Tamil Nadu

North Chennai

CC/48/2018

Mr.R.P.Lenin Feranando S/o.Mr.V.Raj Fernando - Complainant(s)

Versus

The Managing Director M/s.Chola mandalam Investment and Finance company ltd - Opp.Party(s)

M/s.R.Chandramohan

11 Jan 2023

ORDER

Complaint presented on  : 28.03.2018

        Date of disposal             :11.01.2023

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

                                       PRESENT : THIRU. G. VINOBHA, M.A., B.L.,                          :PRESIDENT

                                      TMT. KAVITHA KANNAN, M.E.,                          : MEMBER-I

                   THIRU.V.RAMAMURTHY,B.A.,B.L.,PGDLA.,    :MEMBER-II

                               

C.C. No.48/2018

 

DATED THIS WEDNESDAY THE 11^th   DAY OF JANUARY 2023

 

R.P.Lenin Feranando,

S/o. Mr.V.Raj Fernando,

No.3/63, Thiruveethi Amman Koil Street,

Senthamil Nagar,

Medavakkam, Chennai-600 100

                                                                                                           .. Complainant.                                                                          ..Vs..

 

1. The Managing Director,

M/s. Cholamandlam Investment and Finance Co. Ltd.,

Dare House, No.2, N.S.C. Bose Road,

Parrys,

Chennai-600 001.

 

2. The Manager,

M/s. Cholamandlam Investment and Finance Co. Ltd.,

No.58, New.No.12/C,

Tering Regency Towers,

Nungambakkam,

Chennai- 600 034

                                                                                                           ..  Opposite parties.

 

 Counsel for the complainant                      : M/s.R.Chandramohan and P.L.Thulasidass

 

 Counsel for  opposite parties                    : M/s.M.B.Gopalan Associates

 

 

ORDER

TMT. KAVITHA KANNAN, M.E.,           : MEMBER-I         

This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to direct the opposite parties to return ten signed blank cheques and refund Rs.50000/- which the 2^nd opposite party had collected Rs.50000/- as commitment charges at the time of sanctioning of loan  by the 2^nd opposite party and to pay Rs.100000/- towards compensation for deficiency in service and the mental agony and to pay Rs.10000/- towards cost.

1.THE COMPLAINT IN BRIEF:

          The complainant submitted that the complainant is carrying on a business in the name of CHENNAI HOTELS, at Medavakkam High Road, Chennai from 2005, further stated that he intended to develop his hotel business and he approached the opposite parties one Mr.Praveen he assured that the loan will be sanctioned under the scheme working capital to the tune of Rs.80,00,000/- from HDFC Bank and collected all the documents, further the opposite party agent informed that the loan availed a sum of Rs.38,00,000/- from the HDB finance Ltd., a subsidiary of HDFC Bank Ltd. The complainant stated that said Mr.Praveen had arranged the loan on 30.04.2016 from the opposite parties, the 1^st opposite party had sanctioned Rs.70,00,000/- bearing loan A/c.No.XOHECHE00001667599 under Home Equity Loan and sanctioned letter dated 02.05.2016,

 

S.No.	Date	Cheque No.	Amount
1.	30.04.2016	003983	Rs.3997510/-
2.	30.04.2016	003984	Rs.200000/-
3.	30.04.2016	004033	Rs.150000/-

totalling Rs.4347510/- three cheques are drawn in favour of HDB Financial Service Ltd., The complainant stated that the 2^nd opposite party took signature of the complainant in blank security documents, ten signed blank cheques and a cheque Rs.5275/- towards processing fee, further complainant stated that the 2^nd opposite party collected Rs.50000/- by way of DD No.061781 dated 03.05.2016 for the reason best known to the opposite parties which the 2^nd opposite party had stated it as commitment charges.  The complainant stated that the complainant had cancelled the loan on 27.05.2016 even before the disbursement of the loan amount and returned all the three cheques given by the opposite party without being utilized for the reasons the complainant felt he was cheated by the opposite parties agent Mr.Praveen by suppressing certain terms and conditions. The complainant stated that till date the both the opposite parties had not returned the Ten signed blank cheques and Rs.50000/- which the 2^nd opposite party had collected as commitment charges from the complainant.  Further on 01.06.2016 sent a letter to opposite parties to return the ten signed blank cheques and amount, but the opposite parties failed to return. The complainant stated that the said loan was cancelled the loan cheques were returned to the opposite parties and the amount was not transferred from the opposite parties bank account to HDB financial account disbursed amount was not utilized at all the question of paying commitment charges nor the same adjusted to the loan account does not arise at all and holding ten cheques and Rs.50000/- which the 2^nd opposite party had collected from the complainant is amounts to highly unjust, unfair trade practice and deficiency in service.  Further stated that the complainant immediately returned all three cheques and loan sanctioned for the total amount of Rs.4100000/- which included the foreclosure charges without the complainant being informed about the foreclosure charges at the rate of 12% p.a.  The complainant approached the HDB financial from whom the loan was to be taken over by the opposite parties. Further the opposite parties taking the complainants ignorance at the time of sanctioning of the loan without any due intimation by the opposite parties  included the foreclosure charges also which amount to unfair trade practice. Hence prayed that to return the blank cheques and to refund a sum of Rs.50000/- with compensation. Hence this complaint. 

 

2.WRITTEN VERSION OF OPPOSITE PARTIES IN BRIEF:

The opposite parties deny the averments and allegations mentioned in the complainant as false and frivolous except those that are specifically admitted and put the complainant to strict proof of the same.  The opposite party submitted that he had requested for home loan against mortgage of property for a total sum of Rs.70,00,000/- from the opposite parties.  Besides the other terms and conditions, the complainant agreed to pay a commitment charge of Rs.50000/- to complete formalities including execution and delivery of the mortgage documents.  The amount was refundable if the complainant completed their obligations including delivery of the mortgage documents to the opposite parties. The opposite parties submitted that the loan agreement they in turn have commercial arrangements of business and would suffer hardship if the transaction is cancelled or withdrawn by customers after the processing and sanction of loan. The complainant are informed of the same and consent letter sought for the commitment charge which the complainant also executed. The complainant had agreed for payment of the commitment charges and executed undertaking dated 30.04.2016, that the amount would be forfeited if he cancelled the agreement or in the circumstances as stipulated therein. The opposite party had sanctioned the loan disbursement of Rs.4347510/- vide three cheques after adjusting pre-emi.  Loan agreement dated 30.04.2016 was executed.  The opposite party had completed the process of sanctioning the loan application upto release of payment, making necessary financial commitments and arrangements.  The complainant had remitted payment of Rs. 50000/-accepting the loan disbursement cheques and the sanction/payment as well as the condition that it would be adjusted. The complainant changed his mind and cancelled the loan agreement and sought to return the cheques for Rs.4347510/-.  The conduct of the complainant was breach of the loan agreement as per complainant’s undertaking the opposite parties were entitled to forfeit the sum of Rs.50000/- and accordingly the complainant cannot allege deficiency in service against the opposite parties. Hence the complaint may be dismissed.

 

3. POINTS FOR CONSIDERATION:

1. Whether the opposite party caused any deficiency in service and unfair trade practice as alleged in the complaint?

2. Whether the complainant is entitled to the reliefs prayed in the complaint.

If, so to what extent?

Complainant had filed proof affidavit, written argument and documents Ex.A1 to A10 were marked on the complainant side.  The Opposite parties filed written version, proof affidavit, written argument and Ex.B1 to B3 document were marked on the opposite party side.

4. Point No.1:-

          As per complaint, The complainant was running a business in the name of Chennai Hotels intended to develop his business was approached by the one said Mr.Praveen of opposite parties, who assured the complainant that a loan can be sanctioned by the opposite party the name of Working Capital and also promised that the complainant can avail a loan amount of Rs.80,00,000/- and collected Title deeds, documents of the to be mortgaged property and also the seal of the hotel business, being informed about the earlier availed loan from HDB Finance Ltd for Rs.38,00,000/- which was a subsidiary of HDFC Bank Ltd. The complainant stated that he was provided a loan amount of Rs.70,00,000/- by the one Mr.Praveen under Home Equity Loan on     30-4-2016. The complainant was sanctioned an initial partial loan amount of Rs.43,47,510/- via 3 cheques in tune to signing 10 blank cheques and a cheque  amounted to  Rs.5275/- for loan processing charges and a  DD amounting to  Rs.50,000/- in favour of the opposite party mentioned as commitment charges. After a month of issue of the loan cheques in favour of the complainant, the complainant cancelled the loan on 27-5-2016 for various reasons and returned all the 3 cheques without encashing the same.   On cancellation of the loan and return of un-utilized cheques the complainant requested the opposite parties to return the 10 blank cheques and to refund the Rs.50,000/- paid as commitment charges which was specifically mentioned as refundable during the submission of loan application. Both of the requests were vehemently denied by the opposite parties and the opposite parties received the legal notices filed by the complainant and left unresponded. Hence the filing of the complaint.

          5.  As per the opposite parties version and arguments admits the fact that the complainant applied for a loan amount of Rs.70,00,000/- by mortgaging a property located in medavakkam after agreeing to the opposite parties terms and conditions and duly signing the loan agreement as well as  by executing  undertaking letter on 30.04.2016 agreeing to pay a commitment charge of Rs.50,000/-The opposite party in all his versions defends the complainants averment explaining the fact that the Rs.50,000/- collected as commitment charge was stated as non refundable amount even while executing the agreement and the complainant was well aware of the fact, further the opposite party defends that in respect of every loan agreement, they have several commercial arrangements and financial burden involved for the provision and release of loan, and also that the complainant was well informed that the commitment charge was non-refundable  and the complainant had accepted and executed undertaking on 30-04-2016, that the amount would be forfeited if the agreement was cancelled followed by cancellation of the mortgage loan. The opposite parties further defended by stating that by breaching the loan agreement the complainant has cancelled the loan thereby returned the 3 cheques. Further the opposite party also denied the fact that they had not retained any signed cheques issued by the complainant. The complainant's averment that he had been cheated is denied by the opposite parties as the complainants had duly signed undertaking all terms and conditions prior to availing of the sanctioned loan .Hence prayed that the complaint was not maintainable as there was no cause of action.

6.  Perused documents, the complainant applied for a loan with the opposite parties against a property in medavakkam on 30-4-2016 for which an EMI of Rs.1490 and pre EMI for next 2 months of Rs.44694/- was fixed and a sum of Rs.43,47,510/- was initially released on partial payment in the name of Equity Home Loan for which the total loan assured was Rs.70,00,000/- marked as ExA1.According to the loan disbursal 3 cheques chequeno.1 003983   Rs.39,97,510/-, chequeNo2 003984   Rs.2,00,000/-, chequeNo.3 004033   Rs.1,50,000 dated 30.04.2016 in favour of HDB finance limited, from where the complainant had previously availed loan  were marked as Ex.A2, A3 and A4 respectively. A Demand Draft amounting to Rs.50,000/-, vide DD.No.061781 dated 03-05-2016 was drawn in favour of 2^nd opposite party there in stated as processing charge by the complainant is marked as Ex.A5, whereas a processing charge of Rs.5725/- was already paid by complainant as per bank statement dated 31-04-2016 marked as ExA8 and ExB2. The letter for commitment which shows that the disputed amount of Rs.50,000/- collected in form of Demand Draft was collected on account of  commitment charges for the release of above loan, which is marked as Ex.B3.

          7.  The facts of the complaint are as follows, the complainant availed a loan of Rs.70,00,000/- under Home Equity Loan scheme from 2^nd opposite party and a partial payment of Rs.43,47,510/- was released by 2^nd opposite party vide 3 cheques dated 30.04.2016 is undisputed. The said loan was sanctioned on 02-5-2016 and the money disbursed via 3 cheques said to be not transferred to complainant loan account XOHECHE00001667599 is not proved with any document proof and on the other hand the opposite party admits that the complainant have cancelled the loan disbursement based on the cancellation letter by complainant dated 27-5-2016 within one month from the sanction for certain personal reasons. It is pertinent to note that all cheques were in favour of the HDB account with the intention to cancel the current existing loan with HDB Bank. The complainant averments that the 2^nd opposite party took signatures on blank documents is not maintainable as the complainant and his wife had duly signed each and every page of the loan agreement along with the business seal adjacent to their signatures being completely acquainted with the facts of the loan agreement. The 10 blank cheques said to be submitted to the 2^nd opposite party by the complainant and the 2^nd opposite party failure to return the same is not proved by the complainant by adequate evidence. As per para 6 in  Ex.B3 the loan application with app.no.2841217 dated 30-4-2016 a sum of Rs.50,000/- which was paid by the complainant vide DD 61781 in favour of the opposite party states that in case of cancellation of loan for any purpose, the amount shall be treated as balance transfer processing charge and the same will not be refunded whereas para.6 also reads that The above DD will be returned or DD amount will be refunded without any interest, upon  completion of mortgage formalities in your favour to your satisfaction within a period of 1 month of hand over of document  has been duly accepted and  signed  by the complainant and his wife.

8. It is observed that the complainant had failed to add his wife who is the co-beneficiary of the loan as co-complainant in the complaint. The complainants averment in para no. 6 of  his written argument stating  that he canceled the loan as the opposite party cheated him is contrary to the reason mentioned in his cancellation request letter marked as ExA6 wherein he states that he was “canceling the loan due to the non cancellation of the previous loan with HDB Finance”. It is found that though there is no document to prove that the complainant has encahsed  the three cheques issued by the opposite parties but the facts remains that the opposite parties had incurred financial burden in over to provide to the complainant as per the loan agreement which was already entered  on 30.04.2016 and processed the loan application and also issued three cheques by parting with a sum of Rs.43,47,510/- and hence as per the conditions which were accepted by the complainant as found in the commitment letter which is marked as Ex.B4 the said amount of Rs.50000/- will not be refunded in case off cancellation of loan including non completion of execution of mortgage formalities and in the present complaint since the complainant has changed his mind after processing and sanctioning of loan by the opposite parties and the cancellation letter by the complainant Ex.A6 is dated 01.06.2016 and hence as per the condition in Ex.B3 the complainant legally cannot ask for refund for Rs.50000/- paid by him and the non-payment of it that amount by the opposite party  will not amount to unfair trade practice and deficiency in service on the part of the opposite parties.   Similarly as already observed there is no proof for regarding to handing over of ten signed blank cheques by the complainant to the opposite party. And hence the complainant is not entitled to for return of the chques as claimed in the complaint.  Point No.1 answered accordingly.

9. POINT NO.2

Based on findings  given to Point No.1 there is no  deficiency in service and unfair trade practice  on the part of the opposite parties and hence the complainant is not entitled for return of cheques and commitment charges of Rs.50000/- and compensation claimed in the complaint. Point No.2 is answered accordingly.

                   In the result the Complaint is dismissed. No costs.

Dictated  by the Member-1 to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 11^th  day of January  2023.

 

MEMBER   I                  MEMBER  II                                        PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1		Sanction letter to complainant by 1st opposite party.
Ex.A2	02.05.2016	Letter with cheque no.003983 for Rs.3997510/-
Ex.A3	02.05.2016	Letter with cheque no.003984 for Rs.200000/-
Ex.A4	02.05.2016	Letter with cheque no.004033 for Rs.150000/-
Ex.A5	03.05.2016	Demand draft No.061781
Ex.A6	01.06.2016	Letter to 1st opposite party by the complainant.
Ex.A7	23.06.2016	Reply by the 1st opposite party to complainant.
Ex.A8		Statement of account.
Ex.A9	03.04.2017	Complainant counsel Lawyer’s notice to opposite parties.
Ex.A10		Returned Envelope received from 2nd opposite party.

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY:

Ex.B1		Loan application of complainant.
Ex.B2		Loan agreement.
Ex.B3		Letter for commitment charge.

 

MEMBER – I                     MEMBER – II                                     PRESIDENT