Ld. Advocate(s)
For Complainant: Subhashis Ray
For OP/OPs : Soumita Ray Chowdhury
Date of filing of the case :08.12.2022
Date of Disposal of the case :11.07.2024
Final Order / Judgment dtd.11.07.2024
The concise fact of the case of the complainant is that the complainant Soumen Sarkar availed a financial accommodation of Rs.1,00,000/- personal loan from the OP ICICI Bank Limited through Credit Card bearing no. 4315812136768009 ( ICICI Credit-Amazon Pay) in the middle of 2021 as a businessman. The application was filed online which was processed by the franchise /agent as incharge of Nadia District having sited at the residence of the complainant at village Purba Chcihuria P.S Nakashipara , Nadia. Presently the complainant is residing at the address given in the complaint. Due to Covid the financial condition of the complainant became bad. So, the RBI also passed guideline against payment of loan. As per the said notification, who have availed loans for business purpose shall be eligible for window resolution to be invoked by lending institution . So, the petitioner requested to the OP for granting moratorium for a period of two years on 18.07.2022 through speed post. The complainant also requested to provide him certain documents and information regarding loan documents, correspondences , security agreement , between the parties, sanction letter, statement of account, rate of interest, post dated cheque, if any issued by the complainant and notice given to him. But the OP did not respond to the request. On 12.05.2022 the complainant received a message regarding payment of Rs.28924.72 as due while the minimum amount due was Rs.18770/-. Similar message was received on 19.03.2022, 31.03.2022. The OP further sent message on 13.04.2021, 27.05.2022, 12.06.2022, 13.07.2022 with a demand for payment of Rs.46364.58, 64036.91, 82505.34, 100688.08, minimum due payment is 34020/-, 49390/-, 64910/- and 81220/-. The complainant again received some messages on 21.09.2022, 12.10.2022, 20.10.2022 and 23.10.2022. Complainant stated the schedule as per 10E regarding different messages and amount of money claimed by the OP. One electronic statement was sent on 05.10.2022 for the period 27.09.2022 to 05.10.2022 which confirms the limit to be Rs. 1,00,000/-, while other figures are not in agreement with the messages stated earlier. The complainant is a consumer and there is a deficiency in service. The complainant prayed for an award against the OP to supply the materials as per letter dated 18.07.2022, direction to re-schedule the loan as per guidelines of RBI, Rs.3,00,000/- towards deficiency in service, Rs.1,50,000/- towards mental agony and harassment and Rs.50,000/- towards litigation cost.
Both the OP NO.1&2 contested the case by filing W/V wherein they have denied each and every allegation of the complaint . The complainant challenged the case as not maintainable . The positive defence case of OP No.1&2 is that the complainant applied for Amazon Pay Credit Card through online Airtel with a limit of Rs.1,00,000/-. The monthly statement as generated by the bank showing the usage and dues payable by the complainant. The complainant after using the credit card for a long period cannot deny the payment and conditions of the credit card along with interest and other charges. The credit card is not a loan account. The correspondences regarding outstanding dues and date of payment in support of the credit cards were not duly communicated through register e-mail I.D. The complainant has full knowledge over the outstanding dues but failed to repay the dues. The interest component accrued due to non-payment within the stipulated period together with further charges are stated in the W/V. As on 04.03.2022 there was a closing balance of Rs.28924/- payable within 23.03.2022 but it was not paid. So, late payment of fees 750/- as on 25.03.2022 and interest charges 15014.39 as on 05.04.2022 complainant paid nothing. As per terms and conditions if the complainant makes payment of minimum amount due within appropriate charges and interest are levied in the account. Over limit charges are charged , when total outstanding exceeds the prescribed credit limit. Despite giving sufficient opportunity the complainant failed to clear the outstanding dues. But the complainant is habitual defaulter and not entitled to get any relief. As per e-statement of the bank the complainant is a habitual defaulter and a sum of Rs.372655.81 is due and payable to Axis Bank Limited where he is maintaining a credit card bearing no. 6568. There is no provision for re-scheduling of credit card dues as per RBI norms. The OPs claimed that the case is liable to be dismissed with cost.
The conflicting pleadings of the parties demands for ascertainment of the following points for proper adjudication of this case.
Points for Determination
Point No.1.
Whether the case is maintainable in its present form and prayer.
Point No.2.
Whether the complainant is entitled to get the relief as prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1.
The OPs challenged the case as not maintainable on the ground that the case is barred by the rule of estoppels. As per the contract between the parties the complainant is bound to pay the interest on the loan amount . As per annexure-D the total amount due is Rs.28924.72. The OPs drew the attention of this Commission in regard to annexure-D wherein the complainant was sent SMS claiming that the total amount due is 28924.72 and the minimum amount is due for Rs.18770/- as on 22.03.2022.
There is nothing to show that the complainant raised any objection either by SMS or by written complaint against the said notice through SMS by the OP. Every loan is subject to repayment along with interest. In order to ascertain whether the OP charged excess interest or not, rate of interest must be disclosed by the parties.
The complainant seems to have not stated the rate of interest of taking the loan. The complainant also never called for any document from the OP in course of trial to establish the actual rate of interest against the said loan. Therefore, the complainant is estopped from denying the rate of interest under which the loan was given. Accordingly, the rule of estoppels is applicable here, so the present case is barred under the rule of estoppel.
As per para-2 of the complaint the complainant stated that the complainant availed a financial accommodation of Rs.1,00,000/- limit towards personal loan from the respondents in the form of credit card in mid,2021 when the complainant was a businessman.
The entire dispute centres around the credit card. So, the complainant took the loan while he was a businessman. As per definition of the “consumer” any person who buys any goods for consideration but does not include a person who obtained such goods for resale or for any commercial purpose.
In the instant case as per the pleadings of the complainant he purchased goods through credit card as businessman. So, he cannot be considered as a consumer under section 1(7) of the C.P. Act.
Accordingly, point no.1 is answered in negative and decided against the complainant.
Point No.2&3.
Both the points are very closely interlinked with each other and as such , these are taken up together for brevity and convenience of discussion.
It is the admitted fact that the complainant took loan through credit card . From the statement summary , it appears that a sum of Rs.28924/- is due to the OP.
As per the statement summary the credit card was converted to EMI (Easy Monthly Instalment). As per the statement summary submitted by the OP, the previous balance is 46364.58. In addition to that there are purchases/charges. There is nothing to show that after February anything was paid. Paid in March and April.
Ld. Defence Counsel argued that as per RBI guidelines the card is liable to be blocked , so there is no deficiency in service.
Ld. Advocate for the complainant argued that within 13 days the amount of due enhanced from 18770/- to 46364.58. He further questioned as to whether there is bipartite agreement about the rate of interest otherwise , the rate of interest must be re-scheduled .
In the instant case it is the complainant who filed the case, so onus lies upon the complainant to prima-facie prove as to on which rate of interest the loan was taken. The complainant did not prove any document regarding the rate of interest at which the loan was taken. That apart the complainant did not call for any document from the OP to show the rate of interest.
The different statement summary proved by the parties discloses that the OP demanded money from time to time by means of statement summary but the complainant never filed any objection to the OP either in written or through SMS or through online . So, mere filing of this case without raising any objection against the money claim, reduces the weight of the case and it also takes away the merit of the case.
From the document it further appears that the said credit card has been blocked after 24.04.2022 when the amount was due for Rs.64036.91 and minimum due was 49390. The complainant did not challenge the said amount of the OP or did not file any written complaint to the OP. Subsequently, after lapse of long time he filed the present case.
Ld. Advocate for the complainant argued that the disputed period was covered under the notification of moratorium for a period of two years pertaining to the loan as per the RBI guidelines.
In the brief notes of argument (BNA) the complainant claimed that no document was provided by the OP, so he demanded the documents from the OP as per the list given in para 4 of BNA.
The said argument has little force in as much as the complainant did not call for any of the documents as stated in para 4 of BNA in course of trial.
Ld. Defence Counsel argued that the RBI circular regarding Covid-19 moratorium relates to the MSME (Micro Small Medium Enterprises). The complainant as a credit card holder cannot avail the circular of RBI. The complainant claimed that the circular of RBI are applicable to the individual who has availed loan and advances for business purpose.
The argument has reasonable force the complainant is a credit card holder the credit card holders are not eligible for moratorium as claimed by the OP has reasonable ground. The complainant could not disprove the said specific defence plea. It further appears that the complainant converted the credit card to EMI. Except to call spade a spade in his complaint, the complainant did not discharge his onus to prove that the rate of interest is exorbitant or that he is covered under the moratorium by virtue the RBI guidelines.
After perusing all the documents in the case record in relation to the specific case of the parties the Commission comes to the finding that the complainant failed to prove the case against the OP upto the hilt.
Accordingly, point no.2&3 are answered in negative against the complainant.
In the result complaint case fails on contest without any cost.
Hence,
It is
Ordered
that the complaint case no.CC/116/2022 be and the same is dismissed on contest without cost.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(SHRI NIROD BARAN ROY CHOWDHURY)
