BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 7th day of June 2018
Filed on : 07-01-2017
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.9/2017
Between
Prameela S. Rao, : Complainant
W/o. Seshagiri Rao, 39/1909, (By Adv. Beelamma A.P.
Nakshatra house, Sivan Madathil & Associates,
T.M. Thomas Road, KHCAA Golden Jubilee Chamber
Cochin-682 016. Complex, High Court of Kerala,
Ernakulam-682 031. )
And
1. Tata Capital Housing Finance : Opposite parties
Ltd., Reed. Office one Forbes, (By Adv. Reetha D, 66/1058, 1st
Dr. V.B. Gandhi Marg., Fort, Floor, Veekshanam road, Ernakulam
Mumbai-400 001., North-682 018)
Rep. by its Managing Director.
2. The Manager,
Tata Capital Housing Finance
Ltd., Cochin 1 Branch,
Pulikeel Building,
Near Ernakulam Medical
Centre, Bye Pass Road,
Palarivattom,
Cochin-682 028.
O R D E R
Cherian K. Kuriakose, President.
1. Complainant’s case
2. The complainant proprietress of M/s. Saptha Medicals, Dwaraka building, MG. Road, Ernakulam had applied for housing loan from the opposite party M/s. Tata capital housing finance Ltd. as herself as the principal debtor and her husband Shri. Sheshagiri Rao as co-applicant. An amount of Rs. 63,50,000/- was sanctioned with 13% interest for a term of 180 months and a monthly repayment at Rs. 80,343/- was also fixed. The loan was sanctioned as per letter dated 31-12-2012 issued by the 2nd opposite party on behalf of the 1st opposite party. The EMI was being paid from 09-02-2013 and the last remittance was made on 09-12-2015 . For the best interest of the complainant’s business it was decided to submit foreclosure notice on 26-10-2013 and the same was duly acknowledged by the 2nd opposite party. The opposite party did not give any reply. The complainant submitted a DD for Rs. 54,04,057/- on 08-12-2015 foreclosure of the above said loan. The 2nd opposite party intimated the complainant that the complainant will have to pay a sum of Rs. 2,36,285.520 towards foreclosure charges. The complainant was also asked to remit Rs. 2,863/- towards document retrieval charges and Rs. 34,276/- towards service tax etc. The demand of foreclosure charges by the opposite parties is illegal. The complainant therefore issued a legal notice on 21-12-2015. The opposite party approached the complainant personally and collected an amount of Rs. 1,17,885/- towards foreclosure charges and Rs. 17,093/- towards as service tax. The complainant paid the amount under protest. The complainant now seeks a direction to be given to the opposite party to repay the said amount collected by way of foreclosure charges and service tax along with cost and compensation.
3. Notices were issued to the opposite parties. The opposite parties appeared and resisted the complaint by filing their version contending inter-alia as follows:
4. The complainant is only one of the joint applicant of the loan availed from the opposite parties where two entities M/s. Vrindavan Hotel Pvt. Ltd., Suptha medicals and Mrs. Seshagairi P.S. Rao are the co-applicant in the said loan. The complainant had deliberately excluded the names of the companies and stated that the loan was availed by two individuals. The opposite parties have issued a foreclosure statement to the complainant and other applicants that two persons to be charges foreclosure charges as per the terms of the agreement between the parties. The complainant has paid the entire foreclosure charges and closed the loan by accepting the terms of foreclosure on 16-12-2015 itself. The allegation that the complainant had issued a legal notice on 21-12-15 is false. The Reserve Bank of India had issued the regulation with respect to the foreclosure charges only with respect to loan availed solely by individuals, such regulations are not applicable to the loan availed by jointly by companies . The complainants are not liable for relief as prayed for and the complaint is liable to be dismissed.
5. On the above pleadings the following issues settled for consideration.
- Whether the complainant has proved that there was any deficiency in service or the commission of any unfair trade practice as alleged.
- Reliefs and costs.
6. The evidence in this case consists of Exbts. A1 to A7 documents on the side of the complainant and the oral evidence of DW1 and Exbts. B1 to B4 on the side of the opposite parties were marked.
7. Issue No. i. Exbt. A1 is the home equity loan sanction letter addressed to the complainant. Mrs. Prameela Rao M/s. Vridavan Hotel Pvt. Ltd and M/s. Saptha Medicals. Exbt. A2 is the receipt towards payment of Rs. 6,44,981/- by the 2nd opposite party. Exbt. A3 is the document showing remittance of Rs. 54,04.057- only. Exbt. A4 is a letter addressed by the complainant to the opposite party without any date to wave the foreclosure charges referring to the letter dated 08-12-2015 of the opposite party. Exbt. A5 is the intimation for the foreclosure charges and total amount to be paid by the complainant issued on 08-12-2015. Exbt. A6 s a letter issued by the opposite party to the complainant dated 16-12-2015 intimating the balance amount, foreclosure charges and the amount to be paid in order to close the loan. Exbt. A7 is an Adv. notice allegedly issued on 21-12-2015 on behalf of the complainant and her husband. It is based on these documents the complainant seeks repayment of the foreclosure charges.
8. According to the complainant as per the existing guide lines issues by the RBI all non-banking financial companies and residuary non-banking company shall not charge foreclosure charges and repayment penalty on all floating rate term loans sanctioned to individual borrowers. A direction was issued on 14-07-2014 to that extent by the RBI of India. Therefore, according to the complainant she is entitled to get reimbursement of the amount paid .
9. The opposite party produced Exbt. B1 power of attorney permitting DW1 to adduce evidence in this case on behalf of the opposite parties. The opposite party also produced the original loan agreement wherein it is shown that the rate of interest is 13% and the applicants for the loan were the complainant, her husband Shri. Sheshagiri Rao, Mrs. Vrindavan Hotel Pvt Ltd, and Suptha medicals.
10. Exbt. B3 agreement is seen signed by the complainant. Smt. Prameela, M/s. Sapta Medicals Represented by the complainant and Vrindavan Hotels Pvt. Ltd. as co-obligantes and co-borrowers. The complainant had therefore not approached this Forum with clean hands . The allegation of the complainant that the loan availed was on individual capacity has been proof with the wrong and misleading . The complainant had already paid the amount of foreclosure charges and all related payments allegedly under protest . She did not take any steps to procure her protest from the opposite parties. The complainant Smt. Prameela had approached this Forum suppressing the existence of co-obligants . In the above circumstance, we find that there is no consumer dispute involved in this case, and the complainant had approached this Forum with unclean hands, after having settled the issues themselves by making the payment as demanded by the opposite party and in tune with the contractual obligations between the parties. The issue is therefore found against the complainant.
11. Issue No. ii. Having found issue No. i against the complainant, we find that the complaint is liable to be dismissed and is accordingly dismissed.
Pronounced in the open Forum on this the 7th day of June 2018
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant's Exhibits
Exbt. A1 : True Copy of Home Equity Loan
Sanction Letter dt. 31-12-2012
A2 : Cheque/DD receipt dt. 16-12-2015
A3 : Cheque/DD receipt dt. 16-12-2015
A4 : True copy of letter dt. 11-12-2015
A5 : Copy of foreclosure
dt. 08-12-2015
A6 : Copy of foreclosure
dt. 16-12-2015
A7 : True copy of legal notice
dt. 21-12-2015
Opposite party's exhibits:
Exbt. B1 : Copy of power of attorney
B2 : Home equity loan sanction
letter dt. 31-12-2012
B3 : Loan agreement
B4 : Levy of foreclosure charges
Depositions
DW1 : Arun prasad
Copy of order despatched on:
By Post: By Hand:
