DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

P U R U L I A

CONSUMER COMPLAINT NO 19 OF 2021

Present

1. Sri Rabindra Nath Malik, Hon’ble President.
2. Sri Rituraj Dey, Hon’ble Member.
3. Smt. Mala Basu(Chakravorty), Hon’ble Member.

                                                                                    Date of filing: 22^nd  March 2021

                                                                                          Date of Order: 23^rd September 2022

     Petitioner                                                                          Opposite Party (s)

Ramesh Kumar Singhania,                                                 ICICI Bank Limited, Purulia Branch,

Prop. of Farm M/S Ramesh Kumar Singhania,              Through its Branch manager, Ranchi Road,

R/o- R.B.S.C Sinha Road, Near Rasmaidan,                     PO, PS & Dist- Purulia.

R/O- Munsiffdanga, PO & PS- Purulia,                              

Purulia

                                                                                                                                                                                                                        For the Complainant                                    : Sri S. Shaw, Advocate.

For the O.P.                                       : Sri B. Chandak, Advocate.

Sri Rabindra Nath Malik, (Hon’ble President).

This is a case under Section 12 of the Consumer Protection Act, 1986 corresponding to Section 35 of C.P. Act, 2019.

This case arose on the basis of a petition filed by Ramesh Kr. Singhania, Proprietor of the Firm M/S Ramesh Kr. Singhania situated at RBSC Sinha Road, near Rasmoidan Purulia, and registered Office Munsiffdanga, PO, PS and Dist.- Purulia, hereinafter referred as Complainant against ICICI Bank Limited Purulia Branch represented by its Branch Manager, Office at Ranchi Road, PO, PS and Dist.- Purulia.

Fact of the case in a nutshell is that the complainant being a businessman dealing the wholesale business of edible oil under the name & style MS Ramesh Kr. Singhania opened a current account on 04.06.2019 in the OP/Bank with an assurance that no service charges such as service charges on RTGS/NEFT/Cash Deposit/Cash Handling and other services shall be debited from said account. If any guideline is issued by the RBI for any types of aforesaid service charge apply in respect of the accounts in the nature of the account of the complainant. Then prior intimation shall be given to him. Since, the opening of his account i.e. from the year 2009 to 2019 the complainant used to make his transaction with the OP/Bank very smoothly without any hidden charges or any kind of deduction for any kind of Bank service charge from the account of the complainant. In the last week of March 2020 he checked his account statement and noticed that on 23.03.2020 a sum of Rs. 1,04,235.30/- has been deducted from his account as cash deposit charges. After knowing said fact he contacted with the Branch Manager of the OP/Bank and requested him to assign the reason for such deduction. Then the Branch Manager of the OP/Bank told that it may happen due to some technical fault and assured him that they shall check and get necessary correction and reverse the said amount but it might take some time. At that time Branch Manager OP/Bank requested the complainant to have patience and not to complain in black and white over that issue before the Higher Authority. Relying upon the aforesaid assurance of the Branch Manager OP/Bank he waited for the same and after lapse of two months when the complainant did not get any appropriate action in respect of his complaint, he submitted written complaint before the OP/Bank on 01.06.2020. Thereafter, after making said complaint the complainant noticed that further sum of Rs. 75,862.20/- and Rs. 90,890.49/- were also deducted from his account on 29.06.2020 as cash deposit charges April ‘20 + GST and cashdep charges May ‘20+GST. Then complainant again contacted with the opposite party and expressed his grievance against said deduction and also submitted a written complaint at the office of the OP/Bank with a request to let him know the reasons for said deduction and with request to reverse the same immediately. On receipt of said complaint the Branch Manager OP again assured him that they would solve the problem immediately and all deductions shall be reverted immediately. Thereafter, after lapse of reasonable time seen the inaction on the part of the op the complainant lodged a complaint before the Banking Ombudsmen through E-Mail on 12.08.2020. Sri Suman Chakaraborty of Banking Ombudsmen then through mail replied the complaint on 03.12.2020. on 07.10.2021 at about 12:14 p.m. the complainant get an E-mail from the Office of Banking Ombudsmen and came to know that his complaint has been closed by the Banking Ombudsmen under Clause 11 (3)(c) of BOS 2006 and also informed the complainant that if the complainant is not satisfied with the decision of Banking Ombudsmen then he is at liberty to approach before any other authority under law for redressal of his grievance and remedy. As a result, the complainant finding no other alternative moved before this Commission by submitting written complaint on the allegation that the very conduct of the OP/Bank clearly suggest that the OP/Bank has deficiency in service as service provider towards its consumer/customer. Deliberately, not exercising sincere effort to assign any reason and not refunding back the amount illegally debited from the account of the complainant. The very act of the OP caused physical and mental harassment of the complainant as well as caused suffering of mental pain and agony. As the OP Bank for the first time debited money from the account of the complainant on 23.03.2020 and thereafter on 29.06.2020 from the account of the complainant within the jurisdiction of this Commission has filed this case before this Commission praying for the relief directing the OP/Bank to refund the debited amount i.e. Rs. 1,04,235.30, Rs. 75,862.20 and Rs. 90,889.50 i.e. in total 2,708987/- along with interest thereon from the date of debiting said amount to till the date of repayment with further prayer to direct the OP/Bank to pay Rs. 1,00,000/-, Rs. 25,000/- and Rs. 1,00,000/- to the complainant towards compensation for harassment and mental pain of the complainant, towards litigation cost of the complainant and towards fine for unfair trade practices respectively.

Hence this case.

The OP/Bank has contested this case by filing written version wherein OP denied the all allegations made by the complainant in the petition of complaint contending inter alia that the complainant has filed this case under Section 12 of the C.P. Act 1986 but said Act has been repealed. This case ought to have filed under Section 35 of the C.P. Act as per Section 2(6) of the C.P. Act. The complainant must be a consumer as per Section 2(7) of C.P. Act. There is no deficiency in service on the part of the OP/Bank and as such this case is not maintainable before this Commission. All the allegations made by the complainant are contrary to each other as well as inconsistent. The complainant has filed this case suppressing the material fact and as such this case is liable to be dismissed. The facts remains that the OP Bank is a scheduled commercial Bank established under the Banking Regulation Act 1949 and is guided by the Rules, Regulations and Circulars of the Reserve Bank of India. The Bank deals in accepting deposits and advancing loans on various products on an appropriate application and required documents subject to its satisfaction. The complainant opened and was maintaining a current A/c being No. 090405500002 with the OP/Bank. The complainant opened said product variant being a High Net worth Individual Current Account but subsequently based on the transaction pattern and the balance maintained in the said account the product variant was altered into a HNICD current account. As a result, the disputed charges were incurred against his account as per terms and conditions and said fact was duly communicated to the complainant through e-mail on 19.12.2019. The complainant himself pointed out that said charges were incurred from 12.03.2020 which was long after said e-mail communication dated 19.12.2019.Apart from that as per Section 2(7) of the C.P. Act the complainant is not a consumer as he is dealing with the business of buying and selling of goods. Before deduction of said charges from the account of the complainant, he was duly communicated and said communication was done on 19.12.2019 through e-mail. As the complainant himself admitted that he moved before the Banking ombudsmen for redressal of his dispute of his case and the Banking Ombudsmen has been pleased to close this issues. The OP by stating all these submitted that in view of the aforesaid facts and circumstances this Commission has no hesitation to hold that this case is not maintainable either in law or in facts and as such it is liable to be dismissed. So this case shall be dismissed with cost.

On scrutiny of the record it appears that the complainant in support of his claim relied upon the following documents viz:

1. Photocopy of statement of account in respect of his account (Annexure-A)
2. Photocopy of Letter of request dated 29.05.20 submitted by the complainant to the OP(Annexure-B)
3. Photocopy of transaction enquiry in respect of his account (Annexure-C)
4. Photocopy of Letter of request dated 01.07.20 submitted by the complainant to the OP(Annexure-D)
5. Photocopy of e-mail dated 12.08.20 forwarded to S.Chakravarty sent by the complainant and reply of said mail by S.Chakravarty (Annexure-E)
6. Photocopy of e-mail dated 01.02.21 forwarded by Banking Ombudsmen, Kolkata  to the Complainant(Annexure-F)

         On the contrary the OP Bank in support of its contention relied upon the following documents viz:

1. Photocopy of Account opening form duly signed and fill up by the complainant (Annexure-1)
2. Photocopy of one e-mail forwarded by the OP to the complainant(Annexure-2)
3. Photocopy of one e-mail forwarded by the OP to the complainant dated 11.11.20 (Annexure-3)

      Considering the claim of the and counter claim of the parties w are of the opinion that to decide the dispute of the case we have to consider the following points.

1. Is this case maintainable in its present form, law and facts?
2. Is the complainant consumer as defined in Section 2(7) of C.P.Act?
3. Has the complainant successfully able to prove his case?
4. Is the complainant entitled to get the relief as prayed for?
5. What other relief or reliefs is the complainant entitled as per law and equity?

Decision with reasons

 All the five points are taken up for the convenience of discussions and for brevity.

Complainant claims that he being an account holder under OP/Bank is a consumer under the OP/Bank. The OP/Bank without having any cogent ground and without giving any intimation to the complainant debited huge amount of money from account of the complainant. The complainant while came to know about the fact of debiting huge amount of money from his account, he rushed to the OP/Bank and talked with the Branch Manager of the OP/Bank. The Branch Manager OP/Bank assured him to revert the amount debited from his account with plea that it might have caused by the fault of the machinery.   Thereafter despite of reverting said amount the OP/Bank once again for two occasion debited huge amount of money from his account. As the OP Bank debited said amount of money from the account of the complainant without having any reason for doing so failed to reversed money to the account of the complainant, the OP Bank has deficiency of service towards its consumer i,e the complainant .So the complainant is entitled to get all the reliefs as prayed for in the petition of complaint.

OP/Bank denied the same stating that the complainant opened his current account at the OP/Bank and was dealing said account exclusively for the commercial purpose. Therefore, in view of Section 2(7) of the C.P.Act 2019 is not at all consumer. Accordingly this case is not maintainable under the provision of C.P.Act or for the matter this Commission has no jurisdiction to try this case. The OP suppressing the actual fact has filed this case fabricating a false story a false story and trying to mislead the Commission. The complainant was well aware about the fact of conversion of his account into HNICD Current account as well as the norms of said account i,e the holder of said account has to pay charges for dealing said account. As per norms of Reserve Bank of India regarding HNICD current Account the OP/Bank debited the relevant charges from the account of the complainant .So no question arises for reversing the debited amount to the account of the complainant. So as to no question arises for holding that there was deficiency of service on the part of the OP/Bank as alleged by the complainant.

Now let us decide the aforesaid rival contention of the parties. At first we have to discuss whether the complainant is a consumer under the provision of Section 2(7) of C.P. Act 2019.

Let us see what is Section 2(7) of the C.P.Act. Section 2(7) of C.P. Act defined consumer as –Consumer means any person who-

1. Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose;

2. Hires or avails any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the service for consideration paid or promised, partly paid and partly promised or under any system of deferred payment, when such service are availed of with the approval of first mentioned person, but does not include a person who avails of such service for any commercial purpose.

Explanation- For the purpose of this clause:-

1. The expression “commercial purpose” does not include use by a person of Goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self employment,
2. The expression “buys any Goods“ and “hires or avails any services“ includes offline or online transaction through electronic means or by teleshopping or direct selling or multi-level marketing.

Ld. Advocate for the OP by placing her reliance upon the decision of the NCDRC ,New Delhi, in the case of Punjab National Bank & 2 others –vs- Sant Ram Harbans Lal decided on 07.04.2016 argued that in that case the Hon’ble NCDRC has been very clearly observed that the holder of a current account who opened said current account for a commercial purpose is not a consumer under Section 2(1)(d)of the C.P.Act 1986. That consumer has been defined in the Act of 2019 in section 2(7) in toto as defined in Section 2(1)(d) of the C.P.Act 1986.

On the contrary Ld. Advocate for the complainant by placing his reliance upon the decisions of the Hon’ble NCDRC, New Delhi in the case of M/S V and S International(P) Ltd -vs- Axis Bank, decided on 09.05.2019 and the decision of Hon’ble WBSCDRC ,Calcutta in the case of  Debabrato Mukherjee -vs- Allahabad Bank, decided on 16.02.1998, strongly opposed the argument advanced by the Ld. Advocate by the OP. Ld.Advocate for the complainant submitted that the Hon’ble NCDRC, New Delhi, in its judgement dated 09.05.2019 in the case of M/S V and S International(P) Ltd -vs- Axis Bank very clearly and categorically discussed and hold who is consumer under Section 2(1)(d) of the C.P.Act 1986 .There is no dispute that there is no difference regarding definition of consumer either under Section 2(1)(d) of the C.P.Act 1986 or under Section 2(7)of the C.P. Act 2019. So this Commission has no hesitation to hold that the complainant is consumer as defined in C.P.Act both the Acts 1986 and 2019.

We have also gone through the above referred decisions sited by the both sides and having given respectful consideration on the observation of the Hon’ble NCDRC, New Delhi in the case of M/S V and S International (P) Ltd -vs- Axis Bank and the definition of consumer as defined in Section 2(1)(d) of the C.P.Act 1986 and in Section 2(7)of the C.P. Act 2019, we are constrained to hold that the complainant is a consumer under the OP Bank. Regard being had to the observation made by the Hon’ble NCDRC, New Delhi in the case of Punjab National Bank and 2 others –vs- Sant Ram Harbans Lal decided on 07.04.2016,though it is found that it has been observed that the respondent being holder of a current account under Appellant Bank is no doubt opened his account for commercial purpose and therefore he is not consumer as defined in Section 2(1)(d) of the C.P.Act 1986.But in view of the observation made by their Lordships of the Hon’ble Appex Court in the case of Karnataka Power Transmission Corporation and Another -vs- Ashok Iron Works Pvt.Ltd , III(2009)CPJ 5 (SC)I  and Laxmi Engineering Works –vs- PSG Industrial Institute 1995 SCC(3) 583, it is crystal clear to this Commission that the complainant is consumer though he is the holder of current account.    

Ld. Advocate for the OP argued that the complainant has filed this case under the provision of Section 12 of C.P.Act 1986 on 22.03.2021 when the C.P.Act 1986 has been repealed and C.P.Act 2019 has been introduced .So the complainant ought to have filed this case under the provision of Section 35 of C.P.Act 2019. Therefore, this Commission has no other option but to hold that this case is not maintainable either in its present form and law. So this case shall be dismissed on the ground of not maintainability.

Ld. Advocate for the complainant strongly opposed the aforesaid submission of the Ld. Advocate for the OP and argued that it is mere misquotation of law and Section. Merely on the ground of misquotation of law and section the instant case of the complainant cannot be dismissed on the ground of not maintainability as because it is well settled principles of law that misquotation of section or law does not affect the merit of the case.

Having given respectful consideration on the argument advanced by the Ld. Advocate of both sides and considering the present position of law we are agreed with the submission of the Ld. Advocate for the complainant. Therefore we have no hesitation to hold that this case is not maintainable either in its present form or law as argued by the Ld. Advocate for the OP. So no question arises for dismissal of this case on ground of maintainability.

Now let us consider whether the complainant has been able to prove the very fact that a huge amount of money has been debited by the OP/Bank from the account of the complainant without having any reason and without giving any intimation to him.

On scrutiny of the petition of the complaint as well as the documents produced by the complainant (Annexure-A and C) we found that the OP admitted the very fact of debiting the amount of Rs.1,04,235.30/-, Rs.90,889.50/- and Rs.75,862.20/- from the account of complainant on 23.03.20, 29.06.20 and 29.06.20 as cashdep charge February ’20, May ’20 and April ’20 plus GST. The OP Bank by filing written version admitted that the aforesaid amount has been debited and the same has been debited with prior intimation to the complainant that his account product variant was altered into a HNICD current account and charge was debited as per guided rules of the Reserve Bank of India. Therefore we have no hesitation to hold that the complainant has been successfully able to prove the very fact t6hat the OP Bank has deducted or for the matter debited said amount from his account. The only dispute in between the parties that is the complainant claims that said amount of money has been deducted/debited without giving prior intimation to him and without having any cogent ground or reason. On the contrary the OP claims that before debiting said amount proper intimation was given to the complainant through e-mail and said amount of money was debited as charges for the maintenance of the complainant’s new variant HNICD current account as per circular of the Reserve Bank of India.

Now let us see how far the OP has been able to prove the aforesaid facts i,e prior intimation was given to the complainant before debiting his account through e-mail and said amount was debited as per circular of the Reserve Bank of India.

On scrutiny of the record it is found that OP by filing the written version contented that on 19.12.19 the complainant was communicated through e-mail about the change of nature of his current account and the charges may be incurred for said account. The OP craved leave to produce copy of said e-mail during hearing of this case. It further appears from the order sheet that the Ld. Advocate for the OP during argument took several dates for production of said document but finally failed to produce the same. Same as to the OP through its written version craved leave of production of the circular of the Reserve Bank of India by the strength of which the nature of the current account of the Complainant has been changed and charges for said account may be incurred. But it is very unfortunate that in spite of taking several dates the OP failed to produce any such circular of the Reserve Bank of India.

Therefore, regard being had to the aforesaid facts and circumstances we are constrained to hold that the OP has been miserably failed to prove its plea of alleby that before debiting the amount of money for the first time from the account of the complainant, the complainant was informed about the change of nature of his current account as well as changes account may incur charges. In other words it can be said that the complainant has been successfully able to prove the very fact that forte first time on 23.03.20 amounting to Rs.1,04,235.30/- was debited from his current account without giving any intimation to him showing any reason for such debit. In view of the above facts and findings we have also no hesitation to hold that the OP bank has been miserably proved that the OP bank was compelled to change the nature of the current account of the complainant and debited charges for the changed account as per directives of the Reserve Bank of India. So we have no hesitation to hold that the complainant has been successfully able to establish that the OP Bank without having any cogent reason changes the nature of his current account and debited charges against said account.

The complainant claims that after debiting said amount he initially requested the OP/Bank for reversing said amount and being assured by OP/Bank he did not make any complain to the Authority black and white. Subsequently the complainant made written complaint to OP and thereafter he was compelled to move before the Banking Ombudsmen for redressal of his dispute while the OP Bank remained silent regarding redressal of his dispute. Thereafter the Banking Ombudsmen after making necessary enquiry closed the complaint under the provision of clause 11(3)(c) of the Ombudsmen Scheme for BO 2006 advicing the complainant for taking shelter before appropriate forum. Then the complainant filed this instant case before this Commission.

On scrutiny of the record it appears that Annexure-B,D,E and F clearly corroborates the aforesaid claim of the complainant.

As it is observed by this Commission the complainant is a consumer in respect of dealing his account lying with the OP/Bank. The OP/Bank without prior intimation to the complainant debited huge amount of money from his account being no. 090405500002 through three transactions dated 23.03.20 and 29.06.20 on account of cashdep charge for February 2020 April 2020 and May 2020 plus GST without informing the complainant on the alleby that the nature of the current account of the complainant has been changed subject to incurred charges. The OP/Bank did said act in its whims as the OP/Bank failed to prove that OP/Bank did the same being compelled by the directives of Reserve Bank of India. After occurrence of said incidence the complainant severally requested to refund said money by way of crediting his account but OP/Bank pay no heed to his request. So there is no hesitation to hold that the very act of OP/Bank amounts to deficiency of service towards its consumer that is complainant and unfair trade practice.

Therefore considering the actual facts and factual circumstances as we discussed and observed we are of the opinion that this case is maintainable in its present form, law and facts, the complainant is a consumer as defined under Section 2(7) of C.P.Act 2019 or for the matter Section 2(1)(d) of the C.P.Act 1986, the complainant has been successfully able to prove his case and as such the complainant is entitled to get the relief as prayed for. Considering the relief prayed for by the complainant we are of the opinion that as the relief sought for by the complainant covers all the reliefs he is entitled as per law and equity, so we do not find the complainant is entitled to get any other relief besides the reliefs specifically prayed for by the complainant.

Accordingly all the points are disposed of.

In the result this case merit succeeds.

Hence,

ORDER

that this consumer complaint case be and the same is decreed on contest against the OP . The complainant do get decree for refund of Rs. 270987.00/-(Rs.104235.30+ Rs.75862.20 + Rs.90889.50) along with interest @9% p.a from the date of debiting of each amount to till the date of refund, the complainant do get decree for compensation for Rs.1,00,000/-for his physical and mental harassment ,Rs.25000/- towards litigation cost and Rs.1,00,000/- for unfair trade practice .The OP is hereby directed to refund/credit Rs. 270987.00/- along with interest thereon @9% p.a from the date of debiting of each amount to till the date of refund/credit. The OP is hereby further directed to pay Rs.1,00,000/- towards compensation for physical and mental harassment of the complainant, Rs.25000/- towards litigation cost and Rs.1,00,000/- for unfair trade practice, within 60days from the date of this judgment failing which the complainant is at liberty to put the decree in execution and the OP shall be liable to pay fine of Rs.100/- per day from the date of default to till the date of satisfaction of decree in favour of the Consumer Welfare Fund.