This case is coming for final hearing on 09.01.2015 in the presence of Complainant in person and Smt A.Bhanumathi, Advocate for Opposite parties and having stood over till this date, the Forum delivered the following.                                                                                                                                                                                                                                                                                                                                                                                           

: O R D E R :

(As per the Honourable Member Sri V.V.L.Narasimha Rao on behalf of the Bench)

1. The Complainant filed the present Complaint on 05.08.2014 against the Opposite Parties 1 & 2 under Sec.12 of C.P.Act and requested the Forum to direct the Opposite Parties (1) to close the account and give clearance certificate (2) to refund excess amount of Rs.30,634/- along with interest @ 24% p.a. and refund of Rs.560/- towards ECS dishonor charges (3) to return the 24 cheque leaves retained by them (4) to pay a sum of Rs.50,000/- towards damages for the deficiency of service and adopting of unfair trade practice (5) to pay cost of litigation to the tune of Rs.5,000/- and (6) to grant any other relief or reliefs as the Forum deems fit and proper under the circumstances of the case.

2. The brief facts are as follows:- The Complainant submits that he obtained Car loan account of Rs.4,13,000/- (inclusive of SBI Life Insurance premium of Rs.13,000/- from the Opposite Parties bearing A/c No.30107176914 at the agreed rate of interest subject to enhancement and reduction of interest charges. At the time of executing the loan agreement, complainant has given 40 cheques pertaining to his savings bank account which was in State Bank of Hyderabad, District Court Branch, Visakhapatnam and the said 40 cheques are blank cheques without mentioning any amount, towards payments for EMIs.

3. There was understanding that the required amount filling on the respective months will be filled up by the bank in the cheque leaves and the Opposite Party bank may present the same for collecting the EMIs. The Opposite Party has utilized 14 cheques by filling an amount of Rs.6,803/- on each cheque and thereafter stopped presenting the cheques for clearance. After that Opposite Party switched to ECS mode of repayment of instalment which was not approved by the Complainant. When there are about 26 more cheques available with the Opposite Parties adopting the ECS mode of repayment of the instalment amounts is not fair on part of the Opposite Party Bank. The Opposite Parties has credited Rs.6803/- for 44 months and thereafter Opposite Party bank is crediting Rs.7,202/- for the past 35 months which includes for the month of January 2014. The loan amount was cleared by the month of December, 2013 and the account should have been closed as on December, 2013. But instead of closing the account the Opposite Party is collecting excess amount of Rs.7,202/- per month instalment and still showing the outstanding dues of Rs.38,682/- from the side of the complainant. When the Complainant approached the 2^nd Opposite Party for clarification of the loan account and with regarding to the repayment of the loan, the 2^nd Opposite Partyis not explaining the reasons in proper manner. The Opposite Party has also collected an amount of Rs.110/- from him when he asked for the copy of the agreement. On 17.02.2014, the Complainant addressed a letter to the Opposite Party bank and requested the bank not to deduct the amount under ECS from his account and even after that also the Opposite Parties are continuously deducting the amount from the account of the complainant. Then the Complainant got issued Legal Notice to the Opposite Parties and Opposite Parties gave reply stating that “the Complainant is a defaulter” and still the Complainant is liable to pay some amount to the Opposite Parties towards balance amount of the Car loan amount. The Opposite Parties are also deducted Rs.112/- from the Complainant’s State Bank of Hyderabad account from March 2014 to July 2014 towards cheque charges.

4. As per the agreement the Complainant is liable to pay the loan amount @ Rs.6803/- pm in 84 instalments. Even after that also the Opposite Party has collected amount of Rs.30,634/- from the Complainant by following unfair trade practice and adopting ECS mode without any request from the Complainant to the SBH, District Court branch. Hence alleging the deficiency of service and unfair trade practice on part of the Opposite Parties, the Complainant has filed the present complaint before this Forum and sought for reliefs vide Relief No.1 to 6 in the complaint.

5. Notices served to the Opposite Parties on behalf of the Opposite Parties 1 & 2 Counter was filed and the Opposite Parties stated as follows: The Complainant is lack of bonafides and grossly motivated and that too as the Complainant has made the State Bank of Hyderabad, District Court complex, Visakhapatnam as a party and the complaint is liable to be dismissed as non-joinder of the parties. The Complainant has obtained loan for Rs.4,13,000/- from the Opposite Party bank vide Account No.30107176914 and he agreed to pay the interest @ 1.25% below SBAR, effective rate being 9.75% p.a. The rate of interest is subject to revision from time to time and the Complainant shall be deemed to have notice of changes in SBAR which is displayed/notified at/by the Branch published in the daily newspapers. The Opposite Party bank has an option to increase or reduce the EMI or extend the repayment of the period consequent upon the changes in SBAR as per the Arrangement Letter accepted by the Complainant. The Opposite Party has collected 40 cheques signed by the Complainant drawn on his SB Account at SBH, Visakhapatnam District Court branch. The Complainant has issued all the said 40 cheques @ Rs.6,803/- each which is the monthly installment amount to be paid to the Opposite Party bank through the State Bank of Hyderabad, District Court branch, Visakhapatnam. The Opposite Party has utilized 14 cheques @ Rs.6,803/- for each cheque and the balance cheques are still with the Opposite Party bank. As per the directions of the RBI, it is mandatory for all the banks including the Opposite Party Bank to switch over to ECS (Electronic Clearing System). So the Opposite Party bank has switched to the ECS system for recovery of the instalments in respect of the Complainant’s car loan amount. The balance 26 cheques are pending with the Opposite Party bank. As per the terms and conditions of the Agreement and agreed by the Complainant, the EMI is revised to Rs.7,202/- from January 2011. The same was recovered and credited in the loan account of the Complainant. Regarding the collection of Rs.110/- towards charges for the copies of the agreement and Arrangement letter, at the request of the complainant only the copies were issued and Rs.110/- were collected from him. The Complainant is not maintaining the sufficient balance in his Savings Bank account at State Bank of Hyderabad, District Court Branch, Visakhapatnam, though he has given ECS to the State Bank of Hyderabad and thereby during the months of March 2014 to July 2014 @ Rs.112/- per each transaction has been charged which has to be paid by the Complainant. For that there is no fault on part of the Opposite Parties. As on 19.07.2014, the Complainant is liable to pay Rs.19,616/- for the loan account along with subsequent interest and costs there on to the Opposite Party bank.

6. The contents in the Counter filed in IA 212/2014 in this matter may be read as part and parcel of the averments along with the documents filed by Opposite Party-Bank. Hence as there is no deficiency of service on part of the Opposite Parties and also the Opposite Party has not followed the unfair trade practice and the complaint is liable to be dismissed.

7. Along with the Complaint the Complainant has filed IA 212/2014 under Sec.13(3B) of C.P.Act and requested the Forum to pass Interim Order restraining the respondent/Opposite Party bank not to interfere in the peaceful possession and enjoyment of the car which was hypothecated by the Opposite Parties. The Opposite Party bank filed Counter in the IA and narrated the same facts mentioned in the counter of the main C.C. and requested to dismiss the complaint with costs.

8. While the matter was pending at the stage of arguments, the Opposite Party bank filed Memo on 17.09.2014 stating that the Opposite Party – Bank is returning the 26 cheques from Cheque Nos.446015 to 446040 which was received by the Complainant. Observing the Memo dt 17.09.2014 filed by the Opposite Party Bank and admission of the Complainant for receiving the 26 blank cheques from the Opposite Party, it seems the Relief No.3 i.e. return of the cheques from the Opposite Party is cleared and still the other reliefs pertaining to the (1) Giving clearance certificate pertaining to the loan amount (2) refund of cash amount of Rs.30,634/- along with interest besides refund of Rs.560/- collected towards dishonor of cheques (3) payment of Rs.50,000/- compensation for causing damages (4) payment of litigation charges and other relief or reliefs is pending as on today.

9. With regarding to decide the aforementioned 5 reliefs, observing the facts and circumstances of the both sides along with material record furnished by both sides the Forum framed the following pointsfor consideration:                                                 a) Whether the Complaint is maintainable before this Forum as the Complainant has not made the State Bank of Hyderabad as a party b) Whether there is any deficiency of Service on part of the Opposite Parties                                                                                            c) To what relief.

10. The Complainant filed his Evidence Affidavit and on his behalf Exs.A1 to A9 were marked. On behalf of Opposite Parties 1 & 2 Smt.Archana Kumari in the capacity of the Chief Manager of Opposite Party-Bank filed Evidence Affidavit and Exs.B1 to B2 were marked. The Complainant and Opposite Parties filed written arguments and adduced their oral arguments. At the time of oral arguments, the Complainant has filed one citation in support of his contention i.e. R.P.No.3761/2012 decided on 3.2.2014 by the Hon’ble National Commission between Natarajan Bohidar Vs Citibank, New Delhi.

11. At the time of arguments relying upon the case law of the Hon’ble National Commission i.e. R.P.No.3761/2012 the complainant stated that his vehicle cannot be seized. In this matter the Complainant himself is an advocate and filed the Consumer complaint before this Forum. He stated that it is not necessary to made State Bank of Hyderabad, Visakhapatnam District Court branch as a party. The Opposite Parties has followed the unfair trade practice method and collected the excess amount of Rs.30,634/- + 560/- from the Complainant and hence he is entitled for the reliefs as sought for in the Complaint.

12. Point No.1: The Opposite Party in paragraph No.4 of the Counter and in Evidence Affidavit stated that the State Bank of Hyderabad, District Court Complex branch, Visakhapatnam wherein the Complainant is maintaining the Savings Bank Account from which the amount of instalments and the ECS payments has been made is a necessary party and thereby the complaint is liable to be dismissed on the ground of non-joinder of the parties. On observing the version of the Complainant in the complaint and his Evidence Affidavit and Written Arguments along with Ex.A9 Bunch of statements (in 12 pages) and Ex.A6 letter addressed to State Bank of Hyderabad, Visakhapatnam District Court Branch dt. 17.04.2014 it seems the Complainant basing upon the Bank Statement obtained from the State Bank of Hyderabad, Visakhapatnam District Court Branch is claiming relief of refund of Rs.560/- for collecting the ECS Debit return charges along with the amount of Rs.30,634/-. The Opposite Parties in Para No.7 in the Counter stated that as per the directions of RBI, the Opposite Party bank has adopted the Electronic Clearing System (ECS) to collect the instalment amount from the Complainant’s SBH account and collecting the instalment by using the 26 cheques given by the complainant towards collection of the instalment amounts. In Para No.2, page No.2 of the complaint, the Complainant is stating that the Opposite Parties has collected Rs.112/- from the State Bank of Hyderabad account from March 2014 to July 2014 for ECS collecting charges which is unfair on their part. In Ex.A9 bunch of statements of State Bank of Hyderabad pertaining to the account of the Complainant, it reveals that on 11.03.2014, 11.4.2014, 13.05.2014, 10.06.2014, 11.07.2014 for each transaction Rs.112/- has been debited from the State Bank of Hyderabad account pertaining to the complainant towards ECS debit return charges. At the same time, the Opposite Parties are stating that unless there is a permission from the Complainant for collection of the ECS made from the State Bank of Hyderabad account, the Opposite Party cannot collect the same and observing the Ex.A6 served to the complainant stating that the “SBH has not said any ECS mandate at the Branch level”. At the time of the arguments, the counsel for the Opposite Parties stated that “unless the SBH, District Court Branch will be made as a party, the issue cannot be solved”.

13. As seen from the Ex.A9 bunch of Statements pertaining to the bank account of Complainant in the State Bank of Hyderabad and the claim of returning the Rs.560/- to the Complainant regarding the relief No.2 in the complaint, we are of conclusive opinion that unless the State Bank of Hyderabad, District Court Branch is made as a party in this complaint the Forum cannot decide the matter and on this ground alone the complaint is liable to be dismissed as complaint is non-joinder of party. Accordingly Point No.1 is answered.

14. Point Nos.2 & 3: Though the Forum came to a conclusion vide Point No.1 that the complaint is not maintainable as the State Bank of Hyderabad, District Court Branch, Visakhapatnam is not made as a party in the present complaint. But it is necessary to decide the issue of the deficiency of service and unfair trade practice in this matter.

15. The main grievance of the complaint for filing the present complaint is as the Opposite Parties has collected excess amount from the Complainant and thereby he was forced to file the present complaint before this Forum claiming the reliefs as sought for by him. The Opposite Parties stated that as per the terms and conditions mentioned in the agreement i.e. Ex.A1 the Opposite Party bank has followed the conditions and time and then the Opposite Party has increased and reduced the interest part and thereby the Bank has collected the instalment amount basing upon the enhancement and reduction of the percentage of interest. Ex.A1 is the 3 Pages Agreement dt. 27.12.2006 between the Complainant and the Opposite Parties for granting car loan of Rs.4,13,000/- for the Complainant. The Complainant is also admitting the agreement but he is stating that “the Opposite Party has collected excess amount from him inspite of collecting Rs.6803/- from him”. As per agreement with regarding to the repayment, in repayment column, it is mentioned as Loan is to be repaid in 84 months of Rs.6803/-. In Para No.1 of Page No.1 in Ex.A1, it was mentioned Interest on the loan will be charged at 1.25% below SBAR, effective rate being 9.75% p.a. with monthly rests. Current rate being 9.75%. In the event of a default in payment or any irregularity in account, the Bank reserve the right to levy a higher rate of interest as it deems fit. In para No.3, page No.1 of Ex.A1 it was mentioned as the rate of interest is subject to revision from time to time and the applicant shall be deemed to have notice of changes in the rate of interest whenever the changes in SBAR are displayed/notified by the branch/published in newspapers/made through entry of interest charged in the passbook/statement of account sent to applicant etc. The bank has the option to reduce or increase the EMI or extend the repayment period consequent upon changes in SBAR. In the event of a default in payment or any irregularity in account, the Bank reserves the right to levy a higher rate of interest as it deems fit.

16. Ex.B1, is the Statement showing the increasing and decreasing the interest rates from 31.03.2006 to 28.02.2014 wherein it shows that the interest rates are increasing and decreasing and as on 28.02.2014, the interest rate is 14.25%. Basing upon the said percentage of the interest the loan amount will be collected and basing upon the para No.3, page No.1 of the Ex.A1, the loan amount/EMI will be increased or decreased. As the Opposite Party – Bank is having upon option to increased/decreased EMI amount. Ex.A2 is the bunch of the statement of account of Opposite Party pertaining to the Complainant’s Car loan account No. 30107176914 wherein it shows that from 14.01.2011, the EMI amount is increased from Rs.6,803/- to Rs.7,202/- and the Complainant is paying the said EMI amount continuously till January 2014. Observing the EMI of Rs.7,202/- from 14.01.2011 to Jan, 2014 along with the Ex.A9 Bank statement of the complainant’s State Bank of Hyderabad account for deducting Rs.112/- per ECS debit return charges and the para No.1 & 3 of Page No.1 in Ex.A1 it seems the complainant has not maintained the minimum balance amount as per the EMI Payment of Rs.7,202/- pm. So that is the reason as the Complainant has not maintained the minimum balance account the amount of Rs.112/-. Five months has been deducted from his bank account. So for that the complainant cannot blame the Opposite Party for the fault on his part. With regarding to the collection of the excess charges i.e. Rs.7,202/- per each instalment when the complainant himself is admitting the Ex.A1 Agreement, wherein the terms and conditions regarding enhancement and reduction of the interest rates is mentioned in para No.1 & 3 of page No.1 in Ex.A1, the complainant is not having right to question the Opposite Parties as the Opposite Party bank has acted upon rightly as they have a legal right to collect the EMIs from the Complainant which has to be paid by him towards car loan account. So viewing the contention of the complainant and the Ex.A1 Agreement along with the defence of the Opposite Parties, we conclude that there is no fault on part of Opposite Parties.
17. Observing the case law i.e. R.P.No.3761/2012 dt.3.2.2014 it seems in that case the City Bank has seized the vehicle and sold the vehicle to some others and thereby the Opposite Parties has been penalized for granting compensation to the Petitioner. But in this matter the vehicle is with the Complainant only, so the complainant cannot rely upon case law in R.P.No.3761/2012.

18. As per the case law III (2012) CPJ (4) Supreme Court between Surya Raj Singh Vs Siddivinayaka Motors and another, wherein the matter is related to the Hire Purchase Agreement, the Hon’ble Supreme Court held that “the person who takes the loan retains the vehicle only as Bailee/Trustee taking possession of the vehicle on ground of non-payment of instalment is legal right of financier”. So basing upon the principle upon the case law, the Opposite Parties has right to seize the vehicle if at all the Complainant does not pays the loan amount.

19. Observing the Ex.A8, dt. 7.7.2004 it seems as on 7.7.2004 the Complainant is due by Rs.18,085/- to the Opposite Parties and as seen from the Counter vide Para No.16 of the Opposite Parties it seems as on 28.8.20014  complainant is due for an amount of Rs.19,616/- along with subsequent interest and costs to the Opposite Party bank.

20. Observing the Ex.A1 Agreement it seems when the Complainant is admitting the Ex.A1 Agreement he has to abide the terms and conditions and he has to pay the loan amount to the Opposite Parties.

21. Regarding to the IA 212/2014 as the Complainant has prayed for the two reliefs (1) with regarding to restraining the respondent/opposite party bank not to interfere in peaceful possession of car and (2) not to adopt the ECS mode recovery till disposal of the CC. As per legal procedure two reliefs cannot be sought in an Interim application and on this ground the I.A. is liable to be dismissed and that too the vehicle in dispute is interlinked with main contentions of complaint. Hence I.A. is dismissed.

22. In the light of the facts and observing the contentions of the both sides along with Ex.A1, Agreement, Ex.A2, the complainant’s car loan bank statement along with Ex.A9, State Bank of Hyderabad statement and Ex.A8 letter dt.7.7.2014 we are of conclusive opinion that there is no fault of Opposite Party bank and the complaint is dismissed.

     

23. In the result the Complaint is dismissed. No order as to costs.

    Dictated to the Stenographer, transcribed by him, corrected by me and pronounced  by us in the open Forum on this the 30^th day of January, 2015.

                                

     

     

             Sd/-                                                                      Sd/-

     President (FAC)                                                        Member                                                                                                        District Consumer Forum – I,

                                                                                  Visakhapatnam

    APPENDIX OF EVIDENCE

     

     

    Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties:

       Sd/-                                                                        Sd/-

President (FAC)                                                        Member                                                                                                        District Consumer Forum – I,

                                                                              Visakhapatnam