Order No. 12 dt. 20/02/2017
The case of the complainant in brief is that the complainant took housing loan from o.p. on 19.10.01. The complainant communicated to o.p. by a letter dt.1.9.14 that the office of o.p. was at Jeevan Deep Building previously but no new address was provided to the complainant and no notice was given at the official place of the said building and as such, the address of o.p. was beyond the knowledge of the complainant and he could not submit cheques of housing loan in the shape of EMI to o.p. from March 2014. Subsequently the complainant came to know of the address of o.p. and sent five cheques.
The o.p. communicated to the complainant by a letter dt.3.9.14 that the amount of the aforesaid cheque of Rs.6364/- only was adjusted in the shape of additional interest of Rs.1819 only incidental charges of Rs.2473/- only and against the EMI of Rs.1072/- and after adjustment of the EMI outstanding was of Rs.5186/- as on 31.8.14 and due amount would have to be paid within 7 days from the receipt of intimation.
The complainant made a reply stating that he has already paid all dues. The o.p. by a letter dt.17.11.14 informed that the complainant was defaulter and as such, he would bear penal interest. In view of such demand made by o.p. the complainant filed this case praying for direction upon the o.p. not to treat the complainant as defaulter and no penal interest can be imposed upon him and also prayed for mental harassment of Rs.50,000/- and litigation cost of Rs.10,000/-.
The o.p. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that the instant case is not maintainable as the complainant is a defaulter and as per the judgment of Hon’ble National Commission in Rajasthan Housing Board vs. Smt. Gyanmati Jain the complainant cannot allege deficient service on the part of the answering o.p. when she not only defaulted in payment of the due EMIs over a considerable period of time but stopped payment of EMI and on the basis of the said fact Hon’ble National Commission dismissed the case. The further stated that the complainant took home loan from o.p. to the tune of Rs.75,000/- for extension of his house. At the time of availing of such financial assistance the complainant entered into a legally valid and binding home loan agreement dt.19.10.01 with o.p. wherein all the terms and conditions governing the said financial assistance was laid down. As a security for the due repayment of the financial assistance, the complainant created mortgage over its property through the deposition of his title deed. The o.p. shifted his office from Jeevan Deep Building to Brooke Bond House, Shakespeare Sarani8 on 13.1.14. At the time of shifting the office of the customers were duly informed and a skeleton service was operated from the old office of the complainant and all the customers who visited the office at Jeevan Deep Building were assisted by giving the new address of the office. The complainant in spite of knowing the change of address deliberately failed to pay the EMI. In the agreement itself it was specifically stated that in case of failure to pay the due amount as per the terms and conditions of the loan agreement caused charges, expenses, incidental charges would be imposed. Since the complainant defaulted in payment of the loan amount the amount paid by him was adjusted with the interest charges and the outstanding EMI. The complainant was asked to visit the office of o.p. for discussion but he did not attend in the said discussion. The complainant has not made any payment against his loan account and his cheques were bounced in the months of April, May and June. In view of such fact o.p. prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant took loan from o.p.
- Whether he failed to pay the EMIs as per the terms and conditions of the loan.
- Whether there was any deficiency in service on the part of o.p.
- Whether the complainant will be entitled to get the relief as prayed for.
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant obtained loan from o.p. and after obtaining loan he started to pay EMIs. Due to shifting of office by o.p. and the said fact was not informed to the complainant for which the complainant could not pay the EMIs subsequently. After coming to know of the new address of the complainant he paid cheques of Rs.6364/- but the said amount was adjusted in the shape of additional interest and incidental charges. The o.p. illegally deducted additional interest and incidental charges for which the complainant had to file this case praying for direction upon the o.p. not to treat the complainant as complainant is a defaulter and also prayed for other reliefs.
Ld. lawyer for o.p. argued that the complainant after payment of the amount of Rs.5634/- vide cheque no.081192 dt.1.9.14 and four post dated cheques of Rs.894/- each the said amount was adjusted towards the over dues and regular EMIs payment and the complainant was informed the said fact by o.p. on 3.9.14. The complainant was referred the loan agreement in respect of the adjustment of the amount as per clause 5.5 under article 5 of the loan agreement dt.19.10.01. The complainant was asked to clear the entire outstanding dues within 7 days from the receipt of the intimation. The complainant in answer to the said reply to the letter sent by o.p. denied to pay any amount, subsequently filed this case. The complainant whenever sent any letter to the o.p., the o.p. replied the said letter. In view of such fact ld. lawyer emphasized that no irregularity was created by o.p. for which the complainant will be entitled to get the relief as prayed for.
Considering the submissions of the respective parties and on perusal of the materials on record it is an admitted fact that the complainant took loan from o.p. and initially he started to pay the EMIs regularly but subsequently he failed to pay the EMI. The complainant alleged that due to shifting of the office of o.p. he was not informed for which he could not pay the EMI. But from the evidence filed by o.p. it appears that o.p. at the time of shifting of the office informed the customers regarding the shifting of the office as well as they maintained a skeleton office at their old address. Whenever any customer used to visit the office they would have given the new address of the office of o.p. It is admitted fact that the complainant sent a cheque of Rs.5364/- and o.p. by a letter informed the complainant that the said amount was adjusted with the additional interest and incidental charges as well as some adjustment was made against the EMI. As per clause 5.5. under article 5 of the loan agreement dt.19.10.01 it was specifically stated that in case of failure of the EMI the additional charges would have to be paid by the borrower and o.p. as per the said terms and conditions of the loan agreement adjusted the amount paid by the complainant. The complainant was informed of the said fact. Since Hon’ble National Commission has held that in case of defaulting in payment of EMI the borrower cannot have any right to file any case before the Consumer Forum to get any relief as sought for by him, apart from the said fact from the evidence filed by both the parties and on perusal of the materials on record it is found that the complainant refused to pay any outstanding dues to o.p. and to that effect he also sent a letter dt.7.12.14 mentioning therein that he was not inclined to pay any outstanding dues. Considering he said conduct of the complainant as well as materials on record we hold that the complainant must honour the agreement which he entered into with o.p. and since the complainant himself was at fault and he avoided to pay the EMI subsequently even he refused to have the discussion with o.p. before filing of this case, therefore we hold that the complainant since failed to come before this Forum with clean hands, he will not be entitled to get any relief as prayed for.
Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.134/2015 is dismissed on contest without cost against the o.p.
Supply certified copy of this order to the parties free of cost.
