Pinki, Member (J)
1. The Complainant has filed the complaint against the Opposite Party on 08.05.2019 seeking the following reliefs:
B. Pass an order directing the Opposite Party to refund the sum of Rs. 4,80,110/- (Rupees Four Lakhs, Eighty Thousand, One Hundred and Ten only) wrongly charged as interest on 31.12.2017, 31.01.2018 and 28.02.2018, along with interest at the rate of 18% per annum thereto till the date of actual realization of the said money;
C. Pass an order directing the Opposite Party to pay the sum of Rs. 4,00,000/- (Rupees Four lacs only) to the Complainant as compensation towards the undue mental harassment and agony caused by the Opposite Party to the Complainant;
D. Pass an order directing the Opposite Party to pay the sum of Rs. 2,52,833/- (Rupees Two Lakhs Fifty Two Thousand, Eight Hundred Thirty Three only) to the Complainant as damages for causing wrongful loss of the income to the Complainant, along with interest at the rate of 18% per annum thereto till the date of actual realization of the said money;
E. Pass an order restraining the Opposite Party from deducting any amount from the bank account of the Complainant bearing No. 50200001647389 without obtaining prior written consent of the Complainant;
F. Pass an order directing the Opposite Party to pay the actual legal costs incurred by the Complainant towards prosecution of the present complaint;
2. Briefly stated the case of complainant is that the Complainant is a self-employed individual running a sole proprietorship "M/s. Bhai Pardhan Singh & Sons" and is in the business of importing dry fruits, spices and allied products. The Complainant had availed 'banking services' from the Opposite Party for valuable consideration between the years 2013-2017 exclusively for the purpose of earning his livelihood by means of self-employment. Prior to availing banking services from the Opposite Party, the Complainant had availed credit facility from Punjab & Sind Bank. Since Complainant needed credit facility to the tune of Rs. 8,00,00,000/- to earn his livelihood, it was agreed between the parties that Opposite Party shall take over the credit facilities provided to the Complainant by Punjab & Sind Bank.
3. On 30.05.2013 Opposite Party sanctioned credit facilities, being a floating interest rate term loan, for amount of Rs. 8,61,14,000/- by way of a sanction letter in favour of the Complainant for a period of one year at rate of interest equivalent to Base Rate plus 2.40% totalling to 12% per annum at the time of issuance of the sanction letter. The interest rate was subject to changes in the Base Rate from time to time.
4. The Complainant had opened current bank accounts bearing account No. 50200001647389 and 50200001661705 with the Opposite Party for availing the said credit facility. Complainant had duly made repayment to the utmost satisfaction of the Opposite Party in terms of the sanction letter dated 30.05.2013. No defaults were committed by the Complainant in making repayment. The said credit facility was renewed by the Opposite Party every year until 2017.
5. In the year 2017 Complainant had applied for enhancement of the existing credit facilities of Rs. 8,61,14,000/- to Rs. 20,61,14,000/- (Rupees Twenty Crores, Sixty One Lakhs, Fourteen Thousand only) from the Opposite Party.
6. On 01.09.2017, 08.09.2017 and 13.09.2017 Opposite Party sought additional documents from the Complainant in order to process the request for enhancement and the same were duly provided by the Complainant.
7. On 23.10.2017 Opposite Party issued fresh sanction letter dated 23.10.2017 enhancing the pre-existing credit facility, being a floating interest rate term loan, amounting to Rs. 20,00,000,00/- with rate of interest equivalent to Marginal Cost of Funds based Lending Rate (MCLR) plus 1.55% totalling to 9.7% per annum. The terms of the sanction letter dated 23.10.2017 were duly accepted by the Complainant within the stipulated time. The sanction letter was duly executed and countersigned by both the parties and constituted the novated contract between the parties. The parties had specifically agreed that no foreclosure charges would be applicable. Complainant acted upon the sanction letter dated 23.10.2017 and executed demand promissory note and indemnity in favour of the Opposite Party.
8. On 01.11.2017 and 02.11.2017 Complainant was constrained to issue emails to the Opposite Party requesting for immediate disbursal of the credit facility as the Opposite Party had failed to disburse the credit facility in terms of the sanction letter dated 23.10.2017.
9. On 08.11.2017 Complainant telephonically learnt from the representatives of the Opposite Party that the Opposite Party had taken a decision not to disburse the funds to the Complainant, and was revoking the sanction with immediate effect. No written communication was issued to the Complainant in this regard. The Complainant vide email dated 08.11.2017 asked the Opposite Party to return all the documents executed between the parties.
10. On 13.11.2017 all the executed documents were returned by the Opposite Party to the Complainant.
11. On 04.12.2017 Complainant executed sanction letter dated 04.12.2017 with Yes Bank Limited for availing credit facility of Rs. 20,00,00,000/- at rate of interest equivalent to MCLR which was more favourable than the rate of interest provided by the Opposite Party. It was done, as complainant was left with no other option and had to earn his livelihood.
12. On 20.12.2017 Complainant inquired from the Opposite Party of its account balance details so as to carry out full and final settlement of the credit facilities availed from the Opposite Party. The Opposite Party informed the Complainant that amount of Rs. 3,79,80,595.68 was due from the Complainant.
13. On 26.12.2017 and 28.12.2017 Complainant duly provided the Opposite Party with a demand draft dated 26.12.2017 bearing No. 381164 for Rs. 3,79,80,595.68 drawn on Yes Bank towards full and final settlement,
14. Complainant also provided the Opposite Party with a counter guarantee dated 22.12.2017 executed by Yes Bank Limited with respect to four bank guarantees extended by the Opposite Party on behalf of the Complainant. The said counter guarantee was executed to make payments to the Opposite Party on demand against the said four guarantees till 13.08.2018, i.e., date of maturity of the four guarantees issued by the Opposite Party.
15. The said demand draft was duly accepted and encashed by the Opposite Party on 28.12.2017 as full and final settlement of the previous credit facilities. Complainant stood validly discharged under the agreement executed between the Complainant and Opposite Party. Counter guarantee was also accepted by the Opposite Party.
16. On 31.12.2017, 31.01.2018 and 28.02.2018 Opposite Party wrongly charged interest amounting to Rs. 2,46,137/- on 31.12.2017, Rs. 1,29,129/- on 31.01.2018, Rs. 1,04,844/- on 28.02.2018 under the pretext that it was payable for the bank guarantee(s) extended by the Opposite Party, despite the fact that Yes Bank had already executed a counter guarantee in favour of the Opposite Party in lieu of the said bank guarantees.
17. On 12.03.2018 and 15.03.2018 on the eve of expiry of the counter guarantee dated 22.12.2017, Opposite Party illegally deducted Rs. 16,00,000/- (Rupees Sixteen lakhs only) towards "foreclosure/pre-closure charges" and Rs. 2,88,000/- (Rupees Two Lakhs, Eighty Eight Thousand only) towards applicable tax (CGST and SGST), totalling Rs. 18,88,000/- (Rupees Eighteen Lakhs, Eighty Eight Thousand only). Complainant issued its protest correspondence seeking immediate reversal of the said money.
18. On 10.05.2018 Opposite Party vide email, proposed to the Complainant that the said deduction towards the foreclosure charges/pre-payment charges can be reversed if an understanding is reached between the Complainant, Yes Bank and Opposite Party to the effect that some part of the credit facility of the Complainant is taken by the Opposite Party. The Opposite Party malafidely requested the Complainant to issue an email asking Opposite Party to debit Rs. 18,88,000/- (Rupees Eighteen Lakhs, Eighty Eight Thousand only) towards Fixed Deposit Receipt. This was rejected by the Complainant.
19. On 09.06.2018 Complainant issued its representation to the Managing Director of Opposite Party demanding reversal of charges.
20. On 18.06.2018 and 21.07.2018 Opposite Party replied to the representation of Complainant stating that the deduction of the amount of Rs. 18,88,000/- (Rupees Eighteen Lakhs, Eighty Eight Thousand only) towards foreclosure charges being 2% of the credit facilities availed by Complainant. Opposite Party sought to place reliance on an incomplete Master Facility Agreement, which was provided to the Complainant for the first time vide email dated 18.06.2018. Complainant called upon the Opposite Party to provide it with a complete copy of the said agreement, however, no such copy has been provided.
1. Vide order dated 13.01.2020 passed by Mr. O.P. Gupta, the then Member Judicial the Opposite Party was proceeded ex-parte. The Opposite Party has not filed its written statement to defend its case.
1. In order to substantiate his case, the Complainant has filed evidence by way of his own affidavit wherein he has reiterated the facts averred in the complaint and has placed reliance on the documents EX. CW1/1 to EX. CW1/45.
1. Submissions of Ms. Manmeet Arora, advocate learned counsel for the Complainant have been heard through video conferencing on Webex Cisco Android Application and considered. The record as well as written submissions and the judgments relied by learned counsel for the Complainant have been thoroughly perused.
1. Learned counsel for the Complainant submits that she relies upon the complaint and evidence and prays for decree. The date wise details of transactions have been stated by learned counsel for the Complainant to explain how various rights and liabilities/obligations have been created by the Opposite Party and how the case is within the four corners of law.
Learned counsel for the Complainant has relied on the following judgments:
i. Devendra Surana vs. Bank of Baroda & Ors.,
W.P. No. 5521(w)/2017,
decided on 12.12.2018. (Calcutta High Court):
i. Raj Kumar Kohli and Another Vs. Reserve Bank of India and Another,
W.P. (C) No. 11281 of 2017 decided on 21.10.2019 by Hon'ble Mr. Justice Rajiv Shakdher
i. State Bank of India vs. Usha Vaid & Ors.,
Appeal No. 130 of 2007 decided on 27.04.2007 by Hon'ble Mr. Justice J.D. Kapoor II (2008) CPJ 166 (Del)
i. DCB Bank Ltd. Vs. Ram Paul Bajaj
I (2021) CPJ 47 (Punj.)
i. Paramount Digital Colour Lab and others Vs. M/s. Agfa India Private Limited and others.
21. There is no denying the fact that non-appearance of Opposite Party cannot be taken as a circumstance against it to draw an inference that it tantamount to an admission of the case of the complainant, as there may be thousand and one reasons for its non-appearance. We cannot speculate into the reasons for its non-appearance on some analogy based on certain conjectures and surmises. It is also settled that absolute certainty is a myth.
22. It has been argued on behalf of the Complainant that the deduction of Rs. 18,88,000/- made by the Opposite Party towards "foreclosure/pre-closure charges", from the Complainant's bank account is ex facie illegal and contrary to law of the land. Learned counsel has referred to the Reserve Bank of India(RBI) circular dated 07.05.2014 and 14.07.2014 vide which RBI had prohibited banks and non-banking financial companies (NBFC) from levying foreclosure charges/pre-payment charges on floating rate term loans from individual borrowers. It has been vehemently argued on behalf of the Complainant and rightly so, that these two circulars of the RBI are squarely applicable to the credit facility availed by the Complainant from the Opposite Party and sanction letters dated 30.05.2013 and 23.10.2017. The Opposite Party is therefore bound by the RB I circulars.
23. While relying on Devendra Surana Vs. Bank of Baroda & Ors. (Supra) learned counsel for Complainant has submitted that this judgment is on identical facts, as in the present case. It has been further submitted that in Devendra Surana Vs. Bank of Baroda (Supra) also the RBI circular dated 07.05.2014 has been referred to and it has been held that the circulars are applicable on sole proprietorship firm and the Bank of Baroda was not entitled to any foreclosure charges/pre-payment penalties on floating rate term loan subsequent to the issuance of the RBI Circular dated 07.05.2014. It is noteworthy that in the instant case also it is floating rate of interest and it is a case of proprietorship firm.
24. Learned counsel for the Complainant has also relied on Raj Kumar Kohli & Anr. Vs. RBI (Supra) wherein circular dated 14.07.2014 was referred to. It has been opined by Hon'ble Mr. Justice Rajiv Shakdher that the proprietorship concern is not a juridical entity, which is separate from its proprietor. It was also opined that the scope and ambit of the circular, bereft of intensive ambiguity would not construed from its plain language. The language of the circular is unambiguous. It states that in no uncertain terms that NBFC's shall impose foreclosure charges/pre-payment penalties on all floating rate loans sanctioned to individual borrowers. A proprietorship concern is nothing but an alter ego of the individual owner. The case in hand is also of Complainant being Proprietor of M/s. Bhai Pardhan Singh and sons.
25. It has also been rightly argued by learned counsel for the Complainant that there was no occasion for levy of any foreclosure/pre-payment charges by the Opposite Party as the Complainant was constrained to approach Yes Bank Limited on account of non-disbursal of credit facility by the Opposite Party. The Opposite Party cannot benefit from its own wrongdoing and levy foreclosure/pre-payment charges on account of its own failure to comply with the terms of the sanction letter dated 23.10.2017.
26. It has also been argued on behalf of the Complainant and rightly so that availing of credit facilities by the Complainant from Yes Bank Limited which offered credit facility at lower rate than the Opposite Party was a case of take-over by Yes Bank Limited. This taking over of the credit facility does not fall within the ambit of pre-payment or foreclosure. It has been rightly argued that, therefore, the levy of the foreclosure charges by the Opposite Party upon the Complainant is unsustainable in law.
27. Learned counsel for Complainant has also relied on judgment titled State Bank of India v. Usha Vaid & Ors. (Supra). It has been submitted on behalf of the complainant that Hon'ble Mr. Justice J.D. Kapoor, President, Delhi State Consumer Disputes Redressal Commission had observed in para 5 of this judgment, that in that case it was not pre-payment but taking over. In that case also ICICI Bank was charging only 7.25% interest as well as the State Bank of India was charging 9% and even if 1% was demanded by State Bank of India would have been paid. The party/consumer had to pay 8% which was higher than the market rate. In that case the consumer had taken loan from Standard Chartered Bank which was got transferred to the State Bank of India and thereafter the loan from the State Bank of India was got transferred to the ICICI Bank for the reason that rate of interest was much lower in the ICICI Bank. It is pertinent to mention that in the instant case also the loan was transferred to Yes Bank Limited and the rate of interest was much lower.
28. Further, the Opposite Party is estopped from levying the foreclosure/pre-payment charges as the Opposite Party had, at its own behest, terminated the credit facilities agreement as early as on 13.11.2017 by first taking a decision not to disburse funds to the Complainant as per sanction letter dated 23.10.2017 and thereafter returning all the documents to the Complainant on 13.11.2017. Further, the Opposite Party had itself acknowledged and accepted the amount of Rs. 3,79,80,595.68 (Rupees Three Crore, Seventy Nine Lakhs, Eighty Thousand, Five Hundred, Ninety Five and Sixty Eight Paise Only) on 28.12.2017 as full and final settlement of the availed credit facilities. In view of the said acceptance of the full and final settlement amount, the Opposite Party is stopped from levying "foreclosure/pre-closure charges" on 12.03.2018 and the same is an afterthought to brow-beat the Complainant. This arguments on behalf of the Complainant is also having force.
29. It is also pertinent to mention that our attention has also been drawn to the deduction made by the Opposite Party and it was submitted that it is contrary to the sanction letter dated 23.10.2017 which had superseded the agreement between the parties with respect to the sanction letter dated 30.05.2013. The parties had specifically deleted the foreclosure charges in the sanction letter dated 23.10.2017. Thus, the Opposite Party had no right to deduct the said charges and the same was in contravention of the sanction letter dated 23.10.2017.
30. It is also the case of the Complainant that the levy of foreclosure charges/pre-payment charges by the Opposite Party is additionally unlawful as the same was debited by the Opposite Party from the Complainant's bank account without any notice and without his consent. We are convinced with the arguments put forth by learned counsel for the Complainant.
31. It is also argued on behalf of the Complainant and rightly so that the illegal levy of foreclosure charges/pre-payment charges on 12.03.2018 on the eve of expiry of the counter guarantee executed by Yes Bank Limited in favour of the Opposite Party, almost four months after the termination of the sanction letter dated 23.10.2017, is belated and an afterthought to harass the Complainant.
32. We have gone through the email dated 10.05.2018 which reflects that the Opposite Party had levied foreclosure charges upon the Complainant to coerce him to continue availing the credit facilities from the Opposite Party. The mala fide conduct of the Opposite Party is writ large. It is relevant to mention that the Opposite Party vide email dated 10.05.2018 proposed that the said deduction of Rs. 18,88,000/- would be reversed if the Complainant, Yes Bank Limited and the Opposite Party agree on a mechanism where a part of the credit facility is taken up by the Opposite Party. The Opposite Party making counter offers to gloss over the wrongful deduction of foreclosure charges constitutes an admission by the Opposite Party that it had wrongly and illegally deducted Rs. 18,88,000/- (Rupees Eighteen lakhs, Eighty Eight Thousand only) from the Complainant's account without any basis.
33. It has also been rightly argued that the justification provided by the Managing Director of the Opposite Party vide email dated 18.06.2018 seeking to place reliance on the 'Master Facility Agreement' is wrong and an afterthought. The said 'Master Facility Agreement' stood superseded with the execution of the sanction letter dated 23.10.2017. No reliance could be placed on the said document as the same did not govern the relationship between the parties and copy thereof had never been provided to the Complainant. Even after 18.06.2018, the Opposite Party has till date failed to provide a complete set of the said agreement despite request made by the Complainant. Learned counsel for the Complainant also submitted that without prejudice to the contention that the relationship between the parties was never governed by the said agreement, the Opposite Party itself failed to comply with the terms of the agreement. The Opposite Party neither called upon the Complainant for an undertaking under Clause 3.4.2 of the agreement nor advised that the foreclosure charges could be levied by the Opposite Party. Thus, the Opposite Party cannot place any reliance on the said agreement.
34. Learned counsel for the Complainant has also submitted that by first luring the Complainant to accept the terms of the sanction letter dated 24.10.2017 and taking requisite steps thereto; the malafide action of the Opposite Party of wrongfully refusing to disburse the credit facilities to the Complainant without giving due notice or cogent reasons constitutes an unfair trade practice and provided deficient service to the Complainant as per Section 2(r) of the Consumer Protection Act 1986. We are of the considered view that such act of the Opposite Party is unfair trade practice and amounts to deficient service.
35. It has also been rightly argued that the Opposite Party has indulged in unfair trade practice and restrictive trade practice by wrongly charging foreclosure charges from the Complainant. For this learned counsel for the Complainant has relied on judgment titled DCB Bank Ltd. v. Ram Paul Bajaj (Supra).
36. In this judgment the Punjab State Consumer Disputes Redressal Commission, Chandigarh had determined as to whether foreclosure charges charged by the Opposite Parties on account of the fact that the loan amount has been paid in advance were payable by the Complainant The Punjab State Consumer Disputes Redressal Commission has also found support from the judgment of Calcutta High Court titled Devendra Surana vs. Bank of Baroda & Ors. (Supra) which relates to the similar issue where proprietorship firm had obtained the loan from the Bank of Baroda. In that case also question was raised whether sole proprietorship firm cannot be considered to be an individual borrower. After discussing the point, the Calcutta High Court had held that a natural person and sole proprietorship firm are same legal entity, as liability of the sole proprietorship firm is that of the natural person carrying on business under its name. The sole proprietorship firm of a natural person and the natural person owning the firm do not enjoy the benefit of being treated as separate legal entities and they are one and the same legal entity. The RBI circular dated 07.05.2014 has also been referred to in para 14 & 15 of the judgment. It has also been considered that how much amount the Bank earns from the pre-payment penalties It was observed that different banks charge different rate of interest against pre-payment charges i.e. between 1-2% to higher rates. In para 19 it was observed that the bank had indulged in unfair trade practice as per section 2(1) of the Consumer Protection Act, 1986. In para 21 the observation is that, banks are unreasonably charging foreclosure amount as the consumer is bound to pay more first in terms of interest portion in the initial months of the payment and later in terms of pre-payment charges, if he decides to foreclose for better options. This practice is fleecing the consumers and also it is not generating any economic value to the development and restricting the consumer to exercise the right of freedom to choose other Bank for the loan.
37. It has been submitted that the Complainant who had availed the 'banking services' from the Opposite Party for the purpose of earning his livelihood by means of self-employment is a 'consumer' as per Section 2(d) of the Consumer Protection Act 1986. The complainant has relied on Paramount Digital Colour Lab & Ors. Vs. AGFA India Private Limited & Ors. (Supra). We also accept the submission of learned counsel for the Complainant that the Complainant is a consumer.
38. It has been submitted that the Complainant is entitled to refund of sum of Rs. 18,88,000/- (Rupees Eighteen lakhs, Eighty Eight Thousand only) wrongly deducted by the Opposite Party towards foreclosure/pre-closure charges along with interest @ 18% per annum.
39. It has also been rightly argued that the Opposite Party has also wrongly charged interest amounting to Rs. 2,46,137/- on 31.12.2017, Rs. 1,29,129/- on 31.01.2018, Rs. 1,04,844/- on 28.02.2018 under the pretext that the same is payable for the bank guarantee(s) extended by the Opposite Party. The said levy of interest amount is wrongful, illegal and unsustainable as the Yes Bank Limited had already executed a counter guarantee in favour of the Opposite Party in lieu of the said bank guarantees extended by the Opposite Party. In terms of the said counter guarantee duly accepted by the Opposite Party, the Opposite Party was required to raise a demand on Yes Bank Limited for any payments made by it under the bank guarantees extended by it. Thus, no interest could have been levied upon the Complainant and no such deduction could have been made by the Opposite Party from the bank account of the Complainant in respect of these bank guarantees. The Opposite Party is liable to refund the said amount of Rs. 2,46,137/-, Rs. 1,29,129/- and Rs. 1,04,844/- totaling to Rs. 4,80,110/- (Rupees Four Lakhs, Eighty Thousand, One Hundred and Ten Only) wrongfully charged as interest by the Opposite Party.
40. Learned counsel for the complainant has also submitted that the Complainant is also entitled to the sum of Rs. 4,00,000/- (Rupees Four lakhs only) as compensation towards the undue mental harassment caused by the Opposite Party by firstly refusing to release the sanctioned credit facility to the tune of Rs. 20,00,00,000/- (Rupees Twenty Crores Only) under the sanction letter dated 23.10.2017; thereafter wrongfully deducting the amount of Rs. 18,88,000/- from the bank account of the Complainant without giving him due notice of the same. The Opposite Party later sought to coerce the Complainant to avail some credit facility from it and made such facility a pre-condition for reversal of the wrongfully debited foreclosure charges/pre-payment charges. The high-handedness of the Opposite Party and wrongful deduction caused grave mental trauma to the Complainant.
41. It is a case of complainant that the malafide conduct of Opposite Party has adversely affected the livelihood of the Complainant and has caused loss of income to the Complainant. On account of non-disbursal of credit facilities by the Opposite Party, Complainant was constrained to take unsecured loans and bear interest on the same. The Complainant had to make payments amounting to Rs. 2,52,833/- (Rupees Two Lakhs, Fifty Two Thousand, Eight Hundred, Thirty Three Only) as interest towards the unsecured loans availed by it.
42. A table showing the interest paid by the Complainant on the unsecured loans taken by it along with proof of payment is as follows:
The Complainant is accordingly entitled to sum of Rs. 2,52,833/- as damages for causing wrongful loss of the income to the Complainant. Thus Appreciation the evidence by way of affidavit filed by the Complainant it is clear:
i. that the Opposite Party has wrongfully deducted a sum of Rs. 18,88,000/- (Rupees Eighteen Lakhs, Eighty Eight Thousand only) under the head of fore-closure charges/pre-payment charges, from the bank account of the Complainant bearing No. 50200001647389 alongwith interest from 15.03.2018 i.e. expiry of counter guarantee dated 22.12.2017 till its realization. Complainant has claimed interest at the rate of 18% per annum. There is no such averment with regard to rate of interest except direct claim of 18% interest wherever claimed in this complaint. It is not made clear on what basis the 18% interest has been claimed. We are of the considered view that ends of justice will meet, if we order interest at the rate of 9% per annum from 15.03.2018 till its realization. Hence, Complainant is entitled for refund of Rs. 18,88,000/- wrongfully deducted by the Opposite Party qua fore-closure/pre-payment charges with interest at the rate of 9% per annum from 15.03.2018.
ii. that the Opposite Party has wrongfully charged interest in sum of Rs. 2,46,137/- on 31.12.2017, Rs. 1,29,129/- on 31.01.2018 and Rs. 1,04,844/- on 28.02.2018 on the pretext that it is payable for the bank guarantee(s) extended by the Opposite Party, even though the Yes Bank Limited had already executed a counter guarantee in favour of the Opposite Party in view of the bank guarantee(s) extended by the Opposite Party. Hence Complainant is entitled for refund of Rs. 4,80,110/- qua interest charged on 31.12.2017, 31.01.2018 and 28.02.2018 as mentioned supra. Complainant is also entitled to interest at the rate of 9% per annum for the date of deduction till its realization.
iii. that the Opposite Party caused mental harassment to the Complainant by refusing to release the sanctioned credit facility to the tune of Rs. 20,00,00,000/- (Twenty crores) under the sanction letter dated 23.10.2017, wrongfully deducting Rs. 18,88,000/- (Rupees Eighteen Lakhs, Eighty Eight Thousand only) qua foreclosure/pre-payment charges without giving him due notice. The Opposite Party also coerced the Complainant to avail some credit facility from it and also made it a pre-condition for reversal of the wrongfully debited foreclosure charges/pre-payment charges. The Complainant has claimed Rs. 4,00,000/- (Rupees Four Lakhs only) from the Opposite Party as compensation towards the undue mental harassment and agony caused by the Opposite Party to the Complainant.
We are of the considered view that Complainant is justified in claiming compensation, keeping in view the duly explained mental harassment and agony suffered by the Complainant on various occasions. After considering the submissions and record we are of the view that amount of Rs. 4,00,000/- (Rupees Four Lakhs only) claimed as compensation towards the undue mental harassment and agony caused by the Opposite Party to the Complainant is on higher side. We consider it proper to award Rs. 2,00,000/- (Rupees Two Lakhs only) as compensation.
i. that the Opposite Party caused wrongful loss of the income to the Complainant as Complainant had paid interest on the unsecured loans taken by the Complainant. The details of same have been mentioned in para 46 which in toto is Rs. 2,52,833- (Rupees Two Lakhs, Fifty Two Thousand, Eight Hundred and Thirty Three only). Hence Complainant is entitled to claim Rs. 2,52,833/- from the Opposite Party qua interest paid by the Complainant on the unsecured loans and is also reflected in his income tax record. We have also considered the aspect of interest claimed by the Complainant. We are of the view that Complainant was constrained to take unsecured loans and bear interest on the same as tabulated in para 46. The entries of Bank Statements have also been produced in evidence. The Complainant is, therefore, entitled to claim interest at the rate of 9% per annum from the date of deposit of the amount as mentioned in table appended to para 46.
ii. As regards prayer E', it has neither been pressed during the course of oral arguments nor any such submissions has been made in written submissions filed on 12.10.2021 and 29.11.2021. This prayer is to restrain the Opposite Party from deducting any amount from the bank account of the Complainant bearing No. 50200001647389 without obtaining prior written consent of the Complainant. Hence no order is passed qua prayer E' being not pressed.
43. The Complaint is, therefore, liable to be decreed in terms as stated above.
44. Hence the Complainant is decreed as follows:
i. Opposite Party is directed to refund a sum of Rs. 18,88,000/- (Rupees Eighteen Lakhs Eighty Eight Thousand only) qua wrongful deduction of foreclosure charges/pre-payment charges with interest at the rate of 9% per annum w.e.f. 15.03.2018 i.e. expiry of counter guarantee dated 22.12.2017 till its realization.
ii. Opposite Party is directed to refund wrongly charged interest of Rs. 2,46,137/- on 31.12.2017. Rs. 1,29,129/- on 31.01.2018 and Rs. 1,04,844/- on 28.02.2018 i.e. Rs. 4,80,110/- (Rupees Four Lakhs, Eighty Thousand, One Hundred & Ten only) in toto with interest at the rate of 9% per annum from the date of deduction till its realization.
iii. Opposite Party is directed to pay a sum of Rs. 2,00,000/- (Rs. Two Lakhs) to the Complainant as compensation towards the undue mental harassment and agony caused by the Opposite Party to the Complainant.
iv. Opposite Party is further directed to pay a sum of Rs. 2,52,833/- (Rs. Two Lakhs, Fifty Two Thousand, Eight Hundred & Thirty Three only) to the Complainant as damages for causing loss of income to the Complainant with interest at the rate of 9% per annum from the date of deposit of the amount.
v. The Complainant shall be entitled to the costs as well as per the rules. Certificate of counsel fee (if any submitted) be taken into reckoning while computing the costs.
45. Decree shall be drawn accordingly.
46. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
47. File be consigned to record room along with a copy of this judgment.
