DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 15th day of November, 2022
Present : Sri.Vinay Menon V., President
: Smt.Vidya A., Member
: Sri.Krishnankutty N.K., Member Date of Filing: 18/05/2016
CC/69/2016
A.C. Ananthakrishnan,
S/o.Chinnachami Mannadiar,
Managing Director,
Ambili Foods Pvt.Ltd.
Ambili Junction, Karippode,
Palakkad. - Complainant
(By Adv.R.Manikandan)
Vs
HDFC Bank Ltd.,
Palakkad Thrissur Bypass Road,
Chandranagar, Palakkad – 678 007 - Opposite party
(By Adv.K.A.Kailas)
O R D E R
By Sri. Vinay Menon V., President
- Complaint pleadings, placed briefly, claims that the complainant is a wealthy and reputed businessman having account with OD facility in the opposite party bank. When the complainant submitted a cheque for Rs. 40,000/- on 24/12/2015, while there was over Rs. 86,000/- in the account of the complainant maintained with the opposite party, the said cheque was returned dishonoured with the endorsement “Exceeds Arrangement”. Dishonouring caused delay in payment of salaries and the establishment of the complainant had to be closed for two days during festival season causing him loss of over 60,000/-. Aggrieved thereby, this complaint is filed.
- The opposite party filed version repudiating complaint allegations. Maintenance of the account, issuance of cheque and dishonor thereof were admitted. But imputed deficiency in service was denied. The complainant has suppressed material facts.
Facts leading to blocking were that the complainant was provided with a Multicurrency Forexplus card. As the account showed discrepancies regarding the available funds, opposite party suspected activities beyond the scope and terms and conditions of the card and in violation of FEMA, 1999 and Rules thereunder as well as the various circulars of RBI. The complainant was directed to explain the transactions made during 06/2015 to 12/2015 using the said card, but the complainant did not offer any satisfactory explanation, nor did he repay the excess amounts in the Forexplus account to the Bank. It was in these dubious circumstances that the account was blocked on 19/12/2015. It was with full knowledge of the blocking of account that the complainant had deposited the cheque.
3. Reading of the pleadings and counter pleadings give rise to the following issues for consideration.
1. Whether the complainant has acted in violation of law of the land?
2. Whether blocking of complainant’s account is in accordance with law?
3. Whether there is any deficiency/unfair trade practice on the part of the opposite party?
4. Whether the complainant is entitled to any of the reliefs sought for?
5. Any other Reliefs?
4. Evidence on the part of the complainant comprised of testimony of complainant and Exhibits A1 to A11. Evidence on the part of opposite comprised of partial testimony of DW1, testimony of DW2 and Exts. B1 to B11 and Ext. X1.
Issues No. 1 & 2
5. Factum of availing of Multicurrency Forexplus card is not disputed. The opposite party’s allegation is that the Forex facility availed is for usage in the countries where the complainant travels. Any amounts in excess of USD 2000/- is to be surrendered to the opposite party bank by the user within 180 days from arrival in India. Inspite of this being the usage conditions, the Forexplus account showed multiple transactions while the complainant was in India, raising suspicion of Foreign Exchange trade for generating profit.
6. Complainant was examined as PW1. He had not made any admissions to his detriment. Hence his testimonials will not be of any assistance to the opposite party.
7. The apt evidence to prove the allegations raised by the opposite party bank would be
(1) the statement of account pertaining to the Forexplus card; and
(2) Circulars issued by the RBI to show the illegality in the alleged transactions.
Only a conjoint reading of the statement of accounts and the Circulars issued by the RBI would prove illegality, if any, on the part of the complainant. None of the above were produced and marked in evidence by the opposite party during the course of case till the date of hearing.
After taking up the matter for orders, 5 days before passing of the order on 15.11.2022, the opposite party produced a number of circulars purportedly relevant in the facts and circumstances of the case along with their argument notes. These documents, produced belatedly, alone would not be sufficient to prove the case of the opposite party in the absence of the statements of account pertaining to the account of the complainant to prove that the complainant had engaged in illegal transactions and amassed wealth violating law of the land.
Documents produced by the opposite party consist of entire contents of Multicurrency Forexcard kit and marked as Exhibits B1 to B10. Admittedly Ext. B2 contains the Terms and Conditions for usage of the Forexcard. But the said documents would not in any manner prove that the complainant had acted in violation of the said T&C.
Even DW1, branch manager of O.P., has admitted in his testimony that the said documents do not pertain to the card of the complainant. Testimony of DW1, as regards documentary evidence adduced by opposite party, is as below:
(Page 3, lines 9 – 12) “Ext.B7 brochure, Ext.B8, B1, B2, B3, B4, B5, B6, B9, B10 tcJIÄ H¶pw XÀ¡s¸« card s\ kw_Ôn¨XÃ. (witness adds) AXpt]msebpÅ thsd ImÀUns\ kw_Ôn¨ tcJIÄ BWv.”
DW1 did not have any knowledge of the transaction of the complainant insofar as it related to the forex transaction. His cross was deferred due to lack of documents. Cross examination of DW1 was on 16/01/2019.
8. Thereafter the Product head, Prepaid cards, HDFC bank filed proof affidavit. Said official was examined as DW2. Perusal of the testimony of DW2 only shows a pathetic effort on the part of the opposite party to save face. Even then, till the examination of DW2 on 07/07/2022, opposite parties had not produced the documents pertaining to the transaction of the complainant, absence of which led to stoppage of examination of DW1.
Relevant portions of the testimonials showing the ignorance of DW2 are as herein below:
- Page 4, lines 5 to 22.
“The complainant has violated the Master Direction on Liberalised Remittance Scheme of RBI.
I am aware only of a legal notice issued from the Bank and have not produced any other document to prove that there is violation of any rules.
I don’t have exact knowledge as to when this legal notice was issued. I can’t pin point which rule the complainant has violated under FEMA.
We have not initiated any actions to inform RBI with regard to the complainant’s transgressions as all actions need not be taken to RBI.
The amount of USD 483555/- was accumulated into the forex card of the complainant and not in this account.”
- Continued in page 5, lines 1 to 3
“Presently the Bank is holding this amount and not intimated to RBI, Govt or any other Govt. Agencies.”
9. A cumulative reading of the depositions of DW1, DW2 and the conduct of the opposite party in not adducing any relevant and material documentary evidence shows that blocking of complainant’s accounts is without any legal backing. The opposite party has also failed to prove by cogent evidence that conduct of the complainant was in violation of the Terms and Conditions of the issuance of Multicurrency Forexplus card and the laws of land.
Issue Nos. 3
10. Apropos the discussions above we hold that there is gross deficiency in service as well as unfair trade practice on the part of opposite party.
Issue nos. 4 & 5.
11. Over and above compensation, the complainant has raised the pleading that he had to close shop for two days leading to a loss of Rs. 60,000/-. But the complainant has not adduced any relevant documents or evidence to prove the losses allegedly suffered by him. Hence the 1st relief sought for cannot be granted. Further the complainant also has no case that the USD held in the Bank (as deposed by the DW2) belongs to him.
But the complainant is entitled to the compensation sought for and other reliefs incidental, which we feel must be charged on the opposite party bank for their high handed actions. Complainant, therefore, is entitled to compensation for deficiency in service on the part of the opposite party as well as cost of these proceedings.
12. In view of the discussion above we hold as follows:
1. The opposite party is ordered to pay an amount of Rs. 25,000/-(Rupees Twenty five thousand only) to the complainant as compensation for mental agony and suffering as claimed by the complainant.
2. The opposite party is ordered to pay an amount of Rs. 1,00,000/-(Rupees One lakh only) to the complainant as compensation for deficiency in service and unfair trade practice.
3. An amount of Rs. 50,000/-(Rupees Fifty thousand only) is directed to be paid as cost of these proceedings.
The opposite party shall comply with the directions in this order within 45 days of receipt of this order, failing which the opposite party shall pay to the complainant Rs. 500/- per month or part thereof until the date of payment in full and final settlement of this order.
Pronounced in open court on this the 15th day of November, 2022. Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Original cheque bearing No.000164 dt.24/12/2015
Ext.A2 - Rejection letter dated 23/12/2015.
Ext.A3 – Statement summary from 22/12/15 to 31/12/2015.
Ext.A4(series) – Legal notice dated 23/3/2016 alongwith postal receipt & acknowledgement
Ext.A5 – Copy of certificate of incorporation & Articles of Association of Ambili Foods Pvt.Ltd.
Ext.A6 – Copy of certificate of registration with Commercial Taxes Department
Ext.A7 – Copy of license under department of Factories & Boilers
Ext.A8 – Copy of registration certificate issued by department of legal metrology
Ext.A9 – Copy of license issued by FSSAI
Ext.A10 – Copy of pan card
Ext.A11 – Copy of certificate of Importer Exporter Code
Exhibits marked on the side of the opposite party:
Ext.B1 – Original usage guide for HDFC bank multi currency Forexplus card
Ext.B2 – Original terms and conditions for HDFC bank multi currency Forexplus card users
Ext.B3 – Original of instructions and guidelines related to usage of multi currency Forexplus
Card.
Ext.B4 – Original of getting started guide
Ext.B5 – Original proforma application form for multi currency Forexplus card
Ext.B6 – Original of brochure for multi currency Forexplus card
Ext.B7 - Original of brochure for multi currency Forexplus card
Ext.B8 – Original Forexplus crd with welcome letter
Ext.B9 – Original of prepaid card PIN
Ext.B10 – Original of envelope.
Ext.B11 – Printout of email communication dated 29/12/2015
Court Exhibit: Nil
Third party documents:
X1 series – (1) Copy of application form for multi currency platinum Forexplus card (MCY)
(2) Copy of front page of passport bearing no.K2516726
(3) Copy of backsheet of passport bearing no.K2516726
(4) Photocopy of Forxplus multi currency visa card
Witness examined on the side of the complainant:
PW1 – Ananthakrishnan A.C. (Complainant)
Witness examined on the side of the opposite party:
DW1 – Ganesh (Branch Manager of O.P.)
DW2 – Ragunandan S.Godbole (Product Head, Prepaid Cards Division)
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
