Complaint filed on: 24-10-2011
Disposed on: 19-04-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.1964/2011
DATED THIS THE 19th APRIL 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
U.Madhav Kamath
Aged about 60 years,
S/o. Srinivas,
Syndicate Bank Colony,
Magadi Main Road,
Bangalore-79
V/s
Opposite parties: -
1. The Nodal officer,
ICICI Bank Limited,
5th floor, Md.Illyas Khan Estate, Road no.1, Banjara Hills, Hyderabad-34
2. The Nodal Officer,
ICICI Bank Ltd,
Credit cards Section,
Post box no.36, Vashi at post,
Navi Mumbai-03
3. The Nodal Officer,
ICICI Bank Ltd,
Head office, No.1, 2nd floor,
ICICI Bank Towers,
Shobha Pearl,
Opp Mayo hall,
Bangalore-25
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OPs, under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OP no.1 to close the loan account pursuant to the letter dated 6-2-2009, and to reactivate the credit card to its original position, and to pay a sum of Rs.50,000=00 towards the damages along with interest and cost.
2. The brief facts of the complaint can be stated as under.
The complainant had availed two credit card facilities from the OP bank bearing credit card No.9401270159555007 and No.4477462211446007, and the account was running smoothly without any interruption. The complainant at the instance of the OP had availed cash credit facility of Rs.3,58,000=00 under credit card no.9401270159555007 and cash facility of Rs.42,000=00 under credit account no.4477462211446007 during Feb.2008 agreeing to repay the same in 24 equal monthly installments with interest at 15% p.a. But the OP had started to charge 20% interest instead of 15% agreed rate of interest. The complainant immediately, brought this fact to the notice of the nodal officer by addressing a letter. The complainant made the re-payment of the installment under EMI till 2009. Being fed up by the conduct and the attitude of the OP, the complainant has decided to clear the entire loan amount in one installment and accordingly, he had addressed a letter dated 6-2-2009 by enclosing two cheques bearing nos.598418 and 598417 dated 6-2-2009 drawn on Syndicate Bank, Vijayanagara branch, Bangalore for a sum of Rs.2,07,081=00 and Rs.44,470=00 respectively towards the full and final settlement of the loan facility. The said cheques have been encashed by the OP bank. Inspite of making repayment, the OP have not issued No Due Certificate for having cleared the loan facility. Hence he got issued a letter dated 28-4-2010 intimating about the clearance of the loan, the complainant had addressed letters dated 26-5-2010 and 19-10-2010. Even though the complainant had addressed series of letters, the OP has not at all bothered to issue no due certificate or clearance certificate. Because of this conduct of the OP, the complainant was forced to issue the legal notice through his advocate. The said legal notice is served on the Ops. Even though the complainant cleared the loan account and used to make credit card bills regularly on time, the OP bank has blocked the credit card arbitrarily without giving proper intimation or reasons for the best known to OP bank and to shock and surprise, the complainant started to receive threatening phone calls from the OP bank and they started to harass the complainant by demanding the payment. The action of the OP bank is against the natural justice and the same is opposed to law. The OP bank instead of closing the loan account as per the request of the complainant in the year 2009 itself, started to harass and threaten the complainant. The OP bank is not supposed to act according to their whims and fancies. The OP bank ought to have closed the loan account on receipt of the letter from the complainant after encashing the cheque issued by the complainant towards the full and final settlement of the loan account. The OP has deliberately done these misdeeds with an intention to make unlawful gain. The OP has played a fraud on this complainant. The complainant left with no other alternative except to approaching this forum for relief sought in the complaint. Hence, the present complaint.
3. After service of notice, the Ops no.1 and 2 have appeared through their counsel, and filed version, contending inter-alia as under:
The complaint is not maintainable either in law or on facts. The complainant is not a consumer as per the provisions of the Consumer Protection Act, as the relationship between the complainant and OP is debtor and creditor; so on this account alone, the complaint has to be dismissed. The OP is a banking company known for its services and reputation in the industry. In the course of its business, the OP bank officers offered credit card facilities to its customers. It is an undisputed fact that the complainant had availed two loans on his card in card no.9401270159555007 and card no.4477462211446007 the former being for sum of Rs.3,58,000=00 and latter for a sum of Rs.42,000=00 at 15% interest per annum. However, it is false that the OP bank against its assurance has levied 20% of interest on the principal outstanding amount. In reality the real disputes arose on the payment of service tax by the complainant towards the loan account and not on interest as contended by the complainant. After the complainant applied for loan agreeing to abide by the stipulated rate of interest and other laid down terms and conditions of the loan agreement, the OP bank proceeded forward sanctioning him the said loan. In pursuance of the same, the OP bank dispatched the letter dated 13-2-2008 enclosing with a cheque for loan disbursal sum of Rs.3,58,000=00 and an amortization schedule gives complete details about loan repayment mentioning the interest as 15% accordingly. If the complainant felt that the terms of the facility were not agreeable the complainant should have refrained from availing the facility. Instead the complainant accepting the said cheque has availed the facilities of the OP bank, the said act of the complainant proves that he is falsely alleging on the OP bank to evade liability held towards his loan account. The service tax is different from interest rate stands by its own self. Rate of interest on different kind of loans is determined in accordance with the guideline set out by the RBI, where as service tax is a statutory compliance payable in accordance with relevant regulation. Hence, both cannot be intertwined together. It is an undisputed fact that the complainant had availed a personal loan repayable on EMI basis on the fixed loan tenure of 24 months. As per the terms and conditions of the facility, in case the complainant for any reason intends to pre-close the loan account as per the agreement, he is required to put forth a foreclosure request by e-mail or over the phone instructing the OP bank to process his request for foreclosure, and as the complainant failed to request for foreclosure of his loan account, the part payment made by the complainant for sum of Rs.2,07,081=00 and Rs.44,470=00 were taken as remittances towards EMI’s and accounted accordingly towards his loan account. Subsequently, in this regard the OP bank in its reply dated 17-11-2010 clearly stated that owing to non receipt of request from the complainant to foreclose the account, the OP bank had not been able to foreclose the loan amount and the part payment made by the complainant were adjusted towards EMI. Subsequently, the OP bank informed the complainant on 20-12-2010 i.e. due to pay sum of Rs.63,357=00 towards his loan account 94010270159555007 and sum of Rs.10,795.05 towards loan account no.4477462211946007 continuing the OP bank afforded him an opportunity to the complainant calling upon him for settlement on the payment of the said outstanding dues accordingly. However, the complainant discarded the settlement offer proposed by the OP bank and failed to meet the officials of the OP bank and settle the matter. The OP bank issuing a reply to legal notice, the OP bank by settlement had offered the complainant to nullify the outstanding sum of Rs.63,357=00 and Rs.10,795=00 and issue NOC towards discharge of liabilities of the complainant which he owed towards his loan account. However, even after filing of this complaint the OP bank proposed settlement, but the complainant had been demanding payment of Rs.15,000=00 from the OP bank illegally along with settlement, which is against the principles of moral justice and law. The complainant is himself due to pay the above sum of Rs.63,357.06 and Rs.10,795.05 as per the statement of account. In fact, the complainant himself being defaulter of card account has no locus standi to file this complaint. Hence, the complaint is liable to be dismissed, directing the complainant to pay the outstanding dues of the above said amounts with exemplary cost in the interest of justice and equity.
4. So from the averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration.
1. Whether the complainant proves that, the action of the OP in not closing two loan accounts after encashing the cheques for Rs.2,07,081=00 and RS.44,470=00 issued by him amounts to deficiency in service
2. If point no.1 is answered in favour of the complainant, whether the complainant is entitled to claim the amount as prayed in the complaint.
3. What order?
5. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: In the Negative
Point no.3: For the following order
REASONS
6. So as to prove the case, the complainant has filed his affidavit by way of evidence, and produced 14 documents with list dated 24-10-2011. On the other hand, one Nimi Nair, designated manger in the OP bank has filed affidavit by way of evidence. We have heard the arguments of both sides. We have gone through the oral and documentary evidence of both parties in between the line.
7. The complainant by name U.Madhav Kamath has filed his affidavit stating that, he had availed two credit card facilities from OP bank bearing credit card no.941270159555007 and No.4477462211446007. At the instance of the OP, he had availed cash credit facility to the tune of Rs.3,58,000=00 under credit card no.941270159555007, and cash facility of Rs.42,000=00 under credit account no.4477462211446007, during the month of Feb.2009 agreeing to repay the same in 24 equal monthly installments with interest at 15% per annum. But, the OP had started to charge 20% interest instead of 15% agreed rate of interest and he brought this fact to the notice of the nodal officer by writing a letter, he made re-payment of installment under EMI till 2009. Being fed up with the conduct and the attitude of the OP, he has decided to clear the entire loan amount in one installment and accordingly, he had addressed a letter dated 6-2-2009 by enclosing two cheques bearing nos.598418 and 598417 dated 6-2-2009 drawn on Syndicate Bank, Vijayanagara branch, Bangalore for a sum of Rs.2,07,081=00 and Rs.44,470=00 respectively towards the full and final settlement of the loan facility. The said cheques have been encashed by the OP bank. Inspite of making repayment the OP have not issued No Due Certificate. So, he got issued a letter dated 28-4-2010 intimating about the clearance of the loan, and he had addressed letters dated 26-5-2010 and 19-10-2010. But, OP did not bother to issue no due certificate or clearance certificate, and he was issued legal notice, and that notice has been served on the Ops. Even though the complainant cleared the loan amount and used to make credit card bills regularly on time, the OP bank has blocked the credit card arbitrarily, without giving proper intimation or reasons, for the reasons best known to the OP, and to his shock and surprise, the OP started to make threatening phone calls, and harass him by demanding the arrears from him which is not supposed to pay, the agents of the OP started to threaten him with dire consequences. The action of the OP bank is against the natural justice and the same is opposed to law. The OP bank is not supposed to act according to their whims and fancies. The OP bank ought to have closed the loan account after encashing the cheques issued by him towards the full and final settlement of the loan account. The OP has played a fraud on this complainant, the action of the OP in this matter is nothing but deficiency in service and he is a consumer under the CP Act. So, he filed this complaint, and it is prayed to allow the complaint as prayed for.
8. On careful reading of the complaint and evidence of the complainant, and version of the OP, it is an undisputed fact between the complainant and OP that, on Feb.2008, the complainant had availed cash credit card facilities to the tune of Rs.3,58,000=00 and Rs.42,000=00 under the credit card no.9401270159555007 and No.4477462211446007 under credit account no.940120159555007 and No.4477462211446007 respectively from the OP bank agreeing to repay the said loan amount in 24 equal monthly installment with interest at the rate of 15% per annum. In this regard, the complainant has produced a letter dated 13-2-2008 issued by the OP bank and amortization schedule of the OP, and in the amortization schedule, EMI was fixed at Rs.17,357=00 which includes principal and interest, but the complainant has not produced the sanction letter issued by the OP for having sanctioned two credit card loan facilities. The complainant has stated both in the complaint and during the course of evidence that, the OP has charged interest illegally at the rate of 20% interest instead of 15% interest. But, no iota of documentary evidence is produced by the complainant to demonstrate before the forum that, the OP went on charging 20% interest on the loan amount illegally instead of 15% as agreed. We are unable to understand on what basis, the complainant has made attribution against the OP that interest was charged at 20% illegally instead of 15%. In the absence of producing believable documentary evidence it cannot be inferred on presumption or assumption that the OP bank has charged interest at the rate of 20% illegally instead of charging 15% interest as agreed. Amortization schedule produced by the complainant goes to shows that, service tax is applicable on the interest amount and processing fees charges is levied and accordingly the OP has levied process fees charges and service charges on the interest amount. Having availed loan by the complainant after agreeing to the terms and conditions of the OP bank he is estopped from contending that he is not liable to pay service tax and processing charges. The complainant has produced one letter copy dated 6-2-2009 written by him addressed to the Nodal Officer, ICICI Bank Ltd, stating that, he is enclosing two cheques dated 6-2-2009 for Rs.2,07,081=00 and Rs.44,470=00 drawn on Syndicate Bank, Vijayanagara branch, Bangalore towards full settlement of loan and along with this letter two cheques for Rs.2,07,081=00 and 44,470=00 were submitted and this letter and cheques were dropped in the ICICI Bank in Vijayanagara branch, Bangalore. The complainant has produced one more letter copy at document no.3, addressed to the Nodal officer challenging the rate of interest and service charge, processing charge and letter was written on the letter head of the complainant and that letter had disclosed that, the complainant is working as manager, Syndicate Bank, Vijayanagara, Bangalore and he is not a ordinary person. The complainant knew fully well, how the loan raised in the bank should be closed by loanees before dropping two cheques along with letter dated 6-2-2009 in the box of the OP bank. The complainant ought to have submitted an application before the OP bank for foreclosure of the loan account and taken permission and after knowing the balance amount of the loan, he should have submitted cheques to the OP bank towards full and final settlement of the loan account. Instead of doing so, the complainant has made his own calculation of the loan and dropped the cheques along with letter to close the loan account. The said act of the complainant in dropping two cheques dated 6-2-2009 along with the hand written letter requesting to close the loan account, without making request for foreclosure tantamounts to violation of terms and conditions of the OP bank. In view of the non receipt of request letter from the complainant for foreclosure of the loan account, the OP bank has not become able to close the loan account and whatever payment made by the complainant through two cheques for Rs.2,07,081=00 and Rs.44,470=00 were adjusted to EMI. Still the complainant is in arrears of Rs.63,357=00 and Rs.10,795.05 towards loan account No.9401027015955007 and No.4477462211946007, since the complainant did not pay the balance amount of loan. So, the OP has blocked the credit card as per terms and conditions of the loan transaction. The oral evidence of the complainant that the action of the OP in not closing the loan account as per his request is against the natural justice and opposed to law, is not corroborated by any convincing documentary evidence. On the other hand, the OP has stated both in the version and evidence that, the OP has acted in accordance with terms and conditions of the bank and there is no deficiency of service on the part of the OP and the complainant has failed to pay the arrears of the loan amount and he is chronic defaulter in paying the arrears of the loan and he acted contrary to terms and conditions of the loan transaction. So taking into consideration, the oral evidence and documentary evidence of the complainant and compare the same with the material evidence of the OP, we are of the view that, the complainant has failed to pay the arrears of loan amount as per terms and conditions of the OP bank and he violated the terms and conditions of the bank and acted at his whims and fancies to cause inconvenience and loss to the OP by filing the complaint under the Consumer Protection Act. In fact, the OP has not committed any deficiency of service and on contrary, the complainant has violated the terms and conditions of the OP bank and dropped the cheques along with letter as per his own calculation without taking permission from the OP bank for foreclosure of the loan account. So looking to the case of the complainant, on the back ground of nature of loan availed by the complainant and conduct of the complainant in dropping two cheques along with letter towards the full settlement of loan account as per his own calculation, without taking permission from the OP bank for foreclosure of the loan account, we are of the considered opinion that, the complainant himself is defaulter in paying the arrears of two loans availed, and he has acted contrary to the terms and conditions of the bank and he is negligent in discharging the loan correctly, and there is no deficiency in the service of the OP, and accordingly we answer this point in a negative.
9. In view of the negative findings on point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. Since, the complainant has not approached this forum with clean hands, so his complaint is liable to be dismissed with cost of Rs.1000=00. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed with cost of Rs.1000=00.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 19th day of April 2012.
MEMBER MEMBER PRESIDENT
