Complaint filed on: 09-09-2011
Disposed on: 14-05-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.1680/2011
DATED THIS THE 14th MAY 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
Sri.Madolappa Biradar Jaganath,
C/o. L.Prabhakar,
Residing at no.10-2, 4th cross,
Lakkasandra, Bangalore -30
Also at
C/o. V.Madhav Naidu,
No.5, 2nd cross, Sunkal Farm,
Wilson Garden,
Bangalore-30
V/s
Opposite party: -
The Manager,
ICICI Bank Ltd,
1st Floor, West wing,
Euphoria, Mytree towers,
No.4/10, Beside Oxford
Dental and Engineering
College, Hosur Road,
Bommanahalli,
Bangalore-68
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP, praying to pass an order, directing the OP to furnish the details with regard to cheques in question, and to pay a sum of Rs.2,00,000=00 as compensation for the damages and mental agony.
2. The brief facts of the complaint can be stated as under.
The complainant had applied for a credit card from OP bank bearing no.4477477080663004 and after a certain period of time the complainant sought to close the credit card for some personal reasons and he was not in a position to pay the charges levied by the OP with regard to the supra credit card and the complainant asked for settlement with OP’s representative. After the discussion made by the complainant and the representative of the OP and after due negotiations made by both the parties came to a conclusion and the OP sought to issue a settlement for Rs.85,000=00 against Rs.1,22,836.14 in pursuance of the charges levied upon the supra credit card. After the representation made by the OP, the OP issued a settlement letter to the complainant with regard to the supra credit card on 12-2-2009. According to the settlement letter the amount was to be cleared in 4 monthly installments in which the first installments was calculated at Rs.25,000=00 by way of cash and it was cleared on 13-2-2009 and further three installments amounts were to be paid by way of cheque and for the same second installment was made good at Rs.20,000=00 by way of cheque bearing no.347881 on 15-3-2009, the third installment was made good at Rs.20,000=00 by way of cheque bearing no.347882 on 15-4-2009 and the above cheques were cleared on 17-3-2009 and on 16-4-2009 respectively, and the complainant’s credit card statement was upto dated with the process of supra cheques. The OP claims that the cheque bearing no.347883 was processed in pursuance of the fourth installment and there was no remarks upto dated with regard to that cheque in the SB account statement of the complainant. That on 15-5-2009, no doubt that the complainant had no requisite funds for honouring the cheques in question but for all things deed and purpose the cheque in question seems to have never been presented by the Ops. From 21-4-2009 the requite funds for the purpose of honouring the cheque in question was also parked by the complainant, if at all the cheque question had been dishonoured the OP as per their policies ought to have issued a statutory notice under NI Act. After the process of the cheques, the OP is claiming that there were no sufficient monies in the bank account of the complainant and that being the case the cheque as been returned. The OP is contradictory their stand as per the credit card statement the cheque in question was dishonoured on 18-5-2009, it is surprising to note that it does not transpire anything with regard to return of cheque. On 21-5-2009 the balance of monies available in the complainant’s account was Rs.22,683.65. The OP at no point in time processed the said cheque and the complainant has made number of representation via email and with the customer support of the OP with regard to the cheque in question and that the bank has processed the cheque for the same the complainant called the customer care, the customer care executive replied that the cheques has been received and honoured and that there is no due with regard to the supra credit card and further the complainant requested for the closure of the credit card and for the same the customer support executive registered a service request. In spite of so many requests made by the complainant with regard to the said cheque in question and about the balance in the complainant’s account, there was no reply from the OP and to the shock and surprise of the complainant on 18-8-2009 a sum of Rs.45,290=00 was debited from his account without notice in pursuance of the fourth installment and it is pertinent to note that an excess amount of Rs.25,290=00 has been debited in pursuance of the fourth installments of the supra credit card. The complainant when questioned about the same, the OP categorically aired that because of non-payment of the fourth installment due to the supra credit card the settlement given by them to the complainant on 12-2-2009 has become void and due to non payment the collection department has debited the supra monies from the complainant’s bank account. The complainant has made number of attempts to the OP to find out about the cheque in question but the OP has kept quiet on this issue. After the complainant failed to collect the information from the OP with regard to the cheque in question, the complainant sought to issue a letter to the bank under the Right to Information Act seeking all the documents available with regard to the cheque bearing no.347883. The OP has neither replied nor complied with the documents. The complainant being harassed for the same sought to issue a legal notice and on 29-6-2011, the complainant issued a legal notice to the OP, to the shock and surprise of the complainant the OP has not reverted back till date to the legal notice in spite of the OP being in receipt of that legal notice. The OP is guilty of deficiency of service, unfair trade practice and is liable to make good the damages caused to the complainant. Hence the present complaint.
3. After service of notice, the OP has appeared through his counsel, and filed objection, contending inter-alia as under:
The complaint is not maintainable either in law or on facts and the complainant is not a consumer as per the provisions of the CP Act, since the relationship between the complainant and OP is debtor and creditor, so on this account alone the complaint is to be dismissed in limine. The cause of action for the said complaint arose for the first time when the parties entered into settlement agreement on 12-2-2009 and on subsequent date, as the complaint is not filed in time as stipulated in section 24A of the Act, the complaint is liable to dismissed. It is undisputed fact that the complainant is a credit holder and he owes outstanding amount towards his credit Card account. The complainant has preferred this complaint on three allegations against the OP bank, firstly, the withdrawal of settlement discount granted for sum of Rs.85,000=00 in lieu of termination of settlement agreement and reversal of the original outstanding amount as prevailed on date. Secondly, about the dishonoured cheque issued by the complainant to OP bank and finally the complainant has claimed damages as compensation from the OP bank for deficiency of services. The OP being considerate towards the complainant’s request put forth a settlement proposal giving him an opportunity to pay his out standing dues Rs.1,22,836.14 at the discounted a sum of Rs.85,000=00 as settlement amount on such terms and conditions thereon, towards his card account. Subsequently, on mutual consensus of both parties covenanted the settlement agreement dated 2-12-2009. Accordingly, the complainant was required to pay the discounted sum of Rs.85,000=00 in four monthly installments in accordance to repayment schedule mentioned therein. In the said agreement, it is clearly stated that, in case cheque issued by the complainant is dishonoured the settlement agreement would be null and void. Despite being aware of the said clause in the agreement, the complainant failed to maintain sufficient funds enough in his account to pay the settlement amount on presentation of the cheque issued by him. The complainant having committed such breach the agreement stood null and void. It is an undisputed fact that there was no sufficient fund enough in the account of the complainant. The alleged cheque when presented to drawer bank returned unpaid with endorsement dated 16-5-2009 stating that reasons as insufficient funds. At all times the OP bank has rendered best of its services to the complainant and the settlement agreement is one such proof of the same. On the contrary the complainant being a defaulter and having committed breach of promises has come up with this complaint on false, baseless and frivolous grounds. It is undisputed fact that the complainant availed a credit card bearing no.4477477080663004 and later owning to his default in paying off the due, the complainant requested the OP bank to offer him settlement proposal, ensuring to pay off the outstanding dues towards his card account. It is an undisputed fact that considering the request, OP bank put forth a settlement offer which was agreed by the complainant and accordingly the complainant was required to pay the settled amount in four monthly installment wherein the first installment payable in cash and other three remaining installments via mode of cheque payment as well. The complainant has admitted the fact that the cheque issued towards fourth installments i.e. cheque bearing no.347883 dated 15-5-2009 on the due date of its presentation, there was no sufficient funds enough in the complainant’s account for the drawer bank to pay the said cheque, the alleged cheque went unpaid for the reasons of insufficient funds. The said cheque was issued in pursuance to the settlement offer dated 12-2-2009 inclusive of payment schedule therein. The statement agreement being contingent in nature, the said agreement was to conclude effectively provided the complainant strictly adheres to the terms and conditions stipulated therein otherwise the settlement agreement would stand nullified and the complainant would be liable to pay the entire revised outstanding as per the current status. The OP bank diligently has rendered its services to the complainant without any latches. After issuance of the cheque towards payment of settlement agreement it was the primary duty of the complainant to maintain sufficient funds enough to honour the said cheques on its due presentment to the drawer bank. Ultimately it was the complainant who owed the responsibility to follow up the transaction and act accordingly. Instead the complainant is trying to shift the burden of his irresponsibleness on the OP bank, which is not sustainable in law. The complainant has admitted that on the due date of the alleged cheque dated 15-5-2009 there was no sufficient funds in the SB account of the complainant. The complainant has no authority to question or raise objection against the OP bank for not claimed the relief under the NI Act. The complainant has no right to direct the OP bank to prefer a particular type of action. Owing to the non receipt of the payment by the complainant, the OP bank on 31-7-2009 captioned the SB account of the complainant in exercise of its power under section 171 of Indian Contract Act and placed available funds in the SB account on hold. Thereafter the OP issued notice to the complainant calling upon to pay the outstanding dues within 7 days from the date of receipt of the notice. Viewed from any angle the OP bank has diligently rendered its service to the complainant without any latches as such. In fact, the complainant owing to his default has made the OP bank to suffer loss. Hence, it is prayed to dismiss the complaint as against the OP bank in the interest of justice and equity.
4. On the above averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration.
1. Whether the complainant proves that, the OP is guilty of deficiency in service and unfair trade practice and is liable to make good the damages caused to him?
2. What order?
5. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: For the following order
REASONS
6. So as to prove the case, the complainant has filed his affidavit by way of evidence, and produced 6 documents. On the other hand, one Kabilan, who being the P.A.holder and the collection manager of the OP bank has filed his affidavit on behalf of OP and produced 5 documents. We have heard the arguments of both sides. We have gone through the oral and documentary evidence of both parties meticulously.
7. One Madolappa Biradar Jaganath, who being the complainant has filed his affidavit by way of evidence stating that, he had applied for a credit card from OP and for the same a credit card was issued by the OP credit card bearing no.4477477080663004 and after a certain period of time, he sought to close the credit card for some personal reasons and he was not in a position to pay the charges levied by the OP with regard to the above credit card and the complainant asked for settlement with OP. After due negotiations made by both the parties came to a conclusion and the OP sought to issue a settlement for Rs.85,000=00 as against Rs.1,22,836.14, the OP issued a settlement letter to him on 12-2-2009. According to that letter, the amount was to be cleared in 4 monthly installments in which the first installments was calculated at Rs.25,000=00 by way of cash and that was cleared on 13-2-2009 and remaining three installment amounts were to be paid by way of cheque and for the same second installment was made good at Rs.20,000=00 by way of cheque bearing no.347881 on 15-3-2009, the third installment was made good at Rs.20,000=00 by way of cheque dated 15-4-2009 and the above cheques were cleared on 17-3-2009 and 16-4-2009, and his credit card statement was upto dated. The OP claims that the cheque bearing no.347883 was processed in pursuance of the fourth installment and there was no remarks upto dated with regard to that cheque in the SB account statement of his account. On 15-5-2009, he had no requisite funds for honouring the cheques in question and that seems to have never been presented by the Ops, if at all the cheque in question had been dishonoured the OPs ought to have issued a notice under NI Act, and in fact it does not transpire any thing with regard to the return of cheque. As on 21-5-2009 the balance of monies available in my account was Rs.22,683.65. The OP at no point of time processed the said cheque. In spite of so many requests made by him with regard to the said cheque in question and about the balance in his account, there was no reply from the OP and to the shock and surprise, on 18-8-2009 a sum of Rs.45,290=00 was debited from his account without notice in pursuance of the fourth installment and excess amount of Rs.25,290=00 has been debited, when he questioned, the OP categorically aired that because of non-payment of the fourth installment due to the said credit card, the settlement given by OP on 12-2-2009 has become void and the collection department has debited the above monies from his bank account, he sought to issue a letter to the bank under the Right to Information Act seeking all the documents available with regard to the cheque bearing no.347883. The OP has neither replied nor complied with the documents asked. He has been harassed by the OP and OP has not reverted back till date to the legal notice. So, he prayed to allow the complaint and pass an order as prayed for.
8. By reading the averments of the complaint and evidence of the complainant as mentioned above, it is made clear that, the complainant has given evidence in accordance with the complaint. Let us have a look at the relevant documents of the complainant to know whether the oral evidence of the complainant is fortified by the documentary evidence or not. The document no.1 of the complainant is the copy of the letter of OP dated 12-2-2009 issued in the name of the complainant, and that document discloses that in view of negotiation between the complainant and the OP, the matter was settlement for Rs.85,000=00 and that amount is to be paid by the complainant as per the repayment plan, and the first installment of Rs.25,000=00 is to paid by the complainant in cash on 13-2-2009, and the second to fourth installment are to be paid by the complainant through cheques at the rate of 20,000/-each and the second to fourth installment are payable through cheque on 15-3-2009, 15-4-2009 and 15-5-2009, and timely payment is essence of this settlement offered to the complainant, and should the cheque issued after the date of settlement letter be dishonoured the above settlement would stand null and void and the complainant would be liable to pay the entire revised outstanding as per the current status. Accordingly, the complainant has paid the second to fourth installment by issuing cheque in the name of the OP as per the installment letter, and in this regard the complainant has produced his bank statement copy, which is produced at the document no.2. The document no.3 is the copy of credit card statement of the complainant. The document no.4 is the copy of letter written by the complainant to the OP asking to supply the some documents. The document no.5 is the copy of legal notice issued to OP by the complainant’s lawyer dated 29-6-2011. The document no.6 is the copy of acknowledgement card.
9. On making careful scrutiny of the averments of the complaint, para no.8 and the evidence of the complainant, particularly, para no.8 of affidavit, it is made to understand that, on 15-5-2009 the complainant had no requisite funds for honouring the cheque dated 15-5-2009 for Rs.20,000=00 being the last installment i.e. the fourth installment to be paid by the complainant, as per the settlement dated 12-2-2009, and on account of insufficient fund the cheque issued by the complainant dated 15-5-2009 was not enchased and for that the OP has produced one copy of return memo dated 16-5-2009, wherein it is stated that, the cheque bearing no.347883 for Rs.20,000=00 was returned due to insufficient fund. In document no.1 produced by the complainant dated 12-2-2009 issued by the OP in the name of the complainant, it is specifically stated that, if the cheque issued by the complainant is dishonoured after the date of settlement, the above settlement would stand null and void, the complainant be liable to pay the entire revised outstanding as per the current status, and accordingly the OP has debited Rs.45,290=00 from the account of the complainant as per the settlement letter. The act of the OP in debiting 45,290=00 from the account of the complainant is strictly in conformity with the settlement letter dated 12-2-2009 and there is no negligence or deficiency of service on the part of the OP. On the other hand, the complainant who issued three cheques towards the second to fourth installment has made arrangement for payment of the second and third installments correctly by keeping sufficient fund in his bank account, when the last cheque dated 15-5-2009 was presented by the OP as per the settlement letter, there is no sufficient fund in the account of the complainant. In fact, the complainant ought to have taken precaution to encash the cheque dated 15-5-2009 by keeping enough amounts in his bank account. Instead of doing so, the complainant has acted against the terms and conditions of the settlement letter and on account of negligence of the complainant only, the fourth cheque issued by the complainant came to be dishonoured for want of sufficient fund. In fact, the complainant was negligent while paying the fourth installment of credit card account. The OP has stated both in the version and in the evidence that the complainant has acted against the terms and conditions of the settlement letter and on account of his negligence; the last cheque issued by the complainant dated 15-5-2009 was dishonoured. So, they debited the amount of Rs.45,290=00 from the account of the complainant. The contention of the OP stands corroborated by settlement letter dated 12-2-2009. So viewing the oral and documentary evidence of both the parties, it is made manifest that and the material evidence of OP is more trust worthy and acted upon than the material evidence of the complainant, and as such, we are of the considered opinion that, the complainant who comes to this forum seeking relief has miserable failed to prove this point satisfactorily by placing acceptable material evidence. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed. So, under the circumstance, parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 14th day of May 2012.
MEMBER MEMBER PRESIDENT
