Interim protection against recovery denied; prima facie case requirement not met in consumer disputes involving banks.

PER DR. S. M. KANTIKAR, PRESIDING MEMBER

1. Brief facts: The complainant Mr. Pravin Juneja availed home loan sanctioned by the ICICI Bank (OP) for a sum of Rs. 74,00,000/- for a period of 10 years (120 months) qua a property located in Greater Kailash. The monthly instalment fixed was Rs. 93,741/- as the EMI. The loan was to end in February, 2015. The complainant alleged that he kept on paying the EMIs even after the stipulated time period on the demand of the OP. The complainant requested for a no due certificate, upon which he learnt that the OP was charging exorbitant rate of interest on the loan and it was at floating rate and not as per the rate agreed. The complainant had to pay Rs. 1,18,24,421/- instead of Rs. 1,12,48,920/-. The complainant paid an excessive amount of Rs. 5,75,501/- to the OP. Being aggrieved, a complaint was filed on 05.04.2016 before the State Commission. After filing the complaint, the OP bank issued a demand letter dated 16.05.2016 to pay arrears of Rs. 6,09,034/- inclusive of interest upto 12.05.2016. Therefore, the complainant filed an application before the State Commission for staying the operation and the demand letter dated 16.05.2016.

2. The OP bank filed the written statement and submitted that the complaint and the said application are not maintainable under the SERFAESI Act ( Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act , 2002). Only floating rate of interest was applicable and the loan was against the property. The OP bank did not collect excess amount from the complainant. It contended that interference by the State Commission would cause sever prejudice to the OP bank and the purpose of SERFAESI Act, 2002 and DRT Act ( Debt Recovery Tribunal Act ) would be defeated.

3. The State Commission after hearing both the parties and considering the evidence on record, dismissed the application and the matter was further listed on 04.12.2017 for rejoinder and evidence by affidavit to be filed by the complainant within eight weeks with advance copy to the OP bank.

4. The State Commission while dismissing the application, made the following observations:

3. …xxx… in clause (E) dealing with interest it has been mentioned that ICICI Bank floating reference rate 8.5% per annum on the date of execution of said agreement. He insisted on use of word ‘floating’ which means that it was not a fixed rate of interest. Rather it was to vary according to the rates approved by RBI from time to time. On the next page i. e. page 41 in clause (G) dealing with amortization term of payment it has been mentioned as 120 months with a * above the word months. The * has been explained at the bottom by mentioning subject to variation of terms of agreement. Thus the period of 120 months was open to variation with a change in the rate of interest.

4. Counsel for OP also drew our attention to letter dated 01.07.15 by OP which is at page 41 of the bunch of WS filed by the OP. Vide this letter OP informed the complainant that benchmark reference rate (FRR)* of ICICI Bank loans with floating rate of interest has decreased by 0.25% w. e. f. April 10, 2015 and further decreased by 0.05% w. e. f. June 26, 2015. In view of the same rate of interest for complainant’s loan has been revised by 16.2% per annum. * has been explained at the bottom by mentioning that FRR denotes floating reference rate which is reviewed periodically.

…xxx…

8. …xxx… Thus we find that the complaint has no prima facie case. If the OP is able to recover the amount, and the action of the OP is found to be illegal complainant can recover the same from the bank. OP is a bank and not individual from whom recovery would be difficult. Thus the complainant would n