State Consumer Disputes Redressal Commission
L.T.P.L.Collection Manager, Icici ... vs Mr. Ranjan Kumar Baidya on 26 August, 2009
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : FA/09/110 DATE OF FILING : 12.03.2009 DATE OF FINAL ORDER: 26.08.2009 APPELLANTS 1. L.T.P.L. Collection Manager ICICI Bank Ltd. 2, Upper Wood Street Kolkata-700 020. 2. Chief Operations Manager ICICI House, 2nd Floor, 3A, Gurusaday Road Kolkata-700 019. RESPONDENTS Mr. Ranjan Kumar Baidya 27/B/1, Maharani Indira Debi Road Kolkata-700 060 P.S. Behala in the District 24 Parganas (South). BEFORE : MEMBER : MR. P.K.CHATTOPADHYAY MEMBER : MR. S.COARI FOR THE PETITIONER / APPELLANT : Mr. P.Banerjee, Ld. Advocate FOR THE RESPONDENT / O.P.S.: Mr. A.K.Maity, Ld. Advocate : O R D E R :
MR.
P.K.CHATTOPADHYAY, LD. MEMBER This Appeal arose out of judgement and order in Complaint Case No. 136 of 2008 in DCDRF, South 24 Parganas where the complainant, Mr. Ranjan Kumar Baidyas case was that he had taken a personal loan of Rs. 30,000/- from ICICI Bank, OP Nos. 1 & 2 in the complaint case, when after process the actual loan amount of Rs. 28,347/- was paid on the condition that the loan amount would be re-payable in 36 numbers of EMI at Rs. 1,587/- per month with certain other conditions as in the mutually accepted agreement. Subsequently, the complainant wanted to foreclose the loan account by preponment of dues as was later agreed between the parties and to such purpose issued two cheques, one on HDFC Bank, Central Plaza Branch for Rs. 26,439/- dt. 27.9.06 and another for Rs. 2,341/- dt. 10.10.06 on United Bank of India, Parnashee Branch, totalling Rs. 28,780/- approx. However, the Ops chose to encash the first cheque of Rs. 26,439/- but kept the other cheque of Rs. 2,341/- in their care and custody with an intention to harass the petitioner by not closing the loan account.
Stating that the second cheque of Rs. 2,341/- was neither encashed nor returned back the complainant further stated that subsequently the OP/ICICI Bank continued to withdraw Rs. 1,587/- on 13.10.06, 7.12.06, 9.1.07 and 7.4.08 from the complainants bank account through ECS/post-dated cheques totalling an amount of Rs. 6,348/- and all the efforts by the complainant during this time to complete the foreclosure and to stop further encashment at Rs. 1,587/- per month did not cut ice with the Ops.
Alleging that the complainant was also exposed to recovery agents and antisocial elements sent at the behest of the Ops the complainant stated to have filed a complaint with the local Behala Police Station under G.D. Entry No. 2386 dt. 27.9.07. Subsequently, the complainant received further demand notice from the Ops and found that the foreclosure was not effected and the Ops were demanding more money on the said loan account and therefore, complaint case was instituted asking for orders/direction on the Ops to close the personal loan account and to return all the post-dated cheques kept in the custody of the Ops and also for refund of an amount of Rs. 6,348/- realized in excess and for compensation of Rs. 25,000/- with other orders on cost and reliefs as the complainant was entitled to.
The Ops entered appearance but did not file any written objection when the matter was heard from respective sides with filing of WNA by both sides.
The Ld. District Forum after hearing both sides passed its judgement and order as under :-
The OP Nos. 1 and 2 are directed to refund Rs. 6348/- to the complainant along with interest @ 12% p.a. with effect from 10.10.2006 till this date and also compensation of Rs. 25,000/- within a month from this date, failing which the complainant shall be entitled to get interest @ 18% on the entire decretal sum till realization.
The Ops are also directed to return all the unrealized cheques which were handed over to them by the complainant at the time of taking personal loan. The Ops are further directed not to send any demand bills to the complainant relating to the loan of Rs. 28,347/- taken by the complainant.
We, however, pass no order as to the cost of this case.
Being aggrieved and dissatisfied with the impugned judgement of the Ld. Forum below the Op Nos. 1 & 2 in the Forum namely (1) L.T.P.L. Collection Manager, ICICI Bank Ltd. and (2) Chief Operations Manager, ICICI Bank, filed this Appeal when they stated inter alia that in terms of the written agreement dt. 31.12.05 the complainant/Respondent obtained a loan for Rs. 30,000/- to be repaid in 36 equated monthly installments of Rs. 1,587/- commencing from 5.2.06 till 5.1.09, when the mode of repayment was ECS.
Subsequently, the complainant/Respondent wanted to foreclose the said loan account when the Appellant computed the repayment amount at Rs. 28,779.63 and conveyed this position through a letter dt. 10.10.06. In compliance the Respondent/Complainant made over two cheques on 10.10.06 being Cheque Nos. 127323 dt. 27.9.06 for Rs. 26,439/- on HDFC Bank Ltd., Central Plaza Branch, Kolkata and Cheque No. 631879 dt. 10.10.06 for Rs. 2,341/- drawn on UBI, Parnashree Branch, Kolkata. While the first cheque for Rs. 26,439/- could be encashed the second cheque for Rs. 2341/- was, however, dishonoured on presentation. By reason of such dishonour the entire foreclosure amount on the given loan account could not be realized and the Appellant/Bank continued re-payment through the pre-arranged ECS in order to recover the amount due and payable by the Respondent/Complainant in respect of the given loan. Denying that any antisocial elements or recovery agents were employed the Appellant stated that it had acted only on the guidelines of RBI/IBA/BCSBI and ultimately on initiative of the Respondent, the Appellant by a letter dt. 29.11.08 claimed an amount of Rs. 14,398/- from the complainant towards complete and outstanding repayment of the loan account, which subsequent to the completion of the total loan tenure amounted to Rs. 17,770/- inclusive of all other charges like bounce and overdue.
Stating that the complaint was filed in gross suppression of material facts in an attempt to evade the obligation under the said loan agreement, the Appellant pointed out that the impugned judgement and order did not take into account the proper relationship of the parties being that of debtor and creditor, where provisions of Consumer Protection Act, 1986 was inapplicable. Further pointing out that the Ld. Forum below erred in both fact and law when it held that the Appellant/Bank was not entitled to continue with repayment through encashment of post-dated cheques issued by the complainant or ECS, the Appellants prayed for allowing the Appeal and for further orders/direction as deemed fit and proper.
The Respondent in his written version reiterated the fact of the case stating inter alia that the impugned judgement and order was perfectly in order and that the contentions of the Appellants in their Appeal petition are wholly untenable to the extent that in spite of knowledge of full payment of the loan amount preponed, the Appellants/Ops continued to realize payment from the Respondents bank account without caring to intimate and/or ascertain the actual payment position and all efforts on part of the Respondent to set right the accounts on the loan so sought to be preponed, was deliberately stonewalled/frustrated by the Appellants/Ops resulting in specific deficiency of service on part of the Ops.
Accordingly, the Respondent prayed for affirmation of the impugned judgement and order.
DISCUSSION A. Admittedly, a loan agreement was executed between the contending parties on or about 31.12.05 for an amount of Rs. 30,000/-and in furtherance thereof, given loan was sanctioned and paid to the Respondent to be repaid in 36 equated monthly installments of Rs. 1,587/- commencing from 5.2.06 to 5.1.09 when the mode of repayment was ECS through Respondents given bank account. However, after a period of such repayment the complainant/ Respondent sought foreclosure of the said loan account and the Appellants/Ops agreed thereto when by a letter dt. 10.10.06 the foreclosure/ preponment amount to be paid by the Respondent/Complainant was calculated at Rs. 28,779.63. In line with such arrangement the Respondent/Complainant made over two cheques bearing number 127323 dt. 27.9.06 on HDFC Bank for Rs. 26,439/- and another bearing cheque number 631879 dt. 10.10.06 for Rs. 2341/- drawn on United Bank of India. It is established through evidence that while the first cheque was encashed by the Appellants/Ops the second cheque could not be encashed as the same was dishonoured, there being deficient balance in the account of the complainant/Respondent. However, instead of intimating this position along with return of the dishonoured cheque to the Respondent/Complainant or for that matter without taking any further action on the foreclosure of the said loan account, the Appellant continued to effect the ECS/encash post-dated cheques at Rs. 1587/- per month for four months namely October06, December06, January07 and April07 amounting to total of Rs. 6348/-.
By this time the Respondent/Complainant became extremely agitated and made representations to the Appellants/OPs in different forms and the Appellants finally claimed that an amount of Rs. 14,398/- would be payable as on 29.11.08 by the complainant/Respondent to the Appellants/Ops so that the account could be finally closed. On such claim of the Appellants/Ops the complaint arose.
B. From the fact of the case it appears that the complainant/Respondents second cheque under number 631879 dt. 10.10.06 for Rs. 2341/- on United Bank of India was dishonoured resulting in non-completion of the negotiated preponment of the given personal loan, which position was never communicated by the Appellants/Ops to the Respondent/Complainant and instead, the Appellants/Ops continued to draw money through ECS/encashment of post-dated cheques amounting to a total of Rs. 6348/-.
On the other hand, the complainant/Respondent also after issuance of the given cheque on UBI, never bothered to find out as to his account balance on the given date or the actual encashment of the cheque, nor it took up immediately with the Appellants for closure of the loan account by issuance of a subsequent cheque payment computing further interest amount for the period of default. In that view, the Respondent/Complainant was also liable for issue of dud cheque and undue continuance of the loan in spite of the express desire otherwise. That way both were responsible for the state they were in and the entire element of deficiency of service cannot be slapped on the Appellants for all the ills.
C. Accordingly, the Appellant/Bank is liable to be directed to foreclose the given loan account by computing appropriate quantum of interest as per loan agreement on the amount of Rs. 2341/- as on 7.12.06, i..e on the date of second amount realization when the amounts of first and second realization taken together exceeded the outstanding loan amount sans interest component, and adjust the same from the amount of Rs. 6348/- since deducted through ECS/adjustment of post-dated cheques from the Respondents account and refund difference, if any, to the Respondent.
The Appellant/Bank is further liable to be directed to refund post-dated cheques and/or any other instruments to the Respondent/Complainant after such foreclosure is completely effected and a communication is issued to the Respondent stating clearly that the loan account is closed on receipt of full payment of dues and any amount as may be due from the adjustment stated hereinbefore should be refunded along with the same.
O R D E R The Appeal is allowed in part on contest without cost. The impugned judgement and order of the Ld. Forum below is amended as hereunder.
The Appellant is directed to foreclose the loan account as on 7.12.06 after realizing Rs. 2341/- along with applicable personal loan quantum of interest thereto and adjust the same from the amount of Rs. 6,348/- as was realized through ECS in course of four months after the proposed date of preponment, i.e. dated 10.10.06 and refund the difference to the Respondent along with a formal communication of closure of the loan account on realization of full payment and interest thereon. The Appellant/Bank is further liable to be directed to return post-dated cheques and/or any other instruments to the Respondent/Complainant after such foreclosure is completely effected. This order will be required to be complied with within thirty (30) days from the date of this judgement and order and on default the Appellants would be liable to pay Rs. 200/- (Rupees two hundred only) to the Respondent as cost for per day of default.
MEMBER MEMBER