Date of filing:  17.02.2017                                                        Date of Disposal: 21.04.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,      BENGALURU – 560 027.

DATED THIS THE 21^st DAY OF APRIL, 2023

CONSUMER COMPLAINT NO.269/2017

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

1) Harish M Chavan,

S/o. Manohar R.Chavan,

Aged About 40 Years,

2) Smt. Jyothi H Chavan,

W/o. Harish M Chavan,

Aged About 36 Years,

Both are residing at No.1220,

Banashankari 3^rd Stage,

(Rep by Sri. H.S. Kiran, Advocate)

1) Dewan Housing Finance

Corporation Limited, Having

its office at: No.719/A, 53-2,

Sangam Circle, Jayanagar 8^th Block,

Bangalore-560 070.

Represented by its Manager.

(Rep. by Sri.Jai M Patil, Advocate)

2) Piramal Capital & Housing Finance,

Having its Registered Office at 601,

Corporate Park, Kamani Junction,

Opp. Fire Station, LBS Marg, Kurla (W)

Mumbai MH 400070.

Represented by its Manager.

Also at:

Piramal Capital & Housing

Finance, Having its Corporate

Office at #133/1, The Residency,

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

01.    The complainants have filed this complaint Under Section 12 of the Consumer Protection Act, 1986 seeking for a direction to the opposite parties to refund the amount of Rs.1,46,500/- with interest at the rate of 18% per annum and such other relief as this Commission deems fit in the circumstances of the case.

02.    Complainant No.2 is the wife of complainant No.1.  Opposite party No.1 has been merged with opposite party No.2.  It is not in dispute that, the complainant has paid Pre-EMI a total sum of Rs.1,46,500/- to opposite party.  Further it is not in dispute that, the loan was for a sum of Rs.37,08,155/- sought by the complainant has not been disbursed in favour of the complainant.

03.    It is the further case of the complainants that, they have entered in to a sale agreement to purchase a property in site No.5 in Hosakerehalli Village, Utarahalli Hobli, Bangalore, with one Mr. Bhagath Singh.  Further subsequently he has learnt that, Mr. Bhagath Singh had no absolute title over the said property and got cancelled the sale agreement on 18.11.2015.  Hence the complainants sought for cancellation of the loan sanctioned and sought for refund of Rs.1,46,500/- paid towards Pre-EMI since loan has not been disbursed.  Further since the opposite party failed to refund the same, the complainant got issued legal notice dated: 03.12.2016 seeking for refund of the said amount with interest, but the opposite party did not repay it.  Hence the complaint came to be filed.

04.    It is the further case of the opposite party that, the dispute arose out of a contractual relationship, thereby the same does not fall within the purview of Consumer Protection Act.  Further the loan matter does not come within the purview of Consumer Protection Act.  It is further contended that, during the last week of March-2015 the complainant approached opposite party seeking for the loan.  Further as per the terms and conditions of the loan transaction opposite party had deducted EMIs.  Further since the registration of the schedule property has not been materialized the complainants failed to collect the DD from opposite party and at the end sought for cancellation of the loan after 02 Pre-EMIs were deducted for having sanctioned the loan.  Hence the vendor of the complainants had cheated the complainants and the complainants have filed a suit for recovery against the vendor.  Further instead of seeking a relief against the vendor for the reasons best known the complainants have filed the present complaint.

05.    To prove the case, the complainant No.1 has filed affidavit in the form of his evidence in chief and has produced documents.  The Deputy Legal Manager of opposite party has filed synopsis of the arguments in the form of Memo and has produced citations.

06.    The points that would arise for consideration are as under:-

  (1) Whether there is deficiency of service on the part of the opposite parties?

  (2) Whether the complainants are entitle for the relief sought ?

      (3) What order ?

07.    Our findings on the aforesaid points are as follows:-

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

10.    POINT NO.1:-  The complainant and opposite party have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.

11.    It is the contention of the learned counsel for the opposite party that, as per the provisions of Insolvency and Bankruptcy Code, 2016 as amended up to date, a moratorium was declared in prohibiting the institution of suits or continuation of suits.  Further in a judgment rendered by National Company Law Tribunal, Mumbai Bench on 03.12.2019 in C.P. (IB)-4258/MB/2019 in between Reserve Bank of India Vs. Dewan Housing Finance Corporation Limited, the Hon’ble Court in Insolvency proceedings initiated against Dewan Housing Finance Corporation Limited has ordered that, the “Moratorium” as defined Under Section 14 of the Insolvency Code shall commence with effect from the date of Application i.e., 29.11.2019 and shall have the effect till the completion of Insolvency process and the administrator was directed to cause a public announcement immediately intimating the initiation of Corporate Insolvency Resolution Process and call for the admission of claims as prescribed under Section 15 of the Code and the administrator shall update the list of depositors along with the outstanding amount payable to each one with their address and communication information so that in future their interest can be watched along with all other stakeholders.  We feel the said Interim order passed by the National Company Law Tribunal, Mumbai Bench, would not come in the way of disposing of the present complaint.  Hence there is no merit in the contention of learned counsel for the opposite party that, the issue in the present complaint has been seized in the matter pending before the National Company Law Tribunal.

12.    It is further contended by the learned counsel for the opposite party that, the relationship with the complainant and the opposite party is lender and the borrower or Loaner and the Loanee, thereby this Commission has no jurisdiction to entertain the complaint.  Section 100 of Consumer Protection Act, 2019 contemplates that, the provisions of Consumer Protection Act shall be in addition to all the provisions of the any other law.  No doubt the present complaint was filed in the year 2017 and Consumer Protection Act, 1986 is applicable.  Even in Consumer Protection Act, 1986 it is not specifically barred the complainant to approach the Consumer Commission.  Further the word financing is included in Section 2(4) of Consumer Protection Act, 1986 with regard to the service is concerned.  In the case in hand also the transaction between the complainant and the opposite party was with regard to the finance.  Hence we feel, there is no merit in the contention of the learned counsel for the opposite party in that aspect.

13.    It is the further contention of the learned counsel for the opposite party that, with regard to the cancellation of the agreement the complainant did not inform to opposite party and as per condition of the loan agreement EMI has been deducted prior to the disbursement of the loan.  It is not in dispute that, in total a sum of Rs.1,46,500/- has been deducted from the account of the complainant as Pre-EMIs. 

14.    It is the contention of the learned counsel for the complainant that, opposite party had sanctioned loan amount of Rs.37,08,158/- payable in 228 EMIs at Rs.36,625/- per month and 12 EMIs at Rs.9186/- per month at the rate of 10.15% per annum.  Further subsequent to paying the processing fee of Rs.11,236/- as per the letter of offer cum acceptance dated: 25.03.2015, the opposite party had entered in to a Loan Agreement dated: 28.03.2015.  It is not at all pointed out by the opposite party with regard to non-refund of the Pre-EMI collected, in case the loan has not been disbursed in favour of the borrower in the loan agreement. 

15.    Further in the email sent by opposite party to the complainant it is stated that, the opposite party would inform the request made for refund of the EMI and the same was under review.  Further on 09.07.2016 the complainant had sent email for the refund of the whole Pre-EMIs paid.  Further the complainant had sent legal notice on 03.12.2016 to opposite party seeking for refund of the entire Pre-EMIs amount of Rs.1,46,500/- with interest, but the opposite party did not reply for the said notice.  We feel the opposite party had retained the Pre-EMIs of the complainant without any reason.  Further it is surprise as to why the opposite party retained the Pre-EMIs paid.  Further EMI shall be payable only towards the loan.  In the case on hand, since loan has not been disbursed it is not convinced as to why the Pre-EMIs paid has been retained.  Hence there is deficiency on service on the part of the opposite party.  Accordingly we answer this point in affirmative.

16.    POINT NO.2:-     The complainant claimed refund of the said Pre-EMIs amount of Rs.1,46,500/- with interest at the rate of 18% per annum from the date of payment.  We feel the complainant is entitle for the refund of the said amount.  The interest claimed is highly exorbitant one and 9% interest per month would suffice. 

17.    Further the complainant claimed a sum of Rs.1,00,000/- towards mental agony.  We feel the complainant is entitle for a sum of Rs.20,000/- towards mental agony.  Further the act of the opposite party made the complainant to get issued the legal notice and made the complainant to file the present compliant.  Hence the complainant is entitle for a sum of Rs.10,000/- towards litigation cost. Accordingly we answer this Point partly in affirmative.

18.    POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-

ORDER

The complaint is allowed in part.

The opposite party No.2 is directed to refund a sum of Rs.1,46,500/- to the complainant along with interest at the rate of 9% per annum from the date of respective payments made till realization and a sum of Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost.

The opposite party No.2 shall comply the order within 30 days.  In case, the opposite party No.2 fails to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 21^th Day of April, 2023)                                             

• REKHA SAYANNAVAR)    (RAJU K.S)        (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainant side:

Sri. Harish M Chavan, the complainant has filed affidavit in the form of his evidence in chief.

Documents submitted by the complainant side:

1. Copy of email dt.17.08.2016, 12.08.2016
2. Copy of Letter of Offer Cum Acceptance dt.20.03.2015
3. Copy of Letter dt.05.10.2015 with documents
4. Copy of email dt: 06.08.2016, 02.08.2016, 25.07.2016, 12.07.2016, 08.07.2016, 27.06.2016, 23.06.2016, 17.06.2016, 11.06.2016, 26.05.2016 25.05.2016, 20.05.2016, 12.05.2016, 05.12.2016, 06.08.2016, 30.06.2016.
5. Office copy of Legal Notice dt.03.12.2016
6. Original Postal receipts & acknowledgments
7. Copy of Postal Track Consignment (02 pages).

Witness examined for the opposite party side: 

Sri. Vinay Patil, Deputy Manager – Legal of opposite party has filed affidavit in the form of his evidence in chief.

Documents marked for the Opposite Party side:

• NIL -

• REKHA SAYANNAVAR)    (RAJU K.S)        (SHIVARAMA. K)    
•