BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complaint Case No  :   49 of 2010

Date of Institution :  27.01.2010

Date of  Decision   :  08.02.2011

Yogesh Goyal c/o Goyal Enterprises, S.C.O. No. 839, N.A.C. Manimajra, Chandigarh, R/o House No. 57, Sector 7, Panchkula.

….…Complainant

V E R S U S

Kotak Mahindra Bank Limited, through Unit Manager, SCO No. 153-154-155, Sector 9-C, Madhya Marg, Chandigarh.

                         ..…Opposite Party

CORAM:     SH.LAKSHMAN SHARMA              PRESIDENT

SH.ASHOK RAJ BHANDARI            MEMBER

PRESENT: Ms. Kavita Sharma, Adv. for Complainant.

         None for OP.

PER ASHOK RAJ BHANDARI, MEMBER

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        Concisely put, the Complainant, who is a Businessman, had been using the Credit Card issued by the Kotak Mahindra Bank Ltd. (for brevity ‘OP Bank’). It was averred that the Complainant deposited a sum of Rs.8,200/- through Cheque No. 634294 drawn on ICICI Bank, Chandigarh to the authorized agency of OP Bank i.e. M/s Eminent Enterprises, Chandigarh, which accepted the same towards full & final payment of card account on 4.4.2009 and accordingly, issued a receipt bearing No. 0059314 to the Complainant. Irrespective of this, to the utter dismay of the Complainant, the OP Bank demanded another sum of Rs.20,473.49/- towards outstanding amount and had also charged interest thereon. A legal notice was also served upon the Complainant to pay the aforesaid amount, failing which it was threatened to circulate his name as a defaulter to other financial institutions, thereby putting his reputation at stake, which according to the Complainant amounts to indulging in unfair trade practice. He, immediately got served a counter legal notice upon the OP, but to no avail. Hence, the present complaint has been filed, alleging the above act of OP Bank as gross deficiency in service and unfair trade practice, directing the OP Bank to pay compensation of Rs.1.00 lakh along with interest @ 18% p.a. calculated from 4.4.2009 till its actual payment, to levy cost for causing mental and financial hardships to complaint, besides Rs.5,000/- as costs of litigation.

2]      Notice of the complaint was sent to OP seeking their version of the case.

3]      OP Bank in its written statement/ reply, while admitting the factual matrix of the case/reply, pleaded that the Complainant was using the their credit card and purchased the goods on the basis of the said credit card for which he deposited Rs.8,200/- only and still he had to pay Rs.20,473.49/-. The said amount of Rs.8200/- was deposited with Eminent Enterprises, which inadvertently issued the full and final payment, for which OP Bank was not liable. The OP has to recover the balance amount from the Complainant, for which it had issued the notice for the recovery of the outstanding amount, but the Complainant instead of making the payment had thrust this litigation upon them. All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with heavy costs.

4]      Parties led evidence in support of their contentions.

5]      Since none appeared for the OP Bank on 04.02.2011, therefore, we proceed to dispose of this complaint on merits under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987 read with Section 13(2) of the Consumer Protection Act, 1986 (as amended upto date) even in the absence of the OP.

6]      We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / OP. We also heard the arguments put forth by the learned counsel for the Complainant. As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]  The basic facts of the case in respect of the Complainant having the credit card been issued by the OP in his name and using the same during the period 2008-2009 and that on 4.4.2009, the Complainant had paid a sum of Rs.8,200/- with the authorized agent of the OP in liquidation of the outstanding dues, have all been admitted. The only dispute between the parties is that whereas, according to the Complainant, the payment of Rs.8,200/- was made to the OP through its authorized agent – M/s Eminent Enterprises, Chandigarh, in full and final settlement of all pending dues towards him, on the contrary, the contention of the OP is that the said amount of Rs.8,200/- was paid by the Complainant only as part payment because of the fact that a sum of Rs.20,473.49/- was still the balance outstanding amount payable by the Complainant to the OP. The allegation of the Complainant against the OP is that even after making full and final payment of all the outstanding dues to the OP, the OP is demanding an exorbitant sum of Rs.20,473.49/- from him and that he is not obliged to pay anything more than what he has already paid. The Complainant called this as grave deficiency in service, as well as unfair trade practice on the part of OP. This has led to the present complaint.

ii] The OP Bank in its written statement/ reply pleaded that the Complainant was regularly using the credit card by making various purchases for which he had paid part amount of Rs.8,200/- and was still liable to pay another sum of Rs.20,473.49/-. It is admitted that the OP had issued a legal notice to the Complainant for the recovery of the balance outstanding amount and that the Complainant has not paid that amount so far.

iii] On further detailed study of the entire case, it is found that Annexure C-1, which is a money receipt issued by M/s Eminent Enterprises, Chandigarh shows the payment of Rs.8,200/- by the Complainant to the OP in full and final settlement of all the dues payable by the Complainant. The receipt is signed by the authorized agent of the OP. The OP says that the receipt in question is not to be treated as full and final settlement of all the dues, rather as per the terms and conditions of the OP, the OP has to issue a “No Due Certificate” to the Complainant only on settlement of all pending dues. The OP has also taken a preliminary objection saying that the complaint is bad for non-joinder of necessary parties, in the sense that the Complainant has not impleaded M/s Eminent Enterprises, Chandigarh as a necessary party. It further says that its authorized agent inadvertently issued the full and final payment receipt, for which OP is not liable and as such, OP has still to recover the balance amount of Rs.20,473.49/- from the Complainant, on account of the fact that the Complainant has used the credit card for purchasing the goods and is liable to pay back the same.

iv] On further considering the case, it is quite clear that there are only two points, on which order is required to be passed. The one in respect of the alleged  outstanding dues of Rs.20,473.49/- being claimed by the OP from the Complainant as unpaid charges. The OP has failed to produce any evidence or document in support of this claim for the outstanding dues against the Complainant. Neither there is any statement of account for the credit card, nor any bills for the alleged purchases allegedly made by the Complainant by using the said credit card. As such, the OP has no case against the Complainant for the recovery of the sum of Rs.20,473.49/-, as it has miserably failed to produce any document in support of such recovery, for which it has no evidence or proof in its favour. The second point is in respect of the liability of OP for the acts of its own authorized agent i.e. M/s Eminent Enterprises, Chandigarh, who had issued a valid receipt for the sum of Rs.8,200/- received by it from the Complainant in full and final settlement of all pending dues. By merely saying that the authorized agent had issued a wrong receipt inadvertently, adding the words “in full and final settlement of the outstanding dues”, is not enough. The OP is the Principal and is vicariously as well as fully liable for the acts of its own agent. It cannot be allowed to wriggle out of the job done by its own agent. Further, there is no statement or any sworn affidavit on record from M/s Eminent Enterprises, Chandigarh stating that they had issued a wrong receipt or that the words “full and final settlement of the outstanding dues” have been inadvertently added in the receipt. Therefore, even this plea of the OP falls flat in that it is not responsible for the acts of omission and commission of its own agent i.e. M/s Eminent Enterprises, Chandigarh. There is already an authority of Hon’ble Supreme Court of India in the case “State Bank of India Versus Smt. Shyama Devi”, reported as AIR 1978, SC 1263, wherein the Hon’ble Apex Court has held as under:-

“……………….a master is liable for his servant’s fraud perpetrated in the course of master’s business, whether the fraud was for the master’s benefit or not, if it was committed by the servant in the course of his employment. There is no difference in the liability of a master for wrong whether for fraud or any other wrong committed by a servant in the course of his employment.”

     Therefore, the OP is fully and wholly responsible, as well as accountable for all the acts of its agent M/s Eminent Enterprises, Chandigarh.

7]      Keeping in view the above, it is fully established that there is not only grave deficiency of service on the part of OP in claiming the huge sum of Rs.20,473.49/- illegally and without any justification from the Complainant, but also there is indulgence in an unfair trade practice on its part by claiming the amount which is not at all due towards the Complainant. Therefore, the present complaint has a lot of merit, weight and substance. We decide the complaint in favour of the Complainant and against the OP and pass the following order.

8]      The OP is required to do the following in favour of the Complainant:-

(i) The OP shall issue a proper “No Due Certificate” to the Complainant, certifying therein that there are no outstanding dues towards the Complainant against the Credit Card No. 4166451 40005 6666 account in the name of the Complainant.

(ii) The OP shall pay a sum of Rs.20,000/- as compensation for causing unnecessary and wholly avoidable physical harassment, pain and agony to the Complainant, on account of making an unjustified and illegal claim of Rs.20,473.49/- with the Complainant; whereas, nothing was required to be paid by the Complainant to the OP, on account of full and final settlement of all outstanding dues after making payment of Rs.8,200/- on 4.4.2009.

(iii)   The OPs shall pay a sum of Rs.7,000/- as litigation costs to the Complainants.

9]      The aforesaid order be complied with by the OP, within a period of 30 days from the receipt of its certified copy, failing which OP shall pay Rs.20,000/-, along with interest @18% per annum from 04.04.2009 i.e. the date on which the Complainant had paid all outstanding dues to OP, till the date of realization, besides paying the costs of litigation of Rs.7,000/- and also complying with the order as at (i) in the foregoings.

10]    Certified copy of this order be communicated to the parties, free of charge. After compliance, file be consigned to record room.

Announced

08.02.2011

                         Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                    Sd/-                               

                                (ASHOK RAJ BHANDARI)

MEMBER