Punjab

Ludhiana

CC/21/223

Rakesh Kumar - Complainant(s)

Versus

Capital finance Bank Limited - Opp.Party(s)

Munish Kumar

06 Jun 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:  223 dated 23.04.2021.                                                       Date of decision: 06.06.2024. 

 

Rakesh Kumar S/o. Vijay Kumar, R/o. Nai Abadi Khanna, District Ludhiana (Punjab).                                                                                                                                                                                       ..…Complainant

                                                Versus

1. Chairman & Managing Director, Capital Small Finance Bank Limited, Midas Corporate Park, IIIrd Floor, 37, G.T. Road, Jalandhar-144001, INDIA.
2. Manager, Capital Small Finance Bank, G.T. Road, Khanna-141401, District Ludhiana.                                                                                                                                                          …..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Munish Kumar Goyal, Advocate.

For OPs                          :         Sh. Manu Mittu, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant is a customer of the OPs from last three years. The OP Capital Small Finance Bank Limited was earlier known as Capital Local Area Bank prior to 24.04.2016 with which the complainant had an overdraft account No.038400000006 and a housing loan and a WCTL A/c which were amended in last two months after March 2019. The complainant stated that he many times sent Emails to the OPs regarding the mal trade practice of their employees who were making false promises and commitments to the customers to get good business for the OPs. The representative of the OPs approached the complainant in February 2019 to increase his funds limit for personal purpose from 20 Lakhs to 80 Lakhs for earning his livelihood and told that he will make the limit within days after he started working on it on the rate of interest @9.85% for limit. He also told that he will make the limit in April i.e. new financial year, for which the complainant agreed but till May 2019 he started making excuses. Then the complainant approached Branch Manager, Khanna and asked him to increase the limit. Thereafter, the limit was sanctioned after many efforts of the complainant after approaching cluster head. However, the bank applied the interest @11.85% and 11.4% approximately than the promised rate of interest of 9.85% in all the accounts. The complainant further stated that the representative of the OPs assured him to rectify the same by mailing to head office after 15.07.2019. Even the complainant asked him to give in writing regarding rectification of rate of interest and also to reverse the excess amount applied to his bank account along with reversal of charges of RTGS and NEFT of whole year as committed by him then he replied the complainant that I am not your servant. The complainant brought all this into knowledge of the branch manager and thereafter transferred his accounts with ICICI Bank Limited. The complainant further stated that the OPs did not give the original documents and asked for a hefty amount i.e. 2% of total limit account for settling the account as charges. As the complainant was in need of original documents of his property and he sent complaints to higher authorities of the OPs bank through Emails but to no effect. The OPs blackmailed him and extorted heavy amount as charges for settling the account and for issuing the original registries of his properties to the tune of Rs.94,400/- as charges as well as Rs.35,400/- as processing fee. The complainant visited the OPs with request not to charges such huge amounts being their old customer but they did not listen to the complainant. The OPs have not taken any action on the complaints moved by the complainants which amounts to deficiency in service due to which the complainant suffered mental agony, harassment etc. In the end, the complainant has prayed for issuing directions to the OPs to refund the charges of Rs.35,400/- and Rs.94,400/- along with interest and also to pay compensation of Rs.3,00,000/- besides litigation expenses of Rs.50,000/-.

2.                Upon notice, the OPs appeared and filed joint written statement and assailed by complaint by taking preliminary objections on the grounds of maintainability; concealment of material facts; the complaint being an abuse of process of law; the complaint has been filed to harass and extort money from the OPs etc. The OPs stated that the complainant was their customer and the ODT Account bearing number 7038400000006 and the concerned WCTL account bearing number 038612000003 was in the name of the M/s. Vijay Kumar Rakesh Kumar. However, the complainant had a Housing Loan with the account no.038611000006 in his personal name. The OPs further stated that the Interest rates, the Premature Charges, Processing Fees and any other charges, charged to the complainant by them are as per the terms and conditions of the said "Loan Agreements" and the "Schedule of Charges on Loans & Advances", the contents of which were read over, understood, agreed upon and duly signed by the complainant at the time of signing of the Loan Agreements. Even the complainant was charged only 1% of loan amount of the concerned loan account as Premature charges along with applicable rate of goods and services tax against the actual 2% charges, thereby waiving of 1% premature charges by them. The OPs further averred that keeping in view the R.B.I Guidelines Premature charges were only charged in the WCTL and ODT limit accounts in the name of M/s. Vijay Kumar Rakesh Kumar and the Processing fees was charged to all the loan accounts of the complainant respectively as per the schedule agreed upon and signed by the complainant. Further the complainant through his son also moved a baseless and misconceived complaint bearing number 201920007003511 to Banking Ombudsman against them on the same subject matter, just to harass and to extort money on frivolous grounds from them, which however was amicably settled by the OPs keeping in view the long relationship with the complainant as a Esteemed Customer and complainant was charged only 1% of loan amount of the concerned loan account as Premature charges along with applicable rate of goods and services tax against the actual 2% charges thereby waiving of 1% of the premature charges by the opposite parties. The son of the complainant i.e. Sh. Nitin Garg who vide his Email dated 16.09.2019 acknowledged the said fact. However, on the one side the son of the complainant vide his Email dated 16.09.2019 acknowledged the amicable settlement of the subject matter with the opposite parties and requested the concerned authorities including the Hon'ble Banking Ombudsman to close the said complaint whereas on the other hand when the matter has been settled and complaint with Hon'ble Banking Ombudsman has been closed, the complainant filed the present complaint on the same subject matter just to harass and to extort money from the opposite parties and to make wrongful gain to himself.                   On merits, the OPs reiterated the crux of averments made in the preliminary objections. The OPs have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                In evidence, the complainant tendered his affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents Ex. C1 are the copies of Email correspondence as well as copies of account statement etc., Ex. C2 is the copy of Tax invoice dated 21.09.2019 of Rs.94,400/-, Ex. C3 is the copy of tax invoice dated 21.09.2019 of Rs.35,400/-, Ex. C4 is the copy of statement of account of housing loan, Ex C5 is the copy of statement of account of term loan, Ex. C6 is the copy of statement of account of loan account and closed the evidence.                

4.                On the other hand, the counsel for the OPs tendered affidavit Ex. RA of Sh. Aruninder Kaushal, Manager/Branch Head of Capital Small Finance Bank, Khanna, District Ludhiana  along with documents i.e. Ex. R1 is the copy of loan agreement, Ex R2 is the copy of loan schedule, Ex. R3 is the copy of Email dated 16.09.2019, Ex. R4 is the copy of certified copy of license of the bank, Ex. R5 is the copy of application form for CC, ODP, ODT, WCTL and Project Financing, Ex R6 is the copy of statement of account No.038612000003 and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statement along with affidavit produced on record by both the parties. We have also gone through written arguments submitted by the parties.

6.                Three accounts were maintained by the complainant with the OPs, out of which two accounts were in the name of firm M/s. Vijay Kumar Rakesh Kumar and other housing loan account was in the name of the complainant. The complainant opted for transfer of all these accounts and he paid Rs.94,400/- as charges and Rs.35,400/- as processing fees. The complainant has raised a grievance that the said amounts were excessively charged by the OPs from him. Admittedly, the complainant also raised this issue before Banking Ombudsman and still chosen to file the present complaint.

7.                Perusal of record shows that in ODT account No.038400000006, the loan limit was Rs.50,00,000/-, 1% of which including 18%  GST comes to Rs.59,000/- was charged from the complainant. Further in WCTL account No.038612000003 having loan limit of Rs.30,00,000/-, 1% of which including 18% GST comes to Rs.35,400/- was charged as Takeover Charges. Rs.35,400/- was charged on account of processing fees in ODT loan account and WCTL account in the name of M/s. Vijay Kumar Rakesh Kumar respectively i.e. with respect to ODT account No.038400000006, 0.50% of loan limit of Rs.30,00,000/- including 18% GST comes to Rs.17,700/- as well as WCTL account No.038612000003 having loan limit of Rs.30,00,000/-, 0.50% of which including 18% GST i.e. Rs.17,700/- were charged as Takeover Charges. It is evident that premature charges were levied on two accounts in the name of the firm while applicable processing fee was charged on all the accounts. The complainant could not refer to the terms and conditions of the agreements or rules and regulations of Reserve Bank of India which were not adhered to by the OP bank at the time of charging pre-closure charges and processing fee.

                   Ex. R3 is the Email dated 16.03.2019 which was addressed by the complainant to the OPs wherein the complainant voluntarily offered to pay the amount to close the account. The operative part of Email Ex. R3 reads as under:-

“As the complaint was raised from my side with the complaint number 2019200070035111 from M/s. Vijay Kumar Rakesh Kumar railway road Khanna. Now it is decided that I have to pay the amount of Rs.80000+gst to the bank for getting may papers back with noc from bank along with the gst invoice of total amount. Kindly close the complaint so that I can proceed with bank for further formalities.”

Therefore, the complainant ceased to have any locus standi or cause of action to file the present complaint. Even otherwise, the complainant has failed to discharge initial onus to prove the deficiency in service on the part of the OPs by any cogent and convincing evidence. The Hon’ble Supreme Court of India in its judgment in SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) while relying upon on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. (2000 (1) SCC 66) as well as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2020 (9) SCC 424), in para No.19 and 20 has held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

8.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

9.                Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

 

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

Announced in Open Commission.

Dated:06.06.2024.

Gobind Ram.