Chandigarh

StateCommission

RP/5/2016

ICICI Bank Limited - Complainant(s)

Versus

Maharaja Krishan Datta - Opp.Party(s)

Sandeep Suri, Adv.

04 Apr 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Revision Petition No.	:	5 of 2016
Date of Institution	:	26.02.2016
Date of Decision	:	04.04.2016

 

 

 

 

ICICI Bank Limited, SCO 9-11, Sector 9, Chandigarh.

…… Revision Petitioner

Versus

 

1. Maharaj Krishan Datta R/o H.No.26-B, Pine, Dhakoli, Zirakpur.
2. Kapil Datta S/o Maharaj Krishan Datta R/o H.No.26-B, Pine, Dhakoli, Zirakpur.
3. Shivani Datta W/o Kapil Datta R/o H.No.26-B, Pine, Dhakoli, Zirakpur.

              ....Respondents.

 

BEFORE:  HON’BLE MR. JUSTICE JASBIR SINGH (RETD.).

                   MR. DEV RAJ, MEMBER.

                   MRS. PADMA PANDEY, MEMBER

               

Argued by:  

 

Er. Sandeep Suri, Advocate for the Revision Petitioner.

Maharaj Krishan Datta, Respondent No.1 in person and also on behalf of respondents No.2 and 3.

 

PER DEV RAJ, MEMBER

            This Revision petition is directed against the order dated 18.01.2016, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short ‘the Forum’) vide which, the Execution Application bearing No.130 of 2014 filed by the respondents was allowed and the Opposite Party (now Revision-Petitioner), was directed to make payment of Rs.6,68,762/- to the respondents as per observations  made in the said order on or before 14.02.2016, failing which, further proceedings in accordance with law were ordered to be taken against the Revision Petitioner.

2.         The facts, in brief, are that Consumer Complaint bearing No.1469 of 2008, was filed by the respondents (complainants) in the Forum, which was allowed vide order dated 10.07.2009, operative paras whereof are extracted hereunder:-

“10.………….The Complaint is, therefore, allowed and the OPs are directed to overhaul the account of the Complainant and to charge from him interest only at the rate of 7.25% upto 31.3.2006, 7.75% w.e.f. 1.4.2006 to 30.10.2006 and thereafter at the rate of 8.75% p.a. till date, till it is enhanced in accordance with the agreement between the parties. Furthermore, the enhanced rate of interest, if ever notified, shall not be more than the rate at which the loan to new loanees is advanced. The overhauled accounts statement shall be issued to the Complainant and all the loanees similarly placed within 30 days from the receipt of the copy of this order. The OPs are also directed to pay Rs.5000/- to the Complainant towards costs of litigation.

11.  Since the OPs are adopting an unfair trade practice, as mentioned above, in respect of numerous customers and are being benefited to a large extent, they are to be penalized and are ordered to pay Rs.1,00,000/- as penalty to the Complainant. The amount in question shall be paid to the Complainant within a period of 30 days from the receipt of the copy of the order, failing which the OPs would be liable to pay the same along with penal interest at the rate of 12% per annum with effect from today till its payment to the Complainant.”

 

3.         Subsequently, aggrieved against the aforesaid order dated 10.07.2009, both the complainants and the Opposite Party – ICICI Bank Ltd., preferred Appeals bearing Nos.433 of 2009 and 434 of 2009 respectively before this Commission. Vide common order dated 19.3.2010 passed by this Commission, Appeal No.433 of 2009, filed by the complainants for enhancement of compensation, was dismissed, whereas Appeal No.434 of 2009 filed by the Opposite Party (Revision Petitioner) was partly allowed and the impugned order was modified. Operative Para No.11 of order dated 19.03.2010 is extracted hereunder:-

“11.      Consequently, the appeal filed by the complainants bearing No.433 of 2009 for enhancement of compensation is dismissed. The appeal filed by the OP Bank bearing No.434 of 2009 is partly allowed and the impugned order is modified to the extent that the OP is now directed to overhaul the account of the complainants strictly in accordance with the terms and conditions of the two loan agreements between the parties. The OP Bank is permitted to vary the rate of interest only as per the variation granted by the RBI from time to time granting the complainants the margin (benefit) of –1.5% of FRR. The direction given by the learned District Forum with regard to enhanced rate of interest not being more than the rate at which the loan to new loanees is being advanced is set aside as the same is not legally sustainable. Subject to the above modification, the impugned order is upheld.”

 

4.         Thereafter, being aggrieved against the aforesaid order dated 19.03.2010 passed by this Commission, the Opposite Party preferred Revision Petition No.2216 of 2010 before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, which was disposed of vide order dated 29.09.2014, operative part whereof is extracted hereunder: -

“8.  For the reasons stated above, the revision petition is disposed of with an order that upto 30.11.2006, the bank was entitled to charge interest at Floating Reference Rate (FRR) per annum minus 1.5% per annum, whereas w.e.f. 01.12.2006, the bank would charge interest @8.75% per annum, irrespective of any increase or decrease in the FDR.

9.   Since admittedly, the bank charged interest higher than 8.75% per annum even after 30.11.2006, it was clearly negligent in rendering services to the Complainant and therefore, the order passed by the State Commission does not call for any interference.”

 

5.         The Opposite Party being aggrieved by the order dated 29.09.2014 passed by National Consumer Disputes Redressal Commission, New Delhi, preferred SLP(C)No.1501 of 2015 before the Hon’ble Supreme Court of India, which was allowed vide order dated 03.08.2015, operative part whereof is extracted hereunder:-

“10. After hearing Mr. P. Chidambaram, learned senior counsel in the matter and also after hearing the Respondent No.1 appearing in person, we find that the grounds advanced before us by Mr. P. Chidambaram, learned senior counsel, in our opinion, have to be accepted and accordingly we allow the appeal, set aside the order so passed by the National Commission and confirm the order so passed by the State Commission. The concession, which has been given by Mr. P. Chidambaram on behalf of his client in favour of the Respondents are not curtailed by us. The benefit of the order of the National Commission will go in their favour as conceded by Mr. P. Chidambaram, learned senior counsel on instructions from his client.

11.  Since we are allowing this appeal on the above terms, the amount which has already been deposited by order dated 22.01.2015 should be refunded by the Registry to the appellant bank within a period of two weeks. Ordered accordingly.”

 

 

 

6.         In Execution Application No.130 of 2014    filed by the complainants in the Forum, the impugned order dated 18.01.2016 was passed.

7.        Feeling aggrieved, the instant Revision-Petition, was filed by the Revision-Petitioner/Opposite Party, against the order dated 18.01.2016.

8.             We have heard the Counsel for the Revision-Petitioner/Opposite Party, respondent No.1/ complainant in person as also on behalf of respondents No.2 & 3, written arguments submitted by him, and have gone through the record of the case, carefully.

9.         The Counsel for the Revision-Petitioner/Opposite Party submitted that neither the State Commission nor the Hon’ble National Commission nor the Hon’ble Apex Court indicated any period for compliance of the order and further, since orders passed by the Consumer Fora merged with the order passed by Hon’ble Apex Court, there was no question of paying any interest from the date of orders of the District Forum and, as such, it (Forum) gravely erred in allowing interest on the alleged excess amount of interest charged, amount of compensation and litigation cost. He submitted that the            Hon’ble Apex Court clearly held that the                       parties are governed by the Agreement                    entered into between them. He further                      submitted that  the Agreement, so entered, was in accordance with the RBI guidelines. He further submitted that the Hon’ble National Commission’s order was set aside by the Hon’ble Apex Court          but the Revision Petitioner gave concession to        the respondents/complainants and agreed to give effect to the order, so passed, by the Hon’ble National Commission in favour of complainants only but it was made clear that such concession would not be made applicable to other cases. He further submitted that the Forum solely relied upon the calculations submitted by the respondents/complainants without any basis and assigning reasons as to how they were correct.

10.       On the other hand, Respondent No.1/ complainant, submitted that the order passed by the Forum is just, fair and legal.

11.       It is evident that the Hon’ble Apex Court while confirming the order of the State Commission, set aside the order of Hon’ble National Commission but it allowed concession as admitted by the Senior Counsel for the Revision Petitioner/Appellant/ Opposite Party – Bank. Apparently, there is no dispute with regard to charging of interest @7.25% up-to 31.03.2006, and @7.75% from 1.4.2006 to 30.10.2006. After 30.10.2006, interest @8.75% was to be charged. During proceedings before the Forum in the Execution Application under Section 25 of the Act filed by the respondents/complainants, it was stated that as per calculation of penal interest, on excess amount of interest, @12%, also annexed alongwith the written arguments, before this Commission against total claim of Rs.10,54,755/- payable by the Revision Petitioner – ICICI Bank, only a sum of Rs.3,85,993/- was paid and the balance payment in the sum of Rs.6,68,762/- was due against the Revision Petitioner - Bank. The District Forum in its order directed the Revision Petitioner – ICICI Bank to make payment of aforesaid amount of Rs.6,68,762/- to the respondents/complainants..

12.       The point, which now falls for consideration, is, as to whether the respondents/complainants were entitled to interest on the excess amount charged by the Bank by way of higher rate of interest. As per order of the Forum dated 10.07.2009, the order regarding payment of compensation, was to be complied within 30 days. In appeal before the State Commission and Revision Petition before the Hon'ble National Commission, no time limit for payment of compensation and litigation amount was specified. Special Leave to Appeal (C) was allowed by the Hon’ble Apex Court vide order dated 03.08.2015. In any case, orders of the Consumer Fora stood merged with the order of Hon’ble Apex Court. It may be stated here that in Smt. Daya Wanti Vs. Yadvindra Public School, Patiala and   Ors., 1996 [VOL CXII) the  Punjab Law Reporter = 208, similar question was posed, before a Full Bench of the Punjab and Haryana High Court. The Full Bench of the Punjab and Haryana High Court,  in Smt. Daya Wanti’s case (supra) held as under:-

“(i) the dismissal of an appeal or revision by a Superior Court has the effect of merging of the decision of the Inferior Court with that of the Superior Court and (ii) the doctrine of merger applies, it be a decision in a revision petition or appeal or dismissal of a writ petition in limine by the Court”

 

 

13.        Not only this, in M/s. Skoda Auto India Pvt. Ltd. Vs. Raghvendra H.S. and another, Revision Petition No. 2775 of 2012, decided on 30.05.2013, by the National Consumer Disputes Redressal Commission, (arising out of the order dated 17.7.2012 in Appeal No.3763 of 2011 under Section 27 of the Act, of the Karnataka State Consumer Disputes Redressal Commission, Bangalore), the District Forum allowed the Consumer Complaint, vide order dated 22.07.2010, the State Consumer Disputes Redressal Commission, vide its detailed order dated 04.08.2011, dismissed the appeal under Section 15 of the Act, of the Appellant/Opposite Party, and confirmed the order of the District Forum. The Counsel for the petitioner, in the aforesaid Revision Petition, submitted that, as per the principle of merger, the order of the Lower Court merged in the order of the Appellate Court, though the appeal was dismissed, yet the order of the Lower Court was confirmed, and compliance was to be made of the order of the Appellate Court. The National Consumer Disputes Redressal Commission, New Delhi, accepted the plea of the Counsel for the Revision Petitioner, in the aforesaid Revision-Petition, by placing reliance on Commissioner of Income-Tax, Bombay Vs. M/s. Amritlal Bhogilal and Co., (AIR 1958 SC 868), wherein the Hon’ble Apex Court observed as under:

“10. There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement; but the question is whether this principle can apply to the Income-tax Officer's order granting registration to the respondent”.

Further in Gojer Bros. (Pvt.) Ltd. Vs. Shri Ratan Lal Singh, (1974) 2 SCC 453), in paragraph 19, the Hon’ble Apex Court, observed as under:

“19. The fundamental reason of the rule that where there has been an appeal, the decree to be executed is the decree of the appellate court is that in such cases the decree of the trial court is merged in the decree of the appellate court. In course of time, this concept which was originally restricted to the appellate decrees on the ground that an appeal is a continuation of the suit, came to be gradually extended to other proceedings like Revisions and even to proceedings before quasi-judicial and executive authorities”.

 

Further in S.S. Rathore Vs. State of Madhya Pradesh, (AIR 1990 SC 10), a case decided by   a Constitutional Bench of Seven Judges of the Hon’ble Apex Court, in paragraph number 12, it was observed as under:

“12. The next Constitution Bench decision of this Court is that of Collector of Customs, Calcutta v. East India Commercial Co. Ltd., [1963] 2 SCR 563 where this Court observed:

"The question, therefore, turns on whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. The question therefore is whether there is any difference between these two cases and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification."

 

Further in Kunhayammed & Ors. Vs. State of Kerala & Anr., (2000) 6 SCC 359, a case decided by a three Judge Bench of the Hon’ble Apex Court, in paragraphs numbers 7, 8 and 14, it was observed as under:

 

“7.The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. On more occasions than one this Court had an opportunity of dealing with the doctrine of merger. It would be advisable to trace and set out the judicial opinion of this Court as it has progressed through the times.

8. In Commissioner of Income-tax, Bombay Vs. M/s Amritlal Bhogilal and Co. AIR 1958 SC 868 this Court held :

There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement

14.The exercise of jurisdiction conferred on this Court by Article 136 of the Constitution consists of two steps : (i) granting special leave to appeal; and (ii) hearing the appeal. This distinction is clearly demonstrated by the provisions of Order 16 of the Supreme Court Rules framed in exercise of the power conferred by Article 145 of the Constitution. Under Rule 4, the petition seeking special leave to appeal filed before the Supreme Court under Article 136 of the Constitution shall be in Form No.28. No separate application for interim relief need be filed, which can be incorporated in the petition itself. If notice is ordered on the special leave petition, the petitioner should take steps to serve the notice on the respondent. The petition shall be accompanied by a certified copy of the judgment or order appealed from and an affidavit in support of the statement of facts contained in the petition. Under Rule 10 the petition for grant of special leave shall be put up for hearing ex-parte unless there be a caveat. The court if it thinks fit, may direct issue of notice to the respondent and adjourn the hearing of the petition. Under Rule 13, the respondent to whom a notice in special leave petition is issued or who had filed a caveat, shall be entitled to oppose the grant of leave or interim orders without filing any written objections. He shall also be at liberty to file his objections only by setting out the grounds in opposition to the questions of law or grounds set out in the S.L.P.. On hearing the Court may refuse the leave and dismiss the petition for seeking special leave to appeal either ex-parte or after issuing notice to the opposite party. Under Rule 11, on the grant of special leave, the petition for special leave shall, subject to the payment of additional court fee, if any, be treated as the petition of appeal and it shall be registered and numbered as such. The appeal shall then be set down for hearing in accordance with the procedure laid down thereafter. Thus, a petition seeking grant of special leave to appeal and the appeal itself, though both dealt with by Article 136 of the Constitution, are two clearly distinct stages. In our opinion, the legal position which emerges is as under :-

(1). While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave;

(2). If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out;

(3). If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the Court may dismiss the appeal without noticing the respondent”.

 

14.       The Revision Petitioner/Opposite Party forthwith complied order dated 3.8.2015 of Hon’ble Apex Court, by making payment in the sum of Rs.3,85,993/- vide cheque dated 8.9.2015. The break-up of Rs.3,85,993/-, payment of which was made by the Revision Petitioner/Opposite Party, was as under:-

Compensation	Rs.1,00,000/-.
Litigation Cost	Rs.5,000/-
Refund of Amount on account of excess interest.	Rs.,2,80,993/- (as per Revision Petitioner, the amount due was Rs.2,73,537/- but the amount refunded was more i.e. Rs.2,80,998/-)
Total	Rs.3,85,993/-

 

Alongwith the written arguments, the following calculation has been submitted by the respondents:-

CALCULATION OF PENAL INTEREST ON EXCESS AMOUNT OF INTEREST CHARGES @12% P.A.
Particular						AMOUNT
Interest overcharged		Up to 04.12.2015				468250
Interest on excess amount of interest charged						335914
Total (Rs.)						804164
Refund of illegal charges recovered
Ch. No.085220 Dt. 06.08.2011 R.No.8522005082011					Rs.7940
Ch. No.745887 Dt. 15.05.2012 R.No.745887150512					Rs.6981	23273
Add:-	Interest					8378
Compensation Rs.100000/- with 12% penal interest						209224
Legal Cost						5000
Penal interest on legal cost of Rs.5000/-						4716
GRAND TOTAL OF CLAIM PAYABLE BY ICICI BANK						1054755
LESS PAID						385993
BALANCE PAYABLE						668762

 

15.       Clearly, the calculation submitted by the respondents/complainants is patently erroneous. The Forum did not discuss as to how the respondents/complainants were entitled to Rs.6,68,762/-. The assertion of respondents/ complainants that calculation is in accordance with Court orders is misconceived. Against the compensation amount of Rs.1,00,000/- and litigation cost of Rs.5,000/-, the respondents/complainants have claimed a sum of Rs.2,09,224/-  and Rs.9,716/- respectively, to which, they are not entitled, in view of principle of Doctrine of Merger.

16.       The respondents/complainants in their calculation also claimed interest on excess amount of interest charged in the sum of Rs.3,35,914/-, to which also, they are not entitled in view of aforesaid reason.

17.       The calculation submitted by the respondents/complainants includes a sum of Rs.23,273/- and (Rs.8,378/- on account of interest on Rs.23,273/-) paid by them to the Revision Petitioner/Opposite Party vide cheques dated 3.8.2011, 15.5.2012 and 19.7.2013 in the sum of Rs.7,940/-, Rs.7349/- and Rs.6,981/- respectively, which was never the issue for decision. There is also no averment qua Rs.23,273/- and Rs.8,378/- in the Execution Application. Thus, Rs.23,273/- + Rs.8,378/- are also not payable to the respondents. Thus, out of the amount of Rs.6,68,762/-, in our opinion, the amounts of Rs.1,09,224.00 + Rs.4,716.00 + Rs.3,35,914.00 + Rs.23,273.00 + Rs.8,378.00 (interest on Rs.23,273/-) = Rs.4,81,505/- are not payable to the respondents/Decree Holders/ complainants. The difference of Rs.6,68,762.00 and Rs.4,81,505.00 comes to Rs.1,87,257.00.

18.       As regards interest overcharged, the same has been shown as Rs.4,68,250/-. The respondents/complainants have already received a sum of Rs.3,85,993/- (-) minus Rs.1,05,000.00 (on account of compensation and litigation) = Rs.2,80,993.00. Thus, the difference comes in the sum of Rs.1,87,257.00 i.e. (Rs.4,68,250.00 (-) minus Rs.2,80,993.00).

19.       The difference of calculation in the sum of Rs.1,87,257/- is apparently due to the reason that the Revision Petitioner/Opposite Party is relying upon Agreements dated 15.5.2012 and 19.7.2013 (Annexures R-4 and R-5) whereas the respondents/complainants have disputed their applicability on the ground that these were not part of pleadings before the National Commission, which decided the case on 29.9.2014 and that Hon’ble Supreme Court overruled the same. As already stated above, the order of National Commission was set aside by the Hon’ble Supreme Court and benefit was extended as a measure of concession. The State Commission in its order dated 19.3.2010 permitted the appellant Bank to vary the rate of interest only as per the variation allowed by the Reserve Bank of India from time to time granting the complainants benefit of minus 1.5% of the FRR. The Hon’ble Apex Court confirmed the order passed by the State Commission. As per amendatory agreement (Annexure R-4), date of commencement of EMI was 10.06.2012 but date of execution of the same is not mentioned. Moreover, it is signed by only one of the respondents/ complainants and not by all of them. It is also not signed by any authorized official of the Bank. In view of this, it does not deserve to be considered in favour of the Bank and against the respondents/complainants. Amendatory Agreement (Annexure R-5) is signed by all the three respondents/complainants and as is evident from Appendix 1 (Page 119), it was executed on 19.7.2013, EMI was to commence w.e.f. 10.08.2013. At Page 125, it bears signatures of Authorized Signatory of Bank/Revision Petitioner. Therefore, out of balance amount of Rs.1,87,257/-, the amount towards excess interest charged, considering that Amendatory Agreement (Annexure R-4), was not valid and sustainable, shall be calculated and paid by the Revision Petitioner – Bank to the respondents/complainants. The order passed by the Forum, therefore, needs to be modified in the above terms.

20.       In view of above discussion, the Revision Petition is partly accepted. The respondents/ complainants are not entitled to a sum of Rs.4,81,505/- out of Rs.6,68,762/-. As regards remaining amount of Rs.1,87,257/-, Revision Petitioner has stated that the same was not payable in view of Amendatory Agreements (Annexures R-4 & R-5). Since Amendatory Agreement (Annexure R-4) has been held to be not valid and sustainable, the amount charged in excess by the Revision Petitioner – Bank shall be calculated and paid to the respondents/complainants.

21.       The parties are directed to appear, before District Forum (I), U.T., Chandigarh on 18.04.2016 at 10.30 A.M., for further proceedings.

22.       The District Forum record, alongwith a certified copy of the order, be sent back, to it, immediately, so as to reach there, well before the date and time fixed i.e. 18.04.2016 at 10.30 A.M.

23.       Certified Copies of this order, be sent to the parties, free of charge.

24.       The Revision-Petition file be consigned to the Record Room, after due completion.

Pronounced.

April 04, 2016.

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

[DEV RAJ]

MEMBER

 

 

 

[PADMA PANDEY]

 MEMBER