27.05.2016

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            This Appeal u/s 15 of the Consumer Protection Act, 1986 has been preferred by the OP No. 1-Bank assailing the judgment and order dt. 19.3.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Howrah, in Complaint Case No. HDF 228 of 2013, directing the OP Nos. 1 & 2 to refund jointly and severally to the Complainant excess amount of Rs. 12,072/- with interest @ 9% per annum from June, 2013 as also to pay to the Complainant Rs. 5,000/- as compensation and Rs. 2,000/- as litigation cost within one month from the date of the order, failing which the entire amount shall carry an interest @ 9% per annum for the entire period of default.  Also, the Complainant was directed to start repayment, within thirty days, of the balance instalments of EMIs @ Rs. 8,860/- as per ‘approval letter dated 14-06-2011’.

          Facts of the case, as appearing from the materials on records, are, in a nutshell, that the Respondent No. 1/Complainant purchased a ‘Maruti WagonR – VXI’ from the Respondent No. 2/OP No. 2 against the consideration of Rs. 3,82,163/-, out of which the Respondent No. 1/Complainant paid Rs. 62,163/- by cash and Rs. 3,20,000/- through loan (A/C No. 06262010017950) taken from the Appellant/OP No. 1.  The said loan was to be repaid by the Respondent No. 1/ Complainant through ECS in 60 EMIs of Rs. 6,860/- each as per Computerized Sanction Letter dt. 14.6.2011 of the Appellant/OP No. 1-Bank as averred in the Petition of Complaint.  After payment of some EMIs through the ECS, the Respondent No. 1/Complainant noticed that the Appellant/OP No. 1-Bank had realized EMIs @ Rs. 7,363/- instead of Rs. 6,860/- as offered by the Appellant/OP No. 1-Bank in its Computerised Sanction Letter dt. 14.6.2011 and thus realized an excess amount of Rs. 12,072/- in total till then.  Then the Respondent No. 1/Complainant requested initially orally and then by Lawyer’s letter dt. 13.6.2013 the Appellant/OP No. 1-Bank to settle the dispute regarding the amount of the EMIs, but without any success.  With this factual background, the Complainant moved the Complaint concerned before the Ld. District Forum which passed the judgment and order impugned in the aforesaid manner.  Aggrieved by such order the OP No. 1-Bank has preferred the present Appeal.

          The Ld. Advocate for the Appellant/OP No. 1-Bank submits that it is not a fact that the Sanction Letter dated 14.6.2011, as referred to both by the Respondent No. 1/Complainant and the Ld. District Forum in its order, demonstrates that the EMIs of the loan in question were of Rs. 6,860/- since the Respondent No. 1/Complainant failed to produce the said Sanction Letter to substantiate his such claim.  The Ld. Advocate adds that rather it is substantiated by the Loan Agreement dated 17.6.2011, duly signed by both the Respondent No. 1/Complainant and the Appellant/OP No. 1, which is binding upon both the parties involved, but not the Sanction Letter, that the EMIs were of Rs. 7,363/- each. 

          The Ld. Advocate further submits that the EMIs being of Rs. 7,363/- as per the Loan Agreement, there is no excess realization of Rs. 12,072/- as alleged by the Respondent No. 1/Complainant and as observed by the Ld. District Forum in its judgment and order.

          The Ld. Advocate finally submits that as the Arbitration Award was passed on 29.1.2014 in course of hearing of the Complaint Petition, i.e. before passing the judgment and order by the Ld. District Forum on 19.3.2014, so the Consumer Fora cannot pass any order to avoid the conflicting decision on the same matter.  In this context, the Ld. Advocate refers to a decision of the Hon’ble National Commission in The Installment Supply Ltd. Vs. Kangra Ex-Serviceman Transport Co. & Another, reported in 2006 (3) CPR 339 (NC).

          The Ld. Advocate concludes that in view of the above submission, the instant Appeal should be allowed and the impugned judgment and order be set aside and the Complaint be dismissed.

          On the other hand, the Ld. Advocate for the Respondent No. 1/Complainant submits that the Computerised Sanction Letter dated 14.6.2011 shows the EMIs as Rs. 6,860/- whereas the EMIs as per Loan Agreement dated 17.6.2011 appears to be of Rs. 7,363/- and such difference in the EMI amount is breach of banking rules and the same amounts to unfair trade practice by the Appellant/OP No. 1-Bank.

          The Ld. Advocate adds that the Respondent No. 1/Complainant is ready to pay the balance EMIs if the EMIs are of Rs. 6,860/- each as per Sanction Letter dated 14.6.2011.

          The Ld. Advocate further submits that as the arbitration proceeding, which was an after-thought of the Appellant/OP No. 1-Bank, was initiated on 18.11.2013, i.e. after filing the Complaint before the Ld. District Forum on 11.7.2013, so the Arbitration Award does not stand in the way of adjudication of the case by the Consumer Fora since remedy under the Consumer Protection Act, 1986 is in addition to the provisions of other laws for the time being in force.  In this context, the Ld. Advocate refers to a decision of the Hon’ble Supreme Court in Skypak Couriers Ltd. Vs. Tata Chemicals Ltd., reported in AIR 2000 Supreme Court 2008. 

          The Ld. Advocate finally submits that in view of the aforesaid submission, the Appeal should be dismissed and the judgment and order impugned be sustained.

          We have heard both the sides, considered their rival submissions and perused the materials on records.

          The key controversy in the case on hand appears to revolve round the Sanction Letter dated 14.6.2011 where the EMIs were stated to have been mentioned as Rs. 6,860/- instead of Rs. 7,363/- as mentioned in the Loan Agreement dated 17.6.2011.  But the materials on records do not appear to have contained the said Sanction Letter, even the observation of the Ld. District Forum in the impugned judgment and order does not indicate that the said Sanction Letter was produced by the Respondent No. 1/Complainant before the Ld. District Forum.  In the absence of the Sanction Letter, as taken recourse to by the Respondent No. 1/Complainant, the claim by the Respondent No. 1/Complainant in respect of mentioning in the Sanction Letter dated 14.6.2011 Rs. 6,860/- as EMI cannot be ascertained as full-proof.

          Such uncertainty in ascertaining the claim of EMIs by the Respondent No. 1/Complainant of Rs. 6,860/- instead of Rs. 7,363/- in the Sanction Letter lead us to conclude that the case should be remanded to the Ld. District Forum for ascertaining the same upon directing the Respondent No. 1/Complainant to furnish the Sanction Letter before the Ld. District Forum and also to the Appellant/OP No. 1-Bank to allow it to advance its views in respect of mention of Rs. 6,860/- as EMIs in the Sanction Letter in question.

          Consequently, the instant Appeal is allowed in part and the case is remanded to the Ld. District Forum for adjudication afresh upon giving direction to the Respondent No. 1/Complainant to furnish the Sanction Letter dated 14.6.2011, as relied upon by the Respondent No. 1/Complainant, before the Ld. District Forum and also to the Appellant/OP No. 1-Bank to allow it to advance its argument in respect of the said Sanction Letter.

          Be it clear that in the circumstances we refrain ourselves from expressing our views on the merits of the case on hand.