C.F. CASE No. : CC/2013/01
COMPLAINANT : Ms. Bipasa Sarkar,
D/o Sh. Biplab Sarkar,
Add. Hospital Para,
P.O. Bethuadahari,
Dist. Nadia, West Bengal
OPPOSITE PARTIES/OPs : 1) The Manager,
State Bank of India,
Bethuadahari, Dist. Nadia,
West Bengal, PIN - 741126
2) State Bank of India,
Bethuadahari Branch, Dist. Nadia
West Bengal, PIN - 741126
PRESENT : SHRI PRADIP KUMAR BANDYOPADHYAY, PRESIDENT
: SHRI SHYAMLAL SUKUL, MEMBER
: SMT REETA ROYCHAUDHURY MALAKAR, MEMBER
DATE OF DELIVERY
OF JUDGMENT : 21st October, 2013
: J U D G M E N T :
The instant case was filed by one Ms. Bipasha Sarkar, D/o Mr. Biplab Sarkar, a resident of Hospitalpara, P.O. Bethuadahari, Dist. Nadia, against the opposite parties State Bank of India with an allegation of deficiency in service.
Shorn off the unnecessary details, the material facts of the present case are: the complainant Mr. Bipasha Sarkar availed an educational loan of Rs. 2,80,000/- at the rate of 9.5% pa from the opposite parties State Bank of India on 09.03.2005 and she executed necessary documents pertaining to aforesaid educational loan. The aforesaid loan amount was payable in 84 instalments each amounting to Rs. 4,575/- commencing from the completion of the course or after 6 months of getting job. The complainant paid her first EMI of Rs. 5,000/- on 24.07.2008. The complainant was taken aback by noticing that a huge amount of Rs. 3,50,478.37 was still outstanding as per the latest statement of her loan account supplied by the OP No. 1 Bank on 19.07.11 though she had already repaid Rs. 2,28,593/- to the OP No. 1 Bank. The complainant alleged that the OP bank had extorted the money of the complainant by an amount of Rs. 1,41,756.09 in the form of interest. The complainant took the matter with the OP Bank for remedy, but to no avail. The grouse of the complainant was that the OP Bank had charged him interest @ 14.75% instead of @ 9.50% which was absolutely illegal as the OP No. 1 Bank had no liberty to change this rate. Subsequently, the matter was taken up with the Banking Ombudsman but nothing was done. It was in this background the complainant had been constrained to approach the learned Forum by filing a complaint under Section 12 of the Consumer Protection Act, 1986, praying for reliefs as stated in the petition of complaint.
On being served, opposite parties Bank entered appearance and contested the case by filing written version challenging, inter alia, the very maintainability of the case. The opposite parties Bank have got to say the proceeding is misconceived, malafide and groundless, unsustainable in law. On such ground the opposite parties Bank pray straightway dismissal of the case.
The core points that arise for consideration are:
- Whether there was any sort of negligence or deficiency in service on the part of the opposite parties Bank in charging the complainant interest @ 14.75% instead of @ 9.5%?
- Whether the complainant is entitled to get the relief, if so, to what extent?
DECISIONS WITH REASONS
At the very outset, let us note that in order to substantiate their respective cases the parties did not prefer adducing any verbal evidence despite opportunity given to them. They relied upon documentary evidences only. The status of the complainant as ‘consumer’ is nowhere challenged by the opposite parties. Documents on record indicate beyond doubt that the complainant happens to be ‘consumer’ as per meaning of the terms laid down under Section 2(d) of the Consumer Protection Act, 1986.
Other question relates to the point of limitation. To get relief under Consumer Protection Act, one is to bring one’s petition of complaint within a period of 2 years from the date of ‘cause of action’ has arisen. On this point too the complainant is on the right side of the matter.
The fate of the present complaint hinges on the answer to the question as to whether the opposite parties Bank was justified in charging the complainant interest @ 14.75% p.a. instead of @ 9.5% p.a. and by doing so whether the opposite parties Bank have committed any negligence / deficient in service.
Now we switch over to the pivotal question involved in the present case whether the opposite parties Bank were negligent / deficient in service in charging the complainant enhanced rate of interest and on account of that the complainant suffered heavy loss. Ld. Advocate representing the complainant contends that it is a glaring example of utter deficiency in service on the part of the opposite parties Bank. The complainant had availed an ‘Education Loan’ of Rs. 2,78,700/- and she repaid Rs.2,28,593/- by the date of obtaining the statement of loan account i.e., 10.09.2012. In spite of that repayment the statement of loan account supplied by opposite parties Bank revealed that a huge amount of Rs. 3,50,478.37 was still outstanding on the said date i.e., 10.09.2012. This is nothing but extortion of hard earned money of the complainant in the form of interest by an amount of Rs. 1,41,756.09. The opposite parties Bank arbitrarily increased the rate of interest from 9.5% p.a. to 14.75% p.a. in disguise of guidelines of Reserve Bank of India (R.B.I.). The aforementioned statement of account is a fictitious one based on wrong calculation of interest as well as penal interest. The complainant took up the matter to the Banking Ombudsman on 13.06.2012 (Complaint No. 201112005004654 with a hope for the best but to no avail. That apart the complainant and her guarantor were kept in dark about the terms and conditions of the aforesaid ‘Educational Loan Scheme’ as the opposite parties Bank neither provided the complainant with the brochure containing those terms and conditions nor explained them to the complainant. Moreover, the unilateral enhancement in the rate of interest is totally illegal and unwarranted as the opposite parties Bank had deviated from the contract performed between the parties by not giving any information to the complainant about the fluctuation of interest rate. Thus the opposite parties bank fall squarely within the mischief of unfair trade practice as well as deficiency in service. Under these circumstances, the complainant is entitled to get compensation for mental harassment and costs of the proceeding in addition to the loss suffered by this complainant.
In rebuttal, ld. Advocate representing the opposite parties bank humbly submits that the petition of complaint of the complainant is a pack of lies. Firstly, the complainant in her averment falsely stated that she had availed an education loan of Rs.2,78,700/- from the opposite parties bank. But ‘Arrangement Letter – Education Loan Scheme’ duly signed by the complainant Bipasha Sarkar, her father, Biplab Sarker and guarantor, Banshi Badan Banik. The said arrangement letter states “With reference to your application dtd. 25.02.2005 we hereby sanction you a Term Loan of Rs. 2,80,000/- (Rupees two lakhs eighty thousand only) on the following terms and conditions.” Thus, the complainant misrepresented the Forum regarding loan amount.
Secondly, the complainant had taken a silly plea that she entered into the said loan contract without knowing the terms and conditions of the contract as the opposite party No. 1 Bank neither furnished the complainant with the terms and conditions of the said loan nor explained those to her. This plea is out and out false. It is illusory that the complainant, an Honours Graduate in Commerce discipline entered into the said agreement without knowing the ins and outs of this agreement. But the fact is that the complainant approached the opposite party No. 1 Bank to avail the said loan after knowing the pros and cons of the said loan scheme and after proper verifications of the contents of the Proposal Form (annexure-A), Arrangement Letter – Educational Loan Scheme (annexure-B) and Agreement for Term Loan for SBI Educational Loan Scheme (annexure-C), she agreed to take loan and also put her signature thereon.
Thirdly, the complainant falsely averred the statement of loan account supplied by the opposite parties Bank was fictitious one and based on wrong calculation of interest and penal interest. The interest was charged as per the guidelines of the Reserve Bank of India and the opposite parties Bank bound to follow those guidelines. In the present case the complainant had failed to maintain financial discipline and committed defaults towards repayment of loan within time for that interest was calculated thereon and the aforementioned outstanding dues including interest had been duly reflected in the statement of account. Hence, the said statement of account is correct and sacrosanct.
Ld. Advocate for the opposite parties bank pleads that the complainant averred that the opposite parties Bank had increased the rate of interest from 9.5% per annum to 14.7% per annum illegally and unwarrantedly. In order to negate that ld. Advocate representing the opposite parties Bank humbly submits that loan amount was sanctioned to the complainant on the floating rate of 9.5% per annum as on date and loan agreement was executed between parties. The interest of disbursed amount was only incurred as per loan agreement whereby the complainant had opted for floating rate of interest. So the rate of interest could be changed as per agreement. Therefore, the enhancement of interest is not illegal and unwarranted. To substantiate his stand ld. Advocate for the opposite parties Bank invites out attention to the Clause-3 of the ‘Agreement Letter – Education Loan Scheme (annexure –B) which reads as follows:-
“3. Rate of interest.”
Interest on loan will be charged at (SBMTLR / 0.75% p.a. below SBAR which is currently 10.25% per annum (The current effective rate being 9.5% p.a.” with quarterly rests. The rate of interest is subject to revision from time to time and you shall be deemed to have notice changes in the rate of interest whenever the change in SBMTLR are displayed / notified at / by the branch / published in Newspaper / made Through entry of interest charged in the passbook / statement of account sent to you etc. In the event of default in payment or any irregularity in account penal interest @ 2% per annum over the agreed interest will be charged for overdraft amount for over due period”. This shows that the opposite parties No. 1 Bank had acted bonafide without fraud and deceiption and within the bounds of their authority.
The main thrust of the complaint is that the opposite parties enhanced the rate of interest unilaterally not informing the complainant which amounts to deficiency in service. Ld. Advocate representing the opposite parties Bank rebuts the said charge and pleads that the opposite party No. 1 Bank followed the clause 3 of the ‘Arrangement Letter’ in informing the complainant about the enhancement of the rate of interest. The said clause provides alternative avenues for giving information to the complainant about the enhancement of the rate of interest. Thus, the opposite party No. 1 Bank is under no obligation to inform the complainant by post about the increase in the rate of interest. The opposite parties bank cannot be implicated deficient in service.
Ld. Advocate of the opposite parties Bank further invites our attention to the letter of the Banking Ombudsman dtd. 06.07.12 addressed to the complainant (annexure-8) wherein it was stated, “VI) ROI on education Loan is linked to SBAR (i.e., 0.75% below SBAR presently it is 14.75%.” The aforesaid observation of the Banking Ombudsman once again confirms opposite parties’ bonafides. Under this circumstances, the opposite parties pray that the present motivated complaint of the complainant be rejected outright with costs.
We have given our anxious thoughts to the arguments advanced by the ld. Advocate for both parties and also to the facts of the case and evidence on record.
In view of those solid and unflappable evidence and the contention of the opposite parties the case of the complainant pales into insignificance. The opposite parties have firmly established their case. Under the circumstances, the complainant has no bone to pluck with the opposite parties. Being a defaulter the complainant in flat contradiction had filed this case and prayed for reliefs. But the legal maxim is “Nemo ex proprio dolo consequitur actionem”. Nobody can be rewarded for his own faults. None acquires a right of action for his own wrong. Therefore, the complainant in the circumstances of this case cannot claim any compensation and in view of this default in payment instalments regularly there is no deficiency on the part of appellant/OP. [Life Insurance Corporation of India V. D.K.G. Murthy, Principal V. R. College III (2001) CPJ 207 (AP) (2002) 1 CPR 223 (AP).]
At this juncture it is pertinent to mention here that the complainant appeared in this Forum with unclean-hands. She had suppressed the fact that she was a chronic defaulter and she also made false averment in her petition of complaint. ‘Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document it will successfully stall the litigation, and in any case, delay the matter endlessly which is contrary to this avowed purpose of the Consumer Protection Act, which is to provide a speedy and efficacious remedy to the consumer.
It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless petitions in different Fora. Time and again courts have held that if any litigant approaches the court of equity with unclean hands, suppress material facts, make false averments in the petition and tries to mislead and hoodwink the judicial Forums, then his petition should be thrown away at threshold, Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of fruits of the degree must be dealt with heavy hands.
In view of the above observations we feel that the present complaint of the complainant is nothing but a gross abuse of the process of law as well as the complaint/petition is totally devoid of merit, frivolous and bogus one. As such, the same is liable to be dismissed with punitive cost.
Accordingly, it is
Ordered,
That the present petition of complaint is dismissed with punitive cost of Rs.10,000/- (Rupees ten thousand only). The complainant is accordingly directed to deposit the costs by way of cross cheque / Demand Draft for sum of Rs. 10,000/- (Rupees ten thousand only) in the name of ‘State Consumer Welfare Fund’ within a period of four weeks from today. In case, costs are not deposited within the prescribed period, then the complainant shall be liable to pay interest 9% p.a. till realization.
