FINAL ORDER/JUDGEMENT

SMT.   SUKLA SENGUPTA,   PRESIDENT  

This case is filed by the complainant u/s 12 of CP Act, 1986.

The fact of the case in brief is that the complainant availed a house building loan from GE Money in the year 2006 and accordingly, one loan account was given by GE Money  vide loan account NO. HCAH00000855, loan amount of Rs. 12,94,000/-  and EMI amount is Rs.  17,862/- @ interest 14.47% and as per agreement, the original tenure was fixed for 156 EMI started from  07.07.2006 till 07.06.2019.

Accordingly, the complainant received the amount of Rs. 12,94,000/-  on  29.05.2006 against the security deposit as mortgage of ownership  deed of the complainant being deed No. 5046/96 in respect of plot No. 7306, khatian Nos.  1604 and 1605, holding No.  4, GT Road (old) within the ambit of Risra Municipality under PS-Sreemapur, Dist. Hooghly and the deed was kept under the custody of GE Money as Mortgage.

It is further stated by the complainant that he started to make payment on and from 07.07.2006 in favour of GE Money and continuing to pay the same in render basis in time. Surprisingly, on 12.06.2013 the complainant received a letter from Magma Fincorp Ltd. from where be complainant came to know that the sad GE Money has already been switched over by Magma Fincorp Ltd. and accordingly, said Mortgage Loan Port Folio of GE Money Financial Service Pvt. Ltd. acquired by Magma and at the same time,  the said Magma Fincorp Ltd. assured the complainant that the loan will continue to be governed by same terms and conditions which are mentioned in the loan agreement held by and between the complainant and Gemfspn and Magma Fincorp Ltd. have allotted a new unique loan account/proposal number HLOOI1/HCAH00000H555 to the existing loan account No. of the complainant and since then all the points correspondence have to made be Magma Fincorp Ltd. with the complainant.

It is the further case of the complainant that the complainant has already completed the full and final instalment of 156 EMI as per terms and conditions of the above stated loan by paying last EMI of Rs. 17,862/- on 06.06.2019 in cash without any default and discrepancy.

            It is alleged by the complainant that in spite of full and final entire loan amount stated above, the ownership deed of the complainant which was mortgaged to the OP forcibly kept in the custody of the OP even on repeated demands and request. It is also alleged by the complainant that recently the OP of Magma Group demanded extra money from the complainant and tried to create nuisance by sending miscreants in the house of complainants which compelled the complainant to send a legal notice to OPs on 21.08.2019 which was duly delivered to the OPs on 23.08.2019 and 26.08.2019 but till date the OPs did not response to that notice. It is further alleged by the complainant that the OPs  did not handover the deed to the complainant with  some mal-intention which caused mental agony and pain and as well as harassment to the complainant.

            The Manager of Fincorp Ltd now acquired the ownership of the company on behalf of the Magma Housing and contested the instant case.

Thus, the OPs are severally and jointly liable to return the title deed of the complainant in respect of the schedule property and also liable to pay damage of Rs. 7,00,000/- only. Hence the case is filed by the complainant with a prayer to direct the OPs to deliver/handover the Mortgage Deed being No.  5046/96 in respect of the above mentioned property to the complainant along with cost and compensation.

            The OP-2 Magma Fincorp Ltd. has contested the petition of complaint by filing a WV denying all the materials allegation levelled against it.

It is the case of the contesting OP-2 that the complainant is not a consumer within the meaning of CP Act, 1986. Because the relationship between the complainant and the OP-2 is mere debtor and creditor. So the question of consumer and service provider does not arise at all and the petition of complaint is not maintainable and is barred by law.

 It is further stated by the OP that in the month of 2006, the complainant approached the OP-4 for availing home loan on equitable mortgage of immovable property  and represented that they would duly repay the said loan.  The prayer of the complainant  was  favourably considered by the OP-4 and the sanctioned of loan Rs. 12,94,000/- in favour of the complainant.  A Loan Agreement was duly executed to that effect by and between the complainant and the OP-4.  It is further stated by the OP-2 that as per the terms and conditions of the loan agreement the said loan amount together with interest was repayable in 156 monthly instalments @ 17,226/- commencing on and from 07.07.2006. It is further stated by the complainant the OP-2 that the said loan was sanctioned @ floating rate of interest which was variable from time to time depending upon fluctuation in market. The said loan agreement has annexed here to with the WV as annexure “A”.  It is further stated by the OP  in WV that the complainant created equitable mortgage of all the piece and parcel of land lying and situated at Mouza-Risra, Ward No.-14, khatian No.-1604, Touzi No., JL No. CS Plot No. 7360, Holding No.  4 and 5 ( old) Old GT Road, South Risra, PS Sreemaur, Dist-Hooghly, Pin-712248. It is stated by the OP-2 that the said agreement containing an arbitration clause by which parties to the agreement agreed to refer the dispute arising out of the agreement to the arbitration.  So, this commission has no jurisdiction to try this case.

It is further stated that the OP-4 by a deed of assignment of 13.02.2023 assigned its all right title interest, dues/dates receivable under the said loan account of the complainant together with undersigned securities thereon in favour of the OP-2 by virtue of such deed of assignment as mentioned above. The OP-2 i.e. contesting OP stepped in the shoes of the OP-4 and has become entitled to recover all dues receivable under the said loan agreement and to enforce the security interest in respect of subject property on the basis of assignment dated 13.02.2013. The matter of assignment of OP-2 by the OP-4 was duly informed to the complainant vide letter dated 12.06.2013 and the complainants were called upon to make further payment in terms of the said agreement in favour of the OP-2. But the complainant failed and/or neglected to make payment in terms of the loan agreement.

It is further case of the OPs that as loan of the complainant was sanctioned at a floating rate of interest so the number of EMI was subjected to increase due to variation rate of interest. The complainant was informed about the same by the OP-2 through various letter notice and demands but did not turn up. Lastly, the OP-2 issued a demand notice dated 19.06.2021 calling upon the notice to pay a sum of Rs.  7,26,385/-  within 07 days from the date of receipt of the said notice I.d the matter would be referred to the arbitrator in terms of the arbitration clause contending the loan agreement. The said notice dated 16.09.2019 has annexed hereto as annexure “D”.

It is alleged by the OP-2 that the most of the instruments issued towards repayment of the subject loan what bounced presentation and payment were also made beyond the dues dates. So, the complainant is also liable to pay bouncing charges and delay payment charges as agreed under the loan agreement. 

It is further case of the OP-2 that on 02.02.2020 a sum of Rs. 7,74,778 /-  was due and payable by the complainant  to the OP-2 and the account of consumer has annexed herewith as annexure “C”. Hence, the complainant is a defaulter but admittedly he availed loan facility to the tune of Rs. 12,94,000/- from the OP-4 against the mortgage of said property but failed to repay the loan amount as per terms and conditions of the loan agreement. Thus, he is not entitled to get relief as prayed for and petition of complaint is filed by the complainant has no basis at all and without having no cause of action, the case is dismissed without cost.

In view of above fact and circumstances, as well as pleadings the following issues are famed:-

1. Is the case maintainable in present form in law?

2. Has the complainant any cause of action to file the case?

3. Is the complainant a consumer?

4.  Are the OPs service provider to the complainant?

5. Is there any deficiency on the part of OPs?

6.  Is the complainant entitled to get reliefs as prayed for?

7.  To what other relief or reliefs is the complainant entitled to get?

Decision with Reasons.

All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.

 On a close scrutiny of materials on record, it appears that the commission has got the pecuniary as well as territorial jurisdiction to try this case. 

Admittedly, the complainant availed a house building loan from GE Money in the year 2006 and accordingly,  one loan account was given by GE Money vide loan Account No. HCAH00000855 and the loan amount was of Rs. 12,94,000/-.  The EMI on the loan amount was fixed of Rs. 17,862/-  each @ 14.47 %  which would be paid in 156 EMI  started from  07.07.2006 from which it is revealed that the, complainant was a consumer under GE Money.

From the facts and circumstances of the case and also from the documents and evidence on record, it is also revealed that subsequently, GE money switched over by Magma Fincorp Ltd. and accordingly, portfolio of GE Money Financial Pvt. Ltd.  in respect of the said mortgage loan in question has been acquired by Magma Group and at the same time, said Magma Fincorp Ltd. assured that the said loan of the complainant will continue to be governed by the same terms and conditions as per loan agreement held in between the complainant and GEMFSPL. It is also evident that in respect of the acquisition Magma Fincorp Ltd. have allotted a new unique loan account /proposal account No. HLOOI1/HCAH00000855 to existent loan account number of the complainant being account No. HCAH00000855 and since then, all correspondence has been made by Magma Fincorp Ltd. according to the new loan account.   So, under such circumstances, the OPs are the service provider of the complainant.

It is the allegation of the complainant that he took the loan initially from the OP No. 4 GE money of Rs. 12,94,000/- which was payable through 156 EMI amounting to Rs. 17,862/- each at  the rate of interest  14.47% subsequently, switched over to the OP-2 Magma Finance Pvt. Ltd. with the loan account of the complainant and the OP-2 informed the complainant that the loan account will run as per terms and conditions of the loan agreement  held between the OP-4 and the complainant. It is also alleged by the complainant that he paid the entire loan amount within 156 EMI but and last EMI was paid on  06.06.2019. But till date the OP-2 did not handover the mortgage deed of conveyance against which the complainant took the loan,  which compelled the complainant to file the case. In this respect the Ld. Advocate for the OP-2 argued that the interest was fixed on floating rate and sometimes the complainant delayed to pay the EMI. As a result,   charge was imposed for delay deposit. Thus, a sum of Rs. 7,74,778/- is due and payable by the complainant to the OP-2 as per statement  of the accounts filed by the OP-2 in annexure “C”. It is also argued by the Ld. Advocate for the OP-2 that the complainant agreed to make payment of bouncing charges and delay payment charges. On the contrary,  the Ld. Advocate of the complainant argued that the contesting OP fixed the floating rate of interest without consent of the complainant which he cannot and which should be considered as unfair trade practice.  In support of his submission cited a case. He referred a case law passed by  SCDRC in a case ICICI Home Finance Ltd. vs. General Singh dated  12.02.2018  wherein it is held that “the methodology” of computing the floating rates should be objecting, transparent and mutually acceptable to the counter parties. Banks should not offer floating rate loans linked to their own internal bench marks or any other derived rate based on the under line. This methodology should be adopted for all new loans. In the case of existing loan of longer/fixed tenure, banks should reset the floating rates according to above method at the time of review or renewal of loan accounts after obtaining  the consent of concerned borrowers “ . In the instant case,  the contesting OP i.e. Magma Housing Ltd. though pleaded that it enhanced the rate of interest at the floating rate as per regulations of RBI but no such document has come before the commission from which it can be held that the OP informed the complainant in respect of the same.  In this respect, it has been observed by the Hon’ble Supreme Court “ intimation of reseting of the interest  should be given to the complainant ” . It is also the observation of the Hon’ble  National Commission in the case of “M/s IDBI  Bank Ltd and Anr vs. Subhash Chand Jain and Anr.” that the concept of the floating rate of interest  flows from the regulation of interest by the RBI guidelines and not  arbitrarily by the service provider  without informing or telling the reasons for increasing the rate of interest” relying upon the views of the Hon’ble Apex Court and also of the Hon’ble National Commission and also considered the fact and circumstances of this case,  this commission is of view that the OP cannot charge any enhanced rate of interest without getting  prior intimation/consent  from the borrower. Hence,  in view of the discussion  made above, this commission is of view that the OP cannot charge the enhanced rate of interest because no prior intimation was given to the complainant in respect of the enhanced rate of interest and the OP failed to obtain the prior consent of the complainant to that effect.

 In the instant case, the OP arbitrarily enhanced the rate of interest by keeping the complainant in dark and did not handover the mortgage deed of conveyance to the complainant forcibly in spite of payment of  entire EMI  by the complainant as per loan agreement.  From such conduct of the OP. It is revealed that there was deficiency in service on the part of the contesting OP and other OPs . 

On the basis of discussion made above , this  commission is of view that the complainant could be able to prove his case beyond  all the reasonable doubts and is entitled to get the relief as prayed for.

 All the points are thus, decided favourably to the complainant.

The case is properly stamped.

Hence,

Ordered

That the case be and the same is decreed ex parte against the OPs 1, 3 and 4 and on contest the OP-2 with cost.

The complainant do get the decree ex parte against the OPs 1, 3 and 4 and on contest the OP-2. 

The contesting OP is thus directed to deliver/handover the said mortgage deed being No. 5046/96 in respect of the schedule property as mentioned in petition of complaint  to the complainant within 45 days from this date of order.

The OP-2 is further directed to pay litigation cost of Rs. 10,000/- of the complainant.

The OP-2 is directed to comply the decree within 45 days from the date of this order. In default, complainant will be at liberty to execute the same as per law.

Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act. The Judgement be uploaded forthwith on the website of the commission for perusal of the party.