Complainant by filing this complainant has submitted that complainant and his wife Ananya Ghosh applied for a secured loan facility termed as Loan Against Property (L.A.P.) from the op Bank against the security of their residential property being the flat as described in cause title and as the complainant could not be personally present, his wife Smt Ananya Ghosh signed the said application on his behalf and said LAP A/C is No.2956912 for a sum of Rs.9,08,000/- with payment of interest @ 13% and repayable by Equated Monthly Installments (EMI) of Rs.16,518/- to be made within 84 months and against that sanctioned loan of the residential property of the complainant being Flat No.D/201, Mall Enclave, 13, Khudiram Bose Sarani, Kolkata – 700080 was mortgaged.

          It is further alleged that though it was alleged that the loan to be repaid by repayment of 84 months of EMI of Rs.16,518/- and had already taken 36 No.s of post dated cheques each for the said amount, and the complainant was informed in the month of June 2010 that the rate of interest in the said loan account of the complainant had been increased time to time resulting in increase in the repayable amount of the complainant and the said increased rate of interest had never been informed to the complainant by the Bank as said increase was done unilaterally by the Bank, the complainant made a representation before the op Bank on 13.07.2010 complaining against such unilateral increase of rate of interest.

          But op did not respond and when the complainant lodged a formal complaint before the Banking Ombudsman on 16.10.2010 alleging that if the op Bank is allowed to increase the said rate of interest unilaterally in departure from the aforesaid Loan Agreement dated 22.02.2007, the complainant suffered an unwarranted loss to the tune of Rs.1,32,144/- due to no fault on his part.  Thereafter op vide their letter dated 19.10.2010 took the plea that the said aspect of time to time change of rate of interest had always been intimated to the complainant.

          As because the Banking Ombudsman did not pay an heed for which complainant submitted representation before Banking Manager of the op and thereafter paid his outstanding EMI for the said loan and intimated the op Bank, vide his letter dated 08.09.2010, that for his personal reasons he would have to close the ECS Account wherefrom the EMIs of the said loan had been deducted till then.

          Thereafter complainant vide his letter dated 11.11.2010 made another representation before the Retail Assets Division of the op Bank and in reply they received a letter dated 23.11.2010 by which op Bank informed that increase rate of interest had been notified to the complainant.  But complainant submitted that information time to time to the complainant as alleged by the Op Bank was not acceptable without the relevant certificates of posting issued by the Postal Authority.  Thereafter complainant suddenly received a letter dated 14.09.2011 from op Bank asked to make payment of Rs.12,222/- towards EMI Return Charges and Late Payment Penalty upto that day and also contained threats against the complainant which are entirely uncalled for and unwarranted.

          In the above circumstances the complainant for deficient of service and malafide and dishonest practice of the Bank prayed for relief and also for redressal.

          Op Bank by filing written statement submitted that complainant executed the loan agreement knowing fully well of the terms and conditions and loan was sanctioned subject to the floating rate of interest as contained in Clause 5.1 of the said agreement and it was duly informed to the complainant vide sanctioned letter dated 21.02.2007 and both agreement and sanction letter has been duly signed by the complainant and due to inflation in market, the interest rate was increased from time to time as per terms and conditions of the agreement so keeping the loan amount remain constant, loan tenure has been increased accordingly and said increased was duly informed to the complainant by several letters.  So, complainant cannot accommodate beyond the said agreement so the complainant’s version and allegations are false and op never threatened the complainant as alleged and there was no deficiency on the part of the op and for which the present complaint should be dismissed.

                                                     Decision with reasons

          After studying the complaint and the written version, we have gathered that actually rate of interest was 13% at the time of taking loan and in the agreement that is specifically mentioned and in this case op has relied upon the agreement and from the copy of the agreement it is found that agreement was executed in between the parties on 21.02.2007 and in the said agreement they demand approximately no so it is specifically noted that interest rate was 13%.  But there is no such note that it was a floating rate, not only that in the said agreement it is specifically mentioned in Clause 5.1 that will carry interest rate at the floating interest or fixed rate of interest.  So, main question is whether loan was granted with floating rate of interest or the fixed rate of interest of 13% only and in this regard op has relied upon the agreement and submitted the copy of agreement and from the said agreement it is clear that rate of interest was fixed 13%.  Then invariably Clause 5.1 is applicable in favour of the complainant and ops claim for charging further interest is completely against the law and against the terms and conditions of the agreement of loan and in fact unilaterally op had no right to increase the rate of interest or to increase the installment.  But fact remains that op unilaterally increased the rate of interest without the consent of the complainant and fact remains that the complainant never accepted such unilateral decision of the op and as per agreement parties cannot go beyond the terms and conditions of the agreement and considering the agreement, it is found that op has no legal authority to impose the further interest as because fixed rate of interest is 13% that is specifically mentioned without any word including floating rate of interest along with 13%.  So the entire defence of the op is not only fabricated, false but the entire conduct of the op tantamounts to unfair practice.  In the above situation we are confirmed that ops plea that as per agreement they increased the rate of interest as floating rate is completely bad in law and without any jurisdiction and fabricated one.

          Further in this case op has tried to convince that complainant’s allegation of demand of penalty etc are all vexatious without any foundation, illegal, unwarranted.  But considering the above findings we are confirmed that the demand of the op vide letter dated 15.03.2011 increasing the rate of interest with effect from 07.05.2011 is unwarranted, uncalled for, illegal and against valid agreement of loan in between the parties as executed by the parties.  So, the complainant can only comply demand of EMIs and interest as per agreement only and op is bound to receive it but not more than that and any change of EMIs by the op is not applicable in respect of the present loan agreement and against the present complainant.  But complainant shall have to pay 84 EMIs at the rate of interest 13% and in all respect letter dated 21.02.2007 which is part of the agreement shall be final form of rate of interest 13% and payment EMI by 84 months of monthly EMIs shall be Rs.16,518/- towards payment of principle and interest and so the complainant shall have to pay the EMIs @ Rs.16,518/- and applicable interest at the rate of 13% and op shall have to receive it without any over act of the op and so claiming further interest is un-merchantable and such an act of op tantamounts to unfair trade practice and for which the complainant is entitled to get relief against the op for their over act and practically ops have tried to make the complainant a defaulter by adopting such unfair trade practice because complainant had been paying EMIs regularly and the whole matter was complicated when unilaterally op claimed further interest and EMIs.

          Thus the complaint succeeds.

          Hence, it is

                                                         ORDERED

          That the complainat be and the same is allowed on contest with cost of Rs.10,000/- against the op.

          The op is directed to receive the EMIs at the rate of Rs.16,518/- by 84 installments from the complainant without claiming any further interest or penal charges etc and the complainant shall have to deposit those EMIs at once and regularized the EMIs and op is debarred to claim any further interest and cannot change any rate of interest or period of payment of EMI by any means and if op refuses to accept the payment of the complainant in that case op shall be imposed a penalty of Rs.1,00,000/- and op shall regularize the matter of the loan account of the complainant immediately after receive of this order and for adopting unfair trade practice op shall have to pay Rs.50,000/- to the State Consumer Welfare Fund because ops over act is treated as unfair trade practice and ops are directed to stop such sort of unfair trade practice in future.

          Ops have to receive the unpaid EMIs at once from the complainant and regularize the EMIs within two months from the date of this order.

          Op is hereby directed to comply the order very strictly and satisfy the decree and submit a report whether he has complied or not within two months from the date of this order in default a punitive damages @ Rs.300/- per day shall be imposed and if it is collected it shall be deposited to State Consumer Welfare Fund.  But even if it is found that op is unwilling to comply the order of this Forum in that case criminal proceedings shall be started as per provision of Section-27 of C.P. Act 1986 for which op shall be responsible.