BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,FATEHABAD.
Complaint No.:82 of 2018. Date of Instt.: 14.03.2018.
Date of Order: 31.05.2019.
M/s Kularia Krishi Kendra, G.T. Hisar Road, Fatehabad through its Proprietor Smt. Pushpa Kularia wife of Sh. Baljeet Kularia.
…Complainant.
Versus
1.Axis Bank Limited, Branch Fatehabad through its Branch Manager.
2. Axis Bank Limited, Bombay Dyeing Mills Compound, Pandurang Budhkar Marg, Worli, Mumbai through its Managing Director.
3. Axis Bank Limited, “TRISHUL”, 3rd Floor, Opposite Samartheshwar Temple, Near Law Garden, Ellisbridge, Ahmadabad through its Manager/Authroized Signatory.
…Respondents/OPs
Complaint U/s 12 of the Consumer Protection Act,1986.
Before: Sh.Raghbir Singh, President.
Sh.Jasvinder Singh, Member.
Present: Sh. U.K. Gera, Advocate for the complainant.
Sh. Amit Wadhera, Advocate for the Ops.
ORDER
The present complaint under Section 12 of the Consumer Protection Act, 1986 has been filed by the complainant against the Opposite Parties (hereinafter to be referred as OPs) with the averments that she is the sole proprietor of Firm M/s Kularia Krishi Kendra G.T. Road, Fatehabad. It is further submitted that the complainant had opened a current account bearing no. 913020030730206 with the OP no. 1 and as such the complainant is consumer of the Ops.
2. It is further submitted that the complainant had obtained the statement of abovesaid account in the year 2014, which shows that the amount of Rs.3197.90 and Rs.25,873.00 on 28.9.2013, Rs.3260.069 and Rs.26,381.00 on 26.10.2013, Rs.4249.37 and Rs.3438.00 on 23.11.2013, Rs.3629.27 and Rs.29,363.00 on 28.12.2013,Rs.674.16, Rs.533.71, Rs.730.34 and Rs.533.71 on 18.2.2014, Rs.11,236.00, Rs.7865.20, 7865.20, Rs.11,236.00, Rs.11,236.00, Rs.11.236.00, Rs.7865.20 and Rs.7865.20 on 19.2.2014, Rs.206.72, Rs.1672.50 on 14.6.2014 and Rs.308.99 on 24.6.2014 has been debited from the account of the complainant without quoting any reason.
3. It is furhter submitted that the complainant came to know after obtaining the statement of account that the amount stated in the para no. 3 of the complaint was debited from the account of the firm of the complainant and thereafter the complainant served the legal notice on 2.8.2014 upon OP no. 1 to know how the abovesaid amount was debited from the accout in question.
4. In reply of that notice, the bank vide letter dated 8.8.2014 stated that the matter is being examined and the same will be replied within 15 days. Thereafter, reply to the notice was received on 9.8.2014 wherein it was stated that at the time of opening of account the complainant was categorically informed that the firm was required to maintain monthly average balnce of Rs. 5lac. It is further submitted that there is no agreement between the complainant and the Ops for making any deductions as mentioned above. It is furter submitted that out of the total deductions, Rs.78,876.72 were reversed on 19.2.2014, when the complainant made representatins before the higher authroities of the bank. However, the remaining amount has not been refunded till date.
5. It is further submitted that after receipt of the reply of notice dated 9.8.2014 the complainant approached to OP no. 1 and asked to reverse the amount in dispute and it was assured to the complainant to refund the said amount but all in vain. Therefore, she made a written representation dated 13.10.2016 to OP no. 1 but nothing was done by the Ops and again the complainant wrote a letter dated 27.2.2017 to OP no. 1 and reply dated 10.11.2017 was received.
6. It is further submitted that the Ops without giving any notice or opportunity of hearing to the complainant had wrongfully and illegally debited the abovesaid amount of the complainant. The abovesaid act on the part of Ops amounts to deficinecy on the part of Ops in rendering service to the complainant and as such the complainant is also entitled for compensation. It is further prayed that the Ops may be directed to refund the aforesaid deducted amount alongwith interest at the rate of 12% and Rs.50,000/- as compensation and Rs.11,000/- as litigation charges. Hence, the present complaint.
7. Upon notice, the Ops appeared through counsel and filed a joint written version wherein various preliminary objections with regard to locus standi, jurisdiction, barred by limitation, maintainability and estoppel etc. have been raised.
8. In reply on merits, it is admitted that the complainant had opened a current account in the name of the complainant with the OP bank for her firm M/s Kularia Krishi Kendra. However, it is denied that the complainant falls within the definition of the Consumer as provided in the Consumer Protection Act, 1986. It is also submitted that the present complaint is not maintainable as the services of the Ops have been hired by the complainant for commercial purposes and as such this Forum has no jurisidction to try and entertain the present complaint.
9. It is admitted that entries of Rs.3197.90 Rs. 25,873.00 on 28.9.2013, Rs.3260.69, Rs.26,381.00 on 26.10.2013, Rs.4249.37, Rs.3438.00 on 23.11.2013, Rs.3629.27 and Rs.29363.00 on 28.12.2013 were debited from the account of the complainant by the answering Ops due to not maintaining the average quarterly balance in her account despite having full knowledge, repeated messages through email and through tele banking and even displayed on the notice board of the bank about the same. It is denied that the abovesaid amount has been debited without any reasons. It is furhter submitted that the abovesaid amount has been debited as per guidelines issued by the RBI and the complainant was very much aware about maintaining the average quarterly balance in her account. The allegation levelled by the complainant in her complaint for debiting the amount of Rs.674.16, Rs.533.17, Rs.730.34, Rs.533.71 on 18.2.2014, Rs. 11236.00, Rs.7865.20, Rs.7865.00, Rs.11236.00, Rs.11236.00, Rs.11236.00, Rs.7865.20, Rs.7865.20 on 19.2.2014, the same are wrong and incorrect. The said amount was not debited in the account of the complainant rather these entires has been credited in her account. It is further submitted that an amount of Rs.78,876/- has been refunded to the complainant in her account and it was told to the complainant that full amount cannot be refunded in any manner. It is further submitted that reply to the legal notice was given on 9.8.2014 whereas the present complaint has been filed in the year 2018 i.e. after a period of limitation of 2 years.
10. It is further submitted that the terms and conditions of maintaining the account was clearly told to the complainant at the time of opening of the account. It is also submitted that a sum of Rs.78876/- has already been refunded in the account of the complainant at her request and at that time it was clearly and honestly offered to her that only the abovesaid amount can be revserved and regarding the same a favourable consent was given by the complainant. It is also submitted that after receiving the reply of the notice dated 9.8.2014 the complainant never visited or approached to the answering Ops. It is further submitted that there is no deficiney on the part of OPs in redering service to the complainant and as such the present complaint is without any merits and deserves to be dismissed.
11. The learned counsel for the complainant tendered in evidence affidavit of the complainant as Annexure C-1 and the documents as Annexure C-2 to Annexure C-8 and closed the evidence of the complainant. On the other hand, the learned counsel for the Ops tendered in evidence affidavit of Vikas Goyal Branch Manager as Annexure RW1/A and the documents as Annexure R-1 to Annexure R-5.
12. The learned counsel for the complainant in his arguments reiterated the submissions made in the complaint and further contended that the Ops debited the amount from the account of the complainant on various dates without any intimation or consent or knowledge of the complainant. It is also contended by the learned counsel that at the time of opening of the current account it was never disclosed by the Ops for maintaining average quarterly balance in the account nor any terms and conditions regarding the same were ever conveyed to the complainant. Therefore, the debiting of amount by the Ops from the account of the complainant is illegal and the same is liable to be set aside.
13. On the other hand, the learned counsel for the Ops vehementaly rebutted the arguments advanced by learned counsel for the complainant and further contended that the current account was opened by the complainant in the bank of the Ops for serving commercial interest and as such the complainant does not fall within the definition of consumer of the Ops and the present complaint is not maintinable before this Forum. In support of his contention, the learned counsel for the Ops placed reliance on the judgments cited as 2018 (1) CPJ Page 593, the judgment cited as 2016 (2) CPR Page 583 and 2015 (1) CLT Page 14. It is further contended by the learned counsel that the legal notice dated 2.8.2014 served by the complainant was replied by the Ops on 8.8.2014 and thereafter the present complaint has been filed by the complainant in the year 2018 and as such the present complaint is barred by limitation. It is also contended by the learned counsel for the complainant was having full knowledge and repeated messages through email, telephones were sent to the complainant regarding maintaining an average quarterly balance in her account. The abovesaid condition was also displayed on notice board of the bank. It is further contended by the learned counsel that the debited amount from the account of the complainant by the Ops is perfectly in accordance with the terms and conditions of the agreement and the same is sustainable in the eyes of law. It is also further contended by the learned counsel that as a good service gesture and as a part of good customer service the bank has already reversed a total amount of Rs.78,876/- on 19.2.2014 in the account of the complainant. Therefore, the present complaint is without any merits and as such the same is liable to be dismissed.
14. We have duly heard the arguments advanced by learned counsel for both the parties and have also examined all the documents placed on record. It is a settled proposition of law that banking and financial services are covered by the term “services” in terms of Clause (O) of Section 2 (1) of the Consumer Protection Act, 1986. In the present case, since the complainant has availed banking service and as such the complainant is a consumer in terms of the definition of consumer as provided in Section 2 (1) of Consumer Protection Act, 1986. Moreover, the complainant has availed the banking service for earning her livlihood and as such we are of the considered opinion that the present complaint is maintainable before this Forum. The facts of the judgments relied upon by the learned counsel for the OP bank are different and distinguishable from the facts of the present case and as such the same are not applicable in the present case. Vide letter dated 27.2.2017 the complainant has requested the Ops for refund of the remaining deducted amount to her. Thereafter, in response to the abovesaid letters the OP bank has suspended all the operations in the account of the complainant in question vide letter dated 10.11.2017 (Annexure C-4). We are, therefore, of the considered opinion that the present complaint has been filed within a period of limitation.
15. On merits, it is the case of the Ops that regarding the maintenance of average quarterly balance in her account the complainant was intimated several times through email, telephonically messages and through the tele-banking. Therefore, onus was upon the Ops to prove that the condition of maintenance of quarterly balance in her account was communicated to the complainant. However, the Ops has not produced any cogent, convincing or credible evience or any other document to prove that the abovesaid condition was communicated to the complainant before debiting the abovesaid amount from the account of the complainant. Terms and conditions of the opening of current account are placed on record. However, no such condition for maintenance of quarterly balance in the account of the complainant is mentioned in the same. The Ops have also not placed any evidence to prove that prior notice was given to the complainant before debiting the abovesaid amount from the account of the complainant. Therefore, we are of the considered opinion that the debiting of the abovesaid amount from the account of the complainant by the Ops is not justified. Moreover, the Ops have already reversed an amount of Rs.78,876/- in the account of the complainant from the total debited amount. Therefore, the lapse on their part have been admitted by the Ops. In view of the aforesaid discussion, we are of the opinion that the complainant has been able to prove deficiency on the part of Ops in rendering service to him. The present complaint is accordingly allowed.
16. From perusal of the account statement placed on record as Exhibit C-8, it is evident that an amount of Rs.1,32,522/- has been debited from the account of the complainant by the Ops. Moreover, the deduction of the abovesaid amount has been admitted by the Ops in their written statement. It is not disputed that an amount of Rs.78,776/- has already been reversed in the account of the complainant by the Ops. Therefore, the Ops are directed to refund the remaining amount of Rs.53,646/- (Rs. Fifty Three Thousand Six Hundred Forty Six only) to the complainant. The Ops are further directed for making a payment of Rs.10,000/- (Rs. Ten Thousand only) as compensation and litigation charges to the complainant. The present order be complied with within a period of 45 days, otherwise the amount shall carry an interest at the rate of 9% per annum for the default period. Copy of this order be supplied to both the parties free of cost. File be consigned to the record after due compliance.
Announced in open Forum. Dated:31.05.2019
(Raghbir Singh) President
(Jasvinder Singh) Member
