DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Rajinder Kaur w/o Vinod Kumar, resident of H.No.1415/2, Sector 30-B, Chandigarh.

…..Complainant

                                      V E R S U S

1.       HDFC Bank through its Managing Director, HDFC Bank Cards Division, 8, Lattice Bridge Road, Thiruvanmiyur, Chennai.

2.       HDFC Bank through its Branch Manager, SCO No.850, NAC Manimajra, District UT, Chandigarh. 

……Opposite Parties

QUORUM:   P.L.AHUJA                                                  PRESIDENT

                   RAJINDER SINGH GILL                                MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA         MEMBER

For Complainant:        Sh.Harpreet Singh, Proxy Counsel for

                                      Sh.P.I.P Singh, Advocate.

For OPs:                         Sh.Sandeep Suri, Advocate.

PER P.L.AHUJA, PRESIDENT

1.                Smt.Rajinder Kaur, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against HDFC Bank & Anr. - Opposite Parties (hereinafter called the OPs), alleging that she had taken credit card facility vide card account No.5176351003156936 from OP No.1. The complainant kept on using the card and making the payments to the OPs. However, due to certain circumstances, the payment of the complainant towards the credit facility became irregular due to which a dispute arose, which was settled vide settlement offer letter dated 28.3.2007 – Annexure C-1.  The complainant was asked to deposit the outstanding amount of Rs.11,591/- which was duly deposited by her vide receipts – Annexure C-2 to C-5.  The complainant was assured by the officials of the OPs bank that nothing was due on account of the said credit card. In the year 2010, the complainant opened an account No.04351000064279 with OP No.2 and she was shocked to receive notice dated 20.9.2010 – Annexure C-6 whereby she was informed that the bank has placed a “hold on funds” in her newly opened bank account in order to adjust some outstanding of her credit card account. Thereafter, the complainant received another notice dated 11.6.2012 – Annexure C-7 on 11.6.2012 wherein the OPs bank have shown outstanding of Rs.1,11,310/- on account of the credit card, which was held by the complainant way back in 2007.  The complainant has alleged that the said account was fully and finally settled and closed in the year 2007 and there was no question of usage of the credit card at all and OPs bank have indulged into unfair trade practice. The complainant has made a prayer for a direction to the OPs to refund the sum of Rs.6,000/- along with interest and also to pay a sum of Rs.1 lac towards compensation for harassment and Rs.33,000/- towards litigation costs.

2.                OPs in their written reply have pleaded that the complainant having availed the facility of a credit card was duty bound to return the money on or before the due dates and in case of failure she was liable to pay the amount with late payment charges. It has been averred that the complainant was liable to pay an amount of Rs.26,779/- as on 28.3.2007. However, a reduced settlement was offered vide letter dated 28.3.2007 for an amount of Rs.11,591/- against the payable amount of Rs.26,779/-.  It has been averred that the complainant did not make the payment as and when due and in fact the payments were not made by her in time at all for several months and only fraction of payments were made.  It has been averred that as per the settlement in question the payment on due dates was sacrosanct and it was specifically mentioned that failure to honour commitments as detailed in the payment schedule will result in immediate cancellation of the offer. It has been stated that the complainant made late payment and the settlement ceased to exist and the full amount became payable with overdue and late payment charges. A lien of Rs.6,000/- was marked on the account on 20.9.2010 and Rs.5933.04 were debited from the bank account and credited into the credit card account towards a part payment of the dues of the bank.  It has been stated that the complainant was a chronic defaulter and in order to recover the part of its liability the bank was forced to enter into a one time settlement with the complainant.  It has been averred that the time was the essence of the agreement but the complainant failed to abide by the same, therefore, the settlement became null and void.  It has been stated that the bank was able to trace the complainant’s accounts and it rightfully exercised its right of lien on account of non payment of the bank’s dues. It has been stated that due notices were issued to the complainant vide letters dated 20.9.2010 and 11.6.2012 and the complainant willfully evaded payments of the outstanding dues thereby constraining the bank to invoke the banker’s lien.  It has been further stated that Section 3 of the Limitation Act only bars the remedy but does not destroy the right, which the remedy relates to. The right to the debt continuous to exist notwithstanding the remedy is barred by limitation.  

3.                The parties led evidence in support of their contentions.

4.                We have gone through the entire evidence and written arguments submitted by the learned Counsel for the parties.

5.                It is the admitted case of the parties that the complainant had taken a credit card facility from OP No.1 in which a dispute arose, which was settled vide letter dated 28.3.2007 – Annexure C-1. The first question that arises for determination is whether the complainant complied with the commitments detailed in the payment schedule of the Settlement Offer Letter dated 28.3.2007 – Annexure C-1 or not.  A perusal of the settlement offer letter shows that the complainant was required to make the payment of Rs.11,591/- as under :-

28.3.2007                                Rs.3891/-

20.04.2007                              Rs.3850/-

20.05.2007                              Rs.3850/-

However, the copies of receipts – Annexure C-2 to C-5 show that the first installment of Rs.3900/- was paid on 29.3.2007 by cash vide receipt, copy of which is Annexure C-3, the second installment of Rs.3850/- which was to be paid on or before 20.4.2007 was paid on 28.4.2007 vide receipt, copy of which is Annexure C-2. As far as the question of payment of third installment of Rs.3850/- on 20.5.2007 is concerned, it is pertinent that an amount of Rs.3400/- was paid on 5.6.2007 vide receipt, copy of which is Annexure C-4 and an amount of Rs.450/- was paid on 20.12.2007 vide receipt, copy of which is Annexure C-5.  Significantly it was clearly mentioned in the Settlement Offer Letter – Annexure C-1 that failure to honour commitments as detailed in the payment schedule will result in immediate cancellation of the offer.  The complainant did not make the payment as per the settlement, therefore, we feel that on account of the default committed by the complainant, she was liable to pay the full amount payable against the said credit card. In HDFC Bank Limited Vs. Raj Kumar, First Appeal No. 439 of 2010, decided on 18.8.2011 by the Hon’ble State Commission, UT, Chandigarh, it was found that once the schedule was violated by the complainant, the entire amount had become due and the making of the subsequent payments did not amount to the payments made in full and final settlement of the claim.

6.                The next question for determination is whether the OPs had a right to mark a lien of Rs.6,000/- on the account of the complainant on 20.9.2010 and credit into the credit card account towards the part payment of the dues of the bank or not. The notice dated 20.9.2010 – Annexure C-6 by the OPs to the complainant shows that further to the suspended status of her credit card account owing to irregular payment of amounts due despite repeated reminders by way of telephonic calls and letters, the bank had placed a ‘hold on funds’ in HDFC Bank account No.04351000064279 by exercising the ‘Bankers lien and Right of Set off’ option to the extent of the balance available in the account of the complainant as on 20.9.2010.  The learned Counsel for the OPs has drawn our attention to Syndicate Bank Vs. Vijay Kumar and others, AIR 1992 SC 1066, Allahabad Bank & Anr. Vs. Sushil Kumar Das, 1996(3) CPR 133 (NC), Union Bank of India & Ors. Vs. Surana Bangles , II(2006) CPJ 324 (NC), Manager, Karnataka Bank Ltd. & Anr. Vs. Puttamade Gowda II(2004) CPJ 59 (NC), M.Mallika Vs. State Bank of India & Anr. IV(2006) CPJ 1 (NC), wherein, it was found that by mercantile system the bank has a general lien over all forms of securities or negotiable instruments deposited by or on behalf of the customer in the ordinary course of banking business and that the general lien is a valuable right of the banker judicially recognized and in the absence of an agreement to the contrary, a banker has a general lien over such securities or bills received from a customer in the ordinary course of banking business and has a right to use the proceeds in respect of any balance that may be due from the customer by way of reduction of customer’s debit balance. The right of banker to exercise lien and transfer amounts has been upheld by the Hon’ble National Commission.  

7.                As far as the question of non issuance of notice by the OPs to the complainant before declaring any right of lien with them, since the right of lien has been upheld by the courts, and the notices – Annexure C-6 and C-7 were also given to the complainant, we do not feel that the bank was debarred from invoking the banker’s lien.

8.                The complainant has also contended that the OPs bank could not claim any right of lien for the settlement relating to the year 2007 after three years.  However, we are of the opinion that the OPs have rightly contended that the bank has a right to impose lien at any time because the debt stands. Section 3 of the Limitation Act only bars the remedy but does not destroy the right, which the remedy relates to. Apart from that, it is also worth noting that in this case the OPs have alleged in the notice – Annexure C-7 that the complainant was liable to make payment of an amount of Rs.1,11,310/- and she had committed criminal breach of trust and cheating. The allegations relating to the criminal breach of trust and cheating and the dispute relating to accounts require detailed evidence involving production of accounts and cross examination of the witnesses, which cannot be undertaken through the summary adjudication by this Forum.

9.                For the reasons recorded above, we do not find any unfair trade practice or deficiency in service on the part of OPs. Consequently the complaint is devoid of any merit and the same is dismissed, leaving the parties to bear their own costs. However, the complainant shall have a right to get the issues raised by her in this complaint resolved in the Civil Court.

10.              The certified copies of this order be sent to the parties free of charge. The file be consigned.