ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Party (herein referred to as OP) under Section 12 of the Consumer Protection Act 1986 for the deficiency in service in calculating the interest payable and to direct OP to give proper deduction for the payments made and for Rs.50,000/- as compensation for causing mental agony, physical hardship and harassment and for Rs.25,000/- towards litigation expenses and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; complainant borrowed a sum of Rs.30,00,000/- as housing loan from OP by mortgaging his house bearing Khatha No.125/1B, House No.2272/12/13 of Agara Village Panchayath situated at (BM Kaval) Kengeri Hobli, Bangalore South Taluk measuring 1200 Sq. Feet. The loan amount was to be paid in 180 EMI of Rs.46,170/- each. He was paying the EMI regularly and one Jagadeesh and Mahesh said to be the managers of OP also used to collect installment in cash and issued cash vouchers. OP has not maintained proper accounts.  Apart from making the payment directly he has also paid 31 installments of various amounts amounting to Rs.10,85,260/- whereas the same has not been taken into consideration and given deduction in respect of the payment made. Further he has paid more than Rs.1,00,000/- apart from the above amount for which OP has not at all issued any  receipt and cheated him.  Though several times requested to issue proper account statement in respect of the said loan account to ascertain as to how much amount paid and what is the amount to be paid OP on one reason or the other went on postposing to issue the account statement. Finally on 24.09.2019 he had to issue a legal notice calling upon OP to give  proper deduction for the amount paid towards the loan installments for which OP has given a untenable reply stating that the matter has been referred to the arbitration for which he has not received the notice at all. The practice adopted by OP is opposed to public policy due to which he has suffered huge loss and also undergone mental agony and hardship. OP has adopted unfair trade practice and there is deficiency in service. The cause of action for the complaint arose on 23.03.2019 when he made the last payment of Rs.85,000/- and subsequently when he issued the notice and he prayed to allow the complaint.

3.     Upon the service of notice, OP appeared before the commission and filed its version stating that the complainant was sanctioned Rs.30,00,000/- and in terms of the loan sanction letter, agreement executed by the complainant and required to pay the loan along with interest in 180 EMI for Rs.46,170/-. Complainant was very irregular in paying the installments.  It has admitted the receipt of the amount from their collecting agents in cash and they have issued the vouchers.  The complainant was not in the habit of paying the EMI’s regularly. 

4.     It is contended that the application for loan was made by the complainant his wife Smt.Dakshayini and his son Sri.Chandrashekar for sum of Rs.40,00,000/- and upon verification of the eligibility for the loan a sum of Rs.30,00,000/- was sanctioned and communicated on 09.11.2016 wherein complainant agreed to repay the said loan amount in 180 EMI of Rs.40,170/- each. All of them have jointly executed the loan agreement and deposited the title deed and create a charge of the said property. Complainant has been very irregular in paying the EMI’s, inspite of repeated demands, reminders in person and over phone.  Hence complainant violated the terms and conditions of the loan agreement and hence they had to issue a legal notice dated 21.05.2019 recalling the entire loan amount.  Inspite of it, the complainant failed to pay the same. The matter was referred to the sole arbitrator as agreed by the complainant in the agreement executed and the matter was referred to the arbitrator who adjudicated by issuing notice to the complainant to appear before them on 20.07.2019.  When borrowen did not appear before the sole arbitrator, another notice was also issued on 31.07.2019 calling the complainant and co borrower to appear before the arbitrator on 24.08.2019 still they did not appear. Hence on 21.10.2019 the arbitrator passed an award against the complainant to pay a sum of Rs.32,70,469/- on account of outstanding principle loan amount along with contractual interest and other charges and to recover the same along with 18%  interest and cost of Rs.5,000/-. The said award was passed as per Section 31 of the Arbitration and Conciliation Act 1996. They have maintained the account statement in respect of the loan account of the complainant and a sum of Rs.10,42,270/- paid by them till 10.01.2020 has been taken into account and as on 10.01.2020 the outstanding amount by the complainant - co-borrower is Rs.7,12,190/- and hence there is no deficiency or unfair trade practice on their behalf and prayed the commission to dismiss the complaint.

5.     In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

6.     Our answers to the above points are:-

POINT NO.1 & 2:     IN THE NEGATIVE

                                For the following.

REASONS

POINT No.1 & 2:-

7.     On perusing the complaint, version, documents, evidence filed by  both the parties, it becomes clear that, the complainant along with wife and son borrowed Rs.30,00,000/- lakhs from OP, and agreed to pay along with interest in 180 EMI’s  Rs.46,170/-. The said fact has not been denied by OP. It is the duty of the complainant to show that the amount paid by him has not been credited to his loan account. He has also produced various receipts for having paid the amount to the collecting agents / managers of OP namely Sri.Jagadeesh and Sri.Mahesh.  On cross verification with the account statement produced by OP along with the receipts for having paid the amount as contended in Para 4 of the complaint regarding 31 payments to the extent of Rs.10,81,260/-, the same has been taken to the credit of the account.  When such being the case, it cannot be held that the OP has been unfair to the complainant.

8.     On the other hand, OP has clearly stated that the matter was referred to arbitration and the award has been passed against the complainant and further complainant is due a sum of Rs.7,12,190/- as on 10.01.2020 along with interest.  The complainant has not placed any materials to show that the said calculation is either wrong or not acceptable. The complainant has not at all placed any materials to show that there is deficiency in service on the part of OP to allow the claim of the complainant.  Inspite of giving directions to the counsel for complainant to show that complainant has paid the amount other than what has been paid through the vouchers or receipts produced before this commission, the counsel and complainant have failed to produce the documents to show that they have paid the amount which has not been taken into account.  There is no evidence to that affect. Hence we are of the opinion that, the complainant failed to prove the deficiency in service on the part of OP.  Hence we answer POINT NO.1 IN THE NEGATIVE.  In the result complainant is not entitle any of the reliefs claimed in the complaint and hence we answer POINT NO.2 ALSO IN THE NEGATIVE and  pass the following:

ORDER

1. The complaint is hereby dismissed. No order as to cost.

2. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 06^th day of APRIL 2022)

MEMBER         MEMBER        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of 31 vouchers for having paid Rs.10,85,260/-..

Ex P2: Copy of the Legal notice.

Ex. P3: Copy of the reply.

Ex P4: Copy of the Bank Statement.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri MV Mahesh, Manager  of OP.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the loan application form given by complainant.

Ex R2: Copy of the loan sanction communication letter.

Ex R3: Copy of the acceptance letter.

Ex R4: Copy of the loan agreement.

Ex R5: Copy of memorandum of deposit of title.

Ex R6: Loan recall notice.

Ex R7: Copy of the letter seeking appointment of arbitrator.

Ex R8: Copy of the notice issued by the arbitrator.

Ex R9: Copy of the award passed by the arbitrator.

Ex R10: Copy of loan account statement.

MEMBER         MEMBER          PRESIDENT

RAK*