FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is an application filed by the complainants U/s 35 read with section 34 of CP Act, 2019.
The fact of the case in brief is that the complainant took the home loan amounting to Rs. 3,20,000/- from the OP/ICICI bank. The OP Bank sanctioned the home loan amounting to Rs. 3,20,000/- on condition that the complainant supposed to repay the amount in 156 monthly installments i.e. within 13 years. Accordingly, the OP bank issued the cheque on 30.09.2004 in favour of the complainant which is collectively annexed as annexure-“A”.
The complainants further stated that they purchased a flat complex namely “Sugam Park” at 4th floor being flat No. 404, at 195, N S Road, P.O- Narendrapur, PS-Sonarpur, Kolkata-700103 under Ward No. 24 of Rajpur Sonarpur Municipality at a total consideration of Rs. 5,10,000/- only. The copy of deed of conveyance dated 26.05.2006 of the said flat is annexed as annexure “B”.
The complainants further stated that they started to pay monthly EMI @ Rs 3,130/- of the said loan by way of Auto Generated Debit from his bank A/c i.e. Punjab and Sindh Bank, Bhawanipore and he paid the EMI till 2020 which is exceeding the actual tenure of loan i.e. 156 months. The copy of Bank statement is annexed as annexure-“C”.
It is alleged by the complainants that subsequently, the OP/Bank through the telephonic conversation to the parties and also by way of letter demanding extra money which the complainant had already paid through monthly EMI to the OP bank but by way of letter admitted the fact due to some technical error above stated demanding notice has been issued by bank and they have recalled the same. The copy of demanding notice dated 16.07.2021 is annexed as annexure “D”.
It is further stated by the complainant that in the year 2017, the said loan account were supposed to get closed but the bank authority continued their unfair trade practice by deducting a sum of Rs. 6,858/- in the year 2017, Rs. 41,137/- in the year 2018, Rs. 41,412 in the year 2019 and a sum of Rs. 6,902/- in the year 2020 to the amounting Rs. 96,309/- has been taken as extra money by the OP bank from the complainant till the bank demanding money from the complainant whose EMIs is going to end on 01.08.2030. Hence, without having any other alternative, the complainant made complaint before the office of Assistant Director, Consumer Affairs and Fair Business Practice Kolkata, (South), Regional Office Khadya Bhawan. The complainant tried to contact to the official of OP/bank but in vain. The complainant stated that the OP/bank have neither shown any interest to refund the extra money. So, the complainant has filed the petition of complaint with a prayer to give direction to the OPs to refund an amount of Rs. 96,309/- to the complainant along with interest 18 % p.a. and the NOC of the loan and also prayed to pay a sum of Rs. 5,00,000/- for harassment, mental pain and agony along with litigation cost of Rs. 50,000/-.
The OPs 1, 2 and 3 have contested the claim application by filing a WV denying all the materials allegations level against them.
It is stated by the OPs in their WV that admittedly, the complainants have applied for home loan of a sum of Rs. 3,20,000/- for the purpose of purchasing a flat.
It is denied by the OPs that it was agreed that the loan amount would be repaid by the complainants in 156 months i.e. within 13 years as alleged. It is suppressed by the complainants that loan was taken as Adjustable Interest Rate/Floating Interest Rate which is evident from the offer letter (annexure-A). The complainants admitted the terms of said offer letter by putting their signature thereon. So, the complainants are bound by the terms of the offer letter (annexure- A).
It is further stated by the OPs in their WV that the Adjustable Interest Rate/Floating Interest Rate was 7.5 % applicable as on the date of execution of home loan agreement by the complainants.
In case of Adjustable Interest Rate/Floating Interest Rate, rate of interest varies from time to time with the changes of economic environment and resultant changes in the borrowing cost of the bank for calculating such interest rate, benchmark rate is adopted which in the present case is floating interest rate.
In the instant case, the complainant wrongly averred that the period of repayment of the home loan is fixed at 156 monthly installments which is not correct and it is denied by the OPs. It is alleged by the OPs that the cheque deposited towards the repayment of the home loan by the complainant frequently dishonored for which charges to be applied which the complainant deliberately did not disclose. The cheques were repeatedly dishonored and they were defaulter.
From the statement of the A/c as annexed with the petition of complaint, it is clear that there were irregularity on the part of the complainant in clearing the home loan.
It is also denied by the OPs that any extra money demanded by the complainants from the OP bank. They due to some technical error issue notices by the bank on the complainant where recall but the right of the bank was not wait as alleged. It is noticed by the OP bank that any sort of unfair trade practice was adopted by the OP bank. It is also denied that the complainant repaid the entire EMIs due and outstanding in respect of the home loan account.
It is further stated by the OPs that the complainant from time to time paid the valid amount raised by the bank. So, the complainants admitted the terms and conditions of the floating rate of interest. Moreover, as per statement of A/c dated 22.06.2022, the amount of Rs. 1,00,065.93/- is outstanding amount. The complainants have to pay a sum of amount with further interest with penal charges as applicable till the date of actual payment.
The OPs further stated that the demand made by them for legitimate dues cannot termed as unfair trade practice rather the OPs rightly demanded for payment from the complainants in respect of the said loan account. So, question of negligence and deficiency in service on the part of the OPs does not raise at all rather complainants admittedly failed to repay the loan in terms and Rs. 96,309/- is not extra money taken by the OP bank as alleged as per OPs case. The complainants have no cause of action to file the case and he is not a consumer at all. So, the petition of complaint is liable to be dismissed with exemplary cost.
In view of the fact and circumstances, the points of consideration are as follows:-
- Is the case maintainable in its present form?
- Have the complainants any cause of action to file the case?
- Are the complainants a consumer?
- Is there any deficiency in service on the part of the OPs?
- Are the complainants entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.
It is found from the facts and circumstances as well as position of law of this case that this commission has got ample jurisdiction to try this case both pecuniary and territorial.
On a close scrutiny of the materials on record, it is also revealed that the complainants have filed this case within the period of limitation.
From the materials as well evidence on record, it is also found that the complainants took home loan from the OP and the subject home loan was granted to the complainants by the OP on 30.09.2004 by issuing cheque in favour of the complainants and the loan amount was of Rs. 3,20,000/- only. All along complainants have stated in the petition of complaint, evidence and argument that as per terms and conditions of the subject loan. It was decided that the complainants have to repay the loan account in 156 installments i.e. 13 years but it is alleged that even after repay the entire loan amount, the OP bank in the year 2017, 2018, 2019 and 2020 deducted a sum of Rs. 96,309/- of excess money from the A/c of the complainants. Hence, this case is filed by the complainants for refunding the alleged amount.
From which it is crystal clear that the complainants are the consumers within the ambit of CP Act, 2019 and the OPs are the service provider.
From evidence on record, it is established that the complainants have/had sufficient cause of action to file the case. Now let us see whether there is/was any sort of deficiency in service on the part of the OPs or not?
From annexure-A which is the terms and conditions of the subject home loan, it is found that admittedly, the complainants took the home loan amounting to Rs. 3,20,000/- from the OP and it was termed loan of 156 month (13 years) and floating reference rate of interest was 7.75 % as on date and it is also mentioned in the terms and condition that Floating Reference interest rate ie FRR as publicly notified from time to time + margin of 0.025 % i.e. 7.5 % pa (7.75%-0.25%) in annexure- A i.e. the terms and conditions of the home loan. It is also mentioned that the number of equated monthly installments are 156 and amount of each EMI (on monthly rest) Rs. 3,218/- (payable monthly).
It is also mentioned herein that the offer letter is valid for a period of 06 months, however, the aforesaid rate of interest is valid for 30 days.
On a close scrutiny of the materials as well as evidence on record, it is revealed that the annexure-A categorically stated that floating reference para-16 clause (i) that “Floating Reference Rate (FRR) shall mean the percentage rate per annum decided by ICICI bank from time to time and notified/announced by ICICI bank in such form and manner as being appropriated by ICICI bank from time to time as floating reference rate”.
It is also mentioned herein that ICICI bank is entitled to increase the EMI at its sole discretion. Loan tenure shall also change as per change in EMI.
Under such circumstances, it is alleged by the complainants that they have paid the EMI as well as entire loan amount within 156 months but the OP bank arbiterally deducted extra amount of money in the year 2017 a sum of Rs. 6,858/- was deducted, in the year 2018 a sum of Rs. 4, 1137/- was deducted, in the year 2019 a sum of Rs. 41,412/- was deducted and in the year 2020 a sum of Rs. 6,190/- was deducted by the OP from the A/c of the complainants in total Rs. 96,309/- was deducted by the OP bank which is extra amount of money beyond the loan amount.
In this regard Ld. Advocate for the complainants during the course of argument argued orally as well as in their written argument that in annexure-A, it was decided that the subject loan amount of Rs. 3, 20,000/- would be paid by the complainants in 156 monthly installments and the floating reference rate 7.75 % as on the date but the complainants have overlooked the vital line that the offer is valid from a period of 06 months and aforesaid rate of interest is valid for 30 days.
On the contrary, Ld. advocate for the OP bank has drawn the attention of this commission to paragraph -1 of terms and conditions of the subject loan and also to paragraph- 16 clause (i) of the said loan agreement wherein it is categorically stated that floating rate of interest shall mean the percentage per annum decided by ICICI bank from time to time notified/announced by ICICI bank in such form and manner as if the appropriated by ICICI bank from time to time as Floating Reference Rate.
He further argued that the complainants have gone through the terms and conditions of the such loan agreement and after realizing the meaning of the terms and conditions (Annexure- A), they agreed to take loan and the OP bank also agreed to sanction the loan to the complainants for purchasing their flat but at this juncture, the complainants are alleged that the OP bank has deducted the extra money of Rs. 96,309/- and they have filed this case for refund the said amount. Ld. advocate for the OPs further argued orally and also their written argument that there were no deficiency in service on the part of the OPs, at the time of taking home loan, the complainants were agreed to each and every terms and conditions of loan agreement and they put their signature thereon after realising the meaning of each and every terms and conditions of loan agreement. Now, they have deviated from their stand and tried to grab money from the OPs by unlawful means.
On consideration of facts and circumstances and evidence as adduced by the parties to this case, it is held by this commission that the commission is of same view with the Ld. Advocate of the OPs because the complainants took the subject loan when they convinced with the terms and conditions of the OP bank and thereafter they agreed and entered into the loan agreement by putting their signature thereon. At present they cannot deviated from their stand because both the parties related to subject loan are bound by the loan agreement. The complainants were bound to pay the floating rate of interest which is subject to change time to time. They were bound to pay the EMI as per terms and conditions (annexure-A) but at present, the complainants alleged that the OP bank unlawfully deducted more money amounting to Rs 96, 309/- in total and they demanded to refund the said money. From the evidence, it is also revealed that the security cheques which were deposited by the complainants where bounced due to insufficient fund of money time to time from which they also bound to pay penal charges. So, considering the facts, circumstances and evidence of the case, it is proved that the complainants did not come with clean hand. So, question of deficiency in service on the part of the OPs does not arise at all. The complainants have failed to prove that there was any deficiency in service on the part of the OPs which caused harassment, mental pain and agony rather the complainants after getting the subject home loan tried to evade from their duties and responsibilities as borrower to pay the entire loan amount including the floating rate of interest and penal charge.
Hence,
In view of discussion made above, it is held by this commission that though the complainants are consumer, but they failed to prove their case regarding deficiency in service on the part of the OPs and they are not entitled to get the relief as prayed for.
Hence,
It is opined by this commission that the complainant have failed to prove their case of deficiency in service on the part of the OPs beyond all reasonable doubt and is not entitled to get the relief as prayed for.
All the points of consideration are considered and decided accordingly.
Hence,
Ordered
that the case be and the same is dismissed on contest without any cost.
Copy of the judgment be uploaded forthwith on the website of the commission for perusal.
