DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
BIRBHUM (SURI).
C. F. CASE NO.-BIR/13/O/2007.
PETITIONER =Vs. = O.Ps
ICICI Bank Rep. by-
Prasanta Kr. Mitra,(Expired) 1) Br. Manager, ICICI Home Finance,
Vill. & PO-Hatzanbazar, B-301, Bengal Sristi complex,
PS-Suri, Birbhum City Centre, Durgapur
On his death substituted petitioners:-
1) Janmenjoy Mitra(son) 2) The Manager, M/s ICICI Bank Ltd.
2) Sangita Mitra(wife) 3A, Gurusaday Rd, Kol-19
3) Pritikana Sarkar(daughter)
PRESENT :- Shri S.K. Roy ———– President,
:- Shri M. K. Pal ———- Member.
:- Smt. Bula Kolay ———- Member.
Dated: 03.03.2009/
J U D G E M E N T
In a nutshell the complaint story after amendment of the petition of complaint and substitution of complainants is that the complainant Prasanta Kr Mitra (since deceased) obtained Home loan of Rs.3,00,000/- from the opp. Party I.C.I.C.I bank which were disburshed on 23/12/02 & 7/4/03. The repayment of the loan with interest was agreed upon at monthly installments of Rs.3178/-. Subsequently on the prayer of the complainant a further sum of Rs.50,000/- was again sanctioned by the opp. Party. Then the monthly installment was enhanced to Rs.3826/-. Initially the complainant handed over 12 numbers of post dated cheques for Rs.3178/- each. The opp. party started collection from the month of May,2003 and collected the amounts against 8 cheques. After enhancement of the loan amount the opp. Party in violation of the terms and conditions of the loan began to collect the two installments i.e. one for Rs.3178/- of the remaining four cheques and the other for Rs.3826/- causing loss and injury to the complainant as if the total loan is Rs.3,00,000/- and Rs.3,50,000/-. The complainant asked the opp. Party to confirm whether the loan is Rs.3,50,000/- or Rs.6,50,000/- against which the opp. Party threatened the complainant by advocate’s letter to file criminal case. Hence this case with a prayer for direction upon the opp. Party to furnish statements of accounts for verification, to adjust/exempt the illegal charges for “withheld of the installment” payment due to inaction and nonaction by the opp. Party for reasons best known to them and any other relieifs.
The case is contested by the opp. Party by filing a written version wherein it has
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taken a few legal objections, denied the material allegations made in the petition of
complaint and has stated that on the application dt. 17/12/02 of the complainant the opp.
Party sanctioned Home Loan of Rs.3,00,000/- against Agreement no.LBSU1000003 50035. It was agreed between the parties that loan is repayable in 215 equated monthly installments @ Rs.3178/- each without making any default. Again on another application of the complainant in Feb,2004 the opp. Party enhanced the loan amount from Rs3,00,000/- to Rs.3,50,000/- on 31/3/04 by creating further securities as per supplementary loan agreement date 16/08/03. without changing the original agreement and the repayment installment was enhanced to Rs. 3826/- each, within the stipulated period. The complainant paid 11 installments @ Rs.3178/- and then defaulted for 46 monthly installments. The opp. Party is ready to adjust the repaid installments inclusive of al legitimate incidental charges in terms of the agreement. The case merits dismissal.
To prove the complaint case the complainant Prasanta Kr. Mitra though sworn and filed and affidavit on evidence but could not fully cross examined due to his death. Then the substituted complainant Janmenjoy Mitra sworn and file an affidavit on evidence and few documents exts. 1 to 4 as per list. On the other hand on Rounak Das sworn and file an affidavit on evidence and a few documents exts. A to E as per list to substantiate the defence case.
Points for consideration are:-
1) Is the petition of complaint misconceived, false and frivolous one?
2) Has there any cause of action for this case?
3) Is the complainant a defaulter one?
4) Has there any deficiency in service of the opp. Party?
5) Is the complainant entitled to the reliefs prayed for?
D E C I S I O N S
Point nos. 1,2 & 3:- Al the points are taken up together for the convenience of discussions as these are interlinked each other. These points are raised by the Ld. Lawyer for the opp. Party His submission is that admitted by on the application of the complainant the opp. Party bank sanctioned and disbursed Home Loan of Rs.3,00,000/- and on his further application the complainant was granted a supplementary Loan of Rs.50,000/-. Initially the monthly installment amount for repayment of the loan was Rs.3178/-. After payment of a few installment the complainant stopped the installment when the loan was enhanced
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to Rs.3,50,000/-. In fact he became a defaulter. Then he was served with lawyer ‘s notices dt. 14.05.2005 and dated 31.01.06 (ext. 2 and 2(a) to clear all the arrear dues but in vain. Subsequently after remaining silent for more than one and half years the complainant sent a lawyer’s notice dt. 20.11.06 (ext3) but it not the reply of the notice of the bank dt. 14.05.05 and /or dt. 31.10.06. In the notice dt. 20.11.06 (ext.3) the complainant did not state any thing about his default regarding payment of installment and wanted to know whether the 4 numbers of cheques out of 12 numbers issued by him as postdated be refunded and rectification about collection of installment would be done or not. He did not ask for statement of account of his loan account. As there was no mention about the mode of payment after enhancement of the loan, no claim for statement of account was there in the lawyer’s notice dt. 20.11.06. And as the complainant himself has violated the terms and conditions of the loan by not paying the installment regularly, the complainant is nothing but a false and misconceived one having no cause of action. So the complainant being a defaulter has no right to file this case for the relief’s prayed for.
Against the above argument the ld. lawyer for the complainant has submitted that not the complainant but the opp. Party has violated the terms and condition of the loan agreement. Taking advantage of having post dated cheques in its custody the bank began to collect the monthly installments of both the rates i.e. Rs.3178/- and Rs.3826/- which it can not do. In spite of repeated demand by the complainant the bank did not stop the collection against two categories of installment. Even it failed to furnish the statement of account of the loan account. And not only that it served the complainant with lawyer’s notice threatening to file criminal case which is nothing but insulting to the complainant. There is no falsity and misconceiveness in this complaint. The cause of action arose for taking no action of the notice dt. 10.01.07. As the opp. Parties began to collect double amount against the total loan the complainant stopped payment. He is ready to pay the loan on receipt of the account of statement of the loan.
Giving due consideration to the submissions of both the ld. Lawyers and after careful scrutiny of the materials in the record it is seen that the sanction and disbursement of the loan is an admitted fact. It is also not denied that the complainant issued 12
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numbers of post dated cheques. There is neither any statement in the written version as to why the opp. Party began to collect two monthly installment of different amount at a time after enhancement of the initial loan amount. Even the ld. Lawyer advanced no argument on that point. It means the allegation of such double collection remains unchallenged. At the same time I do not see any averment in the petition of complainant how many numbers of post dated cheques and of what amount the complainant issued to the opp. Party. Even no argument on this point. I fail to understand the reason behind it. In fact the contents of the petition of complainant though not false and misconceived but a clumsy one. One thing I find from the petition of complaint that the complainant never asked the opp. Party either verbally or in writing to furnish the statement of account of his said Home loan, when he came to know that the opp. Party allegedly bigan to collect double amount against the monthly installment. Even there is no averment whether or not the opp. Party denied to furnish the same.
We should keep in mind that the terms and condition of contract binds both the parties to it. Neither of the parties to a contract and/or agreement can disown his liabilities of such agreement. Ext.2(a), the notice dst.31.10.06 received by the complainant from the opp. Party clearly indicates the outstanding dues of monthly installment up to that date was Rs. 95,849/-. But the complainant neither paid the same not took any action against that notice. After about a month the complainant served a lawyer’snotice on the opp. Paraty i.e. dt. 20.11.06 but unfortunately I do not find any challenge or anything like that in this notice (ext.3) The complainant only stated about alleged double collection and expressed his perturbation for notice for criminal liability and nothing else.
Default in payment of monthly installment has practically been admitted by the complainant. In absence of any specific claim or grievance and refused of the same it can not be said that there has been cause of action. In this case in hand the complaint never asked or demanded for statement account from the opp. Party. Accordingly there was no refusal and as such no cause of action has arisen for the present prayer for furnishing statements of accounts. Para 16 of the counter affidavit on evidence filed by the opp. Party clearly states that at material point of time the out standing payable sum was only Rs. 2,27,013/- and during the course of time such sum has accrued to the tune of Rs. 5,35,536.30 for non payment of the principal and interest.
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Accordingly the point no. 1 though answered in favour of the complaint the other two are decided against him.
Point no.4:- In view of the above discussions and taking into consideration the other materials on record I do not find that there was deficiency in service of the opp. Party as the opp. Party by its letter dt. 14.05.05 & 31.10.06 in informed everything about the payment of the bank dues but the complainant remained inactive. This point is answered against the complainant.
Point no.5:- As I have decided point no.2 to 4 against the complainant he in my opinion is not entitled to the reliefs prayed for. This point is answered accordingly.
In the result the case fails.
Fees paid are correct.
Hence,
It is
Ordered
That the complaint is dismissed on contest. Parties will bear their own cost.
Copies of this judgment be supplied to the parities free of cost.
(Shri S.K. Roy — President)
(Dictated and corrected by me.)
(Shri S.K. Roy — President)
We agree,
(Shri M.K. Pal ———– Member)
(Smt. Bula Kolay ———Member.)