CONSUMER DISPUTES REDRESSAL FORUM KOTTAYAM

Present

Sri. Bose Augustine, President

      Sri. K.N. Radhakrishnan, Member

 

CC No. 258/10

Friday the 16^th   day of August, 2013

 

Petitioner                                                            : Joseph Varghese Kavalam,

                                                                            Chethippuzha, Kurissumoodu Po,

                                                                            Changanacherry 686 104.

                                                                            (Adv. Nithin Sunny Alex)

 

Vs

 

Opposite parties                                                : The Manager,

                                                                             Housing Development Finance

                                                                            Corporation, Pathanamthitta Branch,

                                                                             Pathanamthitta.

                                                                            2) Manager,

                                                                                HDFC, Kottayam.                      

                                                                             (Adv.Sebastian James Palakunnel)

 

 

 

            The case of the petitioner, filed on 15/10/10 is as follows.

            Petitioner is the Power of Attorney Holder of his son Raju George. Petitioner obtained a loan for Rs.22,00,000/- from the opposite party on depositing the sale deed No.2362/1/2008. And the petitioner remitted all EMI regularly till August 2010, All together petitioner remitted in total Rs. 6 lakhs. Petitioner enquired about the balance amount and understand that the balance amount comes to Rs.20,64,596. So petitioner decided to sell the property and to close the said loan. According to petitioner he entered an agreement to sell the property and collect the money from the purchaser. And petitioner approached the 1^st opposite party to close the loan, then the 1^st opposite party informed the petitioner that Rs.45544 is to be remitted as pre-closure amount along with the due loan amount of Rs. 20,64,596/-. Then petitioner approached the 1^st opposite party for remitting the loan amount in lumpsum. But the 1^st opposite party stated that they have no permission to take cash directly as they are not a bank. So petitioner came back to Changancherry and deposits the amount in the account at SBT Changanacherry branch and takes DD from there. Petitioner had taken a DD for an amount of Rs.21,25,695/- to the 1^st opposite party and requested opposite party for return of the original documents. 1^st opposite party stated to the petitioner that the documents are at Trivandrum and ill will be returned within 10 days. According to petitioner the delay in returning the original document even after the repayment of full amount is amounts to the deficiency of service on the part of opposite party. Collecting of pre-closure charge from the petitioner is unfair trade practice.  Hence petitioner filed this petition seeking the order directing the opposite party to return Rs.45,544/- ie pre-closure amount collected from the petitioner with 18% interest and compensation and cost.

            Opposite party filed version contenting that this Hon’ble Forum has no jurisdiction to entertain this petition and there is no deficiency of service or any unfair trade practice on the part of opposite party. The opposite party admitted that one Raju George, Kavalam had availed a loan from 1^st opposite party and he had submitted the necessary loan applications and the loan agreement was signed by his power of attorney holder agreeing the terms and conditions contained in the said loan agreement. According to opposite party they are entitled to charge pre-closure charge as per the loan agreement and prevailing practice. And the 1^st opposite party had acted only act in accordance with loan agreement and legal formalities which was in practice at that time. According to opposite party there was no deficiency of service from the side of opposite party and they pray for dismissal of petition with their cost.

i)                    The petition is maintainable or not?

ii)                   If maintainable whether there is any deficiency of service or unfair trade practice from the part of opposite parties?

iii)                 Reliefs and cost?

Evidence in this case consists of the affidavits filed by both sides and Ext.A1 to A3 were marked from the side of petitioner and Ext.B1 is marked from the side of opposite parties.

            Opposite party filed IA 822/10 raising the issue of maintainability as a preliminary issue. Fora disposed the petition stating that the issue of jurisdiction will be decided at final stage along with original petition. So that issue is to be decided as a preliminary issue. According to the opposite party the transaction is taken place within the Pathanamthitta branch of HDFC and there is absolutely no evidence or averment that the petitioner had any transaction with any branch of opposite party in Kottayam District. According to the petitioner since he had taken a DD of Rs. 21,25,694/- at Changanacherry which is within the jurisdiction of this Fora, this Fora has amble jurisdiction. In our view cause of action means a bundle of facts which constitute the Lis between the parties. Admittedly DD is taken from Changanacherry which is within the jurisdiction of this Fora. In our view part of cause of action arise within the jurisdiction of this Fora and thus the petition is maintainable on the said ground. Point No.1 is found accordingly.

 

            There is no dispute with regard to the total EMI or else the total amount remitted by the petitioner. The only dispute is with regard to the pre-closure charge of Rs.45,544/- levied by the opposite party. According to opposite party demanding pre-closure charge is a usual practice and is also mentioned in the loan agreement. Opposite party produced the loan agreement and the same is marked as Ext.B1. Nothing has been produced by the opposite party to prove that there are specific norms of RBI for the opposite party to collect pre-closure charges. In lack of such directions of RBI, collecting pre-closure charges by mentioning it in the loan amount is not allowable. In our view act of opposite party in levying pre-closure charge of Rs.45,544/- amounts to deficiency in service. Even though petitioner has a definite case that opposite party is liable to pay DD charges incurred to the petitioner for taking the DD for closing of the loan. Opposite party has definite case that opposite party never demanded for taking DD for closing the loan. Petitioner has not adduced any evidence to prove that the opposite party directed the petitioner to take the DD for closing the loan. Point No.2 is found accordingly.

            In view of the findings in point No.1 and 2 petition is allowed and following order is passed.

i)                    Opposite parties are directed to refund Rs.45,544/-the pre-closure amount, collected by opposite party, with 9% interest from the date of petition till realization of the amount.

ii)                   Since interest is allowed no separate compensation is ordered

iii)                 Opposite party is directed to pay Rs.2000/- as cost to the petitioner.

Order shall be complied with within one month of receipt of copy of the order.

 

 

 

Sri. Bose Augustine, President Sd/-

            Sri. K.N. Radhakrishnan, Member        Sd/-

 

 

Ext.A1-photo copy of power of attorney dtd 4-1-10

Ext.A2-Photo copy of sale deed No.2362/1/2008

Ext.A3-letter dtd 29/9/10 from the Senior Manager, Operations, HDFC.

Ext.B1-photocopy of loan agreement.

 

By Order,

 

Senior Superintendent