Order-38.

Date-16/10/2015.

In this complaint Complainant Rajesh Doshi by filing this complaint submitted that complainant received one sealed envelope containing a credit card issued in the name of the complainant having no. 51763580 10677143.But complainant never applied or asked for credit card from the op bank as because complainant was not interested to use the credit card, he requested the op bank to cancel and withdraw the credit card and in turn the official of the op bank advised complainant to retain the same without accepting or using the same and acting on the advice of the officials of the op bank kept the credit card and never used or availed of any benefit ancillary thereto.

Suddenly on or about 07.03.2006, complainant was shocked to receive one statement from the op bank claiming an amount of Rs. 8,201.02 paisa for purported use of smart pay facility to pay electric bill to the CESC Ltd., and complainant categorically denied all and submitted that he never applied to the op for granting smart pay facility and never instructed the op bank to pay CESC Ltd. or to anybody utilizing the smart pay facility.So, complainant issued a number of letters in this respect to the op bank and dropped the same in the drop boxes for letters and bills of the op bank but op bank never received any reply.But at last complainant issued a letter dated 04.05.2006 to the op bank stating the aforesaid facts and denied the claim of the bank.

But op bank instead of properly considering the grievance of the complainant, op bank raised another bill demanding payment of Rs. 2,070/- and vaguely stated that the said credit card account was not in regular status as such request for HDFC Bank could not be processed. Most interesting factor is that complainant never requested the op to provide smart pay facility.

Thereafter complainant issued a number of letters to the op bank but that did not get any result and on 11.08.2006 complainant received another statement demanding payment of Rs. 28,557.79 paisa for payment using smart pay facility.

Complainant after receipt of the statement dated 11.08.2006 met several officials of the op bank and on enquiry came to know that bank officials forged his signature in the application for activation of smart pay facility.Immediately complainant lodged a complaint on 25.08.2006 before Officer in charge Burrabazar Police Station.

Complainant continued interaction with the officials of the op bank regarding the aforesaid issue and as a result of continued persuasion the op vide letter dated 21.09.2006 informed the complainant that three bills amounting to Rs. 8,190/-, Rs.5,400/- and Rs. 1,060/- were paid to CESC Ltd.

On receipt of the said letter complainant on enquiry found that the op paid to CESC Ltd. electric bill of one Abanindra Churan Law for the month of January 2006 to March 2006.So, it transpires that the op bank paid a third party.s already paid bill to CESC Ltd. from the account of complainant without the consent of complainant by forging signature in the application for providing smart pay facility and also become liable for unauthorised withdrawal from the account of complainant.

Thereafter complainant through his counsel intimated the aforesaid facts to the op bank vide letter dated 25.08.2007 and in reply to the said letter op in the letter on 20.11.2007 admitted that they paid the electric bill of Abanindra Churan Law but again falsely stated that the smart pay facility was incorporated on the credit card of complainant on the basis of duly signed application form.However, complainant never signed any application for providing smart pay facility.

Subsequently in response of such communication the op bank vide letter dated 02.02.2011 intimated that they exercised their right of lien by debiting an amount of Rs. 28,587.79 paisa from the savings bank account of the complainant to mitigate the due on account of smart pay.Thus op bank illegally withdrawn the amount of Rs. 28,587.79 paisa with the consent of the complainant and the bill was paid illegally when it was not the bill of the complainant.Finding no other alternative complainant filed this complaint before this Forum for causing mental harassment, anxieties and also for adopting some unfair trade practice by the op and also for redressal.

On the other hand op by filing written statement submitted that the entire allegation is false.Admitted position is that the credit card being no. 5716358010677143 as admitted by the complainant was issued to the complainant as per request of the complainant and complainant is bound by the important terms and conditions of the said credit card.Complainant used the credit card but neglected to pay the monthly due with malafide intention and repeatedly defaulted in paying the bills.Regular monthly statement were sent to the mailing address of the complainant.But complainant brought concocted story with malafide intention to file this case and only for escaping this liability false stories are made purposefully to harass the op.

Another factor is that complainant signed the credit card application form and thereafter the credit card was issued to the complainant and if actually complainant was not interested to use the same, in that case complainant can file such application before bank for cancelling the same.But complainant never returned the said credit card to the bank.

Further complainant was opted for smart pay facility by putting his signature on the smart pay application form vide its letter dated 10.07.2006 that his credit card has been cancelled on 10.07.2006 and there is no question of forging sector of the complainant in smart card application form.Further op bank informed the complainant through its letter dated 21.09.2006 that 3 bills of CESC Ltd. was paid by the bank.Fact remains that the complainant used the electric meter of Abanindra Churan Law as because complainant submitted the electricity bill and other document of Abanindra Churan Law before the bank with smart pay application form and by a letter dated 25.08.2006 complainant wrote a letter to the bank and complainant stated that there is no electricity connection in his name and as such the question of making electricity payment through smart card can not arise at all, but that is completely false.

Moreover complainant sent letter dated 20.11.2007 that was replied by the op and fact remains that Abanindra Churan Law is the landlord of the complainant and complainant is tenant under Abanindra Churan.Truth is that complainant enjoyed the privileges of the said cards and failed to pay the dues from time to time and the statement was referred and reported to the complainant and bank always intimated the customer its liability to pay vide its lien notice on 13.07.2006 and in the said notice it was also mentioned that complainant failed to make payment within 28.07.2006 then Rs.27,742.78 paisa would be deducted from his account and it is also to be mentioned that as per the MITC the op bank at any time and without notice to the complainant.Moreover op has submitted that the entire complaint is false and fabricated.In the result, op has prayed for dismissal of this case.

                                            Decision with reasons

On proper consideration of the argument as advanced by the Ld. Lawyer of complainant and also considering the argument as advanced by the Ld. Lawyers of op, further the complaint and written version, it is admitted fact that there was a credit card in the name of the complainant that is admitted and no. of the said credit card is 5716358010677143 and it is proved that the bank confirmed the complainant vide their letter dated 11.08.2006 that his credit card was cancelled on 10.07.2006.But no complaint is filed within two years from 10.07.2006.So, apparently the present complaint is barred by limitation u/s 24A of C.P. act 1986.

In the present case Ld. Lawyer for the complainant submitted that the smart pay application form was manipulated by the staff of op bank and the signature of the complainant was forged and that smart pay card in the name of the complainant was used and electricity bill of Abanindra Chuarn Law was paid.So, in this regard ultimately to determine the disputed signatures of the complainant in the smart pay application, matter was referred to CID West Bengal, Bhabani Bhawan at QDUB Department for expert opinion in respect of disputed signature in smart pay application form and the signature collected by this Forum from the complainant and it was referred and ultimately a report from the CID(WB) is received and question document was received by this Forum on 05.08.2015 and the said report was examined by the complainant.s lawyer and also the Ld. Lawyer for the op and from that report it is found that in the original smart pay application form, it is found that it was received by HDFC Bank on 15.11.2005 and there was a signature of the complainant and complainant challenged it and on 15.11.2005 complainant submitted card for smart pay and that was also received by the op on 15.11.2005.

Further copy of the electricity bill of Abanindra Churan Law was also submitted by the complainant and there is signature of complainant as allowed by the bank that the signature was also sent for verification by the CID of West Bengal.After verifying all question documents and the subsequent signatures taken by this Forum on 25.10.2015 were sent to CID Question Document Examination Bureau and report is received and after comparing the report, it is found that the signature in the CESC bills are signature of the complainant that has been proved and signature in the smart card and also in the application form are also of the complainant.But he signed it with separate style because specimen signatures were of different mode.

So, considering all the above fact, it is clear that all the documents which are challenged by the complainant that same were manufactured by the bank is proved a false story and same were no doubt the signature of the complainant.So, it is clear that complainant brought such false allegations against bank that bank manufactured his signatures is completely false and fabricated.

Whatever it may be it is proved from complainant.s own letter that complainant.s credit card was cancelled long back on 10.07.2006.Electricity bill was submitted by the complainant is proved for payment through smart pay.Smart pay application form was submitted by the complainant.So, we are convinced that the allegation of that signatures were manufactured by the op is not only false and fabricated but after it is after thought after lapse of 7 years from the date of closer of the entire credit card account or complainant got the demand notice on 13.07.2006, the deduction was made within that month that is June-2006, then cause of action arose in the year 2006.Thereafter complainant was sitting idle on the ground that he was satisfied that he did it.Bill was not automatically went to the hand of the op bank through any pigeon.But it was submitted by the complainant after placing signature that has been confirmed by the CID Question Document.

So, we do not find any legality or any sort of adopting unfair trade practice by the op bank.Signatures of the complainant was not forged but in fact complainant used the smart card for payment of the said bill and admitted position is that complainant is a tenant of Abanindra Churan Law but he has no separate electric connection for that reason he is bound to pay electricity bill which is consumed by the complainant as a tenant of Abanindra Churan Law as electric meter was in the name of Abanindra Churan Law.But at this stage we are not entering any other matter in view of the fact it is proved that this complaint is barred by litigation and in view of the fact cause of action arose on 13.07.2006.But complainant did not file any complaint within 2 years from the said date that means complainant ought to have been filed by 14.07.2008.

But peculiar factor is that this complaint was filed after hiring bad brains on 10.11.2013.But at the time of filing this complaint any application u/s 24A of C.P. Act was not filed for condonation of delay and in fact there is no scope to file such application in view of the fact under any circumstances 7 years delay cannot be condoned.

In the light of the above observation we are convinced to hold that this complaint is completely barred by limitation as per Provision of 24A of C.P. Act and at the same time we are confirmed that this complaint is false and vexatious complaint on the ground that the signatures and application etc. was not forged by the bank employees is proved so as vexatious and false and fabricated complaint same fails.

In the result, this complaint fails.

Hence, it is

                                                     ORDERED

That the complaint be and the same is dismissed on contest against op with penal cost of Rs. 10,000/- and complainant shall have to pay such penal cost before this Forum within one month from the date of this order, failing which interest at the rate of 9 percent p.a. shall be assessed over the same till full payment or realizing of the said penal cost by this Forum.

Complainant is directed to comply this order very strictly failing which penal action shall be started u/s 25 read with 27 of C.P. Act 1986, for realizing the same.