Branch Office Kottayam,
Near K.S.R.T.C bus stand, Kottayam-1
3. Vishnu Prasad, Customer Relation Manager
Bajaj Finserv, Branch Office Kottayam
Near K.S.R.T.C bus stand Kottayam-1
Ph-9446777358.
(By Adv.Jaison Paliyil)
O R D E R
Sri.Manulal.V.S, President
The Complaint is filed under section 35 of the Consumer Protection Act 2019.
Crux of the complaint is as follows:
The first complainant who is now residing at Texas in U.S.A on 03-11-2016 availed a loan from the opposite parties with consumer Id no.32695249. The second complainant is the supervisor of the first complainant’s property and the agent of the first complainant. First complainant availed one housing loan for an amount of Rs.27,89,000/- and another property loan for an amount of Rs.14,28,250/- and a personal loan for an amount of Rs.57,578/- from the opposite parties. At the time of availing the loan, the opposite parties informed that the interest rate of the home loan was only 7.5% and interest rate of the property loan was 10.25% and interest rate of the personal loan was 11.2%. As per the information and offer the complainant availed the home loan for an amount of Rs.27,89,000/- from the opposite parties. The opposite parties calculated the EMI as Rs.22,468/- as per their on line interest rate calculator. As per web portal calculator total interest calculated was only Rs.26,03,307/- and the total amount with interest was only Rs.53,92,307/-.
The EMI started on 02-01-2017 and on the same day itself the opposite parties issued a bill of Rs.31,229/- as EMI. When the complainant objected the same opposite parties informed the complainant that the first EMI was a mistake and they were ready to reduce the amount. Thus on the next months the EMI was reduced and on 02-02-2017 issued a bill of Rs.28,789/-. When the complainant raised objection for the same opposite parties informed the complainant that it is a mistake in the software and they were ready to adjust the amount in the future installments. According to the complainant as per this condition he has been remitting the amount. Matters being so, when the first complainant took a statement of account from the bank it was found that the opposite parties have been unilaterally varied the interest rate and charged 12.49% of interest instead of 7.5% and for the second loan charged 11.20% instead of 10.25%. It is averred in the complaint that the rate of interest of the home loan never touched in the level of 12.40% in the near vicinity. The opposite parties are collecting more amounts by imposing interest rate at 12.40% instead of the agreed interest rate of 7.5%. It is alleged in the complaint that after taking the loan amount from the complainant by head of bounce charges, penal interest over due charge etc. Imposing of Rs.3,000/- in the head of bounce charge is illegal and against the public policy. The opposite parties had collected 344 undated cheque leafs from the complainant and they are sending that cheque leafs without the prior information to the complainant. It is averred in the complaint that the opposite parties has no authority to collect Rs.3,000/- as bounce charges. It is further averred in the complaint that at the time of availing the loan the opposite parties assured that they would not collect any hidden charges from the first complainant but after taking the loan they are imposing illegal penal charges upon the complainants in the head of penal overdue charges etc. The opposite parties did not give the moratorium for loan which was announced by government of India and Reserve Bank of India due to the covid pandemic situation.
It is averred in the complaint that collecting of amount with interest rate of 12.40% instead of 7.5 % and 11.20% instead of 10.25% are illegal and amounts to deficiency in service. Hence this complaint is filed by the complainant praying for an order to direct the opposite parties to regularize the loan account of the first complainant at the rate of 7.5% interest or the base rate interest of home loan declared by the reserve bank of India and reimburse the excess amount collected as interest and to pass an order to direct the opposite parties have no authority to impose Rs.3,000/- as bounce charge of EMI and remit back the full amount collected as bounce charges, and to declare the opposite parties have no authority to collect penal overdue charges and to give the benefit of the moratorium . It is further prayed to direct the opposite parties to pay Rs.1,00,000/- as compensation along with Rs.20,000/- as cost of litigation.
Opposite parties appeared before the commission and filed version contending as follows:
The first complainant is not a consumer of the opposite parties as per the provisions of the consumer protection act. The second complainant is not known to the opposite party. The complainant should be put to strict proof regarding the authorization of the first complainant.
According to the agreement any charge in subject of Schedule I of the agreement is to be communicated between the parties in written format. Therefore the second complainant is not competent to present the complaint on behalf of the first complainant.
The alleged complaint is a dispute coming under the securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002, and outside the jurisdiction of the consumer protection act.
The complainant had transferred a housing loan from Dhanalakshmi Bank for an amount of Rs.14,28,250/- on 30-11-2016. On the same day he applied for another loan with the security of the same immovable property for an amount of Rs.27,89,000/-. The rate of interest agreed was 11.75% against the loan of Rs.14,28,250/- and 12.40% against the loan of Rs.27,89,000/- and that against Rs.57,578/- was of 11.20%.
The allegation in the complaint that Emi was only Rs.22,468/- and as per web portal calculator total interest calculated was only Rs.26,03,307/- and the total amount with interest was only Rs.53,92,307/- is false. The emi as per the agreement was Rs.28,789/-. The first installment included the broken period interest and hence came to around Rs.31,229/- and this was duly intimated to the complainant. The agreed EMI was Rs.28,789/- and Rs.13,825/- respectively for two home loans. The opposite parties clearly explained the rate of interest and their conditions mentioned in the loan agreement /sanction letter and post satisfying himself on the conditions, the complainant optes for floating rate of interest at BFL FRR by way of putting his signature on the loan agreement and sanction letter. The opposite parties have never charged exorbitant interest and through communication dated
10-11-2018 and 01-12-2019 has duly informed the complainant regarding the change in the rate of interest.
The opposite parties had not collected 344 undated cheque leaves from the complainant and not sent it for collection without prior intimation to the complainant. As per agreement, the borrower must indemnify the lender for any bounce charges (Rs.3,000/-) in case of cheque default in the ECS payments system. The opposite party has not received any excess amount from the complainant. The complainant has neither demanded or opted for the benefit of moratorium during the Covid -19 pandemic. There is no deficiency in service and violation of natural justice on the part of the opposite parties.
Evidence of this case consists of deposition of Pw 1 and exhibit A1 to A4 from the side of the complainant. No oral or documentary evidence on the part of the opposite parties.
On the basis of the contention of the rival parties we framed the following issues for consideration.
(1) Whether the complaint is maintainable or not/
(2) Whether the opposite parties committed any deficiency in service as alleged?
(3) Regarding the relief and costs?
Point number 1.
The complaint is resisted by the opposite parties that the complaint is not maintainable for the reason that the second complainant has no locus standi to file this complaint for and on behalf of the first complainant. Pw1 who is the second complainant would depose during the cross examination that Exhibit A4 agreement has signed by the first complainant and his wife. He further deposed that the non issuance of authorization by the first complainant infavour of him that the first complainant was not aware about the acts of the opposite parties when he was in Kerala. He further deposed that there is no sufficient reason for non issuance of authorization by the first complainant in favour of him to file this complaint.
It may be noticed that the 'agent' as defined in the Central Consumer Protection Rules, 1987 means 'a person duly authorized by a party to present any complaint, appeal or reply on its behalf before the National Commission' and this definition of 'agent' is same as in the Rules of Kerala. Thus a complaint can be filed before a Consumer Forum by an agent who is duly authorized by a consumer for the same. Herein case in hand the second complainant who affixed his signature on the complaint and vakkalath did not produce any authorization from the first complainant to file this instant complaint for and on behalf of the complainant. Moreover the complainants have no case that the second complainant is party to the disputed transaction between the first complainant and the opposite parties. The second complainant is not a consumer of the opposite parties. In the absence of the duly executed authorization the second complainant have no locus standi to file this complaint for and on behalf of the first complainant his agent. Therefore we are of the opinion that the complaint is not maintainable before this commission.
Point number 2 and 3.
As the point number 1 is answered against the complainant and found the complaint is not maintainable before this commission we are of inclined to look into point number 2 and 3.
In the light of above discussion we dismiss the complaint as not maintainable.
Pronounced in the Open Commission on this the 28th day of January 2023.
Sri.Manulal.V.S, President sd/-
Smt.Bindhu.R, Member sd/-
Sri. K.M. Anto, Member sd/-
Appendix
Exhibits marked from the side of complainant
A1- Copy of the statement of loan account dated 24.07.2020
A2- Copy of the statement of loan account dated 24.07.2020
A3- Copy of Mortgages loan agreement for home loan
A4- Original of mortgages loan agreement for home loan
A4 (a)- Demand promissory notes dated 29.11.2016.
Sworn statement from the side of complainant
Pw1- Sunny Mathew, S/o Mathew, Chamakkalayil (H), Kanakkari P.O
By order
sd/-
Assistant Registrar
