiyur, Chennai.  When she had approached the opposite party for home loan she was asked to execute another Power Deed in their format.  Accordingly, another Power of Attorney in the format of the opposite party was executed on 05.04.2014 bearing Document No.1476/2014.  A sum of Rs.11,890/- was also paid to the opposite party on 28.09.2013 by way of cash for processing the loan application.  All the required documents for sanctioning the loan were also produced to the opposite party.  All the communications were received from the opposite party only by way of SMS in mobile phone, including the message to the effect that the complainant’s loan was processed. On 19.10.2013, a SMS was sent by the opposite party to the complainant to the effect that they are happy to inform that HDFC have approved a loan of Rs.28 lakhs in Chennai office.  But inspite of the said SMS the opposite party did not call the complainant for depositing the title deeds and the amount sanctioned was also not disbursed, despite all formalities completed.  Since the disbursement of the loan amount did not take place for the reasons best known to the opposite party, the complainant had to take hand loan for higher rate of interest to pay the builder.   In fact, the property for which the loan was sought for is an Apartment and in respect of the same Apartment in Block 2, loan has been sanctioned to one Mrs.Bagyalakshmi Prabhu.  The title deeds for the flat to be purchased by the complainant and Mrs.Bagyalakshmi Prabhu are one and the same.  Therefore, non-sanctioning of the loan amount to the complainant is nothing but deficiency in service.  Hence, a legal notice dated 29.08.2014 was issued to disburse the loan amount and also claiming a sum of Rs.1,00,000/- for mental agony, besides the processing fee of Rs.11,890/-.  The said legal notice was replied by the opposite party on 17.09.2014, for which also a suitable reply was sent on 26.09.2014.  Finally, the complainant filed a Complaint Petition, seeking the following reliefs :-

1. to pay a sum of Rs.1,11,890/- as compensation for the loss, mental agony and litigation expenses;
2. to pay a sum of Rs.20,000/- for registration of power deeds; and
3. to pay a sum of Rs.10,000/- towards litigation expenses.

3.  Resisting the complaint, opposite party has filed a version stating that the complaint is full of vague allegations and devoid of material facts.  In fact by letter dated 17.09.2014, the opposite party requested the complainant to submit certain documents to clear the project and as the developers of the project failed to submit the same, it has paved the way for non clearance of the project on legal aspect.  It is the duty of the opposite party to fully satisfy itself  about the title of the property and without full satisfaction of the title, the opposite party cannot sanction the loan.  Actually, it is the fault of the complainant, as the complainant did not follow up with the bank for approval of the loan.   In fact, the legal notice sent by the complainant has been duly replied by the opposite party stating that she can avail the processing fee for some other property as the above mentioned property has not been approved by the legal team of the opposite party for the reasons that the builder did not cooperate with the opposite party by providing the documents called by the opposite party.  However, the complainant did not avail the same.  The allegation that the parent title deeds for the flat in Block No.1 is the same as that of Block No.2 and that loan has been sanctioned to one Mrs.Bhakyalakshmi of Block No.1 but loan was not sanctioned to Block No.2 is meant to mislead.  The parent documents may be the same but unless it is furnished to the opposite party, the opposite party cannot verify and approve the title.  Therefore, the contention of the complainant has to be rejected.  The mental agony and loss incurred by the Complainant is an imaginary one and the same is not supported with any substantial proof.  Thus, he sought for dismissal of the Complaint. 

4.  In order to prove the case, on the side of the complainant proof affidavit has been filed and 5 documents were marked as Ex.A1 to Ex.A5.  On the side of the opposite party proof affidavit has been filed but no documents are marked. 

5.  The District Consumer Rederessal Forum after analyzing the entire records have come to a conclusion that the complainant has no locus standi to file the complaint, since there is no specific power for the Power Agent to file the complaint.  That apart, the District Forum has also come to a conclusion that without producing title deed, the Complainant cannot claim any loan, as a matter of right.  Aggrieved over the same, the present appeal has been filed.

6.  Learned counsel appearing for the appellant submitted that the complaint has been dismissed mainly on two grounds.  One is there is no specific power to the Power Agent to file a complaint.  Secondly, the required documents were not furnished to the opposite parties to process the loan. 

7.  Assailing the said finding, counsel for the appellant submitted that the complainant is none other than the daughter of the Power Agent.  The said Power of Attorney, which is Ex.A2 was executed by the Complainant for the purpose of raising loan with the opposite party.  Clause 12 of Ex.A2 clearly shows that the agent can do all acts for the purpose of raising loan on behalf of its Principal with the opposite party.  Clause 29 of the said document authorizes the agent to do all acts which are necessary and incidental to all the acts for which the power is given. Therefore, it is needless to state that initiating proceedings before any Court of Law or Forum is nothing but incidental when the opposite party failed to honour its commitments and the same amounts to deficiency in service. With regard to the next ground, the counsel for the appellant submitted that all communications were received from the opposite party only by way of SMS in mobile phone.  In fact, on 17.10.2013 first message was received stating that “you will hear from us shortly”, and on 18.10.2013 user name ‘Gomathilaxmi’, password ‘FU10XV’ was received authorizing the complainant to operate online account for home loan with the opposite party and finally on 19.10.2013 in DM 144015 stating that “Happy to inform that HDFC approved loan for 28 lakhs.  The above messages would show that the opposite party had gone through the legal documents carefully and had approved home loan for Rs.28 lakhs.  NRI and NRE accounts were also immediately opened by the opposite party.  From the above, it is clear that the opposite party has not called for any further documents from the complainant for their legal clarification.  Even in the rejoinder dated 26.09.2014, the complainant has not stated that the complainant has been called for any further documents.  If the complainant is not entitled to the loan, there is no need to open NRI and NRE account, even before sanctioning of the loan.  Therefore, there is clear deficiency of service on the part of the opposite party in sanctioning the loan and hence prays for setting aside the order passed by the District Forum.

8.   Heard counsel for the appellant and the counsel for the respondent.  On perusal of the records, we find that the complainant has executed two Power of Attorneys, in favour of her father.  One has been given by her, empowering her father to purchase the property bearing Plot No.1 & 2, Kamaraj Street comprised in Survey Nos.702/8, 702/9 and 709/12, situated at Old No.143, New No.54, Madampakkam Village, Tambaram Taluk, Kancheepuram District.  The second one was in the format given by the opposite party for the purpose of raising loan with the opposite party.  But, in both the Power of Attorney no power was given empowering to initiate legal proceedings on her behalf.  In the absence of any specific power to her father to initiate legal proceedings, we are of the opinion that the power agent is not competent to file a complaint on behalf of the Principal. 

9.  The complainant had stated that through SMS sent by the opposite party over phone, the opposite party had confirmed the sanction of the loan etc.  But, no material proof was produced by the complainant before the District Commission to substantiate the said contention.  Moreover, from the perusal of the records, it is found that the complainant has left over the matter for a period of one year viz., from 19.10.2013 without any follow up and all of a sudden on 29.08.2014 she has sent a legal notice.  Actually, it is for the complainant to follow up with the opposite party for the approval of the loan.   In fact there was no concluded contract between the complainant and the opposite party and therefore there is no compulsion on the part of the opposite party to sanction the loan. Though the complainant has stated that the parent title deeds for the flat in Block I is the same as that of the flat in Block II and that the loan has been sanctioned to Block I whereas loan was not sanctioned for Block II cannot be a ground to fix deficiency of service on the part of the opposite party.  Each loan application has to be scrutinized independently irrespective of the fact that flats for which loan was sanctioned comprise in the same building.  Therefore, the complainant cannot claim sanctioning of the loan as a matter of right.

10.  Therefore, we do not find any valid reasons to interfere with the order passed by the District Forum.  Consequently, the appeal is dismissed.  

 

S.M.LATHA MAHESWARI                                                                                             R.SUBBIAH

         MEMBER                                                                                                                  PRESIDENT

 

 

Index :  Yes/ No

AVR/SCDRC/Chennai/Orders/January/2022