DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VII (SW)

[GOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI]

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SHAKAR BHAWAN

Date of Institution: 17.10.2017

Order reserved on : 24.03.2023

Date of Order : 31.03.2023

CASE NO. CC/521/17

In the matter of:

Prem Malhotra,

S/o Lt M.L. Malhotra,

R/o ED-45B, Pitampura,

Delhi.

       ….                  Complainant

VERSUS

HDFC Bank Limited,

Through its Branch Manager,

Unit No 1, A91,

Okhla Industrial Area, Ph-II,

New Delhi-110020.

Also at it’s Registered Office

HDFC Bank House,

Senapatibapat Lower Parel (West)

Mumbai - 400013                                       ….                   Opposite Party

O R D E R

(By SH. SURESH KUMAR GUPTA, PRESIDENT)

1. The complainant has filed a complaint under Section 12 of Consumer Protection Act 1986 (hereinafter referred to as Act) with the allegations that a credit card bearing number 5176521006650701 with credit limit of Rs 70,000/- was issued by OP to him. A dispute has arisen between them which was duly settled in June 2018. He was to pay a sum of Rs. 68180/- in 08 equal installments of Rs. 8522/- each.  06 cheques were duly cleared whereas 02cheques were dishonored upon which he has deposited cash in lieu of dishonored cheques. On 16.12.2009, a sum of Rs. 9180/-was withdrawn from his savings bank account without his consent or approval which is evident from the bank statement for the month of Dec, 2009. In Feb, 2011. OP has issued a legal notice to the effect that they have not received the payment of credit card.  The legal notice was duly replied.  No communication was received from the OP thereafter.

2.  He is having a salary account bearing number 501001984316631 with the OP. In April, 2017 he has applied for fresh credit card at the request of the executive of OP.  On 30.05.2017, he was surprised to notice that a sum of Rs. 70,627/- has been blocked by OP and on 14.6.2017, a sum of Rs.70627/- was illegally withdrawn from his bank account.  He contacted OP and came to know that there is an outstanding amount of Rs. 74,000/- against him.  The withdrawal of money from his bank account without his consent and knowledge tantamounts to unfair trade practice.  There is a deficiency in service by way of withdrawing the amount from his bank account.  He has issued a legal notice dt 24.6.2017 to the OP which was duly replied on 18.07.2017.  Hence, this complaint.

3. The OP has filed a reply wherein preliminary objections qua suppression of material facts, maintainability, cause of action and complaint is filed with baseless allegations against the OP are raised.  On merits, it is averred that OP is a banking company and engaged in the business of banking, financing and providing credit card facilities to the customers. Ms. Jyoti Rani is the Legal Manager of the OP and duly authorized through power of attorney to file the case.  A credit card bearing no.5176521006650701 was issued to the complainant on filing credit card application form. The credit card agreement is duly received by the complainant which contains the detailed information including late fee charges.  The complainant has defaulted in making the payment and settlement between the parties took place.  The complainant was to pay Rs. 68,187/- in 08 installments out of which 04 installments were of Rs 8522/- and 04 were of Rs. 5523/-.  The amount was to be payable by Feb, 2009.  The complainant failed to abide by the settlement and defaulted in making the entire payment.  The OP has requested the complainant to honour the settlement but in vain.  The settlement has become null and void as per third term & condition of settlement.  On 01.12.2009, OP has placed hold on funds of Rs. 23245.68 in favour of OP due to Bankers lien and right of set-off.  A letter dt 04.02.2011 was issued to the complainant for conciliation of the dispute but in vain. In May, 2017, OP has issued a notice dated 30.5.2017 by stating that bank has placed hold on funds of Rs. 706327.58 in the HDFC Bank by exercising bankers lien and right to set-off due to irregular payment.  There is no unfair trade practice.  There is no deficiency in service.  The amount has been withdrawn by exercising Bankers’ lien and right to set-off.

4. The complainant has filed the rejoinder wherein the facts of the complaint are reiterated and denied the averments of the reply. Both the parties have led the evidence by way of Affidavit.

5. We have heard Ld. Counsel for the parties and pursued the entire evidence including documentary evidence on record.

6.  It is clear from the material on record that OP has issued a credit card bearing number 5176521006650701 to the complainant.  There was some dispute for the payment and accordingly on 15.07.2008 a settlement has taken place between both the parties whereby complainant was to pay a sum of Rs. 68,180/- by way of 08 equal installments of Rs. 8522/- each. Annexure F (though not exhibited as Ex CW1/1 as shown in the Affidavit of the complainant) is the settlement.  The third term & condition of the settlement show that if the repayment schedule is not adhered to, the settlement would be rendered null & void and complainant will pay the entire outstanding amount.  The reply of the OP shows that entire amount was to be paid by Feb, 2009.

7. The complainant has paid 05 installments by Feb 2009 in terms of settlement whereas 03 installments were paid after Feb, 2009 due to dishonor of the cheques. The complainant has deposited the entire settlement amount by 25.09.2009. The OP has withdrawn a sum of Rs 9180/- from the bank account of complainant which is evident from bank statement which is Annexure C (though shown as exhibit CW1/3 in the Affidavit of complainant but exhibit is not put on the document).

8. The OP has not issued any letter to the complainant that the entire settlement has not been paid by Feb, 2009 so the settlement has become null & void. 

9.  The OP has issued a notice dated 01.12.22009 to the complainant that there is credit balance of Rs. 61826/- and funds of Rs. 23245.69 have been put on hold.  This notice nowhere shows that the settlement dt 15.7.2008 has become null & void as third term & condition of the settlement was not fulfilled.

10. The OP has issued a letter dt 04.02.2011Annexure I(shown as Ex OP-1/1 in the Affidavit of the Ms. Jyoti Rani) whereby complainant was invited for the conciliation for outstanding dues of Rs. 87685.20 but complainant did not respond to it.

11. The complainant is having salary bank account bearing No 501001984316631 with the OP.  The OP has put a sum of Rs. 70627.58 on hold which is evident from Annexure J (shown as Ex CW1/6 in the affidavit of the complaint but NA exhibited). The OP has withdrawn a sum of Rs. 70627/- from the salary account of the complainant which is even evident from the reply dt 18.7.2007. Annexure L (shown as Ex OP-1/I in the affidavit of Ms Jyoti Rani) to the legal notice dated 24.6.2017 issued by the complainant.

12. There is no dispute about the preposition of Law that the bank has a right to lien and set-off for the irregular payment of the customer.  The question in this case is whether OP could have deducted a sum of Rs. 70627/- under the premise of right of lien and set-off.

13. The settlement has taken place between the parties on 15.07.2008.  The complainant was to pay the entire amount by Feb, 2009 but he has made the entire payment by 25.09.2009.  The OP has received the entire payment in terms of settlement though there was delay on the part of complainant.

14. The Op could have issued a notice to the complainant that the settlement has become null & void so he is liable to make the payment of entire outstanding dues instead of settlement amount. No such notice was given by the OP to the complainant. The complainant has deposited the entire settlement amount and remained under the impression that he has only to pay the entire settlement amount even if there is delay.  The non-action on the part of the OP has led to the deposit of entire settlement amount on the part of the complainant.

15. There was withdrawal of a sum of Rs. 70,627/- from the account of the complainant after a considerable lapse of time that too from his salary account.  The OP has taken the due twice from the complainant i.e. one by way of settlement and another by withdrawing a sum of Rs. 70,627/- from the account of complainant.  The OP ought to have returned the amount in case settlement was not honoured in time by the complainant.
16. All these facts show that OP is not only in-deficient in providing proper service to the complainant rather unfair trade practices have been adopted. The action on the part of OP has affected the CIBIL Score of the complainant due to deficiency in services on the part of the OP.

17. Keeping in view the aforesaid discussion, we have no hesitation to conclude that there was deficiency in service on part of the OP and accordingly, complainant is allowed.

18.  The OP is directed to refund the sum of Rs. 70627/- along with interest @ 6% from the date of withdrawal of the amount on 14.06.2017  from the account of the complainant along with compensation for a sum of Rs. 10,000/- for mental harassment and agony suffered by the complainant.

19. OP is directed to comply with the order within 45 days of receiving copy of this Order failing which rate of interest will be applicable from the date of filing of the complainant till its realization.

• Copy of this order be given free to the party.

• The file be consigned to record room thereafter.

• Announced in open court.