Tamil Nadu

South Chennai

CC/45/2017

P.Balamurugan, and Vasantha Lakshmi - Complainant(s)

Versus

The Senior Manager, ICICI Bank, Thousand Light branch - Opp.Party(s)

M.Chidhambaram

18 Aug 2022

ORDER

Date of Complaint Filed : 19.09.2016

Date of Reservation      : 20.07.2022

Date of Order               : 18.08.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

 

CONSUMER COMPLAINT No.45 /2017

THURSDAY, THE 18^th DAY OF AUGUST 2022

1. Mr.P.Balamurugan,

    S/o. S.Pandurangan.

 

2.Mrs. Vasantha Lakshmi,

   W/o. P.Balamurugan,

   Both are residing at,

   No.774/775. Tamil Nadu Housing Board Colony,

   Sithalapakkam,

   Chennai-600 126.                                                                                                                                                                …Complainants

 

-Vs-

1. The Senior Manager,

    ICICI Bank,

    Thousand Light Branch,

    Anna Salai, Third Floor,

    Chennai-600 006.

 

2. Mr. Raja Durai,

    Proprietor of Chairman,

    Flat & Promoters,

    New No.93, Old No.41,

    Venkatarangam Pillai Street,

    Triplicane,

    Chennai-600 005.                                                                                                                                                         …Opposite Parties

 

******

Counsel for the Complainant              : M/s. M.Chidambaram

Counsel for the 1^st Opposite Party       : M/s. M/s. Sai Krishnan Associates

Counsel for the 2^nd Opposite Party      : M/s V. Manisekaran

 

        On perusal of records and after having heard the oral arguments of the Complainants and the Counsel for the 1^st Opposite Party, and having treated the written arguments of the 2^nd Opposite Party as oral arguments of the Counsel for the 2^nd Opposite Party, we delivered the following:

ORDER

Pronounced by Member-I, Thiru. T.R. Sivakumhar, B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to reimburse the amount of Rs.17,00,000/- to the Complainants which was paid by the 1^st Opposite Party to the 2^nd Opposite Party without consent of the Complainants and direct the 1^st Opposite Party to pay a sum of Rs.1,00,000/- towards compensation and to pay a sum of Rs.10,000/- towards costs.

2.     The averments of Complaint in brief are as follows:-

 The Complainant entered in to a Sale Agreement to purchase a Flat in 1^st Floor of property bearing Flat House New No.17 and  part of Old No.8, Ellari Street, Mylapore Village, Gopalapuram, Chennai 600 087 for a sum of Rs.75,00,000/- with the 2^nd Opposite Party.  The Complainants have availed Home Loan to the tune of Rs.50,00,000/- with the 1^st Opposite Party Bank. the payment to be paid to the Flat Promoters, 2^nd Opposite Party herein based upon his performance and progress of the construction work. And the payment to be made stage by stage. Moreover the 1^st  Opposite Party Bank should pay the payment based upon the progress of the works. The initial payment with the consent of the 1^st Complainant upto Rs.30,00,000/ And the remaining loan outstanding of Rs.20,00,000/-, the 1^st Opposite Party Bank sanctioned and paid a sum of Rs.17,00,000/- to the 2^nd  Opposite Party without consent of 1^st Complainant. Whereas the amount was paid to the 2^nd  Opposite Party based upon the forged signature of the 1^st Complainant. Immediately after knowing the facts, the 1^st  Complainant has caused letter, Email and informed the same over phone. Whereas the 1^st Opposite Party Bank neither interested to care about the 1^st Complainant's complaint nor made any steps to collect the same inspite of 1^st Complainant's requests and demands. Without taking any preventive action, the 1^st  Opposite Party Bank official simply told informed that the loan amount was paid to the 2^nd Opposite Party according to the consent letter of the 1^st  Complainant. The 1^st Complainant once again made it clear that he has given complaint to the 1^st Opposite Party Bank on below mentioned dates 23.07.2015, 05.01.2016, 18.01.2016, 29.01.2016,11.05.2016 Registered Post with A.D.  the 1^st Opposite Party Bank has falsely given report that the payment was made to the 2^nd Opposite Party on the written consent letter from the 1^st  Complainant. Immediately after receiving the reply, the 1^st  Complainant become upset and got mental torture. Without caring the customer's interest, the 1^st Opposite Party Bank very much interested to sanction to pay money to the 2^nd Opposite Party. From the said facts reveals that the Opposite Parties have colluded each other and paid hard earning money of Rs.17,00,000/- to the 2^nd Opposite Party Promoter Mr. Raja Durai without consent of the Complainants. The alleged signature of 1^st  Complainant's signature was made in consent letter dated 23.7.2015 and 11.12.2015 are forged and created one. Due to negligence of service of the 2^nd Opposite Party, the Complainants are suffering a lot. So many defect, deviation and wrong fitting are done in the Complainants' property. Due to wrong payment, the Complainants are not in a position to get back the amount the 1^st Complainant has made so many complaints to the 1^st  Opposite Party Bank for wrong payments based upon the forged signature of him. That there was no response from the 1^st  Opposite Party Bank. Then the Complainants have caused an advocate notice to the 1^st  Opposite Party Bank on 10.6.2016. It is submitted that the 1^st  Opposite Party Bank received the notice but so far no reply from them. Hence the complaint.

3. Written Version filed by the 1^st Opposite Party in brief is as follows:-

The Complainants had approached the bank for financial assistance for a sum of Rs. 50,00,000/- to purchase a flat situated in the property having New No.17 and old No. 8, Ellari Street, Mylapore Village, Gopalapuram, Chennai-87, which is promoted by the 2^nd Opposite Party herein. It is pertinent to note here that the Complainants had identified the property to purchase and entered into separate contracts with the 2^nd Opposite Party for construction of the building and purchase of undivided share of land with the land owner. Based on the documents provided by the Complainants, home loan facility to the tune of Rs.50 lakhs was granted by the bank to the Complainant. The Complainants after reading and understanding the terms and conditions of the loan agreement, they had expressly executed the loan agreement dated 15.06.2015. The Bank paid an initial amount of Rs.30 lakhs to the 2^nd Opposite Party on the instructions of the Complainants. Subsequently a sum of Rs.17 Lacs was also paid by the bank to the 2nd Opposite Party with the consent of the Complainants based on the consent letter dated 23.07.2015 and 11.12.2015 executed by the Complainants. In such event the allegation of the Complainants that the signature found in the said consent letter dated 23.07.2015 and 11.12.2015 are forged is without any basis and does not carry any legal sanctity. It is absolutely not necessary for the Opposite Party bank to forge the customer signature to disburse the part amount of the loan to an builder. Any prudent mind in business parlance will not accept such a baseless allegation against the Opposite Party bank. The Complainant had approved the payment of Rs.10 lakhs to the 2^nd Opposite Party and confirmed by email dated 23.07.2015. Therefore it is abundantly clear that the Complainants had filed this complaint with misleading facts for the reasons known to them. Moreover the bank has given a detailed reply on 15.01.2016 to the Complainants email dated 05.01.2016 which is found in page number 5 of the type set filed by the Complainants. It was the Complainants who had identified the 2^nd Opposite Party to purchase the above-mentioned flat, in such event it is absolutely not necessary for the bank to collude with the 2^nd Opposite Party as alleged by the Complainants. It is abundantly clear that the Complainants who had given clear instruction to the bank vide email dated 23.7.2015 to disperse a sum of Rs.10 lakhs to the 2^nd Opposite Party. The bank had consistently replied to all the emails and communications of the Complainants and the same shall be filed by the bank before this Hon'ble Forum at appropriate time. Moreover the Complainants themselves had filed the replies of the bank in Page 5,6,11,12,13,14,15 and 17 of their typed set of papers. This clearly evidences the fact that the 1^st Opposite Party had promptly replied to all the queries raised by the Complainant without any delay and rendered the best of the best services to the Complainants. They had not committed any deficiency of service or unfair trade practice, it is the Complainants who had filed this malicious complaint with an intention to damage the reputation of the Opposite Party Bank and to make a fortune for their wrongful gain. Hence the complaint is to be dismissed.

4. Written Version filed by the 2^nd Opposite Party in brief is as follows:-

The Complainants had approached him for buying a flat and entered into a Sale agreement with him on 20.08.2014 who is the power of Attorney of Mr.Thirumal, who is the owner of the property, Land measuring an extent of 1200 sq.ft with building, bearing Old Door No.17 Part, New No.8 Part, Ellari street, Gopalapuram, Chennai - 600 086, comprised in 0.S. No. 715, R.S.No. 76/1, C.C.No.1078/85, Patta C.A.No.1078/1985/86, Dated 16.10.1985, as per patta R.S No.76/1, Block No.4 situated at Mylapore village, Triplicane Taluk, Chennas District.  On 20.08.2014 the Complainant had entered into a construction Agreement with him for construction of the Fiat, as per the Construction Agreement the Complainant had agreed to pay him a total sum of Rs.54,80,000/- towards construction of the Flat, the Complainant had paid him an advance of Rs.3,00,000/- by way of cheque, The balance sale consideration shall be paid by the Complainant as per payment schedule as follows:

At the time of Foundation         Rs.30,00,000/-

At the state of Plastering          Rs.10,00,000/-       

At the time of flooring stages    Rs. 8,00,000/-

At the time of key hand over    Rs. 3,80,000/

 The Complainant had applied for loan with ICICI Bank, the 1^st  Opposite Party and the Complainant had requested the bankers to pay the loan amount to him at stage by stage. Accordingly the bank has also released the Complainant loan amount to him at stage by stage. He had already executed sale deed in Complainant's favour on 18.06.2015 registered as Document No. 681/2015 on the file of the Sub Registrar of Chennai - Joint I. On 19.12.2015 onwards the Complainant did not pay any amount to him, he had borrowed huge amount and completed 90% of the work in the building. As on today the Complainants are due and liable to pay a sum of Rs.13,00,000/-. He contacted the Complainant on many times over phone, but they have not paid the balance sale Consideration till date. To his shock and notice from the Consumer Forum and he found that the Complainant had filed a false complaint against the ICICI Bank and against him leveling the false allegations. The Complainant had applied for loan and the bank had disbursed the amount stage by stage to him only on their request. Now the compliant have filed the false complaint only to drag on the payment of Rs.13,00,000/-, which they are due to him. The Complainant alleged that without his consent the 1^st Opposite Party disbursed the loan amount to him. It is upto the 1^st Opposite Party to decide sanctioning of the loan and disbursement of the loan to the Builder. He has no role over the sanctioning and disbursement of the loan. The Complainants had alleged that their signature have been forged and loan has been disbursed to the him amounting to Rs. 17,00,000/- to be proved by the Complainant before this Hon'ble Court. He received the amount as per the loan sanction by the 1^st Opposite Party and completed the construction nearly about 90%. He had sent a Legal Notice on 02.03.2017 claiming a sum of Rs.13,00,000/- to be paid by the Complainants as per the Construction Agreement. On 15.03.2017 had given a reply notice admitting that the said amount of Rs.13,00,000/- will be paid after completion of constructions as per Memorandum of Understanding and Indemnity Bond dated 16.05.2016 and also the payment to be made subject to the result of the above said complaint. Hence prayed to dismiss the complaint.

5.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-12 were marked. The 1^st and 2^nd Opposite Parties submitted his Proof Affidavit and Written Arguments. On the side of the 2^nd Opposite Party Ex.B-1 to Ex.B-2 were marked and on the side of the 1^st Opposite Party Ex.B-3 to Ex.B-7 were marked.    

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:-

        It is an undisputed fact that the Complainants had availed Home Loan to the tune of Rs.50 lakhs from the 1^st Opposite Party and the payment out of the said loan amount to be paid in stage wise by the 1^st Opposite Party to the 2^nd Opposite Party, being the flat promoter.

        The dispute arose when the payment of Rs.17 lakhs out of the said loan amount of Rs.50 lakhs, has been released by the 1^st Opposite Party to the 2^nd Opposite Party and the same has been claimed to be released without the consent of the Complainants.

        The contention of the Complainants are that the Opposite Parties colluded together and an amount of Rs.17 lakhs has been released by the 1^st Opposite Party to the 2^nd Opposite Party by fabricating the consent letters dated 23.07.2015 and 11.12.2015 and had committed forgery. Hence the 1^st Opposite Party has to reimburse the sum of Rs.17 lakhs being disbursed to the 2^nd Opposite Party, without their consent.

        The contention of the 1^st Opposite Party is that the Complainants had identified the property and had introduced the 2^nd Opposite Party to them, and only consent of the Complainants the payments were released to the 2^nd Opposite Party, which is evident from Ex.A-1 being  email dated 23.07.2015. Further contended that there is no necessity for them to collude with the 2^nd Opposite Party and the disbursement made was following the instruction given by the Complainant.

        The contention of the 2^nd Opposite Party is that the Complainants had availed loan from the 1^st Opposite Party and had instructed to disburse the loan amount in stage wise and as such the 1^st Opposite Party had released the payments, further the Complainants are due and payable to a sum of Rs.13 lakhs which they had failed to pay. The signatures of the Complainants were not forged and the Complainants have to prove that by forged signature a sum of Rs.17 lakhs has been disbursed. Further he had sent a legal notice dated 02.03.2017 claiming the amount dues to the tune of Rs.13 lakhs from the Complainants.

        From the perusal of Ex.A-11 it is clear that the Complainants had entered into a Construction Agreement dated 18.06.2015 with the 2^nd Opposite Party and had agreed to pay a sum of Rs.30 lakhs at Foundation  stage, Rs.10 Lakhs at plastering stage, Rs.8 lakhs at flooring stage and a sum of Rs.3.80 lakhs on handing over.

        It is clear from Ex.A-12, Memorandum of Deposit of Title Deeds 18.06.2015 that the Complainants had deposited their original title deeds pertaining to their property and had obtained loan from the 1^st Opposite Prty to the tune of Rs.50 lakhs, which was registered as Document NO.682/2015 in the office of Sub Registrar, Joint -1, Chennai Central. It is also evident from Ex.A-1 the mail dated 23.07.2015, the Complainants had approved to release a sum of Rs.10 lakhs to the 2^nd Opposite Party and in the said mail the Complainant had sought for property Inspection report and explanation regrding payment process. And it is admitted by the Complainants in para No.7 of the complaint that a sum of Rs.30 lakhs has been sanctioned with the consent of the 1^st Complainant. Hence, the contention of the Complainants that the Opposite Parties colluded together and released the payment of Rs.17 lakhs without their consent is not legally sustainable and having signed the consent letters and having instructed the 1^st Opposite Party Bank to release payment in stage wise, the allegation of fabrication of documents and forgery, is not legally sustainable. If at all any grievance with the 2^nd Opposite Party, the Complainants should have intimated the 1^st Opposite Party Bank, not to release the payments to the 2^nd Opposite Party, which the Complainants had failed to do so. Hence, we hold that the Opposite Parties 1 and 2 had not committed any negligence in respect of the payment disbursement from the loan account of the Complainants and the 1^st Opposite Party Bank had acted as per the instructions of the Complainants. Therefore, we are of the considered view that the 1^st and 2^nd  Opposite Party had not committed any deficiency of service. Accordingly, Point No.1 is answered.

Point Nos. 2 and 3:- 

We have discussed and decided that there is no deficiency in service on the part of the Opposite Parties and thereby Complainant is not entitled to get any reliefs as claimed in the complaint and not entitled for any other relief/s. Accordingly, Point Nos. 2 & 3 are answered.

In the result this complaint is dismissed. No cost.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 18^th of August 2022.  

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	23.07.2015	Copy of first complaint
Ex.A2	05.01.2016	Copy of second complaint
Ex.A3	18.01.2016	Copy of third complaint
Ex.A4	29.01.2016	Copy of fourth complaint
Ex.A5	26.02.2016	Copy of fifth compliant
Ex.A6	10.03.2016	Copy of sixth complaint
Ex.A7	17.03.2016	Copy of 1st Opposite Party Bank
Ex.A8	11.05.2016	Copy of 1st Complainant’s letter to the 1st Opposite Party Bank
Ex.A9	10.06.2016	Copy of Complainant’s advocate notice
Ex.A10	10.06.2016	Copy of registered receipt
Ex.A11	18.06.2015	Copy of Construction Agreement between the Complainants and 2nd Opposite Party
Ex.A12	18.06.2015	Copy of loan Agreement between the Complainants and 1st Opposite Party.

 

 

List of documents filed on the side of the 2^nd Opposite Party:-

 

 

Ex.B1	02.03.2017	Copy of Legal Notice
Ex.B2	04.03.2017	Copy of Postal Receipts

 

List of documents filed on the side of the 1^st  Opposite Party:-

 

 

Ex.B3	15.06.2015	Copy of Loan Agreement
Ex.B4	18.06.2015	Copy of Disbursal Request Form
Ex.B5	23.07.2015	Copy of consent letter
Ex.B6	11.12.2015	Copy of consent letter
Ex.B7	-	Copy of Statement of accounts

 

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT