DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 22nd day of September, 2022
Present : Sri.Vinay Menon V., President
: Smt.Vidya A., Member
: Sri.Krishnankutty N.K., Member Date of Filing: 11/10/2018
CC/125/2018
Nissar K.U.
S/o.K.M.Hussanar,
Residing at 11/468, Hiba Manzil,
Hill View Enclave, Kallepulli,
Chandranagar, Palakkad. - Complainant
(By Adv. M/s G. Ananthakrishnan, K.B.Priya & A.K. Philip)
Vs
1. ICICI Bank
Coimbatore Branch,
Represented by its Manager,
Trichi Road, Opp.to Kannan Dept.Store,
Coimbatore
2. ICICI Bank
Palakkad Branch,
Rep.by its Manager,
Udaya Tower,
West Fort Maidan, Palakkad
3. Trans Union CIBIL Ltd.(Formerly CIBIL)
One India Bulls, 19th Floor, Tower 2A -2B
Senapathy Bhapat Marg,
Elphin Stone Road,
Mumbai – 400 013 - Opposite parties
(OP1&2 by Adv. M. Ramesh
OP3 by Adv. Jayachandran G.)
O R D E R
By Sri. Vinay Menon V., President
- Essentially, complainant is aggrieved by the non-closure of a loan availed by him from the 2nd opposite party, which he claims to have closed as early as 2004.
- Complainant pleads, that he had availed financial assistance of Rs. 3,50,000/- from the 2nd opposite party bank to purchase a used car. Eventhough the tenure of the loan was 36 months, he foreclosed the loan account by way of effecting lump-sum repayment of Rs. 2,17,025/-, being the total balance due as on 24.04.2004. Thereafter the used car was transferred to a third party during April, 2004, itself.
During 2018, while he approached Corporation Bank for enhancing Mudra Loan, the officials of the said bank found that the loan account in the 2nd opposite party bank was not yet closed and the same figured in his CIBIL scores. Resultantly he could not avail the additional loan.
Upon contacting the 2nd opposite party and thereafter the 1st opposite party seeking clarification regarding the entries in the CIBIL score, they informed the complainant that an amount of Rs. 1,73,413.24/- is due and outstanding from the complainant to the opposite party bank.
Such a claim made by the opposite party bank being contrary to facts and the demand being illegal and a deficiency in service, this complaint is filed seeking compensation, removal of the complainant’s name from the list of defaulters maintained by the 3rd opposite party and for incidental and ancillary reliefs.
- Opposite parties entered appearance.
a. 1st and 2nd opposite parties filed version repudiating the complainant’s allegations on statutory and factual grounds. They admitted that the complainant had effected payment as pleaded by him, yet maintained that as the repayment was made without intimation to the opposite party bank in violation of the terms and conditions of the loan agreement executed between the complainant and the bank. Hence the amounts will not be credited to effect foreclosure of the loan account. They pleaded that since the transaction of the nature done by the complainant are being dealt with by computer system, the bank was unaware of the amounts so deposited by the complainant. They submitted their inability to correct the records of the 3rd opposite party as it is an independent agency. On the aforesaid grounds they sought for dismissal of the complaint.
b. The 3rd opposite party also filed version washing their hands off any liability or culpability. They claimed immunity from the proceedings before this Commission based on the various provisions of the Credit Information Companies (Regulations) Act, 2005, and that they act upon the data provided to it by the members and sought for dismissal of the complaint as against them.
4. On a perusal of the pleadings, the following issues arise for consideration:
1. Whether the complaint is barred by limitation?
2. Whether there is any other statutory bar in filing the complaint as against opposite party 1 and 2?
3. Whether the repayment effected by the complainant is a non-est and ought not be considered for foreclosure of the loan account?
4. Whether there is any deficiency in service / unfair trade practice on the part of opposite parties 1 &2 and 3?
5. Whether the complainant is entitled to any reliefs as sought for?
6. Reliefs, if any ?
5. Evidence comprised of proof affidavits of complainant and opposite parties 1 and 2. Exts. A1 to A7 were marked on the part of complainant. No documents were marked on the part of opposite parties 1 and 2. Opposite party 3 did not adduce any evidence.
Issue No. 1
6. Though the opposite parties had not raised the issue of limitation while pleading, they raised this issue at the time of hearing. Question of limitation being statutory in nature, this issue is being considered.
7. Loan amount was availed in 2002 and loan account was closed in 2004. As per the opposite party, the complainant had availed a number of other loans post 2004. Hence the complainant was aware of the credit score. The complaint ought to have been filed at least by 2006. Hence the complaint is grossly barred by limitation.
8. Case of the complainant is that during 2018, he approached Corporation Bank for financial assistance. It was the Corporation Bank that found that the complainant was having a pending and unclosed loan account. Ext. A1 is a communication dated 10.08.2018 issued by the opposite party bank to the complainant. Ext. A1 is issued at the request of the complainant. It shows that the bank had kept the account alive for over 14 years from the date of lump-sum payment in 2004 without any intimation to the complainant. We find that on a conjoint reading of the pleadings and Ext. A1, that the complainant became aware of the pendency of loan account only during 2018.
9. Opposite party bank plead that as per Ext. A3 credit details, post 2004, the complainant had availed a number of loans and that the complainant ought to have notice of the credit ratings from 2006 onwards. Per pleadings of the complainant, he came to know of the score only when his application was rejected based on CIBIL score.
The complainant had no reason to doubt the score or his credit-worthiness, if his necessities are being met with. It is only natural that when he is being provided with financial assistance, he need not worry about his past liabilities. Further the opposite party has no case that the loans availed by the complainant after 2004 would be disbursed only if the CIBIL score showed a positive scoring.
In the facts and circumstances of the case, and the fact that the said aspect of bar of limitation does not find a place in the pleadings of opposite party bank, where every other conceivable statutory bars were laid bare, we find that the case of the complainant is more probable.
We hold that this complaint is not barred by limitation.
Issue No.2
10. Over and above the unpleaded question of limitation, the opposite parties have raised the preliminary objections relating to (1) lack of consumer - service provider; (2) lack of territorial jurisdiction; and (3) immunity of 3rd opposite party from these proceedings.
11. The first and second opposite party have raised a contention that the complainant is not a consumer as defined in the Act and that the relationship between this complainant and the opposite party is “that of a debtor and creditor based on admitted and written agreements executed between the complainant and the opposite party bank.”
It is to be taken note that the Consumer Protection Act, 1986 is very clear with regard to the fact that the services provided by a bank would come within its ambit, subject to the bar of availing a loan for commercial purpose. Hence, the objection raised by the opposite party bank will not lie.
12. The third opposite party has raised a contention that this Commission lacks territorial jurisdiction to try this case. In so far as this complaint is concerned, main grievance raised by the complainant is against the second opposite party and first opposite party. The second opposite party is carrying out its business in Palakkad. Hence, this Commission has jurisdiction to try this complaint.
13. The 3rd opposite party also raised the question of immunity conferred upon them by the constituting Act, viz. The Credit Information Companies (Regulations) Act, 2005. They relied on S.31 of the said Act, wherein the authority of all Courts and Authorities stood barred as against them and a number of judicial precedents wherein the Consumer Commissions had refrained from acting against the 3rd opposite party.
Considering the clear statutory bar, we refrain from adjudicating upon the conduct of the 3rd opposite party.
Issue No.3
14. Payment of the entire loan amount by the complainant on 28/4/2004 is admitted by the opposite party bank. In their own words the reason for non consideration of the said amount is reproduced below:
Para 3 Lines 13 to 20 of version - “As per the terms and conditions of the loan agreement executed by the complainant, the foreclosure of the loan account could be initiated only through the request given to the opposite party. The complainant had never given such a request to this opposite party to foreclose his loan account. Without informing this opposite party, the complainant had deposited an amount of Rs.217025/- on 28/4/2004. Since, the accounting of the loan account is calculated through computer system and the payment towards loan account without the intimation to the bank shall not be considered as foreclosure of loan account”.
15. The opposite parties had failed to produce a copy of the terms and conditions of the agreement that rule the transaction between the complainant and opposite party bank. Assuming that the opposite parties are correct, the complainant has unilaterally varied the express terms and conditions of the agreement. To that extent the complainant is negligent.
But the question that arises for consideration is as to the legality of the conduct of the opposite parties 1 and 2 retaining the said amount without returning the said amount, had the remittance made by the complainant was violative of the terms and conditions of the loan agreement.
16. Version pleading of the opposite party is that, since it is the computer that deals with such transactions, the bank was not aware of the amounts deposited by the complainant.
The fact that the complainant had deposited Rs.2,17,025/- on 28/4/2004 is undisputed. It is also admitted fact that the EMI is Rs.12,550/-. If that be so, the complainant had remitted and equivalent of over 17 months of EMIs. If the bank had been conducting their audits and accounting procedures in accordance with statutory requirements they would have come across this huge amount. Somewhere this huge amount would stand out untallied. Therefore we are not inclined to believe the pleading of the bank that they have not noticed the deposit of such huge amount.
A perusal of Ext.A2 statement of account would reveal that the said amount was remitted by way of cheque. Once the cheque is presented, it will have to be presented before the drawee bank and such amounts availed will be credited to the loan account based on the endorsement made on the cheque. These proceedings are not automatic. They are carried out by the staff of the opposite party bank. Hence, the plea of the opposite party bank that their transactions are fully managed by the computer system to the total exclusion of human agency is unbelievable and hence we ignore the same.
We conclude that the opposite parties had condoned by their conduct such a variance in the agreement made by the complainant.
17. The opposite party bank had, after the said amount being remitted kept the said amount with them. A perusal of Ext.A2 shows that the bank kept on crediting loan account with various amounts. Where-from these amounts came are not mentioned. The fate of the amounts deposited on 24/4/2004 is also not mentioned. But they went on to manipulate the system in manners best known to them to burden the complainant with additional liabilities. Ext.A2 would show that the account became irregular on 01/07/2005. No steps whatsoever is seen taken by the opposite party bank to recover the overdue amounts.
18. A cumulative picture that arises is that the opposite party bank had not been transparent in dealing with the money deposited by the complaint. Fate of the deposited amount of also not known. But in the absence of any pleading with regard to the fate of the said amount, one can only conclude that the opposite parties had capitalized the said amount. After having capitalized the amount deposited by the complainant, raising a further claim is nothing but an unfair trade practice.
19. We therefore hold that in the absence of any demand by the opposite party bank for any overdue amounts from 01/07/2005 till 2018 to the complainant in accordance with the law, the opposite party has by conduct accepted receipt of the amounts remitted in lump-sum by him towards full and final closure of the loan account.
Issue No.4
20. A reading of the discussions made supra, proves beyond doubt that the opposite party bank has resorted to unjust enrichment and had thereby committed unfair trade practice. There is deficiency in service on the part of opposite party bank.
Issue Nos. 5 & 6
21. We have already held that there is deficiency in service and unjust enrichment on the part of opposite party bank. But we do not find any reason to hold that the complainant is entitled to a relief of Rs.5,00,000/- as sought for by him.
We therefore allow this complaint in the following terms.
1. We hold that the payment effected by the complainant on 24/4/2004 was a valid payment towards full and final settlement and foreclosure of loan account bearing No. No.LUPGT00000808265 and the loan account stands closed as on 24/4/2004.
2. The complainant is not liable to pay the additional amount of Rs. 1,73,413.24/- as demanded by the opposite parties 1 and 2.
3. The opposite parties 1 & 2 are ordered to take all necessary steps to inform the third opposite party with regard to the closure of loan agreement bearing No.LUPGT00000808265.
4. The complainant is entitled to an amount of Rs.50,000/- payable by the opposite parties (1) & (2) by way of compensation for mental agony and pain.
5. The complainant is entitled to an amount of Rs.25,000/- by way of cost of these proceedings.
6. The 3rd opposite party is only a proforma party.
7. Opposite parties (1) & (2) shall comply with directives 2,3 and 4 of this paragraph of this order within 45 days from the date of receipt of a copy of this order failing which the complainant shall be entitled to a solatium of Rs.250/- per month or part thereof till date of full and final satisfaction of this order.
Pronounced in open court on this the 22nd day of September, 2022.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Copy of communication dated 10/8/2018 issued by OP1 to complainant
Ext.A2 - Copy of loan account details of complainant
Ext.A3 – Details of creditor dated 1/8/2018 issued by opposite party 3
Ext.A4 – Certified copy of form 23 bearing No.238764 of MV Dept. Coimbatore
Ext.A5 – Original vehicle sale agreement dated 16/4/2004
Ext.A6 – Copy of tax receipt dated 18/9/2021
Ext.A7 – Copy of vehicle particulars of vehicle bearing No.TN-O1-S-8995
Exhibits marked on the side of the opposite party
Nil
Court Exhibit
Nil
Third party documents
Nil
Witness examined on the side of the complainant
Nil
Witness examined on the side of the opposite party
Nil
Court Witness
Nil
Cost : Rs.25,000/- allowed as cost.
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
