State Consumer Disputes Redressal Commission
Indian Overseas Bank vs Smt. Shalini Gupta on 9 August, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.1034 of 2022
Date of institution : 01.12.2022
Date of Reserve : 27.07.2023
Date of Decision : 09.08.2023
India Overseas Bank, Dugri Branch, SCO No.1-3, Nites Vihar,
Dhandra Road Dugri, Ludhiana, Punjab through its Branch Manager
Smt.Shilpa Anand, Mob: 98158-69533, email Id: [email protected].
.......Appellant/Opposite Party
Versus
Shalini Gupta W/o Sh.Rakesh Kumar Gupta, R/o 40/2, Sant Enclave,
Ludhiana, Mob: 90231-68039.
.......Respondent/Complainant
First Appeal under Section 41 of the
Consumer Protection Act, 2019
against the Order dated 16.09.2022
passed by the District Consumer
Disputes Redressal Commission,
Shaheed Bhagat Singh Nagar, Camp
Court Ludhiana in RBT/CC No.179 of
2017.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present :-
For the appellant : Sh.Rajan Puri, Advocate
For the respondent : None
SIMARJOT KAUR, MEMBER
Appellant/Opposite party-India Overseas Bank has filed the present appeal under Section 41 of the Consumer Protection Act, 2019 (in short 'The Act') being aggrieved by the impugned Order F.A.No.1034 of 2022 2 dated 16.09.2022 passed by the District Consumer Disputes Redressal Commission, Shaheed Bhagat Singh Nagar, Camp Court, Ludhiana (in short 'the District Commission') whereby the complaint filed by the complainant-Smt. Shalini Gupta was partly allowed.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Briefly, the facts of the case as made out by the complainant before the District Commission are that complainant- Smt. Shalini Gupta had approached/applied to the OP Bank to get housing loan for purchase of one flat i.e. Flat No.29, 3rd Floor, in 120 Four Storeys Service Apartments, Dugri, Phase-2, measuring 35.55 Sq. Yards (320 Sq. Feet), under the Self Financing Scheme. The total sale consideration of the flat was Rs.10,77,945/-. The complainant approached the OP Bank for loan amount of Rs.7 lac for the said purpose. Originally the said flat was allotted to one Geeta Kumari by the Greater Ludhiana Area Development Authority. The complainant showed all the documents to the officials of the OP. After going through the said documents, they assured to advance loan by entering into an agreement to sell with the aforesaid allottee. Accordingly the complainant had entered into an agreement to sell dated 30.04.2015 with the owner/seller namely Geeta Kumari. At the time of execution of agreement to sell dated 30.04.2015, the complainant had paid an amount of Rs.3,76,000/- to the allottee. It was mutually agreed that the remaining amount would be paid directly to the GLADA as per the schedule of payment i.e. two F.A.No.1034 of 2022 3 installments of Rs.3,50,972/- each payable on 27.06.2015 and 27.08.2015 respectively. Thereafter, the officials of OP informed the complainant that the permission was also required to be obtained from GLADA to mortgage the said flat. In this regard, OP themselves moved an application on 27.05.2015 to the Manager (E.O. GLADA), Ludhiana for granting such permission to mortgage the said flat and also made a request to issue NOC in favor of OP. The officials of OP had retained all the original documents of complainant. On the assurance of officials of OP complainant had paid an amount of Rs.41,500/- vide DD dated 08.06.2015 with GLADA as transfer fee. Subsequently, the permission was granted by the GLADA vide letter dated 18.06.2015. Thereafter, the OP initiated to process the disbursal of loan for which a legal opinion was also required from the empaneled Advocate. The complainant had deposited an amount of Rs.10,000/- for obtaining legal opinion. The empaneled Advocate of OP had opined that the property could be equitably mortgaged with the OP. Thereafter, the complainant had approached the OP bank but the concerned officials started delaying the matter on one pretext or the other. In the mid of September 2015, the official of OP Bank had orally refused to sanction the house loan without giving any sufficient reason. Even the OP did not communicate the complainant in writing the reason for such refusal. On account of refusal to sanction loan by the OP, the GLADA had imposed heavy fine/interest of Rs.90,000/- upon the complainant and due to that she was compelled to pay more amount which was due to negligent act of the OP. The OP even after the refusal to sanction the loan without any reason kept the flat of the complainant under mortgage till F.A.No.1034 of 2022 4 18.02.2016. The complainant had requested the OP on several occasions to get the lien removed from GLADA in favour of OP. Still the OP bank till 18.02.2016 did not listen to the complainant. On persistent requests of complainant, OP had later on moved a letter to Estate Officer GLADA, Ludhiana for lifting of lien of bank against the Flat on 18.02.2016.
4. Stating to be a case of 'deficiency in service' on the part of OP Bank, the complaint was filed by the complainant by seeking the following directions to OP:
1. To pay an amount of Rs.41,500/- got deposited with GLADA on instructions of OP;
2. To pay Rs.10,000/- i.e. amount spent for obtaining legal opinion from Advocate;
3. To pay Rs.90,000/-, as late fee/interest charges with GLADA imposed due to non-sanctioning of loan by OP in time for the reason of keeping lien marked in their favor by OP;
4. to pay Rs.30,000/- as compensation;
5. To pay Rs.10,000/- as litigation charges. The complainant also claimed interest on said amount @ 18% per annum from the date of payment till realization.
5. Upon notice, OP had appeared through counsel and filed written reply by raising certain preliminary objections that the facts as stated in the complaint the complaint was not maintainable. The complainant had applied to the OP bank for sanction of housing loan of Rs.10,00,000/- for purchase of flat. She had moved the loan application dated 15.05.2017 with the OP bank along with all the relevant documents i.e. ID Proofs, Income Tax Return & other relevant documents. Thereafter, the officials of bank verified the F.A.No.1034 of 2022 5 documents and inspected the business premises of complainant as claimed by her in the name & style of M/s Shalini International (Proprietor concern of Shalini Gupta). The complainant had been running her boutique in the said premises. The concerned official namely Mrs.Gursharan Kaur, Assistant Manager of Indian Overseas Bank Rapid Retail Centre had visited the said business premises and reported to the bank that no boutique was existing from which the income was reflected for the year 2014-2015.
6. Out of that it was also mentioned in the reply that Mr.Vikrant Kumar, Assistant Manager of Bank had also visited the premises as mentioned in loan application for the purpose of verification and had report in the pre-sanction visit report dated 07.08.2015;
Column No.5 of the Sanction report mentioned below:
"To verify the income from business in the name of M/s Shalini International which is dealing in trading of Shawls (As per ITR), during my visit to shop/godown on dated 06.08.2015, I found that no stock was available at shop/godown. Whereas, on enquiry from nearby shops it was reported that shop remained closed most of the time and there is practically no activity. So I am of the opinion that income from business/ his business credentials could not be considered and taken as regular income". (Ex.R-2)
7. It was also mentioned in the reply that in the light of the said report, OP had refused to sanction the loan to complainant. Indian Overseas Bank which was nationalized bank and was under the purview of guidelines of Reserve Bank of India. As per the said guidelines, the bank was not duty bound to sanction the loan to any F.A.No.1034 of 2022 6 party, on contacting the bank with mala fide and dishonest intentions by concealing the correct and material facts. This act of OP was as per the given procedure. Moreover, the complainant had also forged the agreement to sell in question, as per provision of Indian Stamp, a stamp on paper of Rs.500/- was required but the agreement in question had been executed on a stamp paper of Rs.100/- just to create false documents. As per the norms & guidelines of Bank on receiving the loan application the borrower was required to have the collateral security but the complainant was not having security for purchase of the property. For the said property the bank had marked its lien initially but later on after the perusal of the pre-sanction visit report declined the request of the complainant. It was informed to her immediately to get the relevant documents regarding deletion of entry of lien. The complainant had been dilly dallying the matter on one pretext or the other. It was denied by the OP in the written reply that on its instructions the complainant had deposited Rs.41,500/- with GLADA as Transfer fee for permission to mortgage. It is matter of record that on depositing the said amount by the complainant, GLADA had granted permission to mortgage the said flat with the OP vide letter dated 18.06.2015. It was denied by the OP for want of knowledge that complainant had also paid/spent Rs.10,000/- as charges for said legal opinion as per its directions/instructions. Other allegations made in the complaint by the complainant had been denied by the OP and had prayed for dismissal of the complaint with costs.
8. By considering the averments made in the complaint as well as in the reply thereof, the complaint filed by the complainant F.A.No.1034 of 2022 7 was partly allowed vide order dated 16.09.2022 by the District Commission. The relevant part of said order is reproduced as under:-
"11. In view of our above discussion, we partly allow the present complaint and OP is directed to pay Rs.90,000/- plus Rs.41,500/- along with interest @6% P.A. from the date of filing of this complaint till realization. We further direct the OP to pay a sum of Rs.5,000/- as consolidated amount of compensation for causing mental and harassment to the complainant.
12. The compliance of order be made by OP within a period of 45 days from the date of receipt of copy of this order."
9. Being aggrieved by the impugned order dated 16.09.2022 passed by the District Commission, the appellant/OP has filed the present appeal by raising a number of grounds.
10. Mr.Rajan Puri, Advocate, learned counsel for the appellant has raised his arguments on similar lines as raised before the District Commission. Learned counsel has also submitted that it was apparent that the respondent/complainant had approached the appellant Bank from the day one with mala fide intention and had concealed certain material facts and made false statements before the appellant Bank whereas the respondent/complainant was well aware about her capacity to pay back the loan amount. The appellant bank being the Nationalized Bank comes under the preview of RBI guidelines and as per the given terms/norms had declined to disburse the loan in absence of any collateral security. Moreover, respondent/complainant has not denied the said fact at any stage. The impugned order passed by the District Commission is also silent F.A.No.1034 of 2022 8 in this regard. The submissions/averments made by the appellant Bank have not been adjudicated by the District Commission.
11. Learned counsel has further submitted that the complaint of the respondent/complainant was bad for non-joinder of the necessary party i.e. GLADA, Ludhiana. Respondent/complainant had averred in her complaint before the District Commission that she had executed agreement to sell dated 30.04.2015 for the purchase of flat which was in the name of Ms.Geeta Kumari. The respondent/complainant had already paid an amount of Rs.3,76,000/- to the allottee of the flat in terms of agreement to sell. Learned counsel has also submitted that the permission to mortgage the said flat was granted by the GLADA and the complainant had also deposited an amount of Rs.41,500/- with the GLADA towards transfer fee for granting permission to mortgage. The lien of the bank was marked on the said flat in the records of the GLADA. The respondent/complainant had also paid an amount of Rs.90,000/- being late fee/interest charges with GLADA as imposed due to non- sanction of loan by appellant bank/OP and for keeping lien marked in their favor. However, GLADA was not made party in the complaint by the respondent/complainant. Learned counsel for the appellant has relied upon judgments of Hon'ble Supreme Court case titled as United India Insurance Co. Ltd. Vs. Rajendra Singh and Ors., decided on 14.03.2000 and "S.P.Changalvaraya Naidu (dead) by LRs. Vs. Jagannath (dead) by LRs." , Civil Appeal No.994 of 1972 decided on 27.10.1993 in support of his arguments. In view of the F.A.No.1034 of 2022 9 facts and reasons as mentioned above the order passed by the District Commission is liable to be set aside on this ground.
12. We have heard the arguments raised by learned counsel for the appellant. However none has appeared on behalf of the respondent/complainant despite service but we have carefully perused the impugned order passed by the District Commission as well as the relevant documents available on the file.
13. Facts relating to filing of complaint by the complainant before the District Commission, reply thereof and passing of impugned order dated 16.09.2022 by the District Commission and thereafter filing of appeal before this Court by the appellant/OP are not in dispute.
14. Admittedly, the complainant approached OP for sanction of housing loan to the tune of Rs.7 lac. The total sale consideration of the flat was Rs.10,77,945/-. She had also signed the agreement to sell with original allottee Ms.Geeta Kumari on 30.04.2015 (Ex.1) according to which the complainant was to pay the balance amount to GLADA directly. Thereafter she approached the appellant Bank. The Bank arranged for permission to mortgage the residential property on 27.05.2015 (Ex.C-4). As per the procedure laid down for banks for disbursal of loan, the appellant bank got done a pre-sanction investigation on 06.08.2015, wherein it was mentioned that in the business premises of M/s Shalini International which is dealing in trading of shawls as per the ITR no stock was available in shop/godown. The nearby shop owners reported that the shop in F.A.No.1034 of 2022 10 question remained closed most of the time and there was practically no activity. It was also stated in the report that the income from business/business credentials could not be considered as regular income (Ex.R-2). Pursuant to pre-sanction report, the appellant bank sent a refusal to disburse loan in writing on 26.08.2015 on the ground of "non-availability of the regular income of the borrower" (Ex.R-5). This refusal was based on RBI guidelines as stated by the appellant bank. Upon this refusal to the respondent/complainant, the appellant bank had sent a letter dated 18.02.2016 (Ex.C-10) for lifting of lien against said flat of the complainant. The bank had exercised all due precaution while making decision regarding refusal of sanction of loan to the respondent/complainant. The conduct of the complainant was doubtful from the very beginning since she approached the appellant bank for advancement of loan which was proved from the reports/documents available on the record relating to the pre-sanction visit as mentioned above. The respondent/complainant was well aware about her inability to pay back the housing loan as she was not having any collateral security to prove her financial position.
15. The contention of the complainant before the District Commission that she had paid an amount of Rs.41,500/- as transfer fee be refunded to her as she had deposited said money on assurances given by the appellant bank. There is no documentary proof regarding such assurance. The complainant has entered into an agreement to sell as per her sweet will. Another contention of the complainant that she was compelled to pay penal interest to GLADA F.A.No.1034 of 2022 11 i.e. an amount of Rs.91,901/-, due to delay in lifting of the lien of the bank against the said flat. Admittedly the Bank had communicated its refusal on 26.08.2015 and the communication for lifting of lien was sent on 18.02.2016. During this period the respondent/complainant could have arranged/managed for alternative payment mechanism to deposit an amount of Rs.7,18,873/- as communicated by GLADA to secure her flat well in time. Thus, the payment of penal rent cannot be attributed to the bank. The respondent/complainant had not approached the bank and the District Commission with clean hands as proved beyond reasonable doubt. Even otherwise it is a settled principle that the petitioners while filing the Writ Petitions must come to the court with clean hands and no material facts should be concealed as held in various cases by the Hon'ble High Courts. The Hon'ble Supreme Court of India has also observed in numerous cases that who come with "unclean hands" and are not entitled to be heard on the merits of their case. The person seeking equity must do equity. It is not just the clean hand, but also clean mind, clean heart and clean objective that are the equi-fundamentals of judicious litigation. Therefore, the contentions raised by learned counsel for the appellant/OP that the respondent/complainant had concealed certain material facts and she had no collateral security to offer with respect to the loan amount has also been proved and has been reiterated in ratio of judgments of higher courts.
16. The contention of learned counsel for the appellant with regard to non-joinder of GLADA as necessary party has been considered. Admittedly, the transaction was between the complainant F.A.No.1034 of 2022 12 and the appellant bank and as such there was no direct dispute with GLADA as per the contents of the complaint. Therefore, the GLADA is not required to be a necessary party in the present case.
17. Accordingly, we find force in the contentions raised by learned counsel for the appellant. We allow the appeal filed by the appellant and set aside the impugned order dated 16.09.2022 passed by the District Commission.
18. The appellant had deposited an amount Rs.25,000/- at the time of filing the appeal with this Commission. Thereafter, the appellant had deposited an amount of Rs.65,875/- in compliance of orders dated 06.12.2022 and 12.01.2023. The said amounts, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the appellant by way of a crossed cheque/demand draft after the expiry of limitation period in accordance with law.
19. Since the main case has been disposed of, so all the pending miscellaneous applications, if any, are accordingly, disposed of.
20. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER August 09, 2023 (Rupinder 2)