Delhi

East Delhi

CC/160/2012

Delhi Diesels - Complainant(s)

Versus

ING Vysaya Bank Ltd - Opp.Party(s)

23 May 2012

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

 

CC No.160/2012:

 

 

In the matter of:

 

 

M/s. Delhi Diesels

B – 3, Yamuna Vihar,

Delhi – 110 053

(Through its Partner Sh. Mahender Kumar Aggarwal)

Complainant

Vs.

ING Vysaya Bank Ltd.

C – 1/19 - A, Yamuna Vihar,

Delhi – 110 053

(Through its Principal Officer & Duly Constituted Attorney)

 

Also At:

Registered Office & Corporate Office at

No.22, M.G. Road,

Bangalore – 560 001

(Through its Chairman & Managing Director Sh. Shailendra Bhandari)

Respondent

 

 

     Date of Admission: 16/03/2012

                                                                                                      Date of Order        : 17/06/2015

 

 

ORDER

 

Ms. Poonam Malhotra, Member:

 

 

 

The brief conspectus of facts of the present complaint are that the complainant had been maintaining a Current Account No.149 with the respondent bank at its Yamuna Vihar Branch for the last 18 years besides certain deposits.  On the advice of the respondent the Current Account was closed and an Overdraft Account (hereinafter referred to as the OD Account) was opened in the year 2008 vide Customer No.835873 and Account No.535044035553 was given to the complainant.  It was enjoying the overdraft facility with a limit of Rs.8,00,000/- which was fully secured with FDR of Rs.8,91,000/- in the name of the complainant.  The complainant had never overdrawn above the OD Limit.  The Statement of Account for the period 01/06/2011 to 28/06/2011 of the said OD Account was issued on 20/06/2011 wherein a Debit Entry of Rs.1,63,056.49 was noticed which was stated to be “Base Cash Deposit Charges” for the Month of May, 2011.  It is alleged that no such charges were ever claimed by the respondent bank from the complainant, as such the debit of the said amount caused heavy anxiety in the minds of the partners of the complainant firm.  This was protested by the complainant that no notice was ever given to the complainant regarding over charges. The request made by the complainant for the reversal of the said entry was turned down and the amount   of Rs.1,63,056.49 was not credited into its account.  Despite a requisition letter dated 27/06/2011 and several reminders for the closure of the account, the said OD Account was not closed. The long association of the respondent bank forced the complainant to continue to operate the OD Account.  The complainant got shocked when the amount of Rs.1,44,073.86 was again debited to his account on 29/07/2011 for “Base Cash Deposit Charges” for the month of June, 2011.  This resulted in overdrawing of the said amount from the account of the complainant, being an illegal and unauthorized debit to the account of the complainant.  Again it sent a letter dated 27/06/2011 for the closure of the said account.  A letter was received on 01/08/2011 for the payment of the excess amount overdrawn from the OD Account.  The complainant had not used and utilized the above amount which resulted in creating an overdraft.  The respondent has failed to carry out the instructions given by the complainant by not closing the OD Account.  It is in these circumstances the complainant has prayed for directions to the respondent to pay to the complainant Rs.3,07,130.35 alongwith interest, Notice charges of Rs.5,500/-, the cost of the present litigation and any other relief which the Forum deems fit and proper under the facts and circumstances of the present complaint.

In response to the notice issued to the Respondent, it appeared and filed its written statement wherein it has taken the plea that the complainant had opened an OD Account with it for the smooth operation and facilitation of its business/commercial transactions.  There is an express bar to the adjudication of any commercial dispute by a Consumer Forum and it can only be adjudicated by the Civil Court and not a Consumer Forum as the complainant does not come within the definition of “Consumer” as contained in the The Consumer Protection Act, 1986.  The complainant has been enjoying free Cash Deposit Charges since 1992 through its Current Account No.535011000149 and when the Respondent Bank introduced Cash Deposit Charges in the current accounts, the complainant opened an Overdraft Account No.53044033353 for avoiding the Cash Deposit Charges and when Base Cash Deposit Charges were levied, the complainant has filed the present complaint with malafide intention.  The amount was debited from the account as per the Circular No.546 dated 21/03/2011 under prior intimation to the complainant.  It was communicated to all the customers through their Account Statements and the said Circular was pasted on the Branch Notice Board also.  The complainant had approached the Banking Ombudsman at New Delhi against the Respondent Bank where the complaint was dismissed vide order dated 19/09/2011.  The complainant was well aware of the charges which the Respondent Bank was entitled to levy as per the norms and policy of the bank.  It was communicated to the complainant that in view of the Circular dated 21/03/2012 bearing CIR/GEN No.546 it will charge Rs.5/- per Rs.1,000/- on every transaction after exhausting the free limit which in the case of the complainant was Rs. Ten Lakhs.  Since the account of the complainant has exceeded the overdraft limit, it vide its communications dated 01/08/2011, 04/10/2011 and 10/10/2011 had informed the complainant about it and also asked the complainant to regularize the excess amount overdrawn but the same has not been done so far by the complainant.  The complaint deserves to be dismissed.

Evidence by way of Affidavit filed by both the parties in support of their respective cases.

Heard and perused the record.

It is not in dispute that the complainant was running a Current Account with the respondent which was subsequently closed and an OD Account was opened with OD limit of Rs.8,00,000/- .  The simple question which arises in this complaint is as to whether the bank can deduct the amount of “Base Cash Deposit Charges” @ Rs.5/- per Rs.1,000/- on every transaction after exhausting the free OD limit from the account of the complainant without any prior intimation.  The contention taken by the respondent in its written statement that they have levied the said charges in view of the Circular dated 21/03/2011 with Effective Date 21/04/2011.  It has been contested by the complainant that neither any such Circular Letter was ever communicated to it nor it was brought to its notice by any other means.  The respondent has taken the plea both in their Written Statement as well as before the Banking Ombudsman that they had communicated it one month in advance to the complainant through the Statement of Account which was delivered through normal post and also by displaying it on the Notice Board of its branches to rebut the allegations made in the complaint.   The Circular came into the notice of the complainant when he applied for the Statement of Account for the period 01/06/2011 to 28/06/2011 on 29/06/2011 and found a Debit Entry dated 25/06/2011 for a sum of Rs.1,63,056.49  in the above OD Account which on enquiry was told to be ”Base Cash Deposit Charges” for the month of May, 2011.  It is for the Respondent Bank to prove that before debiting the OD Account of the complainant with Rs.1,63,056.49 on 25/06/2011 the aforementioned Circular dated 21/03/2011 was ever communicated to the complainant .  On a threadbare perusal of the documents placed on record we have not come across any document from which it could be established that the Circular dated 21/03/2011 whereby the Respondent Bank had levied the ”Base Cash Deposit Charges” was ever communicated to the Complainant.  The respondent has not filed any cogent documentary evidence as proof of dispatch of any such letter communicating the said Circular to the complainant nor any credible proof of communication of the said new provision through Statement of Account which was alleged to have been delivered through normal post one month in advance to the complainant.  Further, it is not obligatory for the complainant to visit the bank on regular basis to keep himself updated by keeping a track of the important notices that are displayed on the Notice Board of the Bank Branch or to stay in touch with the website of the bank regularly to keep itself updated of the notices/ circulars issued by the bank with regard to its banking transactions.  As such it is not acceptable to us that the complainant had notice of the Circular just because it was alleged to have been displayed on the Notice Board of the Concerned Branch of the Respondent Bank.  During the course of arguments it was submitted by the Ld.Cl. for the Complainant that in the case of petrol pumps all the transactions take place in cash due to which cash is deposited on daily basis into the bank.  Had the complainant been intimated with regard to the levy of such charges on deposit of cash it may not have opted for the deposit of cash into the account which was maintained by it with the Respondent Bank and it may have either directly gone in for the preparation of Demand Drafts for the payment of cost of oil to the oil companies or would have opened an account with some other bank as levy of such charges will affect its business adversely.  The levying of such charges without any prior intimation certainly amounts to deficiency in service on the part of the Respondent Bank. 

Further, it has not been denied by the Respondent Bank that the complainant had not made a requisition for the closure of the OD Account when it first got the knowledge of such Debit Entry with regard to the Base Cash Deposit Charges which were reflected for the first time in the Statement of Account for the month of May, 2011.  Despite express requisition of the complainant for the closure of the account, the OD Account had not been closed and the account was one again debited for Base Cash Deposit Charges to the extent of Rs.1,44,073.86.  Failure to close the OD Account on the request of the complainant clearly reflects the malafide intention of the Respondent Bank and leaves no room for doubt that it had intentionally not closed the account of the complainant as it knew that the complainant was a very prosperous customer on whom it can levy such illegal charges as the complainant required as an inexorable necessity for running its business hefty daily cash deposit transactions.

Taking into consideration the facts and circumstances of the case and the observations made supra, we arrive at an inference that the Respondent Bank was deficient in providing services to the complainant and direct it to refund Rs.3,07,130.35 alongwith interest @ 9% p.a. from the date of respective debit made upto the date of realization of the amount within 45 days from the date of this order.  The complainant has been traumatized and harassed by the Respondent Bank and litigation has been thrust upon it and it needs to be compensated for the same.  We, further, direct the respondent to pay Rs.45,000/- towards the compensation for harassment meted out by it and the cost of litigation.  If the Respondent Bank fails to pay the entire said amount within 45 days from the date of this order it shall also pay interest @ 9%p.a. on the amount of compensation and cost so awarded from the date of this order till it is finally paid.

Copy of the order to be sent to both the parties as per rules.

 

   (Subhash Gupta)                                (Poonam Malhotra)                                            (N.A. Zaidi)

          Member                                                           Member                                                       President