ORDER

(Delivered on 14/12/2016)

Per Smt. J.D. Yengal, Hon’ble Member

1. This appeal challenges the order dated 30/09/2008, passed by the District Consumer Forum, Akola, partly allowing the consumer complaint bearing No. 79/2008 and thereby directing the opposite party(for short OP)/appellant herein ICICI Bank Ltd.  to refund Rs. 34,447.45/- accepted towards foreclosure charges  and Rs. 675/- accepted towards cheque bouncing charges and Rs. 132/- towards overdue charges to the complainant. The OP to further refund Rs. 16,831.70/- to the complainant towards the amount accepted as EMI for the month of September 2007 and  Rs. 5,000/- to the complainant towards the expenses incurred for procuring loan from other bank, that is Bank of Maharashtra. The OP to pay Rs. 10,000/- and Rs. 1,000/- more as compensation for mental and physical harassment and cost of proceeding respectively.
2. Respondent No. 1 Dr. Sarita Radheshyam Sikchi and respondent No. 2 Dr. Radheshyam Devkisan Sikchi are referred to as complainants and appellant ICICI Bank Ltd. is referred to as opposite party ( for short OP) for the sake of convenience.
3. Facts in brief as set out by the complainants in their consumer complaint is as under.

1. Complainant No. 1 Dr. Sarita Radheshyam Sikchi had applied for housing loan from the OP, ICICI Bank Ltd. on 16/7/2003. The OP sanctioned the loan of Rs. 14,00,000/-  and the loan amount was credited into the loan account of the complainant on 31/8/2003. The aforesaid loan amount was to be repaid in 180 months by an EMI of Rs. 15,363/-. The complainant was regularly repaying the loan. However on 16/7/2005, the complainant applied for a Top up loan of Rs. 3,00,000/- from the OP.  The OP again sanctioned the loan and credited the loan amount into her account on 1/1/2006. The subsequent loan was to be repaid in 156 months in  EMI of Rs. 3,400/-.
2. It is the contentions of the complainant that the OP revised the rate of interest on the loan amount on 10/4/2007. Therefore the EMI was enhanced that is EMI of Rs. 15,363/- was enhanced to Rs. 16,146/- and Rs. 3,400/- to Rs.3,433/-. The complainant accordingly handed over the post dated cheques to the OP for the enhanced installment on 11/5/2007. The OP however did not return the post dated cheques to the complainant  which were given to it previously by her.  It is further contended by the complainant that in the month of May 2007, the OP got the amount of Rs. 15,363/- realized by the cheque issued by the complainant previously. The OP again presented  the cheque issued by the complainant for the amount of enhanced EMI that is Rs. 16,146/- at  Murtijapur Branch of Akola Urban Bank. The bank brought this fact to the notice of the complainant. The complainant  instructed the bank for “Stop Payment”. The OP debited  the loan account of the complainant by Rs. 225/- as cheque bouncing charges.  The complainant immediately represented and lodged her complaint with the OP bank telephonically. The OP accepted that it had committed a mistake. The complainant therefore instructed her bank for “Stop Payment” for the month of June to the cheque previously issued by her. However the complainant instructed the OP to present the cheque subsequently issued by her for the enhanced amount of EMI. The OP again presented the old cheque  in the bank which could not be realized and the monthly installment remained unpaid due to the mistake of the OP. The OP inspite of its own mistake again debited the complainant’s loan account with Rs. 225/- as cheque bouncing charges and Rs. 312/- as overdue charges.
3.  It is further contended by the complainant that the same practice was repeated by the OP in her Top up loan account. The OP had realized two cheques both the old and new for the month of May and therefore the complainant had instructed the bank for stop payment for the month of June 2007 and again in the month of June 2007, the OP presented the old cheque which was not cleared due to instruction of the complainant and the monthly installment in the month of June remained unpaid totally due to the mistake committed by the OP. The OP despite its own mistake levied cheque bouncing charges of Rs. 225/- on the complainant. The complainant again telephonically brought the mistake committed by the OP to its notice. The OP informed her that the amount of EMI was not enhanced  and  was therefore returned the new cheques which were issued by the complainant.
4. The complainant  got fed up of the transaction/service rendered by the OP. Therefore she decided to foreclose her loan accounts. The OP demanded Rs. 27,984.44 and Rs. 3,596/- monthly interest in the first loan account and Rs. 6,463/-   and Rs. 2,961.90/- towards foreclosure   charges and interest respectively in the second account. Although the aforesaid demand was unreasonable, the complainant  paid the aforesaid amount to the OP being fed up with the service rendered by the OP. The complainant  was required to  avail housing loan from other bank for which  she incurred  expenses of Rs. 5,000/-. The complainant by letter dated 18/12/2007 demanded  the refund of amount from the OP which was accepted by it towards bouncing and overdue charges.
5. The OP did not take any cognizance of the aforesaid letter. Therefore the complainant filed a consumer complaint alleging deficiency in service and sought for refund of Rs. 62,025/- which was inclusive  of the amount accepted in excess from the complainant towards  monthly installments, the expenses incurred for availing loan from other bank and loss of income. The complainant further sought Rs. 10,000/- and Rs. 3000/- as compensation for mental and physical harassment and cost of proceeding respectively.

4. The OP resisted the complaint by filing their written version and denied all the adverse obligations of the complainant. The OP specifically submitted that the complainant wanted loan at lower rate of interest which the complainant had opted to avail from another bank that is bank of Maharashtra. The OP had informed the  complainant about the amount to be paid for foreclosure of the loan account. The complainant had paid the same for which the OP had issued a receipt. The OP therefore denied to have rendered any deficiency in service and sought for dismissal of complaint.
5. The Forum after hearing both the sides  and perusing the documents on record, partly allowed the complaint with directions as aforesaid. The Forum has specifically held that the OP has rendered deficiency in service by levying foreclosure charges at the rate of 2.25 percent p.a. of the principal loan amount without it being mentioned in the condition No. 2.7 relied upon by the OP which deals with the “Prepayment of ICICI Bank Loan.”
6. Being aggrieved by the aforesaid order, the OP, ICICI Bank has preferred this appeal and challenged the impugned order mainly on the ground that the condition of levying foreclosure charges was  agreed  by both the parties as there was  a contractual relationship between both the parties and that  directions issued in the impugned order are contrary to the terms and condition of the contract.
7. We heard counsel for the appellant and perused the written notes of arguments filed by both the parties, copy of the complaint, written version and documents filed on record by both the parties. The only issue that survives for our consideration is whether the appellant is entitled to levy foreclosure charges while foreclosing the loan account as the other fact about availing of loan, its repayment etc. are  not disputed.  The appellant has relied on Clause 2.7 of the loan agreement for levying of prepayment charges. The condition No. 2.7 of the Home Equity Loan Agreement  reflects as under.

“ ICICI Bank may in its sole discretion and on such terms as to pre-payment/acceleration in payment of EMIs at the request of the BORROWER,  subject that ICICI Bank may specify from time to time, the minimum amount of prepayment/amounts payable on account of acceleration of EMIs. In the event ICICI Bank permits any prepayment/acceleration, the repayment schedule for the Loan shall be amended/altered by ICICI bank for giving effect to such prepayment/acceleration, and such amended/altered repayment schedule shall be binding upon the BORROWER.”

8. The only interpretation that can be assigned to the aforesaid clause is that the appellant bank has discretion  to exercise terms for prepayment charges etc.   about which it has to informed the borrower from time to time. The aforesaid condition nowhere mentions  that the prepayment charges would be at the rate of 2.25 percent of the outstanding principal loan amount. Under such circumstances it cannot be inferred that the complainant was aware of terms and condition of the agreement  executed between the parties  about prepayment of charges and it was bound to pay the same. For the foregoing reason, we find no glaring infirmity or irregularity in the impugned order and the appeal deserves to be dismissed being devoid of merits. In the result, we pass the following order.

ORDER

1. The appeal is dismissed.
2. The impugned order dated 30/09/2008, passed by the District Consumer Forum, Akola in consumer complaint No.  79/2008 is confirmed.
3. No order as to cost.
4. Copy of order be furnished to both the parties, free of cost.