CC No.893.2016

Filed on 27.06.2016

Disposed on.19.03.2018

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 19^th DAY OF MARCH 2018

CONSUMER COMPLAINT NO.893/2016

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                       V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 27.06.2016 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to pay Rs.20,00,000/- as compensation and other reliefs.

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Complainant has taken loan of Rs.24,00,000/- from LICHFL Loan account No.411500001992 at 10.25% fixed for a period of 2 years.  On 29.12.2012 after two years suddenly the rate of interest became 11.9%.  Immediately, the Complainant approached the LICHFL on 04.04.2016 the Complainant gave them application for the rewriting rate of interest from 11.9% to 10.9% which costed sum of Rs.22,980/-.  All this process was supposed to take 15 days.  From his account sum of Rs.22,980/-, Rs.1,140/- and Rs.1,140/- on 21^st April 2015 by cheque number 7, 10, 9.  The Complainant also deposited Rs.1,10,000/- against his principal on the same day by cheque 6 from the same Kodak Mahindra Bank which was debited on 7^th April 2015.  After that the Complainant waited for them to send the list of documents by email and kept calling them occasionally on number which would be picked by Ramana and in turn he many time helped the Complainant talking to Sujatha who was responsible for the List of documents. They kept saying that they will send the list of documents.  Meanwhile one of his neighbors got his rate of interest re-written by paying just Rs.1,140/- and his rate of interest was written to 10.2% while he was still paying 10.6%.  Finally the Complainant was frustrated he went to LIC office and asked them about the same they said that people who have got their rate of interest re-written can’t get the rate of interest re-written again and that they will check with higher department.  So basically he had already paid them Rs.22,980/- and still was paying 10.6% interest while someone who just paid Rs.1,140/- was paying 10.2%.  This is height of disparity and he wanted to fight against it.   He started email communication on 6^th October 2015 and went to the head office at hayes Road and adamant on getting the list of documents and complaint to Manager.  Sujatha’s response was as if she didn’t care about the whole thing.   Finally by evening and after much wait he got his list of documents but to his surprise his Sale Deed was missing.  The Complainant kept writing emails and always they used to say that it would take one month to locate his sale deed and month after months passed but the situation was same he was paying 10.6% rate of interest and also his Sale deed was missing.  On 20^th January 2016, the Complainant threatened them that if this is not resolved he would go to the Consumer Forum.    Hence this complaint.

     The Complainant amended the complaint by inserting prayer column A to E as follows:

1. For deficiency of services Rs.7,00,000/-.
2. For unfair trade practices Rs.3,00,000/-.
3. For negligence Rs.7,00,000/-.
4. For mental agony Rs.3,00,000/-.
5. And other reliefs as this Hon’ble Forum may deem fit and proper in the circumstances of the case and thus render justice.

3. In response to the notice, the Opposite Party put their appearance through their counsel and filed their version.  The Opposite Party in their version pleaded that the complaint is frivolous, vexatious and unsustainable in law.   There is no deficiency in performance of service by the Opposite Party in this case.  The Complainant cannot be treated as Consumer.  The relationship between the Complainant and the Opposite Party being debtor and creditor the Complainant cannot be consumer.  The Complainant approached the Opposite Party LIC Housing Finance Limited, for housing loan and submitting loan application dt.27.12.2012, seeking for loan of Rs.30,00,000/-.  The Opposite Party after considering the loan application approved a housing loan of Rs.30,00,000/- to the Complainant under Griha Prakash Scheme, for purchase of New flat subject to terms and conditions of the loan offer letter dt.29.12.2012.  As a security for the repayment of the aforesaid loan amount due to the Complainant has deposited the original title deed i.e., original Agreement to Sell dt.12.12.2012, Construction Agreement dt.12.12.2012, and Original registered Sale Deed dt.02.02.2013 in respect of residential Flat bearing No.001, on the Ground Floor, measuring 1280 Sq.ft, with one covered car parking space, in “Jeevan Sai Meadows”, at Munekolala Village, Varthur Hobli, Bangalore East Taluk, Bangalore, with Opposite Party and the Opposite Party has released the loan amount of Rs.24.00 Lakhs, to the Complainant bearing loan account No.411500001992. The Complainant thereafter approached Opposite Party and sought for pre-closure of the aforesaid loan and paid the entire loan dues in full and final settlement of the entire loan dues and demanded for return of the original title deed of the property.  The Opposite Party called for the docket file in respect of the loan of the Complainant from their warehouse and found that the Original registered Sale Deed dt.02.02.2013 is not there in the docket file.  The Opposite Party requested the Complainant to wait for some time as the Opposite Party is making its best efforts to trace the Original registered Sale Deed dt.02.02.2013 in respect of the property.  Unfortunately inspite of the best efforts of the Opposite Party the same could not be traced in the Office or in the warehouse of the Opposite Party.  The Opposite Party has informed the Complainant that the original sale deed is not traceable and is misplaced.  The Complainant wanted to know about the procedure to be followed in case of loss of original documents.  The Opposite Party informed the Complainant about the procedure followed by the Opposite Party, i.e., they would first publish public notice in two new papers informing the general public that the sale deed is misplaced/lost and to return the same to the Opposite Party if traced/found and after waiting for ten days after publication a registered deed of discharge would be executed by the Opposite Party in favour of the Complainant and a certified copy of the sale deed will be handed over to the Complainant, and that all the expenses towards paper publication, registration charges and expenses for obtaining certified copy of the sale deed will be borne by Opposite Party.   The Complainant agreed for the same and accordingly when the Opposite Party was taking steps to follow the above procedure as per letter dt.15.06.2016 and office note dt.27.06.2016 they received summons in the above complaint.  The Complainant instead of settling the matter has thought fit to suppress the above true facts and ha snow thought fit to file the above false complaint against the Opposite Party based on all false and untenable pleas.    The only intention behind filing the above complaint is to harass the officials of the Opposite Party and to make wrongful gains from the LICHFL and cause wrongful loss to the Opposite Party.  The Complainant has availed loan of Rs.24.00 Lakhs and agreed to pay fixed rate of interest on the said loan at 10.25% p.a., for 24 months and thereafter from 25-300 months floating rate of interest linked to then prevailing LHPLR as per loan offer letter dt.29.12.2012.  The Complainant is bound to pay the interest as per loan offer letter terms and conditions on the loan availed by the Complainant.  The interest on the loan is charged as per terms and conditions of the loan documents executed by the Complainant in favour of the Opposite Party in respect of the loan, hence the question of re-writing the rate of interest will not arise in respect of loan transaction of the Complainant.  The entire averments made regarding interest rate is emphatically denied as false and self-serving.  The Complainant is put to strict proof of the said plea.  The Opposite Party has informed the Complainant that the original sale deed is not traceable and is misplaced.  The Complainant wanted to know about the procedure to be followed in case of loss of original documents and the same was informed to the Complainant.  In fact the Opposite Party has obtained certified copy of the sale deed on 29.06.2016.  Inspite of informing the same the Complainants have approached this Hon’ble Forum taking all false pleas only to harass the Opposite Party.   The Opposite Party have not caused deficiency in service, financial or mental trauma to the Complainant as alleged.  The Complainant do not have any cause of action to file the above complaint against the Opposite Party. 
4. After amending the complaint, the Opposite Party had filed additional version.   In the Additional version pleaded that the Complainant is not entitled for any amount much less Rs.20,00,000/- in the complaint or for Rs.7,00,000/- for alleged deficiency of service, or for Rs.3,00,000/- for alleged unfair trade practice, or for Rs.7,00,000/- for alleged negligence or for Rs.3,00,000/- for alleged mental agony from the Opposite Party.   The relief of Rs.20,00,000/- and relief of Rs.20,00,000/- claimed under different heads cannot be considered by this Hon’ble Forum as it is beyond the pecuniary Jurisdiction of this Hon’ble Forum.   On this ground itself, the complaint is liable to be dismissed.  The Complainant has arrived at such huge amount of Rs.20,00,000/- as compensation for the alleged trouble caused both financial and mental trauma.  Hence prays to dismiss the complaint.

5. The Complainant, Sri.Gaurav Mishra filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Party, the affidavit of one Sri.P.Syam Babu has been filed.  Heard the arguments of Complainant.

6.      The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party ?
2. If so, to what relief the Complainant is entitled ?

7.     Our findings on the above points are:-

                POINT (1):-  Affirmative

                POINT (2):-  As per the final Order

REASONS

8. POINT NO.1:-  As looking into the complaint and also the version of the Opposite Party, it is not in dispute that the Complainant approached the Opposite Party LIC Housing Finance Limited, for housing loan and submitting loan application dt.27.12.2012, seeking for loan of Rs.30,00,000/-.  The Opposite Party after considering the loan application approved a housing loan of Rs.30,00,000/- to the Complainant under Griha Prakash Scheme.  It is also not in dispute for the repayment of the loan amount, the Complainant has deposited the original title deed i.e., Original Agreement to Sell dt.12.12.2012, Construction Agreement dt.12.12.2012, and Original registered Sale Deed dt.02.02.2013 in respect of residential Flat bearing No.001, on the Ground Floor, measuring 1280 Sq.ft, with one covered car parking space, in “Jeevan Sai Meadows”, at Munekolala Village, Varthur Hobli.  The Opposite Party LIC of Housing Finance has released the loan amount of Rs.24.00 Lakhs, to the Complainant bearing loan account No.411500001992.  The Complainant approached the Opposite Party and sought for pre-closure of the aforesaid loan and paid the entire loan dues in full and final settlement of the entire loan dues and demanded for return of the original title deed of the property.    Further to substantiate this fact, the Complainant in his sworn testimony, he has reiterated the same and produced the payment details in respect of the loan availed by the Complainant with Opposite Party.    As looking into this, it is clear that the Complainant availed loan from the Opposite Party LIC Housing Finance Limited availed loan amount of Rs.30,00,000/- with loan account No.411500001992 and the rate of interest at 10.9%, Term of loan is 25 Years.  As looking into this document, the Complainant is regularly in repaying the loan to the LIC Housing Finance Limited and further it is coming the evidence of the Complainant, the Complainant shifted his Home Loan to Bajaj Finance from LICHFL.   This evidence of the Complainant is not been denied or disputed by the Opposite Party.  Even Opposite Party in their version had admitted the same.  Therefore, it is proper to accept the contention of the Complainant.  The Complainant availed the housing loan from Opposite Party i.e., LIC Housing Finance Limited and foreclose the loan by paying of the dues. 
9. Now it is the case of the Complainant that the Opposite Party had sanctioned loan and the Complainant agreed to repay the said loan with interest at 10.25% fixed for a period of 2 years and after two years suddenly the rate of interest became 11.9% which was very high comparing to any other Bank.  To substantiate this also the Complainant in his sworn testimony, he has reiterated the same and also in his evidence he clearly stated that on 04.04.2015 the Complainant give an application to the Opposite Party LIC Housing Finance Limited for change of rate of interest from 11.9% to 10.9%.  But to substantiate this fact, except the oral interest version of the Complainant, the Complainant has not placed any evidence to show that the Opposite Party i.e., LIC of Housing Finance Limited granted loan to the Complainant to repay the same with interest at 10.25% fixed rate.  In that event, the Complainant could have produced the Sanction Letter, except this the Complainant has not placed any such evidence.  On the other hand, LIC Housing Finance Limited produced the letter addressed to the Complainant informing the Complainant about the approval of the housing loan of Rs.30,00,000/- and in this letter it is clearly mentioned that the rate of interest is 10.25% p.a. but not fixed rate as contended by the Complainant.  On the other hand, the said rate of interest is of floating rate at 10.25% p.a. and also in this letter it is clearly mentioned that the rate of interest is 10.25% fixed for 24 months and remaining from 25-300 months floating rate of interest.  Accordingly, the Opposite Party was charging the rate of interest.  This letter is dt.29.12.2012, so the Complainant is having knowledge about the rate of interest.  Even in the year 2012 itself being the Complainant is not interested to continue with Opposite Party he could have refused to accept the loan sanctioned by the Opposite Party.  On the other hand, the Complainant availed the loan and agreed to pay the floating rate of interest at 10.25% p.a.  For that reason, the Opposite Party is unable to rerate the rate of interest.  Hence, it is not proper to accept the contention of the Complainant that there is a deficiency of service on the part of the Opposite Party.  Since they have not rerated the rate of interest as requested by the Complainant.

10. It is undisputed fact that the Complainant had foreclose his loan account with Opposite Party and availed loan from Bajaj Finance.  After foreclosing the loan amount with the Opposite Party i.e., LIC Housing Finance Limited, the Complainant requested to return the security documents with the Opposite Party.  But the Opposite Party instead of failed to return the sale deed.  Even it is coming the evidence of Sri.P.Syam Babu, Manager of Opposite Party i.e., LIC Housing Finance Limited is unable to return the sale deed to the Complainant.  Since the sale deed of the Complainant was not traceable and the original sale deed dt.02.02.2013 is not in the docket file.  In spite of request and demand made by the Complainant, the Opposite Party i.e., LIC Housing Finance Limited had fails to return the original sale deed to the Complainant.  Even though the Complainant had repaid the entire due amount, thereby the Opposite Party fails to return the original sale deed to the Complainant.
11. The defence of the Opposite Party is that the Opposite Party has informed the Complainant that the original sale deed is not traceable and is misplaced.  The Complainant wanted to know about the procedure to be followed in case of loss of original documents and the same was informed to the Complainant. In fact the Opposite Party has obtained certified copy of the sale deed on 29.06.2016.  Inspite of informing the same the Complainant had approached this Hon’ble Forum.  In support of this defence, Sri.P.Syam Babu, Manager of Opposite Party i.e., LIC Housing Finance Limited, in his sworn testimony, he has reiterated the same and also produced the Deed of Discharge executed by the LIC Housing Finance Limited infavour of the Complainant about the discharge of loan and also in the Discharge Deed they clearly mentioned that the original mother deed deposited by the Complainant is misplaced/lost and produced the copy of the Sale Deed executed by Sri.C.Nagaraj Reddy and others infavour of the Complainant dt.02.02.2013.  Even from this evidence, it is clear that the Opposite Party i.e., LIC Housing Finance Limited received all the loan due amount from the Complainant.  In that event, they bounded duty of the Opposite Party to return back all the title deeds which are deposited at the time of availing the loan but in this case the Opposite Party had fails to return the original mother deed i.e., (sale deed), inspite of request and demand made by the Complainant.  On the other hand, they are very coolly saying that the original sale deed is lost and misplaced in their office docket file that itself it amounts to deficiency of service on the part of the Opposite Party.  Since, it is bounded duty of the Opposite Party to keep all the documents safely and to return back all the original documents to the Complainant.  After repayment of the loan amount instead of doing so Opposite Party had fails to return the original mother deed (sale deed).  Thereby the act of the Opposite Party is amounts to deficiency of service.  Hence this point is held in affirmative. 

12. POINT NO.2:-  In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is allowed partly holding that there is deficiency of service by the Opposite Party.

The Opposite Party is directed to pay sum of Rs.2,00,000/- as compensation to the Complainant for causing mental agony.

The Opposite Party is further directed to return the original sale deed by tracing the same within 60 days.  Failing which the Opposite Party is liable to pay interest at 12% p.a. on the above said amount. 

The Opposite Party is also liable to pay sum of Rs.5,000/- as cost. 

The Opposite Party No.1 & 2 are directed to pay the aforesaid amount within 30 days from the date of receipt of this Order. 

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 19^th day of March 2018).

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Mr.Gaurav Mishra, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. The payment details dt.06.10.2015.
2. Account Statement.
3. Email correspondences.
4. Receipt of Sale Deed Acceptance.
5. List of documents lodged.
6. Principal and Interest repaid.
7. LIC Statements.
8. Cheque dt.06.10.2015.
9. Letter dt.12.12.2015.

Witness examined on behalf of the Opposite Parties:

1. Sri.P.Syam Babu, Manager of Opposite Party by way of affidavit.

List of documents filed by the Opposite Party:

1. Letter dt.29.12.2012
2. Letter dt.15.06.2016.
3. Office Note dt.27.06.2016.
4. Letter dt.24.08.2016.
5. List of documents lodged.
6. Agreement for Sale of Undivided share of land dt.12.12.2012.
7. Construction Agreement dt.12.12.2012.
8. Sale Deed dt.02.02.2013.
9. Police complaint dt.25.08.2016.
10. Affidavit dt.24.08.2016.
11. Lost Article Report dt.25.08.2016.
12. Paper Publication (2 Nos).
13. Encumbrance Certificate. 
14. Deed of Discharge dt.07.09.2016.

    MEMBER                                                                         PRESIDENT