The case of the complainant is that he obtained home loan of Rs.9,80,000/- (Rupees nine lakh eighty thousand) only by mortgaging his flat/property measuring about 795 sq. ft. situated at Mouza Italghata, J. L. no.10, Touzi no.216, Khatian no.904, plot no.33 being premises no.71, Jyotish Roy Road, Kolkata – 700 053, P.S. Behala, Dist. South 24 Parganas. The said home loan was sanctioned on 07.11.2008 on condition that the same amount along with interest shall be paid by monthly 179 EMIs @ Rs.10,858/- (Rupees ten thousand eight hundred fifty eight) only. According to the complainant he paid EMIs time to time. Thereafter due to loss of service and lock down period he could not pay EMIs of the said loan. The opposite parties sent a notice dated 07.07.2021 under section 13(2) of SARFAESI ACT, 2002 disclosing the due amount was payable by the complainant was to the tune of Rs.2,97,574.04 (Rupees two lakh ninety seven thousand five hundred seventy four point zero four) only. On 16.09.2021 the complainant replied to the said notice and requested the opposite parties to allow him time till 15.11.2021 to pay off the entire amount. The opposite parties declared the loan account NPA and informed the complainant vide letter dated 27.09.2021. Thereafter the opposite parties again sent a demand for payment vide letter dated 04.10.2021 to pay the entire amount within 15.10.2021. Thereafter, the complainant paid the entire due amount Rs. 2,97,575 (Rupees two lakh ninety seven thousand five hundred seventy five) only to the opposite parties on different dates as mentioned below.
Amount paid
- Rs.1,00,000/- dated 29.09.2021.
- Rs.97,575/- dated 08.10.2021.
- Rs.50,000/- dated 07.10.2021.
- Rs.50,000/- dated 05.10.2021.
It is the further case of the complainant that he also paid Rs.3,00,000/- (Rupees three lakh) only as penal charge to the opposite parties vide cheque bearing no.777294 dated 22.10.2021 drawn on Panjab National Bank, College Street Branch which was duly en-cashed by the opposite parties on 25.10.2021. Thereafter, the complainant repaid the entire loan amount with statutory interest and the opposite parties issued no objection certificate (NOC) on 28.10.2021 in favour of the complainant with regard to his home loan account number 30576561808. In spite of issuance of NOC, the opposite parties till date did not hand over the original title deed of the said flat situated at Mouza Italghata, J. L. no.10, Touzi no.216, Khatian no.904, plot no.33, premises no.71, Jyotish Roy Road, Kolkata – 700 053, P.S. Behala, Dist. South 24 Parganas. The complainant several time in writing requested the opposite parties to deliver him the Deed of Conveyance of his flat but they did not pay any heed to it. On 22.11.2021 the opposite party no.2 sent a letter to the complainant stating that another loan account of the complainant is pending. As such they are unable to release the title Deed. The complainant states that in spite of full and final payment of the home loan obtained by him and even after issuance of NOC in his favour, the opposite parties have not delivered the Deed of Conveyance of the flat to him which is certainly deficiency in service and unfair trade practice on the part of the opposite parties. Hence this case.
Both the opposite parties appeared and filed written version in the case. The opposite parties submit that the complainant paid the settlement amount to the opposite parties and accordingly the opposite parties issued the ‘loan closure certificate’ dated 28.10.2021 and according to that loan closure certificate dated 28.10.2021 the opposite parties declared that the home loan account number 30576561808 has been closed on 27.10.2021 and also declared this certificate does not preclude the complainant from any other dues to the bank, that may arise in future for any other loan.
The opposite parties further submits that the complainant has another loan account being number A/c. 30576561808 at State Bank of India, Sealdah Branch which was subsequently converted AUCA A/c. Number 34542600191 in which on 21.12.2016 the outstanding dues was Rs.4,20,263/- plus accrued interest and legal charges till the realization of the amount. It is the further case of the opposite parties that as per Clause 11(iii) of the “Xpress Credit Agreement” of the bank, the opposite parties bank can lien any account or go for non payment of any of the account of the complainant which is maintained by any bank. The outstanding amount of the other loan account of the complainant was settled before the Lok Adalat held on 14.02.20215, but till date the complainant did not adhere the said order passed by the Lok Adalat on 14.02.2015 and did not pay the settlement amount to the opposite parties and as such the said settlement stands cancelled and the complainant is liable to pay the total outstanding dues to the opposite parties. In such circumstances the case of the complainant is liable to be dismissed.
POINTS FOR DETERMINATION
- Is the case maintainable in law and in its present form ?
- Has the complainant any cause of action to file the case ?
- Is the case barred by limitation ?
- Is the complainant entitled to get relief as claimed for ?
DECISION WITH REASONS
In order to prove the case complainant submitted affidavit in chief and reply to the questionnaire of the opposite parties on solemn affirmation on oath. No documentary evidence has been submitted along with affidavit in chief.
The opposite parties also filed affidavit in chief along with photo copies of documentary evidence and reply to the questionnaire of complainant on solemn affirmation on oath.
Document no.A :- ‘Xpress Credit Application Form’ of the complainant (five pages); document no.B :- arrangement letter dated 24.09.2012 (two pages); document no.C :- ‘Xpress Credit Agreement’ (six pages); document no.D :- Deed of guarantee (four pages) and document no.E :- order of Lok Adalat (one page).
POINT NOS. 1, 2, 3 & 4
For the sake of brevity and convenience all the points are taken up together for consideration and discussion.
On scrutiny of the materials on record and evidence of the parties it appear that the case is well maintainable in law and the complainant is a consumer in accordance with the Consumer Protection Act, 2019.
It further appears from the pleadings and evidence of the parties that the following are admitted fact :
- The complainant has obtained a home loan from the opposite parties/bank to the tune of Rs.9,80,000/- (Rupees nine lakh eighty thousand) only which was sanctioned on 07.11.2008 on terms to repay the same by monthly 179 EMIs.
- For obtaining such home loan, the complainant has mortgaged a flat measuring about 795 sq. ft. situated at Mouza Italghata, J. L. no.10, Touzi no.216, Khatian no.904, plot no.33, premises no.71, Jyotish Roy Road, Kolkata – 700 053, P.S. Behala, Dist. South 24 Parganas and deposited the Deed of Conveyance of the flat with the opposite parties.
- The home loan account is being A/c. no.30576561808.
- The complainant has repaid the total home loan amount with accrued interest and penalty to the opposite parties/bank.
- The opposite parties Bank issued NOC dated 28.10.2021 in respect of loan account being A/c. no.30576561808 in favour of the complainant.
On further scrutiny of the record and evidence of the parties, we find that the complainant has not denied that he obtained another loan from SBI Sealdah Branch being loan A/c. no.30576561808 which was subsequently converted to AUCA A/c. no.34542600191 in which as on 21.12.2016, the outstanding dues was Rs.4,20,263/- plus accrued interest and legal charges till its realization. The complainant also not denied the terms and condition mentioned in Clause 11(iii) of the ‘Xpress Credit Agreement’ (document-C).
On further scrutiny we find that the complainant has also not denied that the dispute of another loan account of SBI Sealdah Branch has been resolved before the Lok Adalat held at Kolkata on 14.02.2015 (document-E).
Ld. Advocate for the opposite parties referred Clause 11(iii) of ‘Xpress Credit Agreement’ (document-C) which read as follows :
“that the Bank shall have a paramount right of set off and in exercise of the Bank’s general lien under law, the Bank shall also have a paramount right of lien on all monies, accounts, securities, deposits, goods and other assets and properties belonging to the Borrower or standing to the Borrower’s credit (whether singly and jointly with any other person(s) which are or may at any time be with or in possession or control of any branch of the Bank for any reason or purpose whatsoever.”
It is argued by the Ld. Advocate for the opposite parties that the bank has every right to create lien over the property mentioned in the Deed of Conveyance submitted by the complainant in his home loan account and the complainant is not entitled to get back the same till compliance with the order passed by the Lok Adalat on 14.02.2015. The opposite parties categorically stated the complainant till date has not paid the amount settled before the Lok Adalat on 14.02.2015. As such the said settlement order passed by the Lok Adalat on 14.02.2015 stands cancelled and the complainant is liable to pay the total outstanding dues of the opposite parties/bank.
It is admitted fact that the complainant has other loan account and the dispute regarding repayment of that loan was referred before the Lok Adalat held at Kolkata on 14.02.2015. The dispute between the parties was settled and the Lok Adalat was pleased to settle the amount and awarded an amount to the tune of Rs.2,60,000/- (Rupees two lakh sixty thousand) only payable by the complainant to the opposite parties.
The ‘Lok Adalat’ has statutory status under the Legal Services Authorities Act, 1987. Under the said Act, the award (decision) made by any ‘Lok Adalat’ is deemed to be a decree of a Civil Court and is final and binding on all parties and no appeal against such an award lies before any court of law.
It is needless to mention that this order passed by the Lok Adalat on 14.02.2015 is an executable order through Civil Court having jurisdiction. The claim of the opposite parties that the order of Lok Adalat ‘stands cancelled’ on non payment of the amount by the complainant has no legal basis. If the complainant fails to abide by the order passed by the Lok Adalat on 14.02.2015 (document - E), the opposite parties are at liberty to realise the same by taking recourse to law.
Having considered the discussion made above, we are of the opinion that as admittedly the opposite parties have issued NOC regarding home loan account being A/c. no.30576561808 after payment of the entire loan amount along with accrued interest and penal charges by the complainant, the opposite parties are not entitled to withheld the Deed of Conveyance which was deposited by the complainant with the opposite parties to mortgage the flat for the home loan.
The NOC was issued by the opposite parties on 28.10.2021.
The Lok Adalat had passed the order with regard to another loan of the complainant on 14.02.2015. Without any valid reason and legal basis the opposite parties instead of taking recourse to law for execution of the order passed in Lok Adalat on 14.02.2015, arbitrarily preferred to withhold the Deed of Conveyance submitted in the home loan account of the complainant. This act of the opposite parties/bank clearly indicates deficiency in service and unfair trade practice.
Having considered the discussion above, we are of the opinion that the case of the complainant succeeds.
Fees paid correctly.
Hence, it is
O R D E R E D
that the complaint case be and the same is allowed on contest against the opposite parties with cost.
The opposite party nos.1 & 2 are directed to return the original title deed of the complainant which they received against the home loan account being A/c. no.30576561808 within one month from the date hereof.
The opposite party nos.1 & 2 are directed to pay a compensation of sum of Rs.40,000/- (Rupees forty thousand) only to the complainant within one month from the date hereof in default to pay interest @ 9% till date of payment.
The opposite parties are also directed to pay a sum of Rs.20,000/- (Rupees twenty thousand) only as litigation cost to the complainant within one month from the date hereof in default to pay interest @ 9% till date of payment.
Dictated by me
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President
