West Bengal

Siliguri

CC/2012/131

MR. HIMADRI KUMAR MAITRA, - Complainant(s)

Versus

1) Ms. CHANDA KOCHHAR - Opp.Party(s)

22 Jul 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

 

CONSUMER CASE NO. : 131/S/2012.                DATED : 22.07.2015.

                

BEFORE  PRESIDENT              : SRI BISWANATH DE,

                                                              President, D.C.D.R.F., Siliguri.

 

 

                      MEMBERS              : SMT. PRATITI  BHATTACHARJEE &

                                                              SRI PABITRA MAJUMDAR.

 

COMPLAINANTS             1.         : MR. HIMADRI KUMAR MAITRA,

 

                                                2.         : SOVA MAITRA

 

  Both residents at : Panpara, Near old Masjid   

  Lane, P.S.- Kotwali, P.O. & Dist.- Jalpaiguri.

 

            O.Ps.           1)       : Ms CHANDA KOCHHAR,

  Managing Director & CEO of ICICI Bank, 

  Registered office, ICICI Centre, Church Gate,

  Mumbai – 400 020.

                                                                                                                                                               

2)         : THE MANAGER,

  The ICICI Home Finance Company Ltd.,

  ICICI BANK (Home Loan),

  3A, Gurusaday Road, Kolkata – 700 019.

 

3)        : THE MANAGER,

 The ICICI Home Finance Company Ltd.,

 ICICI BANK (Home Loan), Siliguri Branch,   

 Shyam Jyoti Building (1^st Floor), Sevoke Road,      

 Siliguri – 734 001, P.S.- Siliguri,

 Dist.- Darjeeling.

 

                                                4)         : THE MANAGER,

  ARCIL Arms Ltd.,

  109/38, Hazra Road (1^st Floor),

  Behind Paramount Nursing Home,

  P.S.- Tollyganj, Kolkata – 700 026.   

                                                                                                                                                                      

FOR THE COMPLAINANT         : Malini Chakraborty, Advocate.

FOR THE OP No.1, 2 & 3               : Sri Tapas Chandra Bhattacharya, Advocate.

FOR THE OP No. 4                         : Sri Milindo Paul, Advocate.

 

J U D G E M E N T

 

Mr. Biswanth De, Hon’ble President

 

The case of the complainant is that the complainant took total amount of Rs.3,10,000/-, rate of interest 8.5%, tenure of 120 months,

Contd…..P/2

-:2:-

 

 

EMI of Rs.3,844/- by executing agreement (Annexure –A), the copy of letter issued by ICICI Bank (Annexure-B).  The complainant has been paying the aforesaid EMI of Rs.3,844/- for 55 months without any default amounting Rs.2,11,420/-, along with a pre EMI of Rs.24,951/- and thus total amount paid is Rs.2,36,371/-.  On 13.02.2006 OP issued a letter to this complainant regarding increase rate of interest by Rs.0.508 % fixing the increased rate at 9% effective from 13.02.2006, but the EMI was Rs.3,844/- and total tenure to 136 months.  On 10.04.2007 by a letter the rate of interest again increased to 10.75% and tenure to shorten to 69 months.  EMI was refixed at Rs.5,685/- to be paid by 69 months, but the complainant denies to accept the new installment @ Rs.3,844/-, within a short time for which a lump sum money became due.  The OPs have been insisted the complainant to make the payment according to as per enhanced rate.  On 16.11.2007 an advocate’s notice was issued to the OP No.2 & 3.  The complainant did not get any reply which has been marked as Annexure-E.  The complainant is prepared to make payment @ Rs.3,844/- for a tenure 136 installments.  The OPs are threatening the complainant to face dire consequences.  The OPs were also apprehending the complainant for assault for not paying an enhanced EMI.  The OPs threatened the complainant to pay the enhanced EMI and due amount of Rs.67,380/-.  It is also allegation of the complainant that due to such threatening by the OPs the complainant has been suffering from different kind of diseases.  Coy of treatment is marked as Annexure-F.  The complainant sent a notice dated 26.09.2012 under Section 13(2) of Securitisation and Reconstruction of Financial Assets And Enforcement of Security Interest Act, 2002.  Notice dated 26.09.2012 was issued by the complainant under SARFAESI Act asking for a refund of an outstanding amount of Rs.6,10,730.52/- which has been received by the complainant on 09.10.2012.  The OP has no authority to issue such a notice.  Accordingly, reply of the notice was sent.  The notice of the OP and reply

 

Contd…..P/3

-:3:-

 

 

by the complainant marked as Annexure ‘H’.  The cause of action started from 13.02.2006 when the letter of floating rate of interest and installment amount was received and thereafter day to day. 

The case was filed within the period of limitation.  Hence, this complaint, before this Forum praying for compensation. 

The OP Nos. 1, 2 & 3 have filed written version denying inter-alia all the material allegations as raised by the complainant shows in the complaint that OPs granted a loan of Rs.3,10,000/- on terms and conditions contained in a written agreement under Loan Agreement No.LBJPI00000577794.  The said loan would be payable by the complainant in 120 equated monthly installment of Rs.3,844/- each under floating rate of interest.  The first installments were payable in September, 2005.  The loan was granted subject to the floating rate of interest and the home loan floating rate of interest.  All floating rate home loans are bench-marked to ICICI Home Prime Lending Rate.  Whenever, there is change in PLR, the rate of interest automatically changes for all the floating rate customers and the effect will be applicable from the first day of the following quarters.  Accordingly, a letter was issued asking the complainant for payment floating rate of interest and refixed installment amount for 69 months effective from April, 2007.  The EMI amount is Rs.5,658/-.  It was also condition that on any default by the complainant in the repayment of any amount due under the said agreement, the agreement will stand terminated ipso facto and the complainant will be liable to make full payment. 

It is also the case of the OPs that OP Nos.1 to 3 by a Deed of Assignment dated 28.09.2007, OPs have transferred all rights, title and interest in respect of the loan account of the complainant in favour of Asset Reconstruction Company of India Ltd. (ARCIL) and thereby handed over all cheques and security documents to ARCIL.

Complainant has filed the following documents :-

1.       The copy of the Agreement marked as Annexure A.

 

Contd…..P/4

-:4:-

 

 

2.       The cop of a letter issued by ICICI Bank determining the terms and conditions of the aforesaid loan amount, tenure, rate of interest, amount of EMI marked as Annexure – B.

3.       The copy of letter dated 13.02.2006 issued by ICICI Bank with enhanced rate of interest and increased tenure marked as Annexure-C.

4.       The copy of letter marked as Annexure-D.

5.       A copy of the letter marked as Annexure ‘E’.

6.       A copy of the prescriptions of consulting physician Annexure-F.

7.       Copies of previous suit and appeal with order dated 18.10.2012 (Ann.-G).

8.       A copy of letter dated 26.09.2012 and a copy of reply as annx. – H.

 

OPs have not filed any documents but conceded to the documents as filed by the complainant.

Points for consideration

 

1.       Whether the complainant took any amount from OPs as interest as per agreement.

2.       Whether the OPs have right to impose any other terms exceeding the term made at the time of agreement.

 

Decision with reason

 

These two issues are taken up together for discussion.

The complainant has stated on oath that he has been paying EMI of Rs.3,844/- for 55 months without any default totalling Rs.2,11,420/-.  Complainant also paid pre-EMI of Rs.24,951/-.  Thus total amount paid is Rs.2,36,371/-.  The OPs issued a letter to this complainant on 13.02.2006 wherein the OPs increased the rate of interest by 0.5% fixing the interest rate at Rs.9% with effect from 13.02.2006 keeping the EMI amount Rs.3,844/-, but tenure was increased to 136 months. 

In fact, complainant took loan of Rs.3,10,000/- with a rate of interest of 8.5% and for a tenure of 120 months @ EMI Rs.3,844/-.  It

 

Contd…..P/5

-:5:-

 

 

has also been stated by the complainant that on 10.04.2007 the OPs issued a letter where the rate of interest was increased by 2% fixing at 10.75% and tenure was shorten to 69 months with effect from 01.04.2007.  So, the EMI amount was refixed at Rs.5,685/- to be paid by 69 months.  The complainant also stated that he is regular payee of the previous EMI such an exorbitant rise with a floating rate of interest and the floating loan tenure is an absolute deficiency in service and unfair trade practice adopted by the OPs.  The OPs also did not take the installment amount at Rs.3,844/- by depositing the cheque for which a lump sum amount became due.  After that the complainant issued advocate’s letter upon the OP Nos.2 & 3.  There was no reply from OP Nos.2 & 3.  The complainant is ready to make payment at the rate of interest and accordance with the installment made in the first agreement.  It is also stated by the complainant that during the pendency of this petition, any letter from any other authorities is not permissible. 

The Ops also filed affidavit-in-chief wherein they stated in para 6 “whenever there is change in PLR, the rate of interest automatically changes for all floating customers”.  Accordingly, the OPs intimated the fact conveyed by letter in February, 2006 and April, 2007.  The EMI was raised for 69 installments. 

The main point of dispute is the complainant agrees to pay the loan amount as per initial agreement and term.  OPs want to get increased floating rate of interest.  Except this point, there is no dispute between the complainant and the OPs. 

The ld advocate of the complainant argued that when there is an expressed agreement between the party by which loan was granted to the complainant, and the complainant has paid 55 installments as fixed amount and after four years later the OPs cannot import a new theory of floating rate of interest.  Major portion of the loan have been paid as per their interest chart calculating the interest of 120 months of

 

Contd…..P/6

-:6:-

 

 

Rs.3,10,000/-.  So, after four years and six months, the OPs cannot adopt this means to get more interest from the complainant.  Moreover, at the time of making the letter in the year 2006 and 2007, no intimation was given to the complainant regarding their consent that rate of interest would be imposed at the floating rate and installment amount would be fixed by OPs i.e., time and amount would be fixed by the OPs bank.  Complainant argued that without consent of complainant no such modification is allowed in law because consent is a prime factor of a contract.  On the other hand the OPs bank submitted that OPs have liberty to impose floating rate of interest. 

From the record, it appears that the complainant was sanctioned loan and installment was fixed at the previous rate.  The Ops also took the amount as per rate of interest prevailed when the agreement was done.  The loan having being sanctioned in the year 2003 with condition to charge rate of interest 8.5% and cannot extend the EMI without written consent of the complainant.  The argument of complainant is that consent was required to change the prevailed conditions i.e., rate of interest, installment and tenure of installment.  Against this argument the OPs argument is that Bank is a liberty to change the rate of interest and extension of time.

The contention of the OPs as per para 6 of the evidence in chief is not acceptable without consent of the complainant. 

So, after a great deliberation over the case of both sides, we are of opinion that prayer made by the complainant should be allowed and thus complainant will pay installment amount of Rs.3,844/- for a tenure of 136 months and rate of interest 8.5%. 

The complainant is also entitled to get compensation and other cost. 

The complainant has suffered much because OPs bank did not take the EMI. 

Now it would be very hardship for the complainant to deposit the

 

Contd…..P/7

-:7:-

 

 

large amount.  The acts of the OPs/bank created mental harassment and stress of complainant, for which OPs should make compensation of Rs.2,50,000/- and litigation cost of Rs.10,000/- to the complainant. 

In the result, the case succeeds on contest. 

Hence, it is

                     O R D E R E D

that the Consumer Case No.131/S/2012 be, and the same is allowed on contest. 

The complainant is entitled to pay installment amount of Rs.3,844/- for a tenure of 136 months at a rate of interest 8.5% to the OPs bank. 

The complainant is also entitled to get Rs.2,50,000/- towards compensation for mental harassment and stress. 

The complainant is also entitled to get Rs.10,000/- towards litigation cost. 

The OPs bank, jointly and severally liable, are directed to accept the installment amount of Rs.3,844/- for a tenure of 136 months at a rate of interest 8.5% from the complainant. 

The OPs bank, jointly and severally liable, are also directed to pay Rs.2,50,000/- by issuing an account payee cheque in the name of the complainant towards compensation for his mental harassment and stress, within 45 days of this order.

The OPs bank, jointly and severally liable, are also directed to pay Rs.10,000/- by issuing an account payee cheque in the name of the complainant for litigation cost, within 45 days of this order.

Failing which the amount will carry interest @ 9 % per annum from the date of this order till realization.

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.

 

 

-Member-                     -Member-                         -President-