Before: Hon’ble President, Biswanath De.
Hon’ble Member, Debi Sengupta.
Hon’ble Member, Samaresh Kumar Mitra.
FINAL ORDER
Samaresh Kumar Mitra,Member.
This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Arup Kumar Das.
The case of the complainant’s in short is that he applied for loan before the O.P. No.3 on 12.12.2005 for purchasing home under Union Home Scheme and being satisfied the O.P. No.3 had sanctioned loan amounting to Rs.5,00,000/- being housing Loan A/c. No.650024 in favour of the complainant with a fixed rate of interest 8.50% p.a.
That the O.P. No.3 did not give the documents to the complainant like housing loan agreement, letter of guarantee from the guarantor etc. till date though the complainant made several request to the Branch Manager of the said bank. The complainant mortgaged the property for which the loan was taken and a LIC money back policy being policy No.414185794 and 433131742 and another policy which are matured in the year 2007. Some money of matured policy was given to the complainant and remaining amount of the said policy Rs.75,000/- was fixed on 15.10.2007 by pressure of the Bank Manager. The complainant requested the Bank Manager to adjust Rs.75,000/- to the loan account but the O.P. No.3 did not do the same.
It was agreed that the loan amount would be paid by 216 monthly equal installments of Rs.4525/- from January, 2006. From 1st January, 2006 to 31st December, 2013 the complainant should pay a sum of Rs.4,34,400/- but the complainant had paid Rs.5,09,578/-. Therefore, the complainant had already paid excess amount of Rs.75,178/- (Rs.5,09,578.00 – Rs.4,34,400.00). Due to severe economic distress the complainant had paid Rs.1700/- deficit payment for the year 2006, Rs.800/- for the year 2007 and Rs.300/- for the year 2008.
From the bank statement dated 6.1.2008 for the period of 1.9.2004 to 31.12.2007 it was shown that Rs.5,92,009/- was debited from the complainant’s account and Rs.1,06,100/- was credited and remaining balance was shown Rs.4,85,909/-
The O.P. No.3 started to create pressure upon the complainant and demanded excessive amounts per month over and above the agreed monthly installments amount of Rs.4525/- and complainant paid the excessive amount to the O.P. No.3. From the 1st January, 2006 to 31st December, 2007 according to the sanctioned letter dated 14.12.2012, the complainant has to pay Rs.1,08,600/-. Therefore, the remaining deficit balance is Rs.25,000/-.
From the bank statement dated 9.9.2013 for the period from 6.1.2008 to 9.9.2013 the balance was shown as Rs.3,80,570/-. So, from 1st January 2006 to 9.9.2013 the complainant had already paid Rs.4,95,988/- and the total monthly fixed installments was Rs.4525/- X 93= Rs.4,20,825/-. Therefore, the complainant had already paid Rs.75,163/- as excess amount.
The complainant sent a demand notice to the O.P. No.3 demanding Rs.2,00,000/- as compensation for deficiency of service and mental agony and anxiety and if any excess amount is paid by the complainant till August, 2013, returned the same with interest @ 12% within 15 days. But there was no fruitful result.
The complainant requested the bank manger several times to supply the loan agreement, guarantee agreement and other papers/documents executed relating to the said loan but the O.P. did not supply the same. The complainant has already paid Rs.75,000/- as excess payment but the O.P. No.3 is still pressurize to make monthly installment more than the monthly fixed installment of Rs.4,525/-. Finding no other alternative the complainant filed this case before this Forum for relief with a prayer to direct the O.P. to supply the executed documents/papers relating to the loan account being No.650024, to return back excess amount of Rs.75,178 with interest @ 12% or to direct the O.P. No.3 to adjust the excess amount of payment in the loan account, to return the two signed blank non-judicial stamp papers, to produce the entire records of the loan account, to pay compensation of Rs.2,00,000/- and to pay litigation cost.
Proceeding run ex-parte against the OP No.1,2 &4.
The O.P. No.3 contested the case by filing written version denying the entire material allegation as leveled against him. This O.P. submits that complainant voluntarily executed all the documents as per terms and conditions of the Bank at the time of sanctioning loan and thereafter the bank sanctioned the loan amount of Rs.5,00,000/- to the complainant. Among executed documents one letter of authority authorizing for deduction of salary and on irrevocable undertaking from the employer of the complainant to adjust the loan dues if any, directly from the termination benefits payable to the complainant in case of any eventually/cessation in service and the complainant agreed that he will pay the loan amount including interest to the bank.
The loan was sanctioned at the floating rate of interest i.e. by changing in BPLR rate EMI also changes and the charging in BPLR rate the bank informed to the complainant time to time about the changed EMI. So, no excess interest charges in loan account of the complainant.
All the non-judicial stamp papers are written and signed by the complainant along with all executed documents. Be it mentioned here that the complainant/borrower have taken loan from the bank/opposite party by mortgaged the property and LIC money back policy being No.414185794, 433131742 and another policy which was matured in the year 2007 and the complainant requested in writing on 15.10.2007 to the Branch Manager, Aniya Branch to fixed the amount of Rs.75,000/- out of matured amount and the remaining amount of the said policy were kept in the savings account of the complainant as per his instruction. This is out an out a loan given to the complainant on condition that the complainant would pay the floating interest on the loan amount and accordingly the complainant would liquidate the loan amount, save and except such terms and conditions there is no service to be provided to the borrower and hence the complainant is neither consumer under the act nor entitled to get any relief as prayed for. Hence, this case.
The complainant filed evidence on affidavit which is nothing but the replica of complaint petition. The argument advanced both the parties and heard in full. The complainant and OPs both filed brief notes of argument which are taken into consideration for passing final order.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant is a ‘Consumer’ of the opposite party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Sri Arup Kr. Das is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the customer of the OP, as the complainant is maintaining a loan account before the OP and the OP being a service provider is responsible to provide service to this complainant.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.2,00,000/- for loss sustained by the complainant and as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The case of the complainant is that he took a home loan before the O.P. No. 3 Bank amounting to Rs.5,00,000/- with a fixed rate of interest of 8.50% p.a. with a monthly installment of Rs.4,525/- for 216 equal installments. The complainant has been paying monthly installments regularly and he paid Rs.5,09,578/- for the period from January, 2006 to 31sts December, 2013. According to sanctioned letter dated 14.12.2005 he should have pay Rs.4,34,400/- in equal installments but at the instance of O.P. No.3 he compelled to pay Rs.75,178/- in excess. Then the complainant sent a demand notice dated 3.9.2013 through his Ld. Advocate demanding a sum of Rs.2,00,000/- as compensation for deficiency in service and mental agony and anxiety and also to return excess amount paid till 2013 with interest @ 12%.
The O.P. No.3 contesting the case assailed that the complainant took loan amounting to Rs.5,00,000/- from O.P. No.3 Bank with a floating rate of interest and complainant would liquidate the loan amount. During the period of sanctioning loan the complainant executed a few documents in which he agreed to repay the loan amount including interest in cash to the bank. Complainant mortgaged property and LIC money back policies. On the request of the complainant the O.P. fixed a sum of Rs.75,000/- out of matured amount, the remaining amount is to be kept in the savings bank account of the complainant. The O.P. No.3 demand that the loan of the complainant was sanctioned by the bank at the floating rate of interest not at the fixed rate of interest. He relied a few documents like authorized letter issued by Regional office of the bank, demand promissory note dated 15.12.2005, loan agreement with four non-judicial stamp papers, letter dated 4.10.2007 written by the complainant, two debit balance confirmation, statement of accounts of bank and sanction letter dated 14.12.2005. According to the answering O.P. the complainant voluntarily executed and signed all the documents of the bank for taking loan after knowing the contentions of those documents and agreed to follow the norms of the bank.
After perusing the documents in the case record and hearing the argument of the complainant and O.P. it appears that the sanction letter dated 14.12.2005 clearly speaks that a term loan of Rs.5,00,000/- is sanctioned to the complainant for the purpose of purchasing house under Union Home Scheme on a few terms and conditions. The first condition which is marked in ink and written as “a fixed interest of 8.50% p.a. at monthly rests will be charged on loan account”. The second condition is floating rate of interest which is not marked or written anything in the gaps. Other relevant conditions are marked at the sweet will of the O.P. Bank. There is no dispute regarding the payment of EMI @8.50%. Dispute cropped up in between the parties when the O.P. No.3 put pressure upon the complainant to collect excess money than the EMI of Rs.4525/- during the period of sanctioning of loan. The O.P. No.3 relied a few documents dated 15.12.2005 marked as Exhibit C. In which it is stated that the complainant Arup Kr. Das promised to pay Union Bank of India or order sum of Rs.5,00,000/- together with interest on such sum from this date at the fixed rate of 2.25% p.a. below Union Bank of India’s Benchmark Prime Lending Rate such other rate as may be prescribed by the bank from time to time at monthly rests for value received (this Benchmark Prime Lending Rate applicable as on date is 10.75% per annum). The complainant by putting his signature on the revenue stamp agreed to abide by the above promise. The loan agreement(printed form) dated 15.12.2005 in Para-C, it is stated that the said loan is repayable by me along with a minimum interest rate at 8.50% p.a. with quarterly rests as the bank may determined from time to time. In the same para it is also stated that the bank may however in its sole discretion increase the rate of interest, if unforeseen or extra ordinary changes take place in the money market conditions during the currency of this agreement and thenceforth the rate of interest increased as aforesaid shall be applicable to the said loan and the bank shall be the sole judge to determine whether such conditions exists or not. After perusing the statement of account for the period from 15.12.2005 to 23.5.2016 clearly speaks that the complainant being a bonafide consumer of the O.P. No.3 Bank paid a sum of Rs.6,40,948/- in total to pay his loan amount including interests thereon at reducible rate of interest. The loan agreement dated 15.12.2005 is seven pages printed form in which a few portions are kept blank and remaining portions are written in favour of the O.P. Bank and it is difficult for a loanee to put his signature after going through all the terms and conditions during the sanctioning of loan . The loanee as per instruction of bank official used to put his/her signature in the marked portion of all documents like agreement and others. The O.P. No.3 in his evidence on affidavit admitted that the tick marked in sanction advice by the then Branch Manager inadvertently tick marked on the ‘Fixed rate of interest” instead of “Floating rate of interest”. The OP by producing Master circular of Reserve bank of India assailed that for credit limits of over Rupees two lakh the prescription of minimum lending rate was abolished and banks were given the freedom to fix the lending rates for such credit limits subject to BPLR and spread guidelines banks were required to obtain the approval of their respective Boards for the BPLR, which would be the reference rate for credit limits of over Rs.2 lakh. Each banks BPLR had to be declared and be made uniformly applicable at all branches. The advocate on behalf of the complainant referred the definition of Fixed rate from the Master direction of Reserve Bank of India, 2016 in which it is stated that ‘fixed rate loan means a loan on which the interest rate is fixed for the entire tenor of the loan’.
During the period of argument the Ld. Advocate of the Complainant assailed that the complainant agreed to avail the home loan as such kind of loan govt. used to provide facilities to the persons who are to construct or purchase house and the principal component and the interest components are exempted in different sections of income tax. So it is expected from the banking institution that while granting loan the responsible person after going through the agreement and considering the viability of the consumer sanctioned the loan after checking documents for a considerable period. As such the OP should not allowed to take the plea that due to inadvertent mistake of the then bank official the fixed rate of interest has been written instead of floating rate of interest. And subsequently without getting the assent of the complainant cannot go beyond the agreement. The act and attitude of the complainant is bonafide one and on compelling circumstances he has been paying excess money than the agreed amount.
Having considered the facts and circumstances of the case and the rival contentions of the Ld. Counsel for the parties, we find force in the contention raised on behalf of the complainant. From the act and conduct of the opposite parties it is fully established that there is deficiency of service on the part of the opposite parties because there is no evidence on behalf of the opposite parties to show that the loan sanctioned to the complainant is of floating rate of interest.
In view of our aforesaid discussion the deficiency of service on the part of the opposite parties stands proved on record and the same is not to be overlooked keeping in view the fact that the complainant suffered from mental pain and agony at the behest of negligence on the part of the opposite parties.
4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant established that O.P. No.3 is responsible for collecting excess money as EMI which is more than the agreed amount. So, the Opposite Party No.3 could not avoid their responsibility of paying the claim of the complainant as ascertained by this Forum.
ORDER
Hence, it is ordered that the complaint case being No.127/2014 be and the same is allowed on contest against the Opposite Party with a litigation cost of Rs.8000/- to be paid to this complainant.
The Opposite Party No.3 is directed to calculate the loan interest of the complainant @ 8.5% as fixed rate of interest since the inception and adjust the excess amount paid in the loan account of this complainant and inform this complainant within 45 days from the date of this order.
The OP No.3 bank is also directed to cooperate with complainant in respect of documents filed before the bank during the period of granting loan.
The OP No.3 is further directed to pay compensation amounting to Rs.30,000/- to this complainant for causing mental pain and agony of this complainant.
At the event of failure to comply with the order the Opposite Party No.3 shall pay fine @Rs.50/- for each day's delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
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 & necessary action.
