Punjab

Ludhiana

CC/19/196

Anita Sharma - Complainant(s)

Versus

State Bank of India - Opp.Party(s)

Ajay Chawla Adv.

04 Jan 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:196 dated 24.04.2019.                                                         Date of decision: 04.01.2024.

 

Smt. Anita Sharma aged about 61 years wife of Shri Shiv Kumar Sharma, resident of Village Rurki, Fatehgarh Sahib now at present resident of House No.19, White Avenue, Hambran Road, Near Sai Dham, Ludhiana.                                                                                                       ..…Complainant

                                                Versus

1. The Branch Manager, State Bank of India, Bharat Nagar Chowk, Ludhiana.
2. State Bank of India (Real Estate and Housing Business Unit), State Bank of India, Corporate Centre, Madame Cama Road, State Bank Bhavan, Nariman Point, Mumbai-400021, Maharashtra through its M.D./CEO/Director/Authorized Signatory.                                                                                                                            …..Opposite parties 

Complaint Under section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Ajay Chawla, Advocate.

For OPs                         :         Sh. Anil K. Saggar, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant who is a senior citizen, intended to shift her resident from Village Rurki, Fatehgarh Sahib to Ludhiana and she was looking for home loan for construction of house at minimum interest rate and minimum EMI, for which she visited number of private and Government Banks. OP1 bank represented the complainant for providing home loan with minimum rate of interest for 11 years having moratorium period for 1 year having EMI of Rs.29,103.97P. The complainant further stated that on the allurement of OP1, she availed loan facility as she was in dire need of home loan for construction of new house at Ludhiana. OP1 vide account no.65259085352 sanctioned the loan of Rs.30,00,000/- started from 01.07.2016 till 01.06.2026 having EMI of Rs.29,104/- which was to be started from 01.06.2017. As per settled terms and conditions between OP1 and the complainant, an amount of Rs.29,200/- was being deducted from account of the complainant bearing No.004701000028769 maintained by her in Indian Overseas Bank, Clock Tower, Ludhiana through ECS. The amount was being credited in account of OP1 since 18.06.2017.

                   The complainant stated that on 20.04.2019 at 07.30 PM she received a phone call from Ms. Sunita Singla claiming herself to be manager of OP1 who told the complainant that her account is going to be categorized as NPA since installment which is deducted from the said account is much lower than the installment reassessed by the auditor team of OP1. The complainant shocked to hear and requested Ms. Sunita Singla that she is unable to come in the bank at this time but she refused to adhere the genuine request of the complainant and threatened the complainant to deduct the amount from her another joint account with her husband having balance of Rs.95,000/- and to credit the same in her loan account in order to prevent the loan account to be categorized as NPA. The complainant requested Ms. Sunita Singla not to do so and told her that she would come at 10.00 AM on Monday to meet her but she did not listen to her request. After 20 minutes of call, the husband of the complainant received a message of debiting Rs.50,000/- which was illegal. On Monday i.e. 22.04.2019, the son of the complainant namely Sushant Sharma approached OP1 regarding clarification about home loan account and he astonished to know that OP1 has misrepresented and cheated the complainant by adopting illegal method as at the time of sanctioning the loan OP1 told that EMI of Rs.29,104/- even though OPs are deducting EMI of Rs.29,200/- and now the OPs without any intimation and consent of the complainant have illegally raised the said EMI of Rs.39,838.06P. The act and conduct of the OPs amounts to deficiency in service, which has caused mental harassment to the complainant. The complainant sent a legal notice to the OPs through Sh. Ajay Chawla, Advocate but to no avail. Hence this complaint whereby the complainant has prayed for restraining the OPs to deduct any re-assessed EMI of Rs.39,838,06P instead of committed EMI of Rs.29,104/- and also to issue directions to the OPs to refund Rs.50,000/- in account of husband of the complainant. The complainant also claimed compensation of Rs.2,00,000/- besides damages of Rs.2,00,000/- and litigation expenses of Rs.22,000/-.

2.                Along with the complaint, the complainant also filed application for grant of relief of ad-interim injunction so as to restrain OPs from deducting amount of Rs.39,838/- instead of Rs.29,104/-. Vide order dated 26.04.2019, the OPs were restrained from deducting EMI of Rs.39,838/- and were directed to deduct EMI of Rs.29,200/- as agreed.

3.                Upon notice, the OPs appeared and filed joint written statement and by taking preliminary objections assailed the complaint on the ground of maintainability; the complainant being estopped by her act and conduct; the complaint being bad for non-joinder and mis-joinder of necessary party; suppression of material facts; lack of cause of action etc. The OPs stated that the complainant and her husband Shiv Kumar Sharma after visiting various banks had approached them (earlier known as State Bank of Patiala) for sanctioning housing loan of Rs.30,00,000/- on 13.05.2016. The loan application was considered by SBI, RASMECCC, Ludhiana and sanctioned loan of Rs.30,00,000/- to the complainant with EMIs schedule of 120 of Rs.41,589/-(without insurance) along with interest @9.6% and other charges. The borrowers are further insured with SBI Life Insurance and total premium was Rs.2,76,690/- and as such, total EMIs with insurance comes to Rs.45,425/-. The complainant and her husband accepted the EMIs schedule and other terms and conditions and executed the security documents dated 18.06.2016 and also equitable mortgage the property in order to secure the repayment of above said credit facilities in favour of the OP bank. The OPs further stated that the complainant and her husband availed housing loan of Rs.30 Lakhs vide loan account No.65259085352 and installments were commenced after 12 months of completion of construction or after 18 months from the disbursement of Ist installment which is earlier. The complainant gave the standing instruction for deduction of EMIs from account No.004701000028769 maintained with Indian Overseas Bank, Clock Tower, Ludhiana through ECS. The Ops further stated that the complainant and her husband Sh. Shiv Kumar Sharma further applied for enhancement of housing loan of Rs.8,00,000/- and same was sanctioned to the complainant vide letter No.RACPC/HL/50182/375 dated 08.06.2017 repayable in 120 EMIs of Rs.9,919/- along with interest and other charges. The complainant and her husband executed further security documents dated 22.06.2017. The complainant and her husband availed loan of Rs.8,00,000/- vide account No.36965404422 and they gave standing instructions to the bank for deduction of the EMIs from their joint saving account no.5514024497 vide letter dated 22.06.2017. According to the OPs, the complainant had availed Rs.40,76,690/- (Rs.32,76,690/- + Rs.8,00,000/-) from the OPs and agreed to pay EMIs of Rs.45,525/- + Rs.9,919/- through their respective accounts. The OPs made deductions from the said accounts as per standing instructions of the complainant. The Ops further stated that the complainant is bound to make the payment of agreed EMIs and if in EMI the less amount is paid/deducted, in that eventuality, she is bound to pay the entire outstanding amount due of less amount paid/deducted and as per law and guidelines of RBI, the complainant is restrained from taking plea at any form of the EMI paid/deducted is correct one and at the time of coming into knowledge or shown in the system that less amount of EMI is paid/deducted the complainant in that eventuality is bound to pay the balance amount of EMIs and bound to make the payment of the correct EMIs as agreed. The EMIs of Rs.29,103.97P never settled at any occasion.  

                   On merits, the OPs reiterated the crux of averments made in the preliminary objections and factual submission. The OPs have denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                In support of her claim, the complainant tendered her affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents i.e. Annexure-C1 is the copy of her Aadhar Card, Annexure-C2 is the copy of Amortization schedule, Annexure-C3 is the copy of account statement of the complainant of account No.004701000028769, Annexure-C4 is the copy of account statement of home loan of Rs.30 lakh, Annexure-C5 is the copy of account statement of account No.65259085352, Annexure-C6 is the copy of account statement of accou9nt no.004701000028769 dated 31.08.2018, Annexure-C7 is the copy of Aadhar card of Shiv Kumar, Annexure-C8 is the copy of screen short of text message, Annexure-C9 is the copy of legal notice dated 23.04.2019, Annexure-C10 and Annexure-C11 are the postal receipts and closed the evidence.

5.                On the other hand, the counsel for the OPs tendered affidavit Ex. RW1 of Ms. Kiran Singh, Manager, State Bank of India, Fountain Chowk, Civil Lines, Ludhiana along with documents i.e. Ex. R1 is the copy of loan sanction letter, Ex. RW2 is the copy of insurance cover request letter dated 18.06.2016, Ex. RW3 is the copy of Arrangement Letter-Housing Finance, Ex. R4 is the copy of Memorandum of Agreement for Home Loan Granted to Pubic, Ex. R5 is the copy of acknowledgement of borrowers, Ex. R6 is the copy of consent letter dated 18.06.2016, Ex. R7 is the copy of sanction letter, Ex. R8 is the copy of arrangement letter dated 22.06.2017, Ex. R89 is the copy of Memorandum of Loan Agreement for Home Loan Granted to Public dated 22.06.2017, Ex. R10 is the copy of affidavit of declaration and indemnity as Annexure-A, Ex. R11 is the copy of affidavit as Annexure-B, Ex. R12 is the copy of loan agreement dated 22.06.2017, Ex. R13 is the copy of deed of undertaking, Ex. R14 is the copy of agreement dated 22.06.2017, Ex. R15 and Ex. R17 is the copy of statement of account No.65259085352 dated 11.10.2021, Ex. R16 and Ex. R18 is the copy of discharge quote and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statement, affidavit and documents produced on record by both the parties.

7.                The complainant along with her husband secured a Housing Loan of Rs.30,00,000/- and Rs.2,76,690/- for SBI Life Insurance Policy which was repayable in 120 months including 12 months of moratorium period. The operative part of sanction letter Ex. R1 is reproduced as under:-

With SBI Life Premium		Without SBI Life
Sh. Shiv Kumar Sharma is not eligible for SBI Life Rinn Raksha
Applicants	Smt. Anita Sharma	Smt. Anita Sharma
Loan Amount	Rs.30,00,000/-	Rs.30,00,000/-
SBI Life Premium	Rs.2,76,690/-	Nil
Total Loan Amount	Rs.32,76,690/-	Rs.30,00,000/-
Repayment Period	120 Months (including 12 months moratorium period)
Rate of Interest (floating)	9.60% floating, (MCLR 9.50% + Spread 0.10%) for Home Loan and SBI Life.
EMI for House Loan	Rs.41,589/-		Rs.41,589/-
EMI for SBI Life	Rs.3,836/-		Nil
Total EMI	Rs.45,425/-		Rs.41,589/-

 

The agreement for home loan was executed on non judicial stamp papers by the complainant and her husband with the bank. The operative part of clause 2b reads as under:-

“2b.  I/W shall repay the amount of loan as per arrangement/sanction letter which forms part of this Agreement in 108 Equated Monthly Installments of Rs.41,589/- or the last 12 months and thereafter installment will be rest till the entire loan with interest is fully repaid. The equated monthly installment also includes interest component. The Bank reserves the right to levy prepayment charges of 2% of the amount prepaid in respect of pre-closure of Home Loans before expiry of the original tenure of the loan.”

Perusal of the statement of account on record shows that the complainant had been paying the installment of Rs.29,103.97P.

8.                The complainant along with her husband also obtained an enhanced loan of Rs.8,00,000/-        to be repaid in equated monthly installment of Rs.9919/- commencing from July 2017 as per arrangement letter Ex. R8.  Again an agreement was executed on non-judicial stamp papers prepared by the complainant and her husband Sh. Shiv Kumar Sharma.

9.                The counsel for the complainant while referring to the documents Ex. C2 and Ex. C4 contended that the loan of Rs.30,00,000/- was repayable by 108 monthly installments of Rs.29,104/- each and the signatures on the loan documents were obtained by the officials of the OPs on blank papers representing that these are the formalities which the complainant is supposed to comply with. Further there is wrongful deduction of Rs.50,000/- by the OPs.

10.              On the other hand, the counsel for the OPs contended that there is overwhelming documentary evidence voluntarily executed by the complainant and her husband after reading  and understanding the terms of the agreement/documents and the complainant agreed to pay an EMI of Rs.41,589/- at the time of sanctioning the loan of Rs.30,00,000/-. He further contended that the EMI of Rs.29,103.97 was never settled.

11.              We have heard the rival contentions of the counsel for the parties and have gone through the record.

12.              All the documents relating to the sanctioning and disbursement of the loan are duly signed in English by the complainant and her husband on each and every page. According to the complainant, her husband is a retired police officer. So at the first instance, it can be safely concluded that neither the complainant nor her husband is layman and they are educated persons. The Judicial stamp papers on which the loan documents were executed were also supplied by them to the OP bank. Vide letter Ex. R2 and Ex. R5, they have acknowledged the receipt of copy of sanction letter and letter of arrangement containing most important terms and conditions and further endorsed that they have understood the scheme of loan availed by them. The complainant has not placed any document on record to show that they had moved an application before any civil, police authority or superior bank officials stating therein that their signatures were obtained on blank papers by the officials of the bank. It appears that for the first time an attempt to make a case before this Commission they have propounded the blank paper theory for which this Commission is not inclined to accept for the reason mentioned hereinbefore. Further the documents i.e. amortization schedule Ex. C2 and one document Ex. C4 does not bear the signature or seal of the OPs and these documents have just been self attested by the complainant. The date mentioned in Ex. C2 as run date is 22.04.2019 and Ex. C4 is undated. The OPs did not own these documents to be issued by officials of their bank. As such, no reliance can be placed upon these documents and it cannot be said that the EMI for repayment of loan of Rs.30,00,000/- was Rs.29,104/- or the OPs can be restrained from deducting the EMI over and above of Rs.29,104/-.

13.              The another contention of the complainant that Rs.50,000/- was illegally deducted is also devoid of any merits or substance. The said amount was deducted from the account of husband of the complainant as per mandate given by the complainant. The husband of the complainant is a retired police officer, must have received a message for this deduction. The counsel for the complainant rather refers to the statement of account and contends that the complainant was required to pay the interest during the period of moratorium but no such amount of interest was paid by the complainant. So the deduction of Rs.50,000/- was made so that their account may not be categorized as NPA (None Performing Asset). We find force in the contentions of the counsel for the OPs and conclude that the deduction of Rs.50,000/- was not unauthorized. The OPs have acted strictly as per terms and conditions of the loan agreement which has also a binding effect on the complainant as well. Even the initial onus to prove the deficiency in service was upon the complainant who failed to discharge the same.

14.              In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

15.              As a result of above discussion, the complaint fails and the same is hereby dismissed. Interim order dated 26.04.2019 stands vacated. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

16.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

 

(Monika Bhagat)                    (Sanjeev Batra)                      Member                                  President   

 

Announced in Open Commission.

Dated:04.01.2024.

Gobind Ram.