Chandigarh

DF-I

CC/844/2017

Mrs. Amandeep Kaur - Complainant(s)

Versus

The Housing Development Finance Corporation Ltd. - Opp.Party(s)

Jagdish Marwaha

08 Jul 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

                               

Consumer Complaint No.	:	CC/844/2017
Date of Institution	:	05/12/2017
Date of Decision	:	08/07/2019

 

Mrs. Amandeep Kaur r/o House No.350, Sector 22-A, Chandigarh.

 

… Complainant

V E R S U S

1.     The Housing Development Finance Corporation Ltd., Regd. Office Ramon House, HT Parekh Marg, 169, Backbay, Reclamation, Church Gate, Mumbai – 400020, through its Managing Director.

2.     The Housing Development Finance Corporation Ltd., Regd. Office, Ramon House, HT Parekh Marg, 169, Backbay, Reclamation, Church Gate, Mumbai – 400020, through its Chief Executive Officer.

3.     The Housing Development Finance Corporation Ltd., SCO No.153-154-155, Sector 8-C, Madhya Marg, Chandigarh, through its Branch Manager. 

… Opposite Parties

CORAM :	SHRI RATTAN SINGH THAKUR	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                     

ARGUED BY	:	Sh. Jagdish Marwaha, Counsel for complainant
	:	Ms. Rupali Shekhar Verma, Counsel for OPs

 

Per Rattan Singh Thakur, President

1.         The long and short of the allegations are, complainant approached the OPs for getting home loan to the tune of Rs.13.00 lakhs for the purpose of Resident Land Purchase of a plot from Punjab IAS-PCS Officers Cooperative House Building Society Ltd., Mohali in Mullanpur Development Area.  The loan was sanctioned and as per terms and conditions schedule 1 clause 2.2 regarding interest was settled for all times to come @ 8.5% fixed per annum under monthly rests and loan agreement was entered at Chandigarh on 13.9.2010. To this effect, loan account No.600388909 was opened.  The interest was fixed as per clauses of the schedule from time to time.  The first installment of Rs.7.00 lakhs was released on 13.9.2010 and second installment of Rs.6.00 lakhs was released by the Corporation to the complainant on 16.2.2011. Further case is, the complainant again approached the OPs for grant of another home loan to the tune of Rs.2.2 lakhs which request was sanctioned by opening of a new loan account No.605487205.  Supplementary agreement was entered into. The case of the complainant is, rate of interest to be charged on first and second loan agreements were different and separate loan account was opened for another home loan to the tune of Rs.2.2 lakhs.  As such, the first loan account could not have been merged with the second loan account which was closed by the complainant and NOC was issued on 27.12.2016. The complainant has referred to various precedents in the consumer complaint that automatically the interest could not have been increased.  While the interest was being charged as per the terms and conditions of the second loan account which was closed and even the interest charged on the outstanding first loan account which could not have been done as these were two different loan accounts.  Hence, the present consumer complaint wherein prayer has been made for directing the OPs to charge and claim the rate of interest on the balance principal amount of the first loan of Rs.13.00 lacs granted on 13.9.2010 and to adjust the overpaid charged interest on the first loan amount at the same rate which the OPs are charging on the basis of first loan agreement; pay compensation of Rs.5.00 lakhs and litigation expenses of Rs.50,000/-.
2.         OPs furnished their joint written statement and the crux of their pleadings is, for all intents and purposes, the first loan account has merged with the terms and conditions of the second loan agreement as the loan was taken for the same purpose and it is basically the extension of the first loan agreement.  Therefore, the rate of interest is being charged as per the amended terms and conditions of the second loan agreement.  Hence, there is no unfair trade practice or deficiency in service on their part.  On these lines, the cause is sought to be defended.
3.         Rejoinder was filed and averments made in the consumer complaint were reiterated.
4.         Parties led evidence by way of affidavits and documents.
5.         We have heard the learned counsel for the parties and gone through the record of the case. After perusal of record, our findings are as under:-
6.          The pleadings of the complainant does not show that rate of interest is being charged in violation of the agreement entered into inter se parties. Her grouse is, since these were two loan accounts, therefore, for the outstanding amount in the first loan agreement the rate of interest is to be charged as per first agreement and not the second agreement and even the second loan account has been closed. 
7.         True it is, the second loan account had been closed and NoC is Annexure C-5. The claim of the OPs is, it is the extension of the first loan agreement, therefore, the parties are bound by its amended terms and conditions.  There is no allegation that any terms and conditions of the agreement were being violated by the OPs. As such, the allegations of unfair trade practice are out of question.
8.         We shall refer here, two loan agreements were entered into and the second loan agreement is at page 91 the text of which shows Amendatory-cum-supplemental agreement dated 10.7.2012 which was signed by both the parties. The execution of Amendatory-cum-supplemental agreement dated 10.7.2012 is an admitted document and there is no dispute with regard to the same.  It is also not disputed that rate of interest is being charged as per the Amendatory-cum-supplemental agreement as the first loan account had merged in the second loan account and in the second agreement the terms and conditions were amended.  Therefore, the parties are bound by the terms and conditions of the Amendatory-cum-supplemental agreement. The signatures on the second agreement by the complainant or say its execution is not disputed before us. Paragraph No.4 of the Amendatory-cum-supplemental agreement shows, rate of interest applicable to the increased amount shall be as specified in the reference (e) of the schedule attached and paragraph No.5 shows additional terms shall be applicable on the total DRHL i.e. first loan and the balance outstanding principal of the total DRHL and the first loan account as on 1.4.2012 shall be amortized by the borrower @ as specified in reference (e)  of the schedule attached which shows the terms and conditions of the first loan account repealed and the parties shall have to be bound by the latest terms and conditions. 
9.         Now it is not the case that these terms and conditions are being violated by the OPs.  Fraud had been allegated though signatures on the agreement is not disputed.  In this regard, illustration (b) of Section 102 of the Indian Evidence Act, 1873 is important and the same is reproduced as under :-

“102. On whom burden of proof lies. -The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

 

Illustrations

xxx                   xxx                   xxx  

 

(b) A sues B for money due on a bond.

The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.

If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved.

Therefore the burden of proof is on B.”

 

Having regard to the above rule of evidence, it was for the complainant to prove on record the fraud committed by the OPs. The particulars of fraud have not been disclosed by the complainant.  Under what circumstances her signatures were obtained by the OPs in the Amendatory-cum-supplemental agreement dated 10.7.2012.  These particulars were required to be disclosed to prove fraud, but, there is no pleading to this effect on record.  Not only this, even on fraud no evidence has been led in the form of affidavits. 

10.         It is true that for convenience sake OPs have opened two separate loan accounts and the second loan account was closed by the OPs on receipt of payment on 27.12.2016.  With this NOC by the OPs Annexure C-5 the terms and conditions of the Amendatory-cum-supplemental agreement of 2012 cannot be said to have been changed or foregone by the OPs. These are still in force and parties bound by the terms and conditions of the agreement.  The loan was for the same purpose and as per record only the first loan account was extended for the same purpose. 
11.         Per record, this Forum of its own cannot change the terms and conditions of the second loan agreement and to record or introduce own terms and conditions of the first agreement which has merged in the second agreement. Unless the second agreement is declared to be null and void, the complainant has no case and the said fact could only be done by way of specific pleadings wherein trial has to be held in regular civil court on point of establishment of fraud. This Forum in summary manner cannot record any finding of fraud especially so when the particulars of fraud have not been pleaded. 
12.         The learned counsel for the complainant has referred to various case laws i.e. Syndicate Bank Vs. Veerana, 1995 (2) LJR 542 decided by the Hon’ble Karnataka High Court which say bank cannot increase the rate of interest without bringing it to the knowledge of the debtor about the rise in the rate of interest.  Further referred to case titled IDBI Bank Vs. Pardeep Tayal & Anr., 2010(4) CPJ 315 decided by our own Hon’ble State Commission wherein the act of the OP/bank in charging higher rate of interest was held as deficiency in service on the part of the bank.  In this case, it is not the pleading that the second agreement was not signed by the complainant or higher rate of interest was being charged in violation of the terms and conditions of the second agreement which is amended one. The second loan agreement executed by the complainant creates estoppel against her. She cannot be permitted to retract terms and conditions of second loan agreement.
13.         The complainant had taken home loan to the tune for the purpose of Resident Land Purchase of a plot from Punjab IAS-PCS Officers Cooperative House Building Society Ltd., Mohali in Mullanpur Development Area.  The complainant seems to be educated person and holds top rank either in State or Central services and, therefore, it cannot be said that the second Amendatory loan agreement was signed by her without going through its contents. Hence, the question of fraud does not arise at all.
14.         In view of the above discussion, as per the latest Amendatory-cum-supplemental agreement, the complainant has no case to say that there was unfair trade practice or deficiency in service employed by the OPs. Resultantly, the consumer complaint fails and the same is hereby dismissed, leaving the parties to bear their own costs. 
15.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
08/07/2019	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
hg	Member	Member	President