DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  28^th day of February, 2023

Present      :   Sri. Vinay Menon V.,  President

                  :  Smt. Vidya A., Member                        

                  :  Sri. Krishnankutty N.K., Member                                Date of Filing: 01/08/2018     

                         CC/95/2018

Emmanuel Thomas,

Kappil House, Karimba (PO),

Palakkad – 678 597                                                     -                       Complainant

(By Adv. K.Sasidharan)

V/s

The Manager,

M/s. HDFC Bank Ltd.,

College Road Branch, Palakkad – 678 001.                -                       Opposite party  

(By Adv.K.A.Kailas)

O R D E R

By  Sri. Vinay Menon V., President

1. Per pleadings, the complainant is aggrieved by the excess amount that was levied from him as interest by the opposite party bank on a Rs.300 lakhs credit facility sanctioned to him. As per complainant, the bank had debited excess interest charges totaling 5,18,855/- for a period of 16 months covering October, 2014 to June, 2016. Even after repeated requests the opposite party had failed to rectify this error.  The complainant had already approached the Banking Ombudsman, and had availed some reliefs. This complaint is filed since the Banking Ombudsman did not compensate him in its entirety. Complainant seeks a direction by this Commission to the opposite party to repay an amount of Rs.4,18,599/- being the balance amount due from the opposite party to the complainant after payment in the proceedings before the Ombudsman.
2. Opposite party entered appearance and filed version admitting the facts except for debiting of excess interest. Once having approached the Banking Ombudsman, this complaint is barred by Res-judicata. The complaint is barred by limitation. The opposite party had charged interest only in accordance with RBI Rules & Regulations. There is no deficiency of service whatsoever.
3. The following issues arise for consideration 

1. Whether the complaint is barred by resjudicata ?
2. Whether the complaint is barred by limitation?
3. Whether the opposite party has charged excess interest?

4.         Whether there is   deficiency in service/unfair trade practice on the part of the opposite party?

5.         Whether the complainant is entitled to any of the reliefs sought for?

6.         Reliefs, if any?

4.                     Complainant filed proof affidavit and marked Exts.A1 & A10.
Complainant was examined as PW1.

Opposite party filed proof affidavit and marked Exts.B1 to B5. Witness for OP was examined as DW1.

Issue No.1

5. Admittedly the complainant had approached the Banking Ombudsman seeking reliefs under the same cause of action as stated in this complaint. Banking Ombudsman is an Authority that is competent to consider the dispute as the one raised by the complainant. The said complaint before the Banking Ombudsman i.e. CTS 2861/2016-17 was disposed off on 30/06/2017 upon the opposite party bank identifying the excess debit of Rs.69,737/-. The said amount was refunded.  The matters were considered by the learned Banking Ombudsman after a thorough perusal of the facts and circumstances of the case.   The complaint was closed as per its order dated 30/06/2017, which is marked as Ext.A9. 

6. This complaint is filed seeking the balance amount that was sought by the complainant but which claim the Banking Ombudsman refused to consider. 

7. The Banking Ombudsman, being an Authority statutorily constituted by law to consider and adjudicate the disputes like the one herein, any traverse by this Commission into any of the facts that had been considered by the Banking Ombudsman will be uncalled for and might lead to repugnancy or absurdity. Legality or sufficiency of the order of the Ombudsman notwithstanding, fact remains that a legally meditated order was passed by a Statutory Authority after considering the pleadings and evidence adduced by the parties.  The complainant had an opportunity to appeal against this order before the Hon’ble High Court of Kerala under A.227 of the Constitution of India.

8. Hence, we find that this complaint is barred by Res-judicata.

Issue  No.2

9. The opposite party has a case that  this compliant is barred by limitation.

10. As per complainant, the error has occurred on various occasions between October 2014 to June 2016. Considering the nature of the business transaction of the complainant, we hold that the complainant would have noticed such variance in levy of interest immediately there itself.  Therefore the complaint ought to have been filed on or before 1/7/2018. This complaint is filed on 1/8/2016.

11.  Hence, we hold that this compliant is barred by   limitation also.

Issue  No.3

12. In view of the finding in Issue No.1 any further foray into the facts and circumstances of the case is uncalled for. Yet we are resorting to consider the facts and circumstances, for pedantic reasons, in view of the heated arguments raised by the counsel for complainant some months earlier, when we took up the matter for preliminary hearing on the question of maintainability based on Issue no. 1, to the effect that the matters which were considered by the Ombudsman could be totally dissected and considered anew without any fear of attracting resjudicata.  He further argued that the glitch already occurred was a deficiency and this Commission can look into that fact also.

13. It is the case of complainant that he had availed around Rs.300 lakhs by way of credit facilities for which the bank had debited excess interest charges totaling Rs.5,18,855/- from October 2014 to June 2016.

14. It goes without saying that burden of proof rests with the complainant. In order to prove his case, the complainant ought to have proved that the excess debiting of interest constituted deficiency in service. A mere unintentional glitch in the system that went unnoticed will not be a deficiency in service.

What the complainant ought to have done was adduce evidence to highlight the terms and conditions governing the interest rates for the credit facilities availed by him and produce documents to prove that the bank had went wrong  or varied or deviated from the rates of interest that were contractually due from him to the bank; and also that such deviation tantamount to deficiency in service.

15. In order to substantiate his contentions, the complainant had marked Exts. A1 to A10. Witness for opposite party was examined as DW1. We are afraid to say that the aforesaid evidences are not adequate to prove the case of the complainant. Admittedly the complainant had submitted Exts. A5 & A8 interest calculation sheets. Unfortunately they are documents that were prepared by the complainant himself. There are no documents whatsoever available that was issued by the opposite party admitting any mistake on their part.

16. The complainant has also failed to call for documents pertaining to his loan account or calling for examination of the Manger who was in charge and who could depose well regarding the transactions between the complainant and the bank. Having failed to do so we are only to hold that the complainant has failed to prove that there stand excess amount over and above that was already allowed to him by the Banking Ombudsman. 

Issue Nos.4,5 & 6

17.      Apropos the findings above, we hold that the complainant has failed to prove that there is deficiency in service on the part of opposite party. The complainant is not entitled to any of the reliefs sought for.

18.      The complaint is accordingly dismissed on multiple counts of bar of Res-judicata, bar of limitation and the failure of complainant to prove his case by adducing cogent evience.

19.      In the facts and circumstances of the case the parties are directed to bear their respective costs.

Pronounced in open court on this the 28^th   day of February,2023.        

                                                                                                       Sd/-

                                                                                              Vinay Menon V

                                                      President

       Sd/-

   Vidya.A

                       Member        

        Sd/-                                                        Krishnankutty N.K.

                                                                                                      Member

APPENDIX

Exhibits marked on the side of the complainant :

Ext.A1 –  Copy of loan sanction letter dated 1/10/2014

Ext.A2 –  Copy of email communication dated 16/5/2017

Ext.A3 – Copy of renewal cum sanction letter dated 12/10/2015

Ext.A4- Copy of email communication dated 5/11/2014

Ext.A5 – Copy of monthly interest statement of  Season Trading Company.

Ext.A6 – Copy of details of insurance policy dated 7/5/2015

Ext.A7 -  Copy of details of insurance policy dated 22/4/2016

Ext.A8 – Copy of statement of interest calculation

Ext.A9 – Copy of order dated 30/6/2017 passed by the Banking Ombudsman

Ext.A10 – Copy of registration certificate of season trading company

Exhibits marked on the side of the opposite party:

Ext.B1 – Original of credit  sanction letter dated 15/7/11

Ext.B2 – Original of credit sanction letter dated 9/8/12

Ext.B3 – Copy of credit sanction letter dated 1/6/2013

Ext.B4 – Copy of credit sanction letter dated 9/10/15

Ext.B5 - Copy of credit sanction letter dated 23/05/16

Court Exhibit:  Nil

Third party documents:  Nil

Witness examined on the side of the complainant:

PW1 – Emmanuel Thomas (Complainant)

Witness examined on the side of the opposite party:  

DW1 – Sreekala S (AVP, HDFC Bank)

Court Witness: Nil

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.