BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 6th October 2015
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 137/2014
Complainant/s:
Hemappa S/o. Yallappa Godihal,
Age: 45 years, Occ: Business, R/o.Maruti Students Hostel, Plot No.3540/7, Banashankari Layout, Opp. BVB Engineering College, Near Nekar Colony, Vidyanagar, Hubli.
(By Sri.S.M.Patil, Adv.)
v/s
Respondent/s:
The Manager, Graha Finance Ltd., I Floor, Vivekanand Corner, Club Road, Hubli
(Exparte)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. The complainant filed the above complaint praying to issue direction to refund an amount of Rs.2,09,126/- with interest @ 14.95% from 31.08.2013 till realization, to pay compensation, cost of the proceedings and to grant such other reliefs.
Brief facts of the case are as under:
2. The case of the complainant in brief is that the complainant is a businessman as such he was in need of financial assistance and approached the respondent and entered into an agreement of loan with the respondent by mortgaging the properties on 17.08.2009 and availed loan of Rs.50 lakhs. An amount of Rs.37,53,857/- was disbursed on 29.07.2009 through an instrument no.4882 in favour of KSFC Hubli as the respondent take over the loan liability of the complainant with KSFC Hubli. Accordingly remaining amount was disbursed on 17.08.2009, 20.08.2009 & on 04.09.2009 of Rs.20,000/-, Rs.75,000/-, Rs.8 lakhs, Rs.3,51,140/- respectively through different instruments. It was agreed to repay the said amount with 11.70% interest on 180 EMIs of an amount of Rs.59,047/-. As per the terms and conditions of the loan agreement the complainant paid the EMIs regularly. In the meantime the complainant also filed a Consumer Complaint in C.C.62/2012 on the file of this Forum praying for a direction to readjust a sum of Rs.16,150/-. The same was allowed on 09.08.2012. Through a letter the complainant approached the respondent showing his readiness to close the account by paying balance outstanding amount of Rs.40,60,487-04. Accordingly on 03.08.2013 the complainant approached the respondent to close the account. During that time the respondent shown outstanding balance of Rs.40,41,907-30 and an outstanding EMI of Rs.1,64,639/- and in all directed the complainant to pay Rs.42,06,636/-. Accordingly on 05.08.2013 the complainant issued a cheque for Rs.40 lakhs and another cheque on 19.08.2013 for Rs.2,06,636/-. At that time the respondent insisted the complainant to pay Rs.93,364/- towards pre closure charges, legal charges, service tax and also the interest of that month on the principal balance & asked to issue cheque for Rs.3 lakhs. Hence, the complainant issued cheque for Rs.3 lakhs on 19.08.2013. After issuance of the cheque on 29.08.2013 complainant approached the respondent and requested to issue certificate towards closure of the loan account. During that time the complainant also questioned with regard to the excess claim of Rs.1,15,762/- made by the respondent. During that time respondent said if that amount is not paid they will not close the loan account and release the mortgage deed and property. Hence, the complainant got issued notice to the respondent on 29.08.2013 claiming Rs.1,15,762/- paid in excess. The respondent replied on 07.02.2014 asserting their action. The recovery of the excess amount is against to the principles of law and against to the RBI guidelines & is amounts to deficiency in service by the respondent. Hence, the complainant filed the instant complaint praying for the relief as sought.
3. In response to the notice issued from this Forum the respondent remained absent. Hence, by placing the respondent exparte, exparte proceedings initiated.
4. On the said pleadings the following points have arisen for consideration:
- Whether complainant has proved that there was deficiency in service on the part of respondents ?
- Whether complainant is entitled to the relief as claimed ?
- To what relief the complainant is entitled ?
Complainant admits sworn to evidence affidavit, relied on documents. Heard. Perused the records.
Finding on points is as under.
- Negative
- Accordingly
- As per order
Reasons
Points 1 and 2
5. The present complaint was dismissed on 06.08.2014 by this Forum at the stage of admission on the grounds that the complaint as brought is not a consumer complaint & this Forum has no jurisdiction to adjudicate the same. Aggrieved by the order the complainant approached Hon’ble. Karnataka State Consumer Disputes Redressal Commission Bangalore in Appeal No.1134/2014. The Hon’ble Karnataka State Consumer Disputes Redressal Commission Bangalore by its orders dtd.24.07.2015 allowed the appeal set asiding the order of this Forum dt.06.08.2014 and pleased to remand with a direction to adjudicate the matter afresh giving notice to the OP to contest the case and also by providing an opportunity to the complainant to substantiate his case based on the grounds made out in the said orders. In view of the order of the Hon’ble Karnataka State Consumer Disputes Redressal Commission Bangalore complaint was taken on the board of this Forum and issued notice to the respondent. Respondent remained absent despite service. Hence, exparte proceedings initiated.
6. On going through the orders of Hon’ble Karnataka State Consumer Disputes Redressal Commission Bangalore in Appeal No.1134/2014 on the grounds made by the appellant i.e. present petitioner that he approached the Forum with the prayer made out in the present complaint on the grounds that he paid the entire outstanding amount under protest as the respondent has charged pre closure charges which is against to the guidelines of the RBI. This Forum at the initial stage while passing the dismissal order dt.06.08.2015 is made clear observation that the complainant without protest cleared all the outstanding amount and obtained release of mortgage agreement and property and after having repaid entire amount as agreed by him with the respondent as an afterthought, after lapse of several months of execution of the release deed approached this Forum and filed the complaint as such this Forum dismissed the complaint as not maintainable on the guidelines of decision of Hon’ble. National Commission in 2013 (3) CPR 120 NC, wherein it their lordships have held – the party cannot reopen his case for further relief after full and final settlement. Even after remand and reopening of the present complaint on the file of this forum the complainant did not produced any document before this Forum to convince that he has deposited the said amount under protest and as such the present complaint is a consumer complaint and this Forum has jurisdiction to adjudicate the same. Added to it as per the own admission by the complainant, the complainant is a businessman and for his business he availed huge loan amount of Rs.50 lakhs and the transaction is a commercial one. On this point of view also the present complaint is not maintainable and this forum has no jurisdiction to adjudicate the same. Thereby the complainant squarely failed to establish his case of deficiency in service by the respondent and unfair trade practice and he is entitled for the relief under CP Act as prayed. With these background and for the reasons discussed supra and for the reasoning we have arrived the complainant failed to establish his case. Hence, we inclined to answer issue.1 in negatively and issue.2 accordingly.
7. Point.3: In view of the findings on points 1 and 2 proceeded to pass the following
Order
The complaint is dismissed. No order as to costs.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 6th day of October 2015)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR
