The Complainant has filed this case alleging deficiency-in-service by the O.P, where O.P No.1 is the Branch Manager, State Bank of India, Evening Branch, Sanjay Height, Balasore.
2. The case of the Complainant in brief is that the Complainant had applied for a flood loan and subidha loan on 21.02.2005, which was granted by O.P-Bank on 28.03.2005 amounting Rs.3.00 lacs (Rupees three lacs) only and Rs.1.70 lacs (Rupees one lakh seventy thousand) only respectively, but the O.P-Bank disbursed a sum of Rs.1.00 lakh (Rupees one lakh) only on 07.07.2005 and credited to the passbook of the Complainant, to be repaid in 120 EMIs @ Rs.3,640/- (Rupees three thousand six hundred forty) only per month, but the O.P-Bank has collected 132 installments instead of 120 installments. The rate of interest is not mentioned as per agreement between the Parties rather the rate of interest may be varied in case of default or irregular payment. The O.P-Bank has put a stamp of “Express credit” on the body of agreement beyond the knowledge of the Complainant, but on the passbook “Flood loan” is written with effect from 07.07.2005, which is not mentioned from the year 2006. On an enquiry made by the Complainant, the O.P-Bank compelled him to pay as per direction of Bank, thus the Complainant took shelter before the Banking ombudsman, Bhubaneswar, wherein a conciliation proceeding was held on 29.11.2016 between both the Parties in presence of the Banking ombudsman, as analyzed hereunder:-
1. As per the agreement, the no. of equated monthly installment (EMI) for the loan is 120, but he had paid 132 installments.
2. The Bank has written name of the loan scheme and interest rate in the agreement letter after taking his signature.
3. The Bank has not communicated him whenever there was an increase in the interest rate.
4. In the agreement letter, the loan scheme was mentioned as Subidha loan, but later it has been changed as Express credit.
Thus, the O.P-Bank has extracted 132 installments instead of 120 installments, which is nothing but a cheating and also violation of the terms of the agreement dtd.28.03.2005 and 29.11.2016 (day of conciliation proceeding before Ombudsman). The Complainant has prayed for refund of excess amount collected by the O.P-Bank and also to declare the said loan as flood loan (subidha loan) as per scheme of the loan.
3. Written version filed by the O.P-Bank through his Advocate denying on the point of maintainability as well as its cause of action. The O.P-Bank has further submitted that as per loan application of the Complainant dtd.21.02.2005, the O.P-Bank sanctioned a term loan of Rs.3.00 lacs (Rupees three lacs) only for house repairing purposes on 28.02.2005 as per certain terms and conditions and accordingly, the Complainant executed a personal loan agreement on 10.05.2005 agreeing to the terms and conditions laid down in the said agreement, thus, term loan amount was granted and disbursed. “The loan is to be repaid in 120 equated monthly installments (in short EMI) of Rs.3,640/- (Rupees three thousand six hundred forty) only. The number of EMIs may increase/ vary if the entire loan with interest, cost, charges and expenses is not repaid by/ with the stipulated number of EMIs by reason of increase in the rate of interest or otherwise. The EMIs will have to be paid till the entire loan with interest is fully repaid”. In the instant case, the stipulated number of EMIs has increased due to changes in rate of interest as per directive of R.B.I, which is correctly reflected in the statement of account. Moreover, as per terms under para-5 of personal loan agreement, which is mentioned as:- “the bank shall be entitled to increase or decrease the amount as well as the number of EMI, which comprises of principal and interest at its sole discretion either on account of change in interest rate or otherwise and the Borrower undertakes to pay EMI as determined by the Bank till the time the entire loan together with interest and other unpaid penalty, costs, charges and expenses is repaid”. Further, decisions of the Banking Ombudsman held in the conciliation proceeding held on 29.11.2016 in presence of both the Parties is narrated as hereunder:- “According to decisions of the Banking Ombudsman, it is suggested that, “the present outstanding of Rs.1,58,480/- (Rupees One lakh fifty eight thousand four hundred eighty) only may be paid at the rate of Rs.10,000/- (Rupees Ten thousand) only per month by the Complainant and the Bank would not charge any interest till recovery of this amount in full. The Bank was agreeable with this proposal. However, it was not acceptable to the Complainant. Hence, it was decided that the complaint would be closed based upon the decision taken in the conciliation meeting”. Therefore, the Complainant is guilty for having flouted the decision of the Banking Ombudsman, Bhubaneswar and the O.P-Bank is no way responsible for any latches or deficiency of services”.
4. In view of the above averments of both the Parties, the points for determination of this case are as follows:-
(i) Whether this Consumer case is maintainable as per Law ?
(ii) Whether there is any cause of action to file this case ?
(iii) To what relief the Complainant is entitled for ?
5. In order to substantiate their claim, both the Parties have filed certain documents as per list. Perused the documents filed. It has been argued on behalf of the Complainant that as per agreement, he has to repaid the loan amount in 120 EMIs @ Rs.3,640/- (Rupees three thousand six hundred forty) only per month, but he has paid 132 EMIs at the same rate as per instruction of the O.P-Bank. Furthermore, he has taken the flood loan and without his knowledge, the O.P-Bank has put a stamp of "Express credit" on the agreement. The Complainant has filed this case in the Forum praying for refund of excess amount of 12 EMIs amounting to Rs.41,680/- (Rupees Forty one thousand six hundred eighty) only, which was collected by the O.P-Bank. On the other hand, it has been argued on behalf of the O.P-Bank that after sanction of term loan of Rs.3.00 lacs (Rupees three lacs) only, the Complainant has executed loan agreement and the loan amount is to be repaid in 120 EMIs @ Rs.3,640/- (Rupees three thousand six hundred forty) only. The number of EMIs may increase/ vary if the entire loan with interest, cost, charges and expenses is not repaid by/ with the stipulated number of EMIs by reason of increase in the rate of interest or otherwise. This fact is reflected in the agreement and the rate of interest in the agreement is 10.25%. So, the Bank has no deficiency of service against the Complainant. The copy of loan agreement submitted by both the Parties in the case discloses that the rate of interest in the loan is floating rate of interest. In the column-3 of the agreement regarding repayment is reads as follows:- “The loan is to be repaid in 120 Equated Monthly Installments (EMIs) of Rs.3,640/- (Rupees three thousand six hundred forty) only. The number of EMIs may increase/ vary if the entire loan with interest, cost, charges and expenses is not repaid by/ with the stipulated number of EMIs by reason of increase in the rate of interest or otherwise. The EMIs will have to be paid till the entire loan with interest is fully repaid. The first installment commences from the month following the month of disbursement of loan”. Further, in the loan agreement, it has been mentioned as follows:- “The Bank shall be entitled to increase or decrease the amount as well as the number of EMI, which comprises of principal and interest at its sole discretion either on account of change in interest rate or otherwise and the Borrower undertakes to pay EMI as determined by the Bank till the time the entire loan together with interest and other unpaid penalty, costs, charges and expenses is repaid”. But, in the instant case, the Bank has relied upon the Authority reported in I (2014) CPJ-190 (NC) in the case of Himatsinh Narayanrao Shinde (Dr.) (Vrs.) LIC Housing Finance Co. Ltd., wherein it has been held by Hon’ble National C.D.R Commission, New Delhi that, “whenever there is change in interest rate, amount of EMI and repayment schedule are likely to change, accounts maintained by any lending institution are supposed to present clear picture about recovery amount and outstanding amount on given rate and rate of interest charged from loanee for a particular period. The Petitioner not able to show that O.P has charged any extra/ excessive amount from him, which was not permissible under rules”. But, in the instant case, the O.P has not filed any document in this regard including statement of account. The Complainant has also not filed the same. Though the Complainant has filed the relevant portion of the Savings bank passbook, the change of interest from time to time has not been intimated to the Complainant by the Bank though the Bank has filed a list of change of rate of interest from time to time. The Complainant has relied upon the Authority reported in 122 (2016) CLT-427 (SC) in the case of Amarjeet Jolly & Anr. (Vrs.) Corporation Bank, but the facts and circumstances of this case is not applicable to the present case in hand.
6. So, now on careful consideration of all the materials available in the case record and on the basis of principle laid down by the above Authority as discussed earlier, this Forum come to the conclusion that there is deficiency of service on the part of the O.P-Bank and the O.P-Bank is directed to pay the excess amount of 12 EMIs to the Complainant within 60 days of receipt of this order and failure to comply the same by the O.P will carry interest @ 10.25% per annum, which will meet the ends of Justice in this case. Hence, Ordered:-
O R D E R
The Consumer case is allowed on contest against the O.P-Bank without any cost. The O.P-Bank is directed to pay the excess amount of 12 EMIs to the Complainant within 60 days of receipt of this order, failing which it will carry interest @ 10.25% per annum from the date of order till realization. The Complainant is also at liberty to realize the same from the O.P as per Law, in case of failure by the O.P to comply the Order.
Pronounced in the open Forum on this day i.e. the 23rd day of October, 2017 given under my Signature & Seal of the Forum.
