This case has been brought by Suprabhatam s/o of Shri Lalan Prasad Singh, R/o House No. B/12, Road No. 2A, Magistrate Colony, P.O.- Ashiyana Nagar, P.S.- Rajeev Nagar, Patna- 800025 against The Head of Retail Assets Centre, Industrial Development Bank of India Ltd Elemach Building, Plot No. 82/83 Street No. 15, Road No. 7 M.I.D.C., Andheri (East), Mumbai- 400093, opposite party no. 1. The Zonal Manager, Eastern, Industrial Development Bank of India Ltd, 44 Shakpear Sarani, Post Box no. 16102 Kolkata – 700017 opposite party no. 2 The Branch Manager, Retail Asset Centre, Industrial Development Bank of India Ltd, Patna Branch UMA Complex, Ground Floor, Fraser Road, Patna- 800001, for the following reliefs: 1. To direct the opposite party to pay the Compensation of Rs.8,00,000/- for the huge financial loss as also for the mental and physical agony, caused by the concerned authority of the Bank. 2. To direct the opposite party to pay Rs 50,000/- be awarded for expenses incurred in connection with meeting the cost of litigation. The case of the complainant in brief is that complainant who was branch manager of I.C.I.C.I. Prudential life insurance, 4th Floor, Uma Complex, Fraser Road, Patna, Patna- 800001, she was approached by the bank on 17.02.2009 to borrow home loan and thereafter the loan application was submitted by the complainant to the bank and loan was sanctioned for which annexure I may be perused. Altogether as per offer letter, home loan of Rs. 15,81,219(fifteen lacs eighty five thousand two hundred nineteen only) was sanctioned by the bank to be paid back to the bank in equated monthly instalment of Rs. 14,227/-(fourteen thousand two hundred twenty seven only) in 240 months. The breakup of which is given as under resale- Rs.11,00,000/-, (eleven lacs only) Registration- Rs 93,500/-, (ninety three thousand five hundred only) Renovation- Rs. 3,40,000/-, (three lacs forty thousand only) Home assurance- Rs.47,719/- (forty seven thousand seven hundred nineteen only) it is stated at Para 4 of the complainant that on 19.03.2009 the complainant came to know that one Smt. Shruti Saran is going to sale her flat Ashray Homes Apartment Situated in Ara Garden in Patna Near Bailey Road. He made contact her on bank assurance and she agreed to sale the flat for Rs. 10,00,000/-(ten lacs only) accordingly the date of Registration was fixed and it was to be registered on 30.03.2009 but unfortunately the bank representative did not turn up in Patna District sub registry to make payment to the vendor Smt. Shruti Saran and same is a deficiency in financial service on the part of opposite party due to deficiency Shruti Saran did not sale her flat to the complainant. It is further stated that again matter of executing registry at District registry office on 17.07.2009 was fixed, accordingly, she came down to Patna but again the banks representative did not turn up relating to the payment. Thereafter vendor Smt. Shruti Saran became angry. Again it is said that on assurance of the bank sale deed was to be executed but the vendor did not move to Patna. Complainant got the sale deed registered through power of attorney holder of the vendor Sri Chandra Sekher at the enhance price of Rs 13,50,000/-(thirteen lacs fifty thousand only) from Rs 10,00,000/-(ten lacs only) for which complainant had to arrange relating to high rate of interest such sale deed was executed on 06.08.2009 and power of attorney dated 01.08.2009 is annexed herewith and marked as Annexure 2. The loan amount as proposed was disbursed on 28.08.2009 such letter is annexed as Annexure 3. It is also stated that out of Rs 3,40,000/- (three lacs forty thousand only) which was year marked for renovation of the property by the bank but it was paid in two parts half was paid earlier and half Rs 1,70,000/-(one lac seventy thousand only) paid after long laps. Therefore, complainant was put to huge financial loss and due to which Rs 1,70,000/- (one lac seventy thousand only) was reduced to Rs 1,31,000/- (one lac thirty one thousand only) it is also stated that complainant lost his job on 31.08.2009 and this financial instability lead to failure to his business to delayed payment to the extra money which was managed and payed to his vendor. Due to above act complainant was put to stress and trauma resulted ill health and other kind of disease. Even at this situation he was bluntly demanded for the payment of the E.M.I of a cheque amounting to Rs 45,000(forty five thousand only) but regarding his illness he has filed prescriptions as Annexure 4. It is also stated that Bank filed two cases U/s 138 of the NI Act bearing case no C/35750 of 2010 and C/35751 of 2010 relating to bouncing of two cheques for Rs 45,000/- (forty five thousand only) and Rs 14,227/- (fourteen thousand two hundred twenty seven only) they are marked as Annexure 5 and in this regard letter received through the bank is Annexure 6. It has also been stated that without the jurisdiction only to harass the complaint case was filed at Kolkata. It has also been stated that despite genuine difficulty and sincere prayer loan was classified under NPA and for the same authority is liable not the complainant. It has also been stated that the story of deficiency in service it is obvious that complainant had to pay the extra amount of Rs 3,50,000/- (three lacs fifty thousand only) the phototstate copy of the letter written by the complainant is on record which is Annexure 7 which was replied after demand. It appears that on behalf of opposite party show cause has been filed. Wherein it has been stated that complainant has brought this case with an intension to deflect the rightful claims of the opposite party which is being sought to be recovered by the opposite party through the statutory remedies that are provided to a secured creditor under the provisions of the SARFAESI Act. After considering the application of the complainant the opposite party had sanctioned a housing loan of Rs. 15,81,219/-(fifteen lacs eighty one thousand two hundred nineteen only) to be granted to the complainant and out of the aforesaid amount a sum of Rs.11,00,000/- (eleven lacs only) was granted for the purchase of the flat and Rs 93,500/-(ninety three thousand five hundred only) was granted for registration of the flat, apart from Rs. 3,40,000/-(three lacs forty thousand only) for renovation and Rs. 47,719/-(forty seven thousand seven hundred nineteen only) for the purpose of home insurance. That as a consequence of the aforesaid, the loan amount was granted to the complainant after execution of necessary documents in this regard and the complainant had purchased the flat in question with the financial assistance as provided by the opposite party. Further, stated that however, the complainant made miserable defaults in the repayments’ of instalment and accordingly, the loan amount of the complainant was classified as a non perfuming asset as on 30.10.2010 in accordance with RBI guideline. The opposite party states that a demand notice dated 14.11.2011 was issued U/s 13(2) of the SARFAESI Act requesting the complainant to make payment of the entire loan outstanding along with upto date interest and in the event of failure of the complainant to make payment, the opposite party would be constrained to proceed U/s 13(4) of the SARFAESI Act. And it was taken by the opposite party U/s 13(4) of the SARFAESI Act r/w Rule 8(1) of the enforcement of security interest rules, 2002. Thereafter the complainant had approached the Debt Recovery Tribunal of filing a SARFAESI appeal bearing S.A. No. 84/2012 and the leaned tribunal after noticing the case of the complainant had been pleased to pass the order dated 16.07.2012 whereby and where under the Leaned Tribunal while balancing the interest of both sides had directed the payment of the amount as mentioned in the possession notice dated 23.03.2012 only by the complainant within a period of three months and the rest interest amount was waived by the Leaned Tribunal. A Xerox copy of the order dated 16.07.2012 passed by the debt recovery tribunal in S.A. No. 84/2012 is annexed herewith as Annexure A to this Show-Cause. The complainant had further approached the Debt Recovery Tribunal by filing an application bearing no MA 466/2012 which was disposed of by the learned tribunal vide an order dated 05.12.2012 whereby the time for making payment as per the aforesaid order was further extended and the complainant was directed to make payment by 16.01.2013. Despite having the above complainant has not made payment as was directed under the order and substantial amount still lies to the credit of the complainant. Though complainant instead of making payment of the dues chosen to file this complaint on the basis of deficiency in service is entirely wrong it is specifically stated and submitted that the entire allegation as made in the complaint petition is related to a period which is after the sanction of the loan amount and prior to the disbursement of the loan amount. The present complaint has been filed much after the elapse of the statutory period of 2 years as has been prescribed in Section 24-A of the Consumer Protection Act. It is further stated that here it is deemed necessary to state that the averment of the complainant that the vendor had agreed to sell the flat to the complainant for Rs10 lacs is highly unbelievable and even contrary to the records, in as much as the amount of loan which was sanctioned to be granted for the purpose of the flat was Rs.11 lacs out of the entire loan amount of Rs. 15.81 lacs. Therefore, if, the assertion of the complainant is believed then the same would come with a natural corollary that the complainant had mentioned erroneous detail regarding purchase price of the flat to the opposite party while approaching for the sanction of the loan amount. However as per the records of the opposite party the purchase price of the flat at all times has been Rs. 13.50 lacs and therefore, the case of the complainant who hesitated to make out also does not coincide with reality as there appears to be no variance in the price at which the flat was sold to the complainant by the vendor. Further the disbursement of the loan amount falls to the satisfaction of the Bank authorities and therefore, the allegation as made in Para 10 that out of the sanctioned amount of Rs.3.40 lacs the Disbursement to the extent of Rs. 3.01 lacs was only made attributes deficiency in service is baseless and without any legal sanctity. It is further deemed necessary to state that the complainant right from the beginning had been irregular in payment of the loan amount which finally led to the classification of the account as an NPA and initiation of SARFAESI action production of the post dated cheques issued by the complainant. It is not a fact that complainant had not availed the loan and then measurably committed default in repayment of the instalment then after intervention of Debt Recovery Tribunal it was paid than how it is claimed by the complainant than he has pious intention. After the above the main point for consideration that whether the complainant is entitled to a claim as prayed for. Learned counsel on behalf of complainant submitted that it is obvious from the show cause filed on behalf of opposite party that loan application was received on 18.07.2009 by the opposite party and it was sanctioned on 24.07.2009 but it order to save its skin disbursal date was deliberately mentioned as 29.07.2009 which is absolutely false. On receipt of the sanction letter on account of instruction the vendor Shruti Saran was requested to come from Gorakhpur to Patna for execution of the document but the concerned authority did not turn up with consideration money resulted which she had to go back to Gorakhpur with empty hand. It did not happen once rather twice thereafter she refused to sell the property but after request with folded hand by the complainant and again on the insurance of banks authority she ultimately sent her power of attorney Chandrasekhar Kumar to execute the document. But on 06.08.2009 also no bank authority turned up with consideration amount ultimately the sell deed was executed and registered at Danapur through power of attorney holder Sri Chandrasekhar Kumar at the enhanced price. From the private sources at the very rate of interest the complainant collected the amount to pay which have put the complainant harassment and mental agony. It has further been contended that loan was disbursed on 07.08.2009 and money was sent to the vendor through cheque after 20 to 25 days. Further, contended that it is relevant to consider that loan was disbursed on 07.08.2009 and the sanction letter dated 24.07.2009 speaks about the repayment option wherein, it is stated that monthly repayment of interest on the amount disbursed till home loan is not fully disbursed or 12 months have not been lapsed from the date of disbursal whichever is earlier and equal monthly instalments thereafter. According to repayment option no repayment was required to be made before 07.08.2010 but the bank’s authority compelled the complainant to repay the loan amount after a few days of disbursement as revealed from their statement of account. Therefore, here is the breach of repayment reschedule which is against the laid down system and procedure of banking norms and also detrimental to the interest of the complainant. The complainant suffered a lot because of ill treatment of the opposite party and caused irreparable loss to him. Out of these situations as above complainant became ill and went undergo for treatment even the complainant had to leave the service and put into a great trouble. It has lastly been contended that under pressure complainant had to issue two cheques amounting to Rs. 50,000/- on 19.01.2010 and 14,227/- on 08.03.2016 in good faith that same would be presented to the bank only the balance made available in the account but the cheques were presented against the understanding which were bounced back. Thereafter the opposite party filed two cases before the metropolitan magistrate Kolkata under section Sc (138 of NI Act) beyond the jurisdiction. Lastly submitted that present case has been brought within the period of limitation. The opposite party has stated about the DRT cases with intent to mislead the Forum. It has also been submitted that case was filed before DRT but after filing of this case however it was ultimately settled after waving a sum of Rs. 1,90,421/- in favour of the complainant. Therefore, submitted that this complaint case be allowed. On behalf of the opposite party. It has been submitted in the argument that loan application has been submitted by the complainant on 18.07.2009 as annexure ‘B’ the reply would show the sanction letter of the housing loan dated 24.07.2009 and the loan was disbursed on 07.08.2009 for Rs. 12,41,219/- cost of flat Rs 11,00,000/- registration fee 93,500/- (including home insurance 47719/-) renovating charge was 3,40,000/- on demand Rs. 11,70,000/- was paid on 29.08.2009 and Rs 1,31,580/- on 03.04.2010. As per the term of the sanction letter loan was to repaid in 240 monthly instalment of Rs. 14,227/- in repayment option as per sanction letter monthly repayment of interest on the amount disbursed till home loan is not fully disbursed or 12 months from the date of first disbursement whichever is earlier thereafter equated monthly instalment. Home loan was fully paid on 07.08.2009 thereafter the instalment was to be paid by the complainant after 12 months from the date of disbursement of housing loan. Therefore, there is no deficiency on the part of the bank before disbursement of loan as the home loan was disbursed for Rs. 11,00,000/-(eleven lacs only) on 07.08.2009 therefore, complainant had to start repayment of the loan from October as the 1st instalment Rs. 14,227/- (fourteen thousand two hundred twenty seven only) but the complainant failed to do and did not paid the instalment till March 2011. The only part amount for Rs. 10,000/-(ten thousand only) was paid on 20.08.2010. Since the instalment has not been paid by the complainant several months so the account become NPA on 10.10.2011, therefore, there is no deficiency in service subsequently as per section 13(2) of the SARFAESI Act the demand notice of Rs. 17,39,271/- (seventeen lacs thirty nine thousand two hundred seventy one only) was made by the opposite party on 14.11.2011 but complainant did not comply and accordingly symbolic possession of the secure asset was taken V/s 13(4) of the SARFAESI appeal no. 84/2012 against the demand notice of Rs. 17,39,271/- (seventeen lacs thirty nine thousand two hundred seventy one only) the S.A. was heard on 16.07.2012 before the parties and the Hon’ble DRT had directed the complainant to pay the amount within 3 months and waived the interest from 10.10.2004 order is annexed as Annexure 4. Vide miscellaneous application no. 466/2012 the prayer of extension of time was made by the complainant but complainant was directed to pay the rest amount by the end of 16.01.2013 with simple PLR interest. Here also the Bank accepted the order of the tribunal and waived the interest and in this regard Annexure ‘B’ is relevant. It has lastly been contended that opposite party bank has even returned the entire document alongwith post dated cheque on 24.10.2013 to the complainant and also withdrawn the complaint case filed V/s 138 of NI Act but the complainant instead of withdrawing this case with ulterior motive is making contest this case is fit to be dismissed. Having heard the rival contention of both the sides as well as on perusal of the document available on record as referred to hereabove we find that the contents of the case as argued on behalf of both the sides as above have been mentioned in detail which does not need to have repetition but we observe from the facts above that regarding sanctioning of loan or about making delay of the payment of loan and thereafter filing of SARFAESI case and its appeal and also about the direction of DRT it is obvious that now already the amount of loan and payment of the dues amount have been settled and the opposite party has even withdrawn the cases filed under NI Act but the complainant relating to previous grievances in disbursement of loan timely which had delayed in execution of the sale deed and also on account of deficiency in service relating to other aspects this case has been contesting by the complainant. Hence, we conclude with the observation relating to delayed payment made at the time of the execution of the sale deed despite assurance made on thrice and which has not at all been specifically denied by the opposite party as we observed. Hence, only on account of making delay in payment after assurance the opposite party is at fault because it has not happened once rather thrice rest of the matter regarding the payment of loan and its repayment that has now been ended indicated above by the opposite party as already discussed above. Therefore, on the part of opposite party for the same fault deficiency of service is apparent. Hence opposite party is directed to pay by way of compensation for Rs 65,000/-(sixty five thousand only) with 5% interest per annum accrued thereon, from the date of filing of this case i.e. 25.01.2012 within two months of this order. In case of non payment complainant is entitled to recover the amount in due process of law. |
