State Bank Of India vs Bijay Kumar Singh & Anr

Justice Sudip Ahluwalia, Member

This Revision Petition has been filed by the Petitioner/ Opposite Party No.1 against Respondent No.1/ Complainant and Respondent No.2/ Opposite Party No.2 challenging the impugned order dated 27.10.2016 passed by the State Consumer Disputes Redressal Commission, West Bengal in First Appeal No. A/1157/2014. Vide such order, the State Commission had dismissed the Appeal while upholding the order dated 19.03.2014 passed by the Consumer Disputes Redressal Forum, Howrah in Complaint Case No. HDF 277 of 2013.

The brief facts of the case are that the Complainant had taken a Housing Loan of Rs.2,00,000/- with fixed interest @ 8% per annum from the Opposite Party No.1 on 27.02.2004. It was the case of Complainant that it was settled between the parties that the E.M.I. was to be deducted from Complainant’s Salary Account. It was further averred that the Complainant was to repay the loan to Opposite Party No.1 in 120 EMIs of Rs.2,340/- each, totalling Rs.2,80,800/-. It was also claimed that the Complainant paid Rs.2,340/- for 15 E.M.Is from 17.04.2004 to 18.06.2005 totalling Rs.35,100/-, and that his  Salary Account was transferred from Salkia Branch to Howrah Maidan Branch and consequently, the rest E.M.I.s were deducted at the Opposite Party No.2’s branch. It was further submitted that from 18.07.2007 till 15.07.2013, the Complainant had paid 97 E.M.Is totalling  Rs.2,32,800/- without any defaults. Hence, the complainant paid a total of 112 E.M.I.s between 17.04.2004 till 15.07.2013 and only 8 E.M.I.s amounting to Rs.19,200/-  were pending for payment. However, the Opposite Party no.2 sent a Notice dated 07.01.2013 claiming Rs.24,480/- as outstanding dues wherein the monthly E.M.I. was increased from Rs. 2,400/- to Rs.3,805/- and further asked the Complainant to submit the original Deed. It was further submitted that the Complainant tried to convince the Opposite Party that there were no arrear dues as claimed. It was further submitted that the Opposite Party sent an information to the Complainant wherein the outstanding dues as on 15.07.2013 had increased to Rs.70,356/-. It was also claimed that the Opposite Party failed to submit any clear Accounts/ Statements to the Complainant despite repeated requests. It was further averred that the Opposite Parties were continuously threatening the Complainant to dispossess him in case of failure to make the claimed payment. Hence, the Complaint was filed by the Complainant seeking settlement of the Loan Account at Rs.19,200/- which were his actual dues, Compensation of Rs.50,000/-, Cost of Rs.20,000/- for Harassment and Litigation Cost of Rs.10,000/-.

The Opposite Parties failed to file their Written Version before the District Forum despite several opportunities, on account of which the matter was proceeded Ex parte against them.

The Ld. District Forum vide its order dated 19.03.2014 allowed the Complaint of the Complainant and observed inter alia -

“7.  We have no hesitation in our mind that the O.P. Bank acted arbitrarily in charging the Complainant with imaginary arrear. We fail to understand how the O.P.s could enhance the EMI rate from Rs.2,400/- to Rs.3,805/- when the 120 EMIs was allotted with Rs.2,400/- (Rs.2,340/-) as EMI. The conduct of O.P.s amounts to gross unfair trade practice when Rs.19,200/- only appears due for settlement of the loan……….”

Aggrieved by the above order, the First Appeal was filed by the Opposite Party No. 1 against the Complainant, and the Opposite Party No.2 before the State Consumer Disputes Redressal Commission, West Bengal.

It was contended by the Appellant/Petitioner that the Opposite Parties did not get any scope to establish their contention in the complaint case which was decided Ex parte. It was further contended that the Opposite Party No.1/ Appellant Bank had dues from the Complainant to the tune of Rs.54,479/- as on 18.09.2014. It was further contended that there was a floating rate of interest as per the Agreement instead of a fixed rate of interest of 8% as contended by the Complainant.

It was submitted by the Complainant before the State Commission that the Complainant paid 10 EMIs in excess i.e. the Complainant paid a total of 130 instalments instead of 120 and the last 10 instalments @Rs.2,400/- were deducted arbitrarily by the Opposite Parties from Complainant’s Salary Account after the Appeal before State Commission was filed.

The Ld. State Commission vide its impugned Order dated 27.10.2016 dismissed the Appeal and upheld the order of District Forum observing inter alia -

“Further, as regards the claim of the Bank about floating rate of interest towards recovery of the bank loan as per Agreement, the claim seems to be an unfounded one as the record is devoid of any copy of the Agreement to ascertain the said contention. It is admitted by the Ld. Advocates of both sides in course of their arguments that the copy of the Agreement was not furnished by the Appellant/OP 1 before the Ld. District Forum also. In absence of the copy of the Agreement, we are unable to accede to the floating rate of interest as claimed by the Appellant/OP1.

Above being the circumstances, we are of view that there is no basis of the overdue amount as claimed by the Appellant/O.P. no.1. Moreover, there being apparently no lapse on the part of the Respondent 1/Complainant, the extreme step of blocking the Salary Account and deducting 10 EMIs in excess of the fixed number of instalments as per Agreement putting the Respondent/ Complainant in extreme economic hardship indicate only the height of deficiency in service on the part of the Ops of the complaint case.”

The present Revision Petition has since been filed by the Petitioner/ Opposite Party No.1 against the above mentioned impugned order of the Ld. State Commission on the following grounds –

a. That the Ld. District Forum, Howrah passed an order arbitrarily ignoring the fact that rate of interest was never fixed at 8% but instead of that it was at the fluctuating current rate as per the SBI Notification;

b. That the Petitioner Bank requested the Hon’ble State Commission to take consideration of statement of account that reflected outstanding of the bank to the tune of Rs.54,479/- as on 18.09.2014;

c. That the Hon’ble State Commission ignored the fact that the rate of interest was not fixed @ 8% but as per the Loan Agreement, rate of interest was fixed at floating rate and the Hon’ble State Commission also ignored the fact when the Loan Agreement was not a part of record before the Ld. District Forum then how did the Ld. District Forum held the rate of interest to be fixed @ 8%;

d. That the orders of Ld. Foras below are against law and probability of evidence;

e. That the Ld. Fora below failed to appreciate that the Loan agreement being an essential document is not on record before the Fora and therefore, the orders suffer from non-consideration of evidence. And the liability of Petitioner bank cannot be determined without considering the Loan Agreement;

f. That the order of Ld. District Forum was made ex-parte;

g.  That the Ld. Fora below have failed to appreciate the fact that the Memorandum of Term Loan Agreement clearly specifies that “the Loan is repayable with interest at 8% per annum or at such rates as may be specified by the Bank from time to time…”;

h. That Ld. Fora below have failed to appreciate that the fluctuating nature of interest was very much within the knowledge of the Respondent/ Complainant;

i. That the Ld. State Commission failed to appreciate that the Ld. District Forum was unjustified in not appreciating that the Complaint did not fall within the ambit of Consumer Protection Act, 1986.

Vide order dated 15.09.2017, the Respondent No.2 was deleted from the array of parties.

After hearing Ld. Counsel for both sides and perusing the available material on record, this Commission finds no grounds to interfere with the concurrent decisions of both the Ld. Fora below.  This is so, firstly, for the reason that whatever sought to be urged at this stage on behalf of the Petitioner Bank was never put up as a defence before the District Forum in the first place, since the matter was heard Ex parte against it after having granted it several opportunities to file its Written Version, which was not done.  Nevertheless even the documents now relied upon by the Petitioner reveal a sorry state of affairs.  The Loan Agreement between the parties was apparently entered into on February 27, 2004, and the Arrangement Letter was issued by the Petitioner Bank on the same day.  Perusal of the same goes to reveal that the floating rate of interest “over SBMTLR”, was not mentioned therein and the relevant column was left blank.  Needless to repeat, even that Agreement was not made available in the District Forum, and consequently, could also have not been looked into by the State Commission.  Further, according to the Petitioner, the monthly instalments deductible towards repayment from the Respondent’s salary amount were to be @ Rs. 2,430/- p.m., against which he paid an amount of Rs. 2,340/- only each month, thereby leaving a shortfall of Rs. 90/- p.m.  But, it was actually meant to be deduction at the behest of the Petitioner itself which apparently made clerical mistake in that regard for which the Respondent/Complainant was not to be blamed.  The Demand Letter/Notice issued to him on 7.1.2013 (Annexure-P5) showed his arrears to be Rs. 24,480/- till that time and his EMI instalments were sought to be increased to Rs. 3,805/- p.m.  But, no Statement of Accounts was sent alongwith the Demand Letter.  The copy of the Loan Agreement itself was not delivered to the Complainant to enable him to scrutinize that the relevant entries pertaining to the applicable rate of floating interest had been left blank therein.  There is also no record whatsoever of any Statement of Accounts having been sent to the Complainant in terms of Para 3 of the Arrangement Letter issued by the Bank itself.  The Complainant from his side had claimed that he had received only the letters dated 7.1.2013 and 4.4.2013 from the Bank prior to taking of coercive action against him, by way of blocking his Salary Account, and even that after deducting 10 additional instalments therefrom which were not due towards the Bank. In fine, the overall approach and conduct of the Petitioner Bank concerning the loan transaction with the Complainant was not only high handed but also depreciable.

For the aforesaid reasons, the Revision Petition which is found bereft of any substantive merits is dismissed with additional litigation costs of Rs. 10,000/- payable to the Respondent/Complainant.

Pending application(s), if any, also stand disposed off.