Order-20.
Date-12/08/2015.
In this complaint Complainant Biplab Chakraborty by filing this complaint has submitted that complainant is an account holder of ICICI Bank having A/c No. 627801086568 with ICICI Bank Ltd., Kolkata since in the year 2002 and the salary of the complainant is also deposited with the aforesaid bank.
By a letter dated 13.12.2007 op IDBI Bank sanctioned loan of Rs. 1,83,000/- in favour of the complainant having interest rate at the rate of 14.90 percent p.a. to be paid by 60 equated monthly installments (EMI) of Rs. 4,344/- payable on or before 5th day of every month and the repayment mode was stated to be by ECS from account no. of complainant at ICICI Bank Ltd., Kolkata.
The loan account of the complainant with IDBI Bank is 815675100059486 and that loan was disbursed along with sanctioned letter dated 19.12.2007.
From the bank account, it is found that EMI started on and from 05.01.2008 and the period of 60 months was to expire on 05.12.2012 and complainant further stated that though the facility letter spelt about clean loan agreement but the complainant was never provided with the copy of the same and complainant further stated that op IDBI Bank persuaded the complainant to deposit with them 6 blank cheques with only having signatures of the complainant over those instruments on the premise that those were required for the purpose to facilitate the loan transaction with the assurance that those were required for the purpose to facilitate the loan transaction with the assurance that those would not be used against the complainant without prior written instructions of the complainant.
Fact remains that after sanctioning of the aforesaid loan amount, complainant at all material point of time maintained sufficient funds in his account to the best of his knowledge and belief though it was not possible for him to check the account on regular basis.
Lastly on 12.12.2012 complainant noticed that a sum of Rs. 4,344/- was debited from his account by way of ECS in liquidation of the loan amount and thereafter in the following months no ECS in respect of the aforesaid loan account having been made the complainant bona fide that the loan amount stood liquidated and the complainant was as such absolved from any debt or any liability.
But suddenly in July 2014 complainant came across a letter dated 21.06.2014 issued by the IDBI Bank that as on 05.06.2014 a sum of Rs. 84,235/- stood as alleged outstanding and despite alleged repeated reminders, complainant failed and neglected to make the EMI payment in time and said letter further alleged that for non-payment of Rs. 84,235/- appropriately legal as stated in the purported agreement would be taken against the complainant.
Soon after receipt of the aforesaid letter the complainant visited the op IDBI Bank and met with the concerned Assistant Manager and demanded the particulars of the aforesaid amount of Rs. 84,235/-.But op Bank did not provide the complainant any details of particulars and as such complainant was asked to first deposit the aforesaid amount of Rs. 84,235/-, but the conduct of the op bank was extremely arrogant, arbitrary and irrational and bank officials were deficient in their services to provide such particulars.
At the above situation complainant was preparing himself to issue a letter in this regard but in the meantime it came to the knowledge of complainant that the entire amount of Rs. 84,235/- was withdrawn from the account of the complainant on 19.07.2014 wrongfully using one out of six non-CTS cheques which had been retained by the op IDBI Bank from the complainant at the time of disbursement of the loan.Complainant in such circumstances took serious exception of such unfair or deceptive trade practice and by adopting unfair trade practice and deceitful manner of trade as made by the IDBI Bank sent letter on 21.07.2014 with a request to revert the aforesaid amount of Rs. 84,235/- into the account of complainant and to settle the account as per existing guideline upon intimating him the details about the account.But that was not provided to the complainant by the op.
Most interesting factor is that after deduction of Rs. 84,235/-, op claimed further dues of Rs. 3,521/- on 05.07.2014 and thereafter complainant obtained statements from ICICI Bank and gathered information that inspite of sufficient balance on 05.01.2010, the IDBI Bank did not debit the ECS amount on such date for reasons unknown to the complainant and even in the EMI of Rs. 4,344/- appeared to be debited on 5th of the corresponding months.The complainant further noticed that for the month of January 2012, there was default due to insufficient balance, but such unpaid of ECS amount was never informed by the IDBI Bank to the complainant at the material point of time.
Further complainant noticed that for all corresponding months, the EMI amount of Rs. 4,344/- stood realized by the IDBI Bank and complainant observed that on several occasions, the EMI amount was cleared by the IDBI Bank on other dates apart from the stated date of 5th day of every month.
No doubt the action done on the part of the op is no doubt in deficient manner of service and in respect of that conduct of the op is no doubt unfair trade practice and deceitful manner of trade and with dishonest intention op did it and the op IDBI Bank did not debit EMI for the month of January-2010, inspite of there being adequate balance.Moreover for January-2012, the IDBI Bank did not notify about the return of the EMI and had the complainant known about such fact, he would have taken effective steps and then to safeguard his interests and would have paid such amount or would have arranged for the same so soon thereafter to avoid interest and penal interest charges etc.
But the op Bank never issued any such letter to the complainant for clearing the same and with a dishonest intention, realized the aforesaid amount of Rs. 84,235/- from the complainant and for default of payment of Rs. 4,434/- and by that way op has robbed the said amount from the account of the complainant and in the above circumstances, complainant has filed this complaint for adopting unfair trade practice, deceitful manner of trade and also for not rendering proper service, compensation of Rs. 1,00,000/- and for reverting amount of Rs. 84,235/- and for other relief.
On the other hand ICICI Bank by filing written version submitted that in fact there is no allegation against ICICI Bank and there is no cause of action as arisen in between the complainant and op no.2 and there is no allegation for deficiency of service etc. and/or any allegation about adoption of unfair trade practice by the op no.2 for which the present complaint against op no.2 should be dismissed and op no.2 also prayed for expunging their name from the complaint.
On the other hand op no.1 by filing written objection submitted that complainant has suppressed the material fact with an intention to mislead the Ld. Forum and for the purpose of cause of action, many false allegations are made.So, the entire complaint is false and fabricated and specifically submitted that in or about December-2007, complainant approached for availing of a personal loan with prayer that he shall have to repay the loan amount if granted without any failure, demur or objection and relying upon the representation of the complainant, op Bank sanctioned loan of Rs. 1,83,000/- vide sanction letter dated 13.12.2007 and to that effect loan agreement was also executed between the parties mentioning the terms and conditions of the said agreement, complainant was required to return the loan amount along with interest in 60 equal monthly installments at the rate of Rs. 4,344/- starting from 05.01.2008 and payable on 5th day of every month.
Complainant was irregular in making the payment of his EMIs and most of the EMIs were paid by the complainant beyond the due dates for which complainant became also liable to pay the delay payment charges and complainant paid only 57 installments and failed and neglected to pay the further installments and applicable charges for the delay.Due to persistent default committed by the complainant a substantial amount became due and payable under the said loan agreement.
Op Bank (Op no.1) vide its various letter dated 27.01.2012, 27.02.2012, 22.01.2013, 16.04.2013, 19.07.2013, 28.12.2013, 26.02.2014, 21.04.2014 and 21.05.2014 called upon the complainant to clear his dues.But complainant inspite of having full knowledge of his outstanding failed and neglected to pay the same and inspite of several reminders, complainant failed to clear the outstanding for which op Bank by a final reminder dated 21.06.2014 called upon the complainant to clear the amount of Rs. 84,235/- and the said letter was duly received by the complainant and in response of that complainant issued a cheque bearing No. 102808 and amount of Rs. 84,235/- dated 18.07.2014 and op Bank presented the said cheque for encashment and adjusted the cheque amount towards the outstanding of the op Bank and suppressing the aforesaid facts complainant has filedthe instant complaint for such relief.
Moreover complainant did not keep sufficient balance in his salary account to clear his ECS as alleged or at all.If actually complainant cleared the entire loan amount on 12.12.2012, in that case complainant ought to have asked for loan certificate and complainant was fully aware of late clearing of ECS, delay payment charges were levied on his loan account which was due and payable by the complainant and moreover op Bank in the year 2013 and 2014 gave several reminders through letters to the complainant to clear his outstanding but complainant did not pay any heed to the same.However, only in response to op Bank’s letter dated 21.06.2014 complainant issued the aforesaid cheque bearing no. 102808, dated 18.07.2014 for Rs. 84,235/- to discharge his loan liability.
Further it is submitted that admittedly on January-2012 the ECS returned unpaid due to insufficient balance which shows that the complainant committed default and it is denied and disputed that op bank was under obligation to inform the complainant about return of ECS and it was the duty of the complainant to keep the sufficient balance in his account for clearance of ECS.So, the entire complaint is nothing but full of concocted story and in fact complainant is not entitled to get any relief as prayed for.
Decision with reasons
On comparative study of the complaint and written version and also considering the complaint and the papers filed by the complainant, it is found that complainant has not produced all the documents.But from Annexure-A collectively page – 9, it is found that admittedly complainant took loan for Rs. 1,83,000/-, rate of interest 14.9 percent p.a., monthly interest compounding and default interest rate 3 percent p.m. and EMI is Rs. 4,344/- payable on or before 5th of every month.Moreover fees charges at the rate of 1.50 percent (including service tax + Rs. 550/-) is realizable by the bank.So, about charging of interest of default payment interest rate is compoundable interest per month and other fees and charges there is no allegation.
At the time of hearing the argument when the Ld. Lawyer of the complainant was asked what is the actual dispute for which complainant has filed this complaint.At the relevant time this Forum pointed out the entire account submitted by the op bank IDBI and after checking that account, complainant submitted that in respect of account statement for the period 18.12.2007 to 02.02.2015 IDBI Bank A/c No. 815675100063425, having customer Id. No. 2806174, they have their only allegation in respect of ECS recovery dated 07.07.2009, ECS return charges dated 08.01.2010 and penal charges dated 05.01.2012.
But in respect of other statement they have their no complaint or allegations and after considering the said 3 items of the statement, it is submitted that bank deducted charges on 3 occasions on 08.09.2009 Rs. 300/-, on 08.01.2010 Rs. 300/- and on 11.01.2012 Rs. 300/- that means Rs. 900/- was charged for ECS Return charges.But except in 3 cases, no other case, ECS Returned Charges was charged.
Fact remains that IDBI Bank sent reminder to the complainant on 21.10.2013 to pay other due amount of Rs. 60,464/- and on 25.06.2012 for overdue amount of Rs.27,764/-, on 27.03.2012 for overdue amount of Rs. 24,946/-, on 27.11.2012 for overdue amount of Rs.32,574.43 paisa etc.But complainant did not repay the same.So, automatically as per complainant’s own document Annexure-A, page-12, it is found that complainant is liable to pay monthly interest at the rate of 14.90 percent p.a. including monthly compounding interest and for default interest rate 3 percent per month and fees and other charges 1.50 percent including service tax + Rs. 550/- and other charges about that charges complainant has nothing to say.
For the sake of the argument if it is accepted then the argument of complainant, it is found that from salary account of the complainant by mode of EMI would be paid but ECS was not honoured by his banker.Admitted position is that bank has deducted that amount from his account because he submitted the cheque duly signed by the complainant and in reality there was outstanding dues as on the date and for which that was deducted and that is the condition of the said agreement that if in any circumstances if it is found that if it is not reimbursable through ECS from the account of the complainant in that case complainant shall have to clear it by payment of cheque and that cheque was placed and when the account was there that is in the bank of ICICI, cheque was deposited and the amount was withdrawn and deposited against loan account.
On critical assessment of the entire records materials as produced by the bank it is undisputed fact that EMI of Rs. 4,344/- shall be paid by equated monthly installment of 60 months and if it would be paid, in that case the entire loan amount shall be fully satisfied.But we have gathered after calculation that complainant has already paid of 57 EMIs and it is admitted, that complainant has already paid Rs. 2,47,608/- out of admitted total payment by 60 installments, i.e. Rs. 2,60,640/- and if we deduct the already admitted deposited amount of Rs. 2,47,608/-, in that case, complainant failed to pay balance Rs. 13,032/- i.e. three installments.
For the sake of the argument if it is accepted that complainant failed to pay Rs. 13,032/- i.e. total amount against 3 installments, in that case, op bank ought to have forthwith reported to complainant to deposit the same amount with such interest.But without adopting such procedure, complainant prepared such statement in such a fashion that monthly installment is added in one column in debit column and in credit column statement of payment made by the complainant is shown.But that cannot be the procedure for maintaining the account in such a manner.But it must be in such a manner that total loan amount was disbursed Rs. 1,83,000/- and payment shall be shown and that shall be deducted from the total amount, then balance amount shall be shown as outstanding, but that procedure has not been adopted.
At the same time there is no such detail out of total monthly EMI what part shall be deducted as principal and what part shall be deducted as interest.So, the statement of account as submitted by the bank has created much doubt about the actual position of actual payment of 57 EMIs. About 57 EMIs may be there is some delay, but that delay is not for long period.
But after proper calculation from the statement submitted by the bank, it is clear that up to 19.12.2012 complainant deposited 57 EMIs and then the outstanding ought to have Rs. 13,032/-, but in place of that outstanding is shown as Rs. 40,282/- but that is not the correct figure.But we have gathered that when the outstanding is Rs. 13,032/-, outstanding is shown as Rs. 40,282/- and thereafter it was continued month by month up to 05.02.2015.So figure was lump-sum. But in this context we have also calculated the total amount of the 60 EMIs and it is found that figure is Rs. 2,60,640/- and from total 60 EMIs i.e. Rs. 2,60,640/- loan amount of Rs. 1,83,000/- is deducted, in that case, it is found that interest part is Rs. 77,640/-.
So, it is clear that for Rs. 1,83,000/- op Bank charged for Rs. 77,640/- as interest that is no doubt almost 50 percent of the loan amount.Then it is clear that interest as assessed by the op Bank is just like the interest as it is assessed by the Kabuliwala in the market.Whatever it may be, it is already admitted position that complainant paid Rs. 2,47,608/- i.e. by 57 installments, balance to be paid by 3 installments is Rs. 13,032/-.But already after payment of Rs. 2,47,608/-, op Bank managed to deduct Rs. 84,235/- that means already deducted Rs. 3,31,843/-.But actual payment to be made by the complainant would be Rs. 2,60,640/- that means op has realized an excess amount of Rs. 71,203/- and even after that op has shown that there is further outstanding.But such sort of calculation is generally made in the commercial house who are running non-banking financial institutions.
But anyhow we have gathered that already op realized 60 installments i.e. Rs. 2,60,640/- and also realized another excess amount of Rs. 71,203/-But regarding excess realization, op’s version is that that is nothing but the calculation of the monthly interest compoundable and other penalty charges.But we have gathered that after calculation that even if the penal interest etc. are deducted, in that case, also this figure cannot be any way more than Rs. 11,203/-.But even after deducting of Rs. 11,203/-, it is found that about Rs. 60,000/- has been deducted as excess amount.
So, invariably the complainant has rightly pointed out that excess amount has been deducted and considering the entire calculation as already calculated by this Forum and after proper addition, deduction etc. of different dates, we are convinced that complainant is entitled to get back Rs. 60,000/- from the op no.1 and op no.1 is liable to pay back the same at once to the complainant.
On proper evaluation of the materials including the findings, we have gathered that the manner of calculation of interest, penalty etc. by the op in their statement of account is completely uncalled for in view of the fact that in the statement, no where it is stated against loan account what is the actual interest per month with that amount and at the same time on payment of EMI what is the position of the next month pending and there is no such assertion out of the total EMI, what is the part of the payment against capital that is loan amount and what is the payment against interest.But it is mandatory provision of law that in respect of EMI there is one part and for payment of interest there is another part for payment of principal.But that is not shown for which the customers are being harassed and in disguise the bank is deducting the amount.
In view of the above finding and materials, we have gathered that the reminders which was sent by the op Bank for payment was completely uncalled for because their calculation in all respect is deceptive and misguiding.But truth is that complainant paid the said amount what they claimed, even after that further amount cannot be claimed.
In the result we are of view that the present complainant is entitled to get a relief as prayed for and we are allowing part relief in favour of the complainant directing the op no.1 to pay the same without any further delay and within one month from the date of this order and for appearing before this Forum for redressal for negative attitude of the op, op shall have to pay litigation cost including some interest w.e.f. deducting that amount by cheque and till its full payment.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest with cost of Rs.5,000/- against the op no.1 and same is dismissed against op no.2 without any cost.
Op no.1 is directed to refund and repay a sum of Rs. 60,000/- with banking interest at the rate of 6 percent p.a. over the said amount w.e.f. date of encashing the cheque amount of Rs. 84,235/- and till its full payment to the complainant.But it must be paid to the complainant within one month from the date of this order, failing which for non-compliance of the Forum’s order, op shall have to pay penal damages at the rate of Rs. 100/- per day till its full satisfaction of the decree and if it is collected, same shall be deposited to this Forum and after repeated non-compliance of the Forum’s order, in penal proceeding shall be started against them u/s 25/27 of C.P. Act 1986.
