FINAL ORDER/JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The complainant filed the petition of complaint U/s 13 of the CP Act, 1986 coupled with a petition U/s 11 (2) (b) of the CP Act, 1986 which has been treated as Misc. Application No. 65/2018 with a prayer for permission to proceed the case against the OPs 2 to 7 whose address is out of the jurisdiction. The complaint was permitted to proceed with the case against the OPs 2 to 7 vide order No. 2 dated 27.03.2018 passed by this Commission/Forum.
The fact of the case in brief is that the complainant is the business man and he associates with several businesses including Development of Real Estate Logistics. It is further stated that the complainant is in the Managing Committee of the Confederation of Real Estate Developers Association of Bengal (CREDAI) and is also a member of Indian Chamber of Commerce (ICC), committed member of Cricket Association of Bengal (CAB) and Younger Leaders Forum (YLF) and YPO of Calcutta Chapter.
It is further stated by the complainant that he is known as renounced businessman with reputation amongst the business community in Kolkata. The OP-1 is a bank and the OP-2 is the Country Head, Global Consumer Group of the said bank and the other OPs are working for the bank and are responsible and entrusted with by the bank for rendering services to its customers.
It is further stated by the complainant that taken into account of the reputation and background of the complainant the OP-1 City Bank issued a credit card to the complainant bearing No. 4386280011222266. The complainant was using the said car for the purpose of availing various facility. He used to make payment of amounts regularly and punctually payable by him consequent to the using the said credit card. The photocopy of the bank statements in respect of the payment made by the complainant for the using of credit car in question have been collectively annexed herewith as annexure “A”.
It is alleged by the complaint that in month of April, 2013 he received a statement from the OP-1 bank for the period of 19 April to 19 May of a sum of Rs. 1,23,072.47/- (equivalent to Australia dollar to $ 2121.30) and the said amount has been debited from the account of the complainant which is allegedly paid by him to HERTZ Rent- A- Car. It is further stated by the complainant that during the said period, he had been to Australia and hired a vehicle from Hertz. The said statement has been annexed here to as annexure “B” on receipt of the said statement sent by the OP-1 bank. The complainant became astonished and was unable to ascertain as to on what account the said amount was debited to the account of the complainant. The complainant stated that in any case he was not liable to make payment of the said amount then the complainant raised his voice and after realisation of mistake by the OP-1 bank. The said entry was reversed and credited to the account of the complainant as it shown from the statement for the period of 20 May 2013 to 18 June 2013. The said statement has annexed herewith as annexure “C”. It is further alleged by the complainant that again for the period of 19 June 2013 to 18 July 2013 he found a sum of Rs. 1,23,702.47/- was again debit from his account by the OP-1 bank without assigning any reason. The said statement of the account has been annexed herewith as annexure “D”. Thereafter, the complainant again made contact with the OP-1 bank and ultimately, a telephonic discussion had taken place with the complainant and the OP-1 bank when the complainant was told to get in touch with Mr. Faisal of HERTZ-Rent-A- Car. Accordingly, an email dated 5 June 2013 addressed by M/s Lata G for on behalf of the complainant to Mr. Faisal and enquired regarding the liability of the complainant the said email dated 5th June, 2013 has been annexed herewith as annexure “E”. Subsequently, after lapse of 3 months the said Mr. Fasal sent a copy of penalty notice dated 10 April, 2013 issued by the office of State Revenue, State Debt Recovery, Australia whereby the state by purporting to recover a sum of Australian dollars 2085 for alleged by violation of speed limit while the complainant using the vehicle hired from Hertz and no receipt or any document was sent confirming the payment of said penalty of Hertz on behalf of the complainant nor did send any acknowledge having receipt of the said amount from the OP-1 bank . Copy of the said notice dated 10 April, 2013 has annexed herewith as annexure “F”.
Thereafter the complainant served a letter to the OP bank forthwith to withdraw the complaint and sent a fresh statement of accounts to enable the complainant made payment of their lawful dues, if any vide letter dated 19.11.2019 which has been annexed herewith as annexure “G”. It is alleged thereafter the OP-1 bank closed the credit card which caused wilful and malicious loss and damage to the credibility and reputation of the complainant in the eyes of this business community of Kolkata thereafter the complainant states that no question of settlement or settlement plan is there because he is/was not liable to pay the amount as claimed by the OP bank. In respond of letter dated 27.10. 2014 by a letter dated 13.09.2014 sent by Rahdika Singh and Co., advocates on behalf of the claimant addressed to the OP-1. Claimant protested the closer of the account and/or withdraw the credit card facilities and he irritated because of wrongful acts on the part of the OP-1. The claimant suffered mental agony because his prestige lowered in his esteem before the business community. The said letter dated has annexed as annexure “J”. Even on repeated request of the complainant to the OP bank to reverse the entry and to lift withdrawal of the credit card facilities the bank did not pay any heed to his request and continue his wrongful demands and asked the complainant to give settlement plan vide letter dated 09.01.2017, 29.05.2017 and 27.07.2017 which have been annexed hereto collectively as annexure “K”.
It is further stated by the complainant that such conduct of the OP bank should be considered as deficiency in service on their part which caused the harassment, mental pain and agony to the complainant. Hence, the instant petition of complaint filed by the complainant with a prayer to give direction to the OP-1 forthwith to reverse the debit entry of Rs. 1,33,072.47/- along with all interest charges and to give direction the OP-1 to update the status of the card as “Null” in CIVIL Records of the complaint to operate the said credit card and to give direction to the OP-1 to compensate the complainant of a sum of Rs. 10,00,000/- only or more along with litigation cost.
The OPs have contested the petition of complaint by filing a WV denying all the materials allegation levelled against him.
It is the case of the OPs that the petition of complaint is misconceived one and not maintainable in law or in facts.
It is the further case of the OPs that the case is barred by limitation and also suffered from mis- joinder and non-joinder of necessary parties. It is alleged by the OPs that the complainant deliberately did not include Hertzs-Rent-A-Car Bathurst AU party to this proceedings who is a necessary party in this case.
It is the case of the OPs party that the complainant availed a credit card form the OP-1 bank being No. 4386280011222266. The said card and its transactions are governed by the card member terms and conditions. The copy of the card member agreement is annexed as annexure “D”. It is further case by the OPs in their WV that when the credit card is issued for any service with a particular merchant, a transaction detail is sent to the bank of the merchant which is in turn same sheet to the Issuing Bank through the respective card association network like Visa, Master Card, Dina. Etc. For a decision, it is further case that when the issuing bank decides whether approve or decline its transaction on the basis of successful transaction which includes credit card limit open to buy etc. The same will communicated back to the Merchant Bank. Subsequently, all approved transaction thereafter collected and demand are settled through the card association network as per the Banking Rules and Regulation and the OP-1 is bound to pay the demanded sum at once. The claim is raised on the basis of valid transaction.
In the present case, the complainant in the month of 2014 disputed his liability to pay 2121.30 AUD after receiving the statement. In that circumstances, the OP-1 had made a provisional credit on 20.05.2013 in respect of the said transaction of 2121.30 AUD and initiated an investigation thereon.
Admittedly, the complainant went to Australia in 2013 and hired a car from Hertz-rent-A-car and it is also admitted the fact that the complainant had shared his credit card details with “Hertz Rent A Car” with an authorization to debit as part the practice. Thereafter on or about 10.04.2013 the complainant made violation of over speed for which the NSW government office or State Revenue, charged penalty thereafter, Hertz-A-Car added a sum of Rs. 36.30 AUD as processing fee and debited a sum of 2121.30 AUD from the credit card of the complainant. So, the credit card transaction was on the basis of valid penalty notice which has been authorised by the complainant himself. Under such circumstance, the OP-1 bank is /was duty bound to pay the merchant banking being Commonwealth Bank Australia and debit from the account of the complainant as per Clause-20 of the Card Member Terms and Conditions.
It is alleged by the OP-1 bank that taking advantage of the situation the complainant did not pay the credit card due. In such circumstances, the OP-1 had given a appropriate feed back to CIVIL and approached the complainant either to clear that complete outstanding of Rs. 313,889.78/- for CIVIL null updation or avail the settlement on the card and accordingly, the customers card status will be updated as “Post W/O SETTLED” in CIVIL. Then the complainant approached the banking ombudsman, Chennai asking for civil update as null and the OP-1 refused to do the same. Hence, the complainant has filed this case with an intention to harass the OPs.
It is the case of the OPs that the petition of complaint as filed by the complainant is mis-conceived and malafide one without having any basis. Thus, the case is liable to be dismissed with cost. Because there is no deficiency in service on the part of the OP-1 Bank.
In view of the above stated pleadings, it has to be considered by this Commission/Forum:-
1. Whether the case is maintainable as present position of law?
2. Whether the complainant has any cause of action to file the case?
3. Is the case barred by limitation?
4. Is the case not maintainable for non joinder or mis joinder of necessary parties?
5. Is there any deficiency in service on the part of the OPs?
6. Is the complainant entitled to get relief as prayed for?
7. To what other relief or reliefs is the complainant entitled to get?
Decision with Reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetitions.
On a close scrutiny of the materials on records, it appears that the complainant is residing under the jurisdiction of this Commission/Forum and files a petition along with petition of complainant at the time of filing of this case U/s 11 (2) (b) of CP Act, 1986 with a prayer to give him the permission to proceed with the case against the OPs 2 to 7 i.e address is outside of the jurisdiction to this Forum/ Commission. The prayer was considered and allowed by this Forum/Commission vide order 02 dated 27.03.2018 and the pecuniary jurisdiction is also well within the permissible limit of this Forum/ Commission. So, it can safely be held by this Forum/ Commission can try this case in respect of it’s pecuniary and territorial jurisdiction.
It is the case of the OPs that the complainant has no cause of action to file the case because admittedly, he received the notice from the OP bank regarding the deduction of alleged amount of Rs. Rs. 1,23,072.47/- equivalent to Australian dollar 2121.30. Sometimes in the month of April 2013 after receiving the statement from the OP-1 bank for the period of 19 April to 19 May 2013 but the complainant filed this case on 09.03.2018. So, the case is barred by limitation. But from the petition of complaint, it is palpably clear that the complainant received emails dated 19 December 2017 and 27 December 2017 and he filed this case on 09.032018. So, there is sufficient cause of action to file this case and case is filed within the period of limitation.
Admittedly, the complainant being a businessman has obtained a credit card from the OP-1 bank namely City Bank NA, the credit therein No. 4386280011222266 and the complainant was using the said card for the purpose of availing various facilities and he used to make payment of amounts payable consequent to use of the said credit card.
By dint of issuance of the said credit card in question to the complainant, the complainant becomes a consumer under the OP-1 bank and the OP-1 bank is a service provider to him.
It is alleged by the complainant that sometimes in the month of April 2013, the complainant received a statement from the OP-1 bank for the period on and from 19 April to 19 May 2013 that a sum of Rs. 1,23,072.47/- had been debited from the account of the complainant alleged to have been paid to one Hertz Rent – A- Car which is a company situated at Australia and the connection between the complainant and such company is that in between the above mentioned period. The complainant went to Australia for vacation and hired a vehicle from such company. From the evidence and materials on record and also from the argument both in writing and oral, it is revealed that admittedly during that period the complainant had been in Australia and hired a car from Hertz Rent-a-car. It is also admitted fact that during running the car, he was penalised by Government of Australia for violation of speed limit to Australian dollar 2121.30 which is equivalent to Rs. 1,23,072.47/- but the complainant did not pay the penalty. As a result, the Hertz Rent-A-Car demanded the money from the OP-1 bank and the OP-1 bank sent the amount to Hertz Rent-A-Car by debiting it from the account of the complainant.
It is the allegation of the complainant that the OP-1 bank debited the amount from the account of the complainant and paid the same to Hertz Rent-A-Car towards the payment of penalty without having consent of the complainant and asked the complainant to settle the plan but the complainant repeatedly requested him in writing to credit the amount in his account as the OP-1 bank debited the same from his account without his consent and bank also withdrawal the credit card by serving notice upon the complainant and closed the account.
In the instant case, from careful scanning of the materials on records, it appears that the complainant hired a car from Hertz Rent-A-Car during his visit in Australia and violated the speed limit for which he was penalised by the authority of Government of Australia at 2121.30 AUD equivalent to Rs. 1,23,072.47/- in Indian currency and the complainant on demand by Hertz-Rent-A-Car.
From the evidence and materials on record and also from the argument of the complainant, it is revealed that the complainant did not pay the penalty to the authority of Government of Australia. As a result, on demand by the authority and Hertz Rent-A-Car, the OP-1 bank debited the amount of Rs. 1,23,072.47/- equivalent to Australian dollar to 2121.30 to the Hertz Rent-A-Car and the Government of Australia from the account of the complainant and they sent the statement to the complainant but the complainant alleged that the said amount was paid by the OP-1 bank from the account of the complainant lying in the OP-1 bank to Hertz Rent-A-Car without his consent. So, he is prayed for reopen the account and the credit card in question. But from the materials and evidence on record, it is revealed that being a reputed businessman the complainant committed a wrong (violation of speed limit ) in hired car from Hertz Rent-A-Car during his visit in Australia and left that country without paying the penalty. So, the complainant is a wrong doer and did not come before this Forum/Commission with clean hand. Thus, in the considered view of this Forum/Commission, the OP-1 bank paid the amount of penalty on demand to Hertz Rent-A-Car and the bank rightly did it and sent of statement of the account to the complainant. But the complainant has intention not to pay the penalty in respect of violation of speed committed by him during his visit in Australia and wrongly alleged that why the amount has been debited from his account without his consent. Such conduct of the complainant cannot be indulged and the question of international relationship between two states in that case is OP-1, City Bank had rightly sent the penalty amount of Rs. 1,23,072.47/- equivalent to Australian dollar 2121.30 to Hertz Rent-A-Car and event on repeated service of statement of account to the complainant to let him know about the facts. The complainant did not agree with the matter of violation of speed in Australia and did not give consent to pay the penalty amount from his account . The OP-1 bank has no other alternative but to close the account in question and withdraws the credit card in question.
It is also the fact that in this case, Hertz-Rent-A-Car is a necessary party for better adjudication of this case but the complainant wilfully avoid to make Hertz-Rent-A-Car a party in this case with an intention to suppress the material facts. From which it is held by this Commission/Forum that the case is also suffered from non-joinder of necessary parties.
On careful consideration of the entire facts and circumstances, as well as evidence on record, this commission is of view that there is/was no deficiency in service on the part of the OP-1 bank and other OPs and it is also considered view of this Forum/Commission that the complainant is out and out failure to prove his case rather the complainant wants to get a legal seal on his illegal acts.
Hence,
In view of discussion made above. This Forum/Commission is of view that the complainant is miserably failure to prove his case beyond all reasonable doubt and is not entitled to get the relief as prayed for.
The case is properly stamped.
All the points of consideration are thus, decided accordingly.
Hence,
Ordered
That the case be and the same is dismissed on contest without any cost.
Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act, 2019. The Judgement be uploaded forthwith on the website of the commission for perusal of the party.
