Being aggrieved by and dissatisfied with the opposite party no- 1&2 the complainant has filed the present complain under Section 35 of the Consumer Protection Act, 2019 before this Commission.
From the case record it is established that the complainant is a consumer of the O.Ps. The complainant has both the territorial and pecuniary jurisdiction for filing the case before this commission.
The case of the Complainant in a gist is that the complainant is a businessman deals in computer related service. In the beginning, the complainant transfers his home loan account from proforma opposite party no- 1 to proforma opposite party number – 2&3. Presently the complainant had a home loan existing from proforma OP No.2 and 3. In 2020 the Complainant applied for a Balance Transfer and top up (BT) loan from the opposite Party No.1and 2 (Axis Bank). The complainant has also paid an amount of Rs.2, 950/- towards “login charges” and Rs.5, 900/- towards “processing charges” to the Opposite Party No.l and 2 on 07/03/2020 and 21/03/2020 drawn on IOB, Jalpaiguri (POP-4). Thereafter the complainant received two SMS in his mobile phone from the Opposite Parties 1&2 on 18.03.2020 and 20.03.2020 informing the Complainant that the loan amounting to Rs.13, 05000/- and Rs.6, 83,000/-respectively have been sanctioned by the OP-1&2. The main grievance of the complainant is that even after sanction of the loan by the Opposite Parties-1&2 the said O.P did not disburse the loan amount to the complainant. In his petition the complainant said that he has avail moratorium from the Proforma Opposite Party No.2 and 3 during the corona pandemic.
Thus, this instant case has been filed by the complainant for the unfair trade practices and deficiency in service on the part of the Opposite Party No.1 and 2.
Following reliefs are shouted in favour of your complainant:-
a) Direction upon the Opposite parties jointly or severally for making payment of Rs 19, 88,000/- only in accordance with SMS (Short Messaging Service) over his phone received from the Opposite Parties on 18/03/2020 vide application ID No 12180147 for Rs 13,05,000/-and another on 20/03/2020 vide application ID No 12195325 for Rs 6,83,000/- and disburse the said sanctioned amount in favour of the complainant accordingly.
b) Direction upon the Opposite parties jointly or severally for making payment of Rs 30,00000/- only to your complainant on account of mental trauma, agony, harassment towards your complainant by way of deficiency in service, unfair trade practice and sufferings due to loss of opportunities and repute as well as deep economic crunch of the complainant due to not disbursing said sanctioned loan at appropriate time by the Opposite parties.
c) Cost of Litigation of Rs 12,000/- only.
d) Direction upon the Opposite parties to pay the complainant the interest accrued on awarded amount @ 12% calculated at monthly rests from the date of cause of action till actual realization.
e) Any other relief or reliefs which your complainant is entitled to.
The Opposite Party No.l and 2 appear before this commission and filed their Written Version, Evidence on affidavit and brief notes of argument and also participate in the hearing of argument. The main contentions of the Opposite Party No.l and 2 are
- Ld. Commission does not have any jurisdiction to entertain this instant complainant.
- Complainant is not a consumer within the meaning of the Consumer Protection Act.
- The present case is also defective due to non-joinder and mis-joinder of necessary parties.
- There is no cause of action against the Opposite Party No.1 and 2 to file this present case.
The Opposite Party No.l and 2 stated that said loan was sanctioned in the month of March, 2020 but was not disbursed to the complainant because the complainant had applied and availed two moratoriums (cash moratorium consisting of three months) from the bank (Proforma Opposite Party No.2 and 3, ICICI bank) from which the Balance Transfer had to be taken over. The two moratoriums prevailed for six months and during the period of moratorium the loan could not be disbursed. Opposite Party No.l and 2 mention that a sanction letter is valid only for 6 months (180 days) and since from the date of application, six months (180 days) had already been over hence the Opposite Party No.l and 2 could not disburse the loan amount and validity of the sanction letter had already expired.
Proforma opposite party no- 1, 2, 3 files W.V and this case run expartee against proforma opposite party no-4. Complainant has no claim against any proforma opposite parties.
Decisions with reasons
In the their W.V para 13 (C) the proforma opposite party no.2 and 3, ICICI bank mentioned two important things
- All the loan accounts (Three loan accounts) of the complainant are in their bank are active and the amounts have been disbursed for these accounts.
- The complainant had availed moratorium for the period of April 2020 to August 2020.
In the context of the factual background of the present case, we have no doubt in our mind that the complainant availing moratorium when he applied for a Balance Transfer and top up (BT) loan from the opposite Party No.1and 2 (Axis Bank). A moratorium is generally availed by borrowers who are facing cash flow problems. As adequate repaying capacity or income source is a requirement for approving loans, the new lender may wait for the end of the moratorium and resuming the repayment for giving a loan to such borrower. As the moratorium ends on August 31st, the complainant could apply for the balance transfer after a few months of repaying regular EMIs. This could help the complainant in proving his repayment capacity to the new lender Axis bank. If anybody have availed of moratorium on equated monthly installments (EMI) and is planning to switch his/her loan to another lender offering a lower interest rate, it is likely that his/her application might get rejected. Once an account comes out of moratorium and a few EMIs are paid regularly, it can be transferred. The opposite Party No.1and 2 (Axis Bank) has no deficiency of service about the sanction of loan to the complainant when he was availing moratorium on equated monthly installments (EMI).
Also, in view of the judgment of National Commission in UCO Bank and two others vs. Gul Bahar Bano and another in FA 45/14 decided on 11/09/2018, wherein the Hon. National Commission held that the consumer 15 F.A.No:1065-19 forum has no right to direct any financial institution to provide a loan to a particular party, as this is a function of financial institution to examine the proposal and then to sanction or not to sanction the loan after assessment of credit worthiness of the concerned applicant. Therefore, in our opinion the opponent bank cannot be directed to reconsider the proposal when sanction of the loan. It is the prerogative of the Bank. In our opinion, the complainant is at liberty to approach the Bank again at his choice.
In an another part of the complaint petition the complainant argued that he has also paid an amount of Rs.2, 950/- towards “login charges” and Rs.5, 900/- towards “processing charges” to the opposite party no.l and 2 on 07/03/2020 and 21/03/2020 drawn on IOB, Jalpaiguri (POP-4). This matter has never challenged by the O.P-1&2. From the case record it is also transpired that the O.P-1&2 never inform the complainant about the cancelation of sanctioned loan for which they have taken amount of Rs.2, 950/- towards “login charges” and Rs.5, 900/- towards “processing charges” (Total Rs. 8850/-). In their B.N.A O.P-1&2 stated that “The bank was also functioning under several restrictions as laid down due to corona pandemic and hence the customer's urgent needs were looked into”. So, it is crystal-clear that the O.P-1&2 (Axis Bank) never fell to inform the present complainant about the cancelation of sanction loan. This is totally an unfair trade practices and deficiency in service on the part of the Opposite Party No.1 and 2 for which the complainant faces mental trauma, agony, harassment and financial lose.
Based on the above discussion, the complaint filed by the complainant is partly allowed against the O.P-1&2 and dismiss against other opposite parties. The O.P-1&2 are directed as under:-
(i) To refund an amount of Rs.2, 950/- and Rs.5, 900/- to the complainants within a period of 45 days.
(ii) The O.P-1&2 shall pay a compensation of Rs.20,000/- (rupees twenty thousand only) to the complainant within a period of 45 days from the date of this order, failing which, an interest @9% p.a. shall be payable by the O.P-1&2 bank to the complainant.
Complainant is given liberty to execute the order as per law if not paid by the OPno-1&2.
Let a copy of the order be sent / supplied at free of cost to the parties concerned.
The Final Order will be available in the following website www.confonet.nic.in
