Order-16.
Date-28/03/2016.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant has filed this complaint through his younger brother Biswajit Samadder who has been empowered and authorized to sign all papers and conduct the proceeding on behalf of the complainant and being authorized by the complainant has filed this complaint stating that complainant is the holder of the credit card being no.4346 7700 4378 8866 which was held long back i.e. in the year 2004-08 and compliant was not at all default in payment and had cleared all the dues accrued out of the said credit card but OP reported later that a sum of Rs.9,846/- fell due which was to be paid by the complainant as demanded by them wrongfully and illegally but in order to be free from continuous hazards and to stop the nagging chase without any reason complainant paid that amount of Rs.9,846/- also and that was paid by a cheque of State Bank of India, Lake Garden Branch, Kolkata under a settlement letter dated 12-02-2008 issued by the authority of HDFC Bank Ltd. While payment was done by the complainant it was urged and demanded from the OP Bank to issue NOC vide letter dated 22-11-2008 but the authority concern did not heed and no NOC was issued in favour of the complainant.
Most interesting factor is that OP Bank were aware of the address of the complainant and they have falsely and in a fake manner issued another fake card being no.4346 7810 0204 8981 to the complainant but complainant never received such credit card and there was no authenticity of holding of such credit card.
But most peculiar factor is that this HDFC OP Bank raised a fabulous amount of Rs.96,856/- which is fake and false and has been raised fancifully and illegally against the complainant though complainant never enjoyed the facility of such credit card and that was never prayed for by the complainant but even after that OP’s agent and musclemen continuously disturbed him by making phone calls to the family members of the complainant though complainant staying abroad.
It is specifically mentioned that it has become a practice of the OP to make phone calls to the octogenarian old and ailing father–in–law of the complainant and others and they are disturbing in so many manners though there is no dues on the part of the complainant. So, in the above circumstances, complainant has prayed for redressal.
On the other hand OP by filing written statement submitted that on request of the complainant a credit card was issued being Credit Card No.4346 7710 0437 8866 during the year 2004 and that was later upgraded to Card No. 4346 7810 0204 8981 during the year 2007 and complainant was agreed to the terms and conditions of the usage of said credit card which includes increase and decrease of credit limit, Late Fees, Finance Charges and other Overdue Charges and complainant assured to pay the credit card dues in time and without failure.
Usual practice is the credit card holder shall use his credit card and bank will raise monthly bills to the user which he shall have to pay within a certain period of time and if the credit card user fails to pay any amount or makes part payment of the entire amount he shall be charged interest on the amount not paid by him along with other charges and accordingly the outstanding dues is Rs.1,06,310-95 and OP bank at all material times acted in good faith and in accordance with the laws of the land and cooperated with the complainant and regular monthly statement was sent to the complainant and complainant was aware of the same but ultimately did not pay. So, complainant to avoid payment framed a concocted story only for wrongful gain by escaping the liability of payment though OP Bank has always acted in good faith and as per the provisions of law.
Further it is submitted that no settlement offer was made for payment of Rs.9,846/- as claimed by the complainant, so, no question of issuing NOC shall arise.
It is specifically mentioned that initially credit card was upgraded being card no. 4346 7810 0204 8981 that is in July, 2007 and outstanding as prevailing in the previous card was transferred to the current card which is happened for the present complainant and OP Bank informe3d the complainant to pay the outstanding dues.
Fact remains on 27-03-2015 OP Bank sent a e-mail in complainant’s registered E-mail to pay Rs.31,000/- but complainant did not pay.
But the allegation of threatening to the complainant does not arise. It is completely false and fabricated for which the complaint should be dismissed.
Decision with Reasons
On an in depth study of the complaint and the written version it is found that main dispute is whether complainant applied for upgradation of the first credit card being No. 4346 7710 0437 8866 and according as per prayer of the complainant OP upgraded separate credit card being no. 4346 7810 0204 8981 and issued or not.
If complainant applied for upgradation of the first credit card being no.4346 7710 0437 8866 and complainant received an upgraded card being no. 4346 7810 0204 8981 in that case complainant has no claim at all.
Anyhow, complainant has stated that he never applied for any upgradation of credit card and no document is produced by the OP to prove that said credit card was received by complainant being any credit card being no. 4346 7810 0204 8981 but complainant never received it and never used the same. When that is the claim of the complainant then it is the duty of the OP to prove that complainant applied for upgradation of the credit card at any point of time.
Anyhow OP has produced the Xerox copies of application wherefrom it is found that Annexure B is the original application form of the complainant for issuing the first credit card and that was submitted on 28-04-2004 and that card was for Silver Credit Card application but anyhow OP has failed to produce any document to show that at any point of time OP applied for upgradation of credit card and no document is produced by the OP to prove that said credit card was received by the complainant or that was used at any point of time. But we have gathered from the monthly statement upto 05-06-2007 the bill was issued in the name of Avijit Samadder against credit card no. 4346 7710 0437 8866 but all on a sudden another bill against credit card no. 4346 7810 0204 8981 was issued on 05-07-2007 whereas in respect of previous credit card bill was issued on 05-06-2007 showing total dues 24,256/- whereas in respect of so called upgraded bill dues is shown Rs.22,270/- then question is how two bills were issued – one against previous credit card 4346 7710 0437 8866 and another against so called upgraded credit card no. 4346 7810 0204 8981 and in this regard OP’s Ld. Lawyer is found silent. At the same time it is the specific direction of the RBI that no credit card shall be unilaterally sent to the customer showing it upgradation if no application is filed by the consumer and it is specifically ordered by the RBI if any such upgraded card unilaterally is sent to the customer in that case customer shall be paid penalty amount which is written in the said bill against called unilaterally upgraded credit card. When that is that fact then it is clear that OP has failed to prove by any cogent document that complainant has applied for any upgradation of the credit card. At the same time OP has failed to produce any document to show that upgraded credit card was received by the complainant and complainant sent his consent but mere bill sent by the OP with effect from 05-07-2007 does not ipso facto proves that complainant accepted the upgraded credit card but it has become a practice of the private bank to sent one after another credit card and to start charging penalty etc. and with that business the HDFC is being run all over in India and it is their mal-practice but they are ignoring the direction of the RBI that without application of the customer bank authority must not have to upgrade any credit card and shall not have to send any credit card against any bank account but in the present case mal-practice has been practiced by the OP’s bank for the previous credit card and sent to separate bills dated 05-06-2007 and 05-07-2007 for previous admitted credit card of the complainant against the credit card No.4346 7710 0437 8866 and at the same time by suo moto upgrading against another credit card being No. 4346 7810 0204 8981 a bill for Rs.22,270/- was sent for payment by 25-07-2007 and previous bill for old credit card was also sent on 05-06-2007 for payment by 25-07-2007. So, it is clear upgradation of credit card was never prayed for by the complainant. There is no single document in the hands of the OP to prove that the complainant prayed for that. When that is the fact then it is clear that mal-practice and unfair trade practice has been adopted by the OP and upgraded credit card was prepared but it was never prayed for by the complainant and never received by the complainant but bill was prepared. So, OP is bound to pay penalty for the amount which has been charged against so called upgraded credit card being no. 4346 7810 0204 8981.
But truth is that in respect of pervious credit card OP is silent and they tried to say that previous amount has been transferred to the account of upgraded credit card but that is also false which is proved from the bill dated 05-06-2007 and 05-07-2007 which are in the page No.18 and 19 of the annexure filed by the OP.
Peculiar factor is that in the eye of law OP cannot suo moto upgrade any credit card as per regulation of the RBI. Truth is that by adopting such illegal path and unfair practice OP has no doubt caused mental pain and sufferings and at the same time in a deceitful manner OP opened an upgraded credit card which was not prayed for by the complainant. so, in respect of that credit card (Upgraded credit card being no. 4346 7810 0204 8981) OP shall have to pay penalty amount of Rs.1,06,310-98 because it is the Regulation and Rules of the RBI that the amount which had been charged against any credit card which has not been applied for by the consumer the said amount shall be paid as penalty by the OP Bank and no doubt it is proved that complainant never applied for upgradation of credit card and opening of upgraded credit card being no. 4346 7810 0204 8981 which is completely an illegal and unilateral card and for which OP shall have to pay the entire amount as penalty which has been claimed by the OP against complainant in the present case.
So, we are convinced to hold that upto 05-0-6-2007 against previous credit card the arrear is Rs.24,256/- and thereafter, the credit card was not used by the complainant when that is the fact then complainant shall have to pay Rs.24,256/- against his admitted credit card no.4346 7710 0437 8866 and that amount shall be deducted from the penalty amount which shall be paid by the OP, and thereafter, OP shall have to pay the balance amount to the complainant as penalty as per guideline, Rules of the RBI.
On overall evaluation of the entire facts and materials of the case and the act and conduct of the HDFC we are confirmed that they adopted unfair trade practice violating the terms and conditions of the RBI and imposed false penalty, false charges by OP against so called upgraded credit card which has never been applied for by the complainant and it was unilaterally opened by the OP for their profit and business. No doubt HDFC bank has adopted unfair trade practice for which HDFC Bank shall have to pay Rs.25,000/- as penal damages to this Forum and it is imposed to check the repeated mal practice, unfair trade practice in dealing with such business with the consumers.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest with a cost of Rs.5,000/- against the OP HDFC Bank.
OP Bank is hereby directed to pay Rs.1,06,310-95 paisa to the complainant as per observation made in the body of the judgment and as per Guideline and Regulations of the RBI and out of that OP shall have to deduct Rs.24,256/- from that amount against dues of previous credit card being no. 4346 7710 0437 8866 and pay the balance amount to the complainant within one month from the date of this order along with litigation cost. But in respect of so called upgraded credit card no. 4346 7810 0204 8981 OP cannot claim any amount because it was never opened by the complainant at any point of time.
For adopting unfair trade practice and deceitful manner of trade by the OP and to check also such sort of repeated mal-practices OP bank is directed to pay penal damages of Rs.25,000/- to this Forum and it is imposed to check such sort of practice of the OP Bank in dealing with deceitful manner of business with consumers as customers.
OP is hereby directed to comply the order within one month from the date of this order failing which for non-compliance of the Forum’s order OP shall have to be prosecuted and also shall have to pay penal interest at the rate ofRs.100 per day till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.
Even if it is found that OP is reluctant to comply the order in that case penal action u/s.25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.
Order No. 17 / Dated 15/02/2017.
Record is put up to-day on prayer of the O.P. A petition alongwith one Demand Draft bearing no.755122 dated 01.12.2016 drawn on HDFC Bank in favour of ‘President, DCDRF, Kolkata Unit – II’ amounting to Rs.43,700/- is filed for the O.P. with the prayer for acceptance of the same as penal damages imposed upon the O.P. by order dated 28.03.2016 passed in this case. It is also in the said petition that the O.P. has already paid the decreetal dues to the Complainant. It is also submitted by the representative of the O.P. that no execution case has been filed by the Complainant till date as per their knowledge.
Perused the petition. Considered. Let the Demand Draft as aforesaid be accepted and deposited to the SCWF, WB. Issue office receipt accordingly. Note in the relevant register also.
