IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 295/09 DATED 04.11.2009<br /> ORDER<br /> <br /> Complainant K.Ramprasad Kamath, <br /> S/o Late A.N.Kamath,<br /> No.B-1, Bhavana Apartments, <br /> Fountain Road, <br /> Mysore.<br /> <br /> (By Sri.Manjunath, Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. Customer Relations Manager,<br /> M/s Barclay’s Bank PLC, Retial Banking Division, No.601/603, Ceejay House Shivasagar Estate, Dr.Abbie Basant Road, No.97/1A, Singasandra Village, Worli, Mumbai-4000180<br /> 2. Proprietor, M/s Fast Track Solutions, No.16/1, Shivanna Complex, Kalidasa Road, V.V.Mohalla, Mysore-2.<br /> (By Sri. K.M.S.Bhat, Advocate for O.P.1 and<br /> O.P.2 - EXPARTE)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 14.08.2009<br /> Date of appearance of O.P. : 03.09.2009<br /> Date of order : 04.11.2009<br /> Duration of Proceeding : 2 MONTHS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under section 12 of the Consumer Protection Act, the complainant has filed the complaint, seeking direction to the opposite parties to pay a sum of Rs.25,000/- towards damages and also, to direct first opposite party to revert debit entries in respect of the interest free loan and also, cost of the proceedings.<br /> <br /> 2. In the complaint, it is alleged that, the complainant availed Gold Card from first opposite party, based on the representation and benefits offered. The second opposite party is an agent of first opposite party. During last week of February 2009, the complainant received phone call from first opposite party, stating that the complainant is eligible for interest free loan of Rs.38,000/- for a period of 3 months. The complainant agreed to avail the said loan. On 02.03.2009, first opposite party informed the complainant by SMS that loan amount will be credited to the S.B. account of the complainant with Vijaya Bank, Sayyaji Rao Road, Mysore, within two days. The complainant enquired with the bank every day, but, no such credit was given during the month of March 2009. To the utter shock and surprise, the complainant received SMS on 14.03.2009 before getting the loan, that he should clear loan of Rs.38,000/- before 1st April 2009. The complainant also received statement of accounts from first opposite party, asking to pay Rs.38,000/- + balance transfer fees of Rs.760/- + service tax of Rs.93.94 + Rs.15.66 within 1st April 2009. Said demand is against the offer of the first opposite party of interest free loan. The first opposite party has violated the banking norms. The complainant immediately brought the said fact to the notice of first opposite party by letter dated 16.03.2009. It was informed that, loan amount has not been reached the complainant and that first opposite party bank has indulged in Unfair Trade Practice. First opposite party did not reply. In the meanwhile, again complainant received statement of accounts twice with illegal demand before crediting the loan. The complainant contacted his bank and it was informed the loan amount will be given credit only after one month and on 04.04.2009, the amount was credited into the account of the complainant. The complainant has not withdrawn or utilized said amount. The first opposite party caused mental agony to the complainant and the said act is illegal, which amounts to breach of trust. Hence, the complainant is entitled for damages of Rs.25,000/- apart from the amount already credited. A sum of Rs.37,329/- only has been credited by the first opposite party in the account of the complainant. Complainant got issued notice to opposite parties and the first opposite party is sending demand notices. The first opposite party failed to respond to the request of the complainant. Complainant sent second notice to the first opposite party and in response, e-mail was sent on 24.06.2009, admitting deficiency. The opposite parties agreed to reverse the debit entries, but, demanded processing charges of Rs.853.94. Said demand is illegal. By the letter dated 15.07.2009, addressed to the complainant, it is alleged outstanding balance is Rs.40,956.80. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The first opposite party has filed affidavit, contending that it has a scheme known as “balance transfer” whereby the credit card holder can clear his credit card dues of another bank by availing balance transfer and over telephone, the complainant booked a balance transfer for an amount of Rs.38,000/- on 28.02.2009, to clear his credit card dues with Vijaya Bank. Accordingly, the first opposite party transferred Rs.38,000/- to the Vijaya Bank credit card account of the complainant on 03.03.2003. This balance transfer amount carried no interest for the first three months. The complainant failed to pay processing fees, for which the complainant consented at the time of applying for the balance transfer. The said processing fees was later reversed by the first opposite party, as a good will gesture. It is contended that, the complainant filed a complaint with banking Ombudsman on the grounds, alleging in the present complaint. The Ombudsman has held that, there is no deficiency in service on the part of first opposite party. It is further contended that, the amount that first opposite party credited to the account of the complainant with Vijaya Bank till date is not repaid and thus, complainant defaulted causing loss to the first opposite party. The complaint is filed to harass first opposite party to divert attention from his default. It is contended that, complainant has made frivolous allegations in order to avoid repayment. Also, it is stated, complainant has deliberately suppressed the order of banking Ombudsman. It is contended that, there is outstanding balance of Rs.40,956.80 from the complainant to the first opposite party. On these grounds, it is prayed to dismiss the complaint with cost of Rs.10,000/-, as per section 26 of the Consumer Protection Act.<br /> <br /> 4. The second opposite party despite due service of the notice, has remained absent and is set exparte.<br /> <br /> 5. To prove the facts alleged in the complaint, the complainant has filed his affidavit and produced certain documents. On the other hand, for the first opposite party, Head of Legal Cell by name Sri Ashok has filed his affidavit. Certain documents are produced. We have heard the advocates for the complainant and the first opposite party and also perused the entire material on record.<br /> <br /> 6. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite parties and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 7. Our findings are as under:-<br /> Point no.1 : Partly in the Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 8. Point no. 1:- Without repeating the facts mentioned here before, the complainant alleges Unfair Trade Practice on the part of the opposite parties and deficiency in service. It is suffice to state that, the first opposite party offered interest free loan of Rs.38,000/- for a period of three months. That fact is admitted by first opposite party also. It was during last week of February 2009. On 02.03.2009, the first opposite party sent SMS to the complainant, stating that the amount will be credited to the S.B. account of the complainant with Vijaya Bank. The complainant further alleges, during the whole month of March 2009, the amount was not credited into his account. In this regard, for the first opposite party, it was contended that, in fact, the amount was credited on 03.03.2009. But, for the complainant, it is pointed out that in the statement of the Vijaya Bank, pertaining to the account of the complainant though such an entry is made, in the coloumn regarding amount payable, it is stated that “the amount payable will be credited to your account………….. will be effected on 5th of the following month or on the previous day, if 5th is holiday.” Hence, from the said note of the Vijaya bank, as rightly pointed out by the advocate for the complainant, the said loan amount was effected only on 04.04.2009. <br /> <br /> 9. As noted above, even though the loan was to be effected from 04.04.2009, the first opposite party sent SMS to the complainant on 14.03.2009 stating that the complainant should clear the loan before 1st April 2009. Sending of the SMS by the first opposite party to the complainant is not in dispute. As noted here before, admittedly the first opposite party offered interest free loan for a period of three months. Even according to the first opposite party, the loan amount was to be credited into the account of the complainant, within two days as per the SMS dated 02.03.2009. From this date, three months will be 03.06.2009. In spite of it, as per SMS dated 14.03.2009, the first opposite party called upon the complainant to clear the loan before 1st April 2009. By that time, firstly even one month was not over from the date of intimation of the first opposite party. However, the complainant contend that, in fact, the loan was effective from 04.04.2009. When that is so, on 14.03.2009, the first opposite party called upon the complainant to clear entire loan before 1st April 2009, as rightly contended by the complainant, is even before the loan was received by the complainant. It is extremity of the high-handedness and illegal act on the part of the first opposite party.<br /> <br /> 10. The first opposite party called upon the complainant not only to repay the loan of Rs.38,000/-, but also transfer fees, service tax etc., In this regard, learned advocate for the first opposite party submitted that though loan was interest free, the complainant was liable to pay processing fee. But, to substantiate that fact, no material is placed on record by the first opposite party. However, the first opposite party has stated that the processing fees was later reversed. At the cost of repetition, the first opposite party called upon the complainant to repay the loan and other charges before 1st April 2009. But, admittedly, interest free loan was for a period of three months.<br /> <br /> 11. It is contended by the first opposite party that, there is outstanding balance of Rs.40,956.80 from the complainant. Admittedly, loan is interest free. As noted earlier, the first opposite party reversed the processing fees. When the loan is interest free and processing fees has been reversed, to substantiate the contention of the first opposite party, there is outstanding balance of Rs.40,956.80, absolutely, there is no evidence. Such statements have been sent by the first opposite party to the complainant, which fact is not disputed. Thus, straight away, we can conclude that, there is deficiency in service on the part of the opposite parties.<br /> <br /> 12. There are several correspondences and the complainant has produced copy of the same. We feel it not necessary to narrate all those documents.<br /> <br /> 13. It is true that, the complainant had approached the banking Ombudsman. The office of the banking Ombudsman has informed the complainant that, there is no deficiency in service of the bank and the complaint was closed. However, complainant was given liberty to approach any other Forum for redressal, if not satisfied with the decision conveyed. Hence, firstly the fact that banking Ombudsman has found that, there is no deficiency in service on the part of the bank, right of the complainant in approaching this Forum is not curtailed, a liberty is given to the complainant. Further, it is relevant to note that, the banking Ombudsman before deciding the complaint of the complainant did not hear him and as mentioned in the letter, only banks comments were called upon. As mentioned in the letter, it appears, the bank confirmed that the loan was interest free for first three months and hence, Ombudsman come to such a conclusion. However, firstly complainant was not heard and secondly, as noted here before, the first opposite party called upon the complainant to repay the loan, even before he received the loan amount and even otherwise, before three months, for which, interest free loan was offered.<br /> <br /> 14. The first opposite party has put forth contention that, it had offered loan under the scheme known as “balance transfer” where by the credit card hold of first opposite party can clear his credit card dues of another bank by availing of balance transfer. While, the first opposite party offered loan to the complainant, this fact is not stated, which is evident from the SMS. Added to it, it is the contention of the complainant that, he had no dues at all towards his Vijaya Bank. When there was no dues at all of the complainant to the Vijaya bank, the first opposite party making balance transfer as alleged, cannot be believed and accepted.<br /> 15. Before concluding, the complainant has claimed damages of Rs.25,000/- from the first opposite party. Considering the facts noted here before, we feel it just to award a sum of Rs.10,000/- to the complainant. The complainant has also claimed cost of the proceedings. In the version, the first opposite party has submitted to dismiss the complaint with cost of Rs.10,000/- as per section 26 of the Consumer Protection Act. If the complaint is found false or frivolous, as provided, imposing cost, complaint can be dismissed. But, in the case on hand, the complainant has successfully proved illegal acts on the part of the opposite parties and also, deficiency in service and at the cost of repetition, the illegal demands made by the first opposite party and hence, it is liable to pay cost of Rs.10,000/-.<br /> <br /> 16. The complainant has further prayed to revert the debit entries in respect of the loan in question. Since, the complainant has not at all benefited by the said loan offered by the first opposite party, the first opposite party is hereby directed to get back the debit entry reverted and it is at liberty to get the amount whatever it has credited into the account of the complainant in the Vijaya Bank. <br /> <br /> 17. Accordingly, our finding is partly in the affirmative.<br /> <br /> 18. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The first opposite party is hereby directed to revert the entry relating to the loan in question of the complainant and it is at liberty to withdraw the only amount, that it has credited into the account of the complainant in Vijaya Bank. It is made clear that, the first opposite party shall not withdraw single piece more than, the amount that he has credited and for withdrawal of said amount, the complainant shall not raised any objection and if necessary give specific consent. Further, the complainant to maintain balance in the account enabling first opposite party to withdraw the amount that it has credited.<br /> 3. The first opposite party is directed to pay compensation of Rs.10,000/- to the complainant, within a month from the date of the order, failing which, the amount will carry interest at the rate of 12% p.a.<br /> 4. So also, the first opposite party shall pay Rs.10,000/- to the complainant towards cost of the proceedings.<br /> 5. It is ordered that, the first opposite party after paying the damages of Rs.10,000/- and cost of the proceedings, is permitted to withdraw the amount from the account of the complainant in Vijaya Bank as ordered earlier.<br /> 6. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 4th November 2009)<br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />