Tamil Nadu

South Chennai

CC/80/2013

Ms. Shirly Catherine Monica, - Complainant(s)

Versus

HDFC Card Division - Opp.Party(s)

V.J.Arunkanagaraj

07 Dec 2021

ORDER

 

                                                                                                                                                                 Date of Complaint Filed: 08.03.2013

                                                                                                                                                                 Date of Reservation: 17.11.2021

                                                                                                                                                                 Date of Order: 07.12.2021

                                                                                                       

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH)

 

Present:

 

                  Thiru. R.V.R. Deenadayalan, B.A., B.L.                                  : President

                 Thiru. T. Vinodh Kumar, B.A., B.L.                                          : Member

 

CONSUMER COMPLAINT No.80/2013

 

TUESDAY, THE 07^th DAY OF DECEMBER 2021

                                

 Ms.Shirly Catherine Monica,

D/o.P.K.Christopher,

No.28/25, Ramanuja Nagar,

Ayyanavaram, Chennai – 600 023.                                                           .. Complainant. 

 

                                                          ..Versus..

1.HDFC Card Division,

    Rep. by its Legal Manager,

    No.8, Lattice Bridge Road,

    Thiruvanmiyur, Chennai 600 041.

 

2.HDFC Bank, Rep.by its Branch Manager

    No.40,Nungambakkam High Road,

    Chennai – 600 034.                                                                        ..  Opposite parties.

******

Counsel for the complainant                            : M/s.V.J.Arun Kanagaraj, Advocate,

Counsel for the opposite parties                     : M/s.Deepa Harigovind, Advocate.

 

 

            On perusal of records and after having heard the arguments of both sides we delivered the following:

 

ORDER

Pronounced by the President Thiru. R.V.R. Deenadayalan, B.A., B.L.

 

            The complainant has filed this complaint under section 12 of the Consumer Protection Act, 1986 for seeking direction to pay a sum of Rs.5,00,000/- towards compensation for mental agony and cost of proceedings to the complainant.

2. In order to prove the case, on the side of the complainant proof affidavit submitted as his evidence, documents Ex.A1 to Ex.A9 were marked and written argument filed.  While so, on the side of the opposite parties proof affidavit submitted as their evidence, documents Ex.B1 Ex.B8 were filed and written argument filed.

            3. The averments of the complaint in brief are as follows:-

            The complainant is having bank account No.0082114016783 with the 2^nd opposite party.  The complainant is availed credit card facility with the 1^st opposite party in the year 2006 and his credit card No.4346772002544384. The complainant used her credit twice or thrice only and also paid minimum amount to the 1^st opposite party.  The complainant did not used her credit card from the year 2007 but the 1^st opposite party periodically demanded on 14.03.2012 and 04.04.2012 to settle the outstanding due.  The complainant has not accepted the demand made in her account statement. 

            4. Therefore the complainant issued notice requesting to furnish details of statement of accounts and such other document to enable her to defend the claims.  On 08.11.2012 the 1^st opposite party informing the complainant that the bank has placed a “Hold on Funds” in her HDFC Bank account No.008211406783 with the 2^nd opposite party in order to exercise their option “the Banker lien and right of set off” further she was asked to settle the outstanding amount within 7 days failing which, the said outstanding amount shall be debited from her HDFC Bank account maintained with 2^nd opposite party. The opposite parties have no authority to attach the funds as its own without getting proper order from the court of law in case of dispute among the parties.  The Banks sue Moto action of “Hold on Funds” and exercising the Banker Liens and right of set off: is against Law and principles for natural Justice.  Being customer of 2^nd opposite party, they shall not allow the 1^st opposite party to debit the said outstanding amount of Rs.50,724.99/- paisa from the complainant bank account and credit to her 1^st opposite party account without her consent or knowledge. Hence this complaint.

            5. Written version of opposite parties in brief:-

            It is submitted that in pursuant to an application for a credit card from the complainant the opposite party was issued the credit card bearing No.4346 772002544384 with effect from 15.05.2006.  The complainant while applying for the said credit card conclusively accepted to be bound by the terms and conditions of the card member agreement pursuant to which the opposite party was issued the credit card.  Further the use of the credit card by the complainant is deemed acceptance of the said terms and conditions.  The said card member agreement was issued to the complainant along with her credit card.  Hence the complainant was aware of the terms and conditions stipulated in the card member agreement.

            6.  It is further submitted that details as to payment of “Fees and Service Charges”, Interest and Payment and monthly repayments to card members card account and ‘statement of account’ are explained in detail in the card member agreement.  Details as to “disputes” are also provided in the Card Member Agreement under the head ‘Most important terms and conditions (MITC).  This document contains complete information on “Fees and charges”, “Cash Advance Fees”, “Late fee charges” and “Finance Charges” which are applicable to all the customer of the opposite parties including the complainant. It is submitted that the said document was sent to the complainant along with credit card and card member agreement. The complainant entered into various cash retail transactions using her credit card and the same being reflected in the monthly statement which were issued to the complainant.  The said statements also stated the outstanding dues payable by the complainant to the opposite party pertaining to her credit card.

            7. The complainant in spite of acknowledging receipt of such statements and thus being aware of the outstanding dues payable by her to the opposite party wilfully defaulted in payment of his outstanding dues.  While the complainant was repeatedly called upon to repay her dues, she fraudulently failed to make payment despite several reminders and requests.  The credit card statements issued to the complainant from 14.06.2006 till 31.07.2012. The said card account charged off on 31.07.2012. Further owning to non receipt of payment, Lien was marked on the card account & set off was done for a sum of Rs.50,724.99/- on 23.11.2012 which the opposite party is entitled to and detail of which are enumerated in the card member agreement.  The opposite party was well within their right to place a “Hold on Funds” in respect of the complainant’s account 00821140167831 and debit a sum of Rs.50,724.99/- from the  said account by exercising their option of “Banker’s Lien and Right to set off: and hence there was no deficiency in service on the part of the opposite party. Entire complainant and allegations revolve upon the accounts and the payments made by the complainant and as such the complaint itself is not maintainable as disputes with regards to accounts have to be referred to before a competent civil court for proper rendition of account and the complainant failed to do so, instead filed the present complaint with false and untenable allegations. Hence it is requested to dismiss this complaint.

            8.The points for consideration are:-

            1) Whether there is any deficiency in service on the part of the opposite parties?

2) Whether the complainant is entitled to get reliefs as claimed in the complaint?

3) To what relief the complainant is entitled to?

9. Point No.1:-

            It is an admitted fact that the complainant is having Saving Bank Account with the HDFC Bank/2^nd opposite party herein.  It is also an admitted fact that the complainant having credit card facility with the HDFC Card Division/1^st opposite party herein.  According to the 1^st opposite party that there was an outstanding due amount of Rs.50,724.99/- in the credit card account.  In spite of repeated demands complainant failed to repay the outstanding due amount. Hence the 1^st opposite party “Hold on Funds” in the Saving Bank Account maintained by the complainant with the 2^nd opposite party and also using Normal Banker’s lien debited the outstanding due amount and credited in the account of the 1^st opposite party by  right to set off. Now there is no dispute in respect of outstanding due amount of the complainant. The only allegation is that the 1^st opposite party has no right either “Hold on Accounts””or “Right to set off” the amount which is kept in the account of 2^nd opposite party and also the 2^nd opposite party does not permit the 1^st opposite party to do the above act.  For that the learned counsel for the complainant submitted under Section 171 of Contract Act “Bankers in the absence of a contract to the contrary, retain, as a security for a general balance of account, and goods bailed to them” from this it is very clear and unambiguous that the rights of general lien of the banker can be availed only to the goods bailed to them

            10. Section 148 of the contract act defines the word Bailment. As per said section bailment is the delivery of goods by one person to another for same purpose upon a contract that they shall, when purpose in accomplished, be returned or otherwise disposed of according to the directions of the persons delivering them. Here in this case the amount of saving bank account on the complainant was not delivered to the bank for same purpose, here for payment of credit card and further there was no specific direction by the complainant that the said amount in the savings bank account may be disposed of in the event of default in the payment of card account.  The amount in the saving bank account of the complainant was not the goods bailed to them and as such the opposite party has no right or authority to place “a Hold on Funds” in respect of complainant’s saving bank account and further has no right to exercise the option of “Banker’s lien and right to set off”.

            11. Further it is argued that there is no agreement between the complainant and the bank relating to exercise of lien over the saving bank account of the complainant.  The document Ex.B3 the sample card member agreement produced by the 1^st opposite party does not create any liability to the complainant.  There must be an agreement between the complainant and the banker’s and then only a contract between the parties was effected. The amount in the saving bank account lodged with the 2^nd opposite party is strictly a loan to the bank. The banker in connection with the savings bank account is a debtor.  As such the complainant would accordingly cease to be the owner of the money in the said savings bank account.  The said money becomes the money of the bank enabling them to do as it likes, that however with the obligation to repay the debt as and when required by the customer, the amount in the saving bank account is not a bailment and as such the bankers has no right to exercise the banker’s lien over the said savings bank account.  In short the banker’s lien can properly be said to arise only in respect of any of the securities held by the bank and the bank has a lien over these securities and it could hold them against the amount due by the customer. Further it is argued that the account maintained by the complainant is the 2^nd opposite party is a Salary Account and it cannot be debited by using general lien of Bankers.

            12. It is an admitted fact that the complainant availed credit card facilities and that there was an amount of Rs.50,724.99/- is the due to the opposite party.  The complainant failed to repay the availed credit card amount along with accrued interest and other charges.  Even after repeated demands made by the opposite party the complainant has not repay the loan and thereby the opposite party finally sent a notice informing to the complainant that the 1^st opposite party has placed a “Hold on Funds” in her HDFC Bank Account No.0082114016783 in order to exercise their option of “the Banker lien and right of set off” further it is informed to settle the outstanding amount within 7 days failing which, the said outstanding amount shall be debited from her HDFC Bank Account maintained at 2^nd opposite party herein, but the complainant has failed to settle the amount.  Hence the opposite party debited the outstanding amount from the complainant’s HDFC bank account. 

13. First of all the account maintained by the complainant with the 2^nd opposite party is not a salary account.  It is only a saving banks account.  Secondly complainant is a defaulter, the defaulter claim right over the principal.  Further the claim made by the complainant requires lot of evidence to decide the issues and in this case question of law also involved.  It cannot be decided by way summary procedure it require full trail and it can be decide only by a competent civil court.  Under these circumstances, we found that there is no deficiency in service on the part of the opposite parties. Accordingly point No.1 is answered.  

            14. Point Nos.2&3:-

            We have discussed and decided that the opposite parties have not committed deficiency in service on their part and therefore the complainant is not entitled to get any reliefs as claimed in the complaint. Accordingly point Nos. 2&3 are answered.

            In the result, this complaint is dismissed.  No costs,

            Dictated to steno-typist, transcribed and typed by him, corrected and pronounced by us in the open commission, on this the 07^th day of December 2021.

 

 T. VINODH KUMAR                                                                                                           R.V.R.DEENADAYALAN

         MEMBER                                                                                                                           PRESIDENT

 

 

 

            List of documents filed by the complainant:-

 

Ex.A1	04.04.2012	Particulars of Documents.	Xerox
Ex.A2	18.04.2012	Notice sent by 1st opposite party.	Xerox
Ex.A3	08.05.2012	Reply sent by complainant.	Xerox
Ex.A4	15.05.2012	Reply sent by the complainant.	Xerox
Ex.A5	08.11.2012	Notice sent by the opposite party	Xerox
Ex.A6	25.11.2012	Notice sent by complainant.	Xerox
Ex.A7	31.12.2012	Reply sent by the 2nd opposite party	Xerox
Ex.A8	18.12.2012 to 22.12.2012	Discharge summary, (Medical Bills (series)	Xerox
Ex.A9		Statements of account of the complainant.	Xerox

 

List of documents filed by the opposite parties:-

Ex.B1		Power of attorney.	Xerox
Ex.B2		Card application	Xerox
Ex.B3		Card usage guide and card member agreement with MITC (sample)	Xerox
Ex.B4	Nil	Most important terms and conditions (sample)	Xerox
Ex.B5	14.06.06 31.07.12	Statement of accounts	Xerox
Ex.B6	30.11.12	Consolidated statement	Xerox
Ex.B7	04.04.12	Legal notice issued on behalf of op to the complainant.	Xerox
Ex.B8	14.08.12	Legal notice issued on behalf of op to the complainant.	Xerox

 

 

 

 

VINODH KUMAR                                                                                                           R.V.R.DEENADAYALAN

         MEMBER                                                                                                                           PRESIDENT