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Judgment
Subhash Chandra, Presiding Member
This revision petition under section 21(b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order dated 20.08.2018 in First Appeal No. 388 of 2018 dated 20.08.2018 disposed vide common order in First Appeal No. 401 of 2018 of the State Consumer Disputes Redressal Commission, Punjab, Chandigarh (in short, the ‘State Commission’) dated 20.08.2018 allowing the appeal and dismissing order dated 18.05.2018 of the District Consumer Disputes Redressal Forum, Amritsar (in short, the ‘District Forum’) in Consumer Complaint no. 17/186 of 2012.
The facts, in brief, according to the revision petitioners, are that they had obtained a loan of Rs 11 lakhs for the marriage of their son from the respondent on 23.05.2015 on floating rate of interest. On 10.07.2015 they approached the respondent bank to foreclose the loan in one instalment. However, the respondent refused to do so stating that foreclosure charges and penal interest would apply, and the loan could be closed only in monthly instalments over 7 years. It is stated that the amount was not accepted in the loan account and instead two fixed deposits of Rs 8 lakhs and Rs 2 lakhs respectively were opened on 10.07.2015 and 11.07.2015. Thus, while sufficient funds, including amount in the bank account was available, the loan of Rs 10,95,182.75 was not foreclosed. The petitioners were misled into amending the fixed deposits to Rs 8,25,000/- and Rs 2,75,000/- on 14.07.2015. Petitioners state that ten months later they became aware of guidelines of Reserve Bank of India (RBI) that banks could not charge foreclosure of loans on floating rates and again approached the respondent bank for foreclosure and also sent an email on 05.03.2017. As there was no response to the request, petitioners approached the District Forum in March 2017 which ordered partially in their favour on 18.05.2017. Both petitioners and the respondent herein approached the State Commission in appeal which, vide the impugned order, dismissed the appeals and upheld the order of the State Commission. Hence this revision petition.
Heard the petitioner in person and learned counsel for the respondent and perused the records.
The order of the District Forum reads as below:
“8. … we allow the complaint and the opposite party is directed to adjust the remaining outstanding amount without charging any prepayment charges. As the complainant has suffered a lot in the hands of the opposite party, as such the complainant is entitled to compensation to the tune of Rs 30,000/- (Thirty thousand) while litigation expenses are assessed at Rs 5,000/-…”
The impugned order of the State Commission held as under:
… The sole proprietorship concerned is not a company and firm and Apex Court has held in Bhagwati Vanaspati Traders versus Senior Superintendent of Post Offices reported in 2015 (2) CPR 405 (SC) by holding that in a sole proprietorship concern, individual uses a fictional trade name in place of his own name only. The rigidity adopted by authorities is clearly ununderstandable. … The contention of OP is not accepted that sole proprietorship concern is not an individual and is not a living person. The order of the District Forum is correct in holding that foreclosure charges are unauthorized, because it is a case of loan against property where the borrowers are individuals.
… We are not impressed with the submission of Sh. Parbodh Chander Bali one of the complainants as advanced before us. FDR cannot be opened without the express consent of the customers by the Bank. Why the complainants gave consent for opening fixed deposit receipts and now complainants are stopped from arguing to the contrary. Fixed Deposit Receipts are opened only with the express consent to the concerned person by the bank and hence we find no force in the prayer and contentions of the complainants for reimbursement of the excess charges recovered from them towards loan amount interest vis-a-vis the interest accrued to them from the fixed deposit receipts for their amounts. This plea of complainants has not been accepted by District Forum correctly and same stands declined by us in this appeal also. The order of the District Forum Amritsar is sustainable in the eyes of law and stands affirmed accordingly.
As a result of our above discussion, there is no merit in Appeal No. 388 of 2018 find by HDFC Bank and same is hereby dismissed. Similarly, there is no merit in Appeal No 401 of 2018 find by opponents Sunita Bali and Parbodh Chander Bali and same is also hereby dismissed.
In First Appeal No. 388 of 2018, the appellant had deposited an amount of Rs 17,500/- in this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the complainants in equal shares by way of crossed cheque/ demand draft after 45 days from receipt of certified copy of this order to the extent of their entitlement. Remaining amount, if any, found due, shall be paid to complainants by the OPs in the complaint giving rise to this appeal, as per order of District Forum within 45 days from receipt of certified copy of this order.
The contention of the petitioners is that the respondent Bank has acted in contravention of the RBI circular dated 07.05.2014 whereby the loan on a floating rate basis by a sole proprietorship firm cannot be foreclosed without penalty and charges. It is their contention that they were misled/coerced into opening Fixed Deposits with the respondent bank instead. Their contention is that on account of this act of the respondent, they had to pay a higher rate of interest. They therefore pray that the impugned order be set aside and that the relief prayed for before the District Forum, i.e., foreclosure of loan with effect from 10.07.2015 be granted for which the respondent be directed to refund the interest charged on the period 10.07.2015 to 26.10.2018, the date of foreclosure, along with compensation and costs.
Per contra, learned counsel for respondent argued that the respondent bank had acted as per the RBI’s instructions in circular no. DBOD Dir. BC No. 110/12.3.00/2013/14 dated 07.05.2014 and therefore the petition deserved to be dismissed. It was contended that the loan was in the name of a proprietorship firm which was not under the ambit of the RBI’s guidelines in the said circular for any rebate/concession with regard to waiver of foreclosure of the loan account. He has claimed that the bank opened a Fixed Deposit for the petitioners for which there was an implied consent and therefore the bank did not act in any coercive manner.
From the records it is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal. The concurrent findings on facts of these two foras are based on evidence led by the parties and documents on record. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess and re-appreciate the evidence which cannot be done in revisional jurisdiction. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse.
This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.
The Hon’ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Company (2011) 11 SCC 269 dated 18.03.2011 has held that:
“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”
Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors (2016) 8 SCC 286 dated 02.08.2016 held:
“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”
The Hon’ble Supreme Court in its judgment dated 05.04.2019 in the case of T Ramalingeswara Rao (Dead) Through LRs & Ors Vs. N Madhava Rao and Ors, Civil Appeal No. 3408 of 2019 dated 05.04.2019 held as under:
“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”
The foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner which have been raised before me in this revision petition. It is also seen that the orders of these fora are based on evidence on record. The District Forum has allowed the complaint and directed the opposite party to adjust the balance outstanding amount without charging any prepayment charges, apart from compensation of Rs 30,000/- and litigation costs of Rs 5,000/-. The State Commission has affirmed this order. In view of the settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail.
In view of the foregoing, I find no illegality or infirmity or perversity in the impugned order warranting any interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed. Order of the State Commission is affirmed.