DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 481/2009
Sh. Prabhu Chandan SENIOR CITIZEN
S/o Late Sh. Chiman Dass Chandan 68 YEARS OLD
R/o C-72, Shivalik, Malviya Nagar
New Delhi-110017 ….Complainant
Versus
Hongkong & Shanghai
Banking Corporation Ltd.
25, Barakhamba Road,
New Delhi – 110001 ….Opposite Party
Date of Institution :12.06.09 Date of Order : 01.06.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
Sh. S.S. Fonia, Member
O R D E R
The case of the Complainant, in nutshell, is that he had obtained a loan from the OP vide loan account No. 052-398047-872 dated 27.7.2005 amounting to Rs. 7,38,500/- for a period of 60 months having EMI of Rs. 18,751/- each and he was making the regular payments of EMIs without any fault. Keeping this fact in view, the OP offered to him more amount as top up loan due to regular payment by the complainant and, accordingly, the OP enhanced/top up the loan and sanctioned a sum of Rs. 8 lacs vide loan agreement No. 052-398047-873 dated 17.1.2007 but, however, the OP only paid a sum of Rs. 1,92,031.45 vide pay order dated 22.1.2007 out of Rs. 8 Lacs sanctioned by the OP. The complainant wrote a letter to the OP on 19.2.2007 requesting to provide the details of deductions as well as to return the unused cheques against the previous loan. He states that ultimately the OP vide its letter/reply dated 18.6.2007 sent the details of deductions but the same were contrary to the records/loan payment schedule which was furnished to the complainant by the OP along with the sanctioned letter of previous loan dated 27.7.2005 inasmuch as the OP had shown the total amount payable towards the closure of loan as Rs. 5,98,989.55p while as per the loan repayment schedule the total outstanding as on January 2007 in the previous loan account was Rs. 5,95,123/-. It is inter-alia stated that with a view to close the loan account the complainant vide letter dated 22.10.2007 sent a demand draft of Rs. 7,20,094/- to the OP towards repayment of the outstanding shown in the loan payment schedule provided by the OP along with the sanctioned letter dated 17.1.2007 as on Nov. 2007. Despite that vide letter dated 12.11.2007 the OP raised a demand of Rs. 56,525.68p as amount due after adjusting the amount of Rs. 7,20,094/-. The complainant sent legal notice and the OP vide reply dated 17.5.2008 again raised a demand of Rs. 54,285/- as outstanding in the existing loan account in reply to which it was stated by the complainant that the payment of Rs. 7,20,094/- had already been made towards the loan repayment as per loan repayment schedule/FAA dated 17.1.2007. The OP threatened the complainant that his name will be submitted to the Credit Information Bureau of India Ltd. (CIBIL) in case the payment was not made on or before 29.5.2009. Claiming deficiency in service on the part of the OP complainant has filed the present complaint with the following prayers:
- Pass an order against the OP to close the loan account No. 052-398047-873 as settled in view of payment of Rs. 7,20,094/- made by the complainant,
- Pass an order against the OP to return the Post dated cheques issued by the complainant in respect of the initial loan account,
- Pass an order thereby restraining the OP from submitting the details of the complainant which are incorrect, illegal and false documents to the Credit Information Bureau of India Ltd. (CIBIL),
- Pass an order against the OP to pay a sum of Rs. 50,000/- to the complainant for causing physical and mental torture and agony to the complainant who is senior citizen and heart and serious diabetic patient due to the OP’s deficiency of service and threats,
- Order the OP to pay litigation charges amounting to Rs. 10,000/-.
In the written statement, the OP has inter-alia pleaded that disputed questions of facts and law arises and hence this Forum has no jurisdiction to entertain the complaint and thus Civil Courts have the proper jurisdiction to adjudicate upon the questions raised in the matter. It is pleaded that it was the complainant who had requested for an additional loan and accordingly opposite party accepted the said request and approved a fresh personal loan facility for an amount of Rs. 8,00,000/- vide Loan Account No. 052-398047-873 (the “second loan”) on 17.01.2007. It would be apt to highlight that such fresh loan/second loan i.e. the Top Up Loan is granted to a customer/complainant post closing the existing loan/first loan account. To close the first loan account, the opposite party bank deducts/adjusts the balance outstanding amount of the existing loan/first loan from the fresh loan/second loan amount being disbursed. It is worth mentioning here that since the second loan was approved subject to top up of the first loan, hence out of Rs. 8,00,000/- (disbursal amount qua second loan), opposite party paid a sum of Rs. 1,92,031.45p to the Complainant after deducting Rs. 5,98,989.55p on account of balance outstanding of the said first loan and Rs. 8,979.00/- on account of processing fee and the same was duly clarified by the opposite party to the complainant vide letter dated 23.09.2007 which is annexed herewith as Annexure-A. Subject to takeover of the first loan and at the time of disbursal, the second loan was payable in 60 EMIs having EMI of Rs. 19,454/- per month. It is further stated that the complainant did not provide any PDCs to the opposite party as the complainant was repaying outstanding dues qua first and second loan through ECS, instead he had only provided security cheques for the said loan accounts. It is further stated that the outstanding amount mentioned in amortization/repayment schedule is a tentative balance outstanding which may or may not be exact amount payable by the borrower. Such miniscule difference is on the grounds that the system calculates interest and levies charges for any difference in the date of scheduled EMI date and the actual EMI realization date. Hence there was difference between the foreclosure amount of Rs. 5,98,989.55p confirmed to the complainant vide letter dated 10th January 2007 mentioned in the amortization/repayment schedule sent to the complainant at the time of sanctioning of first loan. It is further stated that the amount of Rs. 7,20,094/- was received by the opposite party on 12.11.2007 towards the payment/part payment of the second loan and not on 24.10.2007 as alleged by the Complainant. It is further submitted that the balance amount as on 01.11.2007 as per the amortization schedule was Rs. 7,20,094/- and as stated earlier the said balance outstanding was only tentative and the same may or may not be exact amount payable by the complainant/customer/borrower. It is further stated that as the complainant had made deficit payments against the outstanding dues and even after adjusting the amount of Rs. 7,20,094/- qua second loan, an amount of Rs. 56,525.68p was still due as on 12.11.2009, so the opposite party bank accordingly demanded the correct amount from the complainant. Hence, it is prayed that the complaint be dismissed.
Complainant has filed rejoinder wherein he has reasserted the averments made in the complaint.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Piyush Tiwari, Principal Officer has been filed in evidence on behalf of OP.
Written arguments have been filed on behalf of the parties.
We have heard the Complainant in person and the counsel for OP and have also gone through the record very carefully.
From the pleadings and evidence of the parties, it stands proved on the record that the dispute is with regard to the payment of the outstanding amount of the second loan. Without making the order quite bulky, we straightway come to the document Ex. CW1/H which is copy of letter dated 24.10.2007 written by the complainant to the OP in respect of second loan. Paras 2, 3 & 4 read as under:
“2. In your letter dated 18th June 2007, you have stated that a total amount payable towards the closure of my previous loan account Number 052-398047-872, was principal amount outstanding and recovered by you is Rs. 597516.22/- plus interest outstanding recovered is Rs. 1473.33/- whereas as per your loan repayment schedule dated 27.7.2005 the principal amount balance was Rs. 595123.00/- as on 10th January 2007, when top up loan as mention about was sanctioned.
3. As per your loan repayment schedule dated 17.01.2007, for loan account no. 052-398047-873 principal amount outstanding as on 01.11.2007 is Rs. 720094.00/- whereas as per your schedule dated 15.10.2007 principal amount outstanding as on 01.11.2007 is Rs. 722458.02/-.
4. From above para no. 2 & 3 it clearly shows that details provided by you from time to time are not tallying and the amount paid to me Rs. 192031.45/- against the sanctioned loan of Rs. 8,00,000/- is not correct and therefore legal notice dated 15.5.2007 was issue to you by my advocate K.A. Ansari.”
It is undisputed fact that the OP had provided certain different figures of the outstanding loan amount to the complainant and in this context the stand of the OP is that the amortization/repayment schedule is a tentative balance outstanding which may or may not be exact amount payable by the complainant/customer/borrower and that such miniscule difference is on the ground that the system calculates interest and levies charges for any difference on the date of scheduled EMI date and the actual EMI realization date. We are very sorry to note that the bank like OP bank had issued amortization/repayment schedule by calculating the tentative balance outstanding which might or might not be exact amount payable by the complainant/customer/borrower. OP has not filed any document to show that the pay order for the amount of Rs. 7,20,094/- sent by the complainant towards full and final payment of the second loan was received by the OP on 12.11.07 and not on 24.10.2007. OP could have easily proved this fact by producing the copy of the loan account statement of the complainant. Had this document been filed on the record, the forum would have the opportunity to see whether the amount of Rs. 7,20,094/- had been received by the OP before 1.11.07 and, if so, whether the OP was entitled to adjust the amount of Rs. 7,20,094/- towards the outstanding amount on the basis of the tentative calculation. Very interestingly enough, according to the OP, the complainant had made deficit payments against the outstanding dues and even after adjusting the amount of Rs. 7,20,094/- qua second loan, an amount of Rs. 56,525.68p was still due as on 12.11.2009. When admittedly an amount of Rs. 7,20,094/- had been paid to the OP vide pay order dated 24.10.07 which in the absence of any evidence to the contrary is presumed to have been received by the OP on or before 1.11.2007, the OP should have immediately informed the complainant about the outstanding amount, if any, to be paid by the complainant to the OP towards the second loan but, however, the OP did not do so before 17.5.2008 when the OP sent a letter in response to the legal notice dated 22.1.2008 of the complainant thereby informing the complainant that a sum of Rs. 54,285/- was still outstanding in the existing loan account of the complainant. Therefore, we are of the considered opinion that by raising the subsequent demand by taking a plea of tentative calculation, the OP committed grave deficiency in service and thus the demand in question was totally illegal and unjustified. Accordingly, we hold that the OP is guilty of deficiency in service. Hence, we allow the complaint and direct the OP to close the second loan account of the complainant as settled and not to pursue the matter with CIBIL. We also award Rs. 30,000/- towards mental pain and agony and Rs. 8,000/- towards cost of litigation to the complainant.
The order shall be complied within 30 days of receipt of copy of this order failing which OP shall become liable to pay Rs. 30,000/- along with interest @ Rs. 9% per annum from the date of filing of complaint till its realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
(S. S. Fonia) (Naina Bakshi) (N. K. Goel)
Member Member President
Announced on 01.06.2016
Case No. 481/2009
01.06.2016
Present – None.
Vide our separate order of even date pronounced, the complaint is allowed. OP is directed to close the second loan account of the complainant as settled and not to pursue the matter with CIBIL. We also award Rs. 30,000/- towards mental pain and agony and Rs. 8,000/- towards cost of litigation to the complainant. The order shall be complied within 30 days of receipt of copy of this order failing which OP shall become liable to pay Rs. 30,000/- along with interest @ Rs. 9% per annum from the date of filing of complaint till its realization. Let the file be consigned to record room.
(S. S. Fonia) (Naina Bakshi) (N. K. Goel)
Member Member President
