BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU. (ADDL. BENCH)
DATED THIS THE 20th DAY OF MARCH, 2023
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, LADY MEMBER
COMPLAINT NO.350/2018
Sri.K.S.Jayasimha,
S/o late K.V.Sampath
Aged about 57 years,
No.286, Champakadama Manjesha
Road No.8, Golden Jubilee ….Complainant
Encalve, Defence Layout,
Vidyaranyapura,
Bengaluru-560 097
(By Vallari Associates, Advocate)
-Versus-
ICICI Bank Ltd,
No.47, 3rd Floor,
5th Cross, 5th Main,
Malleshwaram,
Bengaluru-560 003
Reptd by its Branch Manager,
… Opposite party/s
Also at
Corp. Off:- ICICI Bank Towers,
Banda-Kurla Complex,
Mumbai-400 051,
Reptd by its Manager,
(By Sri.S.Ramakrishnan, Advocate)
O R D E R
BY SMT.SUNITA C.BAGEWADI, MEMBER
The complainant filed this complaint against the Opposite Party alleging deficiency in service and unfair Trade Practice and prays to direct the Opposite Party to pay the equivalent amount of Rs.38,38,252/- along with 12% interest per annum from the date of pre-closure till the date of payment and Rs.5,00,000/- towards financial loss, mental agony etc. and to cancel the loan agreement vide No.LBBNG00003908837 sanctioned in favour Sri.H.B.Shivakumar in respect of property and to return the original title deeds of the property along with cost to the complainant and grant such other relief.
2. The brief facts of the complaint is as under:-
The complainant is the sole and absolute owner of the property bearing No.32,BBMP Khatha No.118, Dasarahalli village assessment No.48/1, Dasarahalli CMC ward No.16, presently comes under the jurisdiction of BBMP ward No.15. Having purchased from its earlier owner Sri.Nagesh.R by virtue of absolute sale deed dated 8-11-2013 which is registered in document No.PNY-1-06241-2013-14 stored in C.D.No.PNYD568 dated 12-11-2013 in the office of the Sub-Registrar, Rajajinagar (Peenya), Bengaluru for a total sale consideration amount of Rs.46,50,000/- and the complainant had paid the stamp duty on the said market value of Rs.46,50,000/- to a sum of Rs.2,60,400/- to the concerned Sub-Registrar, vide P.O.No.032914 dated 7-11-2013 drawn on ICICI Bank, Malleshwaram, Bengaluru towards the Registration fee.
The complainant further submits that in order to purchase the aforesaid property had availed the individual home loan from the Opposite Party. On 31-10-2013 the Opposite Party bank had sanctioned a home loan to a sum of Rs.38,38,252/- repayable for a period of 108 months tenure (9 years) under EMI of Rs.55,082/- monthly installments, at the rate of 10% interest, under a loan agreement No.LBBNG00002025476 in respect of the property and Mortgaged the said property receiving all the original documents which are still in the custody of the Opposite Party.
The complainant further submits that at the time of purchase of the property the Opposite Party bank had issued the cheque bearing No.13802 dated 31-10-2013 drawn on ICICI bank, Mumbai branch to a sum of Rs.34,43,100/- as part sale consideration amount towards the entire sale consideration amount of Rs.46,50,000/- apart from the actual loan amount sanctioned which is a sum of Rs.38,38,252/- and the entire balance sale consideration amount to a sum of Rs.12,06,900/-had been paid by the complainant through cheque and a sum of Rs.78,300/- by way of cash under the absolute sale deed dated on 8-11-2013.
The complainant further submit that he has paid a sum of Rs.19,28,500 towards EMI for the period of 35 years and was due for the period of 11 months as on Oct.2017. That during the pendency of the loan period, the Opposite Party bank by playing fraud in collusion with the purchaser one Sri.H.B.Shivakumar and mislead the Sub-Registrar, Peenya, Bengaluru. In order to defraud the complainant of his lawful ownership and title over the property in question and to mis-appropriate of the valuable money paid towards EMI to the Opposite Party bank.
The complainant further submits that the Opposite Party bank in order to cheat the valuable money of the complainant incurred in purchase of the property all of a sudden had approached the complainant and induced to sell the property for valuable sale consideration amount to the intending purchaser during the 46th month EMIs period as on Oct.2017. The complainant believing in the request and guidance of the Opposite Party in order to settle the loan amount and to get sale proceeds for good marketable price had come forward for foreclosure of loan amount.
The complainant further submits that the Opposite Party in spite of payment of the EMIs and having come forward to sell the property. The Opposite Party all of a sudden called the complainant under a guise to discuss the sale proceeds with the purchaser and for entering/executing into a sale agreement with the purchaser and for entering/executing into a sale agreement with the intending purchaser in respect of the property for closure of loan amount. That at the request of the Opposite Party, the complainant had visited the Sub-Registrar office at Peenya for discussing with the sale proceeds and to settle the advance cum sale consideration amount for pre-closure of loan amount by entering into sale agreement as per the advice of the Opposite Party bank officials.
The complainant further submits that the Opposite Party bank officials without disclosing the document which is to be executed in respect of property and having not communicated the intending purchaser and neither come forward to discuss the sale proceeds in respect of the property had fraudulently induced the complainant that the said document is a single agreement to be executed in respect of the property towards pre-closure of the loan amount of the complainant with the bank and had made the complainant to executed the said document without information, knowledge and consent of the complainant in total against the terms and conditions of the loan agreement. The Opposite Party bank by defrauding the complainant not only remortgaged the property but fraudulently executed the absolute sale deed dated 25-9-2017 in favour of intending purchaser one Sri.H.B.Shivakumar S/o Sri.H.G.Boregowda without disclosing the same. Upon verification the complainant had come to know that the bank officials have planned and in collusion with intending purchaser and misleading the Sub-Registrar have defrauded and cheated the complainant of his property and falsely executed the Absolute Sale Deed dated 25-9-2017 in favour of the intending purchaser, for a valuable sale consideration amount of Rs.34,64,941/-. Further the complainant demanded for cancellation of the Absolute Sale Deed dated 25-9-2017 and also questioned the amount paid by the complainant towards EMI’s towards loan amount, which amount has been misappropriated and cheated and defrauded by the Opposite Party Bank officials and the complainant demanded for immediate settlement of actual market value as per the Absolute Sale Deed dated 8-11-2013 paid by the complainant in respect of the property and also demanded the amount paid by the complainant towards EMI’s at the earliest.
The complainant further submits that to repeated demands and personal approaches of the complainant, the Opposite Party bank officials have all of a sudden issued the Foreclosure letter 4-10-2017 after 9 to 10 days of execution of Absolute sale deed dated 25-9-2017 in respect of loan account No.LBBNG00002025476 for having settled the loan amount in favour of the complainant in respect of the property in question. Legal notice on the Opposite Party on 25-10-2017 called upon to settle the actual sale consideration amount has paid as per absolute sale deed dated 8-11-2013 for a total sale consideration amount of Rs.46,50,000/- and also to the EMIs paid to a sum of Rs.19,28,500/- under the loan agreement no.LBBNG00002025476 along with interest . The Opposite Party has received the legal notice and has given evasive reply to the complainant and not come forward to settle the issue. The Opposite Party has caused huge monetary loss, mental agony and hardship to the complainant. Hence, this complaint.
3. After service of notice, the Opposite Party has appeared through its counsel and filed objections and denied all the allegations made by the complainant and further contended that the Opposite Party has sanctioned a loan of Rs.49,88,252/- to the complainant in Sept.2013 with adjustable rate of interest vide loan account No.LBBNG00002025476 floating rate of interest. Further contended that after taking the loan the complainant has failed to pay the EMIs regularly hence recall notice was sent to the complainant and request him to make payment of outstanding dues. However the complainant has not responded, he is defaulter in payment of EMIs. Subsequently Mr.Shivakumar.H.B, shown interest in purchasing the property of the complainant and after negotiation both parties has executed the sale deed. Hence there is no fraud/collusion on the part of the Opposite Party bank and prays for dismissal of the complaint.
4. The complainant and Opposite Party have not filed their affidavit evidence, in spite of sufficient opportunity has been granted. The complainant and Opposite Party were absent from long time and not submitted their arguments.
5. On perusal, the following points will arise for our consideration;
(1) Whether the complaint is deserve to be allowed?
(2) What order?
6. The findings to the above points are;
(1) In the negative
(2) As per the final order
R E A S O N S
7. Point No.1:- Perused the ordersheet, the complainant has filed this complaint before this Commission and after service of the notice, the Opposite Party has appeared through its counsel and filed version, subsequently the matter was posted for affidavit evidence of complainant. However, in spite of sufficient opportunity has been granted to the complainant, even though on 11-7-2022 as per request of advocate for complainant, the time was granted on payment of cost of Rs.1,000/-, the complainant has not led his evidence. Without evidence affidavit, there is no weightage to the allegations made by complainant and evidence affidavit can be used to establish the facts/as prove the matter. The complainant has produced certain documents but mere allegations in the complaint and producing the documents are not sufficient to prove the facts without evidence affidavit. Mere filing of the complaint, without evidence affidavit is not sufficient to prove the deficiency of service on the part of the Opposite Party. Hence, considering the facts discussion made here, we are of the opinion that the complaint is dismissed for non-prosecution. Accordingly, the complaint is dismissed.
8. Point No.2: In view of above discussion, we proceed to pass the following:-
20-3-2023
O R D E R
The complaint is hereby dismissed. No order as to costs.
Send a copy of this order to both parties.
MEMBER JUDICIAL MEMBER
