Delhi

East Delhi

CC/142/2015

AHSAN - Complainant(s)

Versus

ICICI BANK - Opp.Party(s)

22 Sep 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT OF NCT OF DELHI

               CONVIENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

CASE NO-142/15
 

Mohd Ahshan

Son of Shri Mohd Yusuf

House No.366/A, Shahed Nagar

Sahibabad-201005,

Ghaziabad, U.P.

Complainant

Vs

ICICI Bank Limited

Through its Manager

2^nd Floor, Videocon Towers

Block E1, Jhandewalan Extn.,

New Delhi-110055

Opposite Party

 

                                                                                   DATE OF ADMISSION-25/02/2015

                                                                                  DATE OF ORDER       -09/11/2015

SH. N. A. ZAIDI, PRESIDENT

This complaint has been filed with the allegation that the complainant got interested for taking the loan from the respondent for an amount of rs.15,32,130/- which was approved by the respondent in vide Account No. LBDEL00001226416. The rate of interest agreed between the parties was 9.5% per annum. The complainant is illiterate person, his signatures were taken on numerous papers. It was assured that the charges of interest and collection of loan by the respondent will be fully transparent. The loan was to be repaid in monthly installments of Rs. 19,617/- in 120 months. The respondent collected EMI from the post dated cheques. In the month of July 2013, complainant wanted to make the payment of the entire outstanding principal amount and approached the respondent for getting the letter of Foreclosure of his loan Account. The respondent told that a sum of Rs.12,48,701.53 is outstanding.  The complainant was forced to file the consumer complaint No.619/13 before this District Forum and upon offer of respondent to charge proper interest for 92 months only. He agreed for disposal of the complaint on those terms, on 22/11/2013. The respondent has been insisting on payment of interest @ 16% per annum although the rate of interest w.e.f. August 2013 was 10%. The respondent issued notice for Rs.13,19,884/- in July 2014 and in January 2015, a notice under Securitization, Reconstruction of Financial Assets and Enforcement of Security Interest Act, was also issued despite execution been pending before this Forum. The respondent is bent upon for charging the complaint with illegal and illegimate interest rate. On outstanding amount the rate of interest is 10% per annum and the total amount due is Rs.5,90,679.44.  The respondent is indulging the unfair trade practice causing the complainant mental pain and agony. The complainant prayed that the respondent be directed to accept Rs.5,90,679.44 and zero balance statement be issued after complete satisfaction of the Loan Account and his name be removed from the defaulter list and Rs.1,00,000/- as cost of mental pain and harassment and litigation charges.

            Respondent filed their reply where in plea of bar of section 11 of CPC on account of earlier complaint has been pleaded second complaint on the same fact is not maintainable. Plea of limitation has also been raised. The terms of the contract between the parties cannot be challenged or altered. The rate of interest and nature of interest was to be informed to the complainant, he opted for floating rate of interest. On 22/11/2013, this Forum passed the orders and complainant was to deposit the outstanding amount within 15 days but he failed to make the payment for the next eight months, subsequently to which the EMIs for these months have also become due and payable by him. The order of the Forum on the basis of the foreclosure of the statement dated 14/11/2013, cannot be complied with until and unless the EMIs which are pending due towards the complainant are paid and cleared first. The amount due on 14/11/2013 was Rs.1193870.48, which was to be paid by the complainant as per the orders. The foreclosure statement dated 17/03/2015 shows outstanding amount of Rs. 15,04,444.48. The complainant is forcing the bank to accept Rs.5,10,042/- on the basis of his own calculation which is not acceptable to the bank. The bank initiated SARFAESI proceedings against the complainant, once these proceedings are initiated under provision of section 13(2) of the SARFAESI Act, bars the jurisdiction of any other court. Rest of the allegations of the complainant has been denied.

            Both the parties have filed on record their Affidavit and Evidence.

            Heard and perused the record.

            The Ld. Counsel for the respondent raised the plea of Section 11 of the CPC as the complainant has filed the complaint 619/13 for the same relief as such this complaint is barred. This has been filed on the same facts, they have mentioned “Ansal Housing vs Indian Machiniery 2013(3) CPR 207 (NC)” and “Uddalak vs. Electricity Supply Co. Ltd. & Ors. 2013 (1) CPC542”. The Counsel for the complainant argued that plea of the respondent regarding bar of the Section 11 of CPC cannot be looked into as it has been held by the Hon’ble Supreme Court in Rajive Hitender Pathak vs Achyut Kashinath Karekar & ors. The provisions of the CPC are not applicable as such the plea of Rejudicata may not be available to the respondent. Section 13(4) spells the extent of applicability of provisions of CPC. Section 11 is definitely not the one which has been made applicable on proceedings under Consumer Protection Act. It has been argued on behalf of the complainant that in earlier complaint which has been decided on the consent of the parties on 22/11/2013 on the statement given by the Ld. Counsel for the respondent, as the prayer in the complaint for depositing the entire loan lumsum amount with interest of 92 months. In the present complaint, the complainant has come up with the plea that the rate of interest which was agreed between the parties has been levied arbitrary by the respondent and now their claim of interest @ of 16% is being challenged. It is argued that the present complaint is presented for wrongful imposition of interest rate on the outstanding amount as such it is a new cause of action and the complaint on new cause of action is not barred.

The Ld. Counsel for the respondent submitted that the complainant is bound by the terms of contract of loan. It was agreed that it will be the floating rate of interest with the change of time. The rate of interest changes and as per the RBI circular, the bank has been given liberty to vary the rate of interest and penal rate of interest, if the borrower violates the condition of repayment of loan. This has been contested by the complainant Ld. Counsel and it has been argued that variation in the interest rate cannot be forced against the borrower unless the same is duly communicated to the borrower. The documents which the respondent has filed on record are not supported with the fact or evidence that at any stage intimation was ever served upon the complainant. There is no receipt from the postal authority which could be used as evidence that these notices were served ever upon the complainant. We find substance in the submission of the Ld. Counsel for the complainant if the notice was not served upon the complainant, the respondent could not levy any rate of interest except the agreed rate of interest between the parties. The complainant has specifically alleged since 2013, the rate of interest has been 10% and they are prepared to pay 10% rate of interest on the entire outstanding amount. In the above circumstances the demand raised by the respondent of Rs.15,04,444.48 on 17/03/2015 cannot be accepted. The respondent to calculate outstanding amount, taking into consideration 10% rate of interest on the outstanding EMIs and shall served upon the complainant. A demand notice which the complainant shall deposit within 15 days of receipt of the notice if the complainant fails to deposit the entire amount within time allowed, the respondent shall be at liberty to charge the penal interest from the complainant on the amount, so not deposited. An amount of Rs.5,90,642 was tendered by the complainant to the respondent. This amount shall be adjusted, while calculating the outstanding amount due from the complainant.

The respondent have taken the plea of bar of bar of SARFAESI Act. It is well settled law that the provisions of the CPA are in addition to and in derogation of the provisions of the any other law for the time being enforced, as such the plea raised by the respondent cannot be accepted in view of section 3 of the CPA.

The respondent has also taken the plea of limitation as loan in question was taken in 2007. The complainant counsel argued that the complainant case No.619/13 was decided on 22/11/2013 on the basis of submission of Ld. Counsel for the respondent, the cause of action of the present complaint has arisen to the complainant, since the respondent fails to accept the amount and by their levying the exorbitant rate of interest without communicating the change in the rate of interest. The present complaint has been filed well within two years of the accrual of cause of action. We find substance in the submission of the Ld. Counsel for the complainant. The complainant is well within time and not barred by the limitation.

 In view of the above discussion the complaint is allowed. The respondent is directed to calculate the total outstanding amount after taking into consideration, the amount of Rs.5,90,642/- and interest @ 10%. The complainant shall deposit the outstanding amount so calculated within 15 days, from the date the respondent serves upon the complainant the details of outstanding amount and the rate of interest charged. The respondent shall issue the N.O.C and NO Dues Certificate on receiving the amount from the complainant within 15 days of deposits. In view of the fact and circumstances of the present case, we are not allowing any compensation to the complainant on account of deficiency on the part of the respondent. The respondent shall only pay a sum of Rs. 15,000/- towards the cost of litigation to the complainant.

The copy of the order be sent to the parties as per rules.

 

  POONAM MALHOTRA                                                                                      N.A.ZAIDI

           (MEMBER)                                                                                                (PRESIDENT)