BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 15th July 2010
COMPLAINT NO.16/2010
(Admitted on 08.01.2010
PRESENT:
1. Smt. Asha Shetty, President
- Smt.Lavanya M. Rai, Member
BETWEEN:
Sri.P.Jayaram Nayak,
Aged about 62 years,
So. Late P.Ramesh Nayak,
Residing at Door No.8 2 46,
Raghavendra Krupa,
Opp: Hotel Summar Park,
Badagupete, Udupi 576 101. …….. COMPLAINANT
(Advocate for the Complainant: Sri.P.R. Bhandarkar).
VERSUS
1. Ms.G.E. Money Financial Services Limited,
Regd. Office Unit No.401 and 402,
4 Floor, Aggarwal Millennium Tower,
E1,2,3, Netaji Subhash Place,
Pitampura, Delhi 110 034.
Rep. by its Managing Director.
2. M/s.G.E. Money Financial Services Limited,
Near Bunts Hostel,
Mangalore,
Rep. by its Branch Manager. ……. OPPOSITE PARTIES
(Advocate for the Opposite Parties: Sri. B. Nanda Kishore).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The Complainant availed a loan of Rs.39,339/- from Opposite Party No.1 through its agent under personal loan account No.(LAN)RSMD 00010598. It is stated that, the Opposite Party finance company has already been closed. At the time of availing the said loan, the Opposite Party had obtained 24 post dated cheque of Rs.2,958/- drawn on IDBI Bank Limited, Udupi Branch (12 cheques) and Udupi Co-operative Town Bank, Udupi (12 cheques). It is stated that, the Complainant made payment of Rs.70,992/- towards the loan account.
It is further stated that, the Opposite Party company offered top up loan of Rs.47,854.80 when the principal amount outstanding in his personal loan account was Rs.39,339/-. The Complainant had already paid 11 EMI of Rs.2,958/- each in respect of the loan account. The Top-up loan is payable by 10 EMIs of Rs.2,958/- each for which the Opposite Party Company had obtained 10 post dated cheques. The Opposite Party Company failed to return 13 cheques. Further it is stated that, on scrutiny of the loan ledger extract furnished by the Opposite Party, it was found that the excessive interest at the rate of 36.97% was being charged on the loan account which works out to be 54.53% p.a. and charging such heavy interest on the loan account availed by the Complainant is amounts to unfair trade practice. The Complainant ought to have been charged the interest at diminishing rate and not at a flat rate.
The Opposite Party Company has charged excessive interest on the loan account which is against the Usurious Loans Act, 1980 and it is also stated that the compound interest in excess of 10% shall not be charged. Aggrieved by the charging of excessive rate of interest, Complainant issued a legal notice dated 15.12.2009 through his counsel to the Opposite Parties calling upon them to furnish the up-to-date loan ledger and also asked to re-schedule the loan account availed by him charging reasonable rate of interest at the rate of 16% p.a. but the Opposite Parties not sent the reply nor any response to the said notice. It is stated that, the service rendered by the Opposite Parties amounts to unfair trade practice and also deficiency in service. Hence the above complaint is filed by the Complainant before this Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to furnish the documents sought for and also to rephase the EMI of the loan account and also to refund the excess amount collected and further claimed Rs.17,000/- as compensation and cost of litigation expenses.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version submitted that, the complaint is not maintainable and the Complainant is not a consumer and this Forum has no jurisdiction to entertain the complaint.
It is submitted that, the Complainant approached the Opposite Party and obtained the personal loan of Rs.39,339/- which was sanctioned on 28.06.2007. The original tenure was 24 months and monthly EMI was Rs.2,958/-, the rate of interest was 36.96%. It is stated that, the Complainant had opted top-up loan while the earlier loan was existing and the same was sanctioned and the Complainant has chosen to opt top-up loan on 17.06.2008 and necessary documents have been executed and Rs.47,455/- paid to the Complainant. The rate of interest on the entire principal amount is 39.99%. It is stated that, the interest and EMI will be calculated on the gross loan amount and if the Complainant is not interested in taking the loan, he can cancel the loan within 15 days from the sanctioning of the loan but the Complainant was not done the same. It is stated that the Complainant accepted the terms and conditions and executed necessary documents, there is no deficiency on the part of the Opposite Parties and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.P.Jayaram Nayak (CW1) filed affidavit reiterating what has been stated in the complaint and got marked Ex C1 to C7 as listed in the annexure. Opposite Parties not filed counter affidavit but produced 10 documents as listed in the annexure. Complainant produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:
Point No.(i): Negative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
The above complaint is filed by the Complainant stating that, he had availed a loan from the Opposite Party and contended that the Opposite Party indulged in unfair trade practice by charging usurious interest on the loans advanced by them. According to the Complainant, he had availed a loan of Rs.39,339/- from the Opposite Party No.1 and so far he made a payment of Rs.70,992/- and thereafter the Opposite Party Company offered Top-up loan of Rs.47,854.80 when principal amount outstanding in his personal loan account was Rs.39,339/-. It is stated that, on scrutiny of the loan ledger extract furnished by the Opposite Party, it was found that excessive interest at the rate of 36.97% (flat) was being charged on the loan account in question, which works out to be interest at 54.53% which amounts to unfair trade practice. And it is further contended that, the Opposite Party has charged excessive interest and it is against to the Usurious Loans Act 1918 and it is also stipulated in the said Act that the compound interest in excess of 10% shall not be charged. Aggrieved by charging of excessive rate of interest, the Complainant issued a legal notice dated 15.12.2009 through his counsel calling upon them to furnish the up-to-date loan ledger extract and also re-schedule the loan account availed by him by charging reasonable rate of interest at the rate of 16% p.a. i.e., the normal rate of interest that being charged on the borrowers of the loans but the Opposite Parties not complied the same.
The Opposite Party filed a version and stated that, they have not charged any exorbitant interest, it is charged 36.96% as mentioned in the promissory note, which was duly accepted by the Complainant and Top-up loan is offered revised interest will apply on the entire principal and the same is mentioned in the document and all necessary documents executed by the Complainant in respect of the above said loan.
We have gone through the material evidence on record, it is a dispute regarding the rate of interest charged by the Opposite Party. Undisputedly, the Complainant obtained a personal loan and top-up loan from the Opposite Party and executed certain documents including the promissory note, personal loan application form, RLP and declaration and loan account ledger etc.
The Complainant in substance raised a grievance in his complaint that, though he availed a loan and agreed the rate of interest, yet the said interest was not correct and it is exorbitant and it is against to the Usurious Act. It is averred that the rate of interest and the mode of calculation thereof adopted by the Opposite Party is not proper and not in accordance with the agreement.
When a complaint comes up with this type of complaint shall provide expert evidence which includes Chartered Accountant who can calculate the rate of interest charged by the Opposite Party as per the agreement as well as the rate of interest mentioned in the loan ledger extract. There is no expert evidence to satisfy or to show before this Forum that the Opposite Party charged 36.97% interest (flat) was being charged on the loan account and which works out to be interest at 54.53% p.a. but the loan documents produced by the Opposite Party reveals that, the Complainant agreed and signed for the above mentioned loans at the rate of 36.96% for the personal loan and the top up loan 39.99% rate of interest payable by the Complainant and executed necessary documents which includes promissory note. It is, however, observed by us that, since the dispute between the parties regarding the rate of interest and as the dispute between the parties would require detailed evidence as well as expert evidence who is expert in calculating and differentiating the amount calculated by the parties, therefore, the dispute could not be decided by consumer forum in exercise of its summary jurisdiction. As noticed earlier, the dispute has raised by the Complainant is regarding mode of calculation and rate of interest charged by the Opposite Party. However, it may be noticed that the statement of account has been produced by the Opposite Party, which shows that there is an outstanding amount of loan of Rs.43,068.42 as on 22.02.2010. In so far as the rate of interest is concerned, the Complainant has not disputed that he executed the documents while obtaining loan including the loan application and promissory note the copy of which sought by the Complainant from the Opposite Party. The Complainant inspite of executing the document in favour of the Opposite Party, the above documents have been signed by the Complainant, it shows the Complainant agreed to pay interest at the aforesaid rate as mentioned in the said documents. The Complainant has not produced any document or material to controvert the promissory note executed by him as above. Thus, the Complainant has failed to substantiate his averment that the interest charged was excessive or in contravention of the loan agreement between the parties.
In the written arguments, reliance has been placed on the decision of the Hon’ble National Commission in Awaz and Others versus Reserve Bank of India, on going through the said decision we do not find that the same would render any assistance to the Complainant’s case. In the said case, the question that arose for consideration of the National Commission was regarding the rate of interest charged on the credit cards. It has thus, no resemblance with the facts and the questions involved in the present case.
In view of the above, it is clear that the complaint of the Complainant has no merits deserves to be dismissed. No order as to costs.
6. In the result, we pass the following:
ORDER
The complaint is dismissed. No order as to costs.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 9 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 15th day of July 2010.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri.P.Jayaram Nayak – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – : Copy of the schedule pertaining to the loan account of the Complainant.
Ex C2 – 14.10.2008: Original receipt No.CMN 0098007 for Rs.3,000/-.
Ex C3 – 21.03.2009: Original receipt No.CMN 0105350 for Rs.3,000/-.
Ex C4 – 28.05.2009: Original receipt No.CMN 0109816 for Rs.3,000/-.
Ex C5 – 15.12.2009: Legal notice issued by the Complainant to the Opposite Parties.
Ex C6 - : Postal acknowledgement.
Ex C7 - : Original certificate of posting issued by the postal authorities.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Nil.
Documents produced on behalf of the Opposite Parties:
Doc. No.1 – 22.06.2007: Application form.
Doc. No.2 - 28.06.2007: Copy of the promissory note for Rs.39,339/-.
Doc. No.3 – 28.06.2007: Copy of the RLP.
Doc. No.4 – 17.06.2008: Application form.
Doc. No.5 – 17.06.2008: Copy of the promissory note for Rs.47,855/-.
Doc. No.6 – 17.06.2008: Copy of the MID – loan details.
Doc. No.7 – 11.02.2010: Copy of the Loan Account Ledger.
Doc. No.8 - : Cheque details.
Doc. No.9 - : Details of installments.
Doc. No.10 – 11.02.2010: Letter of foreclosure.
Dated:15.07.2010 PRESIDENT
