FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, MEMBER.

The case of the complainants in short is that the complainants obtained a  home loan for an amount of Rs.3,75,000/- from Ops on 20.03.2005 vide sanction letter bearing application No. 777-3092178 and tenure of said loan was 180 months at the rate of 8.25% . On 01.04.2005 the OP issued another letter bearing Application No. 7774684555 to the complainant no.1 intimating about the sanction of loan with the date of disbursement and inter alia stated therein that Rs.3,75,000/- was the sanctioned loan amount , effective rate of interest on disbursement was 7.5% , tenure was 180 months and EMI of Rs.3477/ will commence from the Month of May , 2005. The aforesaid account were being maintained properly without any disturbance and the payment of installments were regularly being made by the complainant towards the repayment of the loan amount in form of EMI till 01.05.2018 when the complainants enquired from the OP about the status of loan payment then they came to know from the loan account statement issued by the OP that  156 nos of instalments have been paid by them consisting of Rs.6,35,390/- and 140 nos of more EMIs were pending as on 14.05.2018 . In the mean time the OP sent a letter dated 30.04.2018 to the complainants which was received by them on 12.05.2018 asking for title deed/sale deed of her residential flat for deposit of the same to their department . In reply the complainant wrote to the OP on 15.05.2018that all relevant documents were already deposited at the time of loan sanction and requested to OP to send the statements/status of their loan account as per loan agreement which was refused by the OP. Thereafter the OP issued a legal notice to the complainant on 11.06.2018 stating thereby to make payment of Rs.10772/- being the due amount of interest. The complainants answered that legal notice through their lawyer by his letter dated 09.07.2018 and same is received by the OP on 12.07.2018 addressing that the arbitrary decision of the OP regarding increasing of nos of EMIs to 140nos more after payment of 156 EMIs by the complainants out of 180 EMIs, is in divergence with the loan sanction letter cum agreement and loan disbursement letter and hence such demand of the OP for payment of due EMIs is not sustainable till resolve  of the nos of the future EMIs as arbitrarily determined by the OP without any notice and consent of the complainants But the OP kept mum. The complainant subsequently lodged a complaint to the Consumer affairs Department (CAD) against the OPon 13.09.2018for resolving the dispute. The representative of the OP attended the hearing before CAD and filed Loan Account Statement of the complainant upto05.112018 by which the total nos of EMIs are arbitrarily rescheduled as 298. In the said repayment schedule the OP adjusted the principal amount of loan at a low sum of Rs.121/- and the interest was adjusted in the same transaction at Rs.3889/- and the total nos of EMIs are extended to 118 nos till the year 2030. It is further significant that the payment of EMI on 01.05.2018 has been shown as EMI no.157 instead of 156 earlier.  The dispute could not have been resolve before CAD and hence an order was passed on 05.11.2018. For this reason complainants have no other option but to seek relief/reliefs before this Ld. Commission.

O.Ps. contested the case by filing written version assailing the maintainability of the case. OP denying all allegations against them OP states that the case of the complainants is vexatious , speculative , harassing , malafide and misconceived and barred by principles of waiver , estoppel and acquiescence and is also barred by limitation and is also bad for mis-joinder and non-joinder of parties . The Ops stated that the complainants Nos 1&2 jointly applied for a home loan of Rs.3,75,000/- from the OPs  for purchasing one flat at Shree Krishna Garden andthe OP sanctioned the same vide sanction letter  dated  20.03.2005  . The complainants having understood and agreed to the terms and conditions of the said Home loan facility and signed  the security  documents in favour of the OP bank . As the complainants opted for  floating rate of interest which may increase and decrease  and not a fixed rate of interest , therefore , it is  wrongly stated by the complainants that OP agreed that the term of loan is for 180 months and the EMI payable is Rs.3477/- . The sum of Rs.3,75,000/-was sanctioned and disbursed vide loan account No LBCAL00001034579 to the complainant on 01.04.2005 . The said flat which was purchased with the said bank loan is mortgaged to the OP as collateral security. Due to non-payment of EMIs as per contractual liability the Home Loan Account became irregular and classified as Non Performing Assets (NPA) . The Repayment Schedule of the said Home Loan Account is annexed to the complaint application and relied upon by the complainants which proves beyond doubt that the complainants had full knowledge about the repayment schedule of the said home loan account. But the complainants have not filed the second page of the sanction letter containing the terms and conditions of the said Home Loan facility. As per terms and conditions ICICI bank is entitled to add, to delete or modify all or any of the aforesaid terms and conditions. It is also mentioned under the condition that Additional Terms and Conditions applicable only for Adjustable Interest Rate loans .The complainants had opted for Floating Rate of Interest wherein such rate of interest is depend on the FRR which is effect of by external business environment and change in main features including requisition of rate by RBI from time to time .As per the said arrangement, the tenure and /or the EMI is subject to change for the borrower covered under Floating Rate of interest which is directly proportional to the FRR. The rate of interest has increased and/or decreased from time to time due to change in FRR and the complainants are fully aware of the revision in the rate of interest. Due to increase in the rate of interest the number of EMIs was increased to cover up the additional interest as applicable. In case of Floating Rate of Interest if the interest is reduced the borrower will be benefitted and in case went up, the borrower will have to pay more . The risk is willfully undertaken by the complainants. The complainants paid as per the varied rate and are estopped from disputing the tenure of EMI after expiry of 13 years. Moreover the loan was sanctioned on the basis of the Agreement for Sale and the permission to the mortgage letter issued by Shree Krishna Developer in favour of the OP and the Deed was to be deposited with the OP after execution and registration for equitable mortgage .The OP rightly asked for the Deed of the flat but the complainants refused to deposit the same. The complainants have committed breach of the terms of loan by not depositing the Deed to the OP which is security of the OP. Due loan amount was declared NPA by the OP on 31.08.2018 and they invoked the provision of SARAFAESI Act 2002 by issuing notice under section 13(2) of the said Act and the notice U/S 13(2) of SARAFAESI Act was  sent by post and published in a vernacular language and also in daily English newspaper . But the complainants failed adhere to the statutory obligation under the said section. The complainants having failed to make payment of the dues outstanding to the OP as demanded in the notice U/S 13(2) of the SARAFAESI Act, the OP took symbolic possession of the property U/S 13(4) of the SARAFAESI Act on 19.03.2019 and the same was published in a vernacular language and also in a daily English newspaper. Therefore the Ld. Commission cannot direct the OP to reschedule the loan repayment and to waive any interest on residual loan amount after May 2018 till disposal of this complaint as alleged .

We have travelled over the complaint petition as well as the documents filed by the complainants in support of their contention together with the written version along with annexures submitted by the O.Ps in their support.Both the parties filed evidences supported by an affidavit and they have replied to their questionnaire vice versa. 

The admitted fact is that the complainants obtained a home loan from the OPs at Floating Interest Rate and the number of EMI was180. Fact also remains that since inception of loan on 20.03.2005 the complainants had been paying interest till May 2018. The dispute arose when in the year of 2018 the complainants enquired from the Ops about the status of the loan account statement and then it revealed that 156 nos of instalments have been paid by them consisting of Rs.6,35,390/- and 140 nos of more EMIs were pending .The fact also remains that to resolve the dispute the complainants placed there grievance before the Consumer Affairs Department(CAD) , Govt. of WB . Representative of the OP attended the hearing before CAD. But the dispute could not have been resolved and hence an order was passed on 05.11.2018 referring Complaint Index No. 62/CAD-Bank/18-19:

During the meeting the facts regarding the complaint are discussed with both parties concerned. The representative of the opposite party submitted the written version on the issue stating inter alia that the complaint has to pay 3,35,927/- to close of the loan A/C . bearing no. LBCAL00001034579 and further verbally stated that he can take up the issue to the higher authority of the bank for reconsideration regarding interest and further tenure on the said principal amount mentioned in the WV. The representative of the complainant straight way denied the proposal to pay the principal amount mentioned in the WV for closure of the loan. Taking the written version and the dicission during the meeting in consideration , it appears that the issue willnot be resolved through the process of mediation .

On perusal of the record it is found that said loan was sanctioned at floating interest rate.The TERMS AND CONDITIONS APPLICABLE TO THE LOAN WITH ADJUSTABLE INTEREST RATE (SCHEDULE B) annexed by the OPalong with their WV wherein it is clearly mentioned in clauseD(a) :

For administrative convenience the EMI amount is intended to be kept constant irrespective of variations in the Adjustable Interest Rate  and therefore the number of EMIs likely to vary . No intimation shall be given by ICICI Bank as to further or other or reduced EMIs required to be paid by the BORROWER upon each any change in the Adjustable Interest Rate.  In this regard we may considerthe case of ICICI BankLtd Vs Maharaja Krishan Datta and Ors 2015(4)RCR(civil)281,wherein the Hon’ble Supreme Court observed following the submission of Senior Counsel Mr. P Chidambaram  appearing on behalf the appellant bank that  a housing loan advanced either on a fixed rate  of interest or on a floating rate of interest . In case of floating case, the interest is not fixed and varies from time to time with the changes in the economic environment and resultant in the borrowing cost of the Bank . For calculating such rates of interest, a bench mark rate is adopted, which in the present case is the Floating Reference Rate (FRR). The interest payable by the borrower is determined by adding or subtracting the margin percentage from such a bench mark rate as agreed between the parties.Therefore, if the interest is reduced then the customer would be benefited and in case, it went up , then the customer has to pay more . In view of the above discussion, we may refer to the judgement of the Hon’ble Supreme Court reported in AIR 1996 SC 2508 inBharathi Knitting Company VS World Wide Express Ltd. Case wherein the Hon’ble Supreme Court observed:

“It was stated that aperson who signed a document containing contract and terms is normally bound by them even though he has not read them , and even though he is ignorant of their precise legal effect .”

It has been further observed therein by the Hon’ble Apex Court that:

“when there is a specific term in the contract , the parties are bound by the terms in the contract .”

The complainants alleged that, the act of the OP by extending the EMIS of loan repayment by 298 instead of 180 (as per loan sanction letter and per loan disbursement letter), without any intimation and prior consent of the complainants, per se constitutes unfair trade practice and deficiency ofservice.In this regard we may rely upon the observation of the Hon’ble NCDRC passed by Hon’ble K.S. Chaudhari, President Member,in the case of ICICI Bank (Home Loan) and Ors Vs. Ganga Singh Shekhawat III(2015)CPJ507(NC), sighted by the Ld. Advocate for the OP, wherein it is observed that :

“but merely by not intimating to the complainant about increase of rate of interest, it cannot be inferred that rate of interest could not have been increased when loan had been taken on floating rate of interest.”

Ld.Advocate for the OP submitted that the loan was sanctioned on the basis of the Agreement for Sale and the permission to Mortgage letter issued by Shree Krishna developer in favour of the OP in respect of the said Home loan. It is also submitted by the Ld. Advocate for the OP that the complainant started defaulting from the very beginning and the first of such default occurred in the month of June 2005 when the cheque towards repayment of EMI bounced and this continued up to August 2008. The Statement of loan account of the complainant furnished by the OP second the submission. The complainant kept mum about this matter in the four corner of the complaint petition. But it is admitted by the complainant that after May 2018 they stopped to pay instalments to the OP. Statement of Loan Account of the complainant furnished by the OP goes to show that on 11.04.2018 the OP received the EMI no.156 for the last time vide Chq No. 015773 and Rcpt No. 1804615371. Due to non-payment of EMIs the Home Loan Account became irregular and was classified as Non Perfoming Asset (NPA). Accordingly as the secured creditor the OP issued notice U/S 13(2) of SARAFAESI Act,2002 on 30.11.2018to the complainant demanding the outstanding amount of Rs.3,39,289/- as on 30.11.2018 and was asked to pay the

said amount within 60 days according to the provision of SARAFAESI Act , 2002. The complainant failed to make that payment. Then the OP issued a notice U/S 13(2) of the SARAFAESI Act, 2002 in two newspapers because the complainants did not received the same as alleged by the OP . In the running page no 88 and 89 of the WV of the OP two photocopies of the vernacular and English daily newspaper is annexed by the Op bearing the notice U/S 13(2) of SARAFAESI Act,  2002. Subsequently on 19.03.2019. The OP had taken symbolic possession of the flat U/S 13(4) of SARAFAESI Act, 2002 and the same was published in a vernacular as well as in an English newspaper. Photocopies of the abovementioned document is furnished by the OP in the running page no. 97 and 98 of WV filed by the OP. The complainants alleged that the paper publication was done on 18.01.2019 after institution of Complaint Case on 17.01.2019. But it appears from the material on record that the notice U/S 13(2) of the SARAFAESI Act,2002 was already issued on 30.11.2018 prior to filing of the Complaint Case. Therefore, the argument made by the Complainants has no legs to stand upon.

In this regard we may refer the case of UBIVs. SatwabatiTandonandothers, AIR 2010 SC 3413, sighted by the Ld. Advocate for the OP, wherein the Hon’ble Supreme Court held that:

“Section 13 of the SARAFAESI ACT contains detailed mechanism for enforcement of security interest . Sub-section (1) thereof lays down that notwithstanding anything contained in Section 69 or 69-A of the Transfer of Property Act , any security interest created in favour of ay secured creditor may be enforced , without the intervention of the court or tribunal , by such creditor in accordance with the provisions of this Act . Sub-section (2) of section 13 enumerates first of many steps needed to be taken by the secured creditor for enforcement of security interest.”

Therefore, it is found that there is no wrong step is taken by the OP.  Moreover the Hon’ble Supreme Court observed in the said judgement that:

“Section 17 speaks of the remedies available to any person including borrower who may have grievance against the action taken by the secured creditor under sub-section (4) of Section13. Such an aggrieved person can make an application to the Tribunal within 45 days from the date on which action is taken under that sub-section.” 

There is no such document or evidence in this matter on the part of the complainant is found by us. Rather, there is no whisper in the four corner of the complaint petition regarding the said notice  dated 30.11.2018 issued by the OP U/S 13(2) of the SARAFAESI Act , 2002 . It appears as suppression of fact on the part of the complainants to us .In the same judgement Hon’ble Supreme Court clearly mentioned.

“Section 34 lays down that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Tribunal or Appellate Tribunal is empowered to determine. It further lays down that no jurisdiction shall be granted by any Court or other authority in respect of any action taken under SARAFAESI Act or the DRT Act. Section 35 of the SARAFAESI Act is substantially similar to Section 34(1) of the DRT Act.”

In view of the abovementioned observation made by the Hon’ble Supreme Courtwe are of the opinion that our hands are tight and we are not empowered to pass any order in favour of the complainants.

As such, the complaint case fails.

Hence,

ORDERED

That the complaint case be and the same is dismissed on contest against the OP. However, there will be no order as to costs.