Date of Filling:      08.12.2016

                                                                                                                       Date of Disposal:  16.10.2018

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.03/2017

TUESDAY, THE 16^th DAY OF OCTOBER 2018

M.Vedachalam,

Door No.431/1 and 432/1

17^th Cross Street,

Venkateswara Nagar,

Ramapuram,Chennai -600 089.                                               …Complainant.

//Vs//

The Regional Manager,

ICICI Bank Limited,

Plot No.24, Arihant Building,

South Phase Block No.1, 1^st Floor,

Ambattur Indistrial Estate,

Chennai -600 058.                                                            ……opposite party.

This complaint is coming on for final hearing before us 05.10.2018 in the presence of M/s.R.Mangai Mannan, Counsel for complainant and Thiru.E. Anandan, Counsel for the opposite party and upon hearing arguments having perused the documents and evidences this Forum delivered the following.

ORDER

PRONOUNCED BY THIRU.R.BASKAR KUMARAVEL, MEMBER.

This complaint is filed by the complainant U/S 12 of the Consumer Protection Act-1986 against the opposite party for seeking direction to repay a sum of Rs.19,957.83/- towards wrongly debited from the complainant account and a sum of Rs. 50,000/- towards compensation for mental agony and pain caused to the complainant by the deficiency of service on the part of the opposite party and with cost.

2. The brief averments of the complaint are as follows:-

The complainant has availed credit card account facility bearing Credit Card Account No.4477464503759007 and it was utilized by the complainant only for a short period ending in 2007 and in respect of the said account, the opposite party has claimed a sum of Rs. 19,957.83/- as due and liable as outstanding.  The complainant has repudiated the said claim and has sent several correspondences thereof.  That on 17.02.2016 the opposite party has addressed a letter intimating the complaint that the outstanding amount of Rs.19,957.83/- the bank marked a lien on the account of the complainant and has further directed to settle the outstanding amount failing which the bank will be compel to invoke the lien mark thereof.

3. The opposite party has further on 29.02.2016 has debited the account by enforcing the lien and has intimated to the complainant and immediately the complainant has sent a legal notice on 02.03.2016 (Originally dated 25.02.2016 which has occurred due to typographical error), wherein he has clearly brought to the notice of opposite party that he has not been operating the account from 2007 onwards and hence after 8 years the bank unilaterally originally marking the lien in the account of the complainant and subsequently debiting the complainant account on 29.02.2016 it totally illegal.  The opposite party Bank has acknowledged the said notice and has not chosen to send any reply or credit the amount.  Thus, the act of the opposite party Bank amounts to deficiency of service and unfair trade practice on the complainant.  Hence this complaint.

4. The contention of written version of the opposite party is briefly as follows:-

The opposite party denies all the allegations contained in the complaint save and except that are specifically here in after admitted.  While applying for the said credit card facility by him agreed to abide by the terms and conditions governing the usage of the above said credit card facility and assured to make payments regularly to the bank. That, despite sufficient time and opportunity the complainant had failed and neglected to clear his outstanding dues under the above said card which were payable therefore as per the terms and conditions governing usage of credit card facility has more particularly mentioned in the welcome booklet, the Bank has duly exercised its rights and powers.

5. That Bank also informed to the complainant that ICICI Bank has a Banker lien on his account as statutorily granted and available to any banker (including ICICI Bank) and the same right of lien has been exercised by bank while marking lien on the complainants ICICI Bank saving/current account to the extent of any outstanding amount due on the credit card.

6. That the opposite party has sent a letter dated 17.02.2016 calling upon the complainant to pay total outstanding amount of Rs.19,957.83/-. This proceeding is therefore wholly vexatious and speculative and is not maintainable.

That the opposite party has followed the terms and conditions governing the usage of credit card facility and there is no any deficiency of service caused by the Bank.  It is denied that any cause of action has arisen to file this complaint against the bank, the opposite party. The complainant is not entitled to any compensation from this opposite party.  The claim made by the complainant is not maintainable and liable to be dismisses with costs.

7. In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1 to Ex.A4 were marked.  While so, on the side of the opposite party proof Affidavit submitted for his evidence and Ex.B1 and Ex.B2 on their side.

8. At this juncture, the point for consideration before this Forum is:-

     1.whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

9.Written arguments filed and oral argument also adduced on both sides.

Point No.1:-

10. As per the averments of the complaint, though the complainant has paid the credit card outstanding amount of Rs.19.957.83/- with the opposite party Bank, the opposite party has invoked bankers lien debited the outstanding amount from the account of the complainant which leads to deficiency of service and unfair trade practice on the part of the opposite party.

11. On the other hand, through written version of the opposite party denied the allegations averred in the complaint and in fact the opposite party has acted upon as per the terms and conditions of the utility of credit card facility and as per Section 171 Indian Contract Act the opposite party Bank exercised its legal right of Baners lien over the saving account of the complainant which is fully applicable to the banks.

12. At the outset, this Forum has to look into the matter as to whether the complainant has come forward to prove the above said allegations beyond any reasonable doubt by means of consistent and cogent evidence which is the prime duty of the complainant.  In this regard, on careful perusal of the evidence of the complainant adduced by means of Proof Affidavit it is stated that the complainant has availed credit card facility bearing credit card Account No.4477464503759007 for Rs.19.957.83/- it is an admitted fact on the side of the complainant in the para No.2 of the complaint, to prove the above facts Ex.A1 has been filed on the side of the complainant. Further, the complainant in his complaint nowhere pleaded that he has paid the outstanding amount to the opposite party.  In spite of making clear unambiguous legally sustainable claim against the opposite party the complainant in his complaint in Para No.2 pleaded he has used the credit card facility only for a short period ending in 2007, it does not supports the complainants claim affirmatively that he has paid the entire outstanding amount to the opposite party as he is not defaulter.  Moreover complainant intimated the opposite party about non-operating the credit card from 2007 after the Bankers lien invoked and debited the outstanding amount by opposite party is an act of afterthought on the side of the complainant.  Therefore the complainant cannot take plea that the opposite party claim against the complainant is time barred. However the settled provision of law Under Section 171 of the Indian Contract Act do not stipulated any time limitation to invoke Banker s lien against debtor by the creditor to recover the debt amount from the debtor, because Bankers lien is the general rule of law it is universally applicable in every cases of contract of guarantee. So, this Forum came to a conclusion under the presumption of fact that the complainant is a defaulter.  To say the complainant has paid the outstanding amount to the opposite party no documentary evidence has been produced on the side of the complainant.  When the opposite party sent a letter dated 17.02.206 to repay the outstanding amount of credit card facility the complainant repudiated the claim of the opposite party and the same has been filed on the side of the complainant which is marked as Ex.A2.  Further, on 29.02.2016 the opposite party debited the outstanding amount from the saving account of the complainant by enforcing the bankers lien and the same was intimated to the complainant, immediately the complainant sent a legal notice stating that he was not operating the credit card account from 2007 onwards which is marked as Ex.A3 and Ex.A4 is the acknowledgement received from the opposite party by the complainant.

13. On the other hand, the opposite party is filed his Proof Affidavit along with documentary evidence to prove his counter claim against the complainant which are marked as Ex.B1 and Ex.B2 respectively that the complainant is a defaulter.  On careful perusal of the evidence of the opposite party adduced by means of Proof Affidavit it is crystal clearly proves through Ex.B1 that the complainant outstanding amount till 21.02.2016 Rs.19.957.83/- the same outstanding amount to be paid to the opposite party by the complainant has been duly intimated to the complainant by way of Ex.B2 to pay the unpaid outstanding dues by giving sufficient time to the complainant and also mentioned in the letter,  failing which the opposite party will be constrain to express rights of lien and set off in conformity with the terms and conditions of the credit card facility by way of  fund available in the complainant account will be adjusted to the extent of credit card outstanding amount as on date of debit.  So this intimation very clearly followed as per the terms and conditions of the credit card facility and also adopting the RBI regulation. Therefore considering the facts and circumstances of this case of the complainant and defense plea taken by the opposite party, scrupulously analyzing and interpreting the documentary evidences on both sides. The complainant has failed to prove his case with relevant documentary evidence to disprove that he is a defaulter.  On the other hand, the opposite party had been filed relevant documentary evidence and proved their counter claim as complainant is a defaulter.  Moreover, the opposite party adopted proper procedure of intimating to the complainant about the outstanding amount to be paid to the opposite party by sending a letter, with legally acceptable documentary evidence to prove on their side that of having legal right to invoke the Bankers lien and adjust the outstanding amount from the savings account of the complainant which does not shows any deficiency on the part of the opposite party.

14. Moreover as per the section 171 Indian Contract Act the Bank has got every right to invoke the Bankers lien.  It is settled provision of law.  The Hon’ble Supreme Court also pronounced a land mark judgment in the case of Syndicate Bank as follows:-

AIR 1992 SC 1066

V.Vijay Kumar.                    ….Appellant

                              //vs//

Syndicate Bank.             …Respondent

Lien is, in its primary sense, a right in one man to retain that which is in his possession belonging to another until certain demands of the person in possession are satisfied.  In this primary sense it is given by law and not by contract

The same Hon’ble Supreme Court also quoted from chalmers chitty on contract and paget s law of Banking. In Barndao V.Barnett, (1846) CL, and Fin.787, it was stated that Bankers most undoubtedly have a general lien on all securities deposited with them as bankers by a customer, unless there be an express contract or circumstances that show an implied contract, inconsistent with lien. In spite of above appellate court authorities the opposite party also filed an authority of National Commission as follows:-

I (1996) CPJ 250 (NC)

State Bank of India.                               ……Petitioner.

                                         //Vs//

M/s. Agarwal Karogency.                         ….Respondent

The above National Commission case is squarely applies to this case in hand.  Therefore the opposite party has not committed any deficiency of service or unfair trade practice against the complainant.

15. In the light of the above other facts and circumstances, this Forum without any hesitation concluded that the complainant has not come forward to prove the deficiency of service as alleged against the opposite party by means of acceptable and consistent evidence and also it is crystal clear that the complainant has not moved this Forum with clean hands.  Thus the point No.1 is answered accordingly.

16. Point No.2:-

As per the conclusion arrived in point No.1, the complainant is not entitled for any relief as prayed in the complaint.  Thus the point No.2 is answered accordingly.

In the Result, this Complaint is Dismissed.  No Costs.

Dictated by the member to the steno-typist, transcribed and computerized by him, corrected by the member and pronounced by us in the open Forum on this 16^th October 2018.

             MEMBER                                                                           PRESIDENT

List of document filed by the complainant:-

List of document filed by the opposite party:-

                 -Sd-                                                                                            -Sd- 

             MEMBER                                                                                PRESIDENT