FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay    President.

Brief fact of this case:-This case has been filed U/s. 12 of the Consumer Protection Act   19 by the complainant stating that the petitioner had a salary account with the OP no. and was using the credit card of the OP no.1 bearing card no.43467720081865003.  Sometimes in the year of 2008-2009 a dispute cropped up and in that respect the OPs had withdrawn an amount of Rs.15  965/- from the petitioner  s salary account in Shakespeare Sarani Branch and the petitioner had met and contacted the officers of Shakespeare Sarani Branch   and they intimated “being dispute in the credit card the OPs withdrawn this amount and have nothing to do” and thereafter a demand notice was sent through the Ld. Advocate   but the OPs did nothing.  Thereafter the petitioner was constrained to file a consumer complaint case which was registered was C.C.no.1056/2009 and vide a judgment dated 10.05.2010 was pleased to direct the OPs to refund the disputed amount alongwith an additional cost towards compensation   litigation and being aggrieved with the said order dated.10.05.2010 the OPs had preferred an appeal before the Hon  ble State Commission   Kolkata   which was registered as F.A No. 571/2010 and after hearing the Hon  ble Commission was pleased to dismiss the said appeal vide Order no.8 dated 20.10.2022. 

The OPs being aggrieved had preferred a revision before the Hon  ble National Commission at New Delhi which was registered as RP no.4153/2011 and the same was dismissed vide order dated.25.08.2014.  The Hon  ble National Commission was pleased to uphold the judgment passed by the Ld. District Forum   Unit-II   Kolkata and the OPs had complied the order of this Ld. Forum and refunded the decreetal amount vide cheque no.041657 dated 25.09.2014 of Rs.32  000/- and in the year October 2018 for the business purpose of the petitioner had opened a current account at HDFC Bank at Uttarpara Branch   being Current Account no.50200034683795 and on 19.11.2018 the petitioner had deposited an amount of Rs.43  200/- and when the petitioner was trying to transfer the said amount the petitioner unable to do.  The petitioner had met with the concerned officers; however   officers of the OP no.1 informed that the same amount has been withheld towards non-payment of an outstanding in the credit card.

The petitioner send several reminders and request through e-mail from another e-mail from the petitioner relative and in this respect the OPs has replied.  However   on some pretext or to the other the OPs had failed to do their part and the petitioner made several request to the OP no.1 to take steps for release the said amount and further request that this account is not a saving account it  s the current account and in this pretext the petitioner  s business has hampered day by day and no transaction was made from this account.  However   on some pretext or to the other the OPs had failed to do their part and finding no other alternative on November 28^th   2018 had served a legal notice through the Ld. Advocate and on 4^th December   2018 the petitioner had received on sms from the bank that the said sum of Rs.43  200/- has been debited from the petitioner bank account.

Complainant filed the complaint petition praying direction upon the opposite parties to pay a sum of Rs.43  200/- which has been withheld from 19.11.2018 till date and to pay a sum of Rs.1  25  000/- for compensation towards undue harassment and mental agony and to pay sum of Rs.25  000/- for litigation cost.

Defense Case:-The opposite parties contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that in or about 28.11.2008   the complainant approached the OP bank for availing a credit card and represented that he would duly repay his dues in respect of such credit card without any demur   qualification and protest and in order to avail the credit card   the complainant submitted a duly executed application form alongwith relevant documents with the OP bank and pursuant thereto and believing in the representations made by the complainant   the OP bank issued one credit card bearing no.4346 xxxxxxxx 5003 in favour of the complainant.  The said credit card is governed by the card member agreement  of the OP bank.  The complainant became bound by the terms and conditions of the said card member agreement upon accepting   retaining and utilizing and said credit card and the complainant was using the said credit card.  The OP bank regularly raised statements which were duly received by the complainant.  Inspite of receipt of the Statement   the complainant failed and neglected to pay the amount raised towards the usage of the said card and as such as on July 2009 a sum of Rs.43417.61/- became due and payable under the said credit card.

As would be evident from the statement of account   the complainant used to make part payment of the bill amountand failed and neglected to clear the entire bill amount which attracted the imposition of delay and other charges as mentioned in the card member agreement and the complainant is trying to confuse the Forum by concocting the facts of the complaint filed by complainant in the year 2009   in CC 1056 of 2009 before the Ld. District Consumer Disputes Redressal Forum   Kolkata   Unit-II with the present complaint.  Earlier complaint was filed by the complainant due to dishonoring of cheque towards credit card dues in spite of having sufficient balance in the saving account   thereby charging dishonor charges the forum passed an order dated 10.05.2010.  Said order was later confirmed by National Commission in RP 4153 of 2011.  It is most humbly submitted that the OP bank had duly complied with the judgment and order dated 10.05.2010 and paid the ordered amount to the complainant.  However   post said order   the complainant failed to clear his outstanding against the credit card inspite of regular usage and due to non-payment of the credit card dues   the same kept on increasing.  Inspite of repeated reminders the complainant did not clear his dues.  Consequently the credit card of complainant was suspended on 28.02.2010.  It is hereby submitted OP bank holds the right to mark lien on the account of the complainant incase of default as per the terms and condition in the card member agreement and by virtue of the relevant clause on the card member agreement OP bank has the right of lien and set off.  Relevant clause is set out below :

It is agreed that the bank   at any time and without notice   will have a lien and right of set-off on all monies belonging to the cardmember and add-on cardmember standing to their credit in any account whatsoever with the bank or in the possession or custody of the bank.  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 cardmemberand add-on cardmember in the possession or custody of the bank whether for safe keeping or otherwise   including but not limited to dematerialized shares or other securities of the cardmember and add-on cardmember   held by the bank as a depository participant   may be adjusted towards dues under the card account.  In case of any deficit   the deficit amount may be recovered by the bank from the cardmember and add-on cardmember.

Being constrained the OP bank in exercise of its right of general lien   as envisaged under credit card terms and conditions and as provided under section 176 of the Indian Contract Act   the OP bank marked a lien on his account being no.5020 xxxxx 3795 to the tune of Rs.43  200.18 on 19.11.2018 and as no response was received from the complainant inspite of having full knowledge of imposition of lien   the OP bank deducted the ;said amount of Rs.43  200.18 on 04.12.2018 and it is evident from the aforesaid fact that it is the complainant who failed and neglected to abide bythe terms and conditions of the credit card agreement.  The OP bank has acted as per the terms of the card member agreement and there is no deficiency on its part. So   this case should be dismissed with exemplary cost.

Issues/points for consideration

On the basis of the pleading of the parties   the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction   cause of action and whether complainant is a consumer in the eye of law   are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version   have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point   jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the op no. 1 has it  s office and place of business at Uttarpara   Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover   this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus   the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover   u/s 11 of the Consumer Protection Act   this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act   1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act   1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act   1986. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the bank authority to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon  ble State Commission   Delhi and it is reported in 2022 (2) CPR 13 (Del).

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus   the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions   there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the op no. 1 has it  s place of office and business at Uttarpara   Hooghly.
2. It is also admitted fact that complainant has his credit card bearing no. 43467720081865003 under op no. 1.          
3. There is no dispute over the issue that over the aforesaid credit card one dispute cropped up earlier when ops are withdrawn an amount of Rs. 15  965/-.
4. There is no controversy over the issue that in connection with the said dispute filed one complaint case which was registered as C.C. case no. 1056 of 2009.
5. It is admitted fact that in the said complaint case no. 1056 of 2009 judgement was passed on 10.5.2010.
6. It is also admitted fact that in the said judgement the ops were directed to refund the disputed amount along with additional cost towards compensation.
7. There is no dispute over the issue that the ops preferred an appeal before the Hon  ble State Commission   Kolkata.
8. There is no controversy that the said appeal no. is FA/571/2010 and Hon  ble State Commission has been pleased to dispose of the said appeal.
9. It is admitted fact that Hon  ble State Commission has been pleased to dismiss the said appeal vide order no. 8 dt. 20.10.2022.
10. It is also admitted fact that the ops preferred a revision before the Hon  ble National Commission   New Delhi which was registered as RP no. 4153 of 2021.
11. There is no dispute over the issue that the Hon  ble National Commission has been pleased to uphold the judgment passed by the District Forum   Unit II   Kolkata.
12. There is no controversy over the issue that the ops thereafter complied the order of the District Forum and paid the amount of Rs. 32  000/- vide cheque no. 041657 dt. 25.9.2014.
13. It is admitted fact that the complainant in the year 2018 for the business purpose had opened credit account at op no. 1   office.
14. It is also admitted fact that the said current account no. 50200034683795 dt. 19.11.2018.
15. There is no dispute over the issue that the petitioner has deposited an amount of Rs. 43  200/- in the above noted account but while the petitioner/ complainant wanted to transfer some amount from the said account   he was unable to do so and so the petitioner had come across with the officers of op no. 1.
16. There is no controversy over the issue that the officers of op no. 1 informed that the said amount has been withheld towards the non-payment of an outstanding in the credit card.
17. It is admitted fact that thereafter the complainant/ petitioner had issued reminders through e-mail to the ops for refunding the amount but the said amount has not been refunded by the op no. 1.

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted facts and circumstances the parties of this case are deferring on the point and/ or apple of discord between the parties of this case is that the complainant has stated that the op   bank authority has committed unfair trade practice   act of negligence and deficiency of service in the matter of withholding the amount of Rs. 43  200/- from 19.11.2018 till this date but on the other hand the op   bank authority has pointed out that there was dues on the part of complainant in respect of credit card bearing no. 4346 xxxxxxxx 5003 which was issued in favour of the complainant and for that reason and as complainant has failed and neglected to pay the amount of dues the op   bank authority has withheld the said amount.

             For the purpose of arriving at just and proper decision in respect of the above noted issues this District Commission after making scrutiny of the evidence on record finds that the op   bank authority of this case have not produced any cogent document and satisfactory counter evidence to show that there was dues on the part of the complainant in respect of the above noted credit card issued by the op   bank authority in favour of the complainant. Moreover   the op   bank authority had to pay the award passed in C.C. case no. 1056 of 2009 as per judgementdt.10.5.2010 which is affirmed by Hon  ble State Commission and Hon  ble National Commission. All these factors are clearly reflecting that the op   bank authority has not discharged their onus of proving that there was dues of the complainant in respect of the credit card. This vital matter is clearly indicating that there is gross violation of service on the part of the op   bank authority. Over this issue the definition of expression “service” in Section 2 (O) of Consumer Protection Act   1986 was wide enough to comprehend services of every description and the District Forum has the jurisdiction to entertain and try such compliant. This legal principle laid down by the Hon  ble Apex Court and it is reported in 2022(2) CPR 249 (SC). Thus it is crystal clear that the service provided by the opposite party no. 1   bank authority is not at all proper and it clearly indicates that there is deficiency in service and so the complainant is entitled to get the relief which has been described in points of consideration nos. 4 and 5 of this case.

            A cumulative consideration of above discussion goes to show that complainant has proved his case in respect of all points of consideration and so complainant is entitled to get relief in this case.

In the result it is accordingly

ordered

that the complaint case being no. 183 of 2018 be and the same is allowed on contest but in part.

            It is held that the complainant is entitled to get Rs. 43  200/- from the op   bank authority and also entitled to get compensation of Rs. 10  000/- from the op   bank authority and litigation cost of Rs. 5000/- from op   bank authority.

Opposite party   bank authority is directed to pay the said amount of Rs. 58  200/- to the complainant within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party   bank authority is also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C.   Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.