CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.237/2011
MRS. JAPINDER KAUR
W/O SH. CHARANJIT SINGH
R/O A-701, ASHA DEEP CGHS LTD.,
PLOT NO. 3B, SECTOR-2,
DWARKA, DELHI-110075
…………. COMPLAINANT
Vs.
- CMD,
CANARA BANK,
HEAD OFFICE 112, J.C. ROAD,
BENGLURU, KARNATAKA
- BRANCH HEAD,
CANARA BANK,
21 SAMMAN BAJAR, BHOGAL,
NEW DELHI-110014
…………..RESPONDENTS
Date of Order:09.08.2018
O R D E R
A.S. Yadav - President
This complaint under Section 12 of the Consumer Protection Act has been filed by Smt. Japinder Kaur against the C.M.D. Canara Bank, OP-1 and Branch Head, Canara Bank, Bhogal Branch, OP-2. The facts stated in the complaint, in brief, are that the complainant jointly with Saranjit Singh Sethi availed a House loan of Rs.10,00,000/- (Rupees ten lakhs) for purchase of Flat no.A-701, Group Housing Society, registered as Asha Deep CGHS Ltd., Plot no.3B, Sector-2, Dwarka, Delhi-110075. The said amount was sanctioned vide Memorandum no. Ref MS/BR/HL/03/04 dated 17.1.2004 on the terms and conditions mentioned therein, which were duly accepted by the complainants by putting their signatures with the clear understanding that no other conditions to be fulfilled for availing this loan except the ones mentioned therein. The total amount disbursed was Rs.9,90,000/- and the same was to be repaid in EMIs of Rs.9669/- each. The complainants were very regular and disciplined towards payment of loan and paid Rs.9700/- per month on time. It is submitted that on 5.5.2006, the OP Bank debited the housing loan account of the complainants with Rs.54043/- without informing them and without bringing the same to the knowledge of the complainants. When it was questioned, no proper explanation with forthcoming as this was not only illegal and unjustified but also amounts to unfair trade practice; the complainants repeatedly requested the bank to recredit the amount but of no use. The complainant sent a written request on 14.2.2007 and reminders dated 8.6.2007 and 11.9.2007. The bank sent its reply to the effect that it is a differential rate of interest charged as directed by inspecting officials. It is submitted that there is no mention on the loan agreement or terms and conditions that any differential rate of interest would be charged; thereafter the OP vide its letter dated 5.1.2008 in response to the complainants letter dated 17.12.2007 at point three mentioned that differential interest rate charged has been refunded bu the amount credited is only Rs.32,052/- which is stated to be short of Rs.21,991/-, out of the total amount of Rs.54,043/- charged as differential interest. In their further letter dated 27.10.2007, the OP tried to cover the remaining interest of Rs.21,991/- stating that it pertains towards penal interest application for the delay in putting through GMT. It further stated that in view of the increasing cost of funds and other policy matters, we regret our inability to consider your request for refund of the penal interest. The complainant further submitted that the charges were debited with mala fide intention just to increase the profit whereas the required interest as per the terms of sanction was already being charged and being paid by the complainant. It is further mentioned that as per the Bank’s circular no.197/2001 dated 4.10.2001, page-1, last two lines clearly indicate that “charging of penal interest should not be viewed as a tool to increase our income, it should be viewed as a measure to discipline the borrower.” It is submitted that the complainants herein were already disciplined and met all the requirements as per the terms and conditions, and there was no reason for the bank to penalize the complainant. The bank’s plea that the mortgage was not created within six months and that is why the bank has charged 1% penal interest was never acceptable to my client as it was never mentioned in the terms and conditions of the sanction. The complainant has prayed that apart from the amount of Rs.54,031/- debited due to banks unprofessional attitude, a sum of Rs.2,00,000/- be awarded as compensation to the complainant.
It would be seen that when the matter was listed on 14.6.12, counsel for the OP submitted that his application dated 17.1.12 may be considered as his Written statement. So, as per the said application (W.S.) dated 17.1.12, it is submitted by the OP that the complainants availed housing loan of Rs.10 lacs which was released on 17.1.2004 and was closed on 20.4.2007, and thereafter the OP has no dealing with the Bank; on 5.5.2006, penal interest of Rs.21,991/- was charged for not creating mortgage/EMT within the stipulated period. The complainant has been agitating for refund of this amount and the OP has repeatedly wrote to her that the refund of this amount is not possible. The legal notice of the complainant was also reply to. It is submitted that in State Bank of India vs. B.S. Agricultural Industries (I) (2009) CPJ 481,in which it was held that the provisions of Section 24A are pre-emptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from date of accrual of cause of action. It is submitted that since the loan account was closed on 20.4.2007 and penal interest was deducted on 5.5.2006, during currency of payment of loan amount; cause of action in favour of the complainant accrued when penal interest was charged/deducted; so the case is very old i.e. about five years old and hence the same being frivolous and vexatious may be dismissed with costs.
The complainants filed their rejoinder/reply to the application u/s 24A of the Act, and submitted that in fact the date of cause of action taken by the OP is wrong and is not in existence at all; and that it is wrong and misleading to state that the penal interest of Rs.21,991/- was deducted on 5.5.2006, and there is no such credit entry in the account statement or any entry of this amount. The OP has nowhere mentioned when limitation to complaint starts running. The first cause of action arose on 5.5.2006 when the bank debited Rs.54,043/- in the Housing loan account no.805/-. This debit was beyond the terms of sanction, illegal and unwanted debit. The second cause of action arose on 20.4.2007 when the complainant was forced to close the housing loan account; and the third cause of action arose on 5.1.2008 when the bank vide their letter dated 5.1.2008 advised the complainant that out of Rs.54,043/- the bank credited Rs.32,052/- to the complainant’s account. Then the matter was taken up many times with the OP to recredit the amount of Rs.21,991/- . The complainants reiterate and reaffirmed the averments mentioned in the complaint.
In her evidence by way of affidavit, the complainant deposed on oath all the averments submitted in her complaint and those stated in the rejoinder; and has also written arguments and also advanced oral arguments through her advocate and briefly submitted that the complainant has suffered at the hands of the staff of the Canara Bank for their ignorance, deficiency of service and unfair trade practice in dealing with loan customer, and have charged penal interest of Rs.21,991/ without any fault of the complainant and did not refund the same and the same has been requested to be refunded to her through orders of this Forum.
The OP Bank has also filed its evidence by way of affidavit of its Senior Manager Mr. Pratap Nayal, and deposed all the relevant facts mentioned by the OP Bank in their reply to the complaint and also mentioned that as per Clause 6 of the Agreement, the complainant was to execute the valid mortgage within 7 days of sanction of loan and undertook to submit possession and other relevant papers within a period of six months, further in clause 13 and 15 agreed to pay penal interest accordingly to usages and practices of the OP Bank. It is also mentioned that when the complainant agitated the issue of penal interest before Banking Ombudsman of RBI, New Delhi , which did not find OP Bank in default, as the OP Bank was entitled to charge for delayed creation of equitable mortgage. It is submitted that the OP had issued letter dated 24.2.2007, as admittedly mentioned in para 23 of the complaint, giving reasons of charging penal interest and the legal notice dated 8.6.2007 was given by the complainant wherein the OP was asked to refund the amount or else the complainant would approach Consumer Forum if it is not refunded. So, according to the OP, the complaint is not filed within the limitation of two years.
Both the parties have filed their respective written arguments/synopsis. The matter was repeatedly listed for final arguments but counsel for the OP failed to appear on 15.12.2016, 25.9.2017 and finally on 1.8.2018. Counsel for the complainant was present and addressed oral arguments as well.
We have gone through the case file carefully.
It is submitted by Ld. Counsel for the complainant that the present complaint is not barred by limitation. It is submitted by him that firstly the cause of action arose on 05.05.2006 when bank debited a sum of Rs.54,043/- in the Housing Loan account No.805. It further arose on 20.04.2007 when the complainant was forced to close the housing loan account. It further arose on 05.01.2008 when bank vide letter dated 05.01.2008 informed that out of a sum of Rs.54,043/-, the bank has credited Rs.32,052/- in the account of the complainant. It further arose when matter was taken by the complainant to Banking Ombudsman on 28.10.2009 and finally it arose on 21.10.2009 when the matter was closed by the Banking Ombudsman.
It is significant to note that in fact the cause of action arose on 05.05.2006 when the bank debited a sum of Rs.54,043/- from the Housing Loan account of the complainant. It finally arose on 27.10.2007 when bank vide its letter dated 27.10.2007 stated “in view of the increasing cost of funds and other policy matters, we regret our inability to consider your request for refund of the penal interest”. The present complaint has been filed on 30.05.2011 i.e. much beyond the period of limitation as provided u/s 24A of the Consumer Protection Act.
It is settled law that any kind of communication would not extend the period of limitation. Reference in this regard is placed on the case of Punjab Small Industries and Export Corporation Ltd. & Anr. Vs Satinder Pal Singh - II (2018) CPJ 245(NC) – in that case the Hon’ble National Commission relied upon the judgment of Hon’ble Supreme Court in case of State Bank of India Vs M/s B.S. Agricultural Industries (I), II (2009) SLT 793=II (2009) CPJ 29(SC) =AIR 2009 SC 2210 wherein it has been held that:-
“8. It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reason to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”
Keeping in view the above facts, the complaint is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(RITU GARODIA) (H.C. SURI) (A.S. YADAV)
MEMBER MEMBER PRESIDENT
