In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/152/2021.
Date of filing: 02/12/2021. Date of Final Order: 20/03/2024.
Shri Sankar Kumar Ganguly,
s/o Late Ananta Kumar Ganguly,
r/o at 71/1, S.C. Chatterjee Street,
P.O. Konnagar, P.S. Uttarpara,
Dist. Hooghly, PIN 712235. ……complainant
-vs -
- The Nodal Officer,
IIFL Finance Ltd.
Having its regional office address:
1, Shakespear Sarani, A.C. Market,
-
- IIFL Finance Ltd., Registered office,
IIFL house, Sun Infotech Park,
Road no. 16V, Plot no. B-23,
Thane Industrial Area, Wangle Estate,
Thane- 400 604.……opposite parties
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the complainant took loan for a sum of rs. 3,82,583.59 in the year 2018 from the op no. 1 as he was urgent need of money at the material point of time vide load no. 1304336 and the agreement was signed by complainant on 16.6.2018 but copy of signed agreement paper along with sanction letter, repayment schedule were not provided intentionally and dishonestly despite repeated request. So that the rate of interest, insurance repayment period, principal loan amount EMI and terms and conditions etc were also unknown oven. Then several promise/ assurances were given to be maintained completely as per the rules & guidelines of RBI and Govt. of India by Mr. Surojit Nag, Inspector, IIFL Finance Ltd., Kolkata during inspections and enhances principal amount repayment period and EMI amount which is infringement of law and promise and know this malpractices & cheating on 11.3.2021 and the complainant is a fish merchant and running his business under the name and style of “Blue Ocean” and earn his livelihood by this profession only and the complainant had approached before the respondent for availing business loan in the year 2018 for enhancing his business and accordingly a loan had been sanctioned and granted of totaling amount of Rs. 3,82,583.59 being loan no. 1304336 paid by the respondent through RTGS dt. 4.7.2018 in favour of complainant and credited the same in his savings account no. 3170 2909 9155 of SBI, Konnagar Branch and started deduction of EMI from complainant’s account through ECS cheque from 3.8.2018.
The EMI amount of rs. 16,537/- interest rate, insurance type & premium, period of repayment etc was fixed up by the respondent as per their own desire without having any information to complainant which was not according to the law and compelled to pay more and the respondent had debited Rs. 4,79,573/- from complainant account on 3.8.2018 to 3.3.2021 through cheques (29 x 16.537/-) and also received Rs. 35,000/- on 28.10.2020 through NEFT total amount of Rs. 5,14,573/- towards the repayment of the said loan the complainant Rs. 3,82,583.59 on 4.7.2018 and as per law the total outstanding dues was Rs. 4,32,638.59/- so that Rs. 81,934.41/- was debited in excess payment and to cover up the total due amount will be required 26 installments not 36 or 39 installments and the respondents has demanded Rs. 6,44,943/- as per recorded including interest @34.8% again demanded Rs. 5,95,332/- and Rs. 5,80,522/- every demand are false, fake and illegal.
The interest rate as per RBI has 10.96% promised by representative of respondent was as per RBI rules and declaration give by respondent @14%, 15% & 24% but imposed @ 34.8% as per their pleasure and whimsical for which could not furnish till date any evidence or approval from Govt. of India in favour of the high rate interest and the respondent has taken initiative to make insurance unsolicitiatedly as per their desire converting insurance type and imposed high rate premium from their puppet insurance company and not mentioned anywhere in agreement as well as RBI guidelines that insurance would be made by respondent on behalf of the complainant and there was not approval given by RBI of this type of insurance for business loan.
The penal charges has imposed by the respondent of Rs. 1,24,325/- which was not only violation of law but frilling with the law and the complainant has appeared three lok adalot/ national lok adalot on 24.7.2021, 11.9.2021 and 13.11.2021 complain lodge by the respondent and raised the matter of excess payment refund but promised to be refunded within 7 days and also confessed the amount of Rs. 35,000/- was not adjusted with the outstanding dues but was violated by the respondent and the complainant has issued several letters regarding excess payment refund and if any outstanding due please explain details with evidence against said loan and also sent notice on 5.10.2021 to the Nodal Officer, IIFL Finance Ltd for remedies of injustice occurred on us but they neither submit evidences nor explain details from their end.
Complainant filed the complaint petition praying direction upon the opposite party to furnish statement of account of the loan account no. 1304336 and to pay a sum of Rs. 17,40,000/- towards compensation due to mental agony, harassment and unfair trade practice of the ops and to pay a sum of Rs. 1,00,000/- towards litigation cost and to pay a sum of Rs. 18,682/- towards interest of excess payment and to pay a sum of Rs. 10,325/- towards cheque dishonoured and to pay a sum of Rs. 28,106/- towards penal charges and to pay a sum of Rs. 10,000/- towards medical charges and to pay a sum of Rs. 81,934.41/ towards excess payment and to pay a sum of Rs. 6,000/- towards false statement regarding insurance.
Defense Case:- The opposite parties contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that at the very outset this application is not maintainable as the complainant while framing this application has not come with clean hands and has suppressed material facts and has done perjury with the ld. Commission on oath by suppressing material facts at the time of filing of this complaint and the complaint itself is not maintainable under the Consumer Protection Act as the same is a breach of contract at the end of the complainant himself and is hence liable to be governed under the Provisions of the Contract Act, 1872 and not under the Consumer Protection Act, 2019 and the ops have not committed any deficiency of services and they are not practicing anything which can be termed as unlawful trade practice. The complainant has with deliberate intention just to mislead the whole process has given an incomplete set of application and has not annexed any documents which the complainant has relied therein and the ld. Commission has taken cognizance of the instant complaint cases relying upon the documents furnished along with the application under reply by the complainant at the time of the admission of this application and it is imperative to mention here that any application without annexure relied upon by the complainant is an incomplete application and the ops reserve the right under law of equity to have a copy of those documents relied upon by the complainant to know the case of the complainant and assert the defence in the case of the complainant and the W/V could not be prepared properly in absence of documents relied upon by the complainant in the complaint petition and the same is a deliberate and willful act of the complainant to procure as the complainant has willfully provided the copy of the injunction application without any annexures.
After receipt of the annexures and/ or documents ops relied upon and stated that the complainant has deliberately not furnished the copy of the agreement duly signed by him by putting his sign, stamp and signature and the complainant has with material objective had deliberately suppressed the fact the number of EMIs the complainant had to pay at the time of signing of the said agreement and the complainant had himself admitted in the agreement that the fixed rate of interest is 24% per annum on the principal amount pending and the another interest of 2% compounded monthly as default rate and the tenure of the loan amount as 36 months by putting his sign and signature and seal of his company “Blue Ocean” on the agreement. The EMI of the said loan facility enjoyed by the complainant was Rs. 16537/- per month. It is a clear case of admission by the complainant herein that first enjoy the loan and then come with an alleged false and frivolous consumer case with the sole objective of not making the payment.
The OPs further states that he has made a payment of 29 EMIs as alleged or at all. But a cursory look of the Bank statement provided by the complainant himself shows that he had made a payment of 26 EMIs and not 29 as alleged or at all. The complainant has totally mislead the Ld. Commission about the payment but had not disclosed the non payment and the failure on part of the complainant to honour the agreement executed by and between the complainant and the OPs. Be it noted that the complainant had executed an agreement and the complainant had given his sign and signature by its free will. It is the complainant, who had breached the contract and agreement with the OP.
The OPs Humbly states that as per the agreement they are entitled for 36 nos. of EMIs @ Rs.16537/- per EMIs stated by the complainant herein, i.e. the OPs is entitled for a sum of Rs.16537/- X 36 = Rs.595332/- in the event if there is no default on the part of the complainant. But the complainant had miserably failed to honour the EMIs as promised, hence the balance due amount has been levied upon by a compounding interest of 2% per month as penal charges and other interest and charges for default, and the same is crystal clear in the agreement duly signed by the complainant herein.
The OPs further states that the calculation furnished by the complainant is nothing but a calculation if his futile brain just to sympathy of this Ld. Commission. The OPs further states that the Hon’ble Supreme Court in Hon’ble Supreme Court of India in the matter of Alok Shanker Pandey Vs. Union of India & Ors., 2007 (3) SCC 545 has held as under :
“9. It may be mentioned that there is a misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion of capital. For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B”.
It is trite that if the amount remained with the complainant he has to pay legitimately owed and accrued interest at contractual rate. The complainant has tried to create his rate of interest as per his sweet will, after enjoying the loan amount, and has come up with this false and frivolous case just to extract monies from a NBFC, which operates under the guidelines of Reserve Bank of India. The OPs are entitled for interests and other penal charges as per the terms of the agreement, and the lender ie.e the OPs are always entitled for their claims and the same has been upheld by the Hon’ble Supreme Court as referred above.
The Ops further states that the complainant had secured a loan facility as Business loan without any collateral security. The OP further states that the Insurance policy acts like a catalyst, in the event of the Death of the complainant herein. The Insurance Policy is generated just to secure the unsecured loan in the event of death of the borrower and in this case the complainant herein.
It’s a very simple and shut case, the complainant has secured an unsecured loan from the lender /OPs herein to be repaid in 36 EMIs and after payment of 26 EMI’s and 29 EMIs as alleged by the complainant failed and defaulted in making the payment, of balance EMIs. The complainant had to make a payment of Rs.16537/- X 36 = Rs.595332/- plus all pending interest + all pending charges, expenses for dishonouring of ECS everyone + all accrued interest to be calculated till the disposal of this complaint case. The complainant has till date made a payment of Rs.514573/- as alleged or at all by the complainant and likewise, still the OPs are entitled to a legitimate legal claim of Rs.595352/- - 514573/- = Rs.80799/- had the complainant had been OPs never defaulted any honouring the ECS EMIs as alleged or at all. The complaint and /or Borrower has miserably failed in honouring the agreement executed between the complainant and the OPs and hence the OPs are entitled for all claims including penal charges, Accrued Interest, dishonouring charges, as per the terms of the agreement being no.SL 13404336 executed by and between the complainant and the OPs.
The OPs further states that the allegations leveled upon by the complainant are all wild allegations without an iota of truth in it. It was the complainant who had approached the OPs to grant a loan facility. The complainant had enjoyed the whole amount of money and at the time of repayment has come up with this false and frivolous complaint case without an iota of truth in it. OPs are still entitled for at least 7 more EMIs as per the statement of account. The statement of accounts reflect that the complainant had made a payment of only 29 EMIs then how come he had made excess payment.
The complainant cannot dictate the terms of the agreement, it is he who has violated the terms of the agreement by not paying the balance EMIs and the rate of interest as alleged or at all have been already mentioned in the loan agreement. The complainant had after reading, understanding, have put his signature seal and sign on the loan agreement, enjoyed the money and came up with this false and frivolous application. The OPs further states that as the complainant had failed to make the balance payment of 7 EMIs, the OPs send them the DEMAND NOTICES, wherein the clear claim amounts were mentioned.
The OPs further state that the initiation of the Lok Adalat was an offer to the complainant if he intended to settle the matter out of the court, which is always appreciated by all the legal forums of law including the Hon’ble Supreme Court, but it was the high handedness of the complainant that the matter cannot be resolved. Post the Lok Adalat episode the complainant lodged this Instant complaint case, without making payment of the balance 7 EMIs. The EMIs of the complainant had bounced and the OPs is entitled for EMI bounce charges as per the terms of the loan agreement.
The OPs further states that they have never ever threatened the complainant in any form, and stating that legal action can be initiated against you, stand as threat is really hilarious. The OPs call for a strict proof of these wild allegation. The OPs always reserves the right to make their legitimate claims through the due process of law by sending legal notices, initiate legal cases, including both criminal and civil proceedings including attachment of the properties of the complainant herein if the complainant fails to make good payment of the legitimate dues of the OPs. The Recourse for recovery of all the due amounts receivable by the Ops through legal process is always with the Ops.
The OPs are entitled for all interest, including the principal amount including all the charges till the disposal of this false and frivolous case initiated by the complainant. The OPs lender is further entitled for all counter claims, compensations for this mental harassments, mental agony, perjury to this Ld. Commission by abusing the process of law on oath by way of affidavit and as to why the complainant should not be prosecuted as per provisions of the consumer protection act, 2019 for initiate false and frivolous case. The OPs further submit that and on the contrary, the OPs are entitled for a counter claim of Rs.131179/- as per the statement of accounts as on 22.6.2022 furnished in w/v. The OPs are further entitled for all remaining EMIs, accrued interest calculated @ 24% till the disposal of this case alongwith all penal charges, Default charges, bounce charges @ 2 % per month compounding interest. The OPs crave leave to furnish the final figures of their claim at the time of arguments of this case. The OPs are entitled to all these claims in terms of the agreement being no.SL1304336 and also in the light of the judgment of the Hon’ble Supreme Court in Alok Shanker Pandey Vs. Union of India & Ors., 2007 (3) SCC 545.
Ops filed the W/V praying to dismiss the complainant and direction upon the complainant to pay a sum of Rs. 131179/- as per statement of account as on 22.6.2022 with 24% interest till the disposal of this case along with all penal charges, default charges, bounce charges @ 2% per month compounding interest till the disposal of the case as well as subsequent proceedings thereafter till final realization of the claim amount and to pay a sum of Rs. 100000/- from the complainant as mental harassment and to pay a sum of Rs. 50000/- as legal expenses
After filing W/V the ops did not appear so the case is running ex parte against them vide order dt. 7.8.2023.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.
Argument highlighted by the ld. Lawyers of the parties
Complainant filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.
Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyer of complainant has given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration are clubbed together and taken up for discussion jointly at first.
Regarding these three points of consideration it is very important to note that the opposite parties inspite of receiving notice have not filed any W/V and also have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. This District Commission after going through the materials of the case record finds that the complainant is a resident of Pandua, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. It has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus on close examination of the pleadings of the complainant it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.
All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.
The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.
For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the complainant and there is also necessity making scrutiny of the documents filed by the petitioner of this case.
For the purpose of arriving at just and proper decision in respect of points of consideration nos. 4 and 5 this District Commission finds that there is necessity of making scrutiny of the evidence given by the complainant and OP. In this regard it is important to note that the ops have filed any W/V and filed any evidence on affidavit to disprove the case of the complainant. After filing of the evidence on affidavit by OPs, the OPs have not contested this case and at the time of argument no written BNA has been filed and no verbal argument has been highlighted. Due to absence of the OP the OP side has failed to give reply against the interrogatories filed by the complainant against the evidence on affidavit which is filed by OP. On close examination of the evidence given by the complainant side it is revealed that the complainant has categorically described his case in the evidence and the evidence given by the complainant is also supported by documents. It is also revealed that the evidence (oral and documentary) which is given by the complainant side remains unchallenged and/ or uncontroverted. After going through the materials of this case record this District Commission finds that there is reason to disbelieve the unchallenged and uncontroverted testimony of the complainant side. It is also transpires that the complainant has proved his case by way of adducing evidence in connection with the points of consideration nos. 4 and 5 which have been adopted in this case. Although the complainant has filed evidence on affidavit and documents but the complainant side has failed to establish his case in respect of granting compensation and awarding other claims. This part of claim of the complainant side in respect of compensation and other claims have not been corroborated by supporting evidence and so this District Commission is not at all inclined to pass any award in respect of compensation and other claims besides litigation cost.
In the result it is accordingly
ordered
that the complaint case being no. 152 of 2021 be and the same is allowed on contest but in part.
Opposite party nos. 1 and 2 are directed to furnish statement of account of the loan account being no.1304336 and to pay litigation cost of Rs.15000/- to the complainant within 45 days from the date of passing of this final order.
In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 and 2 are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
