CONSUMER DISPUTES REDRESSAL FORUM-II

UDYOG SADAN, C-22 & 23, QUTUB INSTITUTIONAL AREA

(BEHIND QUTUB HOTEL) : NEW DELHI – 110016.

                                Case No. 354/12

Ms. Archana Popli,

C-79, GF, Malviya Nagar,                     

New Delhi.                                                     - Complainant

Vs

1. Branch Manager,

    (Axis Bank)

    K-12, Green Park Market,

    New Delhi – 110016.

2. Axis Bank Head Office,

    Axis Bank Ltd.,

    Corporate Office,

    Bombay Dyeing Mills Compound,

    Pandurang Budhkar Marg,

    Worli, Mumbai – 400 025.                           - Opposite Parties

                                                                                                                                          Date of Institution: 06.07.2012

                                                  Date of decision:    07.09.2015

Coram:

N.K. Goel, President

Naina Bakshi, Member

                                      O R D E R

          The  case of the complainant, in nutshell, is that she has opened a salary account #911010053844251 at the OP Bank; that on 30.12.2011 a debit of Rs. 20,291.44 was made from her account without her prior knowledge, intimation and information and on inquiry she was told by the OP that the amount had been deducted in respect of some previous outstanding payment in connection to her credit card 4718630100195139.  On her pursuation she was told that an amount of Rs. 3,990.86 stood due in her credit card account in the year 2007 which had finally got accumulated to Rs. 20291.44 in December 2011.  She was not given any satisfactory reply but was told that the General Lien had been created under Section 171 of Indian Contract Act, 1872.  Therefore, pleading breach of trust and discrepancy in the service of the OP Bank staff the complainant has filed the present complaint for issuing directions to the OP to refund the debited salary amount and to pay compensation for mental harassment to her.

        The case of the OP is that the Credit Card no. 4718 6301 0019 5139 had been issued to the complainant by the OP Bank and that retail transactions amounting to Rs. 3990.86 were incurred on the credit card during the year 2007 by the complainant but no payment was made by the complainant to the Bank despite several requests made by the OP Bank; that thereafter the complainant’s saving bank account was debited  with Rs. 20,291.44 in December 2011 towards her credit card outstanding including Service tax amounting to Rs. 897.92, Annual fee and Joining fee which the OP Bank was competent to do in exercise of its right to lien as per Clause 31 of the Card Member Agreement  of the credit card in question which reads as under:

“In the event of delay or inability to settle your credit card outstanding as provided in this Agreement for any reason whatsoever, the Bank may exercise its right of General Lien and/or set off and adjust any such outstanding against a property or asset (both movable and immovable) in possession of the Bank from time to time including but not limited to amounts lying in fixed deposits and or in other accounts with the Bank, property assets (both movable and immovable) securities stocks, shares, monies and the like of the primary card member and the add on card member(s) that are or may be in the possession of the Bank from time to time, irrespective of them or any one or more of them being held in safe custody by the bank or otherwise.”

It is stated that due to non-payment despite issuance of letter dated 22.12.2011 POD No. DB2037404 through BSA North couriers  at the address of the complainant available in the Bank record she was duly informed about the creation of the lien but neither she replied to the letter nor paid the outstanding amount and, hence, deduction in question had been made.  It is stated that the complainant has been replied to all concerns by way of emails and letter dated 2.2.2012.  The copy of such emails and letter are annexed herewith as Annexure-E & F (Colly)” (Para G of the Preliminary Submissions and Objections).  It is prayed that the complaint is false and be dismissed.

        Complainant has filed affidavit in evidence.  Affidavit of Sh. Anoop Kumar Sharma, Zonal Manager (Legal Support) has been filed on behalf of the OP.

        Written arguments have been filed on behalf of the Parties.

        We have heard the complainant in person.  No oral arguments have been advanced on behalf of the OP despite opportunity given in this behalf.  We have also gone through the file very carefully.

        Paras 5 & 6 of the affidavit of the complainant read as under:

“5.    That my ID and other proofs have been misused for the issuance of credit card while neither I have applied for any kind of credit cards nor I have signed any ID Proof and Agreement.

6. That I was never told about any pending dues against me and the same has been deducted from my Salary Account without prior knowledge, intimation and information to me.”

        OP’s witness has reiterated the averments made in the written statement.

        Annexure A is the copy of the Credit Card Statement in respect to Credit Card No. 4718630100195139 for the period 25.5. 2007 to 16.10.2012. Relevant portion of the statement dated 25.5.2007 reads as under:

The relevant portion of the statement dated 25.6.2007 reads as under:

In the statement dated 25.7.2015, previous balance has been shown as Rs. 5,334.93 along with Service Tax and late payment fees.  The previous balance, service tax and late payment fees have been increasing in every subsequent statement though the use of the credit card has not been shown after 6.8.2007. Previous balance of Rs. 20291.44 has been shown in the statement dated 25.12.2011.  It means that only the previous balance, service tax and late payment fees have been increased month by month.  We fail to understand as to when the Credit Card in question had not been used after 6.8.2007, how could and under what provision of law OP Bank was entitled to charge the Service tax @ 12.36% till 25.12.2011.

        The copy of the Card Member Agreement is Annexure B.  We must say at once the OP’s Annexure B is not legible and we are unable to read it.  Therefore, we do not feel it safe to place any reliance on the copy.  Even otherwise, as we shall discuss herein below clause 31 of the Card Member Agreement will not come to the rescue of the OP.  Annexure C is stated to be the copy of letter dated 22.12.2011 by the OP to the complainant thereby intimating her about the Credit Card dues amount to Rs. 20291.44.  However, the mode of delivery of the said notice is not pleaded nor proved.  In any case, the case of the complainant herself is that she had received the said intimation on 30.12.2011.

        As stated hereinabove, the case  of the complainant in her affidavit is that her ID Proof had been misused for issuance of Credit Card.  According to the OP, the Card application Form along with ID Proof of the complainant is Annexure D.  Annexure D consists of a copy of an application Form No. 2202955 of UTI Bank.  From a perusal of it, it transpires that the complainant had applied for issuing the Card with the UTI Bank. ID  Proofs contain the copy of the Passport and Tax Return, Renewal Premium Receipt of LIC etc.  Application Form clearly demonstrate that the complainant had  applied for issuance of a Card to UTI Bank and not to OP Bank.  Therefore, we do not feel any hesitation in holding that it is the OP Bank who has in fact played a serious fraud upon the complainant and had wrongly debited her salary account.

        According to the OP witness, Annexure E & F are the copies of E-mail and letters. According to Email Message dated 2.2.2012 (6.21 p.m.), the OP Bank had informed the complainant that “as per records, your credit card along with the welcome kit was sent to you at C 79, Ground Floor, Malviya Nagar, Near SBI Bank, Delhi 110017 which is not disputed by you”.  Thus, according to the OP, the credit card had in fact been sent to the complainant by post.  In subsequent Para of the same message, it has been stated that the credit card statement had been rightly dispatched and delivered to the complainant at her mailing address mentioned in the credit card application form. As stated hereinabove, the credit card application form is of UTI Bank and not of Axis Bank.  Therefore, the question of sending any such credit card to the complainant or dispatching of the credit card statement to her could not and did not arise.

            In view of the above discussion, we hold that the OP besides being guilty of adopting fraudulent activity has also committed gross deficiency in service.  Therefore, we allow the complaint and direct the OP to refund the debited amount of Rs. 20291.44 to the complainant alongwith 6% interest from 30.12.2011 till date of realization and Rs. 25,000/- as compensation towards mental pain and harassment within 30 days from the date of receipt of  copy of this order failing which the OP shall become liable  to pay Rs. 20291.44 along with interest @ 12% p.a. from 30.12.2011 till the date of realization.  

         Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

(NAINA BAKSHI)                                                          (N. K. GOEL)      MEMBER                                                       PRESIDENT

Announced on 07.09.15.

Case No. 354/12

07.09.2015

Present –   None

            Vide our separate order of even date pronounced, the complaint is allowed and the OP is directed to refund the debited amount of Rs. 20291.44 to the complainant alongwith 6% interest from 30.12.2011 till date of realization and Rs. 25,000/- as compensation towards mental pain and harassment within 30 days from the date of receipt of  copy of this order failing which the OP shall become liable  to pay Rs. 20291.44 along with interest @ 12% p.a. from 30.12.2011 till the date of realization.   Let the file be consigned to record room

(NAINA BAKSHI)                                           (N. K. GOEL)

MEMBER                                                       PRESIDENT