Revision petitioner/M/s. Kotak Mahindra Bank has challenged the order of West Bengal State Consumer Disputes Redressal Commission in FA No.223 of 2011. The State Commission has upheld the order of the Kolkata Consumer Disputes Redressal Forum, directing RP/OP to refund a sum of Rs.33,450/- to the respondent/Complainant. The order of the District Forum has been modified to the extent that the direction to pay compensation of Rs.5000/- has been set aside and the costs of Rs.2000/- awarded by the District Forum has been reduced to Rs.1000/. To this extent, the appeal of the RP/OP has been allowed partially by the State Commission. However, on the main issued of refund of Rs.33450/-, there is unanimity of view between the District Forum and the State Commission. Both have ordered its refund.
2. The matter arose out of loan of Rs.301205/- taken by the Complainant from the RP/OP Bank. It was to be paid in 36 instalments. After some default on repayment of the EMIs, the two parties negotiated the matter and research a settlement on 26.03.2009. Under the settlement, the complainant was required to pay Rs.140000/- in four instalments. As seen from the record, the agreed payment schedule was as follows:-
i) Rs.12,000/- within 30.03.2009
ii) Rs.20,000/- within 30.03.2009
iii) Rs.50,000/- within 30.05.2009
iv) Rs.58,000/- within 30.06.2009
3. The case of the Complainant was that the first three instalments were paid on time. Third instalments was paid with an additional sum of Rs.8000/-. Thus, the balance payable by 30.06.2009 was Rs.50,000/-, which was paid as per the following details:-
i) Rs.25,000/- on 01.07.2009
ii) Rs.10,000/- on 15.09.2009 and
iii) Rs.15,000/- on 26.10.2009. 4. Accordingly, the entire agreed sum of Rs.140,000/- stood fully paid, though the last instalments of Rs.50,000/- was paid with some delay. Set back in business was explained as reason for this delay. In the meanwhile, the respondent/Complainant discovered from the bank statement of account that three monthly ECS payments of Rs.11,150/- each had also been deducted by the bank, without any prior intimation. This amounted to excess repayment to the extent of Rs.33450/-. This is the amount which has been ordered to be refunded by the fora below. While doing so, the District Forum has observed that:-
“That the petition of complaint is allowed ex parte with cost against the o.p. M/s. Kotak Mahindra Bank Ltd. O.p. is directed to refund the amount of Rs.33450/- (Rupees thirty three thousand four hundred fifty) only to the complainant along with interest @ 8% p.a within 45 days from the date of communication of this order and to pay compensation of Rs.5000/- (Rupees five thousand) and litigation cost of Rs.2000/- (Rupees two thousand) only positively within 45 days from the date of communication of this order, failing which it will carry further interest @ 10% p.a. till full realization.”
Similarly, the State Commission has held that:-
“We have heard the submission made by both sides and perused the materials on record. From the materials on record it appears that the settled amount of Rs.1,40,000/- was paid by the respondent/complainant. Vide cheque dated 29/06/09 the respondent paid Rs.25,000/- and thereafter the sum of Rs.10,000/- was paid vide cheque dated 05/09/09. There was the gap of two months and it is contended by the respondent that due to serious illness he could not pay the said insltament on time. Since the settled amount was paid by the respondent, we are of the considered view that the bank ought not to have deducted three instalments by way of ECS, in as much as, there was no intention on the part of the respondent to avoid payment.”
5. The records, as submitted by the revision petitioner, have been perused and Mr. Saurabh Leekha, Advocate has been heard at length on behalf of the petitioner/ Kotak Mahindra Bank. The main argument advanced in justification of the action taken by the bank is that the action of the fora below tantamounts to modifying the terms of the settlement reached between the parties. It is also contended that upon default in timely repayment as per the terms of the settlement, the terms and conditions of the original loan had automatically got revived.
6. The District forum has categorically observed that the RP/OP did not contest the case and therefore was treated ex-parte. In this background, a specific query was put to the counsel for the revision petitioner whether the contention raised in the revision petition was a ground before the District Forum. Learned counsel accepted that it was not raised as the petitioner was treated ex-parte. The contention was therefore raised before the State Commission. Learned counsel however, accepted that no specific justification was offered before the State Commission for deduction of three ECS instalments. It is thus, clear that the contention now raised is a mere attempt to improve the case of the OP at the stage of revision.
7. The fact remains that the petitioner/bank has received payment through the ECS arrangement under the original loan agreement as well as separate payments through cheques, under the settlement. Details as already examined show that the entire amount of Rs.140000/- has been received under the settlement, though the last 25,000/- with a delay of few months. Equally, there is nothing to show that the amount collected under the ECS arrangement, has been recredited to the account of the Complainant after 26.10.2009, when the entire agreed sum of Rs.140,000/- had already been received by the bank.
8. The revision petitioner has sought to rely upon the decision of Hon’ble Supreme Court in Export Credit Guarantee Corpn. of India Ltd. Vs. Garg Sons International, I (2013) SLT 614 in which it was observed that while construing the terms of a contract of a insurance, the words used therein must be given paramount importance, and it is not open for the court to add, delete or substitute any words. The above decision came in the context of a contract of insurance to cover default in payment by a foreign importer. Clause 8 (b) of the Insurance Agreement stipulated the period within which the insurer was to be informed about default, if any, committed by a foreign importer. The ECGC rejected the claim on the ground of non-compliance of this stipulation. It was held that the insured cannot claim anything more than what is covered under the policy.
9. The facts of the case of the revision petitioner stand on a very different footing. The bank has received payments under the subsequent settlement and at the same time granted to itself the ECS payment benefit under the original loan agreement. The fact of excess payment being received in the process is apparent from the record. Therefore, the revision petitioner cannot seek any protection under the terms of the decision of the Apex Court cited on his behalf.
10. In the result, the revision petition is held to be completely devoid of any merit and is dismissed as such. No order as to costs. | 
