ORDER

PARAMJIT SINGH, PRESIDENT

1. Brief facts of the present complaint are that complainant is owner of plot measuring 6½ marlas situate in Karol Bagh, village Mansurwal Dona, tehsil & District Kapurthala upon which the complainant intended in raising the construction of the house for which he required housing loan, as such the complainant approached the respondent for a

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loan of Rs.5,85,000/- for raising construction on the said plot but he was given two options for the repayment of the loan amount one was to carry floating rate of interest which was to vary from time to time as per instructions of the Government and RBI and the other option given to the complainant was to opt for fixed rate of interest which was 1% more than the prevalent rate of interest on the house loan at the prevalent time.

2. That the complainant opted for the second option i.e. fixed rate of interest @ 8% p.a. with quarterly rest on the highest monthly balance repayable in monthly, installments of Rs.5595/- each as available at the relevant time in monthly installments. The loan account of the complainant was opened bearing No. 10562101084. The complainant had been regularly paying the installments. Thereafter the complainant availed another additional loan of Rs.1,75,000/- which was further granted and another loan account was opened vide account No.10562101095 which was also carrying interest at the rate of 8% and agreement dated 7.6.2005 in this behalf had been executed, out of which he availed loan only of Rs.50,000/-. However this loan has already been cleared by by the complainant. The complainant had moved an application in the month of April, 2007 requesting to fix the rate of interest as agreed and not to charge interest at the rate i.e. at 8% to 8.5%, then to 8.75, then to 9.25% and then to 9.75% even beyond that up to 14.5% without any authority or concurrence of the complainant. He raised protest vide letter dated 23.5.2009 requesting the bank that they

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have no right to claim the change rate of interest which already stand settled, but the bank has been delaying the matter on one pretext or the other.

3. That the respondent bank has got absolutely no right to change the fixed rate of interest as agreed in the original housing loan agreement referred to above. The respondent bank is wrongly charging excessive rate of interest than agreed under the original agreement referred to above. The complainant had been requesting the respondent bank to redress their grievances, but the bank has failed to so. This act of opposite party bank in charging the excessive interest from the complainant is deficiency in service. Hence the present complaint.

4. Notice of the complaint was issued to the opposite party who appeared and filed written statement raising as many as five preliminary objections. It is admitted that the complainant had purchased a plot and obtained a loan to the tune of Rs.5,85,000/- on 27.8.2004 on execution of the loan documents and it was agreed that fixed rate of interest which was only prevalent for a fixed period and not for all the times to come The clause was agreed but the complainant further agreed by executing a Memorandum of Term Loan of Agreement and by virtue of this Memorandum, the complainant agreed the clauses as mentioned in the written statement. The bank through its letter dated 15.5.2009 had informed the complainant wherein he was informed that due to volatility in the interest rate the bank shall reset fixed rate of interest in the end of every two years on the basis of fixed rate of interest. It is admitted

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that agreement dated 27.8.2004 was entered upon and the bank agreed to charge 8% interest from the borrower which rate of interest was prevalent at that time. The complainant further agreed to pay the higher rate of interest which in the option of the bank warrants charging of such enhanced rate of interest for which period as the bank may deem fit. So the bank is at liberty and have charged the enhanced rate of interest from time to time on the outstanding amount of the loan account of the complainant. The rate of interest is decided at the bank level keeping in view the directions of the Central Govt. and Reserve Bank of India and borrowing conditions of the market. Thus, there is no deficiency in service on the part of opposite party in charging the excess interest.

5. The counsel for the complainant has tendered into evidence affidavit of complainant Ex.C1 along with documents Ex.C2 to Ex.C19 and closed the evidence.

6. On the other hand the opposite parties tendered into evidence affidavit Ex. RA along with documents Ex.R1 to Ex.R24 and closed the evidence.

7. We have heard counsel for the counsel for the parties and have gone through the file. The counsel for the opposite party has relied upon Clause 2 (b) and 2(o) of the Memorandum of Agreement which reads as follows-

"Without prejudice to the bank, other rights and remedy, the bank shall be entitled to charge at its own discretion enhanced rate of interest on the outstanding in the loan account or a portion there of or for any default or irregularity on my/our part which in the

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opinion of the bank warrants charging of such enhanced rate of interest for such period as the bank may deem fit. The equated monthly installments will have to be paid till the entire loan and interest is fully repaid. Further the amount of equated monthly installments may change/increase as may be decided by the bank."

The counsel for the opposite party has further relied upon Clause 2 (o) which reads as under-

"I/we shall abide by all the terms and conditions of the sanction of loan to me/us as mentioned in the arrangement letter/sanction letter which forms part of this agreement and also to the rules for such loan which are now enforced and also which may be altered/revised/amended/added from time to time by the bank/Reserve Bank of India/Central Government/State Government".

8. On the other hand the counsel for the opposite party has argued that the bank is at its discretion to enhance the rates of interest on the outstanding amount in the loan account. He has relied upon the following para of the agreement executed between the complainant and opposite party-

"Without prejudice to the bank’s other rights and remedies, the bank shall be entitled to charge at its own discretion enhanced rates of interest on the outstanding in the loan account (s) of a portion thereof for any default or irregularity on my/our part which in the option of the bank warrants charges of such enhanced rates of interest for such period as the bank may deem fit. The equated monthly installments will have to be paid till the entire loan and

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interest is fully repaid. Further the amount of equated monthly installment may change/increase as may be decided by the bank."

9. The counsel for the opposite party pleads Clause 2 (b) of the Memorandum of Loan Agreement. The counsel for the complainant has argued that it is clearly mentioned in Clause 2 (b) that if any default or irregularity which in the opinion of the bank warrants charging of such enhanced rate of interest for such period as the bank may deem fit. The arguments of the counsel for the complainant is that unless there is any default or any irregularity committed on the part of the complainant, the enhanced rate of interest for such period as the bank may deem fit cannot be charged. The counsel for the complainant further argued that opposite parties have no where mentioned in their written statement that the complainant had committed any default or irregularity in payment of equated monthly installments and the installment may change/increase by the bank in case any default or irregularity is committed by the complainant. The counsel for the opposite parties relied upon Force Majeura Clause and following this Force Majeura Clause the bank had issued a letter dated 15.5.2009 and informed the complainant that due to volatility in the interest rate, the opposite party bank shall reset fixed rate of interest at the end of every two years and on the basis of fixed rate of interest prevailing then and the bank have also enclosed the certified copies of modify loan agreement to be executed by the bank and the complainant and the bank requested the complainant to deliver this modify copy of the loan agreement to be executed between the bank and the

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complainant and requested the complainant to deliver this modified copy of the agreement back to the bank within 15 days from the receipt of this letter, failing which shall be presumed that there is no objection for the amendment of the contract. This letter of the bank dated 15.5.2009 shows that the bank cannot change the rate of interest unless and until a modified agreement is signed between the complainant and the bank because the rate of interest can only be enhanced in the events of any default or irregularity committed by the complainant. The counsel for the complainant has also relied upon the Memorandum of Agreement dated 27.8.2004 and the letter of agreement whereby the borrower and the bank agreed to the terms and conditions of the loan advanced and the rate of interest to be charged from the complainant.

From the discussion above, we accept the complaint and direct the opposite party bank to charge fixed rate of interest as mutually agreed to between the parties because it cannot be changed especially when the complainant has not committed any default in repayment of equated monthly installment of the loan amount to the opposite parties. We direct the opposite party bank to adjust the amount of excess interest already charged by it while charging the floating rate of interest in the future Equated Monthly Installments payable by the complainant. Compliance of this order be made by the opposite party within one month from the receipt of copy of this

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order. Copy of the order be sent to the parties through registered post free of costs. File be consigned to the record room.

Dated: Gulshan Prashar Paramjit Singh

06-04-2010 Member President

Meena Walia Vs. State Bank of India

Present: Shri J.K. Behl counsel for the complainant

Shri Vinay Garg counsel for the opposite party

Arguments heard. Complaint allowed vide our separate

detailed order of today. Copy of the order be sent to the parties through registered post free of costs. File be consigned to the record room.

Dated: Gulshan Prashar Paramjit Singh

06-04-2010 Member President