BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

SRI.  P.V. JAYARAJAN                             : PRESIDENT

SMT. PREETHA G. NAIR                           : MEMBER

SRI. VIJU  V.R.                                             : MEMBER

C.C.No. 361/2015 Filed on 28/07/2015

ORDER DATED: 05/11/2021

ORDER

SRI.P.V. JAYARAJAN, PRESIDENT:

This is a complaint filed under section 12 of Consumer Protection Act 1986 and the matter stood over to this date for consideration.After hearing the matter the commission passed an order as follows:

1. The complainant is the proprietor of M/s.Weston Watch Company.  The complainant has a loan account with Indusind Bank ltd., Thiruvananthapuram, for an amount of Rs.30,00,000/- with an interest rate of 13% per annum.  While so the 2^nd opposite party offered the complainant to take over the said loan from the Indusind Bank with an attractive offer of reduced rate of interest @ 12% per annum.  Accepting the opposite parties offer, the complainant agreed to transfer his loan account to South India Bank.  The South Indian Bank took over the said loan account and opened a new account viz No.61307 with the 2^nd opposite party.  The complainant continue  his transaction with the 2^nd opposite parties regularly.  Initially the interest rate was @ 12% per annum.  But from 01/07/2010 the 2^nd opposite party, without any notice unilaterally increased the rate of interest @ 13% per annum.  When the complainant enquired about the said anomaly in the interest rate, he was informed that it is only a mistake and it will be rectified soon.  Believing the words of the 2^nd opposite party the complainant continues his transactions with the bank.  But to the surprise of the complainant, the 2^nd opposite party did not reduce the rate of interest.  Instead of that, the interest rate was further increased to 15.75% per annum.  The complainant made request before the 2^nd opposite party to reduce the interest rate to 12% from 15.75% per annum.  Up on the request of the complainant the 1^st opposite party intervened in to the matter and the interest rate was slashed to 13.5% per annum.  Then it was continued for 3 or 4 months and again the 2^nd opposite party started to apply interest rate @ 15.75% per annum and the same is continuing now.  The acts and deeds of the opposite parties towards the complainant amounts to deficiency of service as contemplated under section 2(g) of the Consumer Protection Act 1986.  Hence this complaint.      
2. As per the version filed by 2^nd opposite party, the 2^nd opposite party sanctioned a cash credit facility of Rs.30 Lakhs with 10 Lakhs enhancement on 18/03/2009 at the rate of 14%p.a. with monthly rate.  The 2^nd opposite party took over the loan from the Indus Ind Bank as per the request of the complainant.  The opposite party did not offer any attractive offer as stated in the complaint and the loan sanctioned was at the rate of 14% p.a with monthly rest.  The same is clear from the terms and condition of credit facility agreement executed between the 2^nd opposite party and the complainant.  The opposite parties sanctioned loan in which interest charged is floating.  The opposite parties can vary the rate of interest when Bank’s Base rate changes.  The same is informed to the complainant by the 2^nd opposite party which is admitted by the complainant in para 2 of the above complaint.  The statement in para 3 “it is only a mistake and it will be rectified soon” is utter false and hence denied.  The complaint and 2^nd opposite parties entered into an agreement that complainant is agreed to pay fluctuating rate of interest as per the RBI guide lines.  In spite of the above said agreement now the complainant is claiming that he is not bound to pay more than 12% interest.  The opposite parties sanctioned loan and fixed the rate of interest as per the RBI guide lines.  The complainant had accepted terms and conditions stated in the sanction letter dated 23/03/2009.  In spite of accepting the terms of above sanction letter and other document of the opposite parties, the complainant is violating the same.  The opposite parties acted only in accordance with RBI guide lines and hence there is no deficiency of service.  Further the complainant had availed loan for business purpose for making profit.  On the basis of said reason also complainant is not a consumer and hence complaint is liable to be dismissed.   
3. The evidence in this case consists of PW1 and Exts.P1 to P3 on the side of the complainant and DW1, and Ext.D1 to D4 on the side of the opposite parties. 
4. Issues to be considered:

1. Whether there is any deficiency in service and unfair trade practice on the

     part of the Opposite Parties?

2. Whether the complainant is entitle to the relief claimed in the complaint?
3. Order as to cost?

5.Heard both sides. Perused records.  To substantiate the case of the complainant, the complainant himself was examined as PW1 and Ext.P1 to P3 were marked.  The complainant’s case is that the 2^nd opposite party offered to take over the loan of the complainant from the Indus Ind Bank with an attractive offer of reduced rate of interest @ 12% per annum.  According to the complainant, initially the interest rate was @ 12% per annum but from 01/07/2010, the 2^nd opposite party, without any notice unilaterally increased the rate of interest @ 13% per annum and subsequently it was enhanced to 15.75% and the same amounts to deficiency in service and unfair trade practice.  To prove that the 2nd Opposite Party agreed to take over the loan at a reduced rate of interest at 12% or that the  initial rate of interest was 12% for the said loan, the complainant has not produced any document.  On the other hand the complainant while cross examined as PW1, in page 2 deposed before this Commission admitting that the signature in Ext.D1 agreement is that of the complainant.  It is pertinent to note that Ext.D1 to Ext.D4 were marked through the complainant while he was cross examined by the Opposite Parties.  He has also admitted that in the agreement as well as in the sanction letter, the rate of interest is shown as 14% per annum.  On a perusal of Ext.D4 sanction letter {Column (b)- Rate of Interest} issued by the 2^nd Opposite Party to the complainant, it is evident that the rate of interest is not fixed but floating.  In Ext.D4, it is specifically mentioned that the rate of interest may vary from time to time.  It is also important to note that Ext.D4 also contains the signature of the complainant.  The complainant’s explanation in cross examination for the signatures in Ext.D1 & Ext.D4 is that the 2^nd Opposite Party has given a bunch of  papers and he has signed without reading the contents of those documents.  This explanation by the complainant is not easily digestible as the complainant is a business man having a loan transaction of Rs.2 Crores with the 2^nd Opposite Party Bank and such a person signs all the papers given to him by the Bank even without verifying the rate of interest.   

6.         It is a well settled legal proposition that the burden of proving the deficiency in service is upon the person who alleges it. The Hon’ble Supreme Court in a recent Judgment dt. 6^th October 2021 i.e. in “SGS India Limited v/s Dolphin International Limited”, held that the onus of proof that there was deficiency in service is on the complainant.   As the complainant could not produce any evidence to prove that there was an offer from the side of the 2^nd Opposite Party to take over his loan from Indus Ind Bank at a reduced rate of interest @ 12%  and that the Opposite Parties arbitrarily enhanced the rate of interest, we find that there is nothing to indicate that there was any act of deficiency in service on the part of the Opposite Parties. Hence we find that the complainant has miserably failed to establish his case put forward against the Opposite Parties.  In view of the above discussions, we find that there is no deficiency in service or unfair trade practice on the part of the Opposite Parties as alleged by the complainant.

7.In the result the complaint is dismissed.  Considering the peculiar facts and circumstances of this complaint, there will be no order as to cost. 

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 05^th  day of November,  2021.

C.C. No. 361/2015

APPENDIX

1. COMPLAINANT’S WITNESS:

2. COMPLAINANT’S DOCUMENTS:

3. OPPOSITE PARTY’S WITNESS:

4. OPPOSITE PARTY’S DOCUMENTS:

                                                                                                                            Sd/-

                                                                                                                  PRESIDENT