O R D E R
By Sri.C.T.Sabu, President
Facts in detail : 1st and 2nd complainant’s are represented y Power of Attorney. Opposite parties are ICICI Bank Ltd. Complainant’s case is that the builder M/s.Sobha Ltd. (Sobha Developer Ltd.) had allotted a flat in Sobha city at Bangalore on 15/10/13 to them. A housing loan was arranged with the 2nd opposite party under loan A/c No.LBTHR00002034767 for a sum of Rs.95 lakhs. A loan agreement was entered into executing necessary documents by the Power of Attorney. As per agreement complainants had to pay 25% of the total amount and 75% will be paid by the opposite parties to the Sobha Ltd. as scheduled in the agreement. Complainants have already booked the flat paying Rs.5,00,000/-. First instalment of Rs.27,91,196/- was due on 14/11/2013 to be paid by the opposite party. The required margin money of Rs.10,20,000/- was also paid in advance by the complainant to facilitate the payment by the opposite party. As alleged by the complainants, the opposite parties neither paid the amount due on 14/11/2013 nor informed the complainant about their non-payment. Opposite parties are fully aware that 24% interest will be fetched on defaulting the dues and Rs.3,02,000/- more was paid by the complainants on 25/11/13 to the Sobha Ltd. as advised by the opposite parties to facilitate payment by them. The opposite parties did not make any payments in time and was not bothered to inform the nonpayment Rs.14,71,125/- was overdue and the next instalment was also due on 19/1/14. In the statement of account provided by the Sobha Ltd. they had charged an amount of Rs.1,929.40 towards interest on default. Out of the total dues of Rs.25,47,578/- excluding interest, only a sum of Rs.17,71,196/- was paid under a draft dated 31/12/13 by the opposite party to Sobha Ltd. on 13/1/14. On going through the account statement dated 4/2/14 of Sobha Ltd. they had debited Rs.29,969.25 on 31/12/13 and Rs.18,907.25 on 31/1/14 towards interest on the overdue amount. Subsequently the opposite party debited Rs.7,66,334/- to the loan a/c of the complainant on 12/2/14 towards payment to Sobha Ltd. and the draft for the same was reached at Sobha Ltd. only on 27/2/14. Actually the amount due to Sobha Ltd. was Rs.7,96,351.96. Therefore Sobha Ltd. was compelled to charge Rs.14,552.94 on 28/2/14 as interest due to short payment by the opposite party. As alleged by the complainants, no information was given to them by the opposite party. Knowing fully well that on default Sobha Ltd. will charge interest at the rate of 24% the opposite parties have committed repeated defaults for the reasons best known to the opposite parties. Aggrieved by the above acts of the opposite parties issues like short payments and interests and charging of pre EMI were taken up with the customer care division demanding a reimbursement of Rs.62,465.65 being the interests and pre EMI wrongly debited. It was replied by the customer care division that at the time of sanction the LTV was taken as 80% but at the time of disbursal it has come down to 75% hence the short payment. Complainants vehemently objects that it is not all correct and as per the sanction the margin was 25%, out of this 12.5% has to be paid immediately and the balance has to be paid by the complainant at the final stage. Accordingly Rs.15,20,000/- was paid by the complainants initially. Another reason raised by the opposite parties for short payment was based on technical valuation. Complainants traverse that this is also incorrect. If there was such a valuation the same should have been brought to the attention of the complainants by which necessary follow up could have been taken up with the Sobha Ltd. Lack of co-ordination and the corresponding delay in sending the draft in time and the delay in execution of Tripartite Agreement (TPA) are clearly manifesting lapses on the opposite parties and also they admits that due to those lapses maximum inconveniences were caused to the complainants. Complainants submitted that subsequent instalments were also defaulted. A sum of Rs.10,96,382/- was due on 16/4/2014 and Rs.93,407/- was overdue on 28/2/14. Opposite parties had paid only Rs.10,42,007/- under a draft dated 20/3/14 and repeated the same lapse without information to the complainant. On getting information from the Sobha Ltd. the matter was again taken up with the opposite party and on 30/3/24 a message was received by the complainant from one Wilfred George an official of opposite party conveying that he will contact Sobha Ltd. and rectify the mistakes as soon as the year end work is over and assured to co-ordinate with them before releasing the payments in future. Complainants allege that their request for reimbursing the late payment charges was not considered by the opposite party so far. Again the following short payments were made by opposite parties. As against Rs.10,96,381.66/- the opposite party paid only Rs.10,95,576/- on 31/5/14. The payment due on 3/11/14 was made only on 3/12/14 by the opposite party though the complainant’s a/c was debited on 4/11/14. A mistake was crept in to by wrongly mentioning the payee’s name as Sobha Developers Ltd. instead of Sobha Ltd. Sobha Ltd. returned the draft and corrected draft was received only on 2/12/14 and on late payment Sobha Ltd. charged a sum of Rs.2,883.64 30/11/14, Rs.1500.60 on 31/12/14 and Rs.37.48 on 30/1/15 as interest. The complainant had paid Rs.4,500/- on 16/1/15 to clear the interest. Even after repeated requests opposite party was not prepared to settle the issues. A lawyer notice was sent on 22/12/14 to the opposite parties to reimburse the interest paid by the complainant. The opposite party in their reply dated 7/1/15 conveyed that they would be unable to accede to the requests to reverse the interest amount charged by the builder. Besides, the attorney contacted the contact point unsuccessfully. Attorney again sent a letter on 15/1/15 to the opposite party at their Hyderabad office. Neither they accepted the letter nor replied. Complainant once again sent a notice through their agent demanding Rs.1,00,000/- by way of compensation. The notices were sent under ‘Regd. Post’ at Vadodara and Thrissur branch of the opposite party. The opposite party did not even care to acknowledge the same. Aggrieved by the above acts only this complaint was filed. The deficiency in service can be clearly proved. Complaint may therefore be allowed directing the opposite party to pay Rs.1,00,000/- towards compensation, Rs.1,00,000/- towards estimated loss due to delay in delivery of drafts, Rs.66,771.43 with 15% interest being the interest paid on 29/3/14, Rs.4,421.72 being the interest paid on 16/1/15 with interest @ 15% and Rs.10,000/- towards costs.
2.Admitted the case. Ordered notices to the opposite party. They appeared before the Forum and filed version through counsel. Objection of the opposite parties are enumerated as follows:
All allegations are false, baseless and hence denied. Complainant is not a consumer. Opposite parties never availed any services for consideration. 1st opposite party is an unnecessary party. The complaint is bad for misjoinder. The sanctioned loan amount of Rs.90,66,442/- was disbursed as per the terms and conditions of the loan agreement and also as per request of the complainant. Complaint is for unjust enrichment. The opposite party bank had disbursed the amount immediately after the receipt of the disbursal requests by the complainant. Complainant had not approached this Forum with clean hands. There is no cause of action. There are no latches or delay occurred in executing the documents by the opposite parties. The action of the opposite party is the direct resultant of the actions and omissions of the complainant and the same is supported by the contractual agreement entered between the complainants and the opposite party. There is no deficiency in service on the part of opposite party. Therefore the complaint may be dismissed being frivolous and vexatious with costs to the opposite parties.
3. Then the case posted for evidence. The points for consideration are the following for its final disposal.
1) Is there any deficiency in service on the part of opposite parties?
2)If yes, what are the reliefs and costs?
4 Both parties appeared before the Forum and filed proof affidavits along with documents. Complainant filed 5 documents and marked as Exts.P1 to P51. Ext.P1 – Power of Attorney, Ext.P2-Unit application form, Ext.P3 –Ops mail ID confirmation dt. 13/10/13, Ext.P4-E Mail from complainant dt. 13/10/13, Ext.P5 – E Mail from complainant, Ext.P6 – E Mail dt. 14/10/13 from 1st complainant, Ext.P7 – E mail dt. 15/10/13 from Developer, Ext.P8 – Copy of receipt dt. 15/10/13 towards booking amount of Rs.5,00,000/-, Ext.P9 – Covering letter, Ext.P10 – Copy of the sanction order dt. 23/10/13, Ext.P11 – E mail dt.16/10/13, Ext.P12 – Email dt.20/12/13, Ext.P13 – Copy of E mail dt. 20/12/13, Ext.P14 – E mail dt.1/1/14, Ext.P15 – E mail dt.3/1/14, Ext.P16 – E mail dt.10/1/14, Ext.P17 – Copy of E mail dt.12/1/14, Ext.P18 – E mail dt.4/2/14, ExtP19 – E mail dt.6/2/14, Ext.P20 – E mail dt.10/3/14, Ext.P21 – Copy of the E mail, Ext.P22 – E mail of customer care, Ext.P23 – E mail to the complainant dt. 26/3/14, Ext.P24 – E mail dt.18/3/14, Ext.P25 - E mail dt.25/3/14, Ext.P26 - E mail dt.30/3/14, Ext.P27 - E mail dt.30/3/14, Ext.P28 - E mail dt.11/1/14, Ext.P29 - E mail dt.11/4/14, Ext.P30 - E mail dt.19/4/14, Ext.P31 - E mail dt.19/4/14, Ext.P32 - E mail dt.19/4/14, Ext.P33 - E mail dt.28/4/14, Ext.P34 - E mail dt.3/5/14, Ext.P35 - E mail dt.7/5/14, Ext.P36 - E mail dt.9/5/14, Ext.P37 - E mail dt.2/7/14, Ext.P38 - E mail dt.28/10/14, Ext.P39 - E mail dt.3/11/14, Ext.P40 - E mail dt.15/11/14, Ext.P41 - E mail dt.15/11/14, Ext.P42 - E mail dt.1/12/14, Ext.P43 - E mail dt.2/12/14, Ext.P44 - E mail dt.3/12/14, Ext.P45 - Notice dt.22/12/14, Ext.P46 - Reply dt.7/1/15, Ext.P47 – Lr. dt. 15/1/15, Ext.P48 – Returned envelop, Ext.P49 – Notice dt. 24/8/15, Ext.P50 – Client ledger summary, Ext.P51 – Loan a/c statement. From the side of opposite party only one document was produced, which is marked as Ext.R1 – Loan a/c details. No oral evidence was tendered by both parties. Argument note has been filed by the complainants.
5. Appreciation of evidence: We have examined proof affidavits, documents, argument note and points raised during final hearing. There is no dispute with regard to the Tripartite Agreement. There is also no dispute with regard to the amount of loan sanctioned. Opposite parties have no case that they can release the loan as and when they feel good without considering the requests from the Sobha Ltd. If the opposite parties have not released the loan amount as scheduled by the Sobha Ltd. on the scheduled intervals its natural repercussions would be to suffer loss by the parties who have agreed to pay the same.
6.It was contended by the opposite parties that the action of the opposite party is the direct resultant of the actions and omissions of the complainant and the same is supported by the contractual agreement entered among the complainant and the opposite party. In fact the agreement is a tripartite agreement. Opposite parties have profitably forgotten that aspect. If the opposite parties have considered the above, definitely the opposite parties have mentioned that the contractual agreement was entered among the complainant, Sobha Ltd. and the opposite party. Moreover the opposite party could have produced the agreement to prove their contentions. Opposite party has failed to produce the same and in the absence of any contra evidence we believe the contentions of the complainant as true and correct more based on affidavit ad documentary support. We are convinced that there is deficiency in service on the part of opposite party and no further elaboration is required and no threadbare analysis of documents of Exts.P1 to P51 is necessary and avoid the same.
7.Reliefs and costs : We direct the opposite parties to pay Rs.1,00,000/- (Rupees One lakh only) being the interest paid due to the lapses on the opposite parties to complainant within 30 days from the receipt of the order. Parties have to bear respective costs. Complaint allowed accordingly.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Commission this the 30th day of June 2021.
Sd/- Sd/-
Sreeja.S C.T.Sabu
Member President
Appendix
Complainant’s Exhibits
Ext.P1 – Power of Attorney, Ext.P2-Unit application form, Ext.P3 –Ops mail ID confirmation dt. 13/10/13, Ext.P4-E Mail from complainant dt. 13/10/13, Ext.P5 – E Mail from complainant, Ext.P6 – E Mail dt. 14/10/13 from 1st complainant, Ext.P7 – E mail dt. 15/10/13 from Developer, Ext.P8 – Copy of receipt dt. 15/10/13 towards booking amount of Rs.5,00,000/-, Ext.P9 – Covering letter, Ext.P10 – Copy of the sanction order dt. 23/10/13, Ext.P11 – E mail dt.16/10/13, Ext.P12 – Email dt.20/12/13, Ext.P13 – Copy of E mail dt. 20/12/13, Ext.P14 – E mail dt.1/1/14, Ext.P15 – E mail dt.3/1/14, Ext.P16 – E mail dt.10/1/14, Ext.P17 – Copy of E mail dt.12/1/14, Ext.P18 – E mail dt.4/2/14, ExtP19 – E mail dt.6/2/14, Ext.P20 – E mail dt.10/3/14, Ext.P21 – Copy of the E mail, Ext.P22 – E mail of customer care, Ext.P23 – E mail to the complainant dt. 26/3/14, Ext.P24 – E mail dt.18/3/14, Ext.P25 - E mail dt.25/3/14, Ext.P26 - E mail dt.30/3/14, Ext.P27 - E mail dt.30/3/14, Ext.P28 - E mail dt.11/1/14, Ext.P29 - E mail dt.11/4/14, Ext.P30 - E mail dt.19/4/14, Ext.P31 - E mail dt.19/4/14, Ext.P32 - E mail dt.19/4/14, Ext.P33 - E mail dt.28/4/14, Ext.P34 - E mail dt.3/5/14, Ext.P35 - E mail dt.7/5/14, Ext.P36 - E mail dt.9/5/14, Ext.P37 - E mail dt.2/7/14, Ext.P38 - E mail dt.28/10/14, Ext.P39 - E mail dt.3/11/14, Ext.P40 - E mail dt.15/11/14, Ext.P41 - E mail dt.15/11/14, Ext.P42 - E mail dt.1/12/14, Ext.P43 - E mail dt.2/12/14, Ext.P44 - E mail dt.3/12/14, Ext.P45 - Notice dt.22/12/14, Ext.P46 - Reply dt.7/1/15, Ext.P47 – Lr. dt. 15/1/15, Ext.P48 – Returned envelop, Ext.P49 – Notice dt. 24/8/15, Ext.P50 – Client ledger summary, Ext.P51 – Loan a/c statement
Opposite Parties Exhibit
Ext.R1 – Loan a/c details
Id/-
President
