Smt. Shampa Ghosh, Hon’ble Member:-

The complainant Mrs. Sonamoni Dutta Naskar, W/O. Raj Kumar Naskar, Duttapara, Pirpukur, Ward No.4, Baruipur, P.O. & P.S. – Baruipur has filed complaint against the OP No.1 Regional Manager, HDFC Bank, Shakespear Sarani, Middleton Road, Kolkata – 700 071, OP No.2 Mr. Ashif SM, HDFC Bank, B.B.D. Bag, Kolkata – 700 001, OP No.3 Proprietor, Bharat Gift and Enterprise, Baruipur Kachari Bazar, Kalyanpur Road, Kolkata – 700 144.

The case of the complainant in brief is that the complainant purchased one mobile phone ‘OPPO’ for Rs.15,990/- on 28.01.2022 from the Shop of OP No.3.  At the time of purchase OP No.3 approached the complainant and requested to the OP No.3 for payment on easy instalmant in EMI instead of one time cash payment from their finance partner OP No.1 & 2 HDFC Bank.  Thereafter the complainant paid Rs.50,000/- in cash to the OP No.3 and on request of the OP No.3 the complainant agreed to take the remaining amount of Rs.10,990/- as loan to purchase the said mobile on easy instalment on EMI from OP No.1 & 2.  Loan agreement No. 452364713 is generated by the OP Nos.1 & 2 HDFC Bank and EMI is fixed including interest per month.  Copy of agreement was not provided to the complainant.  The complainant paid Rs.5,000/- in cash to the OP No.3 and the remaining amount was sanctioned and paid by OP No.1 & 2, but the OP Bank not provided any documents of the said agreement. Complainant stated that the rate of interest of the said loan was not informed her. It was not mentioned in Tax Invoice (Annexure-A).  The complainant stated that she has no other documents except money receipt.  Complainant asked to the OP Nos.1 & 2 about the documents, OP Bank replied that only repayment schedule is available on line.  Complainant was stated that she paid Rs.5,000/- in cash to the OP No.3.  But the OP Bank shows online in their repayment schedule that the entire loan amount was Rs.15,990/- (Annexure-B).  The Tax Invoice which was given by OP No.3 is devoid of description of payment and break up of account. OP No.3 also doing unfair trade practice along with OP Nos. 1 & 2 Bank.  Complainant also stated that OP Bank also misuses the blank check of IDBI Bank.  At the time of loan, the OP collected the said cheques with signature.  On 08.03.2022 the complainant found that Rs.295/- was debited from complainant’s IDBI Bank Account but the complainant does not know for what purpose the said money was debited.  The complainant stated that the complainant paid the 1^st EMI Rs.1,600/- on 24.03.2022 through HDFC Bank, Padmapukur Branch at Baruipur. 2^nd EMI  Rs.1,600/- was paid on 31.03.2022, after that the complainant found that Rs.530/- was deducted from the cash payment amount of EMI by the OP Bank.  And on 04.04.2022 the balance amount of Rs.1,070/- was transferred to the complainant’s IDBI Saving Account, reason not known to the complainant (Annexure-C). The complainant sent letter to the OP with a request to provide the Statement of Account to pay entire loan amount under loan agreement No.452364713 including interest till 30.04.2022 in detail with break up within 7 days from the receipt of the letter.  The complainant stated that, the complainant suffered severe mental agony due to unfair trade practice and service of the OPs.  Finding no other alternative the complainant filed a complaint against the OP Bank with a prayer that (1) to provide all the documents of loan account and agreement (2) to return back blank cheque of IDBI Bank and refund Rs.295/- deducted by IDBI Bank + Rs.530/- by OP Bank = Rs.825/-. (3) to provide complete statement of account with break up (4) to pay Rs.1,00,000/- as compensation for mental pain and agony (5) to pay Rs.5,000/- as litigation cost.

OP Nos.1 & 2 contested the case by filing written version and the instant complaint case was heard ex-parte against OP No.3 by order being No.5 dated 13.012.2022.  It was contended by the OP Nos.1 & 2 that the claims of the complaint is false, baseless and frivolous.  The complainant has no cause of action against the OP.  The complainant approached OP Bank for financial assistance for purchasing a mobile phone ‘OPPO’ for total consideration of Rs.15,990/-. The complainant represented that she would duly repay the money due under loan.  The complainant submitted a duly executed “Consumer durable and life style products loan application” (Annexure-A).  Therefore, the OP duly sanctioned a sum of Rs. 15,990/- on terms and conditions as contained in the loan documents (Annexure-B).  The OP stated that the complainant had applied voluntarily for the loan facility after fully knowing well about the terms and conditions of the loan.  As per terms of the loan document, complainant was required to made advance payment of 3 EMIs amounting Rs.4,797/- (Rs.1,599/-X3=Rs4,799/-) and the remaining amount along with interest Rs.11,193/- was required to be paid by her in 7 EMI @ Rs.1,599/-(Rs.1,599 X7+Rs.11,193/-) commencing from 05.03.2022.  In spite of being under application to pay the said loan, complainant paid a few EMI and has failed to pay the subsequent EMI due thereon.  For delayed payment as agreed by her loan application, a sum of Rs.24,219/- as on 12.12.2022 has become due for payment by the complainant to the OPs.  (Annexure-C).  OP denied that the copy of loan agreement and the rate of interest were not provided to the complainant.  OP stated that after execution of the loan documents a copy of same was duly handed over to the complainant.  OP stated that the complainant was well aware about the loan details including the number of amount of EMI.  OP also stated that the cheque was deposited by the complainant towards securing the repayment of the subject loan.  Since the complainant did not pay the 1^st EMI on agreed date i.e. 05.03.2022, the securing cheque was deposited which got dishonoured on its presentation and as such, cheque bouncing charges was imposed, as agreed under the loan document.  The complainant has failed to pay the EMI of agreed date i.e. 5^th of every month and paid on 24.03.2022 and 31.03.2022.  Since the 2^nd EMI was prior to date, the same was reserved after deducting the cheque bouncing charges as agreed under the loan agreement. Payment made by the complainant is duly reflected in the Statement of Account.  OP prays that there is no negligence on the part of the OP Bank and the complainant is not entitled to get relief as prayed for and also prayed for dismiss the complaint case.

Heard arguments of both parties on the basis of evidence and documents and the following points are necessary for consideration.

Points for consideration :-

1. Is the complainant a consumer?
2. Are the OPs guilty of deficiency in service and unfair trade practice?
3. Is the complainant entitled to get relief as prayed for?

Decisions with reasons :-

Points No.1 :-

On perusal of the case record along with the copies of documents available on record, it appears that the complainant purchased one mobile phone from the OP No.3 and OP No.3 acknowledged the receipt of the same.

Therefore, the complainant is a consumer U/S 2(7) of the Consumer Protection Act, 2019.

As such, the 1^st point is decided in favour of the complainant and against the OPs.

Points No.2 & 3 :-

Both points are taken up together for the sake of convenience and as they are interlinked.

The complainant purchased one mobile phone ‘OPPO’ from the shop of OP No.3.  The price was Rs.15,990/-. At the time of purchase OP-3 approached the complainant and requested to take the mobile phone on easy payment of EMI instead of total one time cash payment, from their finance partner OP Nos.1 & 2 HDFC Bank.  Complainant paid Rs.5,000/- in cash and agreed to take balance amount of Rs.10,990/- as loan from OP Nos.1 & 2 HDFC Bank.  OP Nos.1 & 2 granted the loan being Loan A/C No.452364713. Out of total amount Rs.15,990/- the complainant paid Rs.5,000/- in cash to the OP No.3 and on request of the OP No.3 complainant agreed to take remaining amount of Rs.10,990/- as loan from OP Nos.1 & 2.  The said loan was repayable in 7 equal EMI @ Rs.1,599/-.  Complainant stated that though the complainant paid Rs.5,000/- in cash to the OP No.3 but the OP Nos.1 & 2 HDFC Bank shows on line in their ‘repayment schedule ‘ entire loan amount of Rs.15,990/- instead of Rs.10,990/-. OP Bank unfairly charged interest on total amount of Rs.15,990/- instead of charging interest of Rs.10,990/-. It shows from repayment scheduled adduced by the complainant that the amount paid by the complainant has duly been adjusted towards the 3 advance EMIs being Rs.1,599/-X3=Rs.4,497/-) and the remaining amount along with interest is required to be paid by her in 7 EMIs @ Rs.1,599/- each as mentioned in the payment schedule.

It is clear from the record that the complainant had failed to pay the EMI of agreed i.e. 5^th of every month and has paid cash twice on 24.03.2022 and 31.03.2022.  Since 2^nd EMI was prior to the date, the OP reversed Rs.1,070/- after deducting the cheque bouncing charging Rs.531/- as agreed under the loan agreement.  It is clear from averments that the OP was adjusted the 2^nd EMI which was paid by cash by complainant.  And the OP Bank reversed Rs.1,070/- after deducting the cheque bouncing charges of Rs.531/- to the complainant’s IDBI Bank Account.  So there is no deficiency in services and unfair trade practice against the OP Nos.1 & 2.

According to the complainants statement that the OP Bank deducted Rs.295/- but the statement of the OP is not clear regarding the deduction of Rs.295/-.

As a result, the complainant case succeeds in part.

Hence, it is,

                                                                                         ORDERED

that the complaint case be and the same is hereby allowed in part on contest against the OP Nos. 1 & 2 with cost of Rs.5,000/- (Rupees Five Thousand) within 45 days from the date of passing of this order and dismissed against OP No.3 without cost.

OP Nos.1 & 2 are directed to pay Rs.295/- (Rupees Two Hundred and Ninety Five) deducted from the complainant’s IDBI Bank A/C, within 45 days from the date of passing of this order

OP Nos.1 & 2 are directed to pay as compensation Rs.5,000/- (Rupees Five Thousand) for harassment, mental pain and agony suffered by the complainant within 45 days from the date of passing of this order.

OP Nos.1 & 2 are directed to provide complete statement of A/C with breakup of account stating the rate of interest.

The complainant is at liberty to put the order into execution after the expiry of 45 days in case the orders are not complied with by the OPs within 45 days from the date of passing this order.

 Let a copy of this order be supplied free of cost to the parties concerned.

That the final order will be available in the following website:www.confonet.nic.in.

Dictated and corrected by me.

      Smt Shampa Ghosh

                Member