PER SMT. JYOTI IYER - HON’BLE MEMBER :
1) This complaint has been filed by the Complainant against the Opposite Party alleging them of deficiency in service as well as guilty of practicing unfair trade practices firstly for delaying the delivery of credit card statement for the month of April-May,2007 and thereafter arbitrarily and illegally levying delayed payment charges i.e. interest, late charges etc. for non payment of credit card dues by the Complainant for the month of April,May-2007 and thereafter sending recovery agents for settlement and coercing the Complainant to pay the amount due, and on settlement by paying the actual dues by the Complainant for the month of April-May,2007, failing to reverse the charges as promised by the Opposite Party bank and thereafter sending statements reflecting dues alongwith delayed charges etc. payable by the Complainant and for directions to the Opposite Party for reversal of interest and late charges, and for issuance of proper correct statement reflecting all the payments made by the Complainant and no dues pending from the Complainants side and for paying Rs.50,000/- compensation towards mental agony and Rs.20,000/- towards cost of litigation and interest @ 18 % from 31/05/2007 till settlement on the above amount totalling to Rs.70,000.
2) The facts of the case in a nut shell are as follows –
It is the case of the Complainant that he has being a customer of H.S.B.C. Ltd. (Card Products Division) (for the sake of brevity and convenience hereafter referred to as Opposite Party) and a holder of H.S.B.C. Classic Credit Card being no.4563420001351874 since a decade and has never defaulted even a single time in making payments. It is contention of the Complainant that the Opposite Party did not deliver the Account Statements for the month of April-May,2007 in time despite several requests made to the Opposite Party. The Opposite Party thereafter sent account statements for the month of April-May,2007 and levied interest and late charges etc. The Complainant refused to pay the said charges towards delayed payment i.e. interest, late charges etc. as it is the contention of the Complainant that the account statement was not delivered to him in time and therefore, is not liable to make payment for late charges, interest etc. It is further the contention of the Complainant that on 22/08/2007 the Opposite Party sent a recover team for settlement though settlement not demanded by the Complainant by violating the Banking Code of Conduct. The Complainant agreed to pay Rs.9,963/- the actual amount due and payable by him and paid the same after deleting the arbitrarily amounts levied towards interest, late charges etc. only on the assurance given by the recovery team of the Opposite Party to reverse the interest, late payment charges and on issuance of correct statement to the Complainant within a weeks time. The Opposite Party, however, failed to reverse the interest, late payment charges and continued to send account statements for the period of 24/05/2007 to 23/06/2007 and 24/06/2007 to 23/07/2007 asking the Complainant to make payment for the same. The Complainant was therefore constrained to have a notice dated 24/09/2007 addressed on his behalf by the International Consumer Rights Protection Council to the Opposite Party placing the aforementioned facts on records and seeking compensation to the tune of Rs.5,000/- for deficiency in their services and conducting unfair trade practices by the Opposite Party however, in vain. Since the Opposite Party failed to comply with the said requisitions in the notice addressed on behalf of the Complainant. The Complainant was constrained to file the present complaint before this Forum for the aforementioned reliefs.
3) Pursuant to the issuance of notice the Opposite Party appeared and filed their written statement denying all the allegations made against them in the complaint. The Opposite Party admits that the Complainant had availed their credit card facilities and is holder of their H.S.B.C. Classic Credit Card being no.4563420001351874 since long. The Opposite Party contends that as per the terms and conditions and rules of the credit cards users booklet and accordingly the tariff charges were levied on Complainants card. The Opposite Party denies that there was delay of delivery of Complainant’s Credit Cards statement of account for the month of April, May-2007. The Opposite Party further states that the Complainant is bound to make payment as per bills or statement of Complainant’s credit card account raised by the Opposite Party. The Opposite Party offers no comments regarding reversal interest and late payment charges and issuance of proper correct statement and sending recovery team by them as alleged by the Complainant for settlement. The Opposite Party contends that the payment made by the Complainant is duly reflected in the Credit Card account maintained by the Opposite Party as and when payments are received. The Opposite Party denied the allegations of mental agony, inconvenience caused to the Complainant due to the conduct of the Opposite Party and therefore, denied to pay compensation to the Complainant and further denied that neither the Opposite Party is deficient in their services nor they are guilty of conducting of unfair trade practices. The Opposite Party states that no case for deficiency in service etc. is made out against them hence, they prays for dismissal of complaint with cost.
4) We have perused the complaint, written statement, affidavit-in-evidence, written arguments and all the documents filed by both the parties. So also heard the Complainant in person and the Ld.Advocate for the Opposite Party at length and considered all the rival contentions raised by both the parties. Our observation, reasons, findings are as follows –
5) There is no dispute regarding the Complainant being a Classic Credit Card holder being no.4563420001351874 of the Opposite Party. It is pertinent note that the Opposite Party has offered no comments, stated that the same is the matter of record to the stand taken by the Complainant that he is customer of the OP for more than a decade & never defaulted a single payment hence it appears that the Opposite Party is though not openly coming out with the truth but is not disputing the said stand of the Complainant. It is the contention of the Complainant that their was delay in delivery of credit card account statement for the period of April-May,2007 and therefore, the due payments for the said month could not be paid in time the Opposite Party is not justified in levying delayed payment charges i.e interest, late payment etc for the said period as no fault can be attributed to the Complainant. Contra the Opposite Party contends that there was no delay in delivery of the Complainant’s account statements for the period of April, May-2007 & the Complainant is bound to make payment as per Bills & Statement of the Complainant’s Credit Card Account raised by the Opposite Party. The Complainant in support of his contentions has produced the following documents alongwith the list of documents which are as follows –
1. Bank Statements at page no.7 & 8.
2. Payment receipt dtd.22/07/2007 for Rs.9,936/- at page no.9.
3. Bank statements of July-Aug.,2007 at page no.10.
4. Zerox copy of the letter dtd.12/09/2007 addressed by the Complainant to the Opposite Party at page no.11.
5. Notice by ICRPC dtd.24/09/2007 to the Opposite Party at page no.12.
6) On careful perusal of the Opposite Party bank statements filed by the Complainant alongwith his list of documents at pages no.7, 8, 10(1) & 10(2) respectively. The relevant extracts of the said statements are reproduced hereunder - which reflect the name of the Complainant alongwith his credit card number, etc. & the statement period is reflected at page no.7 is 24 MAY, 2007 TO 23 JUNE, 2007
POST DATE | TRAN DATE | TRANSACTION DETAILS | AMOUNT (INR) |
28 MAY 28 MAY 23 JUNE 23 JUNE 23 JUNE 23 JUNE |
28 MAY 28 MAY 23 JUNE 23 JUNE 23 JUNE 23 JUNE | OPENING BALANCE LATE PAYMENT CHARGE REFUND SERVICE TAX REVERSAL FINANCE CHARGE “SERVICE TAX-CESS” @12.36% LATE PAYMENT CHARGE “SERVICE TAX-CESS @12.36% | 12,480.67 349.63 CR 43.21 CR 364.95 45.11 350.00 43.26 |
Opening balance
12,480.67 | Payment and other credits
392.84
| New charges and debits
803.32 | Closing balance
12,891.15 |
The credit card statement period reflected at page no.8 is 24 JUNE, 2007 TO 23 JUL, 2007
POST DATE |
TRAN DATE |
TRANSACTION DETAILS |
AMOUNT (INR) |
23 JUL
23 JUL
23 JUL
23 JUL
23 JUL
23 JUL
23 JUL
23 JUL |
23 JUL
23 JUL
23 JUL
23 JUL
23 JUL
23 JUL
23 JUL
23 JUL |
OPENING BALANCE
4563 4200 0135 1874 DR SHANKARAPPA TALWAR
ANNUAL FEE
“SERVICE TAX + CESS” @12.36%
FINANCE CHARGE
“SERVICE TAX + CESS” @12.36%
LATE PAYMENT CHARGE
“SERVICE TAX + CESS” @12.36%
OVERLIMIT FEE
“SERVICE TAX + CESS” @12.36% |
12,891.15
700.00
86.52
375.08
46.36
395.78
48.92
500.00
61.80 |
Opening balance
12,891.15 |
Payment and other credits
0.00
|
New charges and debits
2,214.46 |
Closing balance
15,105.61 |
The credit card statement at page10(1) the period reflected is 24/07/2007 to 23/08/2007
POST DATE | TRAN DATE | TRANSACTION DETAILS | AMOUNT (INR) |
24 JUL
23 AUG
23 AUG |
OPENING BALANCE
PAYMENT – THANK YOU
FINANCE CHARGE
“SERVICE TAX + CESS” @12.36% |
15,105.61
9,963.00 C.R.
154.62
19.11 |
Opening balance
15,105.61 |
Payment and other credits
9,963.00
|
Purchases & other charges
173.73 |
Total payment due
5,316.34 |
The credit card statement at page10(2) the period reflected is 24/08/2007 to 22/09/2007
POST DATE |
TRAN DATE |
TRANSACTION DETAILS |
AMOUNT (INR) |
22 SEPT
22 SEPT
22 SEPT
22 SEPT |
OPENING BALANCE
FINANCE CHARGE
“SERVICE TAX + CESS” @12.36%
LATE PAYMENT CHARGE
“SERVICE TAX + CESS” @12.36% |
5,316.34
154.68.
19.12
350.00
43.26 |
The Opposite Party said statement also reflects “Due to non payment of arrears, we regret that we have had to cancel your account. The total outstanding balance of INR 5,88,83. 40 is now due for payment. Please call our collection representative if you are unable to make the payment requested”.
Opening balance
5,316.34 |
Payment and other credits
0.00
|
Purchases & other charges
567.06 |
Total payment due
5,883.40 |
The above relevant extracts of statements at page no.7 & 8 clearly reflect that the Opposite Party levied late payment charge over limit fee + finance charge + service tax + cess @ 12.36 % several times. Further the above relevant extract of statement at page no.10(1) clearly reflect that though the payment of Rs.9,963/- made by Complainant on 24 July, 2007 which the Opposite Party has acknowledge receipt of yet the Opposite Party have shown interest and late fee charges despite receiving the actual amount of Rs.9,963/- due and payable by the Complainant. and inspite of all payments made by the Complainant the statement at page no.10(2) still reflects total payment due of Rs.5883.40 by the Complainant.
The Complainant has alongwith his list of documents at page no.9 produced the receipt of the Opposite Party Bank in his name which reflect the credit card account number. The cheque no., date, bank, branch, etc. and the amount reflected is Rs.9,963/- only. Authorize Collection Firm Suryaarsh, name of the collector – Prasanna Puranik, dtd.22/07/2007.
7) In view of the above documentary evidence we find substantial force and truth in the contention raised by the Complainant. It is pertinent to note that the Opposite Party have not disputed the above referred statements and nor can they dispute the same as they are issued by them. It is also pertinent to note that the Opposite Party have disputed that there was no delayed delivery of the statement for the month of April-May,2007 but have failed to produce any documentary evidence as to when the said statements for the month of April-May,2007 was delivered to the Complainant. Hence, the contention of the Opposite Party that there was no delay in delivering the statement for the month of April-May,2007 cannot be upheld and therefore, is rejected.
8) On careful perusal of the letter dated 25/10/2007 at page WA.-3 annexed to the Complainant’s written argument addressed by the Opposite Party to the Complainant. The contents of the said letter are reproduced hereunder –
HSBC CREDIT CARD # 4563 4200 0135 1874
I refer to your email dated 09 October, 2007 addressed to Ms.Naina Lal Kidwai, regarding concerns on your captioned account held with HSBC.
Please accept my sincere apologies fro any inconvenience that you may have been caused in this regard.
We take this opportunity to confirm that we have arranged to reverse the charges billed to your card account and the relevant details will reflect in your ensuing card statement, which will reach you shortly. We wish to inform you that your card account has been invalidated from further usage and there are no outstanding on your card account as on date. We sincerely regret for any inconvenience caused to you in this regard.
The above referred letter’s contents speaks volumes about the Opposite Party conduct. It is abundantly clear that the Opposite Party was arbitrarily and illegally levying charges upon the Complainant for no fault of his as otherwise there was no cause for reversing the delayed charges levied by the Opposite Party. The Ld. Advocate for the Opposite Party contends that the reversal of the said charges was done by the Opposite Party prior to filing of this complaint. On careful perusal of complaint it is reflected that the complaint was filed on 14/12/2007. It is stated by the Ld Advocate for the Opposite Party that the summons/notice of this complaint were served upon him on 21.01.08. However, in our view by no means the Opposite Party Bank was justified in levying delayed charges i.e. interest etc. for no fault of the Complainant and later rectifying the same i.e. by reversing in the said charges by their letter dated 25/10/2007. It is pertinent to note from the Opposite Party stand in para no.2 of their W.A that without prejudice, for the sake of Argument, Complainant received May-June statement on time, it appears that the Opposite Party has lost track regarding the delayed delivery of statement for the period of April-May,2007. In our view that the Opposite Party is not openly coming out with the truth & trying to misled one & all. Further we are of the well considered view that the Opposite Party has adopted a high handed attitude and the unscrupulous means to extort payment not payable by him just to pressurize the Complainant to bow down to their dictates for no fault on his part.
9) The other contention of the Complainant is that the Opposite Party on 22/08/2007 sent an recovery team for settlement though never demanded by the Complainant. The Hon’ble Apex Court has laid down guidelines to be followed by the Banks for recovery of monies due to the Banks from their customers & in the said guidelines it is abundantly clear that recovery by banks through recovery agents would amount to recovery by illegal means. The Opposite Party has offered no comments regarding recovery agents being sent to the Complainant however, it is pertinent to note that the Opposite Party neither replied to the Complainant’s letter dtd 12th September 2007 nor the notice dtd.24th June 2007 addressed by the International Consumer Rights Protection Council to the Opposite Party where a reference has been made by the Complainant regarding recovery agents being sent to him. The Complainant contends that he paid the sum of Rs.9,936/- after assurance from the said recovery agents for reversal of the delayed charges etc. and that no outstanding dues would be reflected in his fresh statement. The xerox copy of the receipt of the said cheque for Rs.9,936/- dtd 22/7/07 is at page 9 of the Complaint. It appears that the Opposite Party after encashment of the said cheque of Rs 9,936/- continued to reflect the delay charges i.e interest, late fees etc in their statements till Aug,Sept 2007 as reflected from the statement at page 10 of the list of documents. It is pertinent to note that the Opposite Party has in their W.A in para 4 have admitted that even complainant’s alleged grievances were redressed on 31.10.07 as shown in statement period Oct. Nov.2007. In the present case in hand no deficiency can be attributed to the Complainant as the Opposite party themselves have vide their letter dated 25/10/2007 afore produced have reversed the charges billed to the Complainant for delay and further an apology has been sought by the Opposite Party regarding inconvenience caused to the Complainant etc. It is pertinent to note that though it was within the knowledge of the Opposite Party that no payments towards delayed charges i.e interest, late fees etc. were liable to be paid by the Complainant yet the Opposite Party has sent recovery team for settlement of the account by the Complainant though no settlement was called for from the Complainant side. It is only goes to show the unscrupulous and illegal means adopted by the Opposite Party just to pressurize the Complainant to bow down to their dictates & illegally extort monies from the Complainant. In our view no fault can be attributed to the Complainant for not making the payment for the month of April, May-2007 as he had not received the statements for the said months in time from the Opposite Party. The observations made by the Hon’ble National Commission in HDFC BANK LTD V/S. BALWINDER SING in 2009 CTJ 1992 (CP) (NCDRC). Some of the observations of the Hon’ble National Commission are as follows -
17. The Bank and other financial institution should note that we live in a civilized society and are governed by the rule of law. They should make recovery of loans seizure of vehicles only through legal means.
18. In a democratic country having well established independent Judiciary are having various laws it is impermissible for the money lender/financier/banker to take possession of the vehicle for which loan is advance, by use of force.
19. Legal or judicial process may be slow but it is no excuse for employing musclemen to repossess the vehicle for which loan is given. Such type of ‘instant justice’ cannot be permitted in a civilized society here there is effective rule of law. Otherwise, it would result in anarchy, that too, when the borrower retorts and uses the force.
20. On occasions, borrowers suffers harassment, torture or abuses at the hands of the musclemen of the money lender. Such a behaviour is required to be prohibited and the process of repossession is required to be streamlined so as to fit in cultural civilized society. Let the rule of law prevail and not that of jungle where might is right.
The Hon’ble Delhi State Commission in TAPAN BOSE V/S. ICICI BANK LTD. & ORS. II (2008) CPJ 233 has observed as follows -
28. In our view if any service provider wants to engage private agency for recovery of dues, it has to authorize it to only recover it through legal method, say but for recovery and not through any other methods, say by employing threats, harassment, force and causing injuries from whom some amount is due or indulging in other act which verges on criminal offence.
29. The seizure of the vehicle for the purpose of recovering dues by harassment, force, musclemen or goondas was held by this Commission illegal per se in the case Citicorp. Maruti Finance Ltd. V. Smt.Vijaylaxmi, II (2005) CPJ 327, which was decided by this Commission by way of Appeal No.65/2004 dated 10/03/2005 and in Magma Leasing Ltd. V.Bharat Sing, I (2007) CPJ 200, in appealNo.954/2006 decided on 08/12/2006. Our view taken in Citicorp. Finance Ltd. case was upheld by the Supreme Court and the National Commission. Observations of National Commission in Revision Petition No.737/2005 titled Citicorp. Maruti Finance Ltd. V. S.Vijaylaxmi, III (2007) CPJ 161 (NC) are relevant pithy and are as under.
“When a vehicle is purchased by a person (consumer) by borrowing money from the money lender/financer/banker, the consumer is the owner of the vehicle and not the money/lender/financer/banker, unless the ownership is transferred.
In a democratic country having well established independent Judiciary and having various laws it is impermissible for the money lender/financer /banker to take possession of the vehicle for which loan is advanced, by use of force.
Such type of ‘instant justice’ cannot be permitted in a civilized society where there is effective rule of law. Otherwise, it would result in anarchy, that too, when the borrower retorts and uses the force.
10) The present observations made above would be applicable to the cases where there are dues pending. It is pertinent to note that in the present case in hand no fault can be attributed to the Complainant as the account statement for the period of Apri-May,2007 was delivered late to the Complainant. The above observations made by the Hon’ble State and National Commission would come into play even if there was amount due and payable by the Complainant sending recovery agents to recover money and coercing the Complainant to pay up amounts which the Complainant is not liable to pay would amount to deficiency on the part of Opposite Party Bank. We are of the view that the entire action of the Opposite Party Bank was illegal arbitrarily and criminal in nature and therefore, should be dealt with harshly in such nature and circumstances.
11) From the over all appreciation of the facts and circumstances and the documentary evidence produced on record and in view of the above discussion we are of the well considered view that this is clear cut case of deficiency of service on the part of Opposite Party and further the unscrupulous means adopted by the Opposite Party show that they are guilty of adopting unfair trade practices. It is rather unfortunate that the Opposite Party is conducting themselves in the aforesaid fashion and the same is highly deplorable. The Opposite Party therefore, in our view is guilty of deficiency in service and also unfair trade practices. Undoubtedly the Complainant went through harassment for no fault of his and was also made to go thorough immense mental agony and torture and was so much so constrained that he had to file the present proceedings for having his grievances redressed. Though the amounts have been admittedly reversed and no outstanding dues are reflected in the account of the Complainant. We are of the well considered view that the Complainant should be compensated for the same to meet the ends of justice regarding the entire high handed attitude and approach adopted by the Opposite Party hence, the following order -
: O RD E R :
1.Complaint No.313/2007 is partly allowed in following terms.
2.Opposite Party is directed to pay an amount of Rs.10,000/- (Rs.Ten Thousand Only) towards compensation for mental agony and torture to the
Complainant.
3.Opposite Party is directed to pay Rs.2,000/- (Rs.Two Thousand Only) towards cost of litigation to the Complainant.
4.Opposite Party is directed to comply with this order within 1 month from the receipt of the copy of this order. In case of failure to pay aforesaid amount
within stipulated period, then the Opposite Party shall be liable to pay interest @ 9 % p.a. till realization of entire amount to the Complainant.
5.Certified copies of this order be furnished to the parties.
