Delhi High Court - Orders
Kishor Kumar & Ors vs Tata Capital Housing Finance Limited & ... on 27 July, 2021
Author: Prateek Jalan
Bench: Prateek Jalan
$~3 (2021 Cause List)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8679/2020
KISHOR KUMAR & ORS. ..... Petitioners
Through: Mr. Ashutosh Thakur, Mr.Navdeep
Jain & Mr. Abhishek Pandey,
Advocates.
versus
TATA CAPITAL HOUSING
FINANCE LIMITED & ANR. ..... Respondents
Through: Mr. Sanjeev Singh, Ms. Sampanna
Pani and Ms. Ridhi Pahuja,
Advocates for R-1.
Mr Ramesh Babu MR, Standing
Counsel with Ms. Manisha Singh,
Ms. Nisha sharma, Advs. for R-2/
RBI.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 27.07.2021 The proceedings in the matter have been conducted through video conferencing.
1. The petitioners availed of a housing loan from the respondent no.1. They thereafter wished to close the loan account and take a loan from a different lender. The respondent no. 1 sought to levy foreclosure charges upon the petitioners, which, according to the petitioners, was in contravention of various circulars issued by the Reserve Bank of India ["RBI"]. The petitioners, therefore, filed the present writ petition for the following reliefs:-
Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:29.07.2021 15:12:45 W.P.(C) 8679/2020 Page 1 of 5"a) Issue a Writ of Mandamus or writ in nature of Mandamus, directing the Respondents to release the original title deeds and No Objection Certificate with respect to the property of the petitioner mortgaged with the Respondent No. 1,
b) Issue a writ, of Mandamus or a writ in the nature of mandamus, directing the Respondent No. 1 not to charge foreclosure/prepayment charges, as the same is abolished by the Reserve Bank of India and therefore, being illegal, arbitrary, irrational, unconstitutional and violative of Fundamental Right as protected under the Constitution of India; and/or
c) Issue a writ of Mandamus, or in nature of Mandamus, directing the Respondent No.1 to return all the post dated cheques furnished by the petitioners to the Respondent at the time of issuance of loan so their further misuse by the Respondent No. 1 can be avoided.
d) Pass such other order or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
2. On the last date of hearing, i.e. 12.07.2021, there was no representation on behalf of the petitioners, but a statement was recorded on behalf of the respondent no. 1 that the original title deeds were already released to the petitioners upon their representation and part payment of the amount demanded by the respondent no. 1 by way of foreclosure charges. It was also submitted that the No Objection Certificate required by the petitioners would be issued to them. The respondent no. 1, therefore, contended that the present petition had worked itself out.
3. Mr. Ashutosh Thakur, learned counsel for the petitioners, today accepts that the original title deeds have been released to the petitioners, Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:29.07.2021 15:12:45 W.P.(C) 8679/2020 Page 2 of 5 and that they have made part payment of the foreclosure charges. However, he submits that the levy of foreclosure charges was itself contrary to the applicable circulars of the RBI. He, therefore, seeks adjudication of the present writ petition.
4. Mr. Sanjeev Singh, learned counsel for the respondent no. 1, points out that during the pendency of the petition, the petitioners communicated to the respondent no. 1 on 21.01.2021 as follows:-
"SUBJECT: REQUEST FOR WAIVER OF
FORECLOSURE/PRE-PAYMENT CHARGES
AGAINST HOME LOAN ACCOUNT
TCHHL0359000100007318
Dear Sir,
This is to say that I, Kishor Kumar, R/o House No. S 65 C, First Floor, School Block, Shakarpur, Delhi, 10092, have repaid an amount of Rs. 50,83,483 on 19.06.2020 vide Instrument No. 923350 against Home Loan account TCHHL0359000100007318, sanctioned on 25.10.2019. As per the foreclosure statement provided by your officers, a sum of Rs. 1,19,477/- (Rupees one lakh nineteen thousand four hundred and seventy-seven only) has been levied upon me as foreclosure charges @2.00% of principal amount outstanding at the time of repayment.
In respect of these pending foreclosure charges, I, through my advocate, had filed a writ petition (Writ Petition No. 8679 OF 2020) seeking waiver of the said foreclosure charges, in view of RBI notification bearing no. DNBR(PD) CC.No.101/03.10.001/2019-20.
However, it has now been brough to my knowledge that the said notification is not applicable in my particular case, owing to the loan being co-borrowed by proprietorship under the name of Kishor Chaudhary and Co. It has been clarified to me that the above said circular exempts only Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:29.07.2021 15:12:45 W.P.(C) 8679/2020 Page 3 of 5 individuals from payment of foreclosure charges and not in a scenario where co-borrower is a proprietorship. Further this clarification has been brought to my knowledge through NHB circulars also (Circulars dated 03.09.2014 and 22.07.2016).
In light of these clarifications which I understand in full, I assure you to withdraw the above said writ petition. I also understand that I had agreed to pay the said foreclosure charges when I signed the Loan Agreement.
However, since I have repaid the entire principal amount in full and have paid all other charges as per the terms of the loan agreement. I kindly request to consider this as an exceptional case and waive the foreclosure charges."
(Emphasis supplied.)
5. According to Mr. Singh, it is pursuant to the aforesaid communication that the respondent no. 1 released the documents under cover of a letter also dated 21.01.2021. The communication of the respondent no. 1 mentions 22 documents which were being released to the petitioners upon closure of the loan. The petitioners have also acknowledged receipt thereof.
6. The contention of Mr. Thakur today is that this arrangement was entered into by the petitioners under duress. However, the petitioners do not dispute receipt of documents mentioned therein. Mr. Thakur also states that they would not be able to reverse the transaction pursuant to the said letter by return of the said documents to the custody of the respondent no. 1, as they have since been deposited with another lender.
7. Mr. Thakur points out that the petitioners have lodged a criminal complaint against the officers of the respondent no. 1, stating that the communication dated 21.01.2021 was signed under duress.
8. I do not find any ground for exercise of the equitable jurisdiction of Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:29.07.2021 15:12:45 W.P.(C) 8679/2020 Page 4 of 5 the Court under Article 226 of the Constitution in the present case. The petitioners have entered into the arrangement noted in the exchange of communications dated 21.01.2021 during the pendency of the present writ petition, at which stage legal advice was evidently available to them. They have also taken the benefit thereof by receiving the documents in question, and availing of a fresh loan on the strength of those documents. Such acts of the petitioners disentitle them to take a diametrically contrary contention in the present proceedings. The petitioners' contention regarding duress cannot also be conveniently examined in proceedings under Article 226 of the Constitution.
9. At this stage, Mr. Thakur seeks permission to withdraw the present writ petition with liberty to the petitioners to institute civil proceedings, if they are so advised.
10. The writ petition is dismissed as withdrawn, with the above observations and liberty as aforesaid. The criminal complaint lodged by the petitioners will however take its own course.
PRATEEK JALAN, J JULY 27, 2021 'pv' Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:29.07.2021 15:12:45 W.P.(C) 8679/2020 Page 5 of 5