Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-215/2016
Fakhre Alam r/o H.No. 2184, Qasimjan Street
Ballimararan, Delhi-110086 ...Complainant
Versus
M/s ICICI Bank, At Vedecon Tower,
Jhandewalan, New Delhi-110055 ...Opposite Party
Date of filing: 01.07.2016
Date of Order: 26.10.2023
Quorum: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Vyas Muni Rai
ORDER
1.1. The present complaint has been filed by Mr. Fakhre Alam (in short the complainant) against M/s ICICI Bank (in short OP) under Section 12 of the Consumer Protection Act, 1986.
1.2. The complainant got a car financed through OP for the loan amount of Rs. 5,00,000/- vide loan account no. LADEL00002118699 w.e.f. 07.05.2004 payable by EMI of Rs. 15,785/-. The complainant was repaying the loan regularly as per schedule. However, one executive of the OP Bank approached him in the month of November 2005. The said executive of OP told the complainant that if he gets the loan refinanced he will be provided loan to the tune of Rs. 5,00,000/- against the existing loan at very low interest. The complainant was asked to hand over post- dated signed cheques. The representative of the OP also promised that the first loan account shall be closed. Then complainant gave him cheques for refinancing the loan.
1.3. Further, about 10 days after the executive of OP came to the complainant and handed over cheque of Rs. 92,000/- (approx.) against new Loan no. LUDEL00004898749, against loan amount of Rs. 3,36,000/- with promise that earlier loan has been taken care of, but he failed to bring forth any closure statement of the earlier loan, the complainant refused to take the cheque. The executive of OP failed to supply any document as a proof of closure of earlier/ principal loan account, so complainant refused to accept the cheque. Executive of the OP did not come back nor returned that cheques of the complainant despite best efforts and reminders from the complainant. The complainant also contacted the customer care executives of the OP Bank for the same but in vain.
1.4. Complainant was shocked that the cheques given for second loan which was to be started after the closure of the first loan account were presented for the encashment by the OP Bank. Not only the cheques were unlawfully encashed on the first loan, but another loan account on the same vehicle was started and the complainant was forced to pay double EMI for a single vehicle to the OP Bank w.e.f. 07.12.2005. The complainant’s efforts to get his problem solved yielded no result. As a matter of fact, the complainant has paid a sum of Rs. 3,39,585/- in the first loan account and Rs. 4,07,520/- in the second loan account. Thus, the complainant ended up paying a total of Rs. 7,47,415/- whereas he was required to pay a sum of Rs. 4,52,475/-. The complainant had made an excess payment of Rs. 1,96,430/- due to illegal and unjust enrichment by OP Bank as they continued to encash EMI cheques in both the loan accounts.
1.5. The complainant’s grievances were not addressed by the OP and its officials/ customer care executives and the complainant continued to suffer at the hands of the executives and employees of the OP Bank. The OP and its officials acted in a very unethical and unprofessional manner to get unlawful gains for them and unlawful loss to its customer. The complainant’s representation dated 24.10.2013 in writing to the OP Bank in this context coupled with his several visits yielded no results and he continued to suffer for years.
1.6. OP sent a letter dated 06.03.2014 to the complainant, the contents of which were factually incorrect and evasive despite OP’s promise to resolve the issue within 10 working days.
1.7. The complainant feeling harassed and frustrated made a formal complaint to Banking Ombudsman, RBI, New Delhi vide his letter dated 08.01.2014 and the Ombudsman informed the complainant that compensation sought by the complainant was beyond the pecuniary jurisdiction prescribed under the Banking Ombudsman Scheme. Further, Ombudsman vide email dated 07.07.2014 forwarded to the complainant a copy of email received from OP Bank, wherein OP had stated that as per the advice of the office of Ombudsman, refund cheque for principal amount of Rs. 92,772/- and for interest amount of Rs. 60,157/- were prepared. It was also claimed in the said email of OP that the complainant had been contacted and was advised to collect the cheque from the Branch/OP. However, no such communication was made by the OP Bank to the complainant, nor any official of the OP contacted him for collecting the cheques.
1.8. Complainant further pleads that vide email dated 07.07.2014, the office of the Ombudsman had attached a communication dated 04.01.2014 sent by the Ombudsman to OP Bank, wherein Ombudsman found the Bank to be guilty and advised the OP Bank to rework the EMI on Rs. 2.43 lakh only that was used to close the earlier loan and refund excess amount to the complainant along with interest at the rate of 12.99% pa, same as charged on his loan account 2% penalty on the excess amount for misguiding the complainant (loan was given on promise of lower rate of interest) and excess loan refinanced.The OP Bank was also directed to comply directions within 07 working days. However, despite this, Bank/OP did nothing and failed to resolve the issue.
1.9. The complainant further alleges that in the facts and circumstances narrated above, OP Bank is clearly guilty of misleading the complainant and of charging excess amount than due, illegally. Therefore, Bank is manifestly guilty of deficiency in service and unfair trade practice.
1.10. The complainant seeks for direction against OP as under:-
(a). Strict action may kindly be initiated against the erring bank for fraudulently, shamelessly, continuously and maliciously running two loan accounts on a single vehicle, thus causing unlawful loss to the complainant without showing any remorse for their acts;
(b). to refund all the amount having been unlawfully extracted by them as quantified above, from the complainant along with interest @ 18% per annum;
(c). to pay compensation of Rs. 5,00,000/- (Rs. Five Lac only) to the complainant for having cause deliberate harassment and mental agony to the complainant;
(d). to award cost of the present litigation @ Rs. 55,000/- and reimbursement of a lump sum amount of Rs. 10,000/- towards incurring of cost in pursuing the matter with the OP or any other such order/ directions be passed as deem fit.
1.11. The complaint is accompanied with ID proof of the complainant, representation in writing given to OP, letter dated 06.03.2014 from OP to complainant, complainant’s complaint dated 08.01.2014 to the Banking Ombudsman, communication dated 07.07.2014 received by the complainant from Banking Ombudsman and directions of the Ombudsman to OP coupled with settlement of both the loan accounts.
2.1. The OP files reply to the complaint. The Consumer Forum has no jurisdiction to try the present complaint. [However, issue of the territorial jurisdiction of this Commission stands already decided vide proceeding dated 03.03.2023 holding that office of OP is in the Jahandewalan, New Delhi, which falls within the area of Deshbandhu Gupta Road, Police Station and the present Commission of Central District Kashmere Gate has jurisdiction over the area. Moreso, the point of jurisdiction was also not pressed.] The dispute involved cannot be dealt effectively by the Commission and only the Civil Court has jurisdiction to adjudicate the matter. Therefore, complainant has come to the Forum without clean hands. There is no deficiency on part of OP.
2.2. The complainant had approached OP for financial assistance of Rs. 5 lakh which was disbursed to him in April 2004 vide loan agreement no. LADEL00002118699. As per request of the complainant for additional loan, same was disbursed in November, 2005 vide loan agreement no. LUDEL00004898749 for Rs. 3,36,000/-. The OP had received duly authenticated ID proof, Bank statement, post-dated cheques for repayment of the credit facility.
2.3. Earlier loan i.e. LADEL00002118699 which was disbursed to the complainant in April 2004 was duly closed on 16.11.2005 based on the request of the complainant for refinancing the said loan.
2.4. OP had received EMI payment for loan account bearing no. LUDEL00004898749 commencing from 16.11.2005 which was disbursed to the complainant for an amount of Rs. 3,36,000/-. Thus, it was closed in December, 2008. The allegations of the complainant that EMIs are debited on both loan are totally incorrect.
2.5. The complainant did not accept the disbursement cheque amounting to Rs. 92,772/- due to the reason of not furnishing the closure statement of the earlier loan account. However, No Objection Certificate (NOC) was not issued to the complainant against earlier loan because refinanced loan was active in the system.
2.6. The loan was refinanced on the request of the complainant and the balance disbursement cheque was not accepted by the complainant for the reason known to him. The closure statement of account could not be ascertained as the details pertains to old dated records. The officials of OP requested the complainant to visit the office of OP to collect the cheque, however, the complainant refused to accept the same and demanded compensation. OP further states, without prejudice to the above that it had issued a fresh cheque bearing no. 648088 and was also arranging to refund the interest amounting to Rs. 30,917/- within 10 working days which was intimated to the complainant vide letter dated 06.03.2014 but complainant did not come forward despite the receipt of said letter.
2.7. The complaint is frivolous and liable to be dismissed. The compliant is also barred by limitation. There is no deficiency of service on the part of OP.
3. The complainant filed rejoinder and complainant reiterates the contents of complaint correct. The other allegations of reply are denied.
4.1. Complainant led his evidence by filing detailed affidavit having support from the documents filed with complaint and proved by affidavit of evidence.
4.2. OP led evidence by filing affidavit of Ms. Akriti Mishra, Senior Officer (Legal). This is also based on the facts and features of written statement, but not a single document has been filed by OP with its reply nor any document is proved in its affidavit of evidence.
5. (Final hearing)- The complainant and the OP filed their respective written arguments. The written arguments of complainant are supported by descriptive documents including examination report of the complainant’s complaint by the Banking Ombudsman (RBI), New Delhi, inter alia, giving advice to the OP to rework the EMI. However, written arguments of OP contains not only its stand taken in written statement but also contains contradictory submissions.
The parties were also given opportunity to make oral submissions. Accordingly, Sh. Nasir Aziz, Advocate for complainant and Sh. Parth Kaushik, Advocate for OP made the oral submissions.
6.1. (Findings)- The contentions of both the parties are considered keeping in view the material on record as well as the documents filed, besides the circumstances of the case.
6.2. The plea of the OP that dispute involved in the present complaint cannot be dealt effectively by the Commission in the present proceedings and only the Civil Courts have jurisdiction to adjudicate in the matter. However, OP has not given the reasoning/ grounds as to how the dispute can only be adjudicated by the Civil Courts. The provisions of the Consumer Protection Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Therefore, this Commission is competent to deal and decide the dispute raised by the complainant. This issue is disposed off accordingly.
6.3. There was issue of limitation in the pleading, however, vide order dated 03.03.2023 it was considered that complaint is within limitation and it was disposed off accordingly.
6.4. By taking into account totality of circumstances, the following conclusions are drawn:-
(i) There is no dispute that the complainant took car loan of Rs. 5,00,000/- on 07.05.2004 from OP vide loan A/c no. LADEL00002118699 which was to be repaid in equated monthly installments of Rs. 15,785/-. The complainant was making regular monthly payments as per schedule. However, in the month of November, 2005 an executive of OP approached the complainant and offered again another loan of Rs. 3,36,000/- against new loan no. LUDEL0004898749 with promise that earlier loan has been taken care of. (EMI chart for loan no. LADEL00002118699, EMI Chart for loan no. LUDEL0004898749, A/c statements of agreement of first loan and second loan are filled by the complainant at page 14 to 21 of paper book respectively and proved by way of affidavit).
(ii) The complainant vide letter dated 22.10.2013 to OP complained in chronological order about the harassment meted out him at the hands of officials of OP. The complainant in the said letter, inter alia, had pointed out that the cheques given for the second loan (which was to be started after the closure of the first loan account) were presented for encashment by the OP’s bank. Not only the cheques were unlawfully made to be encashed by OP, but another loan account on the same vehicle was started and the complainant was forced to pay double EMIs for a single vehicle. Despite efforts, complainant’s grievances were never resolved by the OP (the complainant has proved his letter dated 22.10.2013 in his affidavit for evidence).
(iii) The complainant after exhausting all the options with OP for redressal of his grievances, had filed complaint dated 06.03.2014 against OP with Banking Ombudsman, RBI, New Delhi. In response to the said complaint, OP vide its letter dated 06.03.2014 to the complaint vaguely replied, inter alia, giving contradictory statements as follows:-
(a) “However, vide your complaint, you had stated that the disbursement cheque amounting to Rs. 92,772/- was not accepted by you due to the reason of not furnishing the closure statement of loan bearing no. LADEL00002118699. We wish to state that the No Objection Certificate (NOC) was not issued against said loan due to the reason refinanced loan is active in the system.”
(b) “further, we would like to state that loan was refinanced on your request and the balance disbursement cheque was not accepted by you for the reasons best known to you. As per bank process, the said cheque was duly ready to be handed over to you. However, your claim of not accepting the said cheque due to not furnishing the closure statement could not be ascertained as the details pertains to old records.”
(c) “we understand from your complaint that you were following up with the officials of the bank at different time in the said matter. However, despite of our best efforts, we are unable to reverify the details as the data pertains to old dated records and hence unable to comment on the same. We sincerely apologize for the inconvenience caused to you.”
(d) “Customer first is our most important value and we try to live up to it in all our transactions and dealings. However, unfortunately, sometimes some misses might occur. Whenever, we get to know about it, we correct it at once and the regrets we express are heartfelt and not a mere formality.”
(iv) Mr. S.C. Cheema, Assistant General Manager, Office of the Banking Ombudsman, Reserve Bank of India, New Delhi examined the complaint of the complainant dated 04.01.2014 and submissions made by the parties and recorded his observations and advised the OP Bank as under:
Complaint no. 201314014005747 dated January 4, 2014
Complainant: Fakhre Alam
“Please refer to the above complaint. This office examined the facts and submissions made by the parties. The bank, in its response, had stated that a representative of an agency working on behalf of the bank had approached the complainant for getting the loan refinanced. It is not clear as to why the bank gave a refinance of Rs. 3.36 lakh when outstanding in the previous loan was 2.43 lakh was giving a cheque for the difference amount to the complainant. The earlier loan was at an interest rate of 9.02% pa whereas refinance was at 12.99% pa. The bank had been subsequently making efforts to give balance amount of Rs. 92,772/- to the complainant along with interest as applicable to Saving Account as a service gesture but the complainant would have ended up paying interest at 12.99% on the loan amount of Rs. 3.36 lakh.
2. The bank’s action does appear to be in order if it has charged EMI on Rs. 3.36 Lakh, as complainant had used only Rs. 2.43 Lakh and bank is now offering only SB rate to him.
3. Since the complainant had not utilized the full amount of the loan, the bank is advised to rework the EMI on Rs. 2.43 lakh only that was used to close the earlier loan and refund any excess amount to the complainant along with interest @ 12.99%, same as charged on his loan account + 2% penalty on the excess amount for misguiding the complainant (loan was given on promise of lower rate of interest and excess loan refinanced). We advise you to comply within 7 working days.
This has been issued with the approval of the Banking Ombudsman.
Regards
S.C. Cheema
Assistant General Manager,
Office of the Banking Ombudsman
Reserve Bank of India
New Delhi”
(v) The complainant has filed the details of his meetings and verbal discussions with different officials of OP supported by complaint numbers/ acknowledgement numbers and all such details have also been proved by way of his affidavit of evidence, but OP has miserably failed to prove its plea by any cogent evidence. Moreover, no documentary record has been proved by the OP in support of its contentions.
6.5. The conclusions drawn in sub-paragraph no. 6.4 above proves the case of deficiency of services and unfair trade practice on the part of OP. The complainant paid total of Rs. 7,47,415/- whereas he was required to pay Rs. 5,52,475/- to OP. Thus, complainant is held entitled for refund/ return of his excess paid amount of Rs. 1,94,940/- (Rs. 7,47,415/- – Rs. 5,52,475/- = Rs. 1,94,940/-) from OP. The complainant also claims interest at the rate of 18% pa. By considering the circumstances including nature of the case, interest at the rate of 7% pa from the date of complaint till realization of the amount will meet both ends.
6.6. The complainant claims compensation of Rs. 5,00,000/- for harassment and mental agony. The circumstances are crystal clear that complainant had requested/ represented not only the bank/OP but also was constrained to approach Banking Ombudsman, RBI, New Delhi. Ultimately, he was constrained to file the complaint with this Commission, clearly make out not only a case of compensation but also punitive damages, so that the trust and delicate relation of bank and the customers is not lost apart from to solace the complainant. The other reasons for punitive damages have already explained/ discussed in paragraph 6.4 of this order. Thus, compensation of Rs. 20,000/-is allowed in favour of complainant and against OP apart from punitive damages of Rs. 15,000/- in favour of complainant and against the OP. In addition complainant is allowed costs of litigation of Rs. 15,000/-.
6.7. Accordingly, the complaint is allowed in favour of complainant and against the OP to pay/ return amount of Rs. 1,94,940/- along with interest at the rate of 7% pa from the date of complaint till realization of the amount, apart from compensation of Rs. 20,000/-, punitive damages of Rs. 15,000/- and cost of Rs. 15,000/-.
The aforesaid amount be paid within 45 days from date of receipt of this order, failing which the rate of interest will be 8% pa (instead of 7% pa) on amount of Rs. 1,94,940/-.
7. Announced on this 26th October, 2023. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [Inder Jeet Singh]
Member President
