Kundan Kumar Kumai

This is an appeal u/s 15 of   the Consumer Protection Act, 1986 preferred against the judgement and final order dated 15/12/2022, passed by the Ld. DCDRF, Dakshin Dinajpur in CC/31/2020.

Brief facts of the Appellant’s case, is that the Respondent/Complainant, during his service period had applied for a House Building Loan from the Appellant/Bank and the same had been sanctioned through sanction letter reference no. AGV/HBL/Others/3663/6230/05 dated 13/12/2005, for an amount of Rs.4,95,000 (Rupees four lakhs ninety-five thousand) only vide loan account no. 53920300000040 payable in 141 EMIs @ Rs.6020/- (Rupees six thousand twenty) only per EMI. It was agreed that the EMIs would be auto deducted from the salary account of the Respondent/Complainant, lying in the appellant/bank. But the Respondent/Complainant had paid more than 9,00,000/- (Rupees nine lakhs) only, which was in excess of the amount liable to be paid being Rs.6020/- x 141 = Rs.8,48,820/- (Rupees eight lakhs forty-eight thousand eight hundred twenty) only. The Respondent/Complainant on repeated occasions went to the appellant/bank and requested for closure of the loan account and the refund of the excess amount, which had been drawn from his salary account. But the appellant/bank on one pretext, or the other failed to comply. After a few days, it came to the notice of the Respondent/Complainant that the appellant/bank had deducted further Rs.6020/- (Rupees six thousand twenty) only per month for four consecutive instalments, in five months specifically from 10/01/2006 to 04/05/2006 and further from June 2006 to Sept. 2016 the appellant/bank had deducted instalment @ Rs.5550/- (Rupees five thousand five hundred fifty) only and from October, 2016, till date the appellant/bank  had deducted the instalment @ Rs.6,100/- (Rupees six thousand one hundred) only per month, without intimating the reason to the Respondent/Complainant, behind such automatic decrease and increase in the instalment amounts. The Respondent/Complainant had requested for refund of the excess amount and issuance of the Loan Clearance Certificate, but the appellant/bank failed to do so.

Finally, on 13/07/2018, the Respondent/Complainant sent a Legal Notice for closure of the HBL account and refund of the excess deducted amount. But on 31/07/2018 the appellant/bank intimated, that after the clearance of the outstanding due of Rs.1,49,362/- (Rupees one lakh forty-nine thousand three hundred sixty-two) only, the loan account would be closed. Finding no alternative, the Respondent/Complainant lodged a complaint before the Ld. Lower Forum, with necessary prayers mentioned in the complaint.

The appellant/bank contested the claim by filing written version, wherein they admitted to granting the loan amounting to Rs.4,00,000/- (Rupees four lakhs) only and 95,000/- (Rupees ninety-five thousand) only on 22/12/2005 and 12/01/2006, respectively. It was also stated that the Respondent/Complainant had availed several loans being Festival Loan, another extension of House Building Loan and also a Personal Loan, during the pendency of the House Building Loan. The Personal Loan account no.5390300003261 had become NPA, due to non-payment of the monthly instalment by the Respondent/Complainant till date. It was further mentioned that initially the EMI amount @ Rs.6020/- (Rupees six thousand twenty) only had been deposited and on the request of the Respondent/Complainant the EMI amount @ Rs.5550/- (Rupees five thousand five hundred-fifty) only per month had been deducted from the salary account till 01/09/2016. From 01/10/2016 the Respondent/Complainant requested the appellant/bank to deduct Rs.6100/- (Rupees six thousand one hundred) only per month till 02/06/2018. Thereafter, the HBL account had become inoperative and the outstanding dues in the said HBL account had accrued to Rs.1,49,362/- (Rupees one lakh forty-nine thousand three hundred sixty-two) only. Hence, the Respondent/Complainant without clearing the above dues would not be entitled to any Loan Clearance Certificate. The Respondent/Complaint had retired from his service and the last monthly salary had been received on 07/04/2018 and since May 2018 the Respondent/Complainant did not maintain sufficient balance. It was therefore prayed for dismissal.

After hearing both the sides and on perusal of the materials in the record, the Ld. DCDRF, Dakshin Dinajpur passed the impugned order, whereby the case below had been allowed in part and the appellant/bank had been directed to refund jointly or severally Rs.54,530/- (Rupees fifty four thousand five hundred thirty) only along with interest at the Bank’s rate from 28/02/2020 and were further directed to deposit Rs.5,000/- (Rupees five thousand) only towards compensation and Rs.5,000/- (Rupees five thousand) only towards litigation cost within 45 (forty-five) days from the date of the impugned order. The appellant/bank had also been directed to issue Loan Clearance Certificate.

Being aggrieved by the impugned order the appellant/bank preferred the instant appeal on the ground that the Ld. Forum below had erred in law and facts, while passing the impugned order.

                                                               Decisions with Reasons

Ld. Advocate for the appellant/bank at the time of final hearing, had submitted that the banks were duty bound to deduct the amount prompted by the centralized computer system and therefore the question of deducting excess amount did not arise. That apart, during the continuance of HB Loan, the Respondent had availed several loans being festival loan, another extension of House Building Loan and the Personal Loan also. The Respondent had not paid the monthly instalment of the Personal Loan Account and the said account had become NPA on 31/12/2018. In the instant account also, the EMI had been fixed at Rs.6020/- (Rupees six thousand twenty) only per month. But on the request of the Respondent the appellant/bank had deducted the EMI amount to Rs.5550/- (Rupees five thousand five hundred-fifty) only per month on and from 05/06/2006 which was deducted till 01/09/2016. From 01/10/2016 the EMI was revised to Rs.6100/- (Rupees six thousand one hundred) only, as per the request of the Respondent and the same was paid till 02/06/2018. Thereafter, the loan account had become inoperative and huge number of outstanding dues had accrued. Since then, the Respondent had prayed for Clearance Certificate, but the appellant/bank had informed the reasons for not making arrangements for closure of the loan account. In the meanwhile, the Respondent had superannuated and received the last salary in the month of April, 2018 and following which the Respondent did not maintain sufficient balance and the appellant/bank was compelled to impose minimum balance charge. Hence, unless the Respondent cleared the HB Loan and the PL, Loan Clearance Certificate could not be issued. In view of the above facts, the consumer case filed by the Respondent and the impugned order passed in the said case was a travesty of justice.

Ld. Advocate for the Respondent, on the other hand, has submitted that the loan amount of Rs.4,95,000/- (Rupees four lakhs ninety-five thousand) only had been obtained by the Respondent at a monthly instalment rate of Rs.6020/- (Rupees six thousand twenty) only and payable in 141 instalments, the total amount of which came to Rs.8,48,820/- (Rupees eight lakhs forty-eight thousand eight hundred twenty) only. But the Respondent had already paid more than 9,00,000/- (Rupees nine lakhs) only which was in excess of the amount payable as per the HBL sanction letter. The Respondent repeatedly requested for making arrangement for closure of the loan amount and for refund of the excess amount, but the appellant/bank failed to respond. From the deductions made by the appellant/bank it transpired that Rs.6020/- (Rupees six thousand twenty) only per month had been deducted from 10/01/2006 to 04/05/2006 and since June 2006 to Nov. 2016 the appellant/bank had deducted @ Rs.5550/- (Rupees five thousand five hundred fifty) only and since Oct. 2016 the appellant/bank had deducted @ 6100/- (Rupees six thousand one hundred) only, without any intimation to the Respondent regarding the decrease or increase of the interest amount from time to time. As the appellant/bank had already deducted in excess of the amount payable towards the HBL, there was no default in payment. Thus, the appellant/bank was duty bound to close the amount and make arrangement for refund of the excess amount and issuance of the Loan Clearance Certificate. The Respondent had even issued Legal Notice on 13/07/2018, but the appellant/bank vide letter dated 31/07/2018, replied that there was an outstanding dues of Rs.1,49,362/- (Rupees one lakh forty-nine thousand three hundred sixty-two) only and that they had issued a Pass-Book in order to communicate about the changes of the loan amount from time to time. He has also submitted that in total the appellant/bank had deducted Rs.9,01,350/- (Rupees nine lakhs one thousand three hundred fifty) only against the amount entitled to the appellant/bank amounting to Rs.8,48,820/- (Rupees eight lakhs forty-eight thousand eight hundred twenty) only, indicating an excess withdrawal of Rs.52,530/- (Rupees fifty-two thousand five hundred thirty) only. He therefore submits that the Ld. Lower Forum had passed the impugned order rightly.

At the very beginning, it needs to be pointed out that the HBL or the loan amount of Rs.4,95,000/- (Rupees four lakhs ninety-five thousand) only, is not disputed. The dispute has mainly arisen when the Respondent found that the appellant/bank had deducted in excess of the amount entitled to them by as much as Rs.52,530/- (Rupees fifty-two thousand five hundred thirty) only. The appellant/bank’s reasoning is that the amounts had been increased and decreased as per the instructions of the Respondent, but have contradicted their own contention when they filed Annexure – B, wherein it is shown that the interest rates would be fluctuating. They have then resorted to the contention that the Respondent was a habitual defaulter and the Loan Clearance Certificate could not be issued, due to non-clearance of the loan obtained under the Personal Loan category. There is no guideline forthcoming from the RBI to indicate that such a provision could prevail. In the absence of any such guideline as well as the document to show that the Respondent himself had resorted to increase and decrease in the instalment amount, the only point that remains, is whether the appellant/bank was justified in increasing and decreasing the instalment without any intimation to the Respondent. In this regard, the appellant/bank had relied in the judgement passed by the Hon’ble NCDRC in ICICI Bank Ltd. Vs. Vishnu Bansal on 23/11/2022, wherein it was held that non-informing the party did not amount to deficiency or unfair trade practice on the ground that the deductions would be known to the person who was servicing his loan on a regular continuing basis.

The latest position of law with regard to the intimation of the increase or decrease in the loan interest in long term loan periods, as espoused by the Hon’ble NCDRC, has gone against the Respondent. That apart, it is settled law that the Commissions are not empowered to look into the modalities of the agreements, entered between the parties and in the instant case the parties have agreed to a floating rate of interest and the facts also suggest that the EMIs were being deducted for a long period of time indicating that the case of the Respondent against the appellant, do not have much legs to stand upon. In the event, the impugned order also cannot be sustained for the same reason and is liable to be set aside.

     It is therefore

                                                                               ORDERED

That the instant appeal be and the same is allowed on contest.

The impugned order is hereby set aside.

Copy of the Order be sent to the parties free of cost.

Copy of the Order be sent to the Ld. DCDRF, Dakshin Dinajpur for necessary information.

Statutory deposits be returned from whom received.

Jt. Registrar, Siliguri Circuit Bench of WBSCDRC, to make necessary arrangement for refunding the above amount.