BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.
C.C. No.492 of 16.07.2014 Date of decision: 28.01.2015
Dinesh Kumar r/o 194, Netaji Park Colony, Haibowal Kalan, Ludhiana.
…Complainant.
Versus
1.ICICI Bank Limited, having its corporate office at Bandra Kurla Complex, Bandra East, Mumbai through its Managing Director.
2.ICICI Bank Limited, having its branch office at Ist Floor, Nehru Sidhant Kendra Building, Feroze Gandhi Market, Ludhiana through its Branch Manager.
….Opposite parties
COMPLAINT UNDER SECTION 12 OF THE
CONSUMER PROTECTION ACT, 1986.
Quorum Sh.R.L.Ahuja, President.
Sh.Sat Paul Garg, Member.
Present: Sh.Vijay Kalsi, Adv. for the complainant.
Sh.Alok Mohindra,Adv.for the OPs.
O R D E R
R.L.AHUJA, PRESIDENT:
1. Sh.Dinesh Kumar(hereinafter in short to be referred as ‘complainant’) has filed the present complaint under section 12 of the Consumer Protection Act, 1986, against ICICI Bank Limited, having its corporate office at Bandra Kurla Complex, Bandra East, Mumbai through its Managing Director and others(hereinafter in short to be described as ‘OPs’), directing them to refund the amount of Rs.1,70,467/- unauthorisedly debited by them besides to pay Rs.1 lakh to the complainant towards mental harassment and torture and Rs.15,000/- towards litigation expenses and other benefits to the complainant.
2. Brief facts of the complaint are that the complainant is having a salary account bearing NO.001701564558 with OP2 which is the branch office of OP1. Ops had sanctioned one loan for Rs.50,000/- in the year 2004 in favour of the complainant for a period of 3 years and as such, the loan expired in the year 2009. After the expiry of the loan period, the Ops never contacted the complainant and never sent any notice regarding any outstanding amount. The Ops only served one notice through the Lok Adalat for appearance in the month of April, 2014. After the service of the notice from the Lok Adalat, the complainant approached the Ops and asked for the details of the pending loan account and also requested the Ops to provide the copies of receipts of the payment of the said loan amount to the complainant. The Ops through their representative offered to close the loan account of the complainant in Rs.32,000/-. Since according to the complainant, the loan had already been repaid but the Ops did not provide any receipts for the payment to the complainant despite several repeated visits of the complainant. On 16.6.2014, the complainant was astonished to see that his account was debited for an amount of Rs.1,70,467/- and thereafter, the complainant rushed to the branch to enquire about the unauthorized debit and to lodge a complaint regarding the same. The complainant was further shocked to learn from the OP2 that the amount has been debited by the bank itself towards some loan account. The Ops had no authority or right to debit the salary account of the complainant without seeking his instructions as the complainant has never given his consent for auto debit to the bank till date. Moreover, the account of the complainant was salary account and was not linked with any loan account. The complainant visited the branch i.e. OP2 several times from 16.6.2014 to 19.6.2014 and asked for the reversal of the illegal debit entry but the officials of the bank misbehaved with the complainant. The complainant also sent one letter dated 19.6.2012 to the OP2 calling upon them to refund the amount of Rs.1,70,467/- to the complainant within 7 days from the date of notice but the said amount was not refunded to the complainant. Rather, to cover up their misdeeds, the OP2 sent one demand notice dated 16.6.2014 to the complainant calling upon him to make the payment of Rs.1,70,467/-, whereas, the said amount was debited on 16.6.2014 itself. Surprisingly, the said false and frivolous demand notice dated 16.6.2014 was sent by the OP2 through their counsel Mr.Arun Bagai, Advocate was posted only on 28.6.2014 which further shows the malafide intention of the Ops. Such demand of Rs.1,70,467/- is claimed to be unjustified and unfair trade practice on the part of the Ops by the complainant. Hence, this complaint.
3. Upon notice of the complaint, OPs were duly served appeared through their counsel Sh.Alok Mohindra, Advocate and filed their written reply, in which, they took up certain preliminary objections that the present complaint is not maintainable as the complainant has approached this Hon’ble Forum by suppression and mis-statement of facts in as much as he has made major concealments with regard to the letters which he had received from the answering Ops and also with regard to the facts that he had already made a complaint before the Banking Ombudsman and could not get any relief. The complainant cannot take benefit of his own wrongful act and conduct inasmuch as he has failed to pay the amount as demanded by the bank from time to time and as such, he has failed to fulfill his legal and contractual obligation and as such, the answering Ops were well within their right to make a debit entry in the account of the complainant which was being maintained by the answering OP2. The answering Ops have acted as per the right and powers conferred upon the Bankers U/s 170 of the Indian Contract Act inasmuch as, as per the said provision of law, the bank has a first and foremost right over any amount deposited by an account holder in case, the said account holder has any liability to pay any amount to the bank. Therefore, the present complaint is in clear cut violation of the specific provision of law, which confers the right upon the answering Ops to mark a lien and to debit the amount from the account of the complainant. The complaint is bad for mis-joinder of parties inasmuch as the answering OP1 is neither necessary nor proper party to the present complaint. The answering OP1 or the Managing Director of the bank has no active role to play in the day to day activities and decision making of the bank. The Managing Director of the bank is only a titular head and he is neither instrumental in the grant of the credit facilities to the complainant nor is he instrumental in marking the lien or debiting any amount from the account of the complainant. Therefore, the complaint against answering OP1 is liable to be dismissed. There are intricate questions of law and facts which are involved in the present complaint and which requires cross examination of witnesses and which are beyond the scope of enquiry of this Hon’ble Forum and as such, the present complaint entails out right dismissal. On merits, it is submitted that the account No.001701564558 which is being maintained by the complainant with the answering OP2. Further, it is submitted that the complainant had availed the credit facilities from the answering Ops but he failed to return the said amount and as such, the complainant intentionally and deliberately neglected to fulfill his legal and contractual obligations towards the answering Ops. Further, it is submitted that the complainant had approached the answering Op2 for the grant of financial assistance and as per his requests and representations, the credit facilities of Rs.50,270/- were granted to the complainant. The abovesaid amount of loan was disbursed on 8.9.2007 in favour of the complainant vide loan agreement NO.LILUD00011334329. The complainant was required to repay the said amount in the manner and time as mentioned in the repayment schedule contained in the abovesaid agreement without committing any default. The complainant had agreed and was bound to make timely payment of the installments as mentioned in the said agreement as the regular and timely repayment of the EMI was the essence of the contract. The answering OP2 had duly handed over the copy of the loan agreement and repayment schedule to the complainant, from which, he was fully aware of his liability and the principal and interest component of the amount of installments. The complainant has never maintained the financial discipline of the bank and the last payment was made by him on 26.9.2009. Thereafter, the answering OP2 had been requesting the complainant time and again to make the payment of the balance amount but the complainant did not pay any heed to the said request of answering OP2. Finally, no other way out, the answering OP2 wrote the letter dated 23.5.2014 to the complainant, wherein, it was duly informed to the complainant that an amount of RS.1,70,467/- is outstanding against him under the abovesaid loan account and he has failed to pay the same. Therefore, by exercising the right of lien under Section 170 of the Indian Contract Act, it was informed to the complainant that the answering OP2 has put a lien/charge over the account No.001701564558 towards the unpaid EMI dues. The complainant was further called upon to pay the said outstanding amount within 10 days from the date of letter, failing which, the answering OP2 will exercise its right of lien and set off as mentioned in the terms and conditions of the contract and amount, on which, the lien has been marked will be adjusted towards the outstanding amount. Inspite of receipt of said letter, the same did not have any effect on the complainant and he failed to pay the said outstanding amount and as such, the answering OP2 debited the account of the complainant for an amount of RS.1,70,467/- and credited the same in the loan account of the complainant towards the outstanding the amount payable by him. The matter did not end here and the complainant moved an application dated 17.6.2014 to the Banking Ombudsman, New Delhi with regard to the same matter regarding which, the present complaint has been filed. The answering OP2 duly gave the reply dated 2.7.2014 to the said application and in the said reply, factual position has been explained. It was duly mentioned in the said reply that even after debiting of the account of the complainant and crediting a sum of Rs.1,70,467/- in the loan account of the complainant, an amount of Rs.2208/- is outstanding and by way of service gesture, the answering OP2 undertook to waive off the said complaint and to close the account. Earlier, letters dated 23.5.2014 and 16.6.2014 were duly sent as annexures alongwith the reply dated 2.7.2014. Thereafter, the complainant has all along been in knowledge of the factual position and the answering OP2 has been giving due intimation to him but inspite of the same, the complainant failed to pay the outstanding amount. It is denied that any representative of the answering Ops had ever offered to close the loan account of the complainant for RS.32,000/- as alleged. The malafide intention of the complainant is evident from the contents of para no.5 of the complaint itself as the payment receipts should be in the possession of the complainant if he has made any payment to the answering Ops and there is no occasion for the complainant to get the payment receipts from the answering Ops. The law provides the rights to the answering Ops to make the said debit entries to recover its dues. There is no deficiency in service on the part of answering Ops. At the end, denying all the other allegations of the complainant being wrong and incorrect, answering Ops prayed for dismissal of the complaint with costs.
4. Learned counsel for the complainant in order to prove the case of the complainant, tendered into evidence affidavit of complainant as Ex.CA, in which, he has reiterated all the allegations made by him in the complaint. Further, learned counsel for the complainant has proved on record the documents Ex.C1 to Ex.C4.
5. On the contrary, learned counsel for the OPs in order to rebut the case of the complainant, tendered into evidence affidavit Ex.RW1/A of Sh.Ajay Khanna, its Officer, in which, he has also reiterated all the contents of the reply filed by the contesting Ops and refuted the case of the complainant. Further, learned counsel for the OPs has proved on record the documents Ex.R1 to Ex.R11.
6. We have heard the learned counsel for both the parties and have also gone through the record on the file very carefully.
7. Perusal of record further reveals that it is an undisputed fact that the complainant was having his salary account bearing No.001701564558 with OP2, who is the branch office of OP1. It is further an undisputed fact that Ops had sanctioned one loan for Rs.50,000/- in the year 2004 in favour of the complainant for a period of 3 years. However, after the expiry of the period of the loan period i.e. 3 years, there was an outstanding balance against the complainant in the loan account which was not paid by the complainant due to the reason best known to the complainant. Notice of Lok Adalat was also issued to the complainant regarding the outstanding amount. It is further an undisputed fact that the Ops have debited the amount of Rs.1,70,467/- from the salary account of the complainant and credited the same in the loan account of the complainant, of which, the complainant has challenged by way of filing the present complaint and sought the relief of refund of the aforesaid amount alongwith compensation and litigation costs alleging act of Ops as deficient in service as well as unfair trade practice rendered by them to the complainant.
8. Though, the Ops have taken the plea that bank has right to mark the lien over the account of the complainant as per Section 170 of the Indian Contract Act in their written reply. However, it appears that Section 170 of the Indian Contract Act has inadvertently been mentioned in the written reply qua the lien of the bank. Section 171 of the Indian Contract Act, 1872 provides that 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 persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect. Further, Section 171 of the Indian Contract Act provides that:-
“LIEN AND RIGHT OF SET-OFF
It is agreed that the Bank, at any time and without notice will have lien and right of set-off on all monies belonging to the Card member and/or Add-on Card member standing to their credit in any Account whatsoever with the Bank or in the possession or in the custody of the bank. If upon demand by the Bank, the balance outstanding on the card account is not repaid within the prescribed time, such credit balance in any account including fixed deposit accounts and any properties of the Card member and/or Add-on Card member in the possession or custody of the Bank whether for safe keeping or otherwise, including but not limited to dematerialized shares or other securities of the Card member and/or Add-on Card member, held by the bank as a Depository Participant. In case of any deficit, the deficit amount may be recovered by the bank from the Card member and/or Add-on Card member.”
9. Further, we find force from the judgment titled as Syndicate Bank vs.Vijay Kumar, AIR-1992-106(S.C.), in which, it has been observed that the bank has the liberty to adjust from the proceeds of the two FDR’s towards the dues to the bank and if there is any balance left that would belong to the depositor.
10. So, it appears from the evidence of the Ops that since the sufficient amount was outstanding against the complainant and as such, the Ops had rightly acted as per the provisions of u/s 171 of the Indian Contract Act, 1872 which provides the rights to bank’s/Ops to mark lien in the defaulter of the amount on the account of the depositor like complainant qua the defaulting amount. So, Ops have rightly debited the amount from the salary account of the complainant and the act of the Ops does not amount to deficiency in service.
11. So, from the evidence on record, we are of the opinion that the complainant has failed to lead any cogent and convincing evidence in order to prove his case and there does not appear to be any deficiency in service or unfair trade practice on the part of OP.
12. Sequel to the above discussion, we hereby dismiss the complaint of the complainant being devoid of any merit. Copy of this order be sent to the parties free of cost and thereafter, file be consigned to the record room.
(Sat Paul Garg) (R.L.Ahuja)
Member President
Announced in open Forum
on 28.01.2015
Gurpreet Sharma
