Chandigarh

StateCommission

A/115/2022

SURINDER SINGH - Complainant(s)

Versus

ANURAG CHAUDHARY - Opp.Party(s)

NEERAJ PAL SHARMA & GAURAV BHARDWAJ

03 Jul 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	115 of 2022
Date of Institution	:	22.08.2022
Date of Decision	:	03.07.2023

 

 

 

 

 

 

Surinder Singh, aged about 74 years S/o Late Sardar Mohan Singh, Earlier R/o 2121, Sector 38-C, Chandigarh, Partner Messrs. Surindra Vision & Surindra Radios Private Limited and presently residing at : 1404 (First Floor), Sector 33-C, Chandigarh U.T. 160020.

……Appellant/Decree Holder/Complainant.

 

Versus

1]       Anurag Chaudhary, Manager, ICICI Bank Limited, SCO No.180-182, Madhya Marg, Sector 9-C, Chandigarh UT – 160009.

2]       Anuj Aggarwal, Manager, ICICI Home Finance Company Limited, Earlier at SCO No.180-182, Madhya Marg, Sector 9-C, Chandigarh UT – 160009 and presently situated at: SCO No.337-338, 2^nd Floor, Sector 35-B, Chandigarh U.T. 160022.

 

  …..Respondents/Judgment Debtors/Opposite Parties.

 

BEFORE:  JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

              MR. RAJESH K. ARYA, MEMBER

ARGUED BY :-

 

Sh. Neeraj Pal Sharma, Advocate for the appellant.

Er. Sandeep Suri, Advocate for respondent No.1.

None for respondent No.2.

 

PER  RAJESH  K. ARYA, MEMBER

                This appeal has been filed by the decree holder/complainant, namely, Surinder Singh, against order dated 01.07.2022 passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short ‘District Commission’), whereby Execution Application bearing No.125 of 2019 filed by the appellant has been dismissed.

2]             Briefly stated the background of the case is that initially consumer complaint No.243 of 2008) was allowed by the District Commission vide order dated 21.10.2008. Being aggrieved by the said order, the respondents/opposite parties preferred appeal No.2261 of 2008 before this Commission, which was partly accepted vide order dated 27.05.2009 thereby modifying the order of the District Commission. Subsequently, the respondents/opposite parties assailed the order of this Commission before Hon’ble National Consumer Disputes Redressal Commission, New Delhi by filing Revision Petition No.2693 of 2009, wherein on 20.11.2014, the parties settled the dispute on the following terms:-

“We have heard learned counsel for the parties for some time. We are happy to note the on one suggestion the parties have agreed to settle the disputes, subject matter of the present Revision Petition, on the following terms:

1. The interest payable on the loan advanced by the Petitioner/Bank to the Respondent/ Complainant will be in terms of Clause E of the Home Equity Loan Agreement, entered into between the parties on 30.08.2005;
2. The floating rate of interest, as stipulated in the said clause @ 8.75% per annum,  shall be revisable as per the guidelines issued by the Reserved Bank of India, relating to Home Equity Loans, from time to time;
3. A recasted statement of account, in terms of this settlement, after accounting for the interest already accepted by the Bank, shall be supplied to the Respondent/Complainant within eight weeks from today;
4. It is stated at the bar by the Ld Senior Counsel appearing on behalf of the Respondent/ Complainant that interest at the maximum rate of interest, viz., @ 16% per annum, as applicable in the case of a loan against the property, has already been realized by the Bank. If that be so, refund, if any, for the excess amount, computed in terms of this order, shall be granted within six weeks from the date of furnishing of the said statement; and
5. The parties shall remain bound by the above terms in so far as disbursement of loan, subject matter of the complaint, giving rise to the present Revision Petition, is concerned.

The Revision petition stands disposed of accordingly, with no order as to cost.”

3]             The sole question to be decided in the present appeal is as to whether there was complete compliance of order dated 20.11.2014 of Hon’ble National Consumer Disputes Redressal Commission, New Delhi or not? In this regard, we would like to discuss the terms of settlement as recorded by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in its order dated 20.11.2014.

4]             Term (i), agreed to between the parties, says that the interest payable on the loan advanced would be in terms of Clause E of the Home Equity Loan Agreement, entered into between the parties on 30.08.2005. Clause (E) of Schedule B appended to Home Equity Loan Agreement pertains to Interest and as per Sub Clause (a) thereof, ICICI Bank Floating Reference Rate: was 8.75% per annum as on the date of execution of the said Agreement and the Adjustable Rate of interest: ICICI Bank Floating Reference Rate was + .25% p.a. = 9% p.a. Further Term (ii) states that the floating rate of interest, as stipulated in the said clause @ 8.75% per annum, shall be revisable as per the guidelines issued by the Reserve Bank of India, relating to Home Equity Loans, from time to time. It was further settled between the parties vide terms (iii) and (iv) that the judgment debtors shall supply to the decree holder, a recasted statement of account, in terms of this settlement, after accounting for the interest already accepted by the Bank within eight weeks from the date of the order and further agreed that refund, if any, for the excess amount, computed in terms of this order, shall be granted within six weeks from the date of furnishing of the said statement as interest at the maximum rate of interest, viz. @16% per annum, as applicable in the case of a loan against the property, had already been realized by the Bank. It has specifically been stated in the grounds of appeal that the District Commission has gone wrongly in concluding on facts that the entire case of the appellant in nutshell was for the recovery of the meager sum of Rs.26,869/-. The appellant further stated that as per his calculation, the respondents are liable to refund to him in terms of Para (iv) of order dated 20.11.2014 of Hon’ble National Commission, a colossal sum of Rs.33,53,886/-, which remains unpaid till date.

5]             Bare perusal of the order of the District Commission transpires that the District Commission has not discussed the aforesaid issue with regard to compliance in terms of Term (iv) of order dated 20.11.2014 of Hon’ble National Commission and rather, confined the execution application to the claim of Rs.26,869/- only. Affidavit dated 16.06.2022 filed by the decree holder (Sh. Surinder Singh) in execution application (at Page 406) transpires that Rs.26,869/- was the amount, which the respondents charged in excess while foreclosing the loan and not any adjustment of interest charged. The respondents/ judgments debtors (Accused) in his written arguments filed before the District Commission submitted that based on the changes in the applicable adjustable interest rate from time to time, the amortization schedule was redrawn for the period from 01.03.2008 to 1.12.2011, as tabulated in the written arguments, on the basis of Home Equity Loan Agreement (2005) as was being made applicable to the loan availed on 31^st January 2008 and the said loan continued till the month of February 2008. It was further stated that rate of interest as were changed on the said loan were not been ordered to be changed in terms of order of Hon’ble National Commission and were in fact, made applicable to the loan of 2008. It has further been stated that under the said loan, the FRR had continued to change and from the comparison of the rate of interest at which the loan was running (based on PLR in terms of agreement 2008) with the rate applicable in terms of FRR (calculated on the basis of order passed by Hon’ble National Commission), it was found that there was no change in the rate of interest that would be applicable to the decree holder. Lastly, it was stated that the Bank had charged interest in the un-re-casted loan of 2008 at the same rate of interest as was required to be changed in terms of order of Hon’ble National Commission. Similar is the contention raised by the respondent in the present appeal.

6]             In this regard, it may be stated here that the aforesaid contention of the respondents is bereft of merit because it is astonishing that when the loan account was foreclosed in December 2011, then how the respondents could ascertain the decision of Hon’ble National Commission, which came on 20.11.2014 i.e. before 35 months from the alleged compliance as tried to be established by the respondents. The respondents have totally failed to establish on record with regard to compliance of Term (iv) of order dated 20.11.2014 of Hon’ble National Commission. On the other hand, the appellant had filed his calculations dated 22.09.2021 showing payment of total excess amount of Rs.36,28,117/- to the respondents, before the District Commission on 28.09.2021 through email, which the District Commission has not even considered while passing the impugned order. The said calculations are prepared by C.A. Sanjev Mehan, Mehan Associates, Chartered Accountants (FRN:004592N), Chandigarh. In the absence of any cogent and convincing evidence placed on record by the respondents showing compliance of the order of Hon’ble National Commission, when there is an authenticated calculation of Chartered Accountants, placed on record of District Commission by the appellant, the said calculations of the appellant cannot be ignored and therefore, the District Commission is directed to take into consideration the said calculations of the Chartered Accountant, while passing any order in the execution application.

7]             As far as the dispute qua the amount of Rs.26,896/- is concerned, it may be stated here that since there is no evidence on record wherefrom it could be revealed that the said amount had actually been debited from the account of the respondents and credited into the account of the appellant, the respondents are also held liable to pay this amount to the appellant/decree holder. 

8]             With aforesaid observations, this appeal stands allowed. Accordingly, the impugned order is set aside. The District Commission below shall take up and continue with

the execution proceedings in accordance with law to ensure compliance of the order of Hon’ble National Commission in toto.

9]             The parties are directed to appear before the District Commission-I, U.T., Chandigarh on 28.07.2023.

10]           Complete record along with certified copy of this order be sent to the District Commission-I, U.T., Chandigarh forthwith so as to reach there well before the date fixed.

11]           Certified copy of this order be sent to the parties free of charge.

12]           Certified copy of this order be sent to the parties/Counsel through email/whatsapp.

13]           File be consigned to Record Room after completion.

Pronounced.

03.07.2023.

 

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 

 

(RAJESH K. ARYA)

MEMBER

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