Punjab

StateCommission

FA/939/2013

Aasha Rani - Complainant(s)

Versus

HDFC Bank Limited - Opp.Party(s)

Ashok Jindal, Sandeep Singh

05 Feb 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

First Appeal No. 939 of 2013

                                                         

                                    Date of institution:  30.8.2013

                             Date of Decision:     5.2.2015

 

Aasha Rani wife of Daulat Ram, Proprietor of M/s Ambika Medicos, Malout, Tehsil and District Sri Muktsar Sahib.

…..Appellant/Complainant

                                      Versus

HDFC Bank Limited, G.T. Road, Malout, Tehsil Malout, District Sri Muktsar Sahib.

…..Respondent/Opposite Party

 

First Appeal against the order dated 18.7.2013 passed by the District Consumer Disputes Redressal Forum, Sri Muktsar Sahib.

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Vinod Kumar Gupta, Member

 

Present:-

          For the appellant             :         Sh. Sandeep Singh, Advocate

          For the respondent :         Ex.-parte.

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellant/complainant (hereinafter referred as “the complainant”) has filed the present appeal against the order dated 18.7.2013 passed by the District Consumer Disputes Redressal Forum, Sri Muktsar Sahib(hereinafter referred as “the District Forum”) in consumer complaint No.2 dated 9.1.2013 vide which the complaint filed by the complainant was dismissed.

2.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the respondent/opposite party (hereinafter referred as ‘OP’) on the allegations that she is Proprietor of M/s Ambica Medicos, Near Bus Stand, GT Road, Malout. In the month of February, 2011, she availed a loan facility from the Ops for a sum of Rs. 32 lacs and the OP in view of that loan took the signatures of the complainant on various blank papers, cheques, forms and completed all the relevant required formalities for the release of the loan of the complainant. This loan was required to be repaid by the complainant in 134 installments of Rs. 46,840/- each. The complainant paid 17 installments i.e. Rs. 7,96,280/- to the OP. When she realized that the Ops are charging the interest exclusively and contacted the OP that she wanted to avail the loan from another bank and wanted to clear all the loan amount and requested for issuance of ‘No Due Certificate’. After which the complainant was supposed to deposit the whole amount of Rs. 32 lacs in one single premium otherwise they will not stop the account and this amount paid vide cheque No. 222621 dated 28.9.2012 of ICICI Bank, Malout and upon this the Ops issued ‘No Due Certificate’. At the time of issuing the ‘No Due Certificate’ the complainant requested the Ops that she had already deposited a sum of Rs. 7,96,280/- whereas the amount including interest of 17 installments comes to Rs. 5,94,541/-, therefore, she was entitled to Rs. 2,01,739/- and complainant requested the Ops to refund the extra deposit amount and other documents but the Ops declined on lame excuses, which amounts to deficiency in services. Hence, the complaint with a direction to the Ops to refund a sum of Rs. 2,01,739/- or any other extra amount alongwith interest @ 12% from the date of deposit till realization, pay Rs. 50,000/- on account of compensation and Rs. 15,000/- on account of litigation expenses.

3.                The complaint was contested by the OP, who filed reply taking legal objections that the complaint has been filed just to injure the goodwill and reputation of the Ops; the complaint filed by the complainant was false, frivolous and vexatious to her knowledge liable to be dismissed under Section 26 of the Act; the intricate questions of law and facts were involved, which require voluminous documents and evidence, which was not possible in the summary proceedings, therefore, the matter be referred to the Civil Court; complainant had concealed the material facts from the Hon’ble Forum; as the Ops had charged the amount as per the terms and conditions agreed between the parties vide sanction letter dated 15.3.2011. The account in question was got opened by the complainant for the purpose of business i.e. commercial purpose and the complaint was not maintainable and that the complainant was not a consumer and had no locus-standi to file the present complaint. On merits, it was admitted that loan facility to the extent of Rs. 32 lacs was sanctioned to the complainant as per the terms and conditions agreed between the parties vide sanction letter dated 15.3.2011 and the loan was disbursed and it was payable in monthly instalments of Rs. 46,840/-. The complainant had paid 17 installments and she was defaulter of 4 installments, which was lateron paid and overdue charges were levied. It was denied that the OP charged from complainant excessively. It was also denied that the complainant was supposed to pay the entire amount of Rs. 32 lacs in lumpsum. This amount was paid by the complainant to the OP to close her account. It was denied that the interest after payment of 17 installments comes to Rs. 5,94,541/- or that a sum of Rs. 2,01,739/- was claimed excess by the Ops to which the complainant is entitled. The rate of interest agreed was linked based rate, which was + 3.80% and as on 15.3.2011 it was 8.70% and effective rate chargeable was 12.50% per annum and the complainant was required to pay foreclosure @ 4% plus taxes on principal outstanding. Accordingly, it was submitted that the complaint was without merit and it be dismissed.

4.                The parties were allowed by the learned District Forum to lead their evidence.

5.                In support of her allegations, the complainant had tendered into evidence her affidavit Ex. C-A, account statement Ex. C-1, cheque Ex. C-2, repayment schedule Ex. C-3. On the other hand, the opposite party had tendered into evidence affidavit of Kuldeep Garg, Branch Manager Ex. Op-1, sanction letter Ex. Op-2, loan agreement Ex. Op-3, demand promissory note Ex. Op-4, letter of continuity Ex. Op-5, letter of general lien and set off Ex. Op-6, statement of account Ex. Op-7.

6.                After going through the allegations in the complaint, written reply filed by the OP, evidence and documents brought on the record, the learned District Forum vide impugned order dismissed the complaint that the rate of interest and foreclosure charges have been applied as per the agreement between the parties. No excess amount was recovered from the complainant.

7.                In the appeal, it was contended that the learned District Forum has erred in law, dismissed the complaint on the ground that the complainant has failed to prove on the record that the Ops have violated the terms and conditions of the agreement. The learned District Forum did not take into consideration of the 17 installments of Rs. 46,840/- deposited by the complainant and did not calculate how the amount got deposited from the complainant was due against him.

8.                Before going to the preposition whether the amount got deposited from the complainant was due towards the OP, the Ops pleaded that loan was raised by M/s Ambika Medicos Near Bus Stand, Malout. It is a commercial firm dealing with the medicines. A specific plea was taken by the OP in the written statement that the loan was raised for commercial purposes, therefore, the complainant does not come within the definition of the ‘consumer’ and it made a reference to the judgment 2011(1) ACJ 206 (SC). But this point was not dealt with by the Ld. District Forum. However, it is the fact that the complainant had availed just the banking services in which he has to pay the interest and not to generate any profit out of the banking services availed by the complainant from the Ops. In case the complainant is not generating any profit from this transaction then it cannot be said that it was a commercial transaction. A reference can be made to the judgment “Standard Chartered Bank Ltd. Vs. Dr. B.N. Raman”, 2006(III) CPJ 1 (SC) wherein the Hon’ble Supreme Court held that ‘no doubt banking is commercial function, a business transaction between the bank and customers comes within the meaning of Section 2(1)(d)(ii) of the Act’ and same view was held by the Hon’ble National Commission in case “Sutlej Textile and Industries Ltd. Vs. Punjab National Bank” 1(2010) CPJ 312 (NC).

9.                It is a fact that the loan of Rs. 32 lacs was availed by the complainant from the Ops. Out of that 17 installments were paid by him, each instalment amounting to Rs. 46,840/-. After that he realized that the interest rate of the OP was more than the other bank, therefore, he wanted to shift his account to other bank and made a request to the Op to issue the No Due Certificate. No Due Certificate was given by the OP to the complainant on deposit of complete amount of Rs. 32 lacs with the Op.

10.              Now the contention of the complainant is that he had paid a sum of Rs. 7,96,280/- and at that time when he closed the loan account, a sum of Rs. 5,94,541/- was interest, therefore, a sum of Rs. 2,01,739/- has been recovered by the OP as excess amount to which he has filed a complaint for refund. The complainant has placed on the record the statement of account vide which he paid the abovesaid 17 installments to the Op and Ex. C-3 is the statement of account, which shows the basic amount disbursed to the complainant, interest accrued on that amount from time to time and outstanding principal amount. The last instalment paid by him was 7.4.2012 and on that date and after paying that instalment as on 7.5.2012; outstanding amount as on 28.9.2012 is to be calculated. However, the statement of account shows the balance amount as on 7.9.2012 and 7.10.2012 whereas the counsel for the complainant stated that it be taken as on 7.9.2012 and a sum of Rs. 29,98,291.44 was outstanding. This was the principal amount, on that 4% plus taxes were to be added as foreclosure charges i.e. Rs. 1,19,851/- and after adding 4% charges it comes to Rs. 31,18,142.44p. In that way, the OP Bank had claimed an extra amount of Rs. 81,857.56p from the complainant. What were the taxes have not been explained by the Ops.   

11.              None was present on behalf of the OP to explain how they calculate the outstanding amount of Rs. 32 lacs at the time of closing the account of the complainant, therefore, the order so passed by the learned District Forum requires modification.

12.              In view of the above discussion, the appeal filed by the appellant is partly accepted. The impugned order is set-aside. Consequently, the complaint filed by the complainant is partly accepted with a direction to the Ops as under:-

(i)      to refund a sum of Rs. Rs. 81,857.56p alongwith interest @ 12.5% from the date of deposit of Rs. 32 lacs i.e. 28.9.2012 till payment;

(ii)      to pay Rs. 20,000/- as compensation; and

(iii)     to pay Rs. 10,000/- as litigation expenses. 

13.              Opposite party is directed to comply with the above directions within 45 days, otherwise proceedings under Section 27 of the CP Act shall be initiated against it.

14.              The arguments in this appeal were heard on 23.1.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

15.              The appeal could not be decided within the statutory period due to heavy pendency of Court cases.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

February 5, 2015.                                                                                                                                                       (Vinod Kumar Gupta)

as                                                                                                                                                                                              Member