COMPLAINT FILED: 26-10-2009 <br /> DISPOSED ON: 06-04-2009<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 6TH APRIL 2010<br /> <br /> PRESENT :-SRI. B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> COMPLAINT NO.2492/2009<br /> <br /> <br /> COMPLAINANT <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Smt. Sunitha<br /> Aged about 38 years,<br /> No.85/1, DVG Road,<br /> Basavanagudi,<br /> Bangalore.<br /> Represented by her<br /> GPA Holder: Sri.Rajesh<br /> <br /> Advocate – Sri.Kumara<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTIES 1.HDFC Bank Cards Division<br /> No.8, Lattice Bridge Road,<br /> Thiruvamiyur,<br /> Chennai-600 041.<br /> Represented by its Manager<br /> <br /> 2.The Branch Manager,<br /> HDFC Bank Ltd., <br /> No.119, Gandhi Bazaar Main <br /> Road, Basavanagudi,<br /> Bangalore.<br /> <br /> Advocate – Sri.V.Suresh<br /> <br /> <br /> <br /> O R D E R<br /> <br /> SMT. M. YASHODHAMMA, MEMBER <br /> <br /> This is the complaint filed u/s. 12 of the C.P. Act of 1986 by the complainant seeking direction against Opposite Party (herein after called as OP) to pay compensation of Rs.50,000/- along with interest @ 24% p.a. from 28-10-2008 till realization of entire amount on an allegations of deficiency in service on the part of the OP.<br /> <br /> The case of the complainant to be stated in brief is that:-<br /> <br /> 2. Complainant has availed a credit card bearing No.4346781100967280 from the OP Bank. Complainant has used the credit card since long and made the payment regularly and not in arrears of any amount to OP. But OPs use to send the statements reflecting the late payment. Complainant approached OPs customer care several times but customer care refused to talk about the date of birth. Complainant sent on email to OP on 28-10-2008 regarding mis-match in date of birth further stated that the balance amount is ready. But OP failed to respond properly but sent e-mail to contact customer care. Complainant requested customer care of OP to rectify the fault of date of birth and waive the late payment charges. But OP without the knowledge of the complainant has withdrawn the amount from complainant’s Bank account which is against to the norms of the RBI. Complainant is not a defaulter. OP is sending bills after bills demanding payment though complainant has not used the credit card. Due to illegal withdrawal of the amount by OP complainant is put to great hardship has to delay the payments for his commitments. Complainant put to mental torture, humiliation. Complainant is ready to surrender the said credit card to the OP. Hence complainant got issued legal notice on 20-05-2009. OP gave the untenable reply. Complainant felt deficiency in service on the part of the OP.<br /> <br /> 3. On appearance OP filed version mainly contending that complainant is not a consumer. The transaction between the complainant and OP’s is of a borrower and financier relations. Complainant is having credit card bearing No.4346-7811-0096-7280 issued by the OP, having credit limit to the extent of Rs.50,000/-. Complainant very well utilized the card as per his whims and fancis. Complainant failed to make the payment of minimum amount due as per respective statements of account. Complainant failed to make such payment then he will be liable to pay interest, finance charges and other charges applicable on the due amount as per card member agreement. Complainant is a chronic defaulter in repayment from the beginning hence all charges are charged by OP. Complainant was in due of Rs.11,258-50 to OP on 07-12-2008. Inspite of repeated receipt of monthly statement of account, demands and remainders complainant failed to come forward to pay the outstanding amount. Therefore OP left with no other alternatives caused notice to pay the amount as per the statement of account dated 07-12-2008 within 7 days from the date of receipt of notice otherwise it will mark the general lien on the deposit of the complainant available with the OP. Accordingly OP withdrawn Rs.6,809-54 on 19-12-2008 and adjusted to the said credit card account. Still complainant is in due of Rs.9,643/- to OP as on 04-12-2009. There is no illegality on the part of the OP. Working of ‘General Lien’ is permitted under the card member agreement which reads as under:<br /> “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 Card member and /or Add-on Card member 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 Card member and/or Add-on Card member 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 Card member and/or Add-on Card member, 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 Card member and/or Add-on Card member.” <br /> <br /> Among other grounds OP prayed for dismissal of the complainant. <br /> <br /> 4. In order to substantiate the complaint averments affidavit evidence filed by Mr.Rajesh who is a power of attorney holder of complainant and produced G.P.A, statement of account for the month of October, November, December’ 2008, February, April and June -2009, notice issued by OP dated 04-12-2008, reply notice of complainant dated 20-05-2009 and notice dated 27-05-2009 issued by OP and email correspondences. On behalf of OP Mr.Satish Kumar, G.P.A holder of OP’s Bank filed affidavit evidence and both the parties submitted written arguments. Then oral arguments heard.<br /> <br /> 5. From the above pleadings the points that arise for our consideration are as follows:<br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 6. We have gone through the pleadings of the parties, documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on the above points are:<br /> Point No.1:- Negative<br /> Point No.2:- Negative <br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> 7. At the outset it is not in dispute that the complainant availed credit card bearing No:4346781100967280 from the OP long back and used to make the payment regularly and was not in arrears of any amount. But OP used to send the statements reflecting the late payment fees. Complainant approached OP’s customer care several times for to talk about the wrong date of birth OP’s customer care refused to talk about same. Complainant sent an email on 28-10-2008 to that effect stating payment is ready without late payment charges. Send your representative to collect the same. The copy of the email is produced, on 29-10-2008 OP replied stating it has arranged one of its customer service executive to contact the complainant regarding card account shortly. Copy of the email is produced. Complainant stated in her affidavit OP has not informed the complainant but withdrawn the amount without her knowledge. This contention of the complainant cannot be accepted. Complainant has not mentioned anything about the notice issued by OP dated 04-12-2008, one who seeks remedy must approach the Forum with clean hands. In her complaint the complainant herself has produced the notice issued by OP stating as on 04-12-2008 her credit card balance is Rs.10,883-16. If complainant fails to pay within 19-12-2008 balance available in her HDFC Bank shall be debited to card account exercising Bankers Lien and Right of set off vide the cross default clause of the card member agreement. Further notice provides the contacting officer name and number. By sending emails to OP or failure on the part of OP to send any executive to discuss the matter will not absolve the complainant from her liability to make the payment. When complainant failed to make the payment of minimum amount due for the month of October, November, December’ 2008 on 19-12-2008 OP exercised the Banker’s right of lien and deducted available balance of Rs.6,809-54from the HDFC Account of the complainant.<br /> <br /> 8. As per the demand statement dated 07-10-2008 complainant utilized the card. She has not made the payment. She herself being a defaulter’s she cannot allege deficiency in service on the part of the OP. OP is having Banker Lien and Right of set off which reads as under :<br /> <br /> “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 Card member and /or Add-on Card member 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 Card member and/or Add-on Card member 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 Card member and/or Add-on Card member, 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 Card member and/or Add-on Card member.” <br /> <br /> 9. The main grievances of the complainant is that she has approached the customer care and given mobile number requesting to rectify the fault of date of birth and wave the late payment charges and to intimate to same to her, but without her knowledge OP has withdrawn the amount from her bank account and adjusted the same towards the dues of credit card account. As already observed OP has issued notice to the complainant on 04.12.2008 to pay the credit card account balance of Rs.10,883-16 and 7 days time was given to pay the same. In the event of failure to pay the same she was informed that the amount available in her HDFC bank account will be adjusted towards the amount due in credit card account by exercising the ‘cross default’ clause of the ‘card member agreement’. Thus it becomes clear that inspite of giving opportunity to pay the credit card balance amount, the complainant failed to pay the same. The OP bank by exercising the right of “General lien” on the deposit account of the complainant to an extent of Rs.6809-54 on 19.12.2008 withdrawn the same and adjusted to the credit card account. Under these circumstances we are of the view that OP is justified in its action of adjusting the amount available in the HDFC bank account of the complainant to the credit card account due. Therefore we are unable to hold that there is any deficiency in service on the part of the OP. After receipt of the notice dated 04.12.2008 nothing prevented the complainant to pay the admitted amount due and then she could have challenged with regard to other dues claimed. The complainant had not at all paid any amount. In view of the same complainant is not entitled for the reliefs claimed. Accordingly while answering point No.1 and 2 in negative. We proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is dismissed. In view of nature of dispute no order as to costs. <br /> <br /> Send copy of this order to both the parties free of costs. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 6th day of April 2010.) <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> NRS<br /> <br /> <br /> ORDER PRONOUNCED IN THE OPEN FORUM<br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is dismissed. In view of nature of dispute no order as to costs. <br /> <br /> Send copy of this order to both the parties free of costs. <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br />