Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-09/04.02.2011
Smt. Abha Srivastava
w/o Late Sh. Satish Kumar
r/o H. No. P-41,
Chadner Shekhar Azad Colony,
Kishan Ganj, Delhi-110006 ...Complainant
Versus
OP1. Manager, ICICI Bank Limited
E-1, Videocon Towers,
Jhandewalan, New Delhi-110055
OP2. Manager, ICICI Bank Limited
ICICI Bank Credit Card Operations
PO Box no. 7931,
Tulsiwadi- P.O.
Mumbai-400034
OP3. Manager, ICICI Bank Limited
Regd Office:
Landmark Race Course Circle,
Vadodara-390007 ...Opposite Parties
Senior Citizen Case
Order Reserved on: 06.01.2023
Date of Order: 18 .01.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Inder Jeet Singh
ORDER
1. (Introduction to case of parties) : This complaint is filed by the complainant, being bank account-holder/borrower against OPs/Banker for allegations of negligence, excess recovery by banker, unfair activities and the complainant has sought return of excess amount of Rs.1,70,000/- with 18% interest p.a. apart from claiming damages of Rs. 1,00,000/- and litigation expenses of Rs. 10,000/-. There was also unauthorized deduction of Rs. 22,137/- from her account by the OPs.
The OP has opposed the complaint on various grounds, amongst other, neither there was any negligence nor any excess amount was deposited by the complainant. The complainant had failed and neglected to pay total amount due within the specify due dates, she is liable to pay the due amounts to the OPs. There was no unauthorized deduction of Rs. 22,137/- from the account of complainant.
2.1 (case of complainant ) : The complainant is a LIC agent and she has field work. She is a widow lady since her husband had expired on 22.07.2003. She is diabetic and suffer from high blood pressure ailment from the year 2005. In addition, she also gives details of her family members of son & daughter-in-law and of her medication and expenses.
2.2: In the year 2003, officials of ICICI Bank/ OP1 came into knowledge of complainant, the complainant was induced to get credit card for availing loan facility and other benefits. The complainant obtained two cards viz. (i). Silver Credit Card in April 2003, which was valid upto April 2005 and (ii) Golden Credit Card in November, 2004, which was valid upto April 2012. The OP1 had prepared one EMI Card for the complainant. The complainant was in dire need of money to marry her son and to get repaired her house. That is why, she approached the OP1, who provided the loan in three installment of Rs. 34,000/-, Rs. 54,000/- and Rs. 1,70,000/- (total Rs. 2,58,000/-) in the year 2005 and 2006. [The Silver Card Number and Golden Card number. are not mentioned here for the time being, since there is discrepancy or typographical error in mentioning the numbers, the same will be mentioned later on to avoid any kind of ambiguity, particularly in the complainant had mentioned last digits of other cards, however, OPs have mentioned complete numbers of cards. The numbers mentioned by complainant will also be referred, when case of OPs will be detailed.
2.3: However, the OP1 had deducted Rs. 22,137/- from her account without her information, when she enquired about the deductions, she was misbehaved; whereas the complainant had to deposit that amount in her client's account (with LIC). Moreover, the complainant had already paid whole amount with interest to OP1 within time. The paragraph 7 of the complaint gives detail of card numbers by mentioning last four digits, correspondingly total payment tendered of Rs. 6,25,150/- to the OP1 [however, by clubbing the amounts mentioned, total comes to Rs.6,15,150/- and not Rs. Rs. 6,25,150/-). The detail of payments is - against card no. 4006 the payment was made of Rs. 2,55,583.11/-, against card no. 3002 Rs. 2,08,094/-; against card no. 5015 for Rs. 1,07,986/- and card no. 5007 for Rs. 43,487/-.
2.4: The complainant does not know the number of cards prepared by the officials of OP1. The OP1 and OP2 are harassing the complainant to return the loan and also extending the threats to kill the complainant and put her name in blacklist. The officials of OP1 when came to the residence of complainant, she asked them account statement, which was refused and the record available with the complainant clearly shows that she paid excess amount of Rs. 1,70,000/- till date. One officials namely Shri Ashwani Kumar, from Jhandewalan of Branch of OP1, was coming to the house of complainant every month and asking to hand over one cheque, then he will issue NOC. They prepared two Entro card without asking from the complainant. The complaint also names six officials of OP1 in the complaint, who assured the complainant that her case will be referred to the Bombay, wherefrom she will get the justice and her excess money will be returned. One of them was Mr. Lalit Chaudhary, who also assured that in case complainant abstain from going to the court, the OPs will forget Rs. 2,50,000/-. However, they have not issued statement transaction from 2003 to 2006. There is no fruitful result from them and that is why the complaint was filed, as she had visited the office of OPs for return of her excess amount, she used to remain in the office two-three hours together and wasted her precious time. There is clear cut negligence on the part of official of OPs, who are not performing their duty sincerely and honestly. She suffered harassment, mental agony, torture, pain etc. because of illegal and unfair activities of OPs. The complaint is accompanied with photocopy of record, pay-in-slips, payment receipt, credit card, event/transaction with date and particulars, etc.
3. (case of OPs) : The OPs had filed reply under the seal and signature of ICICI Bank Ltd. under the title 'short reply' but in fact it is a detailed reply by reproducing provisions of law and citation but reply is without paragraph-wise reply to complaint. In brief, the complainant was issued on request credit card bearing no. 4477463666161001 (which was detailed by the complainant as silver card no. 4477463666161611) and another credit card no. 4477473612985007 (which the complainant is referring by last four digits 5007), which is a primary credit card having two add-on credit card no. 4477473612985015 (which complainant refers as Gold card no. 5015) and card no.4477473612985106; credit card no. 4477465201003002 (which complainant mentions as card no. 3002 in para-7 of the complaint), personal loan on credit card (PLCC No. 9401270028254006 which the complainant refers as card no. 4006). All these cards were issued on the request of the complainant. She has also utilized all the credit card and she had agreed to abide by the terms and conditions of governing the usage of card and assured to make the payment regularly. The cards have been utilized by her for a personal benefit, without any deficiency in services offered by the Bank but she failed and neglected to make the total amount due within specified due dates, consequently it was attracting interest and other charges in her card account. As per usages of card, if she does not make payment of minimum amount due or less than total amount due, then appropriate charges and interest are levied on the account. When total outstanding exceeds the prescribed credit limit on the card then over limit charges are also charged. Complainant has been irregular in making the payment of her due on the credit card and PLCC. There is an huge amount due and payable by the complainant and complainant wrongly claims that loan amount along with interest was paid to the OPs. The complainant has paid fully amount in respect of card no. 4477463666161001 [referred as silver card by the complainant] but the remaining cards are still not fully paid by the complainant, she is under liability. As per statement dated 05.03.2010 of PLCC no. 9401270028254006, the complainant was liable to pay amount of Rs. 22,137.82p or minimum due amount of Rs. 13,330/- by 23.03.2010 and the OP was constrained to exercise its right of lien and accordingly an amount of Rs. 22,137/- was debited from her account. The complaint is misleading and as per Section 171 of the Indian Contract Act, 1872 , the OP/ Banker has lien on the account of customer/complainant, (reliance is also place on Syndicate Bank v/s Vijay Kumar (1992) 2, SCC 330). As per statement dated 23.03.2011 an amount of Rs. 59,821.70/- still due and payable by the complainant to OPs. Since there are disputed facts, the consumer Commissions lacks the jurisdiction to deal with such questions.
4. (Replication of complainant) : The complainant filed its replication, she has reiterated her ailments and other circumstances while denying the allegation of reply and reaffirming the complaint as correct vis-à-vis the present forum has jurisdiction as well as allegations of reply are baseless.
5.1 (Evidence) : The complainant filed her affidavit of evidence while relying upon the documents filed with the complaint. the affidavit of evidence was filed repeatedly and when it was enquired during oral submission, it was clarified that it may be because of communication gap during Covid-19 wave or change of lawyer as well as prosecution of complaint by complainant herself and for want of the inspection of the record, the affidavit may have been filed repeatedly, otherwise evidence is same.
5.2: On the other side, OPs' witnesses namely Shri Dipender Singh, Manager (Legal) has filed its evidence, which is replica of the reply to complainant, with rider to read reply as part of evidence by ignoring typographical errors. [This kind of averments by OPs is against the settled norms of pleadings or evidence, proposing to read reply as evidence].
6.1: (Submission of Parties) : At the time of oral submissions, counsel Ms. Priyanka Marwah, Advocate for complainant and Shri Shivang Jain, Associate of Shri Hemant Gupta, Advocate for OPs made the submissions. There are also written arguments by the parties. It does not require to reproduce their arguments as the same will be referred and discuss while appreciating the contentions of the parties.
6.2: It is material to mention that parties have also filed their written arguments at different point of time and the OP had also stated outstanding amount of Rs.59,821.70/- being outstanding amount against the complainant, when those written arguments were filed long back. When arguments were being heard on 06.01.2023, it was also stated that OP had filed recovery suit against the complainant, which was pending for 07.01.2023 before Ld. Additional District Judge, Tis Hazari, Delhi.
7.1 (Findings) : The case of both the parties are considered, keeping in view the record inclusive of documentary record apart from their oral testimony in the form of affidavit as well as the contentions raised.
7.2: The OPs had raised an issue about lack of jurisdiction of this Commission, when inquired as to how it lacks jurisdiction, particularly in view of section 3 of the Consumer Protection Act, 1986 (since case was filed when this Act of 1986 was prevailing), that the provision of this Act, 1986 are in addition to, and not in derogation of, other law for the time being in force. There was no response to this provision. Thus, it is held the present District Commission has jurisdiction when there are allegation of deficiency of services or of unfair trade practice in connection with banking services between a customer and a banker. This objection of OPs is disposed off.
7.3: There is overlapping submissions by the parties with regard to credit cards. It needs to deal with the credit cards, as in the one side complainant's case is that she was not made aware about the number of cards issued, however, she gives details of silver card [as card no. 4477463666161611 but OP clarifies it is card no. 4477463666161001) and also mentions golden credit card no. 4477473612985015 (which the OP also confirms). The complainant also mentions last four digits of the credit cards vide no. 4006 (PLCC), 3002, 5007 and 5015, wherein amounts were deposited from time to time. Whereas, on the other side the OP narrates and give details of credit card no. 4477463666161001, another credit card no. 4477473612985007 being primary credit card apart from the details of card no. 4477473612985015 (which the complainant refers as 5015) and 4477473612985106; credit card no. 4477465201003002 (which complainant refers as card no. 3002 in para-7 of the complaint, personal loan on credit card (PLCC) No. 9401270028254006.
The complaint does not dispute plea of OP that no. 4477463666161001 [ i.e. silver card no.4477463666161611] is fully paid by the complainant.
7.4: The comparative analysis of credit cards as per details given by the parties in their respective case, stand cleared that there were credit card issued to the complainant and the complainant has referred them in her complaint correspondingly the amount paid/deposited to the OP1. Therefore, the plea of the complainant that she was not knowing about the number of card issued to her is not tenable because of her own pleadings that payments were deposited under those cards issued. Moreover, the application forms and payments receipts have also been filed by the parties, which also establish that there was request by the complainant for credit cards, she also narrates that loan was taken by her as well as payments were tendered in respect of those credit cards.
7.5: During the course of oral arguments, it was the first time when complainant raised the point that application for credit card does not bear her signature, however, throughout the proceedings from the filing of the complaint or then replication and subsequently filing of affidavits repeatedly for evidence as well as for repeated written arguments, it was never the case of the complainant that signature on application form does not belong to the complainant and Ld. Counsel for OP has rightly pointed out that it is first time that new case is being tried to be set up by the complainant. Thus, this stand of the complainant is an after-thought as well as no material is shown from the record as to how the application form does not bear the signature of the complainant, when her other signature are on the complaint, vakalatnama signed in favor of her counsel, affidavits etc. are matter of record. Accordingly, this contention of complainant is without substance and it stands disposed off.
7.6: Now the other controversy left is whether there is unfair trade practice by OPs by charging excess amount of Rs.1,70,000/- and unauthorized deduction of Rs.22,137/- from her account by the OPs, apart from negligence or deficiency of services to the complainant on the part of OPs.
On plain reading of the complaint as well as evidence of complainant, nowhere the complainant has split the payments components in respect of interest as well as other amounts but a consolidated figure is mentioned of deposits made by her or of Rs.1,70,000/- of excess payment. She has mentioned her account no.16001001807 in her written arguments that deduction of Rs. Rs.22,137/- was from this account. However, in the documents of payment filed with the complaint, shows the principal amount as well as interest component. The complainant has also filed statement with events of date and component of EMI principal, EMI interest and service tax apart from most important terms and conditions [MITC] which also gives details of annual fee for cards of different kinds, similar record has also been filed by the opposite side. It is already mentioned that the account no. 4477463666161001 is fully paid by the complainant.
7.7. There is voluminous record of payment slips of payment made by the complainant and also demand letters issued by the OP to the complainant. The complainant was supposed to establish that interest rates, annual fees or other charges of particular period was contrary to agreed rate or in violation of banking regulations to cull out the case of unfair trade practice, or demand made were arbitrary. It was also the duty of the complainant to establish that an excess amount of Rs.1,70,000/- was paid by her or collected by the OP or a sum of Rs.22,137/- was debited in her account in violation of agreement or law. To that extent the complaint has not been proved by the complainant. There is also no proof of unfair trade practice against OPs.
The complaint availed the loan after opening the account with the OP1 as well as also availed facility of credit cards, however, then what deficiency was suffered by her. She herself filed record of transactions/event, similar record of events was also filed by OPs, then what deficiency happened? The complainant was required to establish specifically as to how there was deficiency in services, which could not have been established by the complainant. In addition, complainant mentions in her written arguments that the excess amount recovered by OP from her has been increased to Rs.3,58,000/- as if increased during the pending of complaint, which was not in the original complaint.
7.8. Thus, the complaint is dismissed as it could not be proved by the complainant.
8. Since the present complaint being disposed off under summary procedure under the Consumer Protection Act, 1986, on the limited points of unfair trade practice, deficiency in services and Opposite Party had also filed suit (as plaintiff) for recovery of money against the complainant (as defendant), which was stated to pending before Ld. Additional District Judge, Tis Hazari, Delhi on 07.01.2023 [other details were not available with the parties except that it was for defendant's evidence]. Therefore, findings or any expression given in this order shall not be construed any opinion or findings or reflection on merits of that suit for recovery of money.
9. Copy of this sent/provided forthwith to the parties free of cost as per Regulations within 4 days.
10: Announced on this 18th day of January, 2023. [ पौष 28, साका 1944].
[Vyas Muni Rai] [Inder Jeet Singh]
Member President
