SRI.K. VIJAYAKUMARAN, PRESIDENT.

            Complaint for seeking direction to the first opp.party to furnish correct loan amount to refund  to refund excess amount collected if any compensation costs etc.

The averments in the complaint can be briefly summarized as follows:

The complainant is a retired Government  servant  he availed a housing loan  to the tune of Rs.1,20,000/-  from the first opp.party for construction of  a residential building in the year 1991.  The complainant and his wife  jointly executed  a mortgage deed in favour of  the first opp.party with respect to 18.625 cents of property comprised in Servey No. 684 and 685 of  Sakthikulangara Village.  The loan was to be  refunded in  168 instalments at the  rate of 1600/- per month and the loan was  to be disbursed in four monthly instalments.   The 1^st instalments of Rs.28,557/- was disbursed on  15.2.1991 after deducting Rs.2293/-  towards interest and administration charges.   The 2^nd instalment of Rs.23072/- was  after deducting Rs.2978/- towards interest and administration charges.   The 3^rd instalments of Rs.29394/- was disbursed after deducting Rs.5688/-  towards interest and administration charges and4th instalments of Rs.15901/- was disbursed after deducting Rs.9299/-.   The 4^th instalment was not disbursed in time.   Therefore the complainant had to  borrow money  b y paying huge rate of interest   for the completion of the building.  In July  2004 the complainant after remitting a major portion of the loan had approached the first opp.party for releasing the documents.   The first opp.party directed  the complainant to remit Rs.10916/- in order to update the  loan.   The complainant has remitted  the above sum .    Thereafter he was  properly  paying  Rs.1719/- towards monthly instalments.   The complainant has remitted  156 instalments as on  12.4.2006 and balance 12 instalments are due to  close the loan.    Again the complainant approached  the first opp.party  requesting the  title deed but the first opp.party directed  the complainant to remit a sum of Rs.1,28,061/- towards arrears of loan.   The complainant thereafter filed a  petition requesting to  settle the loan by proper and fair accounting  and requested for release of the document.  Immediately on receiving the representation the opp.party issued an order No.C3-7523/92 KDA dt. 30.11.2006 directing the  complainant  to pay Rs.1,32,067/-.  The discrepancy in the amounts claimed as arrears shows that  this demand is illegal.   Thereafter the complainant filed an application  under the Right to Information Act  to obtain the details of the loan and the details were  furnished on 22.12.2006.   As per the above statement the arrears amounted to  Rs.1,29,931/-  which was again differing from the earlier claim.   It is also to be noted that the opp.party had   charged higher interest rate  agreed by the complainant  as per the agreement dated 7.2.1991.  The interest rate agreed was 13.75% and penal interest of 2.5% .  But the rate charged by the first opp.party was 15% and the penal interest of 5%.There is deficiency in service on the party of the opp.party.  Hence the complaint.

The first opp.party filed version contending, interalia, that the complaint is not maintainable either in law or on facts.   The complainant is not a consumer.   The opp.party initiated RR proceedings  against the complainant and therefore this Forum has no jurisdiction to entertain  this case.   The Revenue Recovery was initiated after issuing notice to the complainant for  which the complainant never raised any objection.  The averments in para 1 and 2  are not fully correct and hence denied.     The sanctioning of the loan is admitted.   As per the terms of the agreement  the loan has to be repaid in 168 instalments at the rate of  Rs.1719/- per month.   The loan  amount  sanctioned  was released  in four instalments.  The 1^st instalment Rs.30,850/-  was disbursed  on 15.2.1991, Rs.26,050/- on 21.8.1991, Rs.37,900/- on 30.4.1992 and Rs.25,000/- on 25.9.1992 respectively.  This amount was  issued only after deducting administration charges and interest of previously  given instalments that is Rs.2,293/-, Rs.2,978/-, Rs.5,688/- and Rs.9,299/-.  No delay  has occurred  in disbursing the loan amount.     The Housing loan  scheme of the first opp.party are implemented by Government policy  and financial assistance  from HUDCO in Government guarantee.   The averments in para 3 and 4  are false and hence denied.   The averment that the complainant has remitted major portion of the loan amount and updated the repayment in July 2004 is false.     Out of 138 instalments  due as on 9.7.2004 the complainant remitted  only 120 instalments.  On the same month he again  remitted 6 instalments defaulting 12 instalments.   A registered notice was issued    requesting to remit the defaulted instalaments on  22.8.2005 but  the complainant remitted only  2 instalments.   As on 12.4.2006 the complainant has remitted only 135 instalments instead of 164 instalments.  After  12.4.2006 the complainant has never  turned up. The notice was issued on  21.7.06  was evaded by the loanee knowing the contents of the notice.  The averments in para 5 and 6 are false.  The amount including  interest and penal interest sought to be realized under RR proceedings  comes to Rs.1,32,067/- the rules and regulation of the housing loan schemes are framed by HUDCO and the first opp.party  has not role  in it.  As per the loan agreement the interest rates is 15%  and penal interest is 5% .  There is no deficiency in service on the part of the first opp.party.  Hence the opp.party prays to dismiss the complaint.

The opp.party 2 and 3  are filed a separate version also contending that the complaint is not maintainable.   This forum has not jurisdiction to entertain this complaint  against opp.party 2 and 3.  In the light of the  amendment Act Section 72 of the Revenue Recovery Act.   These opp.parties initiated RR Proceedings upon the complainant by receiving necessary certificate from the District Collector, Kollam.  Since the  District Collection was not made a party .   The complaint is bad for none joinder of necessary parties.  Opp.party 2 and 3 are  the subordinate of State of Kerala so notice under section 80 of CP. Act  is necessary  to sue upon the State of Kerala  Since the Section 80 Consumer Protection Act notice is not issued  The complainant has not right to file this complaint.  There is no allegation against the opp.party 2 and 3 in the complaint.   These opp.parties have  completed the whole formalities for RR Proceedings .   Therefore this complaint may be dismissed.     The complainant  if has  in dispute  may approached the District Collector, Kollam.  There is no deficiency in service on the part of the opp.party 2 and 3.  Hence these opp.parties prays to dismiss the complaint.

          The complainant filed an application to delete the came of opp.party 2 and 3 from party array and make  constitutional amendment which was allowing the opp.party 2 and 3 have been deleted from the party array.

Points that  would arise for consideration are:

1.     Whether there is deficiency in service on the part of the opp.parties

2.     Reliefs and costs.

For the complainant PW.1is examined.   Ext. P1 to P8 are marked.

No oral or documentary evidence for the opp.party.

POINTS:

          The sanctioning of loan of Rs.1,20,000/- by 1^st opp.party in favaour of the complainant and his wife and availing of the loan by  them  are not indispute.   The dispute is with regard to the quantum of amount repaid and the rate of interest and penal interest.   When the complainant says that only 12 instalments are outstanding repayment the case of 1^st opp.party is that 29 instalments are outstanding.

The main contention of the complainant is that the 1^st opp.party is charging interest and penal interest at a higher rate than the agreed rate which is the reason for the discrepancy  in the account.  It is the further case of the complainant that though the monthly instalments as per the agreement  was Rs.1600/- he was remitting instalments @ Rs.1719/- p.m.  Ext.P1 is the loan agreement executed by the complainant Ext.P1 shows that the loan amount sanctioned  was Rs.1,20,000/- Para9 of the agreement shows that the rate of interest is 13.75% .  Para 11 of Ext.P1 shows  that the loan amount with interest was to be repaid in 168 instalments @ Rs.1600/- p.m.  and the penal interest for belated payments is 2.5% Ext.P1  shows that the case of the complainant regarding rate of interest and  amount of instalment is true.   Though the opp.party would claim that the rate of interest is 15% and penal interest is 5% and the monthly instalment is Rs.1719/- p.m it is not supported by any material..  No  document enhancing the interest rate, if any, subsequent to Ext.P1 is also not produced.  In the absence of any such material charging  enhanced rate of interest and penal interest is unjustifiable.

Ext.P7 is the information furnished by 1^st opp.party to the complainant under the Right to Information Act.   The detailed statement in Ext.P7 doest not show the total number of instalments paid by the complainant.  However after the statement it is stated that the complainant has  paid 139 instalments totallying Rs.2,62488/- out of which Rs.23547/- is credited towards interest and penal interest.  It is not specified therein what is the balance sum of Rs.2,38,941/- .  To use the wording in Ext.P7 “ SaH dn]\ YedlgA flb\dX12;4;2005isg  Llsd 262488 goe TO LSflyjMjujH Lmv\vj}kn\mk\;  LfjH 139 alc findxluj (139 x 1719) 238941goeukA ehjCujrf\fjhkA ejqehjCujrf\fjhkaluj 23547 goeukA igi\ iv\vj}kn\mk\.  If  Rs.23547/- is adjusted towards interest and penal interest then what does Rs.2,38,941/- represents is to be  explained by the 1^st opp.party and no such explanation is forthcoming.

As pointed out earlier the  interest collected by opp.party is much more than the agreed rate of interest.   Collection of interest in excess of agreed rate is deficiency in service.   The learned counsel for the complainant has submitted that the complainant is ready to pay the correct amount due and interest as per agreed rate.  In the absence of any material on the side of the first opp.party to show that  29^th instalments are due, we are inclined to accept the contention of the complainant that 12 instalments alone are outstanding Ext. P7 also lent support to that contention.   For  the outstanding amount the complainant will pay interest at the agreed rate of 13.75% and penal  interest at the rate of 2.5%.  Point found accordingly.

          In the result the complaint is allowed directing the first opp.party to collect the outstanding 12 instalments and interest on the same at the  rate of13.75% and penal interest at the rate of 2.5%.   The 1^st opp.party is also directed to pay the complainant  a sum of Rs.5,000/- towards compensation and costs.  The order is to be complied with within one month from the date of this order.

          Dated this the 26^th      day of June, 2010

I N  D E X

List of witnesses for the complainant.

PW.1. – Charles Bosco

List of documents for the complainant

P1. – Loan agreement.

P2. – Receipts

P3. – Copy of complaint dt. 17.10.2006

P4. – Notice dt. 30.11.2006

P5. – Copy of Malayala Manorama dialed dated 6.12.2006

P6. – Copy of application dt. 11.12.2006

P7. – Reply to Ext. P6

P8. – Recover Notice.

No oral or documentary evidence for the opp.parties: NIL