Tamil Nadu

South Chennai

CC/129/2012

PR. Karuppiah - Complainant(s)

Versus

Tower Victorie, - Opp.Party(s)

R.Kanchana

18 Jan 2018

ORDER

                                                                                                                           Date of Filing  : 05.06.2012

                                                                          Date of Order : 18.01.2018

DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, CHENNA (SOUTH)

2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L,                    : PRESIDENT

                 TMT. K. AMALA, M.A. L.L.B.                                :  MEMBER-I

CC. NO.129/2012

THURSDAY THE 18^th DAY OF JANUARY 2018

Mr. PR. Karuppaiah,

Flat No.3, “Krishna Villa,

No.11/2, (old No.8) Pertho Street,

Royapettah,

Chennai 600 014.                                             .. Complainant.

 

                                      ..Vs..

 

The Citibank N.A.,

Rep. by its Manager,

Tower Victoire,

45, GN Chetty Road,

T.Nagar, Chennai 600 017.                            .. Opposite party.

 

 

Counsel for complainant      :  M/s. R.Kanchana 

Counsel for opposite party  :  M/s. S.Samasivayam & other  

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite party under section  12 of the Consumer Protection Act 1986 seeking direction to refund a sum of Rs.4,33,294/- collected by the opposite party in excess and also to pay a sum of Rs.1,34,465,54 towards interest and  to pay a sum of Rs.5,00,000/- being the compensation for mental agony and to pay cost of the complaint.

1. The averments of the complaint in brief are as follows:

          The complainant submit that he availed a Housing loan of Rs.45,00,000/- from the opposite party  repayable in 120 equated monthly installments of Rs.68,523/- and created equitable mortgage.  Further the complainant state  due to Global Economic Meltdown during 2009 which adversely affected the complainant’s software business resulting default in payment of EMI from February 2009.  The complainant addressed several letters to the opposite party explaining the economic crisis and requested the opposite party to rework on the EMI and reduce the EMI and to extend the period of installment.    The opposite party without responding the letter took action under SARFAESI Act.   Further the complainant state that as per the letter dated 30.12.2009 he under took to pay the outstanding arrears and paid a sum of Rs.2,05,569/- towards the EMI for the month of February, March, and April and on  13.2.2010 paid a sum of Rs.1,37,046/- towards  EMI for the month of May and June 2009.  Further on  17.3.2010 the complainant arranged a demand draft for a sum of Rs.2,05,569/- towards  EMI for the month of July, August and September 2009.  The opposite party after the said three transactions arrangement of Demand draft dated 17.3.2010 for Rs.2,05,569/-  initiated proceedings under SARFAESI Act  and took physical possession of the residential flat on 17.3.2010.   On 18.3.2010  the complainant  negotiated with the opposite party and came to the terms of settlement to pay a sum of Rs.10,50,001/- and received possession of the property.  The complainant also state that agreeing to the statement of account furnished by the opposite party only  a sum of Rs.6,16,707/- alone pending towards default installment in the loan account.  The opposite party compelled to deposit a sum of Rs.10,50,001/-  towards the loan account for handing over the possession of the property; thereby the opposite party collected a sum of Rs.4,33,294/- in excess without any account.   Hence the complainant issued legal notice dated 4.11.2010 calling upon the opposite party to furnish the details of the amount paid.  But the opposite party has not sent any reply.   As such the act of the opposite party amounts to deficiency in service which caused mental agony and hardship to the complainant. 

2. The brief averments in the written version filed by the  opposite party is as follows:

The  opposite party deny each and every allegations except those that are specifically admitted herein.  The opposite party submit that after availing the loan the complainant as a defaulter in paying EMI from February 2009.  Since the complainant is default in payment of EMI for continuous three months,   the opposite party issued notice dated 28.4.2009 under section 13 (2) of the SRFAESI Act and declared as Non Performing Asset.   As on April 2009 the complainant was liable to pay a sum of Rs.49,33,772.75.  After issue of notice dated 28.4.2009 the complainant made payment of Rs.2,05,569/- on 31.12.2009 and Rs.1,37,046/- on 13.2.2010  against the total overdue of Rs.49,33,772/-.  Since the complainant  has not paid the EMI till 17.3.2010  the opposite party took possession of the property.  On 18.3.2010 the complainant entered into an agreement with the opposite party was regularized  by paying the defaulted EMIs and repossession given.    After having regularized his account  the complainant filed this case with a malafide intention of making unjust enrichment.   Further the opposite party  states that the payment of Rs.2,05,569/- dated 30.12.2009 and Rs.1,37,046/- on 13.2.2010 and demand draft for Rs.2,05,569/- dated 17.3.2010  denied as false; because demand draft for Rs.2,05,569/- remitted.  The opposite party further states  that  the payment of Rs.10,50,001/- at the  instance of opposite party did not actual represent  overdue amounts as on 18.3.2010 since the complainant default in payment of EMI.  Hence proceedings under the SARFASI Act was initiated by the opposite party.    There is no deficiency in service on the part of the opposite  parties and the complaint is liable to be dismissed.

3.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.23 marked.  Proof affidavit of the opposite party filed and Ex.B1 to Ex.B2  marked on the side of the  opposite party.

4.      The points for consideration is :

1.  Whether the complainant is entitled to refund a sum of Rs.4,33,294/- collected by the opposite party in excess as prayed for ?

2.  Whether the complainant is entitled to  a sum of Rs.1,34,465.54 towards interest for the said amount of Rs.4,33,294/- with compensation of Rs.50,000/- with cost as prayed for ?

5.  POINTS  1 & 2:       

        Heard both sides.   Perused the records (viz) complaint, written version, proof affidavit and documents.   Admittedly the complainant availed  Housing loan of Rs.45,00,000/- from the opposite party  repayable in 120 equated monthly installments of Rs.68,523/- and created equitable mortgage. Ex.A1 is sanction letter.  Further the contention of the complainant is that due to Global Economic Meltdown during 2009 which adversely affected the complainant’s software business resulting default in payment of EMI from February 2009 is also admitted.  The complainant addressed several letters to the opposite party explaining the economic crisis and requested the opposite party to rework on the EMI and reduce the EMI and to extend the period of installment. But the opposite party without responding the letters and finally issued  notice dated 28.4.2009 under section 13 (2) of the Securitization and Reconstruction of  Financial Assets and Enforcement of Security Interest Act (SARFAESI) as per Ex.A7.   Further the contention of the complainant is that as per the  letter dated 30.12.2009 he under took to pay the outstanding arrears and paid a sum of Rs.2,05,569/- towards the EMI for the month of February, March, and April and on  13.2.2010 paid a sum of Rs.1,37,046/- towards the EMI for the month of May and June 2009.  Further on  17.3.2010 the complainant arranged a demand draft for a sum of Rs.2,05,569/- towards the EMI for the month of July, August and September 2009 as per Ex.A14.  The opposite party after the said three transactions including arrangement of Demand draft dated 17.3.2010 for Rs.2,05,569/- initiated proceedings under SARFAESI Act  and took physical possession of the residential flat on 17.3.2010.   On 18.3.2010  the complainant  negotiated with the opposite party and came to the terms of settlement to pay a sum of Rs.10,50,001/- and received possession of the property.  The learned counsel for the complainant contended that agreeing to the statement of account furnished by the opposite party only  a sum of Rs.6,16,707/- alone pending towards default installment towards the loan account.  On the other hand the opposite party compeled to pay a sum of Rs.10,50,001/-  towards the loan account for handing over the possession repossession of the property; thereby the opposite party collected a sum of Rs.4,33,294/- in excess without any account.  So the complainant issued legal notice Ex.A21 dated 4.11.210 calling upon the opposite party to furnish the details of the amount paid.  But the opposite party has  sent  reply with untenable contentions.   Hence the complainant constrained to file this case to refund a sum of Rs.4,33,294/-  with interest  and compensation.   

6.     The learned counsel for the opposite party contended that after availing the loan the complainant as a defaulter in paying EMI from February 2009 is very clear from Ex.B2 the statement of account.  Since the complainant is defaulted in payment of EMI  continuously for three months,   the opposite party issued notice dated 28.4.2009 under section 13 (2) of the SRFAESI Act and declared Non Performing Asset.   As on April 2009 the complainant was liable to pay a sum of Rs.49,33,772.75.  After issue of notice dated 28.4.2009 the complainant made payment of Rs.2,05,569/- on 31.12.2009 and Rs.1,37,046/- on 13.2.2010  against the total overdue of Rs.49,33,772/-.  Since the complainant  has not paid the EMI till 17.3.2010  the opposite party took possession of the property.  On 18.3.2010 the complainant entered into an agreement with the opposite party and the loan account was regularized  by paying the defaulted EMIs and repossession given.    After having regularized his account  the complainant filed this case with a malafide intention of making unjust enrichment.   Further the contention of the opposite party is that the payment of Rs.2,05,569/- dated 30.12.2009 and Rs.1,37,046/- on 13.2.2010 and demand draft for Rs.2,05,569/- dated 17.3.2010  denied as false, is not acceptable; because the said payments were admitted and as per Ex.A14 demand draft for Rs.2,05,569/- remittedisproved  Further the contention of the opposite party is that  the payment of Rs.10,50,001/- at the  instance of opposite party did not actual represent  overdue amount as on 18.3.2010 and only a sum of Rs.6,16,707/- alone the default amount is false; because since the complainant defaulted in payment of EMI, proceedings under the SARFASI Act was initiated.   Due statement of account  Ex.B2 also submitted before this forum. But on a careful perusal of Ex.B2 the transaction  dated 17.3.2010 for Rs.2,05,569/- is not found in the statement of account.  Equally the payment of Rs.10,50,001/- is shown as payment of Rs.27,29,147/-.  But the opposite party has not produced any R.B.I rules to collect such huge penal interest.   The collection of penal interest without basic norms cannot be permitted.  But on a careful perusal of document it is very clear that the opposite party has not given credit to a sum of Rs.2,05,569/- paid towards demand draft dated 17.3.2010 as per Ex.A14 wrongly collected and a sum of Rs.1,34,465/- towards penal interest amounting to Rs.3,14,931/- collected wrongly.    Considering the facts and circumstances of the case this forum is of the considered view that the opposite party shall adjust a sum of Rs.3,14,931/- towards EMI and shall pay a compensation of Rs.20,000/-  for mental agony  with cost of Rs.5,000/- and the points are answered accordingly.

In the result the complaint is allowed in part.  The  opposite party shall adjust a sum of Rs.3,14,931/- (Rupees three lakh fourteen thousand nine hundred and thirty one only) towards EMI and shall pay compensation of Rs.20,000/- (Rupees twenty thousand only)  for mental agony  with cost of Rs.5,000/-  (Rupees Five thousand only) to the complainant. 

The above  amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.

        Dictated  by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 18^th day of January 2018. 

MEMBER –I                                                                         PRESIDENT.

COMPLAINANT SIDE DOCUMENTS:

Ex.A1- 16.7.2008 - Copy of sanction letter by the opposite party.

Ex.A2- 29.9.2008 - Copy of letter of confirmation by the opposite party. Ex.A3- 19.12.2008 – Copy of email correspondences.

Ex.A4- 2.2.2009  - Copy of email between the complainant and opp. party.

Ex.A5- 14.2.2009 - Copy of email.

Ex.A6-             - Copy of email correspondences.

Ex.A7- 28.4.2009 - Copy of demand notice

Ex.A8- 8.6.2009  - Copy of reply by the complainant.

Ex.A9- 11.6.2009 - Copy of Ack. Card

Ex.A10-30.12.2009- Copy of letter of undertaking.

Ex.A11- 30.12.2009 – Copy of banker’s cheques & receipt.

Ex.A12- 2.1.2010   - Copy of Ack. Card.

Ex.A13- 13.2.2010 – Copy of banker cheques & receipt.

Ex.A14- 17.3.2010  - Copy of cheque for demand draft.

Ex.A15- 18.3.2010  - Copy of letter by the complainant.

Ex.A16- 18.3.2010  - Copy of affidavit by the complainant.

Ex.A17- 18.3.2010       - Copy of receipt.

Ex.A18- 18.3.2010       - Copy of receipt.

Ex.A19- 18.3.2010       - Copy of receipt.

Ex.A20- 18.3.2010       - Copy of letter by the complainant.

Ex.A21- 9.9.2010        - copy of letter by the opposite party.

Ex.A22- 4.11.2010       - Copy of legal notice.

Ex.A23- 24.11.2010     - Copy of reply.

OPPOSITE  PARTY SIDE DOCUMENTS:

Ex.B1-                     - Copy of power of attorney.

Ex.B2-                     - Copy of statement of accounts.  

 

MEMBER –I                                                                     PRESIDENT.