HSBC Limited vs Sridhar Gajula , Manjeet Kaur Gajula , Omaxe Limited , ICICI Home Finance Company Limited

THIS revision petition has been filed by HSBC Limited, the opposite party no.2 before the District Consumer Disputes Redressal Forum-I, Union Territory, Chandigarh (District Forum for short) seeking to challenge the order dated 19th December, 2008 passed by the State Consumer Disputes Redressal Commission, Union Territory, Chandigarh. Facts :- There are four players in this drama of dispute, viz. (i) Sridhar Gajula and Mrs. Manjeet Kaur Gajula, a NRI couple who are the complainants; (ii) M/s Omaxe Limited (the builder), opposite party no.1; (iii) HSBC Limited (the present petitioner), 2nd financier/opposite party no.2; and (iv) ICICI Home Finance Company Limited, 1st financier/opposite party no.3. Respondent/complainants booked flat no. 101 in Florenz Tower, costing Rs.31,14,800/-, of builder-M/s Omaxe Limited on payment of Rs.50,000/- on 27th of June, 2004, which was followed by payment of Rs.2,64,800/- on the 23rd of August, 2004. The said flat was allotted to them by the builder-M/s Omaxe Limited vide their letter dated 9th of September, 2004. In order to finance the said flat, respondent/complainants had availed loan facility to the extent of Rs.28.00 Lakhs @ 7.75% interest per annum from the ICICI Home Finance Company Limited/opposite party no.3, which was sanctioned and the amount was to be repaid in 120 equal monthly installments of Rs.32,511/-. As per the loan agreement, amount was to be directly paid by the ICICI Home Finance Company Limited/opposite party no.3 to the builder-M/s Omaxe Limited by way of installments and the respondent/complainants were required to pay pre-EMI interest as and when demanded by the ICICI Home Finance Company Limited/opposite party no.3. Meanwhile, builder-M/s Omaxe Limited increased the cost of the flat to Rs.38,84,507/-. It so happened, that when the respondent/complainants were in India sometime in October, 2006, they were approached by one Shri Yogesh Saini, Manager of the petitioner-HSBC Ltd., who offered to arrange for a loan and take care of their burden with regard to increased cost of the flat by getting a loan of Rs.40 Lakhs sanctioned from the petitioner-Bank but at a higher rate of interest. Since the respondent/complainants were getting the whole enhanced cost of the flat financed, they agreed to his proposal, specially when Shri Yogesh Saini had offered to get the previous loan sanctioned by the ICICI Home Finance Company Limited transferred and they would be required to deal only with the petitioner-Bank. Accordingly, the petitioner-Bank sanctioned a loan of Rs.40 Lakhs and took over the loan granted by the ICICI Home Finance Company Limited/opposite party no.3. They got all the relevant papers/documents signed from the respondent/complainants in order to complete their formalities. The loan amount of Rs.40 Lakhs was sanctioned. As per the terms of the loan agreement, the monthly installments of Rs.41,159/- was to start after the whole amount of Rs.40 Lakhs was disbursed by the petitioner-Bank. Prior thereto, respondent/complainants were required to pay the only pre-EMI interest as and when demanded by them, which was duly paid by the respondent/complainants. However, despite all the promises and assurances and even after claiming an amount of Rs.76,790/- as foreclosure charges, the petitioner-Bank failed to disburse the amount demanded by the builder-M/s Omaxe Limited. Notices received by the respondent/complainants from the builder-M/s Omaxe Limited were handed over to the petitioner-Bank with request to disburse the demanded amount out of the loan sanctioned but they failed to remit the amount due to the builder-M/s Omaxe Limited on one pretext or the other. At times they stated that the concerned Manager/representative has changed and the new officer is in the process of completing the documents with regard to release of the balance loan amount, yet at another time stating that the loan amount will be released to the builder-M/s Omaxe Limited within a week. Meanwhile, builder-M/s Omaxe Limited despite their failure to deliver the flat within the promised time kept on charging penal interest.

THE grouse of the respondent/complainants was that the petitioner-Bank in order to take over the business of loan from the ICICI Home Finance Company Limited/opposite party no.3, falsely promised them that they would take care of their entire burden and thereafter left them to fend for themselves and despite repeated requests failed to release the payment to the builder-M/s Omaxe Limited, which has resulted in payment of the final installment of Rs.9,45,509/- by them in order to save the flat from being cancelled. Out of their sheer desperation respondent/complainants had to approach the District Forum seeking various reliefs from the petitioner-Bank as well as from the other opposite parties i.e. the builder-M/s Omaxe Limited and also from the ICICI Home Finance Company Limited/opposite party no.3. The District Forum, on appreciation of the evidence adduced before it by the parties concerned, directed the builder-M/s Omaxe Limited to pay a sum of Rs.2,11,150/- while the present petitioner-Bank was directed to pay a sum of Rs.2,75,140.91 for deficiency in service. Even, the ICICI Home Finance Company Limited/opposite party no.3 was directed to pay a sum of Rs.50,000/-. All the opposite parties were also directed to pay litigation expenses of Rs.5000/- jointly and severally.

Thereafter, the order of the District Forum was challenged by all the four parties i.e. respondent/complainants as well as the three opposite parties before the State Commission. The State Commission, on consideration of the pleas advanced by the parties and re-appreciation of the evidence, dismissed the appeal of petitioner-Bank as also the appeal of respondent/complainants for enhancement of compensation while it accepted the appeal of builder-M/s Omaxe Limited and the ICICI Home Finance Company Limited/opposite party no.3 and dismissed the complaint against them. Ultimately the entire fault has been apportioned to the present petitioner-Bank out of the four players and they have been ordered to refund the foreclosure charges of Rs.76,790/-; amount of Rs.98,350.91 on account of interest on delayed payments which the respondent/complainants had to pay to the builder-M/s Omaxe Limited and in addition a compensation of Rs.1 Lakh for gross negligence in remitting the balance amount.

AGGRIEVED upon this decision of the State Commission, the HSBC Limited have filed this revision petition. We have heard the learned counsel for the parties and have also perused the available records of the case. Facts emerging out of the concurrent orders passed by both the fora below, which were based on the evidence produced before them, indicate that the petitioner-Bank had perhaps as a measure of aggressive marketing strategy offered to take over the loan already sanctioned to respondent/complainants by the ICICI Home Finance Company Limited/opposite party no.3 and to do that they had lured the respondent/complainants with the promise to sanction their entire loan requirement of Rs.40 Lakh. However, after taking over their liability to the tune of Rs.27,15,895/- from ICICI Home Finance Company Limited and obtaining the requisite documents and security in its favour, it failed to disburse the remaining loan amount. The evidence clearly indicate that the petitioner-Bank deferred and delayed the payment of dues/installments to the builder-M/s Omaxe Limited despite repeated requests by the respondent/complainants. In sheer desperation and in order to save the flat, respondent/complainants, therefore, had to pay the penal interest as per the agreement with the builder-M/s Omaxe Limited from their own pocket. Had the petitioner-Bank abided by its terms, the respondent/complainants would not have had to face this situation and in the bargain they were not only mentally harassed but also had to put to heavy loss. Deficiency in service by the petitioner-Bank is writ large. Learned counsel for the petitioner has tried in vain to raise unsustainable pleas that the top-up loan was entirely a different transaction and that they were entitled not to release the amount since the respondent/complainants had failed to provide certain documents, in particular the document relating to transfer of lien. This argument cannot be accepted for the simple reason that when the petitioner-Bank had got the loan sanctioned by the ICICI Home Finance Company Limited/opposite party no.3 transferred in its favour, it must have satisfied itself that all the requisite documents and securities were intact. Therefore, to ask for any further document was only an excuse not to release the sanctioned loan amount. From a perusal of the various communications exchanged between the respondent/complainants and the petitioner-Bank it is abundantly clear that the petitioner-Bank without any valid reason has not released the dues/installments despite its promise to do the same.

IN view of the discussion above, we are not convinced that there is any merit in this revision petition. We do not find that the fora below have either exceeded their jurisdiction in arriving at the finding or have committed any illegality or material irregularity. The revision petition, therefore, is dismissed with a cost of Rs.5000/- to be paid by the petitioner-Bank to respondent/complainants. The petitioner-Bank is directed to comply with the order of the State Commission and also pay the cost now awarded within a period of two months, failing which it will attract interest @ 7% per annum till the date of its payment.