State Consumer Disputes Redressal Commission
Idbi Home Finance Limited vs Ajay Kumar Mullick on 11 May, 2010
State Consumer Disputes Redressal
Commission
State
Consumer Disputes Redressal Commission
West Bengal
BHABANI BHAVAN (GROUND FLOOR)
31,
BELVEDERE ROAD, ALIPORE
KOLKATA 700 027
S.C. CASE NO.:
FA/97/2010 DATE:
11.05.2010
DATE OF FILING:
-24.02.2010
APPELLANT :
IDBI Home Finance Limited, IDBI House,
44,
Shakespeare Sarani, 6th Floor, P.S.-Shakespeare Sarani,
Kolkata-700
017.
RESPONDENT :
Sri. Ajoy Kumar Mallick, S/o Late Nepal Mallick,
31/1B,
Pathak Para Road, P.S.- Behala, Kolkata-700 060.
BEFORE: HONBLE JUSTICE : Sri. Aloke
Chakrabarti, PRESIDENT.
MEMBER :
Sri. A.K. Ray.
MEMBER :
Smt. Silpi Majumder.
FOR THE APPELLANT : Ms. Sumita Roy Chowdhury, Advocate.
FOR THE RESPONDENT :
Sri. Amitava Bera, Advocate.
-ORDER-
S. Majumder, Member.
The present appeal has been filed by the OP-Appellant being aggrieved by the judgment passed by the Ld. District Forum, Kolkata, Unit-I, on 04.11.2009, in its case no-74/2006, wherein the Forum below allowing the complaint with cost of Rs.5,000/- in favour of the Complainant payable by the OP-Appellant has directed the OP to pay a sum of Rs.60,000/- towards compensation in order to alleviate the agonies and harassment of the Complainant due to non-payment of loan even after one year and the OP was further directed to pay the abovementioned amount of Rs.65,000/- (including cost) to the Complainant within a period of 30 days from the date of communication of the order, in default the said amount would carry interest @10%p.a. till entire realization.
Briefly the facts of the Complainant are that he applied for housing loan to the OP for purchasing one plot of land in the month of August, 2005. After receiving of the application from the Complainant, the OP inspected as per rules and regulation up to their satisfaction and after completion of all lawful formalities the OP issued a letter dated 30.09.2005 agreeing to sanction the loan of Rs.7,50,000/- only in favour of the Complainant. Relying on the assurance of the OP, the Complainant made an agreement of sale deed with the land owner and paid a sum of Rs.50,000/- only as advance to the land owner out of the total consideration money of Rs.7,50,000/- with the assurance that the balance amount would be paid within a period of three months at the time registration of the sale deed. Accordingly the Complainant paid a sum of Rs.8265/-through a cheque dated 06.10.2005 towards processing fees at the behest of the OP with the expectation of release of the said loan. The Complainant submitted all the required documents and reports to the OP as per requirements, replied the queries made by the OP Advocate concerned on behalf of the OP, duly inspected all the papers but inspite of fulfilling each and every norms set by the OP, the OP did not release the sanctioned housing loan which was to be paid to the vendor within a specified period as per agreement of sale i.e. within three months. Request was made on behalf of the Complainant through legal notice upon the OP, but it neither sanctioned the housing loan nor replied to the letter of the Complainant. Being the only heir of late Krishnagopal Halder, Smt. Santasree Mullick has obtained the right of ownership of the property left by her father as per provision laid down in Hindu Succession Act and as such the question of registered titled deed of ownership of the Complainants vendor is irrelevant in this regard. The Complainant submitted the partition decree, copy of mutation certificate, searching report, porcha, sale agreement etc. to the OP in order to release of the sanctioned housing loan amounting to Rs.7,50,000/-, but the OP did not pay any attention to the above documents and due to their lackadaisical attitude, the Complainant could not purchase the land in question within the stipulated period for which the vendor forfeited the advance money of Rs.50,000/- paid by the Complainant. The OP did not release the loan amount to the Complainant on the pretext that he did not submit the required documents, though he supplied all the papers required for getting the loan. Hence the Complainant finding no other alternative filed the complaint before the Forum below praying for direction upon the OP to refund of the procession fees of Rs.8265/- along with interest from the date of clearance of the said cheque by the OP till payment, compensation of Rs.70,000/- due to damages for harassment and mental agony, litigation cost and other reliefs as deem fit.
Being aggrieved by the abovementioned judgment the OP-appellant has preferred the present appeal before this Commission contending that the Forum below has erred in law for not considering the loan application form submitted by the Complainant-Respondent wherein it was clearly stated that the loan could be rejected at any stage at the discretion of the Bank and the processing fee and administrative fee are not refundable and in the said form under the declaration the Complainant put his signature after accepting the terms and conditions on 16.09.2005. It has been stated by the Appellant that until and unless the registered title deed is filed, loan cannot be sanctioned and in case of sanctioning the same was provisional subject to clearance of legal title deed and other technical formalities. It has been further mentioned by the Appellant that proper documents and deed regarding the title/ownership required and such type of explanation cannot be substitute for the legal documents. As the Complainant took back the documents from the Bank, it can easily be presumed that he was not willing to pursue the loan and is estopped from filing of the complaint. In absence of clear title of the vendor the Appellant cannot disburse the loan, which is public money. According to the Appellant the judgment passed by the Forum below is erroneous and liable to be set aside and it has prayed for allowing the present appeal.
For adjudication of this appeal LCR has been called for. On careful consideration of the record and various documents it is seen by me that it is undisputed that the Complainant applied for housing loan to the OP for purchasing a plot of land from Santosree Mullick, owner of the land. It is also an admitted fact that on receipt of the application from duly filed by the Complainant the OP inspected the office, residence, P.F. office of the Complainant and scrutinized the bank account of him. After doing all the lawful formalities the OP issued a letter dated 30.09.2005 to the Complainant informing him that the bank is agreeable to grant a housing loan subject to compliance with some terms and conditions and a sum of Rs.7,50,000/- would be disbursed upon compliance of such conditions and after completion of legal and technical formalities. I have noticed along with the letter-dated 30.09.2005 some documents were asked for by the Bank from the applicant-Complainant, which has been fully complied with by him. The Appellant-OP has taken the plea that as the Complainant has not filed the registered partition deed of title of the owner in respect of the land in question, the Bank is unable to sanction the housing loan to him. I have also noticed that after filing the written version before the Forum below the OP did not file any evidence on affidavit inspite of getting opportunity and did not controvert the evidence of the Complainant by filing questionnaire. Though the said point has been taken in the written, but the OP has not adduced any documentary evidence to the extent that the panel advocate of the Bank appointed for the purpose of searching of the land has asked for the required document from the Complainant through the Bank. No such letter has been filed by the OP. Therefore in my opinion whether the said document was necessary for sanctioning loan or not is not clear to me. Moreover the Bank also did not issue any letter upon the Complainant directing him to file the said document. Though the Ld. Counsel for the Appellant has argued on this point that sanctioning of housing loan is based solely on the discretion of the Bank and filing the said document is mandatory in the eye of law, but no law in this respect has been produced before the hearing Bench. It is undisputed that the partition decree, searching report, porcha, sale agreement and the mutation certificate, tax receipt issued to Smt. Santasree Mullick by the KMC were supplied by the Complainant along with this loan application. The KMC being satisfied with the records of Mrs. Mullick issued the mutation certificate and in the letter-dated 21.01.2006 it has been clearly stated by the Advocate of the Complainant that after demise of the father of Smt. Mullick, she became the sole owner of the said property being the only heir. So it is clear that inspite of getting all the relevant documents as prayed for by the Bank in writing and after thorough inspection the Bank did not disburse the housing loan and harassed the Complainant almost for one year. The Complainant has mentioned that he paid a sum of Rs.50,000/- as advance to the land owner, but as he did not get the loan he was not in a position to pay the agreed consideration to the land owner and as a result the advance amount as paid by him has been forfeited and due to such harassment on behalf of the Bank he suffered great financial loss. The OP before the Forum below has not challenged such pleading by adducing any cogent documents. During argument the Appellant has drawn my notice under the column declaration of the application form where it is mentioned that .I/We understand and agree that the processing fees and the administrative fees are non-refundable and my/our application being rejected by the Company for any reason whatsoever, or the same being withdrawn by me, I/We shall not be entitled for refund of the same either in part or in full.. It is true that as per the said declaration the Complainant is not entitled to get refund of any amount paid by him towards processing fees to the Bank and the Bank has discretion either to sanction or to reject the prayer for sanctioning housing loan, but in case of any rejection the Bank should state the reasons properly and it should be in accordance with law. The Bank whimsically cannot refuse any housing loan application. In the instant case the Bank did not disburse the loan on the ground that the Complainant did not file the registered partition deed of title of the landowner, but the Bank did not issue any letter directing him to file the said document or the panel Advocate also did not issue any letter upon the Bank seeking for the said document from the applicant through the Bank. Therefore where there is no direction has been given on behalf of the Bank, the Bank cannot refuse to sanction the housing loan in favour of the Complainant. Being disgusted with the action of the Bank the Complainant prayed for refund of the entire processing fees along with interest as well as cost and compensation. But as per the terms and condition of the application form the Complainant is not entitled to get any refund in respect of the processing fees as paid by him, but due to non- sanctioning of housing loan inspite of prolonged harassment the Complainant is entitled to get compensation and cost. In my view the Ld. Forum below has passed a well-reasoned judgment, in which I am not inclined to interfere.
Hence, it is ordered that the appeal be dismissed on contest without any cost and the judgment passed by the Forum below is hereby affirmed. The office is directed to send down the LCR along with a copy of this judgment to the Forum below and issue the copy of this judgment upon the recorded Advocates/Parties free of cost forthwith.
(S.Majumder) MEMBER I agree with the conclusion
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(Justice.
A. Chakrabarti) PRESIDENT (A.K. Ray) MEMBER