Sh.Anoop Sharma, Presiding Member Ms.Rachna Arora, Member. Order dictated by: Sh.Anoop Sharma, Presiding Member
1. The complainant has brought the instant complaint under section
12 & 13 of the Consumer Protection Act, 1986 on the allegations that the complainant has taken a housing loan from the Opposite Party jointly with his wife and son by mortgaging his property with the Opposite Party, having an account with Opposite Party having account No.NHAMT00000732055 and hence the complainant is consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The complainant while taking the said housing loan from the Opposite Party, the Opposite Party issued the sanctioning letter dated 23.5.2008 wherein it was settled that the loan will be disbursed at the rate of 13.75% and the floating rate of the interest will be prevalent. Said loan is to be repaid in equal monthly installments, which the complainant is paying regularly. The Opposite Party to the utter surprise of the complainant started charging the complainant at the exorbitant rate of 17.45% which is against the RBI guidelines and further stated charging the late payment penalty @ 24% per annum exorbitantly against the RBI guidelines and has charged Rs.91,558/- for said late payment penalty, the Opposite Party on the one hand started charging rate of interest higher than the RBI rates and on the other hand, raised the EMI arbitrary and started charging @ 24% per annum interest on the said amount, putting the complainant in double jeopardy. The complainant when approached the Opposite Party and apprised them of charging exorbitantly and against RBI guidelines, the officials of the Opposite Party did not rent and said they have their own guidelines and not controlled by RBI. Moreover, the complainant was never appraised of change of rate of interest by the Opposite Party. The aforesaid acts of the Opposite Party in charging the interest rates higher than the RBI prescribe rates and further charging late payment charges at the exorbitant rates and further changing the rate of interest arbitrarily without intimating the complainant is an acts of deficiency in services, unfair trade practice and mal practice and is not sustainable in the eyes of law and has caused a lot of mental tension, agony and harassment besides financial loss to the complainant for which the Opposite Party is liable to pay compensation of Rs.1 lac to the complainant. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Party be directed to charge the interest at the RBI prescribed rates and rectify the account as per the said rates, and return the amount charged as late payment charges charged at the exorbitant rates and against the norms, and the said amount be returned @ 12% per annum thereon from the date of payment till realization.
b) Opposite Party be directed to pay the compensation of Rs.1 lac to the complainant.
c) Opposite Party be directed to pay the adequate cost of the present litigation.
d) Any other relief to which the complainant is found under the law, equity and justice be also allowed. Hence, this complaint.
2. Upon notice, Opposite Party appeared and contested the complaint by filing written statement taking preliminary objections therein inter alia that the complainant is not a consumer qua the Opposite Party as the complainant is the borrower of the Opposite Party and has borrowed housing loan and he has not purchased any goods or availed any services against considered and as such is not covered under the definition of consumer as defined under the Consumer Protection Act, therefore, the present complaint filed as such is not maintainable before this Forum; The fact is that on account of prolonged defaults committed by the complainant, under the compelled circumstances, bank has already initiated proceedings under the SARFAESI Act for taking possession of the mortgaged property in order to recover its outstanding loan. The complainant knowing well that in the proceedings pending under SARFAESI Act, no civil court has got any jurisdiction to entertain any proceedings has concealed the said fact whereas the bank has already served notice under section 13(2) of the SARFAESI Act, on the complainant and mortgagors and as such, the present complaint filed before this Forum can not be entertained under section 34 of the sarfaesi act. The further fact is that as per records, the bank has charged/ is charging interest strictly as per the agreed terms and conditions of the loan documents executed by the complainant in favour of the Opposite Party according to which the complainant was liable to pay interest on floating rate i.e. it was liable to fluctuate keeping in view the guidelines issued by RBI and the rules and regulations of the authorities of the Opposite Party bank and the bank is accordingly charging interest in the loan account and the same is duly displayed on the notice board of the Opposite Party bank and the public is made aware from time to time through various media source for information of the general public. In additional to that at the time of each and every change in the rate of interest whether upon its increase or decrease, the complainant has been duly intimated by writing letters from time to time and as such the complainant was duly aware about the said fluctuation in the rate of interest, but he never agitated the same earlier but when the bank has initiated the proceedings under the SARFAESI Act, by concealing the said fact, has come up with the present complaint and in order to escape his liability to pay the applicable rate of interest, has filed the present complaint on false and fabricated grounds. On merits, it is submitted that admittedly, the complainant had availed loan facility in the year 2008 i.e. 7 years back and thereafter in due course of banking, the rate of interest has increased/ decreased several times keeping in view the circumstances, and guidelines issued by RBI in view of inflation factor or otherwise and as such, the present rate of interest being charged by the bank is quite justified keeping in view RBI directions and banks rules and regulations which are part of the contractual obligations of the complainant agreed at the time of availing the loan facility from the bank. The complainant was well made aware about the reasons ad circumstances of charging the interest prevalent at the relevant time and the complainant is liable to pay the said rate of interest which includes penal interest applicable on account of the fact that the complainant is a defaulter of the bank and the bank is charging penal interest as per agreed terms and conditions over and above the agreed rate of interest as per the terms and conditions of the loan documents executed by the complainant. It is denied that the Opposite Party is charging interest rate higher than the RBI prescribed rates or that the bank is charging exorbitant rate of interest. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
3. In his bid to prove the case, complainant tendered into evidence affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2 to Ex.C6 and closed his evidence.
4. On the other hand, to rebut the evidence of the complainant, the Opposite Party tendered into evidence the affidavit of Sh.Ajay Prinja, Area Manager Ex.OP1 alongwith copies of documents Ex.OP2 to Ex.OP13 and closed the evidence on behalf of the Opposite Party.
5. We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.
6. Ld.counsel for the complainant has reiterated the facts as narrated in the complaint and contended that the complainant has taken a housing loan from the Opposite Party jointly with his wife and son by mortgaging his property with the Opposite Party, having an account with Opposite Party having account No.NHAMT00000732055 and hence the complainant is consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The complainant while taking the said housing loan from the Opposite Party, the Opposite Party issued the sanctioning letter dated 23.5.2008 wherein it was settled that the loan will be disbursed at the rate of 13.75% and the floating rate of the interest will be prevalent. Said loan is to be repaid in equal monthly installments, which the complainant is paying regularly. The Opposite Party to the utter surprise of the complainant started charging the complainant at the exorbitant rate of 17.45% which is against the RBI guidelines and further stated charging the late payment penalty @ 24% per annum exorbitantly against the RBI guidelines and has charged Rs.91,558/- for said late payment penalty, the Opposite Party on the one hand started charging rate of interest higher than the RBI rates and on the other hand, raised the EMI arbitrary and started charging @ 24% per annum interest on the said amount, putting the complainant in double jeopardy. The complainant when approached the Opposite Party and apprised them of charging exorbitantly and against RBI guidelines, the officials of the Opposite Party did not rent and said they have their own guidelines and not controlled by RBI. Moreover, the complainant was never appraised of change of rate of interest by the Opposite Party. The aforesaid acts of the Opposite Party in charging the interest rates higher than the RBI prescribe rates and further charging late payment charges at the exorbitant rates and further changing the rate of interest arbitrarily without intimating the complainant is an acts of deficiency in services, unfair trade practice and mal practice and is not sustainable in the eyes of law and has caused a lot of mental tension, agony and harassment besides financial loss to the complainant for which the Opposite Party is liable to pay compensation of Rs.1 lac to the complainant.
7. On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the fact is that on account of prolonged defaults committed by the complainant, under the compelled circumstances, bank has already initiated proceedings under the SARFAESI Act for taking possession of the mortgaged property in order to recover its outstanding loan. The complainant knowing well that in the proceedings pending under SARFAESI Act, no civil court has got any jurisdiction to entertain any proceedings has concealed the said fact whereas the bank has already served notice under section 13(2) of the SARFAESI Act, on the complainant and mortgagors and as such, the present complaint filed before this Forum can not be entertained under section 34 of the sarfaesi act. The further fact is that as per records, the bank has charged/ is charging interest strictly as per the agreed terms and conditions of the loan documents executed by the complainant in favour of the Opposite Party according to which the complainant was liable to pay interest on floating rate i.e. it was liable to fluctuate keeping in view the guidelines issued by RBI and the rules and regulations of the authorities of the Opposite Party bank and the bank is accordingly charging interest in the loan account and the same is duly displayed on the notice board of the Opposite Party bank and the public is made aware from time to time through various media source for information of the general public. In additional to that at the time of each and every change in the rate of interest whether upon its increase or decrease, the complainant has been duly intimated by writing letters from time to time and as such the complainant was duly aware about the said fluctuation in the rate of interest, but he never agitated the same earlier but when the bank has initiated the proceedings under the SARFAESI Act, by concealing the said fact, has come up with the present complaint and in order to escape his liability to pay the applicable rate of interest, has filed the present complaint on false and fabricated grounds. On merits, it is submitted that admittedly, the complainant had availed loan facility in the year 2008 i.e. 7 years back and thereafter in due course of banking, the rate of interest has increased/ decreased several times keeping in view the circumstances, and guidelines issued by RBI in view of inflation factor or otherwise and as such, the present rate of interest being charged by the bank is quite justified keeping in view RBI directions and banks rules and regulations which are part of the contractual obligations of the complainant agreed at the time of availing the loan facility from the bank. The complainant was well made aware about the reasons ad circumstances of charging the interest prevalent at the relevant time and the complainant is liable to pay the said rate of interest which includes penal interest applicable on account of the fact that the complainant is a defaulter of the bank and the bank is charging penal interest as per agreed terms and conditions over and above the agreed rate of interest as per the terms and conditions of the loan documents executed by the complainant. It is denied that the Opposite Party is charging interest rate higher than the RBI prescribed rates or that the bank is charging exorbitant rate of interest. The Opposite Party has taken the ground that the proceedings under the SARFAESI Act are initiated against the complainant, then the complainant has no right to file the instant complaint before this Forum, but the Opposite Party has failed to produce any document on the record vide which they have initiated the proceedings under the SARFAESI Act against the complainant. The main contention of the complainant is that Opposite Party to the utter surprise of the complainant started charging the complainant at the exorbitant rate of 17.45% which is against the RBI guidelines and further stated charging the late payment penalty @ 24% per annum exorbitantly against the RBI guidelines and has charged Rs.91,558/- for said late payment penalty, the Opposite Party on the one hand started charging rate of interest higher than the RBI rates and on the other hand, raised the EMI arbitrary and started charging @ 24% per annum interest on the said amount, putting the complainant in double jeopardy. The complainant when approached the Opposite Party and apprised them of charging exorbitantly and against RBI guidelines, the officials of the Opposite Party did not rent and said they have their own guidelines and not controlled by RBI. Moreover, the complainant was never appraised of change of rate of interest by the Opposite Party. Is it true and legal that the Opposite Party have their own guidelines and not controlled by RBI. In order to find out what are the exact guidelines of the RBI regarding charging of interest rate on loan and advances. We have downloaded Master Circular of RBI in our Commission. The same is appended below:- RBI/2014-15/ 65 DBOD.No.Dir.BC.13/13.03.00/2014-15 July 1, 2014 Ashadha 10, 1936 (Saka) All Scheduled Commercial Banks (excluding RRBs) Dear Sir / Madam Master Circular - Interest Rates on Advances Please refer to the Master Circular DBOD.No.Dir.BC.15/13.03.00/2013-14 dated July 1, 2013 consolidating instructions / guidelines issued to banks till June 30, 2013 on matters relating to Interest Rates on Advances. The Master Circular has been suitably updated by incorporating instructions issued up to June 30, 2014 and has also been placed on the RBI website (http://www.rbi.org.in). A copy of the Master Circular is enclosed. Yours faithfully (Lily Vadera) Chief General Manager MASTER CIRCULAR ON INTEREST RATES ON ADVANCES A. Purpose To consolidate the directives on interest rates on advances issued by Reserve Bank of India from time to time. B. Classification A statutory directive issued by the Reserve Bank in exercise of the powers conferred by the Banking Regulation Act, 1949. C. Previous instructions This Master Circular consolidates and updates the instructions on the above subject contained in the circulars listed in Appendix. D. Application To all scheduled commercial banks, excluding Regional Rural Banks. Structure
1. Introduction
2. Guidelines 2.1 General 2.2 Base Rate 2.3 Applicability of Base Rate 2.4 Floating rate of interest on loans 2.5 Levying of penal rates of interest 2.6 Enabling clause in loan agreement 2.7 Withdrawals against uncleared effects 2.8 Loans under consortium arrangement 2.9 Charging of interest at monthly rests 2.10 Zero percent interest finance schemes for consumer durables 2.11 Excessive interest charged by banks Annex 1 Illustrative Methodology for the Computation of the Base Rate Annex 2 Guidelines on Benchmark Prime Lending Rate (BPLR) applicable to loans sanctioned up to June 30, 2010 Annex 3 Interest Rate Structure for all Rupee Advances including Term Loans of Commercial Banks sanctioned up to June 30, 2010 Appendix List of circulars consolidated Introduction 1.1 Reserve Bank of India began prescribing the minimum rate of interest on advances granted by Scheduled Commercial Banks with effect from October 1, 1960. Effective March 2, 1968, in place of minimum lending rate, the maximum lending rate to be charged by banks was introduced, which was rescinded with effect from January 21, 1970, when the prescription of minimum lending rate was reintroduced. The ceiling rate on advances to be charged by banks was again introduced effective March 15, 1976, and banks were also advised, for the first time, to charge interest on advances at periodic intervals, that is, at quarterly rests. In the following period, various sector- specific, programme-specific and purpose-specific interest rates were introduced. 1.2 Given the prevailing structure of lending rates of Scheduled Commercial Banks, as it had evolved over time, characterised by an excessive proliferation of rates, in September, 1990, a new structure of lending rates linking interest rates to the size of loan was prescribed which significantly reduced the multiplicity and complexity of interest rates. In the case of the Differential Rate of Interest Scheme under which credit was provided at a rate of 4.0 per cent per annum, and Export Credit, which was subject to an entirely different regime of lending rates supplemented by interest rate subsidies, the existing lending rate structure was continued. 1.3 An objective of financial sector reform has been to ensure that the financial repression inherent in administered interest rates is removed. Accordingly, in the context of granting greater functional autonomy to banks, effective October 18, 1994, it was decided to free the lending rates of scheduled commercial banks for credit Iimits of over Rupees two lakh; for loans up to Rupees two lakh, it was decided that it was necessary to continue to protect these borrowers by prescribing the lending rates and accordingly it was prescribed that for loans up to and inclusive of Rupees two lakh, the lending rates of banks should not exceed the Benchmark Prime Lending Rate (BPLR) of the respective banks. For credit limits of over Rupees two lakh, the prescription of minimum lending rate was abolished and banks were given the freedom to fix the lending rates for such credit limits subject to BPLR and spread guidelines. Banks were required to obtain the approval of their respective Boards for the BPLR, which would be the reference rate for credit Iimits of over ` 2 lakh. Each bank's BPLR had to be declared and be made uniformly applicable at all branches. 1.4 The BPLR system, introduced in 2003, fell short of its original objective of bringing transparency to lending rates. This was mainly because under the BPLR system, banks could lend below BPLR. For the same reason, it was also difficult to assess the transmission of policy rates of the Reserve Bank to lending rates of banks. Accordingly, based on the recommendations of the Working Group on Benchmark Prime Lending Rate which submitted its report in October 2009, banks were advised to switch over to the system of Base Rate with effect from July 1, 2010. The Base Rate system is aimed at enhancing transparency in lending rates of banks and enabling better assessment of transmission of monetary policy.
2 Guidelines 2.1 General 2.1.1 Banks should charge interest on loans / advances / cash credits / overdrafts or any other financial accommodation granted / provided / renewed by them or discount usance bills in accordance with the directives on interest rates on advances issued by Reserve Bank of India from time to time. 2.1.2 The interest at the specified rates should be charged at monthly rests (subject to the conditions laid down in paragraph 2.9) and rounded off to the nearest rupee. 2.2 Base Rate 2.2.1 The Base Rate system has replaced the BPLR system with effect from July 1, 2010. Base Rate shall include all those elements of the lending rates that are common across all categories of borrowers. Banks may choose any benchmark to arrive at the Base Rate for a specific tenor that may be disclosed transparently. An illustration for computing the Base Rate is set out in Annex 1. Banks are free to use any other methodology, as considered appropriate, provided it is consistent and is made available for supervisory review/scrutiny, as and when required. Banks may determine their actual lending rates on loans and advances with reference to the Base Rate and by including such other customer specific charges as considered appropriate. The actual lending rates charged should be transparent and consistent and be made available for supervisory review/scrutiny, as and when required. 2.2.3 In terms of our circular DBOD.No.Dir.BC.88/13.03.00/2009-10 dated April 9, 2010 banks were permitted to change the benchmark and methodology any time during the initial six month period i.e. end-December 2010 which was subsequently extended upto June 30, 2011 vide our circular DBOD.No.Dir.BC.73/13.03.00/2010-11 dated January 6, 2011. In order to enable banks to overcome the difficulties faced by them in computation of their Base Rate, it was decided to allow banks some flexibility in computation / revision of Base Rate methodology. Accordingly, with effect from September 2, 2013 banks were advised to follow the revised guidelines for computation of Base Rate methodology as under:
i. Banks that have commenced their banking operations in India after the coming into effect of the Base Rate regime in July 2010 but have not completed one year of their banking operations as on the date of this circular (September 2, 2013), will be allowed to revise their Base Rate methodology within a year from the date of commencement of their business operations in India.
ii. Banks that will commence their banking business in India after issue of this circular (September 2, 2013) will be allowed to revise their Base Rate methodology within a year from the date of commencement of their banking business in India.
iii. In case a bank, including banks listed at para 2.2.3 (i) and (ii) above, desires to review its Base Rate methodology after five years from the date of its finalization, the bank may approach Reserve Bank for permission in this regard. 2.2.4 There can be only one Base Rate for each bank. Banks have the freedom to choose any benchmark to arrive at a single Base Rate which should be disclosed transparently. 2.2.5 Changes in the Base Rate shall be applicable in respect of all existing loans linked to the Base Rate, in a transparent and non-discriminatory manner. 2.2.6 Since the Base Rate will be the minimum rate for all loans, banks are not permitted to resort to any lending below the Base Rate. Accordingly, the stipulation of BPLR as the ceiling rate for loans up to ` 2 lakh stands withdrawn. It is expected that the above deregulation of lending rate will increase the credit flow to small borrowers at reasonable rate so that direct bank finance will provide effective competition to other forms of high cost credit. 2.2.7 Banks are required to review the Base Rate at least once in a quarter with the approval of the Board or the Asset Liability Management Committees (ALCOs) as per the banks practice. Since transparency in the pricing of lending products has been a key objective, banks are required to exhibit the information on their Base Rate at all branches and also on their websites. Changes in the Base Rate should also be conveyed to the general public from time to time through appropriate channels. Banks are required to provide information on the actual minimum and maximum lending rates to the Reserve Bank on a quarterly basis, as hitherto. 2.2.8 Even after introduction of the Base Rate system, banks would have the freedom to offer all categories of loans on fixed or floating rates. Where loans are offered on fixed rate basis, notwithstanding the quarterly review of the Base Rate, the rate of interest on fixed rate loans will continue to remain the same subject to the condition that such fixed rate should not be below the Base Rate at the time of sanction. If the base rate is revised upward thereafter and in the process the fixed rate falls below the new Base Rate, it would not be construed a violation of the guidelines on Base Rate. 2.3 Applicability of Base Rate 2.3.1 With effect from July 1, 2010, all categories of domestic rupee loans should be priced only with reference to the Base Rate. Accordingly, the Base Rate system would be applicable for all new loans and for those old loans that come up for renewal. Existing loans based on the BPLR system may run till their maturity. In case existing borrowers want to switch to the new system, before expiry of the existing contracts, an option may be given to them, on mutually agreed terms. Banks, however, should not charge any fee for such switch-over. 2.3.2 However, the following categories of loans could be priced without reference to the Base Rate: (a) DRI advances (b) loans to banks own employees including retired employees (c) loans to banks depositors against their own deposits 2.3.3 In those cases where subvention is available to borrowers, it is clarified as under:
(i) Interest Rate Subvention on Crop Loans
a) In case of crop loans up to Rupees three lakh, for which subvention is available, banks should charge farmers the interest rates as stipulated by the Government of India. If the yield to the bank (after including subvention) is lower than the Base Rate, such lending will not be construed a violation of the Base Rate guidelines.
b) As regards the rebate provided for prompt repayment, since it does not change the yield to the banks [mentioned at (a) above] on such loans, it would not be a factor in reckoning compliance with the Base Rate guidelines.
(ii) Interest Rate Subvention on Export Credit Interest rates applicable for all tenors of rupee export credit advances will be at or above the Base Rate. In respect of cases where subvention of Government of India is available, banks will have to reduce the interest rate chargeable to exporters as per Base Rate system by the amount of subvention available. If, as a consequence, the interest rate charged to exporters goes below the Base Rate, such lending will not be construed a violation of the Base Rate guidelines. (The last Rupee Export Credit Interest Subvention Scheme of Government of India was valid upto March 31, 2014). 2.3.4 Restructured Loans In case of restructured loans if some of the Working Capital Term Loan (WCTL), Funded Interest Term Loan (FITL), etc. need to be granted below the Base Rate for the purposes of viability and there are recompense etc. clauses, such lending will not be construed a violation of the Base Rate guidelines. 2.3.5 In those cases where refinance is available to borrowers, it is clarified as under: (a) Financing of Off-Grid and Decentralised Solar applications Government of India, Ministry of New and Renewable Energy (MNRE) has formulated a scheme on financing of Off-Grid and Decentralised Solar (Photovoltaic and Thermal) applications as part of the Jawaharlal Nehru National Solar Mission (JNNSM). Under the scheme, banks may extend subsidized loans to entrepreneurs at interest rates not exceeding five percent, where refinance of two percent from Government of India is available. Such lending at interest rates not exceeding five percent per annum where refinance of Government of India is available, would not be considered a violation of our Base Rate Guidelines. (b) Extending financial assistance under Micro Credit scheme of National Scheduled Tribes Finance and Development Corporation (NSTFDC) and various schemes of National Handicapped Finance and Development Corporation (NHFDC) Banks may charge interest at the rates prescribed under the schemes of NSTFDC /NHFDC to the extent refinance is available. Such lending, even if it is below the Base Rate, would not be considered a violation of our Base Rate Guidelines. Interest rate charged on the part not covered under refinance should not however be below Base Rate. (c) Extending financial assistance under schemes of National Safai Karmacharis Finance & Development Corporation (NSKFDC) Banks may charge interest at the rates prescribed under the schemes of National Safai Karmacharis Finance & Development Corporation (NSKFDC) to the extent refinance is available. Such lending, even if it is below the Base Rate, would not be considered as a violation of our Base Rate Guidelines. Interest rate charged on the part not covered under refinance should not be below Base Rate. (d) Lending to Primary Agricultural Credit Societies (PACS) Banks financing Primary Agricultural Credit Societies (PACS) for short term seasonal agricultural operations may lend below their Base Rate to the extent refinance is available from NABARD. However, when banks use their own funds, they are not allowed to lend below Base Rate. (e) Bank Finance extended to the beneficiaries of the schemes of National Scheduled Caste Finance & Development Corporation (NSFDC) Banks may charge interest at the rates prescribed under the schemes of National Scheduled Caste Finance & Development Corporation (NSFDC) to the extent refinance is available. Such lending, even if it is below the Base Rate, would not be considered as a violation of our Base Rate Guidelines. Interest rate charged on the part not covered under refinance should not however be below Base Rate. 2.3.6 Interest rates under the BPLR system were applicable to all loans sanctioned up to June 30, 2010. The guidelines on BPLR and Spreads and its determination for existing loans sanctioned up to June 30, 2010 are given in Annex 2 and Annex 3. 2.3.7 Differential Rate of Interest for Micro and Small Enterprises (MSEs) While pricing their loans to MSE borrowers, banks should take into account the incentives available to them in the form of the credit guarantee cover of the Credit Guarantee Fund Trust for Micro and Small Enterprises (CGTMSE) and the zero risk weight for capital adequacy purpose for the portion of the loan guaranteed by the CGTMSE and provide differential interest rate for such MSE borrowers, than the other borrowers. However, banks should note that such differential rate of interest is not below the Base Rate of the bank. 2.4 Floating Rate of Interest on Loans Banks have the freedom to offer all categories of loans on fixed or floating rates, subject to conformity to their Asset- Liability Management (ALM) guidelines. The methodology of computing the floating rates should be objective, transparent and mutually acceptable to counter parties. The Base Rate could also serve as the reference benchmark rate for floating rate loan products, apart from external market benchmark rates. The floating interest rate based on external benchmarks should, however, be equal to or above the Base Rate at the time of sanction or renewal. This methodology should be adopted for all new loans. In the case of existing loans of longer / fixed tenure, banks should reset the floating rates according to the above method at the time of review or renewal of loan accounts, after obtaining the consent of the concerned borrower/s. 2.5 Levying of Penal Rates of Interest Banks are permitted to formulate a transparent policy for charging penal interest with the approval of their Board of Directors. However, in the case of loans to borrowers under priority sector, no penal interest should be charged for loans up to ` 25,000. Penal interest can be levied for reasons such as default in repayment, non-submission of financial statements, etc. However, the policy on penal interest should be governed by well-accepted principles of transparency, fairness, incentive to service the debt and due regard to genuine difficulties of customers. 2.6 Enabling Clause in Loan Agreement 2.6.1 Banks should invariably incorporate the following proviso in the loan agreements in the case of all advances, including term loans, thereby enabling banks to charge the applicable interest rate in conformity with the directives issued by RBI from time to time: "Provided that the interest payable by the borrower shall be subject to the changes in interest rates made by the Reserve Bank from time to time." 2.6.2 Since banks are bound by the Reserve Bank's directives on interest rates on loans and advances, which are issued under Sections 21 and 35A of the Banking Regulation Act, 1949, banks are obliged to give effect to any revision of interest rates whether upwards or downwards, on all the existing advances from the date the directives / revised interest rate come into force, unless the directives specifically provide otherwise. 2.7 Withdrawals Against Uncleared Effects 2.7.1 Where withdrawals are allowed against cheques sent for clearing, i.e. uncleared effects (e.g. uncleared local or outstation cheques) which are in the nature of unsecured advances, banks should charge interest on such drawals as per the directive on interest rates on advances. 2.7.2 As a measure of customer service, the above instruction will not apply to the facility afforded to depositors for immediate credits in respect of cheques sent for collection. 2.8 Loans under Consortium Arrangement Banks need not charge a uniform rate of interest even under a consortium arrangement. Each member bank may charge a rate of interest on the portion of the credit limits extended by it to the borrower, subject to the condition that such rate of interest is determined with reference to its Base Rate. 2.9 Charging of Interest at Monthly Rests 2.9.1 Banks were advised to charge interest on loans/advances at monthly rests with effect from April 01, 2002. Interest at monthly rests shall be applied in case of all new and existing term loans and other loans of longer / fixed tenor. In the case of existing loans of longer / fixed tenor, banks shall move over to application of interest at monthly rests at the time of review of terms and conditions or renewal of such loan accounts, or after obtaining consent from the borrower. 2.9.2 Instructions on charging interest at monthly rests shall not be applicable to agricultural advances and banks shall continue to follow the existing practice of charging / compounding of interest on agricultural advances linked to crop seasons. As indicated in circular RPCD.No.PLFS.BC.129/05.02.27/97-98 dated June 29, 1998, banks should charge interest on agricultural advances for long duration crops at annual rests. As regards other agricultural advances in respect of short duration crop and allied agricultural activities such as dairy, fishery, piggery, poultry, bee-keeping, etc., banks should take into consideration due dates fixed on the basis of fluidity with borrowers and harvesting / marketing season while charging interest and compounding the same if the loan / installment becomes overdue. Further, banks should ensure that the total interest debited to an account should not exceed the principal amount in respect of short term advances granted to small and marginal farmers. 2.10 Zero Percent Interest Finance Schemes for Consumer Durables Banks should refrain from offering low / zero percent interest rates on consumer durable advances to borrowers through adjustment of discount available from manufacturers / dealers of consumer goods, since such loan schemes lack transparency in operations and distort pricing mechanism of loan products. These products do not also give a clear picture to the customers regarding the applicable interest rates. Banks should, also, not promote such schemes by releasing advertisements in different newspapers and media indicating that they are promoting / financing consumers under such schemes. They should also refrain from linking their names in any form / manner with any incentive- based advertisement where clarity regarding interest rate is absent. 2.11 Excessive Interest Charged by Banks Though interest rates have been deregulated, charging of interest beyond a certain level is seen to be usurious and can neither be sustainable nor be conforming to normal banking practice. Boards of banks have, therefore, been advised to lay out appropriate internal principles and procedures so that usurious interest, including processing and other charges, are not levied by them on loans and advances. In laying down such principles and procedures in respect of small value loans, particularly, personal loans and such other loans of similar nature, banks should take into account, inter-alia, the following broad guidelines: a. An appropriate prior-approval process should be prescribed for sanctioning such loans, which should take into account, among\ others, the cash flows of the prospective borrower. b. Interest rates charged by banks, inter-alia, should incorporate risk premium as considered reasonable and justified having regard to the internal rating of the borrower. Further, in considering the question of risk, the presence or absence of security and the value thereof should be taken into account. c. The total cost to the borrower, including interest and all other charges levied on a loan, should be justifiable having regard to the total cost incurred by the bank in extending the loan, which is sought to be defrayed and the extent of return that could be reasonably expected from the transaction. d. An appropriate ceiling should be fixed on the interest, including processing and other charges that are levied on such loans, which should be suitably publicised. ANNEX 1 2.12 Illustrative Methodology for the Computation of the Base Rate (2P.1a3ragraph 2.2.1) 2.14 Base Rate = a + b + c + d a -Cost of Deposits / Funds = Dcost (benchmark) b -Negative Carry on CRR and SLR= c- Unallocatable Overhead Cost= d- Average Return on Net Worth= Unallocatable Overhead Cost 2W.1h5ere : Unallocatable Overhead Cost= Dcost : Cost of Deposits / Funds D : Total Deposits = Time Deposits + Current Deposits + Saving Deposits Unallocatable Overhead Cost is calculated by taking the ratio (expressed as a Dply : D ployable Deposits = Total Deposits less Share of Deposits locked as 2.16 percentage) of unallocated overhead cost and deployable deposits. CRR and SLR balances. i.e. = D * [1 - (CRR + SLR)] CRR : Cash Reserve Ratio 2A.v17erage Return on Net Worth SLR : Statutory Liquidity Ratio Average Return on Net Worth= Tr : 364 T-Bill Rate AverageU: ReturnUnallocatableonNet WorthOverheadiscomputedCost as the product of net profit to net worth c ratio and net worth to deployable deposits ratio expressed as a percentage. NP : Net Profit NW : Net Worth = Capital + Free Reserves Negative Carry on CRR and SLR Negative Carry on CRR and SLR= Negative carry on CRR and SLR balances arises because the return on CRR balances is nil, while the return on SLR balances (proxied using the 364-day Treasury Bill rate) is lower than the cost of deposits. Negative carry on CRR and SLR is arrived at in three steps. In the first step, return on SLR investment was calculated using 364-day Treasury Bills. In the second step, effective cost was calculated by taking the ratio (expressed as a percentage) of cost of deposits (adjusted for return on SLR investment) and deployable deposits (total deposits less the deposits locked as CRR and SLR balances). In the third step, negativecarry cost on SLR and CRR was arrived at by taking the difference between the effective cost and the cost of deposits. ANNEX 2 Guidelines on Benchmark Prime Lending Rate (BPLR) applicable to loans sanctioned upto June 30, 2010 (Paragraph 2.3.6) With effect from October 18, 1994, RBI has deregulated the interest rates on advances above Rupees two lakh and the rates of interest on such advances are determined by the banks themselves subject to BPLR and Spread guidelines. For credit limits up to Rupees two lakh, banks should charge interest not exceeding their BPLR. Keeping in view the international practice and to provide operational flexibility to commercial banks in deciding their lending rates, banks can offer loans at below BPLR to exporters or other creditworthy borrowers, including public enterprises, on the basis of a transparent and objective policy approved by their respective Boards. Banks will continue to declare the maximum spread of interest rates over BPLR. Given the prevailing status of the credit market in India and the need to continue with concessionality for small borrowers, the practice of treating BPLR as the ceiling for loans up to Rupees two lakh will continue. Banks are free to determine the rates of interest without reference to BPLR and regardless of the size in respect of loans for purchase of consumer durables, loans to individuals against shares and debentures / bonds, other non-priority sector personal loans, etc. as per details given below. BPLR will be made uniformly applicable at all branches of a bank. Determination of Benchmark Prime Lending Rate (BPLR) In order to enhance transparency in banks pricing of their loan products as also to ensure that the BPLR truly reflects the actual costs, banks should be guided by the following considerations while determining their Benchmark PLR: Banks should take into account their (i) actual cost of funds,
(ii) operating expenses and (iii) a minimum margin to cover regulatory requirement of provisioning / capital charge and profit margin, while arriving at the benchmark PLR. Banks should announce a Benchmark PLR with the approval of their Boards. The Benchmark PLR will be the ceiling rate for credit limit up to Rupees two lakh. All other lending rates can be determined with reference to the Benchmark PLR arrived at as above by taking into account term premia and / or risk premia. Detailed guidelines on operational aspects of Benchmark PLR have been issued by IBA on November 25, 2003. In the interest of customer protection and to have greater degree of transparency in regard to actual interest rates charged to borrowers, banks should continue to provide information on maximum and minimum interest rates charged together with the Benchmark PLR. Freedom to fix Lending Rates Banks are free to determine the rates of interest without reference to BPLR and regardless of the size in respect of the following loans:
i. Loans for purchase of consumer durables;
ii. Loans to individuals against shares and debentures / bonds;
iii. Other non-priority sector personal loans including credit card dues;
iv. Advances / overdrafts against domestic / NRE / FCNR (B) deposits with the bank, provided that the deposit/s stands / stand either in the name(s) of the borrower himself / borrowers themselves, or in the names of the borrower jointly with another person;
v. Finance granted to intermediary agencies including housing finance intermediary agencies (list as given below) for on-lending to ultimate beneficiaries and agencies providing input support.;
vi. Discounting of Bills;
vii. Loans / Advances / Cash Credit / Overdrafts against commodities subject to Selective Credit Control;
viii. To a co-operative bank or to any other banking institution;
ix. To its own employees;
x. Loans covered by refinance schemes of term lending institutions. An Illustrative list of Intermediary Agencies
1. State sponsored organisations for on-lending to weaker sections. Weaker sections include
i) Small and marginal farmers with landholdings of 5 acres and less, and landless labourers, tenant farmers and share-croppers; ii) Artisans, village and cottage industries where individual credit requirements do not exceed ` 50,000/-; iii) Beneficiaries of Swarnjayanti Gram Swarozgar Yojana (SGSY); iv) Scheduled Castes and Scheduled Tribes;
v) Beneficiaries of Differential Rate of Interest (DRI) scheme; vi) Beneficiaries under Swarna Jayanti Shahari Rozgar Yojana (SJSRY); vii) Beneficiaries under scheme of Liberation and Rehabilitation of Scavengers (SLRS); viii) Advances to Self-Help Groups (SHGs); ix) Loans to distressed poor to repay their debt to informal sector, against appropriate collateral or group security; Loans granted under (i) to (viii) above to persons from minority communities as may be notified by Government of India from time to time. In states, where one of the minority communities notified is, in fact, in majority, item (ix) will cover only the other notified minorities. These States/Union Territories are Jammu and Kashmir, Punjab, Sikkim, Mizoram, Nagaland and Lakshadweep.
2. Distributors of agricultural inputs / implements.
3. State Financial Corporations (SFCs) / State Industrial Development Corporations (SIDCs) to the extent they provide credit to weaker sections.
4. National Small Industries Corporation (NSIC).
5. Khadi and Village Industries Commission (KVIC).
6. Agencies involved in assisting the decentralised sector.
7. State sponsored organisations for on-lending to the weaker sections.
8. Housing and Urban Development Corporation Ltd. (HUDCO).
9. Housing Finance Companies approved by National Housing Bank (NHB) for refinance.
10. State sponsored organisations for SCs / STs (for purchase and supply of inputs to and / or marketing of output of the beneficiaries of these organisations).
11. Micro Finance Institutions / Non-Government Organisations (NGOs) onlending to SHGs. ANNEX 3 Interest Rate Structure for all Rupee Advances including Term Loans of Commercial Banks sanctioned up to June 30, 2010 [paragraph 2.3.6] Rate of Interest (Per cent per annum) 1.(a) Up to and inclusive of Not exceeding Benchmark Prime Lending Rupees two lakh Rate (BPLR) (b) Over Rupees two lakh Banks are free to determine rates of interest subject to BPLR and spread guidelines. Banks may, however, offer loans at below BPLR to exporters or other creditworthy borrowers including public enterprises based on a transparent and objective policy approved by their Boards.
2. Export Credit up to June 30, 2010 Interest Rates effective from May 1, 2010 to June 30, 2010 will be not exceeding BPLR minus 2.5 percentage points per annum for the following categories of Export Credit: Categories of Export Credit
1. Pre-shipment Credit (from the date of advance) (a) Up to 270 days (b)Against incentives receivable from Government covered by ECGC Guarantee up to 90 days
2. Post-shipment Credit (from the date of advance) (a) On demand bills for transit period (as specified by FEDAI) (b) Usance bills (for total period comprising usance period of export bills, transit period as specified by FEDAI, and grace period, wherever applicable
i) Up to 180 days ii) Up to 365 days for exporters under the Gold Card Scheme. (c) Against incentives receivable from Govt. (covered by ECGC Guarantee) up to 90 days (d) Against undrawn balances (up to 90 days) (e) Against retention money (for supplies portion only) payable within one year from the date of shipment (up to 90 days) BPLR: Benchmark Prime Lending Rate Note:
1. Since these are ceiling rates, banks would be free to charge any rate below the ceiling rates. First Appeal No.422 of 2016 26
2. Interest rates for the above-mentioned categories of export credit beyond the tenors as prescribed above are deregulated and banks are free to decide the rate of interest, keeping in view the BPLR and spread guidelines.
3. Education Loan Scheme up to June 30, 2010 Up to Rupees four lakh Not exceeding BPLR
4. Education Loan Scheme up to June 30, 2010 Up to Rupees four lakh Not exceeding BPLR Above Rupees four lakh BPLR + 1% Note. 1. The interest to be debited quarterly/ half yearly on simple basis during the Repayment holiday/ Moratorium period.
2. Penal interest @2% be charged for loans above Rupees two lakh for the overdue amount and overdue period.
4. Banks are free to determine the rates of interest without reference to BPLR and regardless of the size in respect of the following loans up to June 30, 2010:
i) Loans for purchase of consumer durables ii) Loans to individuals against shares and debentures / bonds iii) Other non-priority sector personal loans including credit card dues iv) Advances / overdrafts against domestic / NRE / FCNR (B) deposits with the bank, provided that the deposit/s stands / stand either in the name(s) of the borrower himself / borrowers themselves, or in the names of the borrower jointly with another person
v) Finance granted to intermediary agencies (excluding those of housing) for on-lending to ultimate beneficiaries and agencies providing input support. vi) Finance granted to housing finance intermediary agencies for on-lending to ultimate beneficiaries. vii) Discounting of Bills viii) Loans / Advances / Cash Credit / Overdrafts against commodities subject to Selective Credit Control. ix) To a co-operative bank or to any other banking institution
x) To its own employees
5. Loans covered by participation in refinancing schemes of term lending institutions up to June 30, 2010 Free to charge interest rates as per stipulations of the refinancing agencies without reference to BPLR
6. DRI Advances 4.0% Note: Intermediary agencies are indicated in Annex 2 APPENDIX List of circulars consolidated in the Master Circular on Interest Rates on Advances as uploaded on RBI website.
15. From the perusal of these clauses as appended herein above the clause pertaining to Floating Rate of Interest states as under:- 2.4 Floating Rate of Interest on Loans Banks have the freedom to offer all categories of loans on fixed or floating rates, subject to conformity to their Asset- Liability Management (ALM) guidelines. The methodology of computing the floating rates should be objective, transparent and mutually acceptable to counter parties. The Base Rate could also serve as the reference benchmark rate for floating rate loan products, apart from external market benchmark rates. The floating interest rate based on external benchmarks should, however, be equal to or above the Base Rate at the time of sanction or renewal. This methodology should be adopted for all new loans. In the case of existing loans of longer / fixed tenure, banks should reset the floating rates according to the above method at the time of review or renewal of loan accounts, after obtaining the consent of the concerned borrower/s. 2.6 Enabling Clause in Loan Agreement 2.6.1.Banks should invariably incorporate the following proviso in the loan agreements in the case of all advances, including term loans, thereby enabling banks to charge the applicable interest rate in conformity with the directives issued by RBI from time to time: "Provided that the interest payable by the borrower shall be subject to the changes in interest rates made by the Reserve Bank from time to time." 2.6.2.Since banks are bound by the Reserve Bank's directives on interest rates on loans and advances, which are issued under Sections 21 and 35A of the Banking Regulation Act, 1949, banks are obliged to give effect to any revision of interest rates whether upwards or downwards, on all the existing advances from the date the directives / revised interest rate come into force, unless the directives specifically provide otherwise. 2.11 Excessive Interest Charged by Banks Though interest rates have been deregulated, charging of interest beyond a certain level is seen to be usurious and can neither be sustainable nor be conforming to normal banking practice. Boards of banks have, therefore, been advised to lay out appropriate internal principles and procedures so that usurious interest, including processing and other charges, are not levied by them on loans and advances. In laying down such principles and procedures in respect of small value loans, particularly, personal loans and such other loans of similar nature, banks should take into account, inter-alia, the following broad guidelines: a. An appropriate prior-approval process should be prescribed for sanctioning such loans, which should take into account, among others, the cash flows of the prospective borrower. b. Interest rates charged by banks, inter-alia, should incorporate risk premium as considered reasonable and justified having regard to the internal rating of the borrower. Further, in considering the question of risk, the presence or absence of security and the value thereof should be taken into account. c. The total cost to the borrower, including interest and all other charges levied on a loan, should be justifiable having regard to the total cost incurred by the bank in extending the loan, which is sought to be defrayed and the extent of return that could be reasonably expected from the transaction. d. An appropriate ceiling should be fixed on the interest, including processing and other charges that are levied on such loans, which should be suitably publicised. Thus, from these clauses it is quite evident that RBI has been aware of floating rate of interest on loans and has issued all these directions as a statutory directive issued in exercise of its powers conferred by the Banking Regulation Act, 1949 in the capacity of a Regulator of Banking Operations of Commercial Banks in India. As per these instructions No.2.4, 2.6 & 2.11, written consent is required to be taken by the Bank whenever they reset the floating rate of interest applicable to the loan accounts of their customers. However, from the perusal of their reply filed before the District Forum, we find that the opposite parties have taken a fresh loan agreement from the complainants in the year 2007 incorporating some changes in their loan agreement for the loan amount which was initially sanctioned by them in the year 2005. No reason has been given why respondent/opposite party Bank had taken fresh loan documents from the complainants in the year 2007. However, when floating rate of interest was changed, as per table provided in their reply, no written consent from the complainants were taken. In view of the above guidelines issued by the RBI with regard to the fixing of rate of interest to be charged by the Commercial Bank any deviation from these instructions by not properly adhering to these guidelines / notifications issued by the RBI amounts to deviation of Rules and Guidelines and can be termed as unfair trade practice. Vide Circular No. RBI/2011-12/589 DBOD No. Dir. BC. 107 / 13.03.00/2011-12 dated 5.6.2012 issued by RBI to all the Scheduled Commercial Banks, under which, it was decided that the Bank will not be permitted to charge foreclosure charges/pre-payment penalties on Home Loans on floating interest rate basis. Accordingly, in absence of written consent and also contrary to RBI Guidelines issued to all Commercial Banks not to charge pre-payment penalty on foreclosure on any loan accounts by the Commercial Banks case of the complainants is squarely covered under RBI Guidelines. The action of the opposite party- respondent / Bank charging of foreclosure charges for closing loan account prematurely amounts to deficiency in service and unfair trade practice. In this regard, we draw support from the ruling of Honble State Consumer Disptues Redressal Commission, Punjab, in First Appeal No. 422 of 2066 decided on 2.6.2017 in case Prem Singh Badwal Vs. ICICI Bank Limited.
8. Sequel to the above, we are of the opinion that the Opposite Party has not charged the interest at the RBI prescribed rates and did not rectify the account as per the said rates. In view of this, we direct the Opposite Party to charge the interest at the RBI prescribed rates and rectify the account as per the said rates, and return the amount charged as late payment charges charged at the exorbitant rates and against the norms, and the said amount be returned @ 9% per annum thereon from the date of payment till realization. The Opposite Party is also directed to pay the compensation to the complainant on account of causing mental tension and harassment to the tune of Rs.20,000/- besides Rs.10,000/- as costs of litigation. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Announced in Open Forum Dated: 07.08.2017 (Rachna Arora) (Anoop Sharma) Member Presiding Member