BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 20^th day of February 2018

Filed on : 16-03-2015

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No.183/2015

Between

O.A. Nizam, : Complainant

S/o. O.M. Abdul Karim, M-22, (By Adv. George Cherian Karippa-

Changampuzha Nagar, Parambil, Karippaparambil

Pin-682 033. Associates, HB-48, Panampilly Nagar,

Kochi-682 036)

And

1. M/s. City Bank N.A., : Opposite parties

Ravi's Arcade, M.G. Road, (By Adv. Lal K. Joseph,

Padma Junction, Kochi-35, M/s. Shrriff Associates LLP,

Rep. by its branch Manager. 41/318.C, Kolliyil Buildings, Near

Mullassery Canal, Chittoor road,

Kochi-682 011).

2. M/s. Credit Information Bureau (By Adv. C. Ajith Kumar,

(India) Ltd., Hoechst House, Chamber – 214, KHCAA, Golden

6^th floor, 193 Backbay Jubilee chamber Complex, High

Reclamation, Nariman Point, Court Building, Ernakulam)

Mumbai 400 021,

rep. by its Managing Director.

O R D E R

Cherian K. Kuriakose, President.

1.Complainant's case

2.The complainant, a Chemical Engineer by profession availed credit card facility of the 1^st opposite party M/s. City Bank, Kochi on consideration of payment of service charges and he was personally using it. However, due to the overcharging of interest and frequent errors in billing committed by the 1^st opposite party bank, there arose a dispute between the complainant and the 1^st opposite party bank regarding the correctness of the bill issued by the bank. On arriving at an amicable settlement the 1^st opposite party issued a letter on 20-11-2008 informing the complainant that his liability towards full and final settlement for the credit card account is fixed at Rs. 70,000/- and that amount need to be paid only in 3 monthly instalments. On 13-01-2009 the bank acknowledged the receipt of Rs. 50,000/- in instalments and confirmed that the balance payment towards full and final settlement as on 13-01-2009 is Rs. 20,000/-, which is to be paid in lump sum. Accordingly the complainant paid Rs. 20,000/- on 13-01-2009. When the complainant subsequently approached M/s. Bank of India , Kalamassery branch for a loan, he was informed that as per the information given by the 2^nd opposite party CIBIL the complainant was a defaulter and therefore the application of the complainant could not be processed. As per the credit information report of the 2^nd opposite party the complainant is shown as a defaulter in the credit card of the 1^st opposite party and the current balance due in the credit card is shown as Rs. 11,87,873/- and the status shown as” written off “, causing severe damage to the creditworthiness of the complainant. When the complainant contacted the 1^st opposite party regarding this, they had issued a letter on 22-04-2014 demanding an amount of Rs. 1,13,700.16 as dues in the credit card. The complainant therefore approached to the banking Ombudsman on 06-06-2014 and as per order dated 11-08-2014 the complainant was directed to approach this Forum for any redressal. There is negligence and deficiency in service on the part of the 1^st opposite party and the complainant had therefore suffered mental agony. The complainant seeks a direction to be given to the 2^nd opposite party to withdraw the information showing the status that Rs. 11,87,873/- as written off and to pay compensation by the 1^st opposite party to the complainant along with costs of the proceedings.

3. Notices were given to the opposite parties and opposite parties appeared and filed their respective versions contending inter-alia as follows:

4. The 1^st opposite party contended that U/s. 31 of the credit information companies (Regulation) Act 2005 the District Forum is not having jurisdiction to entertain and decide the dispute allegedly involved in this case and U/s. 18 of the said Act the dispute shall be settled by Arbitration proceedings, if the parties had consented for the same. The complainant will not come within the purview of “consumer” within the section 2 (1) (d) of the C.P. Act, since he availed the credit card for improving his profit in the business and not for his livelihood. The complainant was not using the credit card for his personal use. The complaint lacks bonafides and is liable to be dismissed. The complainant had failed to repay the credit facility availed from the 1^st opposite party and therefore he was a defaulter. The 1^st opposite party had offered the settlement of dues of the complainant by payment of Rs. 70,000/- in 3 monthly instalments as against the total outstanding of Rs. 1,98,596/- and it was communicated to the complainant on 20-11-2008. On payment of the amount it was credited to the 1^st opposite party, in the account of the complainant, reducing his dues to that amount the 1^st opposite party had reversed the balance outstanding amount as 1,49,456/-, which includes the principle amount of Rs. 1,13,700/-. In view of the settlement entered, the 1^st opposite party had closed the account of the complainant as “post written off settled”. The 2^nd opposite party had duly updated the same as per RBI direction disclosing the status of the account as per “post written off settled”. The complaint is barred by limitation and the complainant had made the averments regarding the happenings in 2016 only as a ruse to cover up the law of limitation U/s. 24 A of the C.P. Act . The complainant is shown as a defaulter for Rs. 11,87,873/- while updating his status, and it was only in compliance of the directions given by the Reserve Bank of India through its Rules and Regulations. The 1^st opposite party did not commit any deficiency in service or Unfair Trade Practice. The complaint is therefore sought to be dismissed.

5. The 2^nd opposite party also resisted the complaint on the ground that the complaint is barred by jurisdiction as against the 2^nd opposite party, in addition to the contentions fundamentally raised by the 1^st opposite party.

6. The following issues were settled for consideration

1. Whether the complaint is maintainable?

2. Whether the complainant had proved that there was deficiency in service on the part of the opposite party and as to whether the opposite party had committed any unfair trade practice as alleged?

3. Reliefs and costs

7. The evidence in this case consists of the oral evidence of PW1, the complainant and Exbts. A1 to A7 on the side of the complainant. The opposite parties did not adduce any oral evidence but marked Exbt. B1 document.

8. Issue No. i. As a preliminary issue the opposite parties raised a contention that the complaint is not maintainable as arbitration clause was not utilized and an interlocutory application I.A 632/16 was filed to adjudicate the question of maintainability prior to the commencement of the trial. Accordingly, that I.A. was considered, heard and disposed off finding that this Forum was entitled to conduct enquiry regarding deficiency in service if any, independently and not withstanding arbitration clause, fo0llowing the dictum of the decision rendered by the Hon’ble Supreme Court in Sky pack couriers Vs. Tata Chemicals ( 2000) II CPJ VI (Supreme Court) and the complaint was found to be maintainable notwithstanding that there was an arbitration clause.

9. Issue No. ii. The complainant has made an averment in the complaint that the credit card facility was being used for his personal use only. However, during cross-examination the complainant admitted that as per Exbt. A4 CIBIL report the address of the complainant was shown in the capacity of proprietor, industrial and fine chemicals, Kalamassery. Therefore it is clear that the complainant was using the credit card facility not for his personal use as contended in para 1 of his complaint, but for the use of the company owned by him as proprietor. The complainant has not therefore approached this Forum with clean hands by suppressing material facts and misleading the Forum regarding his status. Exbt. A2 is the letter issued to the complainant confirming the settlement offer made by the 1^st opposite party. The complainant did not produce any documents to show that bank ;of India had refused to entertain the loan application of the complainant. The complainant also did not produced any document showing that the 1^st opposite party had demanded any further amount from the complainant after the payment of the settled amount. Exbt. A5 is a letter issued by the 1^st opposite party to pay Rs. 1,13,700/- if he wanted the credit rating as “null “ the present credit rating is that the account was “settled. “ That being the actual fact and the complainant having admitted that he did not pay the amount due to the 1^st opposite party as per their books of accounts but paid only the settled amount, we find no deficiency in service on the part of the 1^st opposite party in directing the complainant as per Exbt. A5 to pay Rs. 1,13,700/- in order to get the CIBIL data base as “Null with Nil outstanding” as against the current rating as “written off.”. We therefore find no merit in the complaint and the issue is found against the complainant.

10. Issue No. iii. Having found issue No. ii against the complaint stands dismissed.

Pronounced in the open Forum on this the 20th day of February 2018

Sd/-

Cherian K. Kuriakose, President.

Sd/-

Sheen Jose, Member.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order,

Senior Superintendent.

Appendix

Complainant's Exhibits

Exbt. A1 : Copy of letter dt. 20-11-2008

A2 : Copy of letter dt. 13-01-2009

A3 : Copy of collection deposit

dt. 13-01-2007

A4 : Copy of CIBIL Consumer Credit

Information Report

A5 : Copy of letter dt. 22-04-2014

A6 : Copy of letter dt. 08-05-2014

A7 : Copy of letter dt. 11-08-2014

Opposite party's exhibits:

Exbt. B1 : Copy of certificate under

of Section 2A of Banker's Books

Evidence Act, 1891

Depositions

PW1 : O.A. Nizam

Copy of order despatched on:

By Post: By Hand: