Sri Ranjan Ray, Ld. Member

FINAL ORDER/ JUDGEMENT

This complaint under section 11 and 12 of the C.P. Act, 2019 was filed against the Opposite Parties (O.P.s)- 1. M/S. Dewan Housing Finance Corporation Ltd., Sarada Building, Opp.Sahid Bhagat Singh Commercial Complex, 2^nd Mile, Sevoke Road, Siliguri, Dist.- Darjeeling, Pin Code- 734001 and 2. M/S. Dewan Housing Finance Corporation Ltd., Warden House, 2^nd Floor, Sir P.M. Road Fort, Mumbai- 400001 and vide Order No. 23, dated 06.07.2023 the case runs ex- parte against O.P. No. 1, and 2.

          The brief fact of the case as per the complaint filed by the complainant is as follows-

          The complainant had a Cash Credit Loan account at State Bank of India, Ektiasal Branch, Siliguri. The Branch Manager of O.P.s, Mr. Prasant (Loan Manager), offered a better interest rate as well as after expiry of six months the company would reduce the rate of interest as per the norms and also increased the loan amount as per requirements of the business of the complainant. On verbal assurance of the O.P.’s local management, the complainant applied to State Bank of India in the month of April, 2018 for transfer his loan to the O.P.’s account and the O.P.s took over the loan from State Bank of India, Ektiashal Branch, Siliguri to their account No. 2600000315 and converted it into a term loan for 15 (fifteen) years with variable interest rate and the EMI was Rs. 23, 036/- (Rupees Twenty Three Thousand and Thirty Six) only payable at monthly interest. The O.P.s increased the monthly EMI from Rs. 23, 036/- (Rupees Twenty Three Thousand and Thirty Six) only to Rs. 23, 875/- (Rupees Twenty Three Thousand Eight Hundred and Seventy Five) only as mentioned in the reason that the Reserve Bank of India had increased their interest rate 0.25% and further after expiry of one year, the complainant started to demand reduction of interest as per the verbal agreement between them but the O.P.s started to deny the same. The complainant stated in his plaint that the variable interest is linked with the Reserve Bank of India’s interest rate and it is the duty of the lender bank to update it accordingly for smooth payment of EMI. But the O.P.s did it once for increscent of EMI but at the time of reduction they ignored it just to earn more profit and misappropriation of complainant’s money. The complainant was not aware that the RBI reduced its interest rate to support the economy of the country since 7^th of February, 2019 and after that due to pandemic, the Apex Bank reduced interest rate gradually from 6.50% to 4%. As per condition of the mortgage contract between the O.P.s and the complainant, the O.P.s did not reduce its interest rate which was a breach of contract when it was the duty of the O.P.s to convert interest rate timely for smooth payment of EMI.

          The EMI was Rs. 23, 036/- (Rupees Twenty Three Thousand and Thirty Six) only when the repo rate was 6.25% and it increased to Rs. 23, 875/- (Rupees Twenty Three Thousand Eight Hundred and Seventy Five) only when the repo rate was 6.50%. So, the difference of 0.25% is valued of Rs. 839/- (Rupees Eight Hundred and Thirty Nine) only (Rs. 23, 875.00 - Rs. 23, 036.00= Rs. 839.00). Therefore, 0.50%= Rs. 1, 678/-, 0.75%= Rs. 2, 517/-, 1%= Rs. 3, 356/-, 1.10%= Rs. 3,691.60/-, 1.35%= Rs. 4, 530/-, 2.10%= Rs. 7, 047.60, 2.50%= Rs. 8, 390/-.  The total extra amount collected by the O.P.s is Rs. 1, 17, 124.10/- (Rupees One Lakh Seventeen Thousand One Hundred and Twenty Four and Ten Paisa) only with a month wise following break up- (1) March, 2019= Rs. 839/-, (2) April, 2019= Rs. 1,678/-, (3) May, 2019= Rs 1,678/-, (4) June, 2019= Rs. 2,517/-, (5) July, 2019= Rs. 2,517/-, (6) August,2109= Rs. 3,691/-, (7) September, 2109= Rs. 3,691/-, (8) October, 2019= Rs. 3,691/-, (9) November, 2019= Rs. 3,691/-,(10) December, 2019= Rs. 3,691/-,(11) January, 2020= Rs. 3,691/-, (12) February, 2020= Rs. 4,530/-, (13) March, 2020= Rs. 7,047/-, (14) April, 2020= Rs.7,047/-, (15) May, 2020= Rs. 8,390/-, (16) June, 2020= Rs. 8,390/-, (17) July, 2020= Rs. 8,390/-, (18) August, 2020= Rs. 8,390/-, (19) September= Rs. 8,390/-, (20) October, 2020= Rs. 8,390/-, (21) November= Rs. 8,390/-, (22) December, 2020= Rs. 8,390/-. The complainant also sated in his plaint that the amount of Rs. 1, 17, 124.10/- (Rupees One Lakh Seventeen Thousand One Hundred and Twenty Four and Ten Paisa) only and its partly investment in business could be a return of minimum of 40% gross profit from the investment in two years of Rs. 46,000/- (Rupees Forty Six Thousand) only approx and it became Rs. 2, 09, 124/- (Rupees Two Lakh Nine Thousand One Hundred and Twenty Four) only (Rs. 46,000.00 X 2 years= Rs. 1,17,124.00 + Rs. 46,000.00 + Rs. 46,000.00 = Rs. 2, 09, 124/-).

          The complainant visited the O.P.’s office many times for reduction of interest rate and more finance of his business but they ignored him by different excuse. The complainant also tried make contact with the O.P.s through their customer care over phone but could not reach them.  The complainant also applied many times for extension of loan moratorium (after period of 05 months as announced by the Government moratorium for 3+3 = 6 months for the country wide lockdown) and restructure of his loan account as per his present income and guideline of RBI and the Kamath Panel recommendation identifies 26 sectors for restructuring of loans but did not get any result. The complainant also several times contacted with the O.P.s through e-mails but again did not get any result.

                    The prayers of complainant are as follows: -

1. To pass an order directing the O.P.s to refund the amount of Rs. Rs. 2, 09, 124/- (Rupees Two Lakh Nine Thousand One Hundred and Twenty Four) only with up to date interest.
2. To pass an order directing the O.P.s to restructure the loan account as per guidelines of R.B.I.
3. To pass an order directing the O.P.s to present ECS to Bank for payment of EMI after reduction of Rs. 13, 739.88/- (Rupees Thirteen Thousand Seven Hundred and Thirty Nine and Eighty Eight paisa) only.
4. To pass an order directing the O.P.s to remove all penal charges, ECS return charges and interest rate conversion charges.
5. To pass an order directing the O.P.s to pay Rs. 5, 00, 000/- (Rupees Five Lakh) only as compensation of mental agony, harassment etc.
6. To pass an order directing the O.P.s to pay Rs. 20, 000/- (Rupees Twenty Thousand) only for litigation cost.
7. Any other order/ orders, direction/ directions as Hon’ble Commission may deem fit and proper.

List of Documents filed by the complainant:

1. Photocopy of the Information of State Bank of India rate of present interest and loan against property. (Annexure- A)
2. Photocopy of water variable interest rate loan. (Annexure- B, B-1, B-2, B-3)
3. Photocopy of sms for increase of EMI of the O.P.s. (Annexure- C)
4. Photocopy of repo rate list of R.B.I. (Annexure- D)
5. Photocopy of statement of accounts showing variable type of interest rate. (Annexure- E-1, E-2)
6. Photocopy of correspondence e-mails. (Annexure- F-1, F-2)
7. Photocopy of R.B.I. as acceptance of Kamath Pannel Recommendations identified 26^th Sectors as restructuring. (Annexure- G)
8. Photocopy of e-mails of the complainant for reduction of interest rate. (Annexure- H-1, H-2, H-3)
9. Photocopy of application for reduction of interest their format. (Annexure- I-1, and the application as Annexure I-2)
10. Photocopy of e-mail dated 10.03.2021 for refusal of application for reduction of interest rate. (Annexure- J-1, J-2)
11. Photocopy of Legal Notice. (Annexure- K)

Regarding this instant case, the Opposite Parties (O.Ps)- 1, M/S. Dewan Housing Finance Corporation Ltd., Sarada Building, Opp.Sahid Bhagat Singh Commercial Complex, 2^nd Mile, Sevoke Road, Siliguri, Dist.- Darjeeling, Pin Code- 734001 and 2. M/S. Dewan Housing Finance Corporation Ltd., Warden House, 2^nd Floor, Sir P.M. Road Fort, Mumbai- 400001 who did not turn up before this Commission at the time of argument and vide Order No. 23, dated 06.07.2023 the case runs ex- parte against O.P. No. 1, and 2.

Having heard, the Ld. Advocate of the complainant and on perusal of the Complaint and documents filed by the complainant the following points are taken to be decided by this Commission.

POINTS FOR CONSIDERATION

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?

DECISION WITH REASONS

           All the points are taken up together for consideration and decision.

Seen and perused the complaint petition which is supported by the affidavit, documents filed by the complainants. We are also heard arguments of the complainant in full length.

The complainant resides in the jurisdiction of Siliguri of Darjeeling district and the O.P. No. 1 also carries his business in Siliguri of Darjeeling district. Thus, this Commission has no doubt that the complainant is a very much consumer as per the Consumer Protection Act, 2019 and also there is no doubt that this Commission has its territorial jurisdiction to decide this case.

In this case, the O.P.s got several opportunities to file W.V. but they did not file the same. Hence, vide Order No. 20, dated 06.07.2023 the O.P. was declared ex-parte. However, for the ends of justice on 08.02.2024 vide Order No. 23, a direction was given to the O.P.s to remain present on the date of argument, i.e., on 21.03.2024 but the O.P.s did not turn up before this Commission for argument on that date.

The complainant applied to State Bank of India in the month of April, 2018 for transfer his loan to the O.P.’s account and the O.P.s took over the loan from State Bank of India, Ektiashal Branch, Siliguri to their account No. 2600000315 and converted it into a term loan for 15 (fifteen) years with variable interest rate and the EMI was Rs. 23, 036/- (Rupees Twenty Three Thousand and Thirty Six) only payable at monthly interest. Hence, this Commission does not hesitate to hold that the complainant is a very much consumer in this case as per Consumer Protection Act, 2019.

In this instant case, the complainant had a Cash Credit Loan account at State Bank of India, Ektiasal Branch, Siliguri. The Branch Manager of O.P.s, Mr. Prasant (Loan Manager), offered a better interest rate as well as after expiry of six months the company would reduce the rate of interest as per the norms and also increased the loan amount as per requirements of the business of the complainant. On verbal assurance of the O.P.’s local management, the complainant applied to State Bank of India in the month of April, 2018 for transfer his loan to the O.P.’s account and the O.P.s took over the loan from State Bank of India, Ektiashal Branch, Siliguri to their account No. 2600000315 and converted it into a term loan for 15 (fifteen) years with variable interest rate and the EMI was Rs. 23, 036/- (Rupees Twenty Three Thousand and Thirty Six) only payable at monthly interest. The O.P.s increased the monthly EMI from Rs. 23, 036/- (Rupees Twenty Three Thousand and Thirty Six) only to Rs. 23, 875/- (Rupees Twenty Three Thousand Eight Hundred and Seventy Five) only as mentioned in the reason that the Reserve Bank of India had increased their interest rate 0.25% and further after expiry of one year, the complainant started to demand reduction of interest as per the verbal agreement between them but the O.P.s started to deny the same. The complainant stated in his plaint that the variable interest is linked with the Reserve Bank of India’s interest rate and it is the duty of the lender bank to update it accordingly for smooth payment of EMI. But the O.P.s did it once for increscent of EMI but at the time of reduction they ignored it just to earn more profit and misappropriation of complainant’s money. The complainant was not aware that the RBI reduced its interest rate to support the economy of the country since 7^th of February, 2019 and after that due to pandemic, the Apex Bank reduced interest rate gradually from 6.50% to 4%. As per condition of the mortgage contract between the O.P.s and the complainant, the O.P.s did not reduce its interest rate which was a breach of contract when it was the duty of the O.P.s to convert interest rate timely for smooth payment of EMI.

          The EMI was Rs. 23, 036/- (Rupees Twenty Three Thousand and Thirty Six) only when the repo rate was 6.25% and it increased to Rs. 23, 875/- (Rupees Twenty Three Thousand Eight Hundred and Seventy Five) only when the repo rate was 6.50%. So, the difference of 0.25% is valued of Rs. 839/- (Rupees Eight Hundred and Thirty Nine) only (Rs. 23, 875.00 - Rs. 23, 036.00= Rs. 839.00). Therefore, 0.50%= Rs. 1, 678/-, 0.75%= Rs. 2, 517/-, 1%= Rs. 3, 356/-, 1.10%= Rs. 3,691.60/-, 1.35%= Rs. 4, 530/-, 2.10%= Rs. 7, 047.60, 2.50%= Rs. 8, 390/-.  The total extra amount collected by the O.P.s is Rs. 1, 17, 124.10/- (Rupees One Lakh Seventeen Thousand One Hundred and Twenty Four and Ten Paisa) only.

The complainant visited the O.P.’s office many times for reduction of interest rate and more finance of his business but they ignored him by different excuse. The complainant also tried make contact with the O.P.s through their customer care over phone but could not reach them.  The complainant also applied many times for extension of loan moratorium (after period of 05 months as announced by the Government moratorium for 3+3 = 6 months for the country wide lockdown) and restructure of his loan account as per his present income and guideline of RBI and the Kamath Panel recommendation identifies 26 sectors for restructuring of loans but did not get any result. The complainant also several times contacted with the O.P.s through e-mails but again did not get any result.

In order to prove the case, the Complainant has filed its evidence in the form of an Affidavit and in the Written Complainant has specifically corroborated the complaint and has stated on which day he took the loan from the O.P., also narrated the date of payment of installment (EMI). The Complainant has also stated the date of communication with the O.P for reduction of interest rate and more finance of his business. The Complainant has also stated in his evidence that the complainant went to meet the O.P. several times but the O.P. did not make any payment till today.

At the time of argument Ld. Advocate of the Complainant submits that the Complainant has been able to prove its case against the O.P not only through her Written Deposition but also by producing documents.

In view of above discussion and other materials on record we are of the view that this Commission has sufficient Jurisdiction to entertain this complaint as a consumer dispute and thereby this case is maintainable.

At the time of argument Ld. Advocate of the Complainant submits that the Complainant has been able to prove its case against the O.P.s not only through their Written Deposition but also by producing documents.

         The notice was duly served upon on the O.P.s but the O.P. No. 1, and 2 but they did not file W.V. Hence, vide Order No. 20, dated 06.07.2023 the O.P. was declared ex-parte.

         In this instant case, the documents and evidence filed by the complainant which shows that there is an extra amount of Rs. 1, 17, 124.10/- (Rupees One Lakh Seventeen Thousand One Hundred and Twenty Four and Ten Paisa) only was collected by the O.P.s from the account of the complainant and at this stage the O.P.s not denied or gave any counter affidavit to contradict the said amount. In absence of this, this Commission is compelled to rely upon the documents and evidence filed by the complainant. So, this Commission is of the view that the O.P.S conducted a deficiency in service and an unfair trade practice to the complainant.  

         In the instance case, the complainant is entitled to get back his Rs. 1, 17, 124/- (Rupees One Lakh Seventeen Thousand One Hundred and Twenty Four) only from the O.P.s. The O.P. No. 1 and 2 are jointly and severally liable in this case.

Hence, it is, therefore,

O R D E R E D

That the Consumer Case No. 31/2021 be and same is allowed on ex-parte against the O.P. No. 1 and O.P. No.2 (M/S. Dewan Housing Finance Corporation Ltd.) with cost. The O.P. No. 1 and 2 are jointly and severally liable in this case.  

The O.P.s are directed to pay Rs. 1, 17, 124/- (Rupees One Lakh Seventeen Thousand One Hundred and Twenty Four) only to the complainant within 45 (forty five) days from the date of this order, i.e., from 12.09.2024 failing which the complainant is entitled to get a simple interest @ 6% per annum from the date of filing of this case, i.e., from 17/03/2021 till the realization of entire amount. The complainant is also entitled to get Rs. 20,000/- (Rupees Twenty Thousand) only for mental pain, agony and harassment and Rs. 20, 000/- (Rupees Twenty Thousand) only for litigation cost. The O.P.s are also directed to deposit Rs. 5,000/- (Rupees Five Thousand) only to Consumer Legal Aid Account of this Commission. The O.P.s shall pay the entire amount through an account payee cheque within 45 (forty five) days from the date of this order, i.e., from 12.09.2024, in default the complainant will be at liberty to execute the award as per law.

          Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.