Complainant : Self
Opponent : Ex-parte
Per : MEMBER, Smt. Sujata Patankar
//JUDGMENT//
(1) The facts giving rise to the complaint briefly stated are as under:-
It is the case of the Complainant that the Complainant applied for a credit card from the Opponent and filled in the standard form for application for the same that was provided by the Opponent. The Complainant further states that nowhere in the application form was any clause regarding arbitration, nor did the Complainant ever agree to arbitration of any dispute by and between himself and the Opponent. It is further contended that the Opponent issued credit card on or about 2/9/2008 to the Complainant. The package contained the credit card issued by the Opponent to the Complainant bearing Credit Card No. 4166451400131360. It also contained a folder entitled “What a credit card should be”. In the folder was contained a booklet entitled “Terms and conditions”. The Complainant states that the said terms and conditions had not been provided to him at the time of application for the credit card and hence notice thereof was not contemporaneous with the contract as required by law. It is also further stated that nowhere in the said terms and conditions provided to the Complainant was there any mention of arbitration and/or that dispute between the Complainant and the Opponent would be referred to arbitration. The Complainant has also further stated by notice dtd.22/9/2011 from the Advocate, the Opponent demanded from the Complainant an amount of Rs.82,912.31 paise, as being due from the Complainant. The Complainant replied to the said letter under his letter dated 29th September 2011 denying the contents of the notice. Thereafter the Complainant received letter dated 4/10/2011 from the Advocate for the Opponent with subject that the matter is pending before the Sole Arbitrator and the Complainant remained absent on the fixed date so that the matter will be proceeded further ex-parte against the Complainant. In this matter the Opponent demanded the amount of Rs.82,912.31 paise with interest at the rate of 3.1% per month from 22 September 2011 till date of realization. The Complainant sent a cheque amounting to Rs.13,000/- to the Opponent and the said cheque was realized by the Opponent on 28/9/2011. The Complainant also further that by notice dtd. 12/10/2011, the Complainant called upon the Opponent to accept demand draft for an amount of Rs.72,500/- bearing No. 466619 dtd.11/10/2011. It is also further stated that the Complainant called upon the Opponent to forthwith close all services and facilities in respect of Credit Card No. 0004166451400131360, and discontinue the same immediately and to issue a No Dues Certificate to the Complainant. However on 19/10/2011, he received an unsigned letter from one Ms Jyoti Mestry purporting to be minutes of the meeting held on 15/10/2011. From such letter it appears that the Opponent is proceeding the so called arbitration proceedings and has failed and neglected to act upon the notice of the Complainant and close the account. The Complainant also further stated that the action of the Opponent in falsely stating that it is entitled to invoke an arbitration clause, although there is no such agreement between the parties, the further action of the Opponent in failing to give any notice thereof to the Complainant and again continuing with the arbitration proceedings without taking into account the 13,000/- paid by the Complainant and in continuing such proceedings despite having received the balance and finally the failure of the Opponent to comply with the demand of the Complainant to shut down the account, all amount to a deficiency of the services, which the Opponent is bound to render to the Complainant. Therefore according to the Complainant, the Complainant is entitled to an order directing the Opponent to remove the deficiencies in the service by withdrawing from arbitration proceedings and refraining from attempting to enforce award if any passed by Arbitral Tribunal and closing the account of the Complainant with the Opponent refunding to the Complainant any excess amount. The Complainant has also contended that pending disposal of this complaint to an order restraining the Opponent from proceeding with arbitration proceedings or execution of any award passed against the Complainant. It is also the contention of the Complainant that compensation for costs incurred by the Complainant for the harassment meted out to the Complainant. On all these grounds and as specifically stated in the complaint application, the Complainant has prayed as follows :-
a. That the Hon’ble Court be pleased to pass order directing the opponent to remove the deficiencies in the service by withdrawing from arbitration proceedings and refraining from attempting to enforce award if any passed by Arbitral Tribunal, and closing the account of the Complainant with the Opponent, refunding to the Complainant any excess amount.
b. That pending disposal of this complaint, pass an order restraining the Opponent from proceeding with arbitration proceedings or execution of any award passed against this Complainant.
c. That this Hon’ble Authority be pleased to direct that the Opponent pay an amount of Rs.10,000/- as compensation for the harassment meted out to the Complainant and for the costs of the present proceeding.
In support of the complaint application, the Complainant has
also filed separate affidavit in support of his contentions. In addition to that the Complainant has also filed separate interim application to direct the Opponent be restrained from continuing with arbitral proceedings against the Complainant and / or attempting to execute any award that may have been obtained against the Complainant. The Complainant has also filed separate affidavit in support of the interim application. As also the Complainant has also filed list of documents, comprising, standard form for application of credit card facility, copy of credit card bearing No. 0004166451400131360 issued by the Opponent, Booklet entitled “Terms and conditions”, copy of notice issued by the Opponent to the Complainant dated 22/9/2011, letter issued by Advocate for the Opponent to the Complainant dtd. 4/10/2011, copy of petition attached with letter, copy of cheque dtd.28/9/2011 issued by the Complainant to the Opponent, notice issued by Advocate for the Complainant to the Opponent dtd. 12/10/2011, demand draft issued by the Complainant to the Opponent dtd. 11/10/2011, receipt by post office, acknowledgment by Opponent Bank, minutes of the meeting held on 15/10/2011.
(2) This Forum issued notice of the complaint application alongwith interim application to file say R/on 19/12/2011 to the Opponent. However even after receipt of notice of appearance alongwith interim application issued by this Forum, the Opponent chose to remain absent. The acknowledgment of which is placed at Exh. 8 on the record. Therefore this Hon’ble Forum passed ex-parte order against the Opponent on 19/12/2011.
(3) As per oral request of the Complainant, the matter has been kept for judgment. We have gone through the entire proceedings, pleadings, documentary evidence, following points arouse for our consideration.
Points Answers
1. Whether the Opponent has rendered
deficiency in service to the Complainant? … No.
2. What order ? … As per final order.
REASONS :-
(4) The Complainant is a Credit Card Holder of the Opponent Bank. The Complainant has filed xerox copy of his Credit Card bearing No. 4166451400131360 on record. The Complainant avails the facility of credit card of the Opponent Bank. Neither the Opponent Bank appeared before this Forum nor filed its written statement against the contentions made by the Complainant in the complaint application on the record. Hence all the contentions made by the Complainant in he complaint application remained unchallenged, therefore in our opinion, it is undisputed fact that the Complainant is a “consumer”.
(5) As per the contention of the Complainant the Complainant is a credit card holder bearing Credit Card No. 4166451400131360 of the Opponent Bank. As per the contention of the Complainant the Opponent Bank sent notice to the Complainant through Advocate Ashish Agarwal, which is filed by the Complainant alongwith the complaint application at Exh.7/4. After perusal of this notice, it is contended
“ In response to your application, a Credit Card bearing No. 000 4166451400131360 was issued to you by our client. You have been using the said card for availing credit facility from our client and have thereby confirmed to be bound by certain specific terms and conditions.
As per the terms and conditions you are liable to make payments of the various charges, as are applicable for retention and utilization of the said Credit Card.
You have, however, failed / avoided to adhere to the terms of the payments and have defaulted in making the payments towards various charges, for the retention and user of the said card. Our client has repeatedly called upon you, to clear and liquidate the dues in respect of the said card, however, all such demands have proved futile.
Accordingly, as on date a sum of Rs.82,912.31/- is due and payable by you, to our client besides interest and other charges in respect of the said card facility.
You are therefore hereby called upon to pay the aforementioned sum of Rs.82,912.31/- to our client within a period of seven days of the receipt of this notice, failing which, our client shall be constrained to initiate appropriate legal proceedings against you, including arbitral proceedings for the recovery of its dues alongwith interest, cost and other charges at your risk, cost and consequences.
For further clarifications please contact to Mr. Amar Devdas……”
(6) As per contention of the complainant after receipt of this notice the Complainant replied to the Opponent by letter dtd.29/9/2011. However this letter is not filed by the Complainant on the record for the perusal of the Hon’ble Forum. After perusal of the documentary evidence produced on the record by the Complainant, it appears that the Opponent sent notice to the Complainant on 4/10/2011 through Adv. Ashish Agarwal. The relevant portion of the said letter is as follows :-
“That the above said matter is pending before the Sole Arbitrator against you. Inspite of service of notice upon you, you were remained absent on the fixed date. You are hereby informed that the Claimant Bank has filed their Statement of Claim alongwith documents in this matter today. You are hereby called upon to file your reply/written statement on 15/10/2011 either by you or through your Advocate. Failing which it will be presumed that, you have to say nothing in the matter and will be proceeded further ex-parte against you”.
(7) The Opponent Bank intimated to the Complainant, that the claim petition filed by the Bank against Complainant before the sole arbitrator for recovery of dues. After perusal of documentary evidence filed by the Complainant i.e. the Complainant issued the cheque of Rs.13,000/- in the name of Opponent Bank dtd. 25/9/2011. And sent legal notice by Adv. C.L. Falleiro on 12/10/2011 to the Opponent, in which, the Complainant intimated to the Opponent Bank that the Complainant issued demand draft bearing No. 466619 dtd. 11/10/2011 in favour of Opponent Bank by the Catholic Syrian Bank Ltd., amount of Rs.72,500/- in respect of liquidation of all outstanding payable by Complainant regarding Credit Card No. 4166451400131360. The Complainant filed minutes of the meeting held on 15/10/2011 at Exh.7/13. After perusal of this document, the Complainant remained absent inspite of service of claim petition by Speed Post. Neither the Complainant appeared nor the Complainant filed any reply to the claim petition, hence the matter is proceed ex-parte against Complainant on 15/10/2011 before sole arbitrator, Mumbai. After perusal of all the aforesaid documentary evidence on the record, it is evident that the Complainant is a credit card holder of the Opponent Bank. When the Complainant became defaulter, the Opponent Bank sent notice to the Complainant and intimated him that the amount of Rs.82,912.31/- is the due and payable by the Complainant. Thereafter the Opponent Bank intimated to the Complainant about the claim petition filed by Bank against Complainant before sole arbitrator. Accordingly, the Complainant had give the cheque of Rs.13,000/- and also D.D. of Rs.72,500/- in the name of Opponent Bank. It means that it is admitted fact by the Complainant that the Complainant is defaulter of the Opponent Bank in respect of credit card No. 4166451400131360 and therefore after sending notice by the Opponent Bank dtd. 22/9/2011 and dtd. 4/10/2011 the Complainant issued cheque of Rs.13,000/- and D.D. of Rs.72,500/- in the name of the Opponent Bank. After perusal of D.D. filed by the Complainant on the record it is crystal clear that after the notice sent by the Opponent Bank regarding claim petition before sole arbitrator, the Complainant fulfilled the same and from this act of the Complainant, it appears that the Complainant is defaulter of the Opponent Bank in respect of Credit Card No. 4166451400131360 and therefore the Complainant issued D.D. in the name of Opponent Bank. Moreover, there is no any explanation given by the Complainant in the entire complaint application as to why the Complainant has not appeared before the sole arbitrator when he had knowledge about the petition filed before sole arbitrator against him. Hence in our opinion, after perusal of all the documentary evidence there is no any deficiency in service rendered by the Opponent Bank to the Complainant. Hence we answered the point No. (1) in negative.
(8) In the complaint application, the Complainant prayed :
a. That the Hon’ble Court be pleased to pass order directing the opponent to remove the deficiencies in the service by withdrawing from arbitration proceedings and refraining from attempting to enforce award if any passed by Arbitral Tribunal, and closing the account of the Complainant with the Opponent, refunding to the Complainant any excess amount.
b. That pending disposal of this complaint, pass an order restraining the Opponent from proceeding with arbitration proceedings or execution of any award passed against this Complainant.
In this respect the Complainant himself has filed terms and conditions on the record, which is a vital document in this case. After perusal of the terms and conditions i.e.
31 DISCLOSURE :
31.1 The Cardholder hereby expressly authorizes the Bank for the purposes of credit verification or reference checks, protection of its interest etc., to disclose all / any information / documents relating to the Cardholder / the Cardholder Agreement and/or any other agreements or upon default committed by the Card holder, to the Reserve Bank Of India, Income Tax Authorities, tribunals, courts, judicial bodies, other banks, credit bureau, financial institutions or any other third party in conformity with the disclosure norms as applicable from time to time and as per the Credit Information Companies (regulation) Act, 2005.
In addition to that as mentioned in terms and conditions
“32 JURISDICTION FOR DISPUTE AND SETTLEMENT :
32.1 The Bank accepts no liability whatsoever, direct or
indirect, for non-compliance with the laws of any
country other than the laws of India. The mere fact that
the card can be accessed by a customer in a country
other than India shall not be interpreted to imply that the
laws of the said country governed these terms and conditions and / or the operations in the Card Account of the customer and are the use of the Card.
32.2 All disputes are subject to exclusive jurisdiction of Court of Mumbai irrespective of whether any other Court may have concurrent jurisdiction in the matter.
(9) As per terms and conditions, we opined that the Opponent Bank filed claim petition before sole arbitrator and the arbitrator issued a notice to the Complainant as a respondent in the petition. But the Complainant after receiving notice by arbitrator remained absent before sole arbitrator. It is necessary in the eyes of law that the Complainant has to face the proceedings against him before the sole arbitrator, failing which the Complainant filed this complaint application before this Hon’ble Forum and prayed for stop the proceedings against him whichever is pending before the sole Arbitrator at Mumbai. These prayers of the Complainant are not admissible in the eyes of law within the jurisdiction of this Forum. Therefore the prayers of the Complainant are not considerable and hence liable to be rejected.
(10) With the aforesaid discussion, we proceed to pass the following order :-
// ORDER //
(i) The complaint is dismissed.
(ii) No order as to costs.
(iii) Certified copies of this order be supplied to both the parties free of costs.
