BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Complaint Case no. 26 of 2021
Date of Institution: 04.02.2021
Date of Decision: 13.03.2024.
Jitender aged about 30 years son of Shri Ram Avtar, resident of H. No. 575, Prem Gali, Kirti Nagar, Sirsa, Tehsil and District Sirsa.
………Complainant.
Versus
1. Dewan Housing Finance Corporation Ltd. (DHFL) Dabwali Road, Opposite Maruti Suzuki Agency, Sirsa, Tehsil and District Sirsa through its authorized person.
2. Dewan Housing Finance Corporation Ltd. (DHFL) Kamala Palace, First Floor, Plot No. 57-60, Red Square Market, Hisar through its authorized person.
3. Dewan Housing Finance Corporation Ltd. (DHFL) Registered Office at Warden House, Sir P.M. Road, Fort, Mumbai- 400001 through its authorized person.
……… Opposite parties.
Complaint under Section 35 of the Consumer Protection Act, 2019.
Before: SH. PADAM SINGH THAKUR………. PRESIDENT
SMT. SUKHDEEP KAUR……………..MEMBER
Present: Sh. Dipesh Gupta, Advocate for complainants.
Sh. Amit Kumar, Advocate for opposite parties.
ORDER
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred as OP).
2. In brief, the case of complainant is that complainant had applied for housing loan with the ops in the month of March, 2018 and had completed all the necessary and requisite formalities in this regard and on 29.03.2018 ops had sanctioned a loan of Rs.7,95,979/- in favour of complainant and same was also disbursed to him. That as per terms and conditions of the loan agreement, the complainant had to repay the loan amount to the ops in 30 years in easy monthly installments of Rs.6240/- each. The complainant started making payment of monthly installments to the ops time to time and he was never declared defaulter in this regard. That during this period on 31.12.2018 the complainant had received a sum of Rs.2,67,280/- as subsidy in his loan account which has been adjusted by the ops in the loan account of complainant and after adjustment of the subsidy amount, a sum of Rs.5,31,297/- still remained payable by complainant to the ops and further monthly installment of the complainant was also reduced from Rs.6240/- to Rs.4585/-. That thereafter in the month of July, 2020 the complainant wanted to deposit the entire outstanding amount with the ops at once and in order to know about the fact as to how much amount is still to be paid by him, he contacted the ops in this regard. That vide letter dated 31.07.2020, the complainant was informed that still a sum of Rs.5,31,297/- is due against him to clear his loan account and in case said amount is deposited by him with the ops, his loan account shall be cleared and no amount will remain due against him. It is further averred that thereafter complainant in order to clear his account with the ops had also got sanctioned another loan from other financial institution and issued cheque of Rs.5,31,297/- in favour of ops but to the surprise of complainant the ops had denied to accept the same stating that amount of subsidy has been withdrawn back from the account of complainant and that by payment of said cheque, the account of complainant will not be cleared meaning thereby that in order to clear his account, the complainant will have to pay a sum of Rs.7,98,577/-. However, the complainant was/is not at all liable to make the payment of any such further amount to the ops and was/is legally entitled to get adjusted the amount of subsidy in his loan account and the ops have done so intentionally and deliberately only in order to harass and humiliate the complainant and further to grab money from him. That complainant thereafter made a number of requests to the ops in this regard but the ops neither gave any satisfactory response to him nor they are ready to allow the complainant to deposit the said amount and have caused unnecessary harassment, gross negligence, deficiency in service, unfair trade practice and financial losses to the complainant and the very purpose of getting sanctioned the loan from other financial institution has also not been served. Hence, this complaint seeking direction to the ops to accept the cheque of Rs.5,31,297/- and to clear the loan account of complainant and to issue no objection certificate, also to pay a sum of Rs.1,00,000/- as compensation for unnecessary harassment, Rs.50,000/- as penalty on account of gross negligence etc. and also to pay litigation expenses to the complainant.
3. On notice, ops appeared and filed written statement taking preliminary objections that erstwhile DHFL was a company incorporated under the provisions of the Companies Act, 1956. The op is a housing finance company registered with National Housing Bank and also regulated by Reserve Bank of India (RBI). Being the regulator of erstwhile DHFL, owing to governance concern, RBI superseded the Board of Directors of DHFL on 20th November, 2019 and appointed the Administrator to manage the affairs of the company. On 29.01.2019 RBI filed a company petition bearing No. CP(IB)-4258/MB/2019 before the Hon’ble National Company Law Tribunal, Mumbai (NCLT) under the Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Provider and Application to Adjudicating Authority) Rules 2019 inter alia to initiate Corporate Insolvency Resolution Process against ops under the Insolvency and Bankruptcy Code 2016. That accordingly, NCLT vide order dated 03.12.2019 commenced Corporate Insolvency Resolution Process against DHFL and declared moratorium under Section 14 of above said Code on DHFL effective from the date of filing of the petition i.e. 29.11.2019. As such institution or continuation of pending suits or any proceedings against the Corporate Debtor DHFL, including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or any other authority is prohibited. It is further submitted that during the course of CIRP, bids were submitted by various prospective resolution applicants and the Committee of Creditors of the DHFL constituted under the provisions of the Code selected and approved the resolution plan submitted by Piramal Capital and Housing Finance Limited. After obtaining NOC from the RBI, the said resolution plan was submitted to the NCLT seeking its approval under Section 31 of the Code. Subsequently, the NCLT vide its order dated 07.06.2021 has approved the Resolution Plan submitted by the Successful Resolution Applicant. That thereafter an appeal was filed by the Successful Resolution Applicant before the Hon’ble National Company Law Appellate Tribunal ( NCLAT) seeking clarification of the order dated 07.06.2021 passed by the NCLT in terms of waiver of any obligations/ liabilities of the DHFL and the Hon’ble NCLAT has clarified that all the dues shall stand extinguished for the period prior to the date the NCLT granted approval of the Resolution Plan under S.31 of the Code. That in view of the provisions of S.32A of the Code no action can be taken against DHFL and the liability of ops for the offences alleged to have been committed has ceased and no relief can be granted against ops in the present complaint pursuant to the provisions of the Code. It is further submitted that at the time of voting by the CoC upon the Resolution Plan on 15.01.2021 and the obtaining of RBI’s no objection certificate on 16.02.2021, if the complainant would have made any claim that claim should have been formed part of the entire pool of claims submitted to the Administrator. But as no claim was made by the complainant, the claim made in complaint could not became part of the resolution plan, hence liable to be extinguished in terms of the judgment passed by Hon’ble Supreme Court in Ghanshyam Mishra and sons Versus Edelweiss Asset Reconstruction decided on 13.04.2021. It is further submitted that there exists no mechanism for payments during CIRP to any creditors, more so there is no right to any creditor to prefer and agitate claims outside the IMC for payment. That BIC has a non-obstante clause, therefore, as per Sections 63 and 231 of the IBC the provisions of the IBC shall have an over-riding effect on the provisions of the other law for the time being in force and present complaint against the ops is not maintainable. It is further submitted that present complaint deserves to be dismissed on the ground of non joinder of necessary parties as well as concealment of pertinent facts. The complainant has filed the complaint in individual capacity whereas loan in question was availed by complainant as well as Smt. Priynka (Co-borrower), therefore, without the due consent of the co-borrower, the present complaint is not maintainable for non joinder of necessary parties. Other preliminary objections regarding cause of action, concealment of true facts, maintainability and jurisdiction have also been taken.
4. On merits, it is submitted that complainant alongwith Smt. Priyanka Jitender approached the ops for home loan for the purchase of property and ops sanctioned a loan of Rs.8,48,130/- at variable rate of interest and further on the request of complainant and Smt. Priyanka had given a revised letter of offer cum acceptance for Rs.7,95,979/- at variable rate of interest which was accepted, agreed and acknowledged by the complainant and his wife by signing on the same in acceptance. The said period for payment of loan amount has not yet been elapsed. The complainant is a regular defaulter as he has not paid the EMIs timely. It is further submitted that PMAY scheme are squarely within the domain of Government of India under the preview of National Housing Bank and not under the power or authority of ops and as such allegations attributed against the ops are denied as devoid of any merit. For availing the benefit under PMAY scheme, the complainant has to fulfill all the relevant criteria prescribed under PMAY norms/ guidelines prescribed by the Govt. of India. Further during audit it was revealed that on 31.12.2018 benefit of subsidy of Rs.2,67,280/- was credited/ adjusted in the loan account of complainant. It is further submitted that benefit of PMAY subsidy under PMAY scheme would pass only when the property must be purchased by a female individually or jointly whereas in the present case sale deed was executed in favour of male member only. Accordingly, the answering ops sent a recall notice through speed post dated 13.07.2020 and debited back the loan account on 11.08.2020 in the absence of response/ reply to the recall notice. That complainant has made false allegation against the ops with the malafide intention of obtaining wrongful gain and causing wrongful loss to the ops. It is further submitted that benefit can be passed only where there is at least one female owner but inadvertently, PMAY subsidy was wrongly credited in the loan account of complainant due to the reason that there was female co-borrower associated with the loan account and assuming that the female co-borrower must have ownership right upon the property purchased by the complainant. The complainant was not eligible for the subsidy amount and consequently it was requested and informed to the complainant that benefit of PMAY subsidy which was given to him inadvertently has been recalled/ reversed vide letter dated 13.07.2020 and he has to clear/ pay all the outstanding amount. The ops refused to accept the said cheque of Rs.5,31,297/- because after checking the loan amount, loan amount is showing as Rs.7,98,577/- as his CLSS subsidy amount of Rs.2,67,280/- was recalled/ returned on 11.08.2020 for the reasons stated above. It is also submitted that complainant is liable to pay the entire outstanding amount to the ops. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
5. The complainant in evidence has tendered his affidavit Ex.C1 and documents Ex.C2 to Ex.C13.
6. On the other hand, ops have tendered affidavit of Sh. Uttam Singh, authorized representative as Ex. OP1/A and documents Ex.OP-1 to Ex. OP-5.
7. We have heard learned counsel for the parties and have gone through the case file carefully.
8. The case of the complainant is that initially subsidy amount of Rs.2,67,280/- was given in the loan account of complainant by the ops on 31.12.2018 and vide letter dated 31.07.2020 he was informed by the ops that still a sum of Rs.5,31,297/- is due against him to clear his loan account. The complainant has further alleged that in order to clear his loan account i.e. to pay outstanding loan amount of Rs.5,31,297/- with the ops also got sanctioned another loan from other financial institution. Thereafter he issued cheque of Rs.5,31,297/- in favour of ops but ops denied to accept the same stating that amount of subsidy has been withdrawn from the account of complainant and stated that he will have to pay a sum of Rs.7,98,577/- in order to clear his loan account and as such ops have committed gross negligence, deficiency in service and unfair trade practice towards the complainant as after long period subsidy amount has been withdrawn by the ops and he had already got sanctioned loan amount from another financial institution. On the other hand, ops have taken a specific plea that during audit it was revealed that on 31.12.2018 benefit of subsidy of Rs.2,67,280/- was credited/ adjusted in the loan account of complainant. However, the benefit of PMAY subsidy under PMAY scheme is to pass only when the property is/ must be purchased by a female individually or jointly whereas in this case sale deed was executed in favour of male member only and as such ops sent a recall notice dated 13.07.2020 and debited back the loan account on 11.08.2020 in absence of response/ reply to the recall notice. The complainant has not placed on file copy of any sale deed of the property to prove the fact that in whose name property was purchased and as such the plea of the ops that property was purchased only in the name of male member is to be believed and as complainant was not fulfilling the above said criteria of the scheme, therefore, subsidy which was wrongly given to the complainant has been withdrawn and as such complainant cannot take advantage of inadvertent mistake of the ops while crediting subsidy to the complainant when he himself has not fulfilled the criteria of the said scheme. Moreover, the Hon’ble National Company Law Appellate Tribunal, Principal Bench, New Delhi in Company Appeal (AT) (Insolvency) No. 467 of 2021 titled as Piramal Capital & Housing Finance Ltd. Versus The Administrator, Dewan Housing Finance Corporation Ltd. and another vide order dated 12.07.2021 has clarified that no personal will be entitled to initiate or continue any proceedings in respect to a claim which is not part of the resolution plan. Further more, Hon’ble National Consumer Disputes Redressal Commission in case titled as Choudhary Ashok Yadav vs. Rewari Central Co-op. Bank and anr. RP No.4894 of 2012 decided on 8.2.2013 has held that “The principal question is that of grant of subsidy. The order passed by the learned State Commission is supported by authorities, which clearly go to show that the subsidy offered to be paid is not service as defined in Consumer Protection Act, 1986. Consequently, the petitioner/ complainant is not a consumer.” In the said case reference of another judgment of Hon’ble National Commission passed in case titled as Himachal Weavers Pvt. Ltd. Vs. Himachal Pradesh Financial Corporation & Ors. III (1993) CPJ 267 (NC) was also given in which also it was held that “subsidy offered to be paid is not ‘service’ as per the Act and therefore, the complainant is not a ‘consumer’ as defined under the Act.” The above said view of Hon’ble National Commission was also relied upon by Hon’ble Madhya Pardesh State Consumer Disputes Redressal Commission in case titled as Kashmir Singh Gill vs. Prathamik Krishi Sakh Sanstha, Appeal No. 222 of 2017 decided on 7.12.2022. The said authorities are also fully applicable in this case and as such complaint deserves dismissal on all above said discussed angles.
9. In view of our above discussion, the present complaint is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced: Member President,
Dated: 13.03.2024. District Consumer Disputes
Redressal Commission, Sirsa.
