(Per Shri Narendra Kawde, Hon’ble Member) (1) This appeal is directed against the order dated 13/04/2012 in Consumer Complaint No.224/2010 (Smt.Arati Krishnan vs. H.D.F.C. Bank) passed by Mumbai Suburban District Consumer Disputes Redressal Forum at Mumbai (in short ‘District Forum’). The District Forum dismissed the consumer complaint filed by the present appellant/original complainant with certain observations that the respondent bank empowered to keep lien on the bank account of the complainant U/s.171 of Indian Contract Act, 1872 for recovery of the dues from the complainant allegedly debited on account of use of credit card by the complainant. The complainant aggrieved by the decision of the District Forum and preferred this appeal on the ground that final settlement of dues was worked out to `29,000/- as against the alleged outstanding amount of `51,098/-. As per the terms of settlement, the first installment of `4,000/- was paid to the opponent bank and rest amount of `25,000/- was to be paid in three installments. Though the first installment of `4,000/- was paid, it was not credited to her account and on relevant date, the outstanding balance was shown to `50,802.41 instead of `25,000/- as per the settlement. The opponent bank did not pay any heed to the request made subsequently and insisted for payment `50,802.41. The District Forum did not appreciate the facts of the case in proper perspective though the bank is clearly deficient in rendering service and erroneously passed the impugned order dismissing the consumer complaint as averred in appeal. (2) Undisputed facts are that: The appellant/complainant is a consumer of opponent HDFC bank in her capacity as account holder. The appellant/complainant was availing the credit card facility by using credit card issued in her name. The first credit card was lost on 25/04/2006 and therefore on intimation, the credit car was cancelled and de-activated w.e.f. 25/04/2006 and the new credit card was issued. There was dispute about the outstanding dues against the use of previous card. Later on, the settlement reached between the parties and the amount settled was arrived at `29,000/-. Out of this, first installment of `4,000/- was paid and accepted by the opponent bank leaving `25,000/- balance as outstanding. Undisputedly, this balance of `25000/- was to be paid in three monthly equal installments. However, though the amount was settled at 25,000/- after receiving payment of `4,000/- (`29,000 – `25,000) and yet outstanding amount to the complainant’s account was shown as `50,802.41. The appellant/complainant made grievance and refrained from settling this exaggerated amount of `50,802.41. Having paid `4,000/- against `29,000/-, the balance outstanding amount ought to have been shown as `25,000/-. However, the bank statement reflects outstanding amount as `50,802.41 as on 17/06/2006. The complainant did not make further payment of balance dues as per settlement and therefore at this point, dispute arose between the parties. Subsequently, without notice to the appellant/complainant, the opponent bank froze complainant’s S/B account and later on withdrew `80,488.62 from the S/B account of the complainant for settlement of alleged dues. Additionally, an amount of `350/- was debited against the complainant’ S/B account. (3) Heard the advocates of the parties and perused the record placed before us. The learned advocate of the opponent HDFC bank tried to bring to our notice the amount of settlement against the outstanding dues and particularly, to para 14 of the written version which empowers the bank to act without notice to create lien and right to set off for recovery of dues. We have carefully gone through the provisions enumerated in the written version. Copy of the agreement executed between the parties is not placed before us which provides for right of lien and set off as envisaged in the credit card agreement. Therefore, in absence of documentary evidence on record, relying on the provisions will be of no use for defence. The learned District Forum also erred relying upon provisions of Sec.171 of the India Contract Act, 1872 and arrived at the conclusion to dismiss the complaint. The relevant provisions of Sec.171 of Indian Contract Act, 1872 reads as under:- 171. General lien of bankers, factors, wharfingers, attorneys and policy-brokers. – Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain, as a security for a general balance of account, any goods bailed to them; but no other person have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect. (4) The provision is for creation of general lien of the bankers which can be invoked. However, this provision does not empower to resort to the action without notice to the complainant as opportunity of natural justice. In the case on hand, the opponent HDFC bank pleaded for existence of agreement between the parties in respect of the credit card account. This agreement is not before us. Even invoking any action to create lien or freeze the complainant’s S/B account and later on withdrawing the money for adjustment against the alleged dues has to be with prior intimation to the complainant as opportunity of natural justice. There is nothing on record to show that the opportunity of natural justice by issuing notice prior to freezing the S/B account and later on debiting sumptuous amount against the outstanding dues. Arguments advanced by the learned advocate of the complainant that no prior notice has been issued by the opponent bank while freezing and debiting account of the complainant, cannot be faulted with. The District Forum erroneously arrived at decision to dismiss the consumer complaint. Therefore, the order impugned is required to be quashed and set aside. We hold accordingly and pass the following order. ORDER 1. The appeal is allowed. 2. The impugned order dated 13/04/2012 passed in Consumer Complaint in 224/2010 by Mumbai Suburban District Consumer Disputes Redressal Forum at Mumbai is quashed and set aside. The consumer complaint is allowed. 3. The respondent/opponent bank is directed to pay an amount of `78,640.97 to the appellant/complainant with an interest @9% p.a. effective from 09/04/2010 till the realization of the amount. 4. The respondent/opponent bank shall bear its own costs and shall pay costs of `20,000/- to the appellant/complainant. 5. The respondent/opponent bank shall pay the amounts within 60 days from this order, failing which the amounts will carry further interest @6% p.a. till the realization of the amounts. Pronounced on 1st July, 2013. |
