Haryana

Yamunanagar

CC/86/2010

Alok GarG s/o sh.Mithlesh Kumar Garg - Complainant(s)

Versus

Citi Financial - Opp.Party(s)

R.L.Chaneti

26 Nov 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                     Complaint No. 86  of 2010.

                                                                                     Date of institution: 4.2.2010.

                                                                                    Date of decision: 26.11.2015

Alok Garg s/o Sh. Mithlesh Kumar Garg resident of C-2/734, Lakkaraharan Street, Jagadhri-135003, District Yamuna Nagar.  

 

                                                                                                           …Complainant.

                                                Versus

 

1. Citi Financial, Plot No.8, Vidya Nagar, Gobindpuri Road, Near Hotel Dawat-E-Plaza, Yamuna Nagar 135001.  
2. Citi Financial, 3, Local Shopping Centre, IInd Floor, Pushap Vihar, New Delhi-110062.                                                                                                                                                                                                  …Opposite parties.   

 

CORAM:          SH. ASHOK KUMAR GARG, PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. R.L.Chaneti,  Advocate, counsel for complainant.   

              Sh. P.K.Kashyap, Advocate, counsel for OPs.    

 

ORDER

 

1                      Brief facts leading to the institution of the present complaint are that a personal loan of Rs. 1,90,000/- @ 10% flat per annum was sanctioned by the OPs in December 2007 to the complainant vide loan account No. 13749954 and processing fee @2% plus service tax was levied on the loan amount. The OP No.1 delivered a cheque of Rs. 1,85,843/- being the net disbursal amount and accepted 24 post dated cheques of Rs. 9500/- each (payable every month from 5^th January 2008 to 5^th December 2009). The OPs sent a letter dated 1.1.2009 Annexure C-4 to the complainant offering a personal loan of Rs. 5,00,000/- and on receiving this letter complainant  contacted OP No.1 in the first week of January 2009 who got signatures of the complainant on some unfilled papers and after that executive of OP No.1 contacted the complainant on 27.1.2009 and delivered a cheque of Rs. 1,76,809/- bearing No. 125116 dated 24.1.2009 out of sanctioned loan of Rs. 2,80,000/- vide fresh loan account No. 15762938 after deducting Rs. 6191 ( 5510 +681) a sum of Rs.5510/- as Processing fee with Service Tax and Rs. 674/- (600 + 74)  as pre closure charges with  service tax  and balance amount of Rs. 96326/- of previous loan bearing account No. 13749954 against 48 post dated cheques of Rs. 9336/- each as security. As the previous loan No. 13749954 was cleared by the complainant on 24.1.2009 then the OPs were duty bound to return the remaining 11 post dated cheques of Rs. 9500/- lying with them as security for old loan account No. 13749954 but the OPs did not return these cheques because of some bad intention and ulterior motive of using these cheques at a later date subsequent thereof. The complainant being layman in the field of financial matters could not understand the unfair trade practice adopted by the OPs at that time.  The complainant noticed in the month of May 2009 that OPs mis-utilized one (1) cheque out of these 11 cheques bearing No. 405189 dated 5.2.2009 for Rs. 9500/- lying with the OPs which was to be returned to the complainant as old loan account No.1 3749954 was finally adjusted on 24.1.2009 but got the same encashed on 12.2.2009. The complainant immediately took up the matter with OPs on 22.5.2009 and also sent a letter dated 23.5.2009 with a request to return the amount of Rs. 9500/- alongwith interest @ 15.01% from 12.2.2009 i.e. the date on which this amount was received by the OPs.  This amount of Rs. 9500/- was return by the OPs (Rs. 9336/- on 28.5.2009 and Rs. 194/- on 2.7.2009) without interest on this amount. In this way the OPs have adopted an unfair trade practice which is briefly mentioned as under:

i)          Wrongly charged a sum of Rs. 674/- on account of pre closure charges plus service tax.

ii)         Illegally charging of excess process fee @3% instead of 2% on the second loan amount.

iii)         Illegal charging of interest @15.01% flat on the second loan.

iv)        Converting the balance loan amount of Rs. 96,326/- from old loan account number 13749954 in which interest was @ 10% p.a. (flat) to new loan account in which interest was 15.01% p.a.(flat)

v)         To pay Rs. 330/- interest on Rs. 9500/- from 12.2.2009 to 28.5.2009.

2.                     Besides above, in the end, the complainant prayed for issuing a direction to the OPs to pay compensation of Rs. 30,000/- for mental agonies, Rs. 25000/- for harassment, Rs. 25,000/- for sufferings & pains and also to pay Rs. 10,000/- as cost of litigation etc.

3.                     Upon notice, Ops appeared and filed written statement and however they were proceeded ex-parte vide order dated 7.9.2011 but later on OPs joined proceedings on 13.8.2015.

4.                     In written statement took some preliminary objections such as complaint is false, complaint is not maintainable, does not fall under the definition of consumer as define in section 2(1)(d) and on merit it has been stated that complainant has defaulted in making the payment of the equal monthly installments and has failed to fulfill its obligations under the loan Agreement No.15762938 signed between the complainant and opposite party. The complainant has suppressed the material fact and has filed this complaint to make false allegations and claim against the opposite party. It is vehemently denied that the opposite party No.2 had allured the complainant for availing any loan and such letters are sent as a part of regular business promotion of opposite parties and are not any allurements. It is further submitted that these advertisements can at best be said to be an invitation for an offer, and when the complainant made an offer for availing of loan from the opposite party the same was accepted on the terms and conditions as laid down in the loan agreement. It has been further submitted that that the complainant had applied for further loan and availed a personal loan of Rs. 2,80,000/- from the opposite party on 24.1.2009 vide loan agreement No. 15762938 which was repayable in 48 EMIs of Rs. 9336/- each .It is further stated that an amount of Rs. 1,76,809/- was disbursed to complainant after deduction of Rs. 96519/-63 towards balance amount of previous loan and Rs. 6865/- towards process charges and other statutory charges and all these facts were clearly into the knowledge of complainant at the time of availing the same. It has been further submitted that an amount of Rs. 9500/- which was deducted on 12.2.2009 from the complainant’s account due to some technical mistake by the opposite parties had been refunded to the complainant vide cheque No. 162013 of Rs. 9306 and Rs. 194/- vide cheque No. 166504 and the same was intimated to the complainant vide letters dated 4.6.2010 and 2.6.2010 respectively. The complainant was well aware of all the terms and conditions of the Loan Agreement No. 13749954 and a letter dated 20.7.2009 was also sent to the complainant by explaining the doubts and queries of the complainant. The complainant has been well aware about the rate of interest since the beginning as the said loan was sanctioned after the execution of the loan Agreement bearing No. 13749954 between the complainant and opposite parties and complainant had put his signatures on it after he had read and fully apprehended all the terms and conditions regarding the repayment including the rate of interest.  The complainant is trying to escape from his liability on fictitious grounds and prayed for dismissal of complaint with heavy costs as there is no unfair trade practice or deficiency on the part of OPs.   

5.                     To prove his case, counsel for complainant has tendered affidavits as Annexure CX & CY alongwith documents as Annexures C-1 to C-16 on behalf of complainant and closed evidence his behalf.  

6.                       Learned counsel for the complainant argued that the OPs sanctioned a personal loan in account No. 13749954 amounting to Rs. 1,90,000/- @ 10% flat per annum to the complainant and disbursed an amount of Rs. 1,85,843/- after deducting Rs. 4157/- being processing fee and service tax on processing fee and accepted 24 post dated cheques of Rs. 9500/- each (payable every month from 5.1.2008 to 5.12.2009) as security as per account repayment statement which is Ex. C-1. As he was a good pay master and all the cheques were duly cleared by the bank on presentation, so the OPs sent (iii) letter dated 1.1.2009 (Ex.C-4) offering further fresh personal loan up to Rs. 5,00,000/- but out of this loan a sum of Rs. 2,80,000/- was sanctioned on 24.1.2009 and an amount of Rs. 1,76,809/- were paid by OPs after deducting a sum of Rs. 1,03,191 i.e. Rs. 6191 ( 5510 +681) a sum of Rs.5510/- as Processing fee with Service Tax and Rs. 674/- (600 + 74)  as pre closure charges with  service tax  and balance amount of Rs. 96326/- of previous loan bearing account No. 13749954 against 48 post dated cheques of Rs. 9336/- each as security.

7                      Learned counsel for the complainant further urged that the OPs adopted an unfair trade practice by sending allurement letters Ex. C2, C3 & C4 to the complainant for the promotion of their business/sale and subsequently causing a financial loss to the complainant by converting balance amount of  (a) Rs. 97,000/- ( Rs. 96,326 plus Rs. 674 being pre closure charges i.e. pre EMI) which was at the rate of 10% per annum flat rate of interest in old personal loan account No. 13749954 into new loan account which is @ 15.01% per annum flat rate of interest fraudulently mischievously, tactfully and without the consent of the complainant by arbitrarily/illegally because loan account No. 13749954 was closed/adjusted by the OPs themselves even without the consent of the complainant despite the fact that 11 post dated cheques were still lying with the OPs.

8.                     It was further urged that charging of 3.01% as processing fee on Rs. 1,83,000/- to the tune of Rs. 6191/- ( Rs. 5510/- as processing fee and Rs. 681/- as service charges thereon Ex. C-5) is an unfair trade practice as the second loan vide new account No. 15762938 was availed on the offer letters of the OPs which are Ex. C2, Ex. C3 & Ex. C4. The processing fee charges, if any, should not be more than 2% on Rs. 1,83,000/- as was charged on the old loan account No. 13749954 which comes to Rs. 4112/- ( Rs. 3660/- as processing fee & Rs. 452/- as service charges thereon), i.e. Rs. 2079/- excess recovered. Further charging of interest @ 15.01% per annum (Ex. C6) in this new loan account No. 15762938 instead of 10% flat per annum as being charged on the old loan account No. 13749954 constitute unfair trade practice on the parts of OPs.  The old loan account No. 13749954 was finally adjusted & closed on 24.1.2009 and all the eleven post dated cheque Nos. 405189 to 405199 lying with the OPs as security were to be returned to the complainant but instead of returning these cheques OPs fraudulently & also with a bad intention misused one cheque No. 405189 dated 5.2.2009 for Rs. 9500/- and got payment of the same on 12.2.2009. The complainant took up the matter for refunding the amount of Rs. 9500/- alongwith interest vide letter dated 23.5.2009 (Annexure C-7) but OPs sent a cheque No. 162013 dated 28.5.2009 for Rs. 9306/- under their letter dated 28.5.2009 (Annexure C-8) and thereafter sent cheque No. 166504 dated 2.7.2009 for Rs. 194 vide letter dated 2.7.2009 (Annexure C-10) but the interest was not refunded by the OPs.

9.                     On the other hand, counsel for the OPs hotly argued at length that the complaint of the complainant is nothing except to abuse of process of law. The letter Annexure C-2 dated 1.9.2008 and letter dated 1.11.2008 Annexure C-3 and letter dated 1.9.2009 Annexure C-4 were sent as a part of regular business promotion of the opposite parties and these advertisements can at best be said to be an invitation for an offer and when the complainant made an offer for availing the loan from the OPs the same was accepted on the terms and conditions as laid down in the loan agreement. The complainant had applied and availed the personal loan of Rs. 2.80,000/- from the OPs on 24.1.2009 vide loan agreement No. 15762938 which was repayable in 48 EMIS of Rs. 9336/- each and out of this amount an amount of Rs. 1,76,809/- was actually disbursed to the complainant after deducting a sum of Rs. 96519/- 63 paise towards net due from the previous loan and Rs. 6865/- towards processing charges etc. which was clearly into the knowledge of the complainant at the time of availing the second loan which is evident from Annexure A & B account statements. The second loan has been sanctioned to the complainant after intimating him about the terms regarding the adjustment and mandatory deductions of the balance outstanding due towards the previous existing loan from the total amount of the fresh loan prior loan disbursal and the same was agreed by the complainant. It has been further argued that an amount of Rs. 9500/- which was deducted from the complainant account due to some technical mistake had been refunded to the complainant vide cheque No. 162013 of Rs. 9306/- and vide cheque No. 166504/- of Rs. 194/- under the intimation to the complainant vide letter dated 4.6.2010 and 2.6.2010 as Annexure C and D respectively. it has been further argued that complainant was well aware about the rate of interest since the beginning as the said loan was sanctioned after the execution of the loan agreement bearing No. 1379954 between the complainant and OPs and complainant who is well educated put his signature on it after read and fully apprehended all the terms and conditions regarding the repayment including rate of interest etc. and lastly prayed that there is no deficiency in service or unfair trade practice on the part of OPs. Hence, the complaint of the complainant deserves dismissal.

10                    It is not disputed that second fresh loan amount of Rs. 2,80,000/- was sanctioned to the complainant by the OPs on 24.1.2009 during the previous loan of Rs. 1,90,000/- which was sanctioned by the OPs in December 2007. It is also not disputed that an amount of Rs. 96519.63 was due in old account against the complainant at the time of disbursement of the fresh loan of Rs. 2,80,000/- and further it is also not disputed that after deducting this amount and processing charges etc. an amount of Rs. 1,76,809/- was disbursed to the complainant which was repayable in 48 EMIS of Rs. 9336/- each.

11.                   We have heard the learned counsel for both the parties and have gone through the pleadings, documents as well as written arguments placed on file by the counsel for complainant.

12                    The only grievance of the complainant is that the OPs have illegally encashed a cheque of Rs. 9500/- from the account of complainant on 12.2.2009 and this amount was returned to him on 28.5.2009 and in this way the OPs are liable to pay interest which comes to the tune of Rs. 330/- and further liable to refund of Rs. 674/- which was charged on account of pre closure charges of old loan account No. 13749954 and further liable to pay excess interest charged @ 15.01% instead of 10% by OPs on the balance amount of Rs. 96326/- in old account No. 13749954 which was adjusted in new Loan account and to pay difference of processing fee @1% which was charged @ 3 % instead of 2%.

13                    From the above noted facts it is clear that the dispute between the complainant and OPs are relating to the charging of interest only as the complainant has not leveled any allegations of any fraud or cheating or executing the forged documents by the OPs in his complaint, meaning thereby the complainant obtained fresh loan of Rs. 2,80,000/- from the OPs after understanding all the terms and conditions of the fresh loan agreement and executed all the documents in favour of the OPs by admitting its terms and conditions. Even, the present complaint has been filed on 24.2.2010 whereas fresh loan of Rs. 2,80,000/- was obtained by the complainant from the OPs on 24.1.2009 and complainant has not filed any application or copy of complaint that he ever objected the terms and conditions of the fresh loan agreement and it was well within the knowledge of the complainant that an amount of Rs. 96519/- has been deducted on account of balance of previous loan amount from fresh loan account.

14.                   The arguments of counsel for the complainant is not tenable on the point that an amount of Rs. 96519 of previous loan has been wrongly adjusted in new fresh loan account which is at higher rate of interest because these facts were duly in the knowledge of the complainant as the installments of new fresh loan was calculated after adjusting of previous loan amount and complainant was agreeing to pay these installments by way of cheques and handed over the 48 cheques voluntarily to the OPs for repayment of fresh loan, so at later stage complainant cannot say that any cheating or fraud have been committed by the OPs

 15                   We have gone through the case law referred by the counsel for the OPs titled as C.B. Singh (Dr. ) Vs. HDFC Bank & Another, 2009(4) CLT page 563 in which it has been held that “Jurisdiction-Banking service- Vehicle finance-Interest- Rate of interest-Dispute with regard to not charging proper interest and discriminating between different debtors and charging different rate of interest-Such matter does not lie in the Consumer Fora because Consumer Fora is to allow interest as agreed”. Further learned counsel for the OPs referred the citation of Hon’ble State Consumer Disputes Redressal Commission, Haryana, Panchkula of First Appeal No. 1539 of 2010 decided on 1.9.2011 titled as City Financial Consumer Finance India Ltd. vs. Gurvinder Singh Chawla, in which our Hon’ble State Commission have same view held in case titled as Shera Shara India Commercial Corporation Ltd. Vs. P. Gajendra Chary” reported in 2010 CTJ page 768 (CP)that “ Consumer Forums are not the courts of plenary Jurisdiction. They cannot strike down the provisions of any Act or Rules or Clauses of any lawful agreement entered into between the parties. Facts of the case Citi Financial Consumer Finance India Ltd. vs. Gurvinder Singh Chawla (supra) are fully applicable in the present case.

16                    Further the complainant has admitted in his written arguments as well as pleading that amount of Rs. 9500/- which was deducted by the OPs wrongly had been refunded to the complainant after receiving the intimation of the complainant immediately i.e. within a period of 3-4 months. The arguments advanced by the counsel for the complainant is not tenable as the complainant failed to point out any violation of terms and conditions of loan agreements executed between the complainant and OPs. Moreover, complainant has made all the payments and account has been closed. Even the disputes between the parties are related to accounts which cannot be decided in summary nature and can be only decided by Civil Court after taking elaborate evidence.

17.                   After going through the above noted facts and circumstances of the case law cited by the OPs we are of the considered view that there is no deficiency in service or unfair trade practice on the part of OPs.

18.                   Resultantly we find no merit in the present complaint and the same is hereby dismissed being devoid of merit. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court:  26.11.2015.

                                                                                                (ASHOK KUMAR GARG)

                                                                                                PRESIDENT

 

 

                                                                                                (S.C.SHARMA)

                                                                                                MEMBER