Haryana

Yamunanagar

CC/1197/2012

Madhu Suman Gupta S/o Madan Lal - Complainant(s)

Versus

ICICI Home Finance Co.Ltd. - Opp.Party(s)

S.C.Jindal

21 Jul 2017

ORDER

  BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                    Complaint No. 1197 of 2012

                                                                                    Date of institution: 12.11.2012  

                                                                                    Date of decision: 21.07.2017

 

   Madhu Suman Gupta son of Late Sh. Madan Lal Gupta, resident of House No.436-R, Model Town, Yamuna Nagar-135001.

 

               …Complainant.

 

                                                            Versus

1. ICICI Home Finance Co. Limited, ICICI Towers, Bandra- Kurla Complex, Mumbai, through its Managing Director.

 

2. ICICI Bank Limited, Gobind Puri Road, Near Hotel JK Residency, Yamuna Nagar through its Manager Loan (Home Finance).

 

 

                                                                                                              …Respondents.

 

BEFORE:       SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                      SH. S.C.SHARMA………………………….MEMBER.

                      SMT. VEENA RANI SHEOKAND………....MEMBER.

 

Present:          Shri S.C. Jindal, Advocate for complainant

                      Shri KK Gupta, Advocate for Respondents.

 

 

ORDER (ASHOK KUMAR GARG, PRESIDENT)

 

1.                     The present complaint has been filed under section 12 of the Consumer Protection Act. 1986 (amended upto date) against the respondents (hereinafter respondents will be referred as OPs).

2.                     Brief facts of the complaint, as alleged in the complaint, are that complainant had applied a loan against property from the OP no.2 bank in the year 2007 and the same was sanctioned for a sum of Rs.21,80,000/- against title deed of immoveable property kept as security under equitable mortgage on 31.12.2007 to the complainant vide loan account No. NHYGR00000727597. The said loan amount was repayable in 1.80 equal monthly installments firstly EMI was fixed to Rs.28,304/- and rate of interest on the loan amount was agreed to be floating i.e. the rate of interest is to vary from time to time as directions of the RBI and at the time of sanctioning the loan, the rate of interest was 13.5% per annum and complainant was assured that rate of interest was floating and difference, if any, will be calculated at the time of making payment of last installment in view of variation of rate interest from time to time. It has been further mentioned that the OP Bank has illegally charged under coercion and misrepresentation an amount of Rs.24496/- through a cheque as processing charges. The complainant had also applied for another loan of which an amount of Rs.8427/- through a cheque was charged as processing charges of that loan but the complainant later on did not opt for the said loan. But till date this amount of Rs.8427/-  have not been adjusted in the loan account of the complainant. Further, it has been mentioned that the complainant has paying regularly all the installments of loan amount well in time and before March, 2009 the complainant took the copy of statement of account from the OP Bank, he was shocked to know that various illegal amounts have been debited in the loan account illegally and arbitrarily without the consent of the complainant on account of charges for bouncing of the cheque over-due charges, hidden charges and late fee charges which in fact was totally false and imaginary on the part of the OP Bank. The OP Bank have also increased the installment for repayment of loan from 180 to 252 and amount of EMI has also been charged from 28,304/- to Rs.27,489/- unilaterally. This act on the part of the OPs amounted not only acts misappropriation of funds, fraud and cheating but also gross deficiency in service and negligence on the part of the OPs. The OP Bank not only continued to debit such illegal charge but also charged the interest on such account as per statement of  accounts. A Legal notice was also served in the year 2009 but the OP Bank failed to comply with same. Lastly, it has been prayed to direct the OPs to refund/reverse and correct the entries as detailed on the account of bouncing charges, hidden charges, late fee charges and extended period of repayment along with interest and also to pay compensation as well as litigation expenses. Hence, this complaint.

3.                     Upon notice, OPs appeared and filed their written statement taking some preliminary objections such as complaint is not maintainable as there is no deficiency in service as on the part of the OPs Bank. However, it has been admitted that home loan of Rs.21,80,000/-  was sanctioned at the floating rate of interest as opted by the complainant and an agreement of loan was duly executed between the complainant and the OP Bank regarding the said loan. As the said loan was sanctioned at floating rate of interest so in such case tenure and amount of installments vary as per prevailing rate of interest. It has been further mentioned that complainant committed default in making the payment of overdue charges to the tune of Rs.61542/- as on 20.03.2013 as per terms and conditions of the agreement of loan and with intention to avoid repayment of loan has filed this false complaint, the matter in dispute is related to the amount of more than 20 lac which is beyond the jurisdiction of this Forum under Section 11 (1) of the CP Act ; complainant has not come to the Forum with clean hands and on merit it is stated that complainant himself committed default in it payment of installments and now as an after thought he has created this false story of addition of illegal amount. Rest contents of the complaint were controverted being wrong and manipulated and reiterated the stand taken in the preliminary objection. Lastly prayed for dismissal of the complaint.

4.                     In support of his case, learned counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and CW/B, photocopy of intimation letter dated 31.12.2007 as Annexure C-1, photocopy of legal notice dated 27.03.2009 as Annexure C-2, photocopy of reminder for payment issued by the OP Bank as Annexure C-3 and C-4, photocopy of account statement with effect from 30.12.2007 to 08.11.2012 as Annexure C-5, photocopy of repayment schedule as Annexure C-6, computer generated copies of ledger account as Annexure C-7 to C-13, photocopy of another account statement from 23.09.2000 to 23.09.2015 as Annexure C-14 and in additional evidence counsel for the complainant tendered some documents as Annexures C-15 to C-19 and closed the evidence on behalf of complainant.

5.                     On the other hand, learned counsel for the OPs tendered into evidence affidavit of Bank Manager as Annexure RW/A, photocopy of applications for opening bank account, application for loan and photocopy of detail of facilities along with terms and conditions and agreement as Annexure R-1 to R7, photocopy of PAN No. as Annexure R-8 and R-9, photocopy of clarification letter dated 12.09.2009 as Annexure R-10, photocopy of account statement as Annexure R-11 to R-14 and closed the evidence on behalf of OPs.

6.                     We have heard the learned counsel for the complainant and have gone through the pleadings, documents placed on file.

7.                     It is not disputed that complainant had obtained a loan amouting to Rs.21,80,000/- against the title deed kept as security under equitable  mortgage which was sanctioned on 31.12.2007 vide loan account No. NHYGR00000727597. The said loan amount was repayable in 1.80 equal monthly installments firstly EMI was fixed to be Rs.28304/- and rate of interest on the loan amount was agreed to be floating i.e. the rate of interest is to vary from time to time.

8.                     The only grievance of the complainant is that the OP Bank has wrongly and illegally charged Rs.24,496/- as processing charges and further an amount of Rs.8427/-  has also been charged as processing charges for another loan however, complainant lateron did not opt for said loan and this amount has not been refunded/adjusted in the loan amount of the complainant. Further, it is also the grievance of the complainant that the OP Bank has increased the installments of repayment of loan from 180 to 252 and EMI has also been changed from Rs.28,304/- to 27,489/-  unilaterally. The OP Bank has also illegally and wrongly debited in the loan account of the complainant on account of charges of bouncing of the cheque, over due charges, hidden charges and late fee charges and the complainant requested to refund the same to avoid to commit the fraud with the complainant but the official put off the matter on one pretext or the other and refused to listen the genuine request of the complainant which constitute the deficiency in service and unfair trade practice on the part of the OPs.

9.                     Whereas, on the other hand, learned cousne for the OPs bank argued at length that a false and manipulated complaint has been filed by the complainant just to void the payment of loan amount. All the charges, whatsoever, has been charged from the complainant as per OP Bank Rules as well as RBI guidelines and further as per terms and conditions of the sanction letter. Learned counsel for the OPs argued that the loan in question was sanctioned on 31.12.2007 and on that date the amount of Rs.24,496/- was charged from the complainant as process fee but the present complaint has been filed on 12.11.2012 i.e. after a period of more than 5 years, so is hopelessly time barred. Further, learned counsel for the OPs further argued that the complainant has himself admitted in Para No.4 of the complaint that another amount of Rs.8427/- has been charged as processing fees for another loan. It was lateron that the complainant did not opt for the said loan so the complainant is not entitled to get the refund of the same as there was no fault on the part of the OP Bank. Learned counsel for the OPs further argued that the General Allegations regarding charges of bouncing of the cheque, over due charges, hidden charges and late fee charges etc. have been leveled against the OP Bank. No specific amount has been disclosed in the complaint. Learned counsel for the OPs further argued that as the complainant opted for floating rate of interest at the time of sanction the loan amount as such tenure and amount of installments vary from time to time as per prevailing rate of interest as per guidelines of RBI. Learned counsel for the OPs draw our attention towards (Annexure R-5) application for loan facility for purpose and argued that a loan in question has been taken by the complainant for business purpose i.e. commercial activities against the mortgage of property and draw our attention towards the copies of ledger account (Annexure C-7 to C-13) and argued that complainant is running the business of Kaveri Hotel/Restaurant which is evident from these documents, So the complaint of the complainant is not maintainable before this Forum. Further, learned counsel for the OPs further draw our attention towards statement (Annexure C-14/R-12, R-13) and argued that the OP Bank is charging the charges on account of detailed payment, overdue charges etc. since the sanctioning of loan in the year, December 2007 and the complainant was depositing the installments without any profit since then. But, the present complaint has been filed in the month of November, 2012. Learned counsel for the OPs also referred to many documents which has been placed on file i.e. loan agreement, Form, sanction letter etc. whatsoever and requested for dismissal of the complaint as there was no deficiency in service or unfair trade  practice on the part of the OPs. Learned counsel for the OPs referred the case law titled as “Birbhan Goyal Vs. ICICI Bank Limited, 2011(4) CLT, 611”, wherein it has been held that:- 

 Consumer Protection Act, 1986, Section 2(1)(g), 15 and 26- Frivolous complaint- Costs- Banking service- Bank Loan-interest-Floating rate- EMI Increase in terms of EMI- The complainant very well knew that as per the agreement/documents, the rate of interest, on the loan which was taken by him was floating and the EMIs and the period of loan could be varied by the OP from time to time- He also knew that the demand raised by the OP was not illegal and arbitrary and yet he filed a false and frivolous complaint- The District Forum was right in imposing Rs.10,000/- as costs, under Section 26 of the CP Act of the complainant- Order of the District Forum upheld and appeal liable to be dismissed.

10.                   After hearing both the parties and going through the written arguments filed by complainant, we are of the considered view that there is no deficiency in service and unfair trade practice on the part of the OPs. Firstly the complainant had obtained the loan in the month of December, 2007 and processing charges whatsoever were charged by the OP Bank in the year December 2007 and agreement was also executed in the month of December, 2007 but the present complaint has been filed on 12.11.2012 challenging the charges of the processing fee and charges whatsoever charged by the OP Bank, which is hopelessly time barred. Further from the perusal of loan application form as Annexure R-5,. It is duly evident that the complainant has obtained the loan for commercial purpose against mortgaged of property for running the commercial activities of his business of Kaveri Hotel and Restaurant which is duly evident from the copy of ledger account (Annexure C-7 to C-13) which is out of preview of the consumer defined under Protection Act because as per Consumer Protection Act, Section 2(1)(d)(ii), which is reproduce here as under:

“consumer means any person who-

2.  [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose].

11.                   Even, on the other angle also, the complainant has obtained the loan in the month of December, 2007 and there are so many entries in the loan account of the complainant which is duly evident from the account statement (Annexure C-14/R-13) which cannot be taken into consideration in summary way i.e. dispute between the parties is relating to the accounts which cannot be decided by this Forum in a summary way and to decide such type of case the Civil Court is the best platform as elaborate evidence is required to examine the witnesses, cross examination of the witnesses and documents i.e. agreement executed between the parties and rate of interest whatsoever charged by the OP Bank are required to decide etc.

12.                   Arguments advanced by the counsel for the complainant that the OP Bank has increased the installments  for repayment of loan from 180 to 252 and EMI has also been changed from 28304/- to 27489/- unilaterally is also not tenable as this version of the OP Bank has not been rebutted by the complainant, the loan in question was sanctioned at the floating rate of interest and it is settled that when the rate of interest will increase then portion of the interest will increase automatically and portion of the principle amount will be decreased accordingly and to meet out the loan amount the bank has right to increase the installment for repayment of loan. The same view has been held in case titled as “Birbhan Goyal Vs. ICICI Bank Limited, 2011(4) CLT, 611 (Supra). Lastly complainant has leveled the allegations of fraud and cheating in the complaint against the official of the OP Bank which is also out of preview of the Consumer Forum.

13.                   Resultantly, in the circumstances noted above and after going through the case law “Birbhan Goyal Vs. ICICI Bank Limited, 2011(4) CLT, 611” (Supra), we are of the considered view that there is no merit in the present complaint and the same is hereby dismissed with no order as to cost. However, complainant is at liberty to redress his grievances before the Civil Court, if so advised. The complainant would be entitled to get the benefit of time spent before this Forum under the provision of Section 14(2) of the Limitation Act. Original documents be returned if any after retaining the photocopies of the same.Copies of this order be supplied to the parties concerned as per rules. File be consigned to the record room after due compliance.

Announced in open Court:

Dated: 21.07.2017

 

 

		(ASHOK KUMAR GARG) PRESIDENT,DCDRF, YAMUNANAGAR.
(VEENA RANI SHEOKAND) MEMBER	(S.C.SHARMA) MEMBER