JUSTICE J.M. MALIK, PRESIDING MEMBER 1. New Empire Textiles Processors Pvt. Ltd., the Appellant/ complainant, used to have borrowing arrangements with the Central Bank of India, the Respondent/OP. The complainant committed defaults and in order to recover its dues, the Bank enforced its security under the charge and also filed a Suit for recovery in the sum of Rs.37,08,620.34 in the High Court of Mumbai. During the pendency of this case, the complainant’s management was changed. They decided to pay all the dues of the Bank. A proposal was made by the complainant vide its letter dated 20.05.1996, informing the Bank that they desired to pay the outstanding dues of the Bank and, in turn, the Bank would hand-over original title deeds of the property along with other related papers and also issue No Dues Certificate. In reply to the same, the Bank, vide its letter dated 13.09.1996, advised the complainant to pay total amount of Rs.62,82,297.35 to square up the pending dues and further interest from 11.09.1996, till the date of settlement. The complainant made Pay Order in the sum of Rs.63,39,000/-, dated 26.09.1996. The amount was paid on account basis. The company gave the amount with the understanding that if the excess amount was paid, the same would be returned to the complainant. 2. Again, vide letter dated 30.01.1997, the complainant asked the Bank to refund the balance. The Bank refunded the amount of Rs.85,814.66 on 17.02.1997. Further, the complainant was not satisfied and asked the Bank to provide the details of calculation made while refunding the excess amount. That matter could not be settled. Consequently, the complainant filed complaint wherein it alleged that the Bank had charged Rs.12,32,191.30ps towards the excess amount and, further, claimed interest over that amount @ Rs.6,14,486.50 on the said amount at 20.75% interest p.a., with quarterly rest basis for the period from 30.09.1996 to 30.09.1998, thus, making total claim of Rs.18,46,677.80ps. 3. The Bank contested this case. The State Commission dismissed the complaint vide order dated 19.11.2010. 4. We have heard the counsel for the parties. The counsel for the Respondent/OP submitted that it had filed a Suit bearing No.4322/1994 before the Hon’ble High Court for recovery of Rs.37,08,620.34 with a further interest @ 20.75% p.a. It appears that after the receipt of the said amount, the said case was withdrawn from the Hon’ble High Court. The order of the Hon’ble High Court, dated 14.10.1996, runs as follows: On the application made by the learned counsel for the Plaintiffs, Suit allowed to be withdrawn. No order as to costs. c.c. expedited”. 5. Learned counsel for the OP vehemently argued that the civil suit already stands decided. This Commission cannot arrogate to itself the powers with which it is not armed. Only Hon’ble High Court has got the power to decide this case. Again, the complainant did not file any counter claim before the Hon’ble High Court. However, he admitted that there was no consent decree or settlement between the parties. Counsel for the respondent has cited the following authority - CC No. 360 of 2013, decided on 19.02.2014, Heights Trade Pvt. Ltd. Vs. UCO Bank. 6. All these arguments have left no impression upon us. The Hon’ble High Court did not finally adjudicate this case. The same was dismissed as withdrawn. No consent decree was passed. The judgment of the Hon’ble Apex Court in Mrs. Vijayalakshmi Sasidharan Vs. Branch Manager, Syndicate Bank, decided on 13.02.1997, it was held that ‘mere filing of the suit for recovery of amount, may not be an absolute bar on the Commission to go into that question’, for the reason that the issue before that Civil Court is not the deficiency in service, unless that is specifically raised as defence in the suit. 7. In The Secretary, Thirumurugah Vs. M. Lalitha (Dead), Civil Appeal No. 92/1998, decided on 11.12.2003, it was held as under :- “The preamble of the Act declares that it is an Act to provide for better protection of the interest of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers’ disputes and matters connected therewith. In Section 3 of the Act in clear and unambiguous terms, it is stated that the provisions of 1986 Act shall be in addition to and not in derogation of the provisions of the any other law for the time being in force. From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers”. 8. The counsel for the complainant also cited the authority of M/s. Fair Air Engineers Pvt. Ltd. & Anr. Vs. N.K. Modi, decided on 20.08.1996. 9. This Commission in the case of Nirmal Kumar Das Vs. Krishna Rana & Anr., Revision Petition No.1853/2015, decided on 12.10.2015, took the same view. Consequently, we are of the view that this case is maintainable. 10. The next submission made by the counsel for the Bank is that this is a commercial transaction. No loan agreement has been placed on record. 11. We see no force in this argument. The cause of action had arisen prior to the amendment of the C.P. Act, 1986, i.e., 15.03.2003. Such like complaints against the Banks used to fall within the jurisdiction of the consumer fora. However, after 15.03.2003, such like complaints have been barred. 12. The main question which falls for consideration is, “whether, the Bank has charged the money, in excess?”. The complainant company informed the bank on 30.04.1996 that there was change of management and they would pay the amount. They required the Bank to inform about the status of the outstanding liability. The Bank, vide their reply dated 13.09.1996, informed the complainant that the total amount was Rs.62,82,297.34. The complainant sent to the Bank a Pay Order, dated 26.09.1996 to the extent of Rs.63,39,000/-. Vide letter dated 17.02.1997, the Bank refunded Rs.85,814.66ps, being refund, excess legal charges and recovery made in the account. The complainant was not yet satisfied. On 15.01.1998, the complainant sent a legal notice dated 15.01.1998, to the Bank, in which it was mentioned, as under :- “On behalf of my clients, I now call upon you to: - Refund to my clients the excess amount of interest charged to my clients at a rate more than suit filed rate of 20.75% per annum. This amount of refund will bear interest @ 22% per annum compounded quarterly from the date of payment i.e. 26.9.96 till the date of refund by you to my clients, and
- Give explanations to my clients for excess interest charged to my clients with all the calculations from 31.3.93 till the date of final adjustment of the account of my clients”.
13. The Legal Notice was replied by the Bank on 19.11.1998, where, it was mentioned, as under :- “With reference to paragraph 6, our clients deny that at any time any calculations as per Ex. B or otherwise were given as alleged. Our clients say that the settlement arrived at between our respective clients was outside the court and as such our clients have rightly claimed interest at 26% being the prevailing rate chargeable as per bank laid down rules for out of order accounts”. 14. The most important document is Savings Account Ledger, Ex.G, which mentions the rate of interest at 26% p.a., from 30.09.1994. This is an admitted fact that the rate was enhanced vide Circular, dated 01.02.1996. The said Circular has been placed on record, which mentions the rate at 25-26%, w.e.f. 01.02.1996. It is, thus, clear that the OP bank has charged excess rate of interest, w.e.f. 30.09.1994 to 01.02.1996. The Bank is liable to refund that excess rate of interest. 15. It is also not out of place to mention that in the complaint, the complainant mentioned in the prayer clause, as follows :- “(a) That the OP ordered to pay to the complainant the excess amount illegally charged by them. Rs. 12,32,191.30 (b) Interest on the said amount @20.75% p.a. with quarterly rests from 30.09.1996 to 30.09.1998. Rs. 6,14,486.50 _________________________ Rs. 18,46,677.80 (c ) that OP be ordered to pay reasonable interest after 30.09.1998 till the date of payment. (d) That OP be ordered to pay towards mental agony. Rs. 30,000.00 (e ) that OP be ordered to pay towards cost of this suit. Rs. 10,000.00 ___________________ Rs. 18,76,677.00 ____________________ 16. In the result, we hereby direct that the OP Bank will refund the excess amount of interest from 26% to 20.5% in favour of the complainant, from 30.09.1994 to 01.02.1996. It will also pay interest @ 18% p.a., from 30.09.1994, till realization, on the said excess interest charged, periodically. We also impose costs and litigation charges in the sum of Rs.30,000/- and all the amounts be paid to the complainant, within 90 days’ from the date of receipt of copy of this order, otherwise, it will carry interest @ 18% p.a., till realization. |
