D.o.F:13/07/2010
D.o.O:20/1/2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.164/09
Dated this, the 20th day of January 2011.
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
Ravidas,M, S/o Kunhiraman Nair,
Sneham, National Nagar,
Kudlu Po,Kasaragod. : Complainant
(Adv.P.V.Jayaraj,Kasaragod)
1.Manager, Dewan Housing Finance Corporation Ltd,
Ist floor, Rabbi Tower, Opp. Railway Station,Kannur.
2.Managing Director,
Dewan Housing Finance Corporation Ltd, : Opposite parties
Warden House, 2nd floor, Sir P.M.Road, Fort,
Mumbari 400001.
(Adv.A.C.Ashok Kumar,Kasaragod).
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
Complainant applied for a housing loan from opposite party through their office at Town Bus stand Kasaragod and Ist opposite party sanctioned a loan of ` 450,000/- on 23/3/2007 and the complainant availed the said loan on 31/3/2007. The complainant was regularly paying the instalments with interest. Subsequently complainant enquired about the transfer of said loan from opposite party firm to S.B.I Kasaragod Branch. On enquiry it is revealed that the SBI was ready to take over the loan with the opposite party by closing the loan with the opposite party. Accordingly as required by the SBI the opposite party No.1 issued a letter to the Manager , SBI Kasaragod Branch informing the amount to be remitted by the complainant for closing the loan account with opposite party. Accordingly SBI Kasaragod branch arranged a sum of ` 468905 /- for the purpose of closing the loan account with the opposite party. In pursuance to that an official from SBI Kasaragod branch namely Azad Kumar was duly authorized and deputed for collecting the title deeds from the opposite party after handing over the demand draft No.768957dtd.6/6/09 for ` 468905/- to be paid to the opposite party on behalf of the complainant. Though the complainant and Mr.Azad Kumar approached Ist opposite party and requested to give back the title deed or to deliver a letter in writing undertaking to handover title deeds within a specified period. Ist opposite party though accepted the D/D for ` 468905/- but was not ready to hand over the title deeds or given an undertaking letter. Due to the irresponsible and indifferent attitude of opposite party complainant has suffered a lot and complainant forced to pay interest for the amount shown in the D/D ie ` 468905 from 6/6/09 onwards to SBI without any benefits. Though a lawyer notice has been caused to Ist opposite party, they sent a false and frivolous reply. Hence the complaint.
2. Ist and 2nd opposite party filed a joint version. According to opposite parties as requested by the complainant the Ist opposite party issued a letter dtd.25/3/09 informing the total amount outstanding for the loan upto 31/3/2009 ie 468905/-(including take over charges) in the event of closure of the loan account on 31/3/2009. This fact has been suppressed by the complainant. No further enquiry was made by the complainant nor the alleged take over by State Bank of India Kasaragod branch in this regard. The opposite parties never agreed for the closure of loan account of the complainant with the opposite parties for the amount shown in the alleged D/D dtd.6/6/09. On the date of alleged tender of the DD the amount shown there in was not the amount due under the loan account of the complainant. The allegation that official from SBI Kasaragod branch namely Sri Azad kumar was duly authorized and deputed for collecting the title deeds from the opposite party after handing over the D/D for ` 468905/- and that the complainant along with the said Azad Kumar went to the office of the opposite party No.1 at Kannur along with a letter from Branch Manager of SBI Kasaragod requesting to give back the title deeds or to deliver a letter in writing under taking to hand over the title deeds with a specified period are all false and further allegation that Ist opposite party was ready to accept the D/D inspite of repeated requests made by the complainant the 2nd opposite party was not ready to handover the title deeds or a letter addressed to SBI Kasaragod branch undertaking to return the title deeds to them with a specified period are all false. The functioning of the Housing Finance of the opposite party comes under the National Housing Bank and it is bound by the rules and regulations laid down there under. All Housing Finance section including the opposite party issue due receipts for the amounts received by it towards the loans a/c’s and title deeds will be returned at the earliest on realization of the amount so received after obtaining the approval of the Head office. This is the usual practice followed by all Housing finance section and there is no such practice of giving written undertakings as required by the complainant and this fact has been brought to the notice of the complainant. The allegation that complainant visited the office of opposite parties, about 9 to 10 times and the complainant suffered a lot of mental agony and is not correct and the opposite parties are not liable to pay any compensation. There is no deficiency in service on the part of opposite parties. Hence the complaint is liable to be dismissed.
There after complainant filed proof affidavit in support of his case and Exts.A1 to A4 marked through PW1. One witness the Branch Manager of SBI Kasaragod examined as PW2 and Ext.A5 marked through PW2. The loan ledger extract pertaining to the complainant with the opposite party bank is produced on application by the complainant. No evidence adduced on the side of the opposite party. Counsels of both sides heard and the documents perused.
Ext.A1 is the Xerox copy of the demand draft dtd.6/6/09 for ` 468905/- drawn on SBI Kannur branch in favour of DHFC Ltd towards the housing loan of Ravidas. Ext.A2 is the copy of the lawyer notice issued by the learned counsel for complainant to Ist opposite party. Ext.A3 is the reply notice to Ext.A2. Ext.A4 is the copy of the letter sent by complainant to opposite party and Ext.A5 is the copy of the letter dtd.nil issued from SBI Kasaragod to Ist opposite party.
The complainant in his affidavit has stated that he approached opposite party Bank with one of the official of SBI Kasaragod branch with a D/D for 468905. To the allegation of the complainant the defense of the opposite parties in the version are
(1) They never agreed to close the loan account of the complainant for the amount stated in the alleged D/D dtd.6/6/09. The amount due as on the date of alleged D/D ie 6/6/09 was not the amount due under the loan account of the complainant.
(2) The functioning of the Housing Finance of the opposite party comes under the National Housing Bank and it is bound by the rules and regulations laid down there under. There is no such practice of giving written undertakings as required by the complainant.
Prior to the filing of this complaint, the complainant has caused Ext.A2 lawyer notice to Ist opposite party. To which Ext.A3 reply is received. In Ext.A3 dtd. 25/6/09 in paragraph 3 it is stated as follows:
‘’ (3)Factually the Manager, SBI had enquired with my client about the outstanding amount of loan to be paid by your client and accordingly my client informed the total outstanding amount in due in writing. Thereafter my clienthad not received any communication either from your client or from the Manager SBI Kasaragod.
(4) My client is in total darkness in respect of D/D referred in your notice. Neither your client nor Mr.Azad Kumar have approached my client at any point of time as alleged in your notice. As such, there is no question of deficiency in service at all. Since no tender of D/D has been made or offered from your client’s end, my client is not at all liable for any loss as alleged in your notice.”
In brief according to opposite parties as per their version they never agreed to close the loan account of the complainant for the amount shown in the D/D dtd.6/6/09. So from this version it is clear that as deposed by the complainant, he along with Azad Kumar, an official of SBI Kasaragod has approached opposite parties for closing the loan with a D/D for 468905/- dtd.6/6/09.
But in Ext.A3 reply notice the contention of opposite parties are that except the enquiry about the outstanding amount neither the complainant nor Sri.Azad Kumar has approached them at any point of time. There is no tender of D/D also as alleged.
These contradictory statements in version and Ext.A3 reply notice itself makes it clear that opposite parties have no consistent case to defend the claim of the complainant.
Further Ext.A5 copy of the letter issued by SBI Kasaragod to Ist opposite party is self-explanatory.
In Ext.A5 it is stated that SBI Kasaragod is enclosing a D/D for 468905 drawn in favour of opposite party being the outstanding dues to their institution as on 31/3/2009 in respect of the housing loan of Ravidas .M
So even according to SBI Kasaragod the amount shown in the D/D is outstanding as on 31/3/09 and not upto 6/6/09.
So it is nobody’s case that the said D/D issued was towards the closure of loan account of the complainant till the date of closure of loan. Hence the allegation of the opposite parties that they never agreed to close the loan account of the complainant on the date of production of the D/D i.e., 6/6/09 has no force.
PW2 the Branch Manager of SBI Kasaragod has deposed that Ext.A5 is sent from his Bank and the Azad Kumar mentioned in Ext.A5 is still working in there. During cross examination PW2 has deposed that the amount mentioned in Ext.A5 is the loan due upto 31/3/09. He further deposed that during settlement of such accounts the amount mentioned in the letter will be accepted by way of D/D and the remaining balance shall be collected from the party directly.
In this regard the evidence of PW1 is very relevant. In cross examination complainant has deposed that he approached Ist opposite party along with D/D together with ` 5000/- as liquid cash to settle the remaining balance.
So in all respects it is evident that it was due to negative attitude of Ist opposite party the loan was not transferred to SBI Kasaragod and hence the complainant is no way liable to pay any penal or default interests to opposite party’s bank for closing the loan and getting back his documents and title deeds.
The learned counsel for opposite parties Sri.Ashok Kumar has argued that it was due to the negligence of SBI Kasaragod they did not deliver the D/D in time and it was drawn on 6/6/09 for the dues as on 31/3/09 and Sri.Azad Kumar has not cited as a witness to prove Ext.A5 and there is no date in Ext.A5. We think the said argument is very feeble. PW2 categorically stated that in such loan taking over procedures the balance due in between the date of demand draft and the closure of the loan would be collected from the party directly. It is not the case of opposite parties that they demanded the entire dues apart from the amount mentioned in the demand draft when the complainant along with Azad Kumar approached them to close the loan and the complainant refused to pay the said balance.
The Hon’ble National Consumer Disputes Redressal Commission had as occasion to consider an identical case in the matter of DOSON CHEMICALS PVT & ORS VS. UNITED BANK OF INDIA &ANR reported in I (2003) CPJ 214(NC) .
In that case the respondent Bank has refused to return the document to the complainant for availing a higher loan from Federal Bank. In that case in Appeal the Hon’ble National Commission directed the opposite party to pay compensation.
Therefore we are of the view that in this case also opposite parties committed gross deficiency in their service and therefore they are liable under the Consumer Protection Act.
Relief and Costs:
Before starting evidence complainant filed a memo seeking a direction to the opposite party to furnish the details of the amount arrived by them as ` 468905/-. According to complainant it includes 5% settlement (loan settlement and carry out charges) and ` 5000/- that complainant entitled to get through his LIC money back policy pledged with opposite party’s. Against the said memo opposite parties furnished the calculation statement as follows;
Loan amount due ` 442999/-
Penalty on amount over due ` 1475/-
Prepayment charged @ 5% on the loan balance
As on 31/3/2009 ` 22150/-
Service tax @10 on prepayment charge ` 2281/-
So as rightly pointed out by the learned counsel for complainant Sri.P.V.Jayaraj the amount ` 468905/- already accepted by opposite parties includes the prepayment charges and its service tax which they are no way entitled to collect. According to him the said amount is (` 22150/- + ` 2281/-
its service tax) = ` 24431/-. Definitely complainant is entitled to get back the said amount.
The Hon’ble Kerala State Consumer Disputes Redressal Commission while disposing the Appeal No.79/2008 filed by State Bank of Travancore has held that there being no statutory provision authorizing the banks to levy pre-closure charges in the event of the prepayment of the outstanding amount of loans by the borrowers, their present practice of realizing such charges on the basis of loan agreements and internal circular amounts to deficiency in service and hence it is illegal(State Bank of Travancore vs. Rajan K.C Appeal No.79/2008 decided on 5/5/2010(confonet).
Therefore the opposite parties are liable to refund the said amount also to the complainant.
However the complainant is liable to pay the interest for `444474/-( 468905/- ` 24431(excluding the prepayment charges and service tax) from 31/3/2009 to 6/6/09 to opposite parties ( the date in which the DD for ` 468905/- is taken from SBI and presented before opposite party No.1) . Therefore the opposite parties can deduct that interest from ` 24431/- and need to pay only the balance to the complainant. Opposite parties are also directed to settle the loan account of the complainant and return all the documents and title deeds kept under their custody. However the claim of the complainant for interest for ` 468905/- from 6/6/09 to till date of settlement of loan account of opposite party is disallowed since complainant got his loan closed that was pending with opposite parties, and hence he need not pay any interest to opposite parties. Opposite parties are further directed to pay a compensation of ` 25,000/- towards the loss, hardships and mental agony caused to the complainant together with a cost of ` 4000/-. Time for compliance is limited to 30 days from the date of receipt of copy of the order.
Exts;
A1- dtd.6/6/09- Xerox copy of the demand draft
A2-copy of the lawyer notice
A3- reply notice to Ext.A2.
A4- the copy of the letter sent by complainant to opposite party
A5 -the copy of the letter issued from SBI Kasaragod to Ist opposite party.
PW1-Ravidas.M-complainant
PW2-K.Indu Parvathy, Br.Manager of SBI,Ksd.
MEMBER PRESIDENT
eva
