STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 351 of 2012 |
Date of Institution | : | 22.10.2012 |
Date of Decision | : | 05.02.2013 |
HDFC Bank Ltd., SCO 408-409, Sector 8, Panchkula.
……Appellant/Opposite Party No.1.
Versus
Sh. Surender Kumar Singal S/o Sh. Ram Parkash, R/o SCO 15, Sector 26, Chandigarh.
....Respondent/Complainant.
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Argued by:Sh. R. S. Bhatia, Advocate for the appellant.
Sh. Sourabh Goel, Advocate for the respondent.
PER MRS. NEENA SANDHU, MEMBER.
This appeal is directed against the order dated 18.01.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it accepted the complaint of the complainant and directed the Opposite Parties, as under: -
“9] Hence, in the light of above observations, the present complaint is allowed and the Opposite Parties are directed to:-
[a] Refund amount of Rs.3,67,965.75P and also pay an interest at the rate of 6% p.a. from the date of its receipt, till it is actually paid.
[b] Opposite Parties are also directed to refund Rs.13,281/- and also pay an interest at the rate of 6% p.a. from the date of its receipt, till it is actually paid.
[c] Opposite Parties are further burdened with Rs.15,000/- towards cost of litigation.
10] The above said order shall be complied within 30 days of its receipt; thereafter, the Opposite Parties shall be liable for an interest @18% per annum instead of 6% on the aforesaid amount till it is paid, except for the cost of litigation.”
2. The facts, in brief, are that the Complainant availed of home loan, against property, from Opposite Party No.1, by paying an amount of Rs.83,428/- as processing charges. It was stated that as per the letter dated 10.10.2007 (Annexure C-1) home3 loan of Rs.99 lakh was disbursed, to the complainant, against equal monthly installments of Rs.1,58,045/- each starting from 7.11.2007. It was further stated that the Opposite Party charged an amount of Rs.13,281/- as premium for insurance cover, on the said loan. It was further stated that the Floating Rate of Interest payable at that point of time was agreed upon was 12.50% p.a. and the tenure was for 102 months/8 ½ years. It was further stated that the 1st installment was paid by the complainant, in the month of November, 2007. It was further stated that the Opposite Party failed to supply copy of the insurance policy for which Rs.13,281/- was charged as premium. It was further stated that in the month of July, 2008, Opposite Party No.1 arbitrarily and without assigning any reasons, increased the rate of interest from 12.50% to 13.50% p.a. vide letter dated 8.7.2008 (Annexure C-2). It was further stated that the repayment schedule was also extended from 102 to 107 installments. It was further stated that at that point of time, the other financial institutions/Banks were charging much lesser rate of interest, ranging between 11% to 12% p.a. It was further stated that the Complainant approached Opposite Party No.1, to look into this matter and requested it to lower down the interest from 13.50%, but it failed to respond to this request. It was further stated that it was only in the month of September, 2009, that the Opposite Party, decreased the rate of interest by merely .25%. It was further stated that the Complainant obtained loan facility from another Bank in the month of December, 2009 and asked the Opposite Party, to provide a foreclosure statement. It was further stated that in reply to this request, the Opposite Party, supplied the statement in the month of Jan., 2010, wherein, pre-payment charges @4.41% on the outstanding principal, were shown to be charged, amounting to Rs.3,67,965.75P. It was further stated that the Complainant received the offer of sanctioned loan (Annexure C-4) from the Standard Chartered Bank, whereby he was offered the facility of loan against property @11.51% p.a., which was much lesser than what was being charged by the Opposite Party. It was further stated that this difference, in rate of interest, would have actually caused the Complainant a loss of Rs.8 lakhs, if he had continued with his loan, with the Opposite Party. It was further stated that in order to retain the Complainant with itself, the Opposite Party, had actually demanded an exorbitant foreclosure amount, to the tune of Rs.3.7 lacs. It was further stated that the Complainant made a representation to the Opposite Party, opposing the charging of foreclosure amount at the rate of 4.41% per annum, which was duly replied to by it, vide reply dated 9.4.2010, wherein it relied on clause in the loan agreement to this effect. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), directing the Opposite Party to refund Rs.3.67,965.75P realized as foreclosure amount alongwith interest; Rs.13,281/- charged as insurance premium, pay a sum of Rs.1 Lac for mental harassment & agony and Rs.50,000/- as costs of litigation, was filed.
3. The Opposite Party, in the written version, stated that the foreclosure amount, was actually demanded and realized, as per Clause 9 under heading “pre-payment” of the Agreement. It was further stated that the rate of interest being offered by another Bank was not binding on the contract, executed between the Bank, and its customer, as each and every loan agreement was a unique contract, between the parties. It was further stated that the rate of interest against the said loan was to be on floating rate basis. It was further stated that no demand was ever made by the Complainant for any policy document of the insurance subscribed, whereas, the payment of Rs.13, 281/- was made as per the instructions of the Complainant and the policy document was to be provided by the concerned Insurance Company. It was further stated that the rate of interest charged by the Opposite Party was variable because of the prevailing market conditions. It was further stated that the pre-payment charges were levled, in accordance with the agreement entered into by the Bank and the Complainant. It was denied that there was any deficiency, in rendering service, on the part of the Opposite Party, or it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.
7. Alongwith the appeal, an application for condonation of delay of 276 days (infact 232 days as per the office report), in filing the same (appeal), has been moved. The grounds, set up, in the application, by the applicant/ appellant, are to the effect, that the delay, in question, occurred due to lapse, on the part of the earlier Counsel, who inspite of the fact having not filed an appeal, was informing dates, regarding further proceedings. Thereafter, when the applicant/appellant, came to know of the actual position regarding non-filing of an appeal, it immediately approached the District Forum and obtained certified copy of the impugned order, on 26.07.2012. Thereafter, the appeal was filed. It was further stated that, as such, the delay in filing the appeal was, on account of the circumstances, beyond the control of the applicant/appellant. It was further stated that the delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
8. In reply, it was stated that, no doubt, as per the applicant/ appellant, the delay was caused, due to the non-filing of appeal by the earlier Counsel, yet subsequently also, after obtaining the certified copy of the impugned order from the District Forum, which was prepared on 19.07.2012 and supplied to the applicant/ appellant on 26.07.2012, the appeal was not filed within the stipulated period and the same was filed on 22.10.2012, i.e. beyond the prescribed period of limitation of 30 days, from the date of receipt of a copy of the order. Accordingly, a prayer for dismissal of the appeal, on the ground of delay itself, was made.
9. We have heard the Counsel for the parties, on the application, for condonation of delay, as also, in the main appeal, and have gone through the evidence, and record of the case, carefully.
10. First coming to the application, for condonation of delay, it has been established, beyond doubt, that the applicant/appellant, was negligent in taking due care and caution, in filing the appeal, even after obtaining the certified copy of the impugned order. At least the applicant/appellant could have filed the appeal within the prescribed period of 30 days, from the date of receipt of second certified copy of the order on 26.07.2013. On the other hand, he filed the appeal on 22.10.2012 i.e. again after a period of approximately 03 months, in addition to the delay, which had already occurred. It was obligatory, upon the applicant/ appellant, to take immediate steps, to ensure that the appeal was filed within the stipulated period from the date it obtained the second certified copy of the impugned order, as envisaged under Section 15 of the Act. However, the applicant/ appellant, just slept over the matter, and did not take steps to file the appeal, in time. It was, thus, a case of complete lack of bonafides and inaction, on the part of applicant/appellant.
11. In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-
“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”
12. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was held as under:-
“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”
13. As such, the applicant/appellant, acted in a highly irresponsible and negligent manner, and woke up from their deep slumber, after 232 days. The applicant/appellant did not act, with due diligence, resulting into delay of 232 days, in filing the appeal. It appears that the applicant/appellant has coined a false excuse, to cover up its lapse of not filing the appeal in time. The applicant/appellant was required to explain each day’s delay. It, however, miserably failed to explain the delay of 232 days, which is more than nine times, beyond the normal period of filing an appeal, under Section 15 of the Act. Complete in-action and lack of bonafides, of the applicant/appellant is writ large, on the face of record, and attributable to it, in filing the appeal, after a delay of 232 days. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 232 days, cannot be condoned. The principle, of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. The application is, thus, liable to be dismissed.
14. Once, it is held that the appeal is liable to be dismissed on the sole point of limitation, therefore, it will not be appropriate for this Commission to touch the merits of the case, as the Hon’ble Apex Court in State Bank of India Vs B.S.Agricultural Industries (I) II(2009)CPJ 29(SC), was pleased to observe that as a matter of law, the Consumer Forum must deal with the complaint on merits only, if the complaint is filed within two years from the date of accrual of cause of action and if the same is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside. The principle of law, laid down, by the Apex Court in State Bank of India’s case(supra), is equally applicable to the filing of an appeal U/s 15 of the Act. In case, this Commission, decides the appeal, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in State Bank of India’s case(supra).
15. For the reasons, recorded above, the application for condonation of delay of 232 days, being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal under Section 15 of the Act, is also dismissed, being barred by time, with no order as to costs.
16. Certified copies of this order, be sent to the parties, free of charge.
17. The file be consigned to Record Room, after completion.
Pronounced.
5th February, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[NEENA SANDHU]
MEMBER
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STATE COMMISSION
(First Appeal No.351 of 2012)
Argued by: Sh. R. S. Bhatia, Advocate for the applicant/ appellant.
Sh. Sourabh Goel, Advocate for the respondent.
Date the 5th day of February, 2013.
ORDER
Vide our detailed order of the even date, recorded separately, the application for condonation of delay of 276 days (infact 232 days as per the office report), being devoid of merit, is dismissed. Consequently, the appeal under Section 15 of the Act, is also dismissed, being barred by time, with no order as to costs.
(NEENA SANDHU) MEMBER | (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT |
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