State Consumer Disputes Redressal Commission
India Bulls Housing Finance Ltd. vs Jagdish Chander And Others on 11 June, 2015
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
DAKSHIN MARG, SECTOR 37-
37-A, CHANDIGARH.
First Appeal No.1388
No.1388 of 2013
2013
Date of institution: 16.12.2013.
Date of Decision: 11.06.2015.
India Bulls Housing Finance Ltd., Deep Complex, Near Hanuman
Chowk, Building of Apollo Hospital, Guru Kanshi Marg, Goniana
Road, Bathinda through its Branch Manager/Loan
Manager/Location Manager.
.....Appellant/Opposite party.
Versus
1. Jagdish Chander aged about 66 years s/o Shri Bal Kishan
Dass.
2. Suman Rani aged about 58 years w/o Jagdish Chander
through her power of attorney holder Sh.Jagdish Chander.
3. Amit Arora aged about 29 years, S/o Jagdish Chander
4. Smit Arora aged about 26 years, s/o Jagdish Chander
All residents of 292, Model Town, Phase-I, Bathinda.
5. Reserve Bank of India, Central Office Building, Shaheed
Bhagat Singh Marg, Fort, Mumbai 400 001, through its
Governor/Authorised Signatory (deleted vide order dated
04.01.2013)
........Respondents/Complainants.
First Appeal against order dated
17.10.2013 of District Consumer
Disputes Redressal Forum,
Bathinda.
Before:-
Shri J.S.Klar, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member Shri H.S.Guram, Member.
Member.
First Appeal No.1388 of 2013 2Present:-
For the appellant : Sh.P.M.Goyal, Advocate For respondent : Sh.Sandeep Kumar, Advocate AND First Appeal No.1346 of 2013 Date of institution: 19.12.2013.
Date of decision : 11.06.2015.
1. Jagdish Chander s/o Shri Bal Kishan Dass.
2. Suman Rani w/o Jagdish Chander
3. Amit Arora aged s/o Jagdish Chander
4. Sumit Arora s/o Jagdish Chander All residents of 292, Model Town, Phase-I, Bathinda.
.....Appellants/Complainants.
Versus India Bulls Housing Finance Ltd., Deep Complex, near Hanuman Chowk, Building of Apollo Hospital, Guru Kanshi Marg, Goniana Road, Bathinda, through its Branch Manager/Loan Manager/Location Manager.
........Respondent/Opposite party.
First Appeal
Appeal against order dated
17.10.2013 of District Consumer
Disputes Redressal Forum,
Bathinda.
Bathinda.
Before:-
Shri J.S.Klar, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member
Shri H.S.Guram, Member.
Present:-
For the appellant : Sh.Sandeep Kumar, Advocate
For respondents : Sh.P.M.Goyal, Advocate
First Appeal No.1388 of 2013 3
VINOD KUMAR GUPTA, MEMBER
By this common judgment, we intend to dispose of the above referred two First Appeals together, as they can be dispose off together conveniently, because they have arisen out of the same order dated 17.10.2013 of District Forum Bathinda, accepting the complaint of the complainants against the opposite party by awarding Rs. 1,00,000/- (Rupees One Lac only), as compensation and Rs.10,000/- as cost of litigation and in case of non-compliance thereof within the stipulated period, the aforesaid amount of compensation i.e. Rs. 1,00,000/- will carry interest @ 9% p.a. till realization of the amount. First Appeal No.1388 of 2013 has been preferred by OP (India Bulls Housing Finance Ltd.) against the same, whereas, the second First Appeal No.1346 of 2013 has been preferred by the complainant Jagdish Chander and others. The facts are taken from First Appeal No.1388 of 2013. The status of the parties will be referred as per First Appeal No.1388 of 2013.
2. The brief facts of the case of the complainant are that Jagdish Chander & others complainants filed the complaint under Section 12 of the Act against the opposite parties on the averments that the opposite party No.1 (India Bulls Housing Finance Ltd.) approached the complainants and offered them a housing loan in the month of October, 2009 with the assurance that it would charge minimum interest i.e. @ 14.75% per annum which is fixed. On the assurance of OP No.1, the complainants applied with opposite First Appeal No.1388 of 2013 4 party No.1 for loan and the loan was sanctioned for an amount of Rs. 20,25,000/- to the complainant, vide loan No.HLAPBAT00054705 and No.HLAPBAT00054667 for Rs. 5,00,000/- in November, 2009 and fixed EMI's of Rs. 32,362/- and Rs. 7,991/- respectively interest @ 14.75% p.a. with monthly rests. It was further pleaded in the complaint that the opposite party No. 1 at the time of sanction of the loans, also created equitable mortgage on the properties of the complainant Suman Rani by way of depositing the original two sale deeds. It was further pleaded in the complaint that OP No.1 at the time of releasing the said loans, took the signature of the complainant on the blank forms/vouchers and agreement with the assurance that the same will be filled as per the rules and regulations with the OP No.2 and also took the blank cheques for Security and Cheques for the above said EMI's. However, OP No.1 did not supply the copy of Loan Agreements and other papers to the complainants till date although it was mandatory for it. The complainant further alleged that at the time of releasing the said loan, the OP No.1 told the complainants that the EMIs of the loan can be deposited on any day of the month and EMIs would not be changed without the prior consent of the complainant. However, OP No.1 increased the rate of interest after nine months from 14.75% to 19%. The complainant lodged the Protest with the OP No.1 regarding increase of interest and deposited lumpsum amount in both the accounts i.e. Rs.5,04,985/- and Rs.1,25,000/- respectively. Thereafter, the complainant arranged the entire loan amount in both the accounts and First Appeal No.1388 of 2013 5 thereafter, the complainants arranged the entire loan amount in both the cases and demanded the statement of balance amount from OP No.1. It was further pleaded in the complaint that the OP No.1 issued letter to the complainant to deposit the amount of Rs.14,18,883.78p. in account No.HLABAT00054705 and Rs.3,49,969.62p in account No.HLABAT00054667. The complainants arranged the balance loan amounts in both the Loan Accounts as OP No.1 had illegally charged rate of interest @ 19% against agreed rate of interest 14.75%. The complainant thereafter paid the EMIs in time and also paid EMIs of October 2012 and November 2012. As per the calculation sheet dated 30.10.2012, after arranging the balance amount, the complainant approached the OP No.1 and protested it by giving the remarks on the receipts of the OP No.1 19.11.2012, but OPs threatened the complainants that if they deposited the amount under protest, they would not adjust their Loan Accounts and having no alternative, the complainants had to deposit the drafts of the balance amounts as per sheet dated 30.10.2012, whereas the OP No.1 issued the new calculation on 19.11.2012, in which they demanded Rs.13,98,054.08p in loan account No.HLAPBAT00054705 instead of Rs.14,18,883.78p and Rs.3,45,323.88p in loan account No.HLAPBAT00054667 instead of Rs.3,49,969.62p. On the next date, the complainant lodged the protest with the OPs under the intimation to the Head Office, vide Registered letter dated 20.11.2012 and demanded the excess amount and prepayment charges, which were charged by the OP No.1 from the First Appeal No.1388 of 2013 6 complainant. The complainant further alleged in the complaint that the OP No.1 on 19.11.2012 charged the alleged amount on account of pre-payment charges. The complainant further alleged that the official of the OP No.1 illegally and with malafide intention put stamp as SOLD on the Registered Sale Deed No.10623,10624 & 6257 dated 06.10.2008 and thereby destroyed the sale deeds and stamp of Rs.99,000/-. Due to this illegal act and conduct of OP No.1, no other bank was ready to give loan to the complainants against these sale deeds because of the stamp of sold put on it and no one was ready to purchase the said property on the ground that the said property had already been sold. The complainants further alleged that the OP No.1 should also charge the rate of interest @ 14.75% instead of 19%. The complainants further alleged that they demanded the original above said deeds in the name of Suman Rani in intact condition and original security blank cheques and EMI's cheques from the OP No.1 on 19.11.2012 vide letter dated 20.11.2012, but all in vain. The OP No.1 neither adjusted the account @ 14.75% p.a. rate of interest as agreed between the parties nor paid the balance excess amount, as above mentioned nor returned the PP/Foreclosure charges, nor returned the above said cheques and nor returned the Original Sale Deeds in the name of Suman Rani. Hence, the complainants have filed the complaint seeking direction to the OP No.1 to totally overhaul the loan accounts of complainant by charging rate of interest @ 14.75% and to refund the excess amount by refunding Rs.1,21,404.48 and Rs.29,476.14, returning all original pre EMI's First Appeal No.1388 of 2013 7 cheques and Blank Security cheques of Axis Bank and by returning the both the above sale deeds besides Rs.2,00,000/- as compensation for mental agony and Rs.50,000/- as litigation expenses. The complainants have also prayed for directions to opposite party No. 1 to give stamp value of the sale deed so defaced by it at new collector rates of the said property and to correct all the above referred three original sale deeds after effacing the stamp of 'sold' put on them.
3. The complaint was contested by OPs by filing separate written replies before the District Forum. OP No.1 had filed the written statement and admitted this fact that the complainants had obtained the loan facilities of Rs. 20,25,000/- under loan account No. HLAPBAT00054705 and Rs. 5,00,000/- under loan account No. HLAPBAT00054667 towards loan against property at floating rate of interest. It was further pleaded that the complainants after completing the necessary formalities and agreeing to comply with all the terms and conditions of the loan agreements, executed the necessary documents in this regard. Both loans were sanctioned and disbursed to the complainants as per the terms and conditions and rules and regulations. The said loans were disbursed to the complainants @14.75% (PLR 17.75% - Variance 3%) and both were payable in 120 installments of Rs.32,362/- against loan account No. HLAPBAT00054705 and Rs.7991/- against loan account No. HLAPBAT00054667 respectively. It was further pleaded that the complainants had opted for floating rate of interest First Appeal No.1388 of 2013 8 at the time of taking loans and it was then made clear to the complainants, that in case of any change in the Primary Lending Rate (PLR), the rate of interest might increase or decrease from time to time and also installments amount or tenure of the loans might be changed accordingly. The opposite party No.1 had pleaded that at the time of disbursing the loans to the complainants, the PLR was 17.75% p.a. The PLR got increased 17.75% p.a. to 18.25% p.a. and the rate of interest of complainants was increased from 14.75% to 15.25%. Due to increase of said PLR, the tenure and EMI of loan accounts were changed w.e.f. 01.09.2010 and a letter dated 27-8-2010 was issued by the opposite party to the complainants accordingly. The PLR got increased from 18.25% p.a. to 18.75% p.a. w.e.f. 1-10-2010, 18.75% to 19.50% p.a. w.e.f. 1-12-2010, 19.50% to 20.25% w.e.f. 1-2-11, 21.50% to 22.00% p.a. w.e.f. 1-8-2011, 21.00% to 21.50% p.a. w.e.f. 1-7-2011, 21.50% to 22.00% p.a. w.e.f. 1-8-2011. It was further pleaded by OPs that due to increase of PLR from time to time, the tenures and EMIs of both loans were changed accordingly. The letters dated 1-10-2010, 1-12-2010, 1-2-2011, 1- 5-2011, 1-7-2011, 1-8-2011 were issued by the opposite party No.1 to the complainants in this regard. The opposite party informed the complainants from time to time regarding the increase of tenure and rate of interest as per rules and regulations and as per loan agreements executed between the complainants and opposite party No. 1. The opposite party No.1 has further pleaded that whenever the complainants approached it, it was fully explained to First Appeal No.1388 of 2013 9 them regarding the change in the rate of interest due to change in PLR. It was also explained to them about the prepayment norms as per loan agreements. The full detail of the amount was mentioned in the foreclosure letter regarding the amounts receivable from the complainants and being satisfied with the amount mentioned in the said letter, the complainants paid the same thereafter. No excess amount was ever demanded from the complainants by the opposite party No.1 and the demand was asserted to be legal and as per terms of the loan agreement. The amount was received from the complainants after deducting an amount of EMI received for the month of November, 2012 on new calculation basis and not as per calculation dated 30-10-2012. The original title deeds and other documents were already supplied to the complainants/property owner by the opposite party after receiving the full and final amount of the loan and OP No.1, thus, prayed for dismissal of the complaint.
4. OP No.2 filed separate written reply alleging the complaint not to be maintainable. It was further averred in the written reply by OP No.2 that the complaint to the extent it relates to Reserve Bank of India is outside the scope of consumer Act because Reserve Bank of India does not offer any service to the complainant, as it is statutory body under the Reserve Bank of India Act, 1934. The Reserve Bank is empowered to regulate the financial activities of non-banking financial companies (in short 'NBFCs') including the acceptance of money and deposits from First Appeal No.1388 of 2013 10 public by them. OP No.1 is registered under Section 29-A of National Housing Bank Act 1987. OP No.1 is not registered with Reserve Bank and does not fall within the regulatory purview of Reserve Bank. The complaint is bad for misjoinder of OP No.2, as it has not rendered any service to complainant. The complaints are filed against the financial institutes without impleading Reserve Bank of India, as a party therein and hence, the instant complaint is bad for mis-joinder of parties. OP No.2 prayed for dismissal of the complaint.
5. The complainant tendered in evidence his affidavit and the documents Ex.C-1 to C-26 and closed the evidence. On the other hand, OPs tendered in evidence the affidavit & documents Ex.OP1/1 to OP1/18 and closed the evidence. On conclusion of evidence and arguments, the District Forum Bathinda accepted the complaint of the complainant awarding Rs.1,00,000/- as compensation to the complainant and Rs.10,000/- as costs of litigation against the opposite parties and in case of non- compliance thereof within the stipulated period, the aforesaid amount of compensation i.e. Rs.1,00,000/- will further yield interest @ 9% till actual realization. Dissatisfied with the order of the District Forum Bathinda, two separate appeals have been preferred against the same by the above referred-parties now the appellants. The name of OP No.2 was deleted from the array of the complaint on the basis of submission of the complainant vide order dated 04.01.2013.
First Appeal No.1388 of 2013 11
6. We have heard learned counsel for the parties in the appeals and have also gone through the record of the case.
7. It is an admitted fact that the complainant had obtained the loan facility of Rs.20,25,000/- vide loan No.HLAPBAT00054705 and No.HLAPBAT00054667 for Rs. 5,00,000/- in November, 2009 against property @ 14%, which is proved on record vide Ex.OP1/2 and OP1/3. It is also an admitted fact that the complainant got their above-referred loan amounts foreclosed on 19.11.2012 and paid an amount of Rs.14,18,884/- in account No..HLABAT00054705 and Rs.3,49,969.62p in account No.HLABAT00054367. As per the allegations made in the amended complaint in para No.19A that the official of the OP No.1 illegally and with malafide intention stamped sold on the registered sale deeds No.10623,10624 dated 06.10.2008 and 6257 dated 02.12.2009. The another contention of the complainant is that the OP No.1 started increasing the rate of interest @ 9% p.a. and increased the rate of interest from 14.75% to 19% without prior consent of the complainant and OP No.1 had charged extra payment of pre-payment or fore-closure charges as well. The OP No.1 has specifically denied in its written statement in para No.19A that the stamp paper of sold has been imposed by its officer on the documents in question. The pleading of the OP No.1 are that the original sale deeds have been returned in the same condition to the complainants without defacing them. We have also examined the report of the Local Commissioner dated 20.05.2013, wherein, it was stated that "as per the record of the Registrar/Tehsildar, there First Appeal No.1388 of 2013 12 is no such stamp of 'sold' having been imposed on any of the sale deeds as mentioned above and he applied for certified copies of the sale deeds, which have been received by him and are attached herewith this report for the perusal of this Forum." It is observed that these certified copies of sale deeds as obtained by the Local Commissioner from the Sub-Registrar concerned are not original sale deeds. There is only one original sale deed which is duly stamped and registered and is passed on to the concerned party after its execution and registration and only copy of the sale deed is retained in the office of the Sub-Registrar for official use. There is not question of proving this fact by OP No.1 on the basis of certified copies of the sale deeds obtained from the office of Sub- Registrar. Consequently, we are unable to place any reliance on the report of the Local Commissioner, as sought by OP No.1, for its exoneration in this case. On the other hand, the photostat copies of the original Sale Deeds are on the record proving that the stamp of sold are put on them. The complainants moved an application before District Forum for direction to OP No.1 to produce the original sale deeds for handing over them to the complainants vide statements of the parties dated 13.03.2013 recorded before District Forum. Jagdish Chander complainant received the sale deeds No.10623, 10624 and 6257 from Pawan Kumar Anand, Branch Credit Manager of OP No.1 under protest on the ground that the stamp of sold were put on them. There is no defence with OP No.1 to refute it on the record. Consequently, we record this observation on the basis of above referred evidence that OP No.1 defaced the First Appeal No.1388 of 2013 13 sale deeds of the complainants with the stamp of sold put on them and thereby spoiled them including the stamp papers affixed on them. OP No.1 is deficient in service on this count.
8. The next point for adjudication before us in this case is whether OP No.1 is justified in charging the rate of interest @ 19% instead of 14.75% p.a. The submission of OP No.1 is that BPLR (Bench Mark Prime Landing Rate) is subject to variation as per direction of Reserve Bank of India from time to time. It was further contended by OP No.1 that the complainants took the loan on floating rate of interest and as such, OP no.1 is authorised to increase the rate of interest to 19% on account of increase in BPLR which is regulated by their Asset Liability Management Guidelines. The submission of the counsel for the complainants is that no notice was issued to the complainants by the OPs for enhancing the interest rate as argued by OPs. We have examined the Loan Agreement Annexure R1/A on the record. Clause 2.C of the loan agreement dealing with interest is reproduced as under :-
"(c) In the event of Borrower's opts for the Floating interest Rate offered by IFSL, the rate of interest applicable to the Loan as on the date of execution of this agreement and the terms applicable to such Floating Interest Rate are as stated in Schedule-B."
Schedule-B clause b (iii) dealing with computation of rate of interest is reproduced as under :-
First Appeal No.1388 of 2013 14
"Floating rate will be reset on the first day of the month following the quarter in which IFSL-PLR is changed."
9. From perusal of the above referred provisions, we have come to the conclusion that OP No.1 can enhance the floating rate of interest by resetting it only after following the procedure therefor. The OP No.1 relied upon the letters sent to the complainants in this regard. We find that there is no evidence on the record that these letters were actually posted to the complainants or sent through any courier service to them. There are no docket booking receipts produced by OP No.1 on the record nor there are any postal receipts or courier receipts to prove this fact that they were actually despatched to the complainants. In the absence of actual proof of their despatch to the complainants, we cannot accept the submissions of OP No.1 that due notice was given to the complainants for resetting the interest rate as per Schedule-B as referred-above. Consequently, we record this finding that OP No.1 reset the interest rate without any notice to the complainants and thereby charged it @ 19% p.a. The OP No.1 can reset the interest rate after giving due notice to the complainant and not without giving any notice to them or in not following the procedure. The counsel for OP No.1 could not rebut it on the record before us by means of any evidence.
10. Sequel to the above discussions, order of the District Forum Bathinda is modified by holding that complainants are entitled to refund of excess amount of interest charged by OP No.1 First Appeal No.1388 of 2013 15 @ 19% p.a. instead of 14.75% p.a. from them without giving any notice to them, however, OP No.1 is at liberty to recover the enhanced rate of interest only after giving notice to the complainants and after following the procedure for resetting the interest rate. On the point of defacing the sale deeds by OP No.1 by putting the stamp of sold on them, OP No.1 is directed to refund the entire stamp value of all the above referred spoiled sale deeds to the complainants at the collector rates. The OP No.1 is further directed to pay the compensation of Rs.35,000/- to the complainants for their mental harassment and the order of cost of litigation is not disturbed in the appeal. The order of the District Forum under challenge in the appeal stands modified protanto as recorded above. Consequently, First Appeal No.1388 of 2013 filed by India Bulls Housing Finance Limited stands dismissed and First Appeal No.1346 of 2013 filed by Jagdish Chander and others is accepted by modifying the order of District Forum as recorded above. The order of the District Forum stands merged with the order of this Commission.
11. The appellants/OPs have deposited an amount of Rs.25,000/- & Rs.25,000/- with this Commission at the time of filing the appeal. The amount of Rs.50,000/- with interest accrued, if any, be remitted by Registry to the complainants by way of a crossed cheque/demand draft after the expiry of 45 days. The order shall be complied by the OP No.1 within 30 days from the date of receipt of the copy of the order failing which OP No.1 shall First Appeal No.1388 of 2013 16 pay interest @ 9% p.a. over the due amount payable to complainants by it from the date of filing complaint to actual payment.
12. The arguments in this appeal were heard on 08.06.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
13. Copy of this order be placed in First Appeal No.1346 of 2013.
(J.S.Klar) Presiding Judicial Member (Vinod Kumar Gupta) Member June 11, 11, 2015 (H.S.Guram) H.S.Guram) Lb/- Member