Date of Filling: 21.08.2015
Date of Disposal: 28.09.2018
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
THIRUVALLUR-1
PRESENT: THIRU.S.PANDIAN, B.Sc., L.L.M. ….PRESIDENT
THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP., …MEMBER
CONSUMER COMPLAINT No.44/2015
Dated this Friday the 28th day of September 2018
P.L.Chockalingam,
F.2,Plot No.58,
No. 14, III Main Road,
Mahalakshmi Nagar,
Chennai -600 088. …..complainant
//Vs//
1.ICICI Bank Limited,
Rep.By Mr.Kusal Roy,
Credit Card Head,
ICICI Bank Towers
Bandra-Kurla Complex,
Mumbai -400 051.
2.ICICI Bank Limited,
Rep. by Mr.Krishnakumar,
Credit card Zonal Head,
ICICI Bank Tower
Plot No.1, Ambattur Industrial Estate,
Ambattur Chennai - 600 058.
3. Credit Information Bureau (India) limited,
Hoechet House, 6th Floor,
No.193 Backbay Reclamation
Naariman Point,
Mumbai -400 021. ….opposite parties.
This Complaint is coming on for final hearing before us on 11.09.2018 in the presence of M/s.E.J.Ayyappan, counsel for complainant, and 2nd opposite party called absent and set ex-parte and Thiru.E.Anandhan, Counsel for the 1st opposite party and Thiru S.Partha sarathy, Counsel for the 3rd opposite party and upon hearing arguments having perused the documents and evidences, this Forum delivered the following.
ORDER
PRONOUNCED BY THIRU.S.PANDIYAN, PRESIDENT.
This complaint has been preferred by the complainant Under Section 12 of the consumer protection Act, 1986 against the opposite party for seeking direction to pay a sum of Rs.2,00,000/-towards loss of business from the dealership shops and a sum of Rs.2,00,000/- towards compensation for causing mental agony due to the deficiency of service committed by the opposite parties to the complainant with cost.
2. The brief facts of the complaint are as follows:-
The complainant had availed a personal loan of Rs.1,50,000/- from the 1st and 2nd opposite party on 26.05.2006 repayable by way of 36 equated monthly installments (EMI), at the rate of Rs.5166.67/- per month (which include part payment of both principal and interest), with the repayment schedule commencing from 26.06.2006 up to 26.05.2009.
3. That the personal loan was assigned credit card No.4477 4700 4615 2006, and the complainant had repaid the loan as per the repayment schedule of 36 equated monthly installments and the loan was closed on its last due date on 26.05.2009.
4. That long after the settlement of the loan on 23.10.2010, the complainant received a legal notice from the 2nd opposite party, claiming that there was an overdue amount of Rs.47,588.00/- on 01.10.2010 payable by the complainant for his personal loan in credit card No.4477 4700 4615 2006, and further calling upon the complainant to pay the same within 7 days from the date of receipt of the said notice.
5. The complainant through a reply notice dated 29.10.2010, he had categorically denied that he was liable to repay the sum of Rs.47,588.00/- as claimed by the opposite parties and he had reiterated that he has cleared all dues on 26.05.2009 itself.
6. That on 29.01.2011 he wrote to the opposite party bringing to their notice that the opposite party is illegally debiting his savings Bank Account No.000101018046 by transferring all sums credited into that account for adjustment of the so called overdue in his credit card account, which was not at all payable by the complainant.
7. That without referring to any of the previous correspondence on this issue, the opposite party sent a letter dated 09.02.2011 to the complainant stating that they have exercised the right of Bankers lien by putting a charge over the complainants Savings Bank A/c No.000101018146 towards unpaid credit dues in Credit dues in Credit Card No.4477 4700 4615 2006, and claimed that a sum of Rs.47,210.76/- was due to them on that date.
8. The complainant protested once again through his Advocates Reply Notice dated 16.02.2012, and yet the opposite party failed to accept the case of the complainant. Again on 30.06.2012 the opposite party sent a letter without any reference to the previous correspondence stating that they have exercised their lien and that they have debited a sum of Rs.745.81 on 30.06.2012 from the complainants saving Bank Account No.000101018046.
9. The complainant sent a personal letter to the opposite party stating that he has settled all EMIs for his credit card No. 4477 4700 4615 2006, and that he has also settled two other loans through a Lok Adalat, and that no debits were made from his Saving Bank Account No.000101018046 upto March 2011 and further for the first time the Bank had shown a debit balance of Rs.47,772.90/- in his Savings Bank Account on 13.04.2012, which was reduced as 46,464.95 on 18.04.2012. Then, on 30.06.2012 the Bank had debited a sum of Rs.745.81 from his Savings Bank Account but had suddenly removed the debit balance amount of Rs.46,464.95/- on 03.07.2012 without assigning any reason for the same. The complainant had finally requested the Bank to refund all debits made from his saving Bank Account for the alleged dues in his credit Card Account No.4477 4700 4615 2006.
10. In the meantime he had been sending E-Mails to the Bank Officers in connection with the above mentioned dispute, and yet the Bank refused to consider the complainants E-Mail communications also which were sent on 28.07.2012, 15.10.2013 and 24.10.2013. The complainant finally addressed three E-mails to the Banking Ombudsman also on 23.05.2014, 02.06.2014 and 05.06.2014 and yet again there was no response to the same. But the Bank also continued to sent alternate letters stating that they have debited funds from the complainants Savings Bank Account and that the outstanding dues in the Credit Card Account has to be repaid though the letter dated 26.09.2012, 08.10.2012 and 10.10.2012.
11. Finally on 20.08.2014 after referring to the complainants discussion with the Banks representative on 19.08.2014, the opposite parties had suddenly scaled down on their demand and called upon the complainant to pay a sum of Rs.19,300/- alone on or before 28.08.2014, for the outstanding dues on the Credit Card Account No. 4477 4700 4615 2006 stating that the Bank has given this concession to the complainant as an exceptional case.
12. Since he had no dues to pay, he sent an E-mail on 28.08.2014 reiterating the fact that he had no dues to pay, and finally on 26.09.2014, he sent a legal notice to both the opposite parties calling upon them to refund all money debited from his Savings Bank Account and seeking damages for the loss and sufferings caused to him due to the deficiency of service. Hence this complaint.
13. The contention of written version of the 1st opposite party is briefly as follows:-
The opposite party denies the entire allegations made in the complaint except those that are expressly admitted herein the complaint discloses no cause of action against the opposite parties as there is no deficiency of service on the part of the opposite parties and the complaint is as such liable to be dismissed.
14. The complaint has not been filed within limitation and as such the complaint is barred by limitation. On 25.05.2006 complainant availed a personal loan through credit card for a sum of Rs.1,50,000/- repayable in 36 EMSs and another personal loan through the same credit card for a sum of Rs.50,000/- on 30.12.2007 repayable in 48 EMIs and the same shall be evident from the statement of accounts of the credit card though the complainant paid the personal loan through credit card availed for sum of Rs.1,00,000/- by paying 36 EMIs, he had committed default in repaying the personal long availed a for sum of Rs.50,000/- and the same shall be evident from the statement of account. As on date the complainant is having an outstanding of Rs.48,602/- towards his personal loans availed from the Bank.
15. That, neither the Bank nor its counsel threatened the complainant at any point of time. The opposite parties states that they had sent legal notice to the complainant to recover the outstanding dues in the personal loan through credit card and that too in a legal way by sending legal notice to him.
16. At the time of availing the aforesaid two personal loans, complainant has opted for “Standing Instruction/Auto Debit” as the mode of repayment of the said loans. As per the terms of the personal loan, as agreed by the complainant at the time of availing the aforesaid personal loan, the bank shall have the right to set off the outstanding amount from any account of the complainant maintained with ICICI Bank when he commits default in repayment of the loan. Since the complainant had committed default in repayment of the personal loan availed for a sum of Rs.50,000/- and never paid back the outstanding even after several remainders, Bank had exercised its right of set off once on 30.06.2012 to recover the outstanding and debited a sum of Rs.745 on 30.06.2012 from the complainant account and the same was done as per terms and condition as aforesaid with due notice to the complainant.
17. That since complainant had never come back for repayment of the outstanding even after several remainders, Bank had lien marked in his saving account as enshrined in the terms and conditions of the personal loan for recovering the dues.
18. That complainant himself had personally approached the opposite party offering to settle the outstanding if the opposite party provides waiver considering his financial conditions. In considering the complainants request, opposite party had given a onetime settlement offer for a sum of Rs.19,300/- subject certain conditions. That even after providing a huge waiver to the complainant considering his request, he had failed to pay the settlement amount and thereby violated the settlement terms.
19. The complainant had concealed the fact that he had availed a another personal loan through his credit card a sum of Rs.50,000/- on 30.12.2007 which is repayable in 48 EMIs and defaulted in making repayment of the same to the opposite party. The complainant had approached this Honble Forum with unclean hands by deliberately concealing the aforesaid fact with an ulterior ill motive to escape from his liability. The demands made by the complainant are unjust, unfair and highly preposterous. Hence, in the circumstances, the present complaint is liable to be dismissed.
20. The contention of written version of the 3rd opposite party is briefly as follows:-
The present complaint is not maintainable against the 3rd opposite party as there is no privity of contract between the complainant and this opposite party. The complainant is also not maintainable on the ground that the complainant is not a consumer of this opposite party under the Consumer protection Act-1986 as neither the complainant has availed any service for consideration from the opposite party not has this opposite party provided any service to the complainant for a consideration.
21. The complainant has also failed to obtain leave from this Hon’ble Forum as envisaged Under Section 11(2) (b) of the consumer protection Act-1986. Hence this consumer complaint is not maintainable against the 3rd opposite party and has to be dismissed on this ground alone.
22. The complaint is barred by limitation as by the admission of the complainant himself, the cause of action first arose on 23.10.2010 when he received the legal notice from the counsel for the 2nd opposite party.
23. In terms of Section 31 of the CICRA no court or authority shall have or be entitled to exercise any jurisdiction, powers or authority except the Supreme Court or the High Court exercising jurisdiction Under Articles 32,226 and 227 of the Constitution in relation to the matters referred to in the said section.
24. The complaint on the face of it and on the facts stated therein is vexatious, malafide and baseless, atleast in so far as the 3rd opposite party is concerned, and ought to be dismissed in limine with exemplary cost Under Section 26 of the Consumer Protection Act-1986 on account of the complainant having unnecessarily impleaded the 3rd opposite party.
25. The 3rd opposite party functions as a credit information company in accordance with the provisions of the credit information companies(Regulation) Act-2005 (CICRA) read with the credit information companies Rules-2006 (the Rules) and the credit information companies Regulations-2006 (the Regulations) made under CICRA.
26. That assuming but not admitting to any pending dispute of the complainant with the 3rd opposite party it is submitted that in terms of section 18 of the CICRA notwithstanding anything contained in any law for the time being in force, any dispute on matters relating to the business of credit information is required to be settled solely by conciliation or arbitration under the Arbitration and Conciliation Act-1996.
27. The 3rd opposite party has no unilateral right to carry out any correction, deletion or modification in the credit information of any person unless such correction etc., has been certified as correct by the concerned credit institution. In the circumstances and in view of the provisions of CICRA enumerated above the 3rd opposite party is duty bound to reflect the credit information of the complainant in its credit information reports and has no right to chance/modify or rectify the same. Any act or deed by the 3rd opposite party contrary to the said position would render it liable for penal action by the RBI under the CICRA, and the Rules and the Regulations made thereunder.
28. The 3rd opposite party is not responsible for the accuracy, completeness and veracity of any information reported by the member credit institutions. Such responsibility lies with the reporting institution as per the CICRA and the Rules and the Regulations made thereunder. Hence the complaint is liable to be dismissed in limine with exemplary cost to the 3rd opposite party for having been inpleaded in vexatious proceedings.
29. In order to prove the case, on the side of the complainant, the proof Affidavit has filed as his evidence and Ex.A1 to Ex.A6 are marked. While so, on the side of the 1st opposite party, the proof Affidavit has been filed and Ex.B1 to Ex.B9 are marked on their side. But the 3rd opposite party proof Affidavit not filed on their side.
30. At this juncture, the point for consideration before this Forum is :-
- Whether there is any deficiency of service on the part of the opposite party as alleged in complaint?
- To what other reliefs, the complainant is entitled to?
31. Written arguments filed and oral arguments also heard on both sides.
32. Point.No.1:-`
As per the averments of the complaint, it is alleged that the 1st and 2nd opposite party have illegally debited due amount in the credit card account No.4477 4700 4615 2006 which was fully settled the amount on 26.05.2009 from saving Bank Account No.000101018046 and thereby caused monitory loss, mental agony and suffering and loss of reputation which clearly leads to the deficiency of service on the part of the 1st and 2nd opposite parties.
33. While so, the same has been vehemently denied by the opposite parties and in fact the complainant had neither repaid the personal loan available for Rs.50,000/- nor he had settled the same in the Lok Adalat and for the due amount towards the said personal loan only, the complainant had committed default in paying the outstanding due amount to the tune of Rs.48,602/- only, debited as per the general lien in between the Bank and complainant and therefore the opposite parties have acted upon according to the terms and conditions of the RBI Rules and hence no deficiency of service.
34. At the outset, this Forum has to decide as to whether the complainant has proved the above said allegations against the opposite parties 1 and 2 by means of proper and consistent evidence. First of all, on careful perusal of the evidence adduced by the complainant through the proof Affidavit, it is learnt that the complainant had availed a personal loan of Rs.1,50,000/- from the 2nd opposite party on 26.05.2006 repayable by way of 36 monthly installments (EMI) at the rate Rs.5166-67/- per month which commenced from 26.06.2006 up to 26.05.2009 and also the said personal loan was assigned credit card no. 4477 4700 4615 2006 as per the terms and conditions of the said Bank which is marked as Ex.A1. It is further stated that the said loan amount have been repaid with interest and the loan was closed on 26.05.2009 and cost Statement has been marked as Ex.A2 and even after repaid the loan amount Ex.A3 demand legal Notice Issued by the 2nd opposite party Advocate by claiming on overdue amount of Rs.47,588.26/- on 01.10.2010. Immediately the complainant sent a reply notice Ex.A4 and Ex.A5 to the opposite party 1 and 2 and in turn Ex.A6 was issued by the opposite party to the complainant, and for which Ex.A7 has been issued by the complainant to the opposite parties and thereafter there was an exchange of e-mail in between the complainant and opposite parties on 01.04.2011 to 15.09.2014 which is marked as Ex.A8(s).
35. It is further stated that the complainant the another letter (Ex.A9) has been issued to the opposite parties and for which Ex.A10, Ex.A11, Ex.A12 and Ex.A13 have been issued by the 1st and 2nd opposite parties to the complainant with some set of false facts and lastly the entire debit balance of Rs.46,464.95/- was suddenly debited from the complainant balance amount without assigning any reason for the same. It is further seen from the evidence that Ex.A15 settlement of the dues in respect of the credit card No.4477 4700 4615 2006 and in spite of repeated approach of the complainant with the 1st and 2nd opposite party did not respond and therefore the complainant had issued a legal notice Ex.A16 and the same was acknowledged by the 1st opposite party.
36. While so, on going through the evidence of the 1st opposite party, it is narrated that, in fact the complainant had availed two personal loans through credit card and of which, the complainant has paid one personal loan through credit card availed for sum of Rs.1,50,000/- repayable in 36 months (EMI), he had committed default in repaying another the personal loan availed a for sum of Rs. 50,000/- in which outstanding a sum of Rs. 48,602/- and that due amount only. The 1st and 2nd opposite party have taken subsequent steps for debiting the said due amount from the complainant, since as per the general lien which is specifically provided in the terms and conditions of the Bank. The Statement of Account viz.Ex.B1 to Ex.B9 are marked. It is further stated by the 1st opposite party that neither the Bank nor its counsel threatened the complainant at any point of time and they have sent only the legal notice to the complainant to recover the outstanding dues as per the Rules and regulations of the Banking but not otherwise.
37. Furthermore, it is deposed that it is not correct to say that the complainant repaid the personal loan availed for Rs.50,000/- have been settled in the Lok Adalat and therefore the 1st and 2nd opposite party and hence, even after several demands only they have debited the amount as per the Banking Rules U/S 171 for recovering the dues which is no way contrary to the Banking rules and terms and conditions in between the complainant and the opposite parties and hence It is very clear that the complainant has approached this Forum with unclean hands.
38. At this juncture, on careful perusal of the rival submissions putforth on the either side, it is crystal clear that it is an admitted fact that the complainant is having Saving Bank account as well as availed credit card facilities and also availed loan of Rs.50,000/- with the 1st and 2nd opposite parties Bank. Similarly there is no dispute that the personal loan availed for a sum of Rs.1,50,000/- and the same was repayable in 36 and closed that loan. If it is so, the dispute before this Forum to be decided is whether it is correct to say that as per the averments of the complaint that the another personal loan availed through credit card facilities to the tune of Rs. 50,000/- have been settled through Lok Adalat and for the said settled amount the opposite parties had demanded to pay a sum of Rs.47,588.00/- through legal notice (Ex.A3). In such circumstances, if actually settled by the complainant as above, the same has to be proved by the complainant beyond reasonable doubt by means of reliable and acceptable evidence, since the opposite party has vehemently denied the same.
39. At the outset, on going through the evidence of the complainant that there no document has been filed to show that the alleged loan have been settled before the Lok Adalat as narrated by the complainant. In fact it is needless to say that if really and actually settled that alleged loan before the Lok Adalat, certainly a definite order passed by the sitting judges before the Lok Adalat and the copy of the same has been furnished to the complainant. If it is so, there is no hindrance to the complainant to file the same before this Forum, in order to substantiate that the alleged loan have been already settled. But the complainant has failed to do so. Therefore, when the complainant initially disputed the second personal loan facilities through availed credit card but in the latest stage the complainant himself taken a plea that this same has been settled before the Lok Adalat and in fact the same has not been proved, it can be presumed that the complainant is very well suppressed real the facts, as rightly pointed out by the opposite parties 1and 2.
40. The next point to be taken into consideration that the 1st and 2nd opposite parties have not furnished the correct number of the second personal loan to the tune of Rs.50,000/- in their statement as well as their documents and notices. While so, on careful perusal of the statement Ex.B1to Ex.B9 filed by opposite parties the number assigned for the second loan has been furnished clearly in their statements and documents of the opposite parties. Therefore, in this aspects also the complainant has not given clear picture before this Forum. More so, it is seen from the pleadings in the complaint and defence taken by the 1st and 2nd opposite parties in their written version, it is crystal clear that the allegations made against the opposite parties are proof contradictory to the defence plea taken by the 1st and 2nd opposite parties. Therefore, it goes without saying that the complainant herein has not come forward to the Forum with clean hands.
41. As per the terms and condition of the personal loan, for receiving of the due by providing the credit card facilities there is a general lien to the opposite parties 1and 2 Bank to debit the amount found available in the Saving Bank Account U/S 171 Indian Contract Act. In such a way the 1st and 2nd opposite party have acted upon, since the complainant in spite of repeated reminders, the complainant had not come forward for repayment of outstanding in the personal loan availed to the tune Rs.50,000/- for the settlement before Lok Adalat there is no iota evidence produced on the side of the complainant. Hence there is no fault on the part of the opposite parties.
42. From the written argument and oral arguments submitted by the learned counsel for 3rd opposite party, it is learnt that there is no privity of contract between the complainant and the 3rd opposite party is only the acts as a repository of credit information and the creation of credit information companies like the 3rd opposite party and mandatory submission of credit information to such credit information companies by their member Banks and financial institutions being a requirement of statute (viz.the CICRA), no further consent of any person or entity is required in this regard. Therefore, the credit information appearing in the credit information report furnished by the 3rd opposite party is the aggregate of the information submitted to it by its members. Any rectification in the data base of credit information or change in the credit information can only be made in accordance with the provisions of the CICRA U/S. It is further seen from the arguments that under the terms of Section 31 of the CICRA no court or authority shall have or be entitled to exercise any jurisdiction, powers or authority except the Supreme Court or the High Court exercising jurisdiction under Articles 32,226 and 227 of the constitution and thereby it is marked.
43. From the foregoing among other facts and circumstances, it is further clear that as per the decision taken in earlier paragraphs that the complainant is a defaulter and thereby the 1st and 2nd opposite party have only acted according to the terms and conditions of the general lien U/S 171 of the Indian Contract Act. Hence, as per the information found available in the loan amount of the complainant only the same have been furnished to the complainant and in turn the same have been entered in the CIBIL. Therefore, there is no fault on the part of the 3rd opposite party and plea the taken by the 3rd opposite party holds good.
44. In the light of the above fact and circumstances, this Forum held that the complainant has failed to prove the allegations made against the 1st to 3rd opposite parties by means of acceptable and consistent evidence. Thus the point no.1 is answered accordingly.
Point No.2:-
45. In view of the conclusion arrived in the point No.1, the complainant is not at all entitled for any relief as prayed for in the complaint. Thus the point No.2 is answered accordingly.
In the Result, this complaint is Dismissed. No Cost.
This order was dictated by the president to the steno-typist, typed by him, corrected, signed and pronounced by us in open Forum, today on this day 28th of September.
MEMBER PRESIDENT
List of documents filed by the complainant:-
Ex.A1 | 27.05.06 | ICICI bank repayment reference with amortization schedule | Original |
Ex.A2 | 18.06.09 | Card statement for payment of last installment(36/36) | Original |
Ex.A3 | 23.10.10 | Demand legal notice sent by 2nd opposite party | Net copy |
Ex.A4 | 29.10.10 | Reply notice sent by complainant. | Xerox |
Ex.A5 | 29.01.2001 | 2nd reply notice sent by complainant | Xerox |
Ex.A6 | 09.02.2011 | 2nd opposite partys letter to complainant | Xerox |
Ex.A7 | 16.02.2011 | Complainants reply notice | Xerox |
Ex.A8(s) | 01.04.2011 To15.09.01 | e-mail communication between complainant and opposite parties 1and 2 | original |
Ex.A9 | 25.07.2011 | Complainants letter to 2nd opposite party | Xerox |
Ex.A10 | 30.06.2012 | 2nd opposite partys letter to complainant with postal cover | original |
Ex.A11 | 26.09.2012 | 2nd opposite parts letter to complainant with postal cover | original |
Ex.A12 | 08.10.2012 | 2nd opposite partys letter to complainant with postal cover | original |
Ex.A13 | 10.10.2012 | 2nd opposite partys letter to complainant with postal cover | original |
Ex.A14 | 06.09.2013 | 3rd opposite parts report about complainant | original |
Ex.A15 | 20.08.2014 | 2nd opposite partys letter to complainant | original |
Ex.A16 | 26.09.2014 | Complainants legal notice with 3 A/D cards. | original |
| | | |
List of document filed by the 1st opposite party:-
Ex.B1 | 18.05.2007 to 18.12.2007 | Statement of Accounts | Xerox |
Ex.B2 | 18.01.2008 to 18.12.2008 | Statement of Accounts | Xerox |
Ex.B3 | 18.01.2009 to 18.12.2009 | Statement of Accounts | Xerox |
Ex.B4 | 18.01.2010 to 18.12.2010 | Statement of Accounts | Xerox |
Ex.B5 | 18.01.2011 to 18.12.2011 | Statement of Accounts | Xerox |
Ex.B6 | 18.01.2012 to 18.12.2012 | Statement of Accounts | Xerox |
Ex.B7 | 18.12.2015 | Statement of Accounts | Xerox |
Ex.B8 | 18.12.2016 | Statement of Accounts | Xerox |
Ex.B9 | 13.10.2017 | Statement of Accounts | Xerox |
-Sd- -Sd-
MEMBER PRESIDENT
