30.11.2015

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The instant Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed by the OPs assailing the judgment and order dt. 19.5.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II in C.C.No. 215 of 2013, directing the OPs to ‘rectify the interest rate @ 11% after deleting 20% as noted in the agreement’ along with preparation of a fresh statement of loan account and adjustment of the EMIs already paid by the Complainant.  The OPs were further directed to pay to the Complainant Rs. 2,000/- as cost.  The OPs were also directed  to not send ‘any muscle men or gundas’ to the residence or business place of the Complainant.  The above directions were ordered to be complied with within one month from the date of the order.

          Brief facts of the case, which are relevant and pertinent for disposal of the case on hand, are that the Respondent/Complainant was sanctioned on 19.4.2011 Personal Loan of Rs. 4,22,383/- (A/c No. 48253626) by the Appellants/OPs with the terms and conditions of repayment of the same in 60 EMIs of Rs. 11,190/- each and the rate of interest being 20% per annum on diminishing balance.  After disbursement of the said loan the Respondent/Complainant repaid only 23 EMIs out of 60 EMIs, but could not repay the balance EMIs because of financial difficulties and illness of the Respondent/Complainant.  The Respondent/ Complainant having thus defaulted in payment of outstanding loan amount, the Appellants/OPs instead of settling the loan amount with the Respondent/ Complainant as per his request, threatened the Respondent/Complainant by sending collecting agents to the Respondent/Complainant, who misbehaved with the Respondent/Complainant and threatened to kill him as averred in the Petition of Complaint.  Then the Respondent/Complainant lodged a General Diary with the Bansdroni Police Station and the Joint Commissioner of Police (Crime) Lalbazar.  At this juncture, the Complainant moved the Complaint before the Ld. District Forum which passed the impugned judgment and order in the aforesaid manner.

          The Ld. Advocate for the Appellants/OPs submits that the Ld. District Forum erred in giving direction to the Appellants/OPs to ‘rectify’ the interest rate of the loan in question from 20% to 11% despite no such pleading by the Complainant in the Petition of Complaint.

          The Ld. Advocate further submits that the Ld. District Forum has committed further error in law in giving direction to the Appellants/OPs to ‘rectify’ the rate of interest from 20% which was agreed upon by the Respondent/ Complainant as it is evident from the ‘personal loan customer confirmation document’ duly signed by the Respondent/Complainant, which is available on records, as it is settled by the series of decisions of the Hon’ble National Commission to the effect that the parties to a contract are bound by the terms and conditions of the contract mutually agreed upon, as in the present case.

          The Ld. Advocate also submits that the allegation of threatening and killing the Respondent/Complainant is nothing but a concocted story by the Respondent/ Complainant to cover up his default in payment of the outstanding loan amount and also for illegal gain as the said allegation is not supported by any cogent evidence on behalf of the Respondent/Complainant.

          The Ld. Advocate finally concludes that in view of the aforesaid submission the instant Appeal should be allowed, the impugned judgment and order be set aside and the Complaint be dismissed, it being unlawful and its pleadings are not based on cogent evidence on behalf of the Respondent/ Complainant.

          None appears on behalf of the Respondent/Complainant despite service of Notice as it is evident from the order dated 6.1.2015 of this Commission.

          However, in the Petition of Complaint, as available on records, the default in payment of outstanding loan amount is not denied by the Respondent/ Complainant and there is no whisper about the rectification of the interest rate from 20%, as agreed upon by the Respondent/Complainant, to 11% as was ordered by the Ld. District Forum, and thus, such order is beyond pleading, which is not permissible in the justice delivery system.  In this context, reliance is placed on a decision of the Hon’ble National Commission in Dr. S.Gurunath (Dead) Vs. Vijaya Health Centre, reported in III (2002) CPJ 211 (NC).

          Furthermore, it is well-settled by the decision of the Hon’ble National Commission that the parties are bound by the terms and conditions of the contract/agreement as in the Loan Agreement dt. 19.4.2011 (Running Page-42 of Memo of Appeal) in the case on hand.  In this context, reliance is placed on a decision of the Hon’ble National Commission in Subhas Chander Mahajan Vs. Parsvnath Developers Ltd., reported in 2014 (3) CPR 142 (NC).

          The decision of the Hon’ble Supreme Court in Manager, ICICI Bank Ltd. Vs. Prakash Kaur & Ors., decided on 26.2.2007 in Appeal (Crl.) 267 of 2007, as referred to by the Ld. District Forum in the impugned judgment and order is of no help in the case on hand, as in the case on hand threatening and use of abusive languages, as was dealt with in the said case, has not been substantiated by any cogent evidence. In this context, reliance is placed on a decision of the Hon’ble National Commission in G.M. North Western Railways, Jaipur & Anr. reported in 2014 (1) CPR 368 (NC).

          In view of the aforesaid discussion we are unable to sustain the impugned judgment and order.

          Accordingly, the Appeal is allowed, the impugned judgment and order is set aside and the Petition of Complaint is dismissed.  No order as to costs.