Chandigarh

StateCommission

A/136/2024

HDFC BANK LIMITED - Complainant(s)

Versus

ARVIND KUMAR & ANR - Opp.Party(s)

NITIN THATAI

22 Oct 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

[ADDITIONAL BENCH]

 

Appeal No.	136 of 2024
Date of Institution	03.04.2024
Date of Decision	22.10.2024

 

HDFC Bank Limited, SCO No.145-146, Sector 17C, Chandigarh, PIN -160017

Through Sh. Kabir Chopra working as Manager Legal, HDFC Bank House, 3^rd Floor, Tower B, Plot No.115, Sector 101, Alpha IT City, Mohali, Punjab Pin 160062.

.…..Appellant/Opposite Party No.1.

Versus

1]      Sh. Arvind Kumar son of Sh. Jagdish Yadav, resident of H.No.1506, Sector 11-D, Chandigarh.

…..Respondent/Complainant.

2]      Kapur Service Station (Petrol Pump), Sector 21, Chandigarh through its Proprietor/Manager.

...Respondent/Opposite Party No.2.

 

 

BEFORE:  JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                MRS. PADMA PANDEY, MEMBER

                SH. RAJESH K. ARYA, MEMBER

               

Argued by:- 

 

Sh.  Nitin Thatai, Advocate alongwith Dr. Monika Thatai, for the appellant.

Sh. Atul Arya, Advocate for respondent No.1 alongwith Sh. Arvind Kumr, respondent No.1 in person.

Respondent No.2 – exparte vide order dated 06.08.2024.

 

PER RAJESH K. ARYA, MEMBER

              The instant appeal has been filed by opposite party No.1 – HDFC Bank Limited, appellant herein, against order dated 12.01.2024, rendered by District Consumer Disputes Redressal Commission-II, U.T., Chandigarh, (hereinafter to be called as the District Commission only), vide which, Consumer Complaint No.1041 of 2019 filed by the complainant – Sh. Arvind Kumar (respondent No.1 herein) has been partly allowed against party No.1 with the direction to refund the amount of Rs.45,765/- + Rs.14,000/- to the complainant alongwith interest @9% per annum from the respective dates of its deduction till the date of its actual payment and further to issue NOC in respect of the Credit Card bearing No.4893772416210355.

2]          The case of respondent No.1/complainant before the Ld. District Commission was that the complainant holds a Saving-cum-Salary Account No.11091050020539 and a Credit Card (No.4893772416210355) with the appellant, valid from March 2019 to March 2022. On 17.06.2019, an EMI of Rs.5,290 (over six months) for a total of Rs.30,354 was charged to Kapur Service Station, Sector 21, Chandigarh, without the complainant’s knowledge or consent. In July 2019, an unauthorized debit of Rs.1,899 (with an EMI of Rs.652.08) for an "Assist Fee" was made through the Credit Card. Further, from July 2019, a total of Rs.5,762/- (in 24 monthly EMIs of Rs.274.48) for an HDFC Ergo Premium Policy was also debited without authorization. The complainant lodged a complaint with the appellant on 17.09.2019 regarding the unauthorized deductions but no action was taken. Subsequently, he made a complaint to the Senior Superintendent of Police, Sector 9, Chandigarh on 02.09.2019 (Ref. No. PW201916476) and also to the Banking Lokpal, Reserve Bank of India, Sector 17, Chandigarh on 24.09.2019 but to no avail. Despite repeated efforts by the complainant, the appellant did not address the illegal deductions from his Salary-cum-Saving Account through the Credit Card.

3]    On the other hand, it was the contest by the appellant/opposite party No.1, before the Ld. District Commission, that the EMIs in question were initiated with the complainant’s consent and the conversation regarding this consent was recorded. It was further stated that the insurance was issued with the complainant’s consent and subsequently canceled, with the amount refunded to the complainant’s credit card on 08.07.2019. Therefore, the EMI of Rs.274.48 should not have been debited. Additionally, it was stated that the complainant had not included the Insurance Company as a party in the complaint rendering the complaint liable for dismissal on this ground. It was further stated that as of January 14, 2020, an amount of Rs.1,00,114/- was due and outstanding against the complainant and opposite party No.1 reserved the right to recover this amount.

4]           Similarly, opposite party No.2 filed its reply wherein it stated that the dispute related to the alleged illegal deduction of EMIs by opposite party No.1 and therefore, the relationship between the complainant and opposite party No.2 is not relevant in this matter. Furthermore, the diesel purchase of Rs.30,354/- by the complainant could not be considered for personal use, as it appeared to be for commercial purposes, which disqualified the complainant from being categorized as a consumer under the applicable definition. It was denied that opposite party No.2 repeatedly refused to stop deductions from the complainant’s Salary-cum-Savings Account through the credit card, as alleged. It was further stated that it was illogical for the complainant to make such a request to opposite party No.2 when the payment was already made to opposite party No.2 using the credit card and no deductions were being made by it, either through EMIs or from the Salary-cum-Savings Account.

1.            After hearing the Counsel for the parties and going through the evidence and record of the case, the Ld. District Commission partly allowed the complaint against the appellant/opposite party No.1 in the manner, as stated above.

6]           The appellant, HDFC Bank, has challenged the order of the Ld. District Commission, which directed refund of ₹45,765/- & Rs.14,000/- to respondent No. 1, citing several substantial grounds. First, the Ld. District Commission awarded the refund without providing adequate reasoning or evidence. Respondent No.1 never mentioned the debit of Rs.14,000/- in his initial complaint, raising the issue only at the stage of rejoinder and failed to submit any supporting documents. The burden of proof was on respondent No.1, which he failed to discharge. Additionally, the Ld. District Commission overlooked key evidence provided by the appellant, including an audio recording (Annexure R-2), wherein respondent No.1 accepted a transaction of Rs.30,354/- and requested its conversion into Equated Monthly Installments (EMIs). Respondent No.1 had also agreed to the insurance payment for "One Assist," which was ignored by the Commission. The appellant highlighted that credit card transactions require the cardholder's PIN, which was in respondent No.1’s custody during the disputed transaction. The Ld. Commission erred in implying unauthorized use, given that the credit card was physically with respondent No.1. Furthermore, the Commission went beyond the pleadings by questioning the lack of notice prior to the deduction of Rs.45,776/-, which was in accordance with Section 171 of the Indian Contract Act, 1872, under the Right to General Lien. No notice was legally required as per the terms and conditions agreed upon between the bank and respondent No.1, with support from the precedent set in M/s HDFC Bank Vs. Anish Munjal. The appellant also argued that the Ld. District Commission’s assertion that it was obligated to educate respondent No.1 about credit card usage is baseless, as this issue was never raised in the complaint. Respondent No.1 had explicitly acknowledged reading, understanding, and accepting the terms and conditions of the credit card while submitting his application form, including the Most Important Terms and Conditions (MITC), authorizing applicable fees. It has been stated that the Ld. District Commission failed to appreciate the evidence and the legal principles involved, resulting in an erroneous decision that unjustly favored respondent No.1. In support of the contentions raised in the grounds of appeal, the appellant has placed reliance on the judgment of Hon’ble Supreme Court of India in M/s Magma Fincorp Ltd. Vs. Rajesh Kumar Tiwari, Civil Appeal No.5622 of 2019 (arising out of SLP (C)No.33720 of 2018) decided on 01.10.2020 and SGS India Ltd. Vs. Dolphin International Ltd., Civil Appeal No.5759 of 2009 decided by Hon’ble Supreme Court of India on 06.10.2021; Indigo Airlines Vs. Kalpana Rani Debbarma & Ors., (2020) 9 SCC 424; The Chairman & Managing Director, City Union Bank Ltd. & Anr. Vs. R. Chandramohan (Civil Appeal No.7298 of 2009) decided on 27.03.2023; Rashpal Singh Bahia & Others Vs. Surinder Kaur and Others, 2008 (2) Civil Court Cases 778 (P&H); Tata Mortors Vs. Hazoor Maharaj Baba, Revision Petition No.2562 of 2012 decided by Hon’ble National Consumer Disputes Redressal Commission, New Delhi on 25.09.2023, Dalip Singh Vs. State of Uttar Pradesh and Others reported in (2010) 2 SCC 114; Amar Singh Vs. Union of India (UOI) & Ors., (2011) 7 SCC 69 etc. etc. Lastly prayer for acceptance of the appeal by setting aside the impugned order and dismissing the complaint of respondent No.1 has been made.

1.             On the other hand, respondent No.1/ complainant vehemently argued that the Ld. District Commission rightly partly allowed his consumer complaint against the appellant after appreciating the facts and evidence before it and as such, the appeal filed by the appellant be dismissed.
2. It may be stated here that there is a delay of 21 days as per the appellant and 30 days as per the office of this Commission in filing the appeal, for condonation whereof, a Miscellaneous Application bearing No.340 of 2024 has been moved. After going through the contents of the application, which is supported by an affidavit and in view of law settled by Hon’ble Supreme Court of India in Pundlik Jalam Patil Vs. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448 and Basawaraj and Anr. Vs. Special Land Acquisition Officer, (2013) 14 SCC 81, the appellant has shown rational reason for the delay, which has been caused due to bonafide reasons. Therefore, for the reasons given in the application which is supported by an affidavit and finding sufficient cause, the delay in filing the appeal is condoned. MA/340/2024 stands disposed of accordingly.
3. There is another miscellaneous application bearing No.342 of 2024 moved by the appellant under Order 41 Rule 2 of the Civil Procedure Code read with Section 151 CPC for seeking permission to place on record documents i.e. HDFC Bank Online Application as Annexure A-2, Card Member Agreement alongwith Most Important Terms and Conditions as Annexure A-3, Credit Card Statements of complainant as Annexure A-4, Saving Account Statement of the complainant as Annexure A-5 and 6 Audio CD of the Conversation between Agent of one assist and the complainant as Annexure A-6 by way of additional evidence as the same could not be produced before the Ld. District Commission despite exercising due diligence. It may be stated here that the respondents did not contest the application by filing any reply to the same. In the application, it has been stated that these documents are required to be placed on record at this juncture and in in case, it is not so done, then it will cause serious prejudice and irreparable loss to the appellant.
4.           After going through the contents of the application, which is duly supported by an affidavit, we are of the considered view that the documents sought to be placed on record by the appellant are necessary for the just decision of the case. It may be stated here that under Order XLI Rule 27 of the Code of Civil Procedure 1908, the Appellate Court has the discretion to allow additional evidence if it is necessary for the pronouncement of judgment or if the evidence was not available despite due diligence. The Hon'ble Supreme Court in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 has laid down the guidelines for the exercise of discretion under this rule, emphasizing that additional evidence should only be allowed in rare cases where it is imperative for a just decision. Further in K.V. Raju v. State of Karnataka, (2012) 12 SCC 566, the Hon’ble Supreme Court held that additional evidence can be permitted at the appellate stage if the evidence sought to be adduced is necessary for a complete and proper adjudication of the case. In The State of West Bengal and Ors. v. Kesoram Industries Ltd. and Ors., [2004] 1 S.C.R. 564, the Hon’ble Supreme Court of India has held that courts can permit the introduction of additional evidence at any stage, including during appeals, if it is deemed necessary for a proper adjudication of the case. Accordingly, the application is allowed and the documents, aforesaid are taken on record. MA/342/2024 stands disposed of accordingly.
5.          After considering the rival contentions of the parties and going through the impugned order and material available on record and the written arguments carefully, we are of the considered view that the appeal is liable to be accepted for the reasons to be recorded hereinafter. The appellant, HDFC Bank, has challenged the order of the Ld. District Commission that directed refund of ₹45,765/- & Rs.14,000/- to respondent No.1. Upon careful consideration of the submissions made by both parties, this Commission finds merit in the arguments put forth by the appellant. It is observed that the Ld. District Commission erred in awarding a refund of Rs.14,000/- to respondent No.1 without providing any substantive reasoning or relying on proper evidence. The impugned order has been passed in the absence of any documentary proof reflecting that such an amount was indeed debited from the account of respondent No.1. Moreover, it is noted that the issue of the deduction of Rs.14,000/- was never raised in the original complaint; it was only introduced at the time of filing the rejoinder. Despite this late introduction, respondent No.1 failed to provide supporting documents or specific details to substantiate the claim. In such circumstances, the onus of proving the alleged debit rested entirely upon respondent No.1, a burden that he clearly failed to discharge. The Ld. District Commission’s failure to recognize this procedural deficiency amounted to an incorrect appreciation of the facts and the evidence on record. Further, it is evident that the Ld. District Commission failed to give due consideration to the documentary evidence submitted by the appellant before it. It is established on record that, respondent No.1 acknowledged the transaction of Rs.30,354/- and agreed to repay this amount through Equated Monthly Installments (EMIs). Subsequently, the appellant bank credited the said amount to the credit card account of respondent No.1 and converted it into EMIs at his request. This fact also stands corroborated from the additional evidence brought on record by the appellant in appeal i.e. Credit Card Statement dated 14.05.2019, Annexure A-4. Additionally, respondent No.1 had expressly agreed to the payment for "One Assist" insurance services, yet the District Commission did not take this fact into account, further undermining the basis for its order. This Commission also finds that the Ld. District Commission unduly relied on the allegations of respondent No.1, while completely ignoring the comprehensive reply and supporting evidence presented by the appellant bank. Specifically, in the case of a credit card transaction at a Point of Sale (POS) machine, it is mandatory for the cardholder to enter the personal identification number (PIN) to complete the transaction. This PIN, as created and maintained by the cardholder, remained exclusively in the custody of respondent No.1 at all material times, including during the disputed transaction at the service station of respondent No.2. Hence, the assertion that there was unauthorized use of the credit card was not supported by any tangible evidence and respondent No.1’s allegations appear unfounded. Moreover, the Commission finds that the Ld. District Commission went beyond the scope of the pleadings in making observations regarding the lack of notice before debiting Rs.45,765/- from respondent No.1’s salary account to settle his credit card account. It is pertinent to note that respondent No.1 did not seek any relief related to this deduction in his complaint nor did he raise such an issue before the Ld. District Commission. The withdrawal of the amount was undertaken in exercise of the appellant Bank’s Right to General Lien under Section 171 of the Indian Contract Act, 1872, as per the terms and conditions agreed upon between the appellant bank and respondent No.1 at the time of availing the credit card. ‘LIEN AND RIGHT OF SET-OFF” Clause in HDFC BANK CREDT CARD (CARDMEMBER AGREEMENT), Annexure A-3, at Page 75 of the paper-book clearly says so whereby the parties agreed that the Bank, at any time and without notice, wil have a lien and right of set-off on all monies belonging to the Card membership and/or Add-on Card member standing to their credit in any account whatsoever with the Bank or in the possession or custody of the Bank. It further says that if upon demand by the Bank, the balance outstanding on the Card Account is not repaid within the prescribed time, such credit balance in any account including fixed deposit accounts and  any properties of the Card member and/or Add-on Card member in the possession or custody of the Bank whether for safe keeping or otherwise, including but not limited to dematerilised shares or other securities of the Card member and/or Add-on Card member, held by the Bank as a Depository Participant, may be adjusted towards dues under the Card Account and in case of any deficit, the deficit amount may be recovered by the Bank from the Card member and/or Add-on Card member. Thus, in our view, the appellant Bank had lawfully exercised its rights and in such cases, there was no requirement for prior notice to respondent No.1. Reliance is placed on the judgment of the Hon’ble National Commission in M/s HDFC Bank Vs. Anish Munjal (supra) which supports the appellant’s position that prior notice is not necessary under such circumstances.

12]         Additionally, the Ld. District Commission’s finding that the appellant was duty-bound to educate respondent No.1 about the usage of the credit card and to make him understand the terms and conditions governing its use is wholly misplaced. Respondent No.1 did not make any such allegation in his complaint and therefore, the Ld. District Commission’s observations were uncalled for and beyond the ambit of the pleadings. The appellant has rightly contended that respondent No.1 submitted an online application form, marked as Annexure A-4, confirming that he had read, understood, and accepted the terms and conditions in full. Respondent No.1 also explicitly agreed to the "Most Important Terms and Conditions" (MITC), authorizing the appellant bank to debit the applicable fees from his credit card and consented to the legally enforceable nature of the online application form, irrespective of it being unsigned electronically.

13]        Furthermore, this Commission finds that the Ld. District Commission improperly provided undue advantage to respondent No.1 by entertaining a complaint that lacked proper merit. The evidence presented reveals that respondent No.1 had concealed pertinent facts regarding his credit card usage, including his explicit agreement to terms, his acknowledgment of the disputed transactions and his subsequent request to convert these transactions into EMIs. These facts, coupled with respondent No.1’s failure to discharge the burden of proof regarding the alleged debit of Rs.14,000/-, were overlooked by the Ld. District Commission, resulting in an erroneous and unjustified order against the appellant.

14]         In view of the foregoing analysis, we are of the concerted view that the Ld. District Commission has committed errors in fact-finding and has not properly applied the relevant legal principles. Our conclusion is drawn from a thorough examination of the evidence and additional materials submitted by the appellant. The documentary and testimonial evidence presented clearly supports the appellant's contentions. Furthermore, the reliance placed on relevant judicial precedents further strengthens this position. The case laws cited by the appellant provide a consistent interpretation of similar issues, thereby lending significant weight to their arguments. Consequently, after considering all the facts and legal principles brought on record, we are inclined to accept the appellant’s view as well-founded and substantiated by the evidence and case law. The order of the Ld. District Commission is, therefore, liable to be set aside, and the consumer complaint of respondent No.1 deserves dismissal.

1.          For the reasons recorded above, this appeal is accepted. The impugned order dated 12.01.2024 is set aside. Consequently, consumer compliant bearing No.1041 of 2019 stands dismissed with no order as to costs.
2.          Pending application(s), if any, stand disposed of accordingly.
3.          Certified copies of this order be sent to the parties free of charge.
4.          File be consigned to Record Room after completion.

Pronounced.

22.10.2024

                           [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 

[PADMA PANDEY]

MEMBER

 

 

                                                                               

 [RAJESH K. ARYA]

MEMBER

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