DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No. 238/2019
Mr. Parvez Abbad & Mr. Abbas Haider
Both S/o Shri Shafi Haider
R/o 56-D, MIG Flat, Century Apartment,
Sector-100, Noida, Uttar Pradesh-201301. ….Complainants
Versus
ICICI Bank
Branch at: S-26, 27, 28
Veera Towers, Ground Floor,
Green Park Extension,
New Delhi-110016.
Also at :
82, Janpath Road, Janpath,
Connaught Place,
New Delhi-110001. ….Opposite Party
Date of Institution : 23.08.2019 Date of Order : 12.03.2020
Coram:
Ms. Rekha Rani, President
Ms. Kiran Kaushal, Member
Ms. Rekha Rani, President
ORDER
- Mr. Parvez Abbad and Mr. Abbas Haider (in short the complainants) have filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 as amended up to date (in short the Act) inter-alia pleading therein that they applied for MIG flat with Noida Authority. With a review to purchase the same, they applied for home loan from ICICI Bank (in short the OP) in the year 2007. On 26.03.2007, OP deposited an amount of Rs.17,99,719/-into complainants bank account to enable them to purchase the flat. Complainants noticed that arbitrarily EMI towards loan account was being deducted. They enquired from customer care of OP and came to know that current rate of interest was 14.25% for loan against property.
Complainants made their grievances known to the OP that they applied for home loan whereas loan sanctioned and disbursed to them was loan against property. Complainants do not own any property to mortgage in favour of the OP so it is not possible for OP to sanction loan against property.
Instead of redressing their grievance OP issued sanction letter dated 22.03.2007 which was loan against property. The said sanction letter dated 22.03.2007 was not acknowledged and signed by the complainants.
OP again sent sanction letter dated 22.03.2007 by post which contained complainants “fake” signatures / acknowledgment.
In the year 2008, on complainants approaching OP, OP executed “an agreement for switch from present interest rate scheme to adjustable rate of interest and thereby reduced the rate of interest from 15.25% to 12.25%”.
Between the year 2009-12, complainants visited the office of the OP for redressal of their grievances but nothing came out.
In the year 2013, they made complaint to RBI against OP stating that OP had changed the nature of loan from home loan to loan against property and OP was continuously charging higher rate of interest from the complainants.
On 04.12.2014 OP issued another sanction letter by which they changed the type of loan from loan against property to home loan and also reduced the rate of interest.
From 2015-16, the complainants approached OP for reduction of EMI amount as per the new sanction letter dated 04.12.2014 but it was of no use.
In the year 2016 complainants went to Mediation Centre. Mediator had fixed many dates between 2016-2017 but OP did not join proceeding before Mediation Centre.
When Mediation proceedings failed, complainants filed a police complaint with police station Safdurjung Enclave on 01.07.2017. Since complainants grievances have remained unattended, present complaint was filed on 23.08.2019 seeking following directions to the OP:-
- “To reset interest rate as per the original loan documents/
agreement taken by them in the year 2007 with retrospective effect and adjust the amount toward the loan amount.
- To refund the excess amount paid by the complainants.
- To pay Rs.1,50,000/- as compensation for causing harassment and mental agony on account of adopting unfair trade practice in contravention of RBI guidelines
- To pay Rs.50,000/- as litigation expenses.”
- The case is at admission stage.
- We have learned counsel for the complainants particularly on the issue as to how the case is within limitation.
- Section 24-A of the Act lays down that the Consumer Forum shall not entertain a complaint, unless it is filed within two years from the date on which the cause of action has arisen. The Hon’ble Supreme Court in State Bank of India, as quoted by State Consumer Disputes Redressal Commission, Punjab Chandigarh in Consumer Complaint No. 368 of 2019 titled as Kavita vs. The Punjab State Federation of Cooperative House Building Society Ltd. decided on 12.09.2019, observed in Para No.8 as under:-
“8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, `shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”
- This view of law was further reiterated by the Hon’ble Supreme Court in its judgment reported as “V.N. Shrikhande (Dr.) v. Anita Sena Fernandes” 2011 CTJ 1 (SUPREME COURT) (CP). It was held by the Hon’ble Supreme Court as under:-
“Section 24A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. In other words, the consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A(2), the consumer forums will have no option but to dismiss the same. Reference in this connection can usefully be made to the recent judgments in State Bank of India v. B.S. Agricultural Industries (I), 2009 CTJ 481 (SC)(CP)=(2009) 5 SCC 121and Kandimalla Raghavaiah and Company v. National Insurance Company and another, 2009 CTJ 951 (SC)(CP)=(2009) 7 SCC 768.”
- Admittedly loan was sanctioned to the complainants by the OP vide loan sanction letter dated 22.03.2007. Complainants were aggrieved as OP was allegedly charging exorbitant rate of interest.
In the year 2008, OP allegedly executed an agreement for switch from present interest rate scheme to adjustable rate of interest thereby reducing the rate of interest from 15.25% to 12.25% and despite execution of this agreement they were still charging higher rate of interest. Hence complainants had grievances against charging of the higher rate of interest in the year 2008 as well.
It is further pleaded that complainants visited the office of OP between the years 2009-2012 to negotiate the issue but the same was not resolved. Further it is stated in the year 2013 complainants made a complaint against the OP to RBI for forging their signature on sanction letter dated 22.03.2007 and thereby changing the nature of loan from home loan to loan against property.
Admittedly, cause of action arose for the first time with issuance of sanction letter dated 22.03.2007. OP allegedly kept charging exorbitant rate of interest but complainants did not seek any legal remedy.
It is also pleaded that a new sanction letter was issued by OP on 04.12.2014 vide which loan from loan against property was changed to home loan thereby reducing rate of interest. Learned counsel for the complainants argued that fresh cause of action arose with issuance of another sanction letter dated 04.12.2014.
Even if we agree with this argument, the instant complaint ought to have been filed within two years on alleged failure of OP to comply with sanction letter dated 04.12.2014. Complainants kept silent even then.
It is further pleaded that from 2015-16 complainant approached RBI against the OP for seeking compliance of sanction letter dated 04.12.2014 but it did help them.
It is stated that between 2016-17 complainants with a hope to settle the matter with OP approached Mediation Centre and when they lost hope of settling the dispute with OP they made a police complaint against OP on 01.07.2017.
- Complaint is hopelessly time barred. Even if submission of learned counsel for the complainants that previous cause of action which arose with issuance of sanction letter dated 22.03.2007 was revived on issuance of another sanction letter dated 04.12.2014 or even if it is assumed that fresh cause of action arose on 04.12.2014 the complainants did not come within two years, thereafter as per Section 24A of the Act. Complainants might have approached Mediation Centre or Police but that does not extend the period of limitation which started running against them from the date on which cause of action accrued for the first time.
Learned counsel for the complainants submitted that complainants had been visiting the office of the OP and writing emails for redressal of their grievances.
It is settled law that mere visits to the office of OP or correspondence exchanged with OP does not extend the period of limitation.
- The Hon’ble Bombay High Court in State of Maharashtra v. Hindustan Construction Company Anr. Arbitration Appeal No.6 of 2007 decided on 01.02.2013 held in Para No.32 as follows:
“32. In my view, refusal to pay the amount demanded by the petitioner, would not commence fresh period of limitation which had already commenced. In view of Section 9 of the Limitation Act, 1963, once time is begun to run, no subsequent disability or inability to institute a suit or make an application stops it. Once time starts, it does not stop. Limitation is extended only when there is an acknowledgment of liability or part payment. Correspondence does not extend the period of limitation.”
- Similarly, in United Bank of India vs. Janata Paradise Hotel and Restaurant, IV (2014) CPJ 383 (NC), Hon’ble National Commission observed as under:-
“6..........This argument is devoid of force because correspondence does not extend limitation, particularly, when first request for refund is made after claim became time-barred. In this matter, claim became time barred in the year 1995 and letter has been written on 18.11.2007. Complainant has not placed any letter from 1995 to 2007 and, thus Consumer Complaint No 368 of 2019 25 claim being barred by limitation, learned District Form committed error in allowing complaint."
- Likewise, in Vandan Pareshkumar Manghita vs. The Divisional Manager, National Insurance Co. Ltd., 2014 (4) CLT. 254, Hon'ble National Commission has also observed that "mere correspondence does not extend limitation and complaint was to be filed within period of 2 years from first intimation”.
- It is therefore, clear that no amount of correspondence can extend the period of limitation which had already commenced from the date of accrual of cause of action which in the present case is 22.03.2007 or even 04.12.2014.
- Learned counsel for the complainants also submitted that about two years were lost in Mediation proceedings. Even if it is assumed that cause of action was revived with sanction letter dated 04.12.2014, complainants chose to invoke Mediation proceedings only in 2016-17.
- The Hon’ble Apex Court in Civil Appeal No. 10941-10942 of 2013 titled New India Assurance Co. Ltd. vs. Hilli Multipurpose Cold Storage Pvt. Ltd. decided on 04.03.2020 had observed that:-
“18. Apex Court in the case of Lachmi Narain vs. Union of India (1976) 2 SCC 953 has held that “ if the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the interest that the provision is to be mandatory”. Further hardship cannot be a ground for changing the mandatory nature of the statute, as has been held by this Court in Bhikraj Jaipurai vs. Union of India AIR 1962 SC 113=(1962) 2 SCR 880 and Fairgrowth Investments Ltd. vs. Custodian (2004) 11 SCC 472. Hardship cannot thus be a ground to interpret the provision so as to enlarge the time, where the statute provides for a specific time, which, in our opinion, has to be complied in letter and spirit.
Apex Court, in the case of Rohitash Kumar vs Om Prakash Sharma (2013) 11 SCC 451 has, in paragraph 23, held as under:
“23. There may be a statutory provision, which causes great hardship or inconvenience to either the party concerned, or to an individual but the Court has no choice but to enforce it in full rigor. It is a well settled principle of interpretation that hardship or inconvenience caused, cannot be used as a basis to alter the meaning of the language employed by the legislature, if such meaning is clear upon a bare perusal of the statute. If the language is plain and hence allows only one meaning, the same has to be given effect to, even if it causes hardship or possible injustice.”
While concluding, it was observed “that the hardship caused to an individual, cannot be a ground for not giving effective and grammatical meaning to every word of the provision, if the language used therein, is unequivocal.”
Further, it has been held by Apex Court in the case of Popat Bahiru Govardhane vs Special Land Acquisition Officer (2013) 10 SCC 765 that the law of limitation may harshly affect a particular party but it has to be applied with all its vigour when the statute so prescribes and that the Court has no power to extend the period of limitation on equitable grounds, even if the statutory provision may cause hardship or inconvenience to a particular party.”
- Hon’ble Apex Court further observed that “if the law provides for the period of limitation it has to be strictly complied. It is well settled that law prevails over equity, as equity can only supplement the law, and not supplant it.
The Apex Court, in the case of Laxminarayan R. Bhattad vs. State of Maharashtra (2003) 5 SCC 413, has observed that “when there is a conflict between law and equity the former shall prevail.” In P.M. Latha vs. State of Kerala (2003) 3 SCC 541, this Court held that “Equity and law are twin brothers and law should be applied and interpreted equitably, but equity cannot override written or settled law.” In Nasiruddin vs Sita Ram Agarwal (2003) 2 SCC 577, this Court observed that “in a case where the statutory provision is plain and unambiguous, the court shall not interpret the same in a different manner, only because of harsh consequences arising thereform.” In E. Palanisamy vs. Palanisamy (2003) 1 SCC 123, it was held that “Equitable considerations have no place where the statue contained express provision”. Further, in India House vs Kishan N. Lalwani (2003) 9 SCC 393, this Court held that “The period of limitation statutorily prescribed has to be strictly adhered to and cannot be relaxed or departed from by equitable considerations.”
It is thus settled law that where the provision of the Act is clear and unambiguous, it has no scope for any interpretation on equitable ground.”
16. In view of the above discussion, complaint is dismissed as time barred.
17. 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.
Announced on 12.03.2020
