ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 35 of the Consumer Protection Act 2019 for the deficiency in service in not furnishing the attested copies of the agreement of loan, and list of deeds and documents given by the complainant to the OPs at the time of obtaining the loan and for imposing exemplary cost and penalty on the OPs for deficiency in service and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; complainant obtained a loan Rs.3,27,000/- from OP in order to purchase a BDA site allotted. Accordingly she purchased the site bearing No.544, 3^rd block, BSK VI stage, measuring 18X12 meters.  OP upon entering into the agreement of loan, has not furnished the copy of the same to her. The original agreement of the loan is with OP.  OP took the deed and documents all in original in respect of the complaint schedule property without giving the list of document for her records. Inspite of repeated request and demand. Further OP is levying and collecting high rate of interest on home loan arbitrarily and illegally much against to the directions to the RBI. Hence she had to issue a legal notice eon 31.08.2015 to OP demanding to provide the said documents. 

3.     It is further contended that she is working as a lecturer in department of technical education and her job is transferrable and as and when she transferred, she intimated the address to the OP for communication. Inspite of the request and demand, OP has not provided the attested copy of the loan agreement and documents deposited and not adhering to the interest to be levied as per the RBI guidelines and circulars. 

4.     In view of the OP not providing the above documents, she could not construct the house and also could not get approval from the various agencies from the Government which caused her mental agony. She is on the verge of retirement.  There is deficiency in service on the part of OP and prayed the forum to allow the complaint. She has further prayed for an interim prayer pending disposal of this complaint. To direct OP not to carry on the sale on the premises by way of public auction. 

5.     Upon the service of notice OP appeared before the commission and filed version stating that the complaint is not maintainable either in law or on facts and since the complainant has not paid the EMI’s and has become defaulter, acting under Section 34 of the SARFAESI Act, they took possession of the property.  The same has to be challenged before the DRT and not before this Commission.  The complaint filed is vexatious for unlawful gain and filed with mala fide intention and deliberately filed to escape her liability to pay the amount due  and further there is no deficiency in service or unfair trade practice and prayed the forum to dismiss the complaint.

6.     Further it is contended that the complainant and her mother Sanjeevamma together approached OP bank for housing loan to purchase the house site. A sum of Rs.3,27,000/- was sanctioned on 15.05.2002 with the floating rate of interest which was accepted by the complainant and her mother and they together executed the loan documents, on 25.05.2002.  In the loan  agreement also, it is clearly mentioned that the rate of interest is floating /adjustable.  Knowingfully well that they cannot raise any dispute regarding the rate of interest, now have come up with the contention that they are not aware of the terms and conditions of the agreement.  At the time of executing the loan agreement, complainants have also furnished as a security the allotment letter from BDA dated 13.03.2002 the NOC issued by BDA to obtain loan and the receipt for the amount paid to the BDA. Complainant and her mother have affixed their signature to the said documents.

7.     The complainant was irregular in paying the EMI’s and defaulted.  OP had no option but to recall the loan by issuing a notice on 12.01.2016 and the said loan became a non performing asset as the complainant failed to pay Rs.3,22,527/- within 7 days from the date of recall of the loan . Hence they acted under SARFAESI Act and issued notice and obtained physical possession of the site under Section 14 of the said Act by obtaining orders from CJM  Bangalore. Presale notice was also issued on 06.09.2019 to auction the property. The 2^nd notice was also issued for auction on 26.02.2021. Since no auction could be held and as the auction was unsuccessful the property remained as it is.  They are intending to issue fresh notice of sale to recover a sum of Rs.7,72,940/- which has become due from the complainant.  They have denied that the complainant was not aware as to what document they have given to the bank.  Levy of high interest alleged in the complaint has not been substantiated.  It is also not mentioned as to what is the interest agreed and what is the interest that OP has been charging.  Act of OP is transparent. There is no deficiency in service. They have taken action under SARFAESI Act and Section 34 of the said Act bars any court from dealing with the said matter and prayed the commission to dismiss the complaint.

8.     In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

9.     Our answers to the above points are:-

POINT NO.1 & 2 :    IN THE NEGATIVE.

                                For the following.

REASONS

POINT No.1 & 2:-

10.   On perusing the complaint, version, documents, evidence filed by the both the parties, it becomes clear that, the complainant obtained loan of Rs.3,27,000/- on 15.05.2002 by making application for loan to purchase BDA allotted site and executed the loan agreement and also deposited the original allotment letter, NOC and the receipt. Ex R3 is the document filed by OP which is the loan agreement, wherein the OP and her mother Sanjeevamma together have affixed the signature to the said document.  Even a declaration has been filed by the complainant along with her mother wherein she has deposited the original allotment letter issued by the BDA, NOC and the receipt. They have also executed an on demand promissory note for the amount they have received.  Ex R4 is the loan recall letter and Ex R5 is the notice sent by OP to her Hassan address and to her mother also. Paper publication is also issued regarding taking over the possession of the property under SARFAESI Act.  When all these documents are taken into consideration, now the complainant has complained that she has not been provided with certified copy of the loan agreement and the documents she has produced at the time of obtaining the loan to the OP.  Since the loan agreement and also declaration made by the complainant by depositing the original allotment letter and the NOC executed by her and her mother, she was very well aware of the said documents. For what purpose she required the said document has not been mentioned.

11.   Further the loan is sanctioned and disbursed in the year 2002 itself and now for the first time, by filing this complaint she is seeking the said document, which she very well knew. Further she is a lecturer in Department of Technical Education and very well know the procedure to obtain the copy from the bank. All the while, she kept quiet and now when the OP started taking action against the property for the defaulted committed by her, in not repaying the loan amount, she has all of a sudden filed this complaint which according to us is only as a vengeance against the OP who has taken action to take possession of the property and to sell the same in public auction to recover the dues from the complainant.  Even there is no whisper regarding the high rate of interest levied by the OP in the complaint itself. The loan granted to the complainant is according to the documents is repayable in 240 months with prime lending rate of 11%, which is to be announced from time to time plus margin of 0%.

12.   This is a home loan sanctioned to the complainant, and OP is bound to levy the interest as per the guidelines of the RBI. Complainant has failed to show before the commission as to what is the rate of interest levied by OP against the agreed rate of interest or against the RBI guidelines. In view of this we answer POINT NO.1 IN THE NEGATIVE and complainant has failed to prove deficiency in service on the part of OP and so also not entitle for any of the reliefs prayed against the OP. 

13.   It is to be noted here that out of sheer vengeances,  OP initiated action of public auction of the property for due recovery of the loan amount, has filed this complaint which is a clear abuse of the process of law. Such a attitude should be curbed.  Hence we are of the opinion that if a sum of Rs.25,000/- as penalty if imposed to the complainant it would be a lesson to others to not to venture to file frivolous complaint. According to us it is a frivolous complaint hence the same is dismissed. Hence we answer POINT NO.1 AND 2 IN THE NEGATIVE and  pass the following:

ORDER

1. The complaint is hereby dismissed with cost and penalty.
2. Complainant is directed to pay  to the OPs for a sum of Rs.25,000/- as penalty and Rs.10,000/- towards cost of the litigation to the OP within 30 days from the date of this order.

3. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 24^th day of AUGUST 2022)

MEMBER         MEMBER       PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Legal notice dt:31.08.2015

Ex P2: Copy of the letter dt:21.09.2016

Ex. P3: Copy of the  Notice of sale dt:26.02.2021

Ex P4: Copy of the Notice dt:15.03.2021

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Manjunath.KM, Legal Manager of OPs.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Loan application form.

Ex R2: Copy of the Sanction Letter

Ex R3: Copy of the Loan agreement a/w demand promissory note.

Ex R4: Copy of the Loan recall notice.

Ex R5: Copy of the Demand notice.

Ex R6: copy of the possession notice.

Ex P7: Copy of the post possession notice.

Ex P8: Copy of the pre-sale notice.

Ex P9: Copy of the notice of sale dated 15.12.2020.

Ex P10: Copy of the notice of sale dt:26.02.2021.

MEMBER         MEMBER       PRESIDENT

RAK*