Final Order/Judgment

DEBASIS BHATTACHARYA:- PRESIDING MEMBER

Brief Facts of the Case:-The instant consumer case filed under section 35 of the Consumer Protection Act 2019 originates from the grievances of the complainant arising out of OP Bank’s levy of interest on a loan taken by him from the OP Bank and extension of term of the said loan.

The fact of the case is that the complainant reportedly, ‘due to urgent need of money’ applied for a loan of Rs.3,50,000/- in the month of July 2003 and the same was sanctioned on 11.07.2003 and was disbursed on 25.08.2003 with a loan term of 176 months.

The Complainant claims to have been regular in the matter of paying the monthly installments but simultaneously admits to have been defaulter in the matter of paying EMI.

 However it is not clarified that during which particular period he was regular in the matter of paying off the installments and from when and for which particular span of time he was defaulter and how the ‘same was adjusted later on’ as claimed in the complaint petition.

It is further claimed that at the time of execution of the loan agreement the rate of interest was 8.25% but subsequently the OP Bank allegedly got ‘some paper’ signed ‘without knowledge of the complainant’.

However this Commission just cannot help mentioning here that the language used to express grievances in the complainant petition is hopelessly devoid of sense.

However, after a desperate attempt to extract the content of the complaint petition, it transpires that the petitioner actually agitates over increase of number of EMI and enhancement of rate of interest by the OP Bank. As stated by the Complainant, the loan term was increased by thirteen years i.e. from 2020 to 2033 and the rate of interest was enhanced to 14.70%.

Cause of action is claimed to have arisen when the Complainant got the copy of ‘Balance Sheet’.

Here it is grossly questionable that how he got the instrument like ‘Balance Sheet’ of the OP Bank and how from the ‘Balance Sheet’ of a colossal Financial Institution like ICICI Bank, cause of action related to a particular borrower’s consumer complaint can arise.

Now, whatever be the matter, the Complainant from the above series of events was of the opinion that the OP Bank acted ‘arbitrarily’ and ‘whimsically’ and ‘violated the law of the land’.

In the concluding part of the complaint petition, the Complainant approaches to this Commission for imposing direction upon the OP Bank to ‘restrain’ itself from ‘calculation of arbitrary interest’ and ‘to end the loan’, to ‘issue no objection’, to hand over the original deed of gift mortgaged to the Bank, to pay Rs.1,00,000/- for mental agony and tension and to pay Rs.15,000/ towards litigation cost.

Evidence on affidavit and Brief Notes of Argument filed by the Complainant are almost replica of the complaint petition.

The Complainant along with his complaint petition has submitted certain documents viz. photocopies of loan agreement, repayment schedule issued by the Bank and certain communications made between the Bank and the Complainant.

The complainant, apparently a consumer in terms of the relevant provision laid down under the Consumer Protection Act 2019 is a resident within the district of Hooghly. The claim preferred by the complainant does not exceed the limit of Rs.1,00,00,000/-. Thus this Commission has both territorial and pecuniary jurisdiction in the matter of proceeding in this case.

Defense Case:- The opposite parties no.1 contested the case by filing rebuttals in their written version and evidence on affidavit denying therein the allegations leveled against them. The OP Bank along with the written version has annexed copies of loan agreement, loan recall notice, public notice published under SARFAESI Act 2002 in a newspaper giving ultimatum to pay off the dues, notice under section 34 of the SARFAESI Act 2002 issued to the Complainant, Pre-intimation of symbolic possession of the property dtd.17.02.2018, against which the loan was taken, intimation of symbolic possession of the said property taken under the said Act and prepayment calculation dtd.12.11.2020.

The OP Bank in their written version highlights certain issues which are as under.

1. The Complaint actually approached to the OP for a Home loan.
2. The Complainant after having understood and being satisfied with the terms and conditions of the loan executed the Home Loan Agreement containing terms and conditions of such loan.
3. The said loan was availed by the Complainant at adjustable/floating rate of interest and not at fixed rate of interest.
4. The Complainant created equitable mortgage of the immovable property as collateral security.
5. The ICICI Home Prime Lending rate on the date of sanction of the loan was 10.25% and not 8.25%.
6. The adjustable/floating rate of interest in respect of the ICICI Home Prime Lending rate varied from time to time. Resultantly the amount and tenure of EMI were supposed to increase or decrease.
7. The loan account was classified as NPA on 05.08.2017 because of series of defaults and the OP Bank had to issue loan recall notice dtd.16.05.17 which was duly served on both the borrower and the guarantor.
8. Notice under the SARFAESI Act 2002 was also issued to the Complainant and the Guarantor, demanding payment of the outstanding dues within 60 days. The OP had to take recourse to paper publication as the notice could not be served.
9. As the repayment of the loan was not made, the OP Bank had to take symbolic possession of the mortgaged property.

Decision with reasons:-

Materials on records are perused. The questions whether there was any deficiency of service on the OP Bank’s part and whether the Complainant is entitled to any relief are taken together for discussion in this order as the issues are mutually interrelated.

On meticulous perusal of all the aspects of the case it is apparent that the Complainant actually applied for a Home Loan and while taking the loan he consciously and willingly opted for adjustable/floating rate of interest. In the sanction letter dtd.11.07.2003 the ICICI Home Prime Lending Rate on the date of sanction is noted as 10.25%. However adjustable interest rate was 8.25%. It was mentioned in the OP Bank’s communication made to the Complainant that any delay in repayment of the dues or non-replenishment of post dated cheques would attract additional interest @24% p.a.

The Complainant admits to have been a defaulter in the matter of repayment of the loan but it is claimed that subsequently there were some adjustments. Firstly it is not clarified that when and in what manner the adjustments were made. Secondly so far as the terms and conditions of the loan agreement are concerned, there is no such provision for ‘adjustment’.

The Complainant suppressed the issues that the loan account was declared NPA and proceedings were initiated under SARFAESI Act.

The Complainant alleges that ‘some papers’ were got signed by him by the OP Bank but no conclusive evidence in support of the allegation could be produced by the Complainant.

Now it transpires that the Complainant was a defaulter in the matter of repayment of the loan and the OP Bank extended reasonable opportunities and timely alerts to the Complainant in this regard. Loan recall notice was dated 16.09.2017. Public notice under SARFAESI Act was published on 16.1.2017. Pre-intimation of symbolic possession of the mortgaged property was issued on 17.02.18 whereas the complaint petition was filed on 21.09.2020.

Now, the fact is that granting of loan, repayment of the same, realization of interest, determination of cheque bouncing charges, imposition of penalty for being defaulter are all prerogatives of the Bank who granted the loan and all those are subject to audit. Moreover a bank is not supposed to go beyond the RBI guidelines in this regard and Banking Regulation Act. The Bank cannot increase or decrease the rates of interest as per their whims and fancies with a purpose to augment their profit.

Hon’ble Apex Court, in the case of Central Bank of India vs. Ravindra & Ors., observed as under.

“With effect from 15.02.1984 Section 21A has been inserted in the Act which takes away power of the court to re-open a transaction between a banking company and its debtor on the ground that the rate of interest charged is excessive. The provision has been given an overriding effect over the Usury Loans Act 1918 and any other provincial law in force relating to indebtedness”         

        Now, in view of the discussion made hereinabove and considering the facts and circumstances of the case, this commission is of the view that no deficiency of service on the OP Bank’s part and no unfair trade practice on the OP Bank’s part can be established in unequivocal terms. Resultantly, the instant complaint petition appears to be devoid of any substance and the same deserves dismissal.

Hence, it is

                                               ORDERED

that the complaint case no.48/2020 be and the same stands dismissed with no order as to cost. 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 acknowledgements/sent by ordinary post for information and necessary action.