Order-13.

Date-30/06/2016.

The instant case relates to an application u/s.12 of the C.P. Act, 1986.

          Briefly, complainant’s case is that he took a loan to the tune of Rs.22,60,000/- from OP1 being the financial institution for purchase of a flat being Flat No.3A, 3^rd floor, South East side 1246 Madurdaha, Ward No.108, Kolkata – 700 107.  EMI was started from the month of March, 2013 to be paid within 7^th of each month and a mandate was given that through the ECS the money will be taken from the savings account of the complainant with the HDFC Bank, Phoolbagan.  OP1 accordingly started taking EMI from the said banker month by month.  The complainant had paid a sum of Rs.6,18,806/- in total as principal and interest including the bullet payment till the end of September, 2015.  In middle of January, 2015 complainant through his Power of Attorney holder contacted with OP1 with a request to reduce the EMI amount.  He met one Pritam Ganguly OP2 who happens to be the Assistant Manager of OP1.  OP2 asked the said Power of Attorney holder to contact with their authorized agent Shri Arun Marik who happens to be the OP3 in this case.  OP3 took the papers of previous loan document credential of the complainant in presence of OP2 ad further asked the complainant to pay a sum of Rs.5,618/- by an account cheque in favour of OP1.  OPs2 and 3 had given to understand that the said documents will be in their file for processing of reduction of the EMI amount and it would be returned to the complainant after the said entrusted job is made.  Subsequently, the complainant came to understand that OPs 2 and 3 have practised fraud with unfair trade upon him. The complainant also came to know that they have mis-constitute the documents for applying a fresh loan under the name of reduction of the EMI amount.  The power of attorney holder immediately went to the office of the OP1 to know the details about their works related to the entrusted job.  After a few days all of a sudden the said power of attorney holder received a telephone call from the Security Guard of the flat that a gentleman has come from the LIC Housing Finance for some verification.  The Power of Attorney holder informed the said incident to the complainant.  The complainant checked his status in the Credit Information Bureau India Ltd. (CIBIL) which is an organization to provide details of the loan taken by a particular person with his existing liability.  After searching he found that another loan is in existence in the name of the complainant in the nature of housing loan.  The complainant contacted with OP1 and got a print out from their portal and came to know about the existence of second home loan which the complainant had never applied.  The OPs calculated the EMI of the second fake loan on and from 27-05-2015 and he was shown as defaulter from the month of April, 2015.  The complainant, thereafter, transferred his loan with the HDFC Ltd. due to the effect of such harassment and smoothly he is paying the said amount.  The complainant also discharged equitable mortgage in respect of aforesaid flat from the LIC Housing Finance with effect from 07-10-2015.  The complainant alleges that he is receiving threatening calls from the OPs that they would attach the flat on the basis of second loan being loan file no.2103007774.  It is alleged by the complainant that the OPs have used the papers for processing the loan submitted earlier in creating a second loan.  It is also alleged that when the party’s loan is approved the agents are getting at least one per cent commission on the total sanctioned amount and the OPs jointly created a fake loan for getting unwarranted gain. Hence, this case.

          The OPs appeared in this case on receiving summons but subsequently, did not turn up to contest the case. The case has proceeded ex parte against the OPs.

Points for Decision

1. Whether the OPs created a fake second loan account in the name of the complainant?
2. Whether the OPs are guilty of practising unfair trade?
3. Whether the complainant is entitled to get the relief as prayed for?

Decision with Reasons

We have gone through the documents on record as filed from the side of the complainant.  Admittedly, the complainant availed a loan of Rs.22,60,000/- from OP1 as against EMI. OPs created loan file No.2103007774 with loan account 210300003107 as against the said loan.  We have glossed over the application for housing in this regard.  But we are afraid we do not find any application for second time loan executed by the complainant.  We also find that the complainant checked his status with CIBIL and found another loan is in existence in the name of the complainant in the nature of housing loan.  It also appears curious to note that the OPs kept the file no. for the second loan as same, i.e. the previous file no. being 2103007774.  The matter appears to be suspicious to us.  The question is how a subsequent loan can be created in the same previous file number.  We find that complainant signed no paper for the subsequent loan bearing loan account No.210300006862.  May be the OPs have used the paper for processing the loan of previous loan file to create a fake second time loan. 

          None came from the side of the OPs to challenge or controvert the case of the complainant.  It also appears curious how twice loan can be sanctioned over the self-same flat of the complainant being flat No.3A,3^rd floor, South-East side, 1246 Maduradaha, Ward No.108, Kolkata – 700 107, moreso, when the first loan is pending and EMIs have not been completed.  We also find that the complainant had to transfer his loan with the HDFC Ltd., due to the effect of such harassment and unfair trading by the OPs. 

          In absence of any contrary and controverting materials on record and as the version of the complainant remains unchallenged and uncontroverted and having regard to the documents on record we think that the complainant is entitled to get the relief as prayed for.

Hence,

Ordered

That the C.C. Case No.24 of 2016 be and the same is allowed ex parte against the OPs with a cost of Rs.10,000/- each.

          OPs 1 and 2 are directed to close loan account No.210300006862 forthwith without charging anything from the complainant. 

          OPs are also directed to jointly and severally to pay compensation to the tune of Rs.1,00,000/- for causing harassment and mental pain and agony to the complainant within one month from the date of this order.

          OPs are also to directed to pay penal damage of Rs.1,00,000/- to be paid to this Forum for unfair trade practice within the said time. 

          Failure to comply with the order of this Forum will entitle the complainant to take recourse to execution proceeding as mandated under C.P. Act and in that event, the OPs shall have to pay penalty  at the rate of100/- per diem to this Forum from the date of expiry of the stipulated time till full and final payment.