State Consumer Disputes Redressal Commission
Standard Chartered Bank, vs Sh. A.S. Rangi on 1 February, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 13 of 2013 Date of Institution : 11.01.2013 Date of Decision : 01.02.2013 Standard Chartered Bank, S.C.O. No. 137-138, Sector 9-C, Chandigarh, through its Manager. Appellant/Opposite Party V e r s u s [1] Sh. A.S. Rangi s/o Col. B.S. Rangi, House No. 70, Amrawati Enclave, Panchkula. [2] Col. B.S. Rangi, House No. 70, Amrawati Enclave, Panchkula. ....Respondent/complainants Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Jatin Kumar, Advocate for the applicant/appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 01.10.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainants and directed the Opposite Party, as under:-
In the light of above observations, we find a definite deficiency in service on the part of the Opposite Party as they have acted contrary to their own terms and conditions made available to the Complainant at the time of subscription of the loan as well as the loan agreement. Hence, the present complaint of the Complainant succeeds against the Opposite Party, and the same is PARTIALLY allowed. The Opposite Party is directed, to:-
[a] To refund the amount of pre-payment charges realized in excess of 2.5% of principal amount from the Complainant;
[b] To pay Rs.10,000/- on account of deficiency in service and causing mental harassment to the Complainant;
[c] To pay Rs.7,000/- as cost of litigation;
The above said order shall be complied within 45 days of its receipt by Opposite Party; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] & [b] of para 7 above, apart from cost of litigation of Rs.7,000/-, from the date of institution of the present complaint i.e. 20.09.2011, till it is paid.
2. The facts, in brief, are that the complainants availed of Home Loan, worth Rs.25.00 lacs, in October 2004, which was sanctioned, by the Opposite Party, vide letter dated 25.11.2004 (Annexure C-1). The number of the Home Loan account of the complainants was 43538177. The rate of interest @7.40% per annum, was agreed to be paid, by the complainants. The complainants had been regularly paying the equal monthly installments, despite the fact, that the Opposite Party, kept on increasing the rate of interest, without any rationale. The Opposite Party, issued various letters, through which, they reviewed and increased the rate of interest. The complainants raised the issue of increase, in the rate of interest, during several meetings, held with the Officials of the Opposite Party, but no proper response was received. The complainants, repeatedly requested the Opposite Party, to reduce the rate of interest, as the other Banks were offering loan at lesser rate of interest, than what was being charged by it. When the request of the complainants, was not acceded to, by the Opposite Party, left with no alternative, a request was made through an application, in June 2009, for the prepayment of outstanding loan amount. It was stated that the Opposite Party, levied prepayment charges in the sum of Rs.61,435.11Ps, which was against the Reserve Bank of India directions. It was further stated that even the Opposite Party, charged prepayment charges, at a higher rate, than was agreed to between the parties, in the agreement, executed between them, at the time of taking the loan. The Opposite Party was many a time, asked to refund the prepayment charges, but to no avail. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to refund the amount of pre-payment charges of Rs.61,435.11Ps, illegally charged, alongwith interest @ 15% p.a., from October, 2009, till the date of payment; overhaul the entire account of the complainants, by applying various rates of interest starting from 7.4% p.a. and not beyond 11% p.a., as per Annexure C-9 (rates of interest on Home Loan by SBI, a leading Public Sector Bank) and pay an amount of Rs.3.00 lacs, as token amount towards damages and compensation; compensation, in the sum of Rs.50,000/-, for mental agony and physical harassment; a token amount of Rs.25,000/- as punitive damages, to be credited to the Legal Services Aid Fund; and cost of litigation to the tune 11,000/-.
3. The Opposite Party, in its written version, pleaded that the complaint was not maintainable, as the complainants had no locus standi to file the same. It was further pleaded that the complainants did not fall within the definition of consumers. It was admitted that home loan, in the sum of Rs.25.00 lacs, in the month of October, 2004, was sanctioned, in favour of the complainants and was disbursed to them. It was stated that sanction letter was duly signed by the complainants, acknowledging the terms and conditions settled therein. It was further stated that interest and prepayment charges were charged, as per the terms and conditions of the loan agreement. It was further stated that, as and when, there was increase or decrease, in interest, intimation with regard to the same was sent to the complainants, from time to time. It was further stated that prepayment charges @2.76%, inclusive of service tax, on the principal amount outstanding, were charged from the complainants. It was further stated that the complainants paid the prepayment charges, and closed the loan account, without any coercion, and, now they cannot turn round and say, that they had been charged the same at a higher rate. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, was filed by the appellant/Opposite Party.
7. Alongwith the appeal, an application for condonation of delay of 49 days, as per the applicant/appellant (as per office report 50 days) in filing the same, was also moved, wherein, it was stated that certified copy of the order dated 01.10.2012 by it, was received on 23.10.2012, which was forwarded to its Legal Cell, at Chennai, on 25.10.2012. The concerned Legal Officer at Chennai, reviewed the contents of the order impugned and referred the same to the external Counsel, for advice, who opined to file an appeal. It was further stated that the facts of the order impugned were discussed with the Senior Management and Taxation Team, for its views and opinion, with regard to the applicability of service tax issue. After their approval, the Legal Officer, referred the opinion of the Taxation Team, to the Lawyer for preparation of appeal, on 15.12.2012. After preparation of the draft appeal, the same was again sent to the Legal Department of the Opposite Party, on 19.12.2012, for vetting and approval. Subsequently, copy of the order impugned, forwarded to Chennai office, was not traceable. Hence the appellant had to apply for certified copy of the order impugned, on 04.01.2012 (infact 04.01.2013). It was further stated that, in that process, the delay of 49 days, as per the applicant/appellant (as per office report 50 days) occurred. It was further stated that, as such, the delay of 49 days, as per the applicant/appellant (as per office report 50 days), in filing the appeal, was neither intentional nor deliberate. It was further stated that there was a sufficient cause, to condone the delay. Accordingly, a prayer, for condonation of delay of 49 days, as per the applicant/appellant (as per office report 50 days), in filing the appeal, was made.
8. We have heard the Counsel for the applicant/appellant, on the application, for condonation of delay, as also, in the main appeal, and, have gone through the evidence, and record of the case, carefully.
9. The question, that arises, for consideration, is, as to whether, there is sufficient cause for condonation of delay of 49 days as per the applicant/appellant (as per office report 50 days), in filing the appeal, under Section 15 of the Act. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab & Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels ( India): 93 (2001) DLT 558, Delhi High Court held as under:-
No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.
10. In Oriental Insurance Co. Ltd.
vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under:-
There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.
11. In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-
We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.
12. In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-
The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]
13. In Bikram Dass Vs. Financial Commissioner and others, AIR 1977, S.C. 1221, it was held as under:-
Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay
14. Recently, Supreme Court in Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) has laid down that:-
It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras
15. Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant, has been able to establish that it was, on account of the circumstances, beyond its control, that it could not file the appeal, in time. Since, the applicants knew that the appeal was required to be filed within 30 days, from the date of receipt of copy of the order, it was required of it to fast track the procedure. It, however, failed to take effective steps to ensure that the procedural delays were cut short. Nothing was mentioned in the application, as to for how many days, the papers for filing an appeal, remained with whom. The concerned Officers/Officials of the applicant, at various levels, apparently remained inactive and moved the relevant file, at a snail speed, hardly bothering about the period of limitation, within which, the appeal was required to be filed. If, after the receipt of the certified copy of the order impugned, the Officers/Officials of the Opposite Party, at Chennai office, did not deal with the case, in a proper manner, and misplaced the copy of order impugned, and woke up, from their deep slumber, after 50 days, then no indulgence could be shown to it. The applicant/appellant was to explain, each days delay. The applicant/appellant, miserably failed to explain the delay of 50 days. There was complete in-action and lack of bonafides, on its part, in filing the appeal, after a delay of 50 days, which is more than about one and a half month, beyond the normal period of limitation, within which the same(appeal) could be filed. The delay, in filing the appeal was, thus, intentional and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 50 days, cannot be condoned. The application is, thus, liable to be dismissed.
16. The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory on the Commission, to condone the delay. The answer to this question, is in the negative. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was held as under:-
It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.
17. It is evident, from the principle of law, laid down, in Ram Lal & Ors.s case (supra), that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into consideration, all the relevant factors, and it is at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory upon the applicant/appellant, to take immediate steps, to ensure that the appeal was filed within the stipulated period, as envisaged under Section 15 of the Act. However, the Officers/Officials of the applicant/appellant, just slept over the matter, and did not take steps to file the appeal in time. It was, thus, a case of complete lack of bonafides and inaction, on the part of applicant/appellant. The principle of law, laid down in Ram Lal & Others case(supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission should exercise its discretion, in favour of the applicant/appellant, in condoning the delay.
18. Coming to the main appeal, the Counsel for the appellant, submitted that the prepayment charges @2.76% inclusive of service tax, on the principal amount outstanding, were charged from the complainants, which were agreed to by the complainants, at the time of advancement of loan. He further submitted that, the prepayment charges were not charged at a higher rate from the complainants, and, as such, the District Forum was wrong, in ordering the refund of the amount of pre-payment charges, realized in excess of 2.5% of the principal amount. He further submitted that the District Forum was also wrong, in granting compensation and costs to the complainants. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
19. There is, no dispute, about the factum, that the home loan aforesaid, was advanced, in favour of the complainants, by the Opposite Party. At the time of advancement of home loan, agreement between the parties was executed, which was signed by them. Thus, the parties were bound by the terms and conditions of the agreement. The complainants sought the refund of amount of prepayment charges of Rs.61,435.11Ps, charged by the Opposite Party, as per pre-closure statement dated 25.09.2009. It is to be determined, as to whether, such prepayment charges were charged, as per the terms and conditions of the agreement and the sanction letter/agreement, or not. Annexure C-2 is the document dated 02.05.2006, which is addressed to complainant no.1, by the Opposite Party. The pre-closure fee, in respect of the home loan, is mentioned therein, as 2.5% on the principal outstanding plus any amounts prepaid over the last 180 days. The terms and conditions (at pages 167 to 195 of the District Forum file), attached with Annexure 1, at page 167, regarding the advancement of loan, in favour of the complainant, also clearly reveal that if the complainants were to prepay the entire loan amount outstanding, then they had to pay to the bank, the prepayment fee @2.5% ad valorem on the principal outstanding, as also, on all other payments made in the preceding 180 days. There is, nothing in Annexure C-2 or the terms and conditions, referred to above, that, in case, the complainants wanted to pre-close/prepay the entire loan amount, advanced in their favour, they were required to pay prepayment charges at a rate higher than 2.5% ad valorem on the principal outstanding, as also, on all other payments made in the preceding 180 days. There is also, nothing, in Annexure C-2 and the terms and conditions that they were required to pay any levy tax or cess, at the time of prepaying or pre-closure of the loan. Since, the terms and conditions, as also Annexure C-2, did not make a mention that prepayment charges at a rate higher than 2.5% ad valorem on the principal outstanding, could be charged, by the Opposite Party, it is not known, as to how, it (Opposite Party) charged 2.76% prepayment charges, inclusive of service tax. Had there been any clause, in the terms and conditions, referred to above, and Annexure C-2, that service tax and other levy, shall be charged, over and above 2.5% prepayment charges, the matter would have been different. In that event, the Opposite Party would have certainly been entitled to charge the levy and service tax, over and above 2.5% prepayment charges. As stated above, the parties were governed, by the terms and conditions, agreed to by them. No party could go beyond the same, to charge more than what was mentioned therein. The District Forum, was, thus, right in holding that prepayment charges claimed by the Opposite Party @2.76% and paid by the complainants, were against the terms and conditions of the agreement, as also Annexure C-2. The District Forum, was, thus, right in holding that, on account of charging prepayment charges @2.76%, against the terms and conditions of the agreement, the Opposite Party was not only deficient, in rendering service, but also indulged into unfair trade practice. The District Forum, was, thus, also right in holding that the prepayment charges, realized in excess of 2.5%, were liable to be refunded to the complainants, by the Opposite Party. The findings of the District Forum, in this regard, being correct, are affirmed.
20. The District Forum, only awarded Rs.10,000/-, as compensation, on account of deficiency, in rendering service, as also mental agony and physical harassment, caused to the complainants, by the Opposite Party, on account of their act of charging from them, prepayment charges in excess of 2.5% on the principal amount outstanding, as agreed to, between the parties, as per the terms and conditions, referred to above and Annexure C-2. The amount of compensation, awarded, therefore, could not, by any stretch of imagination, be said to be excessive. The submission of the Counsel for the appellant, that the amount of compensation awarded by the District Forum, was excessive, being devoid of merit, must fail, and the same stands rejected.
21. No other point, was urged, by the Counsel for the parties.
22. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
23. For the reasons recorded above, the application for condonation of delay, being devoid of merit, is dismissed. Consequently, the appeal being barred by time, and devoid of merit, is also dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
24. Certified copies of this order, be sent to the parties, free of charge.
25. The file be consigned to Record Room, after completion Pronounced.
01.02.2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg