IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA.

Dated this the 12^th day of January, 2010.

Present:- Sri. Jacob Stephen (President)

Smt. C. Lathika Bhai (Member)

Sri. N. Premkumar (Member)

C.C. No. 133/06

Between:

1. K. Sugathan,

Anjalibhavan, Poruvazhy Village,

Manampuzha P.O., Kunnathoor Taluk.

2. A. Suma, W/o. K. Sugathan,

             --do--     --do--    --do—

(By Adv. P.M. Mamachn)                                                                         ....  Complainant.

And:

1. The Manager,

ICICI HFCL Ltd.,

2^nd Floor, Skyline Citadel,

Kanjikuzhy, Kottayam-4.

2. John Thomas, Executive,

ICICI Home Loans Ltd.,+

Vinobaji Road, Adoor P.O.

Adoor.

(By Adv. Roy Thomas for 1^st opposite party)                                        ...  Opposite parties.

ORDER

Sri. Jacob Stephen (President):

                        The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.

                         2. The complainants’ case is that he had availed an housing loan of Rs.2,10,000/- on 18.01.2003 from the opposite parties and as per the agreement, the EMI is Rs.2,480/-.  12 signed cheques of the complainants issued from SBT, Poruvazhy Branch were also given to the opposite parties for collecting the EMI.  Thereafter, the above said housing loan was enhanced to Rs.2,80,000/- on 29.03.2003 and the EMI was also enhanced to Rs.3,306/-.  40 cheque leaves were also given to the opposite parties as demanded by them for collecting the EMI.  As per the terms and conditions of the agreement, the opposite parties are entitled to send one cheque every month for collecting the EMI amount.  But in violation of the terms and conditions, the opposite parties sent 2 cheques for Rs.2,480/- and Rs.3,306/- each on every month for 3 months.  Due to the above said reason, one cheque was dishonoured and one cheque was honoured by the complainants’ bank.  Thereafter, the complainants were compelled to pay the dishonoured cheque amount with penal interest and other charges by way of demand draft to the opposite parties.

                          3. Moreover, the first opposite party sent illegal Advocate Notice demanding to pay the arrears, at a time when the complainants have no arrears.  Because of the above said acts of the opposite parties, they are constrained to close the loan account with the opposite parties with the help of SBT who took over the complainants’ loan from the opposite parties.  Even after the closing of the loan account also, the opposite parties collected EMI from the complainants account by using their cheques with them.  Moreover, the opposite parties committed delay in collecting the demand draft issued by the SBT for closing the complainants loan account and an amount of Rs.1,543/- was also collected by the opposite parties by way of interest for the delayed collection occurred from the part of the opposite parties.  Due to the above said illegal acts of the opposite parties, the complainants sustained financial loss and mental agony and thereby they have lost more than Rs.20,000/-.  Apart from this, the opposite parties also collected an amount of Rs.6,250/- as pre-closure charges from the complainants and they have not yet returned the unused cheques with them entrusted by the complainants.  All the above said acts of the opposite parties are illegal and clear deficiency of service. Complainants sent notice dated 30.05.2006 requesting opposite parties to settle their grievances.  But they have not responded to their notice.  Hence this complaint for realising Rs.26,250/-, the amount illegally collected from the complainants along with Rs.20,000/- as compensation for the mental agony and hardships with cost of the complainants from the opposite parties.

                        4. The first opposite party entered appearance and filed a version with the following contentions:  The first opposite party admitted the loan transactions with the complainants.  They also admitted the receipt of post dated cheques each for Rs.2,480/- and enhancement of the loan to Rs.2,80,000/- and enhanced the amount of Rs.70,000/- was disbursed on 29.03.2003.  Thereafter, the monthly instalments were also enhanced and fixed as Rs.3,306/- as agreed between the parties.  Another set of 12 post dated cheques, each for Rs.3,306/- towards the next 12 instalments starting from 01.05.2003 were also collected by opposite parties.  The said post-dated cheques got exhausted on 01.04.2004.  Thereafter, the complainants neglected to submit cheques towards the remaining instalments and hence 6 instalments upto 01.10.2004 were defaulted.  On 26.10.2004, a cheque for Rs.20,647/- for the defaulted payments were issued by the complainants which was also dishonoured due to insufficiency of funds in their account.  Thereafter on 01.11.2004, the complainants issued 2 cheques for Rs.6,902/- and Rs.11,144/-.  While these cheques were in transit, the complainants applied for premature foreclosure and the loan was for closed on 03.01.2005 on accepting Rs.2,73,286/-.  Since, the cheques were in transit, the account reflected as active and resulted in presentation of cheques for the subsequent month also.  Thus, the amount collected on foreclosure became in excess of Rs.6,101/- which was refunded to the complainants on 08.02.2005.  Due to the enhancement of the loan, 2 sets of post-dated cheques happened to be in the possession of the first opposite party.  Due to an in advertent mistake, cheques from each set were presented and some were dishonoured.  Out of this mistake, the account of the complainants showed deficit, which resulted in sending of a demand notice.  Later on realising the mistake, the bounce charges and late payment charges accrued on account of this were waived off.  No amount by way of bounce charges, late payment charges or any other charges has been collected from the complainants on account of this defaults and the complainants have not suffered any loss on account of this mistake.  The first opposite party has not collected any amount not entitled to them and what all amounts collected were legally entitled to the first opposite party.  The pre-closure charges collected is Rs.5,103/- and the first opposite party is entitled to collect the same as per the terms and conditions of the loan agreement.  There is no deficiency of service from the part of the opposite parties and the complainants had not caused any loss in this transaction.  Therefore, the first opposite party prays for the dismissal of the complaint with cost.

                        5. In this case, the second opposite party is exparte. 

                        6. On the above pleadings, the following points were raised for consideration:

(1)               Whether the complaint is maintainable before this Forum?

(2)               Whether the reliefs sought for in the complaint are allowable?

(3)               Reliefs and Cost?

                         7. The evidence of the complainant consists of the proof affidavit and 10 documents produced by the complainant.  On the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced were marked as Exts.A1 to 10.  The first opposite party’s evidence consists of the proof affidavit of the first opposite party and one document produced along with the proof affidavit.  On the basis of the proof affidavit, the first opposite party was examined as DW1 and the document is marked as Ext.B1.  After closure of evidence, both sides were heard.

                        8. Points 1 to 3:   The complainants’ case is that they have availed a housing loan from the opposite parties and as per the loan agreement, the complainants given signed cheques to the opposite parties for collecting the agreed EMI.  As per the terms of the agreement, the opposite parties are entitled to send only one cheque for one month.  But in violation of the terms of the agreement, the opposite parties sent more than one cheque for collecting EMI for 3 months.  So one cheque out of the 2 cheques sent for collection by the opposite parties was dishonoured due to the insufficient funds in the accounts of the complainants.  For the said dishonour, the opposite parties charged penal interest and other extra charges.  Thereby, the complainants are compelled to pay money to the opposite parties.  The above said act of the opposite parties is a deficiency of service and therefore, the complainants decided to close the loan account.  For closing the said loan account, the complainants approached SBT, Poruvazhy Branch who took over the complainants’ loan from the first opposite party by paying the entire dues to the first opposite party.  Even after the closing of the loan account, the first opposite party sent EMI cheques for collection and collected money from the complainants’ account.  Moreover, the first opposite party also collected an amount of Rs.6,250/- illegally in the name of pre-closure charges.  All the above acts of the opposite parties are illegal and because of the above said illegal acts, the complainants have lost more than Rs.20,000/- and hence the complainants are entitled to receive the said amount along with compensation and cost.

                        9. In order to prove the complainants’ case, the first complainant filed a proof affidavit narrating his case along with 10 documents.  On the basis of the proof affidavit, the first complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A10.  Ext.A1 is the Home Loan Documentation Book No. 944712336 00 (Loan Agreement) in respect of the complainants’ home loan.  Ext.A2 is the photocopy of the Statement of Accounts from 7.12.2002 to 12.11.2003 of the complainant issued by SBT.  Ext.A3 is the Statement of Accounts from 19.11.2003 to 25.01.2005 in respect of the complainants’ account No. SB 1328 of SBT, Poruvazhy Branch.  Ext.A4 is the photocopy of the Statement of Accounts from 10.12.2002 to 26.11.2004 of ICICI Bank.  Ext.A5 is the photocopy of another statement of accounts from 20.12.2004 to 1.8.2005.  Ext.A6 is the Statement for Claiming Deductions of the Income Tax for the period from 1^st April 2004 to 31^st March 2005.  Ext.A7 is the photocopy of the Advocate Notice dated 15.02.2005 issued by the opposite parties to the complainants.  Ext.A8 is the Cheque Submission Form dated 8.7.2004 issued by ICICI.  Ext.A9 is the photocopy of the letter-dated 30.05.2006 sent by the first complainant to the opposite parties.  Ext.A9(a) is the postal receipt of Ext.A9 and Ext.A9(b) is the acknowledgment card of Ext.A9 signed by the first opposite party.  Ext.A10 is the photocopy of the cheque lists with withdrawal date and amount.  The first complainant was cross-examined by the learned counsel for the first opposite party. 

         10. On the other hand, the first opposite party’s contention is that they have never collected any illegal amounts from the complainants.  The complainants defaulted certain EMI’s.  As per the terms and conditions of the loan agreement, the opposite parties are entitled to collect extra charges for the defaulted EMI’s and they have collected extra charges for the defaulted EMI’s and the said collection is legal.  Consequent to the default of the EMI’s, the complainants issued 2 cheques for Rs.6,902/- and Rs.11,144/-.  While the cheques were in transit, the complainants applied for closure of the loan, which was premature.  Then the loan was closed on 03.01.2005 by receiving an amount of Rs.2,71,386/-.  Since the cheques were in transit, the account reflected as active and resulted in presentation of cheques for subsequent month.  Thus, an amount of Rs.6,101/- was collected in excess.  Immediately on knowing the matter, the excess amount collected was refunded to the complainants on 08.02.2005 by vide cheque No.457694 for Rs.6,250/-.  Apart from this, an amount of Rs.5,103/- was also collected from the complainants as pre-payment charges for the premature closure of the loan and the said collection is also legal as per the terms and conditions of the loan agreement.  With the above contentions, the opposite parties argued that there is no deficiency of service from their part.

                        11. In order to prove the contentions of the opposite parties, the first opposite party filed a proof affidavit along with one document.  On the basis of the proof affidavit, the first opposite party was examined as DW1 and the document produced is marked as Ext.B1.  Ext.B1 is the copy of the statement of the complainants’ loan account from 21.01.2003 to 20.04.2005.  DW1 was cross-examined by the learned counsel for the complainants.

                        12. On a perusal of the available evidence, there is no dispute regarding the transactions between the parties.  The complainants’ allegations against the opposite parties is that the opposite parties have collected excess money illegally from the complainants in connection with the housing loan.  The complainants’ claim that they have lost Rs.21,499/- due to the deficiency of service of the opposite parties.  But the complainants have not adduced any evidence to show the alleged loss.  Instead of adducing clear evidence for substantiating the complainants’ claim, the complainants have produced 5 statement of accounts which are marked as Exts.A2, A3, A4, A5 and A10.  But the complainants have not brought to the notice of this Forum that such and such entries in the above said exhibits are the illegal collections made by the opposite parties.  On a perusal of the above said exhibits, we could not ascertain the alleged illegal collections, as there are numerous entries in the said exhibits.  The complainants have not pointed out a single entry for substantiating their allegations.  The complainants’ allegations and their evidences are vague and are not specific and the complainants have not made any attempt to convince this Forum with regard to the alleged deficiency of service from the part of the opposite parties with cogent evidence.  In the circumstances, we could not find any deficiency of service from the part of the opposite parties.  Complainants failed to prove their case.  Hence, this complaint is not allowable and is liable to be dismissed.

                        13. In the result, this complaint is dismissed.  No costs.

                        Declared in the Open Forum on this the 12^th day of January, 2010.

                                                                                                                               (Sd/-)     

                                                                                                                          Jacob Stephen,

                                                                                                                             (President)

Smt. C. Lathika Bhai (Member)                  :           (Sd/-)

Sri. N. Premkumar (Member)                    :           (Sd/-)

Appendix:

Witness examined on the side of the complainants.

PW1             :  K. Sugathan.

Exhibits marked on the side of the complainants:

A1                :  Home Loan Documentation Book No. 944712336 00 (Loan Agreement) in

                         respect of the complainants’ home loan.

A2                :  Photocopy of the Statement of Accounts from 7.12.2002 to 12.11.2003.

A3                :  Statement of Accounts from 19.11.2003 to 25.01.2005 in respect of the

                         complainants’ account No. SB 1328 of SBT, Poruvazhy Branch.

A4                :  Photocopy of the Statement of Accounts from 10.12.2002 to 26.11.2004 of

                         ICICI Bank.

A5                :  Photocopy of the statement of accounts from 20.12.2004 to 1.8.2005.

A6                :   Statement for Claiming Deductions of the Income Tax for the period from

                        1^st April 2004 to 31^st March 2005.

A7                :  Photocopy of the Advocate Notice dated 15.02.2005 issued by the opposite

                         parties to the complainants.

A8                :  Cheque Submission Form dated 8.7.2004 issued by ICICI Bank.

A9                :  Photocopy of the letter dated 30.05.2006 sent by the first complainant to the

                         opposite parties.

A9(a)            :  Postal receipt of Ext.A9

A9(b)           :  Acknowledgment card of Ext.A9 signed by the first opposite party.

A10              :  Photocopy of the cheque lists with withdrawal date and amount

Witness examined on the side of the opposite parties:

DW1            :  Ajith. A. Pillai.

Exhibits marked on the side of the opposite parties:

B1                 :  Copy of the statement of the complainants’ loan account from 21.01.2003 to

                         20.04.2005.

                                                                                                                        (By Order)

                                                                                                              Senior Superintendent.

Copy to:- (1)  K. Sugathan, Anjalibhavan, Poruvazhy Village,

            Manampuzha P.O., Kunnathoor Taluk.

(2)   The Manager, ICICI HFCL Ltd., 2^nd Floor, Skyline Citadel,

            Kanjikuzhy, Kottayam-4.

(3)   John Thomas, Executive, ICICI Home Loans Ltd.,

            Vinobaji Road, Adoor P.O., Adoor.

      (4) The Stock File.