IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 27th day of June, 2023.
Filed on : 04.11.2022
Present
1. Smt.P.R Sholy, B.A.L, LLB (President-in-charge )
2. Smt.C.K.Lekhamma, B.A, LLB (Member)
In
CC/No. 281/2022
between
Complainant:- Opposite party:-
Sumina Abdul Khader The Branch Manager
Padma Sadanam HDFC Bank Ltd
Avalookkunnu..P.O Two Wheeler loan section
Aryad South, 1st floor, Thottungal Building
Near Gurupuram Jn. East of Convent Square,
Alappuzha. Alappuzha-688001
(Adv. Jose Y James) (Adv. P.Sathisan , Adv. V.K.Sreena
& Adv. P. Anuroop)
O R D E R
C.K.LEKHAMMA(MEMBER)
1. Brief facts of the complainant's case are as follows: -
Attracted by the advertisement of the opposite party complainant contacted the opposite party for availing of two wheeler loan. At that time the agent of the opposite party canvassed the complainant for availing of two wheeler loan from the opposite party and the agent assured the complainant that they will provide 36 months of EMI turnover to the complainant’s loan. Further assured that there will not be a fluctuation of EMIs on the entire loan turnover. Believing the words of the said person complainant availed a loan for an amount of Rs. 1, 08,260/- from the opposite party with an equal EMI turnover of 36 months, with EMI Rs. 3999/- per month. At the time of taking the two-wheeler loan opposite party had not supplied a loan chart to the complainant and the EMI started on 6/3/2020.
The 1st EMI payment was duly made in time, but due to nation vide out brake of Corona and the entire nation under continuous lock down , repayment of the loan were not done in certain months by the complainant . After that complainant duly started paying the EMIs promptly. At the time of Corona opposite party approached the complainant for an option of availing of the moratorium for the pandemic period and assured the complainant that if she avails moratorium complainant had only to pay total 36 months of EMI as per loan agreement and no more extensions of EMIs, believing the words of the opposite party complainant had availed moratorium for certain months.
Complainant promptly paid 25 EMIs till date. Complainant recently visited the opposite party’s office to verify the loan status and going through the loan status complainant was astonished to see that her 36 months loan turnover was converted to 46 months by the opposite party without the consent of the complainant. The opposite party was not even taken pain to inform the said arbitrary decision of the opposite party. The said act of concealment of the conversion of EMIs by the opposite party amounts to a deficiency in service and unfair trade practices.
The complainant approached the opposite party's manager to rectify the loan turnover of 46 months with 36 months which is as per the loan chart, but opposite party was adamant in not correcting the wilful mistake committed by them with an intention to unlawful enrichment and looting the layman's hard earned money. The above act on the part of opposite party caused complainant severe mental agony and needs to be compensated by the opposite party. Hence the complainant approached this Commission and sought following reliefs.
- To direct the opposite party to correct the EMI of 46 months with actual 36 months loan turnover as per loan agreement.
- To direct the opposite party to pay an amount of Rs. 50,000/-for mental agony, pain and for the loss of valuable time of complainant due to the act of the opposite party and cost of the proceedings.
2. The version of the opposite party in short is as follows: -
The present complaint is bad before law and is barred by limitation. As admitted by the complainant that, the cause of action is claimed to be arisen on 6/3/2020 and the complaint is filed on 3/11/2022. Further the complainant is not a 'consumer' as defined under the Consumer Protection Act and therefore the alleged dispute is not a “consumer dispute”.
The complainant had availed a two wheeler loan of Rs. 1,08,260/- bearing loan No.99242057 from the opposite party bank in the year 2020. The complainant is bound to repay loan amount with monthly instalments of Rs. 3,999/- with a total duration of 36 months. In the wake of the covid-19 pandemic, the complainant availed moratorium for a period of 5 months commencing from April 2020 to August 2020 and the same was granted by the opposite party bank in accordance with the RBI guidelines. During this period, no charges have been levied by HDFC to the loan account. The recovery of the said moratorium period was deferred and the bank can recover the accumulated accrued interest. The complainant had committed multiple defaults and the ECS Mandates were dishonoured stating the reason “Insufficient Funds” and the complainant is liable to pay the Charges as per the terms of the loan agreement. As on 23/12/2022, an amount of Rs. 20,024/- is pending as overdue and the complainant is liable to pay the said amount.
The complainant herself approached the opposite party bank for availing the said loan and the allegation that she was canvassed and assured by the agent of the bank is false and hence denied. The complainant had failed to pay the monthly EMIs during the Covid-19 pandemic period. The statement that the opposite party approached the complainant for an option of availing moratorium and the opposite party assured that she has to pay only 36 EMIs are false. As stated earlier, upon availing moratorium the payments pending during the moratorium period will be deferred and the bank can recover the deferred EMI's and the accumulated accrued interest subsequently and the same is in compliance with the RBI guidelines.
The complainant had committed multiple defaults and the ECS Mandates were dishonoured stating the reason “Insufficient Funds” and the complainant is liable to pay the charges as per the terms of the loan agreement. Hence, the statement that the complainant promptly paid the EMIs is denied as it is false and misleading. The tenure of the loan was modified by the RBI guidelines and the same was duly intimated to the complainant. The opposite party had acted as per the due process of law. Hence, there is no deficiency in service or unfair trade practices as alleged in the complaint.
3. Points that arose for consideration are as follows: -
1. Whether the complainant is entitled to get any relief as sought?
2. Whether the opposite party committed deficiency in service?
3. Reliefs and costs?
4. The complainant adduced oral as well as documentary evidence and Exts. A1 & A2 were marked. Rw1 was examined from the side of the opposite party and Exts. B1 to B3 and X1 were marked. The complainant filed argument notes. Heard both sides.
5. Point Nos. 1&2:-
The complainant averred that she had availed of a vehicle loan of Rs. 1, 08,260/- from the opposite party. EMI fixed at Rs. 3,999/- with total duration of 36 months. But the complainant was unable to pay the EMI after the 1st EMI payment due to the out brake of Covid -19 pandemic and the subsequent lockdown. At that time opposite party approached the complainant for an opinion of availing moratorium for the said period and assured that if she avails moratorium, the complainant had only to pay total 36 months EMIs as per loan agreement and no more extension of EMIs. Further contended that after the moratorium relaxation, the complainant duly paid 25 EMIs promptly. Recently she understood that without obtaining her consent 36 months of loan turnover was converted to 46 months by the opposite party. Even though the complainant approached the opposite party's manager to correct the said mistake done by them. But did not take any steps to reinstate the actual EMI turnover of 36 months instead of 46 months. The complainant alleged a deficiency in service and filed the complaint.
The opposite party refuted the entire allegations levelled against them and contended that the complainant was bound to repay the loan amount with a monthly instalment of Rs. 3,999/- with a total duration of 36 months. But the complainant availed moratorium for 5 months during covid-19 pandemic period. Therefore the amount pending during the moratorium period will be deferred and the opposite party can recover said amount and the accumulated interest subsequently as per the guidelines of RBI. The complainant had committed multiple defaults and ECS mandates were dishonoured. The tenure of the loan was modified in accordance with the RBI guidelines and was duly informed to the complainant.
Admittedly, the complainant availed a loan from the opposite party. As per the agreement between the parties, the repayment was started on 6.3.2020. The complainant is a consumer of the opposite party since she availed service from the opposite party hence falls under the definition of a consumer as defined in the Consumer Protection Act 2019. Further, the cause of action as mentioned in the complaint is on 6.3.2020 ie, the date of 1st EMI. Therefore, the opposite party contended that the complainant is hopelessly barred by the law of limitation. The learned counsel for the complainant pointed out that immediately after that the Hon'ble SC had excluded the period from 15.3.2020 to 28.02.2022 from limitation in filing cases. Moreover, on going through the pleadings it is mentioned that after remitting the 25th instalment the complainant approached the opposite party to verify the present status of the loan and she learned that the opposite party unilaterally extended the period of the loan tenure. It seems that the cause of action is continuing. Therefore, the contention of the opposite party about the limitation will not stand.
Further, the tenure of the loan is fixed for 36 months. So the complainant has to pay 36 equal monthly instalments and the same is evident from Ext. B2, the loan agreement and the EMI started on 6.3.2020 and ends on 6.2.2023. Seemingly, the said agreement was cancelled. Further Ext. B3, the statement of records revealed that the said period was revised to 46 months. Even though, the opposite party contended that the revision of the said loan period were duly informed to the complainant and with her consent they did so. Rw1, the Legal Manager of the opposite party deposed that the said changes in the period of EMI were rightly communicated to the complainant by SMS and modified repayment schedule. But nothing is before us to believe the said submission of the opposite party. Further pointed out in the argument notes of the complainant that as per Covid-19 regulatory package issued on 27/03/2020 “there will be a corresponding extension in the repayment schedule and the residual tenor of the loan by 3 months beyond the moratorium period ie time line for repayment can be extended or 3 months from the date of each instalments falling due during the moratorium period”. RW1 deposed that Moratorium means an extension of EMI. It is to be noted that considering the 5 months extension period of EMI as per the moratorium ends on 6.7.2023 but as per Ext.B3, the statement of accounts, the EMI ends on 6.12.2023. It is understood that even if the moratorium is availed, the number of instalments and the number of months will not change only the period of repayment will change. It is to be noted that the loan agreement dt.20.02.2020 in Ext.B2 appears cancelled. On going through the evidence on records nowhere it is mentioned that opposite party has the right to unilaterally reschedule the EMI. The learned counsel for the complainant produced the web page printout of HDFC Bank's policy on moratorium during Covid-19 which mentioned that “bank will not ask for any EMI payment till 31st, May 2020 the loan tenure will get extended by the corresponding period for which the moratorium has been availed for example if the EMI for the month of March 2020 has been paid and a moratorium for April and May 2020 has been availed, then the loan tenure will be extended by 2 months only.” Further, it is mentioned in the Guidelines of RBI that “Since there is an accrual of interest during the period of moratorium the lender will change the last EMI so as to compensate for the accrual of interest during the period of the moratorium.” Moreover, the opposite party failed to convince us that before rescheduling the EMI they had informed the complainant. It appears that the opposite party unilaterally made changes in the period of repayment. So no doubt that this will cause more financial burden on the complainant. As per the evidence, we found that the complainant already paid more EMIs than agreed. The above act of opposite party amounts to deficiency service. Hence on that count, the complainant is entitled for compensation from the opposite partyposite party.
On perusal of Ext.B3, the complainant already paid 38 instalments instead of 36 EMIs. In view of the above, the relief sought in the complaint correcting the number of EMIs from 46 to 36 shall be corrected and hence the excess amount paid by two instalments can be carry forward to the accrual of interest and if any unpaid interest due ,the opposite party has the right to realise it from the complainant. Further in Ext. B3 shows some instalments not paid in time due to cheque bounce. The opposite party has also the right to levy said cheque bounce charges from the complainant. At the same time, the opposite party has no right to charge any interest of interest-compound interest- penal interest for the loan EMI amount for the period during the moratorium since the opposite party is bound to obey the following decision rendered by the Hon’ble SC in Small scale Industrial Manufactures Association (Regd) vs. Union of India and others (2021 SSC online SC 246) held that by notification dated 27.03.2020, the government has provided the deferment of the instalments due and payable during the moratorium period. Once the payment of instalment is deferred as per circular dated 27.03.2020, non-payment of the instalment during the moratorium period cannot be said to be willful and therefore there is no jurisdiction to charge the interest on interest/compound interest / penal interest for the period during the moratorium.
Therefore, it is understood that there shall not be any charge of interest on interest / compound interest/ penal interest for the period during the moratorium from any of the borrowers and whatever the amount is recovered by way of interest on interest/ compound interest/penal interest for the period during the moratorium, the same shall be refunded and to be adjusted/given credit in the next instalment of the loan account.
6. Point No. 3:-
In the result, the complaint is allowed in part and direct as follows:
1. The opposite party is liable to correct the number of EMIs from 46 to 36 and the overpaid amounts by two instalments(37&38instalments) shall be credited towards the accrual interest of the loan. At the same time if any statutory unpaid interest and cheque bouncing charges are due the opposite party has the liberty to realise the said amounts from the complainant.
- The opposite party is liable to pay Rs. 10,000/-( Rupees Ten thousand only ) towards compensation for deficiency in service to the complainant, failing which said amount shall carry interest @ 8% p. a from the date of compliance of this order till realization.
- The opposite party is also liable to pay Rs. 2000/-( Rupees Two thousand only ) towards litigation costs to the complainant.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 27th day of June 2023.
Sd/-Smt. C.K.Lekhamma(Member)
Sd/-Smt.Sholy.P.R (President in charge)
Appendix:-Evidence of the complainant:-
PW1 - Sumina Abdul Khadar (complainant)
Ext.A1 - True copy of Extract regarding the loan details
Ext.A2 - True copy of Bank Account statement
Ext.A3 - True copy of Email
Ext. A4 - True copy of Whatsaap message
Evidence of the opposite parties:-
RW1 - Sidharth.U(witness)
Ext.B1 - Copy of Power of Attorney
Ext.B2 - Loan cum hypothecation agreement
Ext.B3 - Statement of account
Ext.X1 - Photostat copy of loan agreement.
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
