Punjab

Ludhiana

CC/22/31

HEMRAJ KAURA - Complainant(s)

Versus

RACPC SBI LUDHIANA - Opp.Party(s)

SURINDER PAL

09 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:31 dated 25.01.2022.                                                Date of decision: 09.03.2023.

Hem Raj Kaura s/o. Sh. Jagdish Lal Kaura, R/. H. No.2279, Street No.10, Shaheed Karnail Singh (SKS) Nagar, Ludhiana. Mob. No.95010-03213. Email.

……Complainant

                                                Versus

1. State Bank of India, SSI Branch, Shimlapuri, Ludhiana, through its Branch Manager-141003.
2. State Bank of India, Retail Assets Central Processing Centre Branch (RACPS), 1^st Floor, Main Branch Building, Fountain Chowk, Civil Lines, Ludhiana through its Chief Manager-141001.

…….Opposite parties.

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Surinder Pal, Advocate. 

For OPs                         :         Sh. Anmol Shubham Sood, Advocate.

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Succinctly put, the facts of the case are that the complainant a senior citizen of 62 years and Ex-serviceman, had obtained home loan of Rs.4,68,000/- on 19.11.2011 under account No.31976323465 Product SBI Home Loan TL from the opposite parties. The loan was to be repaid in EMIs of Rs.4680/- to be deducted through ECS from his savings account  No.10193484393 on 15^th of every month. The complainant submitted that besides the above housing loan, SBI gave him one Loan Insurance Plan No.70000000310 named SBI Surakshit  HL Product through account No.31995220150 for Rs.55,000/- for which a monthly EMI of Rs.200/- was to be deducted through ECS on 20^th of every month from his above said account. In his said savings account, the complainant always maintained sufficient balance for timely electronic clearing of ECS installments and all the EMIs of the housing loan and the SBI S HL were being paid in time without default.

                   The complainant submitted that opposite party bank issued a notice of demand of Rs.71843.21 to the complainant through memo No.61/8057 dated 12.08.2021 as arrears of payment of SBI Home loan in account No.31995220150 and threatened him of consequences. He immediately enquired from opposite party No.1 about the demand and obtained account statement of his saving account No.10193484393 for the previous 11 years and found that all the EMIs of the above said both loans had been deducted by SBI regularly in time without any default. The complainant approached opposite party No.2 and enquired about the demand notice, but they made evasive reply and failed to provide the contract form/arrangement letter executed at the time of taking the loan. Then the complainant moved RTI Act application and arrangement letter was provided under RTI Act and an EMI of Rs.461/- was the stipulated amount of monthly installment. The statement of SBI Home Loan TL account No.31976323465 shows that the opposite parties also arbitrarily imposed Rs.4147/- on 25.01.2012 under SBI General Insurance Policy and on enquiry, SBI could not give any justification or any document of contract regarding the policy. The said amount was clandestinely deducted from savings account of the complainant without his consent and knowledge. The opposite parties also made unauthorized and undue deductions of Rs.16,254/- on different dates under different pretexts without his consent or knowledge which amounts to fraud and unfair trade practice on the part of the opposite parties. The detail of the deductions is reproduced as under:-

The complainant further submitted that the policy No.70000000310 is of total Rs.55,000/- and was for five years only. Its premium of Rs.11,000/- was to be paid every year for five years i.e. 19.10.2011 to 18.10.2016. Hardcopy of the insurance policy dated 21.10.2021 shows the sum assured to be of Rs.5,22,980/- whereas the online copy of the said policy dated 21.10.2011 shows the sum assured to be Rs.4,00,386/- and two copies of same policy have difference of Rs.1,22,594/-. The statement of SBI Home loan account No. 31976323465 taken on 13.01.2022 shows the outstanding amount of loan to be Rs.97,927.17 only but the insurance policy No.70000000310 dated 21.10.2011 shows the due amount to be Rs.3,75,350/- and as such, the decreasing amount of home loan should decrease the insurance loan also. The complainant further stated that out of total amount of insurance of Rs.55,000/- in SBI S HL account, the opposite parties have already received Rs.35,893.79 and are still demanding Rs.71,843.21 more. The opposite parties have now started deducting Rs.1268/- w.e.f. 21.10.2021 apart from his regular EMI of Rs.200/- of monthly installment of insurance loan. The bank has also put his name in CIBIL whish has shattered his repudiation in society and he is not able to avail loan from banks. The complainant sent online complaint to Customer Care Cell of opposite parties on 15.09.2021 having No.3706841 but did not redress his grievances. Thereafter, the complainant visited the bank but they flatly refused to withdraw the notice and overhaul his accounts. The complainant sent complaint to the Bank Ombudsman on 17.10.2021 but it has also not taken any action despite sending reminder dated 29.12.2021. In the end, the complainant made a prayer with following reliefs:-

1. The impugned demand of Rs.71,843.21 raised through demand notice may be set aside in toto and further payment of installments form his account 31995220150 may be stopped forthwith.
2. The illegal monthly deduction of Rs.1268/- may be stayed forthwith.
3. The SBI may be directed to refund Rs.4147/- taken in the name of SBI General Insurance charges and Rs.12,107/- (Totaling to Rs.16,254/-) unlawfully deducted by them from his account under different pretext.
4. The OPs may be directed to clear his accounts from CIBIL immediately.
5. That the complainant be awarded compensation of Rs.50,000/- for the mental agony and emotional distress inflicted on him by the O.Ps.

2.                Upon notice, the opposite parties appeared and filed joint written statement and took preliminary objections that the complainant is not maintainable and is liable to be dismissed; the complainant has not come to the Commission with clean hands and has suppressed the material facts; the complaint is bad for mis-joinder and non-joinder of parties and there is no deficiency in service on their part. According to the opposite parties, it was in the knowledge of the complainant that the equated monthly installments in SBI Surakshit HL Product account No.31995220150 was Rs.461/- as agreed by him in the arrangement letter i.e. Ex.R-1. Despite the said fact, the complainant had only issued standing instructions to the bank to deduct Rs.200/- per month and the remaining amount of Rs.261/- was to be deposited by him at his own end. Moreover, as agreed by the complainant in Ex. R1 and highlighted as Ex. R2 which is reproduced as under:-

"the rate of interest is subject revision from time to time and you shall be deemed to have notice of changes in the rate of interest whenever the changes in SBMTLR displayed/notified at/by the Branch/published are in newspapers/made through entry of interest charged in the passbook/statement of account sent to you etc. The bank has the option to reduce or increase the EMI or extend the repayment period consequent upon changes in SBMTLR. In the event of a default in payment or any irregularity in account the bank reserves the right to levy the higher rate of interest as it deems fit."

So it is clear from the above said facts that the bank was at liberty to change the rate of interest and accordingly levy a varied rate of interest. The bank has also issued a letter dated 26.05.2020 posted on 30.05.2020 to change the EMI in the loan account but the complainant failed to pay any heed to it. The opposite parties alleged that there are so many intricate and complicated points involved in this case and to prove these points elaborate evidence is required to be led/produced as such as per law only the Civil court has the competency and jurisdiction to decide the matter. Since there is an agreement/contract of loan between the parties as such the complaint is not maintainable and is liable to be dismissed.

                   On merits, the opposite party reiterated the crux mentioned in the preliminary objections. The opposite parties alleged that in the reminder No.61/8057 dated 12.08.2021 there was no demand to pay the entire outstanding  amount of Rs.71,843.21. However, the same pertains to the demand for deposit of irregular amount of Rs.1268.21 only. The amount of Rs.4147/- and Rs.16,254/- were debited to the account of the complainant as per the terms and conditions of arrangement letter. Rest of the averments have been denied as incorrect and in the end, a prayer for dismissal of the complaint has been made.

3.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of statement of account of SBI Home Loan No.31976343465, Ex. C2 is the copy of statement of account of SBI Surakshit HL No.31995220150, Ex. C3 is the copy of reminder-1 Dated 12.08.2021 of the opposite parties, Ex. C4 is the copy of arrangement letter, Ex. C5 is the copy of statement of account of SBI Home Loan No.31975323465, Ex. C6 is the copy of premium receipt dated 04.10.2021, Ex. C7 is the copy of certificate of insurance, Ex. C8 is the copy of details of Policy RINN RAKSHA, Ex. C9 is the copy of first premium receipt, Ex. C10 is the copy of account statement of account No.31976323465 w.e.f. 09.03.2022 to 09.09.2022, Ex. C11 is the copy of statement of SBI Surakshit HL No.31995220150 w.e.f. 09.03.2022 to 09.09.2022 and closed the evidence.

4.                On the other hand, the counsel for the opposite parties tendered affidavit Ex. RA of Ms. Kiran Singh, Chief Manager of State Bank of India, RACPC, Civil Lines, Ludhiana along with documents Ex. R1 is the copy of arrangement letter, Ex. R2 is the copy of terms and conditions of loan, Ex. R3 is the copy of letter dated 26.05.2020 of opposite parties, Ex. R4 is the copy of postal receipt, Ex. R5 is the copy of letter dated 12.08.2021 of the opposite parties, Ex. R7 is the copy of identity card of Ms. Kiran Singh, Manager (NPA) and closed the evidence.

5.                During the proceedings of the complaint, on 28.02.2023, Sh. Pawan Sood, Manager Maintenance SBI appeared in person with counsel for giving answers to the queries raised by this Commission. He also submitted updated statement of account of the complainant w.e.f. 19.10.2021 to 27.02.2023

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply, affidavit and documents produced on record by both the parties.

7.                Undisputably, home loan of Rs.4,68,000/- vide home loan account No.31976323465 obtained by the complainant on 19.11.2011 was paid regularly and the EMI of Rs.4680/- was being deducted from his savings account on 15^th of every month. The complainant also availed a loan insurance plan named SBI Surakshit HL Product account No.31995220150. The complainant received a demand notice of Rs.71,843.21 on 12.08.2021 Ex. C3, the operative part of which is reproduced as under:-

“Please refer to our earlier notice wherein it was advised to regularize your loan account within a week.

It is noticed that you have not regularized your loan account so far and, in the meantime, second installment has also fallen due raising your irregular amount as under:-

We may bring to your notice that continuation of irregularity in the account will lead to

1. Reflection of default status in your/your guarantor’s CIBIL records & records of other Credit Rating Agencies impacting the CIBIL score adversely.
2. Recall of entire loan and initiation of legal action by Bank including action under SARFAESI Act as applicable.

We, therefore, again advise you to deposit the entire irregular amount positively within 7 days of receipt of this Notice else opt for restructuring (EMI holiday for 12 months) if your income has been affected due to COVID.

On non-receipt of any reply from your side, we will be constrained to recall entire loan and initiation of legal action by Bank including action under SARFAESI Act, as applicable.

8.                The counsel for the complainant contended that he had been regularly paying the EMI of Rs.200/- which was to be deducted through ECS on 20^th of every month and he had been paying the same and as such, there cannot be any arrears of loan amount and the demand raised by the opposite parties is unlawful and unjustified. Further the deductions made by the opposite parties to the tune of Rs.16,254/- as detailed here before in para No.7 of the written statement are illegal and arbitrary. 

9.                On the other hand, the counsel for the opposite parties submitted that all the deductions were made llegallly8 in consonance with the terms and conditions of loan.  

10.              For the adjustment of matter in controversy, it is appropriate to refer to certain clauses of arrangement letter Ex. R2 = Ex. C4, which are reproduced as under:-

          “Floating Rate of Interest

Interest on the loan will be charged at 0.50% p.a. over Based which is currently 10% p.a. (The current effective rate being 10.50% p.a.) with quarterly rests. The rate of interest is subject revision from time to time and you shall be deemed to have notice of changes in the rate of interest whenever the changes in SBMTLR displayed/notified at/by the Branch/published are in newspapers/made through entry of interest charged in the passbook/statement of account sent to you etc. The bank has the option to reduce or increase the EMI or extend the repayment period consequent upon changes in SBMTLR. In the event of a default in payment or any irregularity in account the bank reserves the right to levy the higher rate of interest as it deems fit.”

“Repayment

The loan is to be repaid in Equated Monthly Installment of Rs.461.00. The repayment instalment commences (a) 2 months after completion of construction or after eighteen months from disbursement of first instalment, where loan is released in isntalments, whichever is earlier or (b) from November 2011. Your liability to the bank will be extinguished only when the outstanding in the loan account becomes Nil on payment of residual amount if any.”

“Legal expenses

All legal expenses, like solicitor’s and lawyer’s fees, insurance permia, stamp duty, registration charges and other incidental expenses incurred in connection with the loan should be borne by you.”

11.              Perusal of loan documents and statement of account reveals that EMI of Rs.461/- was to commence from November 2011 but due to non-payment of the same, an amount of interest of Rs.1300/- and Rs.1324/- was deducted on 24.02.2012 and 30.04.2012. Thereafter, an ECS mandate of Rs.200/- instead of Rs.461/- was effected by the complainant. The amount of Rs.200/- so set off, was insufficient to meet out the interest part of EMI and kept increasing which lead to further deductions and issuance of notice dated 12.08.2021 advising the complainant to regularize the account.  Further through this notice, the complainant was also made aware of the legal consequences in case of non-compliance. The opposite parties were just enforcing its contractual rights and same can be termed as unfair trade practice or deficient service.

12.              However, the initial onus for proving the deficiency in service was upon the complainant and it was him to specifically refer to terms and conditions of the loan agreement etc. which were violated by the opposite parties while making deductions but bold and general assertions were made. In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

13.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

14.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

Announced in Open Commission.

Dated:09.03.2023.

Gobind Ram.

Hem Raj Kaura Vs State Bank of India                         CC/22/31

Present:       Sh. Surinder Pal, Advocate for the complainant.

                   Sh. Anmol Shubham Sood, Advocate for OPs.

                   Arguments of the counsel for the complainant heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

Announced in Open Commission.

Dated:09.03.2023.

Gobind Ram.