1.      Heard Mr. Sandeep Deshmukh, Advocate, for the complainants, Ms. Chetna Bhalla, Advocate, for opposite party-1 and Mr. S.B. Prabhavalkar, Advocate, for opposite parties-2 and 3. 

2.      Mr. Anil Lale and Mrs. Bidushi Handique Lale have filed above complaint for quashing demand notices dated 31.05.2019, 20.06.2019, 23.07.2019, 20.08.2019 and Loan Recall Notice dated 07.10.2019, issued by ICICI Bank Limited and directing ICICI Bank Limited to (i) follow the terms and conditions as envisaged in revised home loan sanction letters dated 22.07.2013 and 28.08.2013, (ii) pay Rs. one crore, as compensation for loss of reputation, (iii) pay Rs.25/- lakhs, as the compensation for mental agony and harassment, (iv) pay Rs.10/- lakhs, as the costs of the litigation; and (v) any other relief, which is deemed fit and proper, in the facts of the case.

3.      The complainants stated that ICICI Bank Limited (opposite party-1) (the bank) was a banking company, incorporated under the Companies Act, 1956 and engaged in the business of providing loans against property, home loans, financial assistance etc. to the general public. Rajesh Lifespaces Private Limited and Rajsanket Realty Limited (opposite parties-2 and 3) (the builders) were the companies, registered under the Companies Act, 1956 and engaged in business of development and construction of housing project and selling its unit to the prospective buyers. The builders launched a group housing project in the name of “Raj Infinia”, at CTS No.307/66/A, village Valnai, Taluqa Borivali, Mumbai, in 2013 and made wide publicity of its amenities and facilities. They advertised that the flats could be purchased under “subvention scheme”. On inquiry, Mr. Rananjay Singh, the authorised representatives of the builders and Mr. Gaurav Wig, an officer of the bank, informed that the project was jointly offered by the bank and the builders and as per “subvention scheme”, 20% of sale consideration had to pay by the buyer and 80% by the bank; and the builders would pay EMI on the bank loan, for a period of 36 months or till offer of possession, whichever was later. “Subvention scheme” was available only on the home loan taken from the bank. Mr. Afsar Sheikh, Sr. Branch Sales Manager-Mortgages of the bank, vide email dated 14.06.2013, informed that the bank was funding the project “Raj Infinia” in the ratio of 80:20. Allured with “subvention scheme”, the complainants applied for home loan on 27.06.2013. The bank sanctioned Rs.19445303/- on 27.06.2013 as home loan. In sanction letter dated 27.06.2013, condition-6 was mentioned as “This loan was under developer subvention scheme for the period of 36 months.” The complainants gave emails to Mr. Rananjay Singh, the authorised representatives of the builders and Mr. Gaurav Wig, an officer of the bank, raising their protest against the condition as mentioned in the sanction letter. Then Mr. Gaurav Wig, vide email dated 23.07.2013, informed that the loan was under developer’s subvention scheme for the period of 36 months or possession, whichever is later. Satisfying with the revised sanction letter, the complainants decided to purchase Flat No.1211, in “C” Wing and deposited Rs.4861325/- towards 20% of sale consideration with the builders and Rs.75000/- towards loan processing fee with the bank on 01.08.2013. The bank asked to sign blank documents including standard format of loan agreement (Facility Agreement) on 22.08.2013, without allowing to read it. In columns-8 and 9, (relating to due date of commencement of EMI and payment of first EMI), “PD” (Possession Date) were mentioned. The bank issued a Revised Home Loan Sanction Letter on 28.08.2013, in which, attached Terms and Conditions contained Condition-6 as “This loan is under developer’s subvention scheme for the period of 36 months or till possession, whichever is later.” The bank issued letter dated 30.08.2013, for disbursing Rs.18338903/- to the builders. The bank gave cheque no.213343 dated 31.08.2013 of Rs.12832137/- to the builders. On encashment of this cheque, the builders executed agreement for sale dated 06.09.2013, in favour of the complainants, stating under clause-9 that interest on the bank loan would be borne by the builder till handover of the possession. The bank showed debit of Rs.5506766/- vide cheque no.213344 dated 31.08.2013 and credited this amount again in the loan account of the complainants on 03.09.2013 but charged interest on it. Reserve Bank of India, vide Circular DBOD.BP.BC. No.51/08.12.015/2013-14 dated 03.09.2013, issued advisory to all the schedule commercial banks that housing loans to individuals should be closely linked to the stages of construction of the housing project as the banks run disproportionately higher exposures with concomitant risks of diversion of funds under 80:20 or 75:25 schemes. The builder supplied Photostat copy of agreement for sale dated 06.09.2013, to the complainants on 14.09.2013, then they noticed that due date of possession was not mentioned in it. On inquiry, Mr. Vishal Doshi informed that possession would be delivered in the year 2016. The period of 36 months was likely to expire in June, 2016, as such, the complainants consistently started inquiry for possession from April, 2016 to October, 2017 but the builders gave some evasive time for possession and not the deadline. As the construction was unreasonably delayed, the complainants requested the builders to permit them for withdrawing from the agreement and return their money with interest. Then a settlement agreement was executed on 14.08.2018 between the complainants and opposite party-2, under which, the builders cancelled the agreement for sale and undertook to return Rs.4861325/- with interest to the complainants and satisfy the loan of the bank of Rs.18338903/- with interest and for-closure charges. The bank did not issue any demand letter for EMI of the loan to the complainants till April, 2019. The complainants received calls in May, 2019, for depositing EMI, then complainant-1 discussed the issue with Ms. Jaya Kachhwaha, authorised officer of the bank. The bank gave emails dated 30.05.2019, 31.05.2019 and 20.06.2019, informing that the builders had not paid EMI from two months and demanding Rs.149069/- towards EMI. The complainants, vide email dated 20.06.2019, replied that EMIs were not payable by them as they did not receive possession of the flat. The builders did not abide with the timelines as mentioned in settlement agreement dated 14.08.2018 then the matter was again discussed with the builder and a Supplementary Settlement Agreement dated 24.06.2019 was executed between them. The builders gave Cheque nos.468069, dated 15.06.2019 of Rs.4861325/-, 468072 dated 10.07.2019 of Rs.2099846/- in favour of the complainants and 468073 dated 10.07.2019 of Rs.18338903/- in favour of the bank. Cheque nos.468069 and 468072, given to the complainants, were dishonoured when presented for encashment. The complainants filed criminal complaint under Section 138 of Negotiable Instruments Act and also filed a complaint before Maharashtra Real Estate Regulatory Authority. The bank issued a letter dated 09.07.2019, to the complainants that lien had been marked on the saving account of complainant-2 with the bank on account of dues against home loan. Thereafter, debited all the money from saving account of complainant-2 and credited to the loan account. The bank again issued demand letter dated 23.07.2019 and emails dated 20.08.2019 and 04.10.2019, demanding Rs.6481768/-. The complainants replied to the above emails on 06.10.2019 through email. The bank issued Loan Recall Notice dated 07.10.2019 and directed to pay Rs.18627378/- within 7 days. Then this complaint was filed on 08.11.2019, alleging unfair trade practice.     

4.      ICICI Bank Ltd. (the bank) filed its written reply on 14.01.2020 and contested the complaint. The bank stated that the complainants approached the bank in July, 2013, for grant of home loan of Rs.19445303/-. On the basis of the documents and credential submitted by the complainants, the bank sanctioned the home loan of Rs.19445303/- 22.07.2013. Thereafter, Facility Agreement dated 22.08.2013 was executed between the parties.  Simultaneously the complainants also executed an “Undertaking” on 22.08.2013, in which, it has been clearly mentioned in case of non-payment and untimely payment of money by the developer to ICICI bank during the period of 36 months or till the date of completion of the project or thereafter the borrowers agrees and undertakes to pay the said money to the bank promptly without any protest or demur, as and when required by the bank. The complainants are literate persons. They read and fully understood the terms and conditions of the Facility Agreement and the Undertaking.  Out of aforesaid sanctioned loan Rs.18338903/- was disbursed in accordance with the instructions received from the complainants. The loan was repayable in 240 months along with interest in monthly instalments. Interest was fixed @ 11% per annum under the adjustable rate which I-Base plus margin of 0.65%. It was also agreed that till such time entire loan amount is not disbursed, there was only payment of Pre-EMI.  In view of the terms of the Facility Agreement and the undertaking given by the complainants, the complainants are liable to pay EMI/loan amount in case builder failed to pay it.  When the builder stopped payment of EMI, then e-mail message was given to the complainants on 30.05.2019 and demand letter was sent on 31.05.2019, for paying EMI.  However, the complainants instead of depositing the EMI has raised a protest against the demand. The bank also gave reminders to the complainants on 20.06.2019, 23.07.209, 20.08.2019 and 04.10.2019 but they did not adhere to the demand/reminders, therefore, loan recall notice of 07.10.2019 was issued.  It has been denied that the bank had any agreement with the developers for promotion of the project. The complainants directly approached to the bank for sanction of the loan. There was neither unfair trade practice nor deficiency in service by the bank. The complainants were defaulters; therefore, the loan recall notice was issued on 07.10.2019. The circular of Reserve Bank of India of 03.09.2013 was issued subsequent to the sanction of the loan to the complainants, as such, it is not applicable to this loan. The loan was sanctioned on the application of the complainants and disbursed on their instructions, the bank is entitled to realise the loan amount as per Facility Agreement and Undertaking dated 22.08.2013. The complaint is liable to be dismissed.     

5.      Rajesh Lifespaces Private Limited (opposite party-2) filed its written reply along with IA/1575/2020, for condoning delay. Rajsanket Realty Limited (opposite party-3) filed its written reply along with IA/1571/2020, for condoning delay. This Commission, vide order dated 23.07.2020, rejected IA/1571/2020 and IA/1575/2020 and consequently written replies of opposite parties-2 and 3 were not taken on record.

6.      The complainants filed Affidavit of Evidence of Anil Lale and documentary evidence on 15.09.2022. Opposite party-1 filed documentary evidence through E-dakhil on 01.03.2021 and same documents have been filed through IA/2265/2021, which is allowed and the documents are taken on record.     

7.      We have considered the arguments of the counsel for the parties and examined the record. The complainants took plea that there was an agreement between the bank and the builders for promotion of the project “Raj Infinia”. This fact has been denied by the bank. The complainants filed Memorandum of Understanding dated 01.07.2013, executed between Sanket International Ltd and ICICI Bank Limited. A perusal of this document does not indicate that the builder had taken liability of paying EM till delivery of possession. Clause 9 of sale agreement dated 06.09.2013, between the complainants and builders, mentioned that the promoters had entered into an agreement with ICICI Bank Ltd. to promote subvention scheme popularly known as 20:80 for the benefit of their purchasers. Under this clause, it has been disclosed that bank was ready to give loan to the extent of 80% of the cost of the flat under subvention scheme. It does not mean that the liability of the complainants to repay the loan/EMI was absolved till delivery of possession as there was no such contract either between the bank and the complainants or between the bank and the builders. As such, the argument in this respect cannot be accepted.

8.      The complainants relied upon email dated 23.07.2013    and 28.08.2013. In these e-mails, it has been mentioned that “This loan is under developer subvention scheme for the period of 36 months or possession, whichever is later.”  In this sentence, it has been clearly mentioned that the loan is under developer subvention scheme and not under any scheme of the bank.  Similar sentence is incorporated in the agreement for sale between the complainants and the builder. The complainants in email dated 20.06.2019 admitted that the builders were paying pre-EMI till April, 2019.  It is only when the complainants give notice to the builders for withdrawing from the agreement for sale and returning their money and settlement agreement was executed between the complainants and the builders on 14.08.2018, then the builder stopped payment EMI.

9.       It is not disputed that the complainants took the home loan and executed Facility Agreement.  They are liable to repay it in accordance with Facility Agreement, for which the complainants also executed an Undertaking, in which they took liability to pay the EMI if the builder stopped payment of it. Therefore, the complainants cannot deny the payment of EMI on the ground that under Sale Agreement the builders were liable to pay EMI till the date of delivery of the possession.  Admittedly, the complainants withdrew from the Sale Agreement in 2018, therefore, there was no question of delivery of possession to them.

10.    So far as the Circular of Reserve Bank of India dated 03.09.2013 is concerned, it is advisory in nature and will have prospective application.  The loan of the complainants was already sanctioned and Facility Agreement as well as Undertaking were executed on 22.08.2013.  The circular will have no effect on it. 

ORDER

          The complaint has no merit and it is dismissed.