IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 16th day of September, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 09/2021 (filed on 16-01-2021)
Petitioner : Jithu Tony Joseph,
S/o. Tony Joseph,
Padinarae Olakkpappady,
Kurishummoodu P.O.
Changanacherry – 686104.
Vs.
Opposite party : HDFC Bank,
Golden Tower,
Vezhakattuchira, MC Road,
Changanacherry – 686101
(Adv. D. Zaibo)
O R D E R
Sri. Manulal V.S. President
The case is filed under Section 35 of Consumer Protection Act, 2019
Case of the complainant is as follows:
The complainant had taken a two wheeler loan from the opposite party in 2018 and taken a top up loan against the two wheeler in February 2020. In March 2020 moratorium was announced by the RBI due to Covid Pandemic . In March
2020, the complainant applied for moratorium for both loans and he got it for April and May. It is averred in the complaint when the complainant checked with the bank website to obtain the second moratorium it was found that three was no
notification regarding the application for moratorium. In June first week he saw a notification regarding the application for moratorium and applied for the same for both loans as per the instruction in opposite party’s website. On 2nd July complainant received message stating that ECS for HDFC Bank used two wheeler loan # 7710345 will be redopsited and to maintain sufficient balance between 3-7-20 to 3-7-20.When the complainant enquired about the same it was informed by the bank authorities that his request for moratorium was used for two wheeler loan. Thereafter on 9th July the complainant sent an email to loansupport@hdfcbank.com stating his complaint. Though they had registered his complaint there was no response. After that on 19th July he had sent reminder and received a reply on 24th July stating that his request for moratorium for June 2020 to August 2020 was rejected due to bounce. The facts being so on 11th August the complainant received another email for HDFC bank that his request for moratorium is under review and will be applied after 7-8-days .
It is further averred in the complaint that after moratorium period the complainant bank account which is maintained with state bank is running negative balance as HDFC bank repeatedly presented and re-presented the ECS several times even after complaint was made with bank. According to the complainant for each bounce state bank charged Rs.293/- as bounce charge and all his EMIs are getting bounced.
After moratorium period representatives of the opposite party called him for repayment of loan and to advise him to contact loan collection centre manager at Alappuzha. The manager of the collection centre gave letter stating that HDFC bank had inadvertently presented the EMI for the month of April 2020 to August 2020 since the moratorium request was under processing and they processed it successfully and requested the complainant to approach his banker for the reversal of the charges levied against the presented EMIs during the month of April 2020 to august 2020. But when the complainant approached his banker with the letter from the HDFC bank they refused to return the charges. According to the complainant due to the deficiency in service and negligence of the opposite party he had suffered much mental agony. Hence this complaint is filed by the complainant praying for an order to pay Rs.50,000/- for the deficiency in-service committed by the opposite party and Rs.25,000/- as cost.
Upon notice opposite party appeared before the Commission and filed version contending as follows:
The complaint is not a consumer as defined under the consumer protection act. The relationship between the complainant and the opposite party is that of debtor and creditor based on contract accepting the terms and conditions governing the contract. The complaint is bad for non-joinder of the necessary party.
The complainant had availed two wheeler loan of Rs.70,742/- bearing no.54433683 from the bank in the year 2018. In consideration of the same, the complainant had executed loan agreement and other documents in favour of the bank. The complaint had also availed top up loan of Rs.25,500/- bearing loan account no. 7710345 on 30-1-2020. As per the terms of the agreement , he is bound to repay loan amount with monthly instalments of Rs.1350/- with a total duration of 28 months and he is liable to pay interest and overdue charges in the event of default.
The moratorium request was processed for both the loan accounts for the period from April 2020 to August 2020 based on complainant’s request. During this period, no charges have been levied by opposite party to these loan accounts. The complainant had not applied moratorium for the month of March 2020 and failed to maintain sufficient balance/amount in the loan account and hence ECs request got bounced due to insufficient funds in his account. Though the complainant had remitted EMI amount of Rs.1350 after the due date, he failed to pay EMI bounce charges in loan account (Laon#7710345). Hence, the complainant was not eligible for the moratorium. Even then the first moratorium request of the complainant had taken with utmost leniency and towards goodwill gesture, the same was granted in the loan account. The moratorium request for the second slot in the month of June was rejected by the system initially due to the default in his loan account, which was later granted as per the request of the complainant. The rejection of the moratorium was promptly informed to the complainant. Hence, during this course, the complainant ought to have maintained sufficient balance in his account.
The application for the period from June 2020 to August 2020 for one of the loan (Loan # 7710345) was rejected initially due to default in his loan account, however , the customer’s request was promptly taken up for processing and successfully processed as well. Moratorium was processed for the period from June 2020 to August 2020 for loan numbers 7710345 and 54433683 on 11-8-2020 and 9-6-2020 respectively.
It is submitted in the version that complainant’s claim to reverse charges levied by State bank of India and not by HDFC bank and hence the opposite party is unable to proceed with the same. There had been other EMI returns in the loan accounts, post the moratorium period due to which, the charges totaling to Rs. 6874 has been accrued in the loan account. As on 15-3-2021, an amount of Rs. 14,075 is outstanding in the loan account no. 7710345 and also an amount of Rs. 24,480 is outstanding in the loan account no. 54433683 , which the complainant is liable to pay as per the terms and conditions of the loan agreement. The averment in the complaint that during moratorium period, EMI’s being debited from the state bank and HDFC bank repeatedly presented and represented ECS several times is false. There is no deficiency in service or unfair trade practice on the part of the opposite party.
Complainant filed proof affidavit in lieu of chief examination and marked exhibits A1 to A3. Shyam Prashanth who is the legal manger of the opposite party filed proof affidavit in lieu of chief examination and marked exhibit B1 to B8 from the side of the opposite party.
On evaluation of complaint, version and evidence on record we would like to consider the following points.
1. Whether the complaint is maintainable or not?
2. Whether there is any deficiency in service on the part of the opposite party?
3. If so what are the reliefs and costs?
Point number 1 to 3 considered together.
According to opposite party, complaint is not maintainable in law or upon facts. This Forum has no jurisdiction to entertain this complaint as no relief can be granted in this case. First contention advanced from the side of opposite party is with regard to maintainability of complaint. According to opposite party, 1st relief claimed cannot be granted under Consumer Protection Act. These contentions are unsustainable. Complaint was filed on 25.8.2020. Prior to it, new Act of 2019 had come fully into force on 23.7.2020. As per the New Act, definition of term ‘service’ given under Section 2(42) is all inclusive and includes provision of facilities in connection with banking also. By availing the service of the opposite party the complainant is a consumer of the opposite party as defined in the Consumer Protection Act 2019. Section 39(1) of the New Act gives jurisdiction to district Commissions to pass directions which would include directions sought for, in the present complaint also. Such a direction would come within the ambit of Section 39(1) of aforesaid Act.
There is no dispute on the facts that the complainant had availed two wheeler loan of Rs.70,742/- bearing loan account no. 54433683 from the opposite party in the year 2018 and further availed a top up loan of Rs.25,500/- bearing loan account no. 7710345 on 30-1-2020.
The specific case of the complainant is that though he had applied for the moratorium which was announced by the RBI in March 2020 the same was not granted by the opposite party and they continued to present and represent the ECS mandate which was given by the complainant at the time of availing the loan to deduct the EMI from his account which was maintained with State Bank of India and thereby caused the bouncing of the ESCs and financial loss to him. .
The complaint was resisted by the opposite party on the ground that as per the terms of the agreement, he is bound to repay loan amount with monthly installments of Rs.1350 with a total duration of 28 months and he is liable to pay interest and overdue charges in the event of default. The complainant had not applied moratorium for the month of March 2020 and failed to maintain sufficient balance/amount in the loan account and hence ECS request got bounced due to
insufficient funds in his account. It is contended by the opposite party that though the complainant had remitted EMI amount of Rs.1350 after the due date, he failed to pay EMI bounce charges in loan account in 7710345. Hence, the complainant was not eligible for the moratorium.
On perusal of exhibit B3 which is the loan agreement executed by the complainant in nos. 7710345 and 54433683 we can see that he has agreed to repay the loan with a monthly installments of Rs.2730 and Rs.1350 respectively.
The moratorium request was processed for both the loan accounts for the period from April 2020 to August 2020 based on complainant’s request. During this period, no charges have been levied by opposite party to these loan accounts.
Here in case on hand on perusal of records it is evident by Exhibit B4 that the complainant had applied for moratorium for loan no. 7710345 firstly on 4-4-2020 and secondly on 26-6-2020. On close scrutiny of exhibit B5 which is the statement of account regarding the loan no.7710345 we can see that the ECS for the payment for the EMI of April 2020 was presented on 8-4-2020 and got bounced on the same day itself ie after the complainant had applied for the moratorium on 4-4-20. It is further proved by exhibit B5 that the ECS for the EMI for the month of June, July and August 2020 was get bounced due to the insufficient funds.
As discussed earlier the complainant had applied for the second moratorium on 26-6-2020.It is vehemently argued by the counsel for the opposite party that the request for the moratorium was rejected by the system initially for the reason that the EMI for the month of June 2020 was pending. However, it is admitted by the opposite party that the moratorium for the first period was granted t the complainant and the ECS for the month of May 2020 was not presented. It is further proved by the exhibit B5 ves that the overdue charges was reversed to the complainant on 26-6-20.
Exhibit B7 is the circular issued by RBI dated 27.03.2020 which contains detailed instructions as regards Regulatory Package permitting the aforesaid lending institutions to grant a moratorium of three months on payment of all term loan installments falling due between March 1st 2020 and May 31st 2020. Para 2 relating to rescheduling of payments for term loans and working capital facilities would be relevant and the same is extracted herein below:
“2. In respect of all term loans (including agricultural term loans, retail and crop loans), all commercial Banks (including regional rural Banks, small finance Banks and local area Banks), co-operative Banks, all-India Financial Institutions,
and NBFCs (including housing finance companies) (“lending institutions”) are permitted to grant a moratorium of three months on payment of all installments falling due between March 1st, 2020 and May 31st, 2020. The repayment schedule for such loans as also the residual tenor will be shifted across the Board by three months after the moratorium period. Interest shall continue to accrue on the outstanding portion of the term loans during the moratorium period.”
Exhibit B8 is the circular issued by RBI dated 27.03.2020 which extends the moratorium from 1-6-20 to 31-8-2020. Para 2 relating to rescheduling of payments for term loans and working capital facilities would be relevant and the same is extracted herein below
“(i) Rescheduling of Payments – Term Loans and Working Capital Facilities
2. In view of the extension of lockdown and continuing disruption on account of COVID-19, all commercial banks (including regional rural banks, small finance banks and local area banks), co-operative banks, All-India Financial Institutions, and Non-banking Financial Companies (including housing finance companies) (“lending institutions”) are permitted to extend the moratorium by another three months i.e. from June 1, 2020 to August 31, 2020 on payment of all installments in respect of term loans (including agricultural term loans, retail and crop loans). Accordingly, the repayment schedule for such loans as also the residual tenor, will be shifted across the board. Interest shall continue to accrue on the outstanding portion of the term loans during the moratorium period”.
Once the banks have in the public domain on their respective websites expressed their solidarity with all their customers and stated that all the customers are eligible for grant of a moratorium, in accordance with RBI guidelines, it is not permissible for such banks to nit-pick and later on, refuse to grant a moratorium, to the Petitioner, who is otherwise eligible. That is to say the Banks cannot take one stand in the public domain and a contradictory stand while implementing what they have stated in the public domain. Both the RBI and the banks have held out that all customers are eligible for a moratorium. The availing of or otherwise of the moratorium is at the sole discretion of the borrower more so when the borrower would be required to make payment of additional interest, during the said moratorium period. There being no waiver of interest and or the principal amount by the mere grant of a moratorium. The opposite party is bound to make necessary changes in their system to avail the benefit of the moratorium to their customers in the light of the pandemic situation. Opposite party cannot evade their responsibility to the customer merely blaming on their own system, which was under the management and control of the opposite party. In the light of above discussion we are of the opinion that the opposite party has committed deficiency in service by rejecting the application for the moratorium on 26-6-2020 in a mechanical method and presenting the ECS for the month of July and August 2020 without processing the application for second phase of the moratorium. Regarding the moratorium for the loan no. 54433683 the complainant did not produce any evidence to prove that he had applied for the moratorium. On perusal of exhibit A2 and A3 we can see that there was no due in payment of monthly installment till 5-3-20.
Counsel for the opposite party argued that the opposite party had reversed the overdue charges which were collected by them to the complainant. On perusal of exhibit B5 we can see that the opposite party has collected Rs.590 from the complainant as overdue charge for bouncing the ECS. Admittedly the banker of the complainant also collected the bouncing charges. Though statement of account relating to the complainant’s account which is maintained with the State bank of India Changanassery branch was produced the complainant did not care to get it marked. Being a social welfare legislature we are of the opinion that the said document to be considered before arriving in to conclusion.
On perusal of said statement of account we can see that the state bank has charged ECS return charge in the month of April, June, July and August 2020 from the account of the complainant. It would not have happened if the opposite party did not present the ECS for the encashment within the moratorium period which is entitled for the complainant as per the circular of the RBI. Therefore we are of the opinion that due to the deficient act of the opposite party the complainant had suffered loss and hardship and for which the opposite party is liable to pay compensation for the same.
Considering the nature and circumstances of the case we are of the opinion that allowing a compensation of Rs.10,000/- will meet the ends of justice. In the circumstances, we allow the complaint in part and pass the following order.
We hereby direct the opposite party to pay Rs.10,000/- as compensation to the complainant for the deficiency in service on the part of the opposite party.
Order shall be complied within 30 days from the date of receipt of Order. If not complied as directed, the award amount will carry 9% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 16th day of September, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1- Printout of details of HDFC bank
A2 – Copy of statement of account for the period of 23-01-18 to 26-03-21
A3 – Copy of details of loan account No.7710345 and 54433683
Exhibits marked from the side of opposite party
B1 – Certified true copy of the Resolution passed by the Board of Directors of
HDFC Bank Ltd. held on October 16, 2021.
B2 – Copy of loan application submitted by complainant
B3 – Copy of loan cum hypothecation agreement
B4 – Online request submitted for Moratorium 1.0 and 2.0
B5 – Print out of statement of account (loan No.7710345)
B6 - Print out of statement of account (loan No.54433683)
B7 – Copy of Moratorium 1.0 announced on 27-03-2020
B8 – Copy of Morotorium 2.0 announced on 23-05-2020
By Order
Assistant Registrar
