Date of Filing: 18.11.2009
Date of Order: 20.05.2011
BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SESHADRIPURAM BANGALORE-20
Dated: 20TH DAY OF MAY 2011
PRESENT
Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.
Smt. D. LEELAVATHI, M.A.LL.B, Member.
Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.
COMPLAINT NO: 2693 OF 2009
P. Ranganathan
No. 24/A, 2nd Floor, 5th Main Road
6th Cross, Srinivasa Reddy Layout
Hongosandra, Devara Chikkana Halli Main Road
Bangalore 68 Complainant
V/S
1. Citi Bank N.A.
Mail Room, Shakti Towers, 766
Anna Salai Post Office
Chennai 600 002
2. Citibank N.A.
102-104, Prestige Meridian V
30, M.G. Road, Bangalore 560 001 Opposite Parties
ORDER
By the President Sri S.S. Nagarale
The complainant has filed this complaint stating that opposite party bank has not delivered to him credit card but are claiming through CIBIL Credit Information Report on 25.08.2009 that credit card No. 4564 0701 0257 6009 had been issued to complainant and account was opened on 03.12.2006. Based on the claim complainant asked for clarification to bank through e-mail. Bank replied that they have despatched the card on January 05, 2007 through Blue Dart Couriers and same has been received by Mrs. Sheela (mother) not Mrs. Bharathi. Claiming the debit balance of Rs. 6,78,459/- complainant clarified on October 30,2009 that he has not received said card and his mother name is Mrs. Bharathi not Sheela and requested the opposite party to send copy of POD (Proof of delivery) to verify the address. Bank refused to give POD copy and refused to clarify other details. It has affected personal life and financials of the complainant by listing complainant as defaulter in CIBIL. He had applied several banks and financial institutions for business and personal loan. All of them rejected since complainant’s name figures in the CIBIL defaulters list. Complainant had a personal loan with Citi Bank for Rs. 3,00,000/-. He could not pay the EMI in the month of November 2008. Recovery agent behaved with complainant and his wife very rudely. The complainant stated details of problems faced by him and financial loss incurred by him. He was not able to continue his business and forced to stop his business activities by October 2007 for the reasons of not having money to run business. The complainant has submitted that District Consumer Disputes Redressal Forum take note of his plight of having undergone huge financial loss, personal life and mental pressure and he requested that opposite party bank be directed to pay Rs. 20,00,000/- as compensation without any delay even though his actual loss is Rs. 71,85,000/-.
2. Opposite party has filed version stating that complaint is not maintainable. Complainant stated that he has not availed credit card from opposite party and not availed any services regarding said credit card as such he is not ‘consumer’. The complaint is for recovery of loss suffered by complainant in his business. The dispute raised by the complainant falls within purview of Credit Information Companies (Regulation) Act. The dispute has to be resolved as per the provisions of said Act. The forum has no jurisdiction to adjudicate the dispute. As per Section 18 of the Credit Information Companies (Regulation) Act 2005, dispute between borrower and credit institution shall be settled by Arbitration as provided in the Arbitration and Conciliation Act to be appointed by RBI. Complaint is barred by limitation. Complainant claimed damages for business loss from November 2005. Hence, complaint is barred by limitation. Complainant has filed complaint before the Banking Ombudsman on 09.12.2009 for redressal of his grievance. The said complaint is pending. On the same cause of action and seeking similar reliefs this complaint has been filed. Complainant has applied for credit card in December 2006. Card was delivered to the mailing address of the complainant through Blue Dart Courier on 05.01.2007. Due to lapse of time, the Courier Agency expressed its inability to provide POD since acknowledgements are maintained only for six months. Complainant used the card from January 2007 to August 2007 for making credit purchases and cash withdrawals. Some payments are also made. Since, the complainant defaulted to pay minimum amount due as on date Rs. 7,45,803/-, the opposite party has sent credit details of complainant to CIBIL in compliance to the statutory provisions without any malafide intention. Complainant was defaulter in payment of loan availed by him. The claim for damages of Rs. 20,00,000/- is baseless and without any merits. Complainant is not entitled for any relief. Complainant has sent e-mail to the Chief Justice, High Court of Karnataka, The Secretary, Supreme Court Legal Services Committee, Secretary, Karnataka State Legal Services Authority, The Chief General Manager, Reserve Bank of India during the pendency of present complaint. Complainant has not taken any permission or consent from this forum to approach the above authority. The complainant has also filed police complaint at Electronic City Police Station. The complainant has invoked criminal jurisdiction during the pendency of present complaint. He has not taken any permission from this forum to file the police complaint. Acts of the complainant clearly prove that he is not ready to subject to the jurisdiction of the forum. The conduct of the complainant approaching other authorities when the matter is pending before the forum is not proper. For all these reasons stated above the opposite parties prayed to dismiss the complaint.
3. Affidavit evidences of both parties filed.
4. Arguments are heard.
5. The points for consideration are:
1. Whether the complainant has proved deficiency of service on the part of opposite parties?
2. Whether the complainant is entitled for removal of his name from CIBIL defaulter’s list?
3. Whether the complainant is entitled for compensation as claimed?
REASONS
6. It is the case of the complainant that he had applied for credit card facility with the opposite party bank in the year 2006. But the credit card had not been delivered to him by the opposite party and opposite party bank refused to give proof of delivery (POD) copy to him. The complainant has alleged fraud, forgery and impersonation against opposite party bank. However, the opposite party bank had shown the outstanding balance due at Rs. 7,45,803/- in respect of credit card said to have been issued in the name of complainant. The complainant is challenging this due and submitted that he has not at all received the credit card from the opposite party and question of payment of outstanding due does not arise at all. When the complainant has not received the card itself and he has not made any transaction or purchase under the said card how can the complainant allege deficiency of service in respect of credit card. This is not a case of deficiency of service because the complainant admittedly not used the card and he has not taken any service in respect of the card from the opposite party bank. As per the case of complainant it is the case of fraud, cheating and impersonation in collusion with bank officials. Therefore, the complainant has rightly filed criminal complaint in respect of credit card dispute before the concerned police. The matter is under investigation. The police are the proper authority to investigate the matter thoroughly and find out the culprit and guilty person and criminal law will take its own course if it is found that there is a fraud and impersonation in respect of the credit card. Uttaranchal State Consumer Disputes Redressal commission in a case reported between Indian Phytochem Vs. S.K. Banerjee, III (2004) CPJ 227 is as under:
“Section 2(1)(c) – Jurisdiction – Consumer Forums not meant to decide dispute about fraud – Consumer Forums were not meant to decide about fraud and resultant loss of that fraud. Details of fraud could be investigated upon by detailed and thorough inquiry by Civil Courts, and could not be subject matters of summary proceedings. As complicated questions of law and facts were involved, hence, complaint was dismissed with liberty to file civil suit.”
7. Again Hon’ble National Commission in case reported AIR 2008 (NOC) 2525 (NCC) held that “Consumer fora can compensate parties only with regard to deficiency in service – In respect of other claims, the parties will have to approach other fora – Non disbursal of sanctioned loan by Bank – claim for loss sustained cannot be adjudicated by consumer fora.”
8. In view of the above authorities since the present complainant has made allegations of fraud, mis-appropriation, impersonation and other criminal acts under these circumstances the consumer forum cannot decide the issue in a summary proceedings. The allegation made by the complainant requires thorough enquiry and production of oral and documentary evidence, cross examination witnesses etc. Therefore, it is only the civil court can do the proper enquiry and find out the truth. When the complainant has not at all received the credit card from the opposite party bank as per his assertion there is no question of deficiency of service. The consumer forum can compensate parties only with regard to deficiency in service. The opposite party had taken defence that there is an outstanding balance of more than Rs. 7,00,000/- in respect of credit card account. The advocate for the opposite party submitted that since the complainant has made allegation of fraud and other criminal acts the bank has not taken any steps for recovery of amount. The bank has not issued any legal notice to the complainant demanding payment till now. The bank has not filed any suit or any legal proceeding against the complainant in respect of credit card balance. So under these circumstances the complainant shall have to ignore the credit card balance since he was not aware of the due amount. The present complaint is a premature one in respect of the credit card due. The complainant need not worry of the credit balance and due because according to him he has not at all received the card and no transaction was made by him under credit card. Under these circumstances why the complainant shall worry in respect of the credit card. In case the bank takes any steps for recovery of amount under credit card balance against the complainant in that case the complainant will be at liberty to take all the defences available to him and he can very well plead that he is not liable to pay the amount in view of fraud and impersonation etc. Therefore, under these circumstances complaint filed in respect of credit card is premature one. The complainant has claimed Rs. 20,00,000/- compensation for business loss. The consumer forum cannot award the amount for business loss. There is no such provision under the Consumer Protection Act to award compensation for business loss. ‘Consumer’ means any person who buys any goods for consideration or hires or avails any service for consideration. But, in this case the complainant has not availed any service from the opposite party bank in respect of credit card. According to him he has not at all received the credit card. Therefore, availing of service for consideration does not arise at all. The complainant claimed business loss. The relief asked by him cannot be granted by the forum. He has to approach the civil court and establish his business loss, he has to produce documents and proof to prove the income and loss. According to complainant he had stopped business activities by October 2007 itself for the reason of not having money to run the business. This has been stated by complainant himself in his complaint. So when he had stopped the business in October 2007 itself how can he claim loss of business. The third argument of the complainant is that his name has been listed in CIBIL defaulter’s list and he wants that his name shall be removed from the CIBIL list. On account of entry of his name in CIBIL defaulter’s list he is not able to get bank loans from other banks and financial institutions. According to the complainant himself he has taken personal loan of Rs. 3,00,000/- from the opposite party bank and he admits he could not pay EMI of Rs. 9,132/-. The complainant submitted that he was not a defaulter of his personal loan until January 2008. That means after January 2008 he became defaulter. When the complainant became defaulter and he was not regular in payment of EMI naturally as per the RBI guidelines his name is included in the CIBIL record. According to opposite party the outstanding balance of complainant’s personal loan is Rs. 1,58,069/-. The opposite party bank has sent credit card details of complainant to CIBIL in compliance with the guidelines of the RBI. Therefore, no malafide intention can be attributed to the opposite party bank. The complainant has to regularise personal loan account and go on paying EMI as per the reschedule of payment. Once the person loan account is regularized and complainant goes on paying the EMI as per the agreement in that case the opposite party bank shall intimate the CIBIL for removal of his name from defaulter’s list. I hope that opposite party bank will take necessary steps to remove the name of complainant from CIBIL defaulter’s list. The opposite party has taken defence that complainant has approached Banking Ombudsman for redressal of his grievances. But the complainant has denied of filing any complaint before the Banking Ombudsman. Opposite party admittedly has not produced any record or document to show that complainant has approached the Banking Ombudsman constituted by the RBI under Banking Ombudsman Scheme, 2006. The Banking Ombudsman is the proper authority to go in to the matter in detail the allegations made by the complainant. The complainant has to file his complaint for redressal of his grievances before the Banking Ombudsman. Under Section 8 of the said scheme the complaint of the complainant can be filed. There are so many grounds on which the complaint can be filed alleging deficiency in banking service. Among those grounds the deficiency in respect of credit card operations also covers. The Banking Ombudsman has got authority to make full and complete enquiry and call for information and even has got power to settle the complaint by agreement or compromise. Under Section 12 of the Scheme Banking Ombudsman passes award and copy of award shall be sent to complainant. If the complainant is not satisfied by the award there is a provision of appeal before the appellate authority. So under these circumstances on the facts and circumstances of the case this is a fit case wherein the complainant can file complaint before the Banking Ombudsman constituted by the RBI. The scheme is introduced with an object of enabling resolution of complaints relating to service rendered by banks and to facilitate the satisfaction or settlement of such complaints. So under these circumstances the proper remedy for the complainant is to file his complaint before the Banking Ombudsman for redressal of his grievances. The complainant is entitled for the relief in respect of removal of his name from CIBIL defaulter’s list because he has suffered lot financially because no financial institutions and banks came forward to advance loan to him. So under these circumstances it is just, fair and reasonable and in order to meet the ends of justice it will be proper and fair to direct the opposite party bank to take immediate steps to remove the name of the complainant from CIBIL Defaulter’s list so that the complainant will be able to get loan from the banks for his business purpose. In the result I proceed to pass the following:
ORDER
9. The complaint is allowed. The opposite party is directed to take steps to remove the name of the complainant from CIBIL Defaulter’s list on regularization of personal loan account by the complainant.
10. Send the copy of this Order to both the parties free of costs immediately.
11. Pronounced in the Open Forum on this 20TH DAY OF MAY 2011.
Order accordingly,
PRESIDENT
We concur the above findings.
MEMBER MEMBER
