DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.27 of 2017
Date of institution: 10.01.2017 Date of decision : 22.03.2018
Kulbir Singh son of Shri Labh Singh, resident of House No.488, Phase 3B1, SAS Nagar, Mohali, Punjab.
…….Complainant
Vs
1. Punjab National Bank, Credit Card Division, Plot No.1, 10th Floor, Atma Ram House, Tolstoy Marg, Connaught Palace, New Delhi 110001.
2. Punjab National Bank, Phase-1, SAS Nagar, Mohali, Punjab.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member
Mrs. Natasha Chopra, Member.
Present: Complainant in person.
Shri Gurdip Singh, counsel for the OPs.
Order by :- Shri G.K. Dhir, President.
Order
Complainant, a user of credit card (number of which is given in Para No.2 of the complaint), for the last more than one year, purchased mobile hand set for self by visiting the mobile shop named and styled as Anmol Watches in Sector-22, Chandigarh. Complainant contacted on toll free number of OPs and got intimation as if option of EMIs is available on his credit card and he should purchase the mobile hand set. It was after this assurance that complainant purchased the mobile hand set of make Samsung J7 for amount of Rs.15,990/-. An amount of Rs.13,990/- was paid by complainant through his credit card, but remaining amount was paid by him in cash and he got invoice dated 28.07.2016 for amount of Rs.15,990/-. Thereafter complainant again contacted OPs through toll free number on 01.08.2016 with request to provide EMI facility for amount of Rs.13,990/- referred above. At that time representative of OPs disclosed complainant that said EMI facility has been provided to him, but later on, no confirmation was sent to complainant by OPs for the reasons best known to them. On 05.08.2016, the complainant received his monthly statement of credit card and was surprised to see that OPs have not converted the amount of Rs.13,990/- into EMIs. Rather they charged the whole amount of Rs.13,990/- from complainant. Again complainant contacted on toll free numbers mentioned in complaint and then email correspondence was entered by complainant with OPs. Through e-mail dated 10.08.2016 received from OPs, the complainant was disclosed as if EMI has been created. Thereafter complainant discussed the matter with Mr. Azhar Ali, Supervisor of toll free number of OPs on telephone on 18.08.2016, who called upon complainant to pay the amount of Rs.6,300/-, but in fact the outstanding amount in account of complainant in his credit was of Rs.3,847/-. Complainant was given assurance at that time as if adjustment of the balance amount will be done in monthly installments. However, the said amount was not adjusted. Rather OPs charged the interest and penalty amount. Another e-mail dated 12.08.2016 was sent to OPs and thereafter again acknowledgement received as if EMI has been created. On repeated contact by complainant, he was assured on 08.12.2016 as if his problem will be resolved in terms that he will not have to pay any further amount on account of interest and penalty. OPs have not waived the penalty and interest amount and as such by pleading deficiency in service on the part of OPs, prayer made for directing the OPs to refund the excess received amount of Rs.8,400/- alleged to be received on account of interest and penalty. Compensation for mental harassment and agony of Rs.50,000/- and litigation expenses of Rs.11,000/- more claimed.
2. In short reply submitted by OP No.2, it is claimed that OP No.2 has no role to play because complainant is not its customer. Rather it is claimed that dealings alleged in the complaint never processed through the bank of OP No.2. Alleged credit card was never issued by OP No.2 and nor the transaction regarding creating of EMIs ever entered with complainant by OP No.2. So it is claimed that neither there is deficiency in service on part of OP No.2 and nor complainant is consumer of OP No.2. So this Forum alleged to be having no jurisdiction. It is claimed that credit card was directly issued by OP No.1 because the Credit Card Division is at New Delhi. Counsel for OP No.1 and 2 suffered statement on 24.05.2017 that reply already filed by OP No.2 may also be treated as reply on behalf of OP No.1.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-7 and thereafter closed evidence. Counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Sh. Rajesh Sharma alongwith documents Ex.OP-1 and Ex.OP-2 and thereafter closed evidence.
4. Misc. Application No.138 of 2017 even was filed by complainant for seeking direction to OPs to cancel the lien marked on his bank account. That Misc. Application also disposed of through this order itself. Arguments on that application as well as in the main complaint were heard. Written arguments not submitted by any of the parties.
Misc. Application No.138 of 2017
5. Application filed for issuing directions to OPs to cancel the lien marked on his bank account, number of which is mentioned in the application itself. It is claimed that OPs indulged in unfair trade practice and provided deficient service regarding which the complaint has been filed. However, now OPs have marked lien on his saving bank account, despite the fact that the said account is salary account used by complainant regularly for making payments of his debts. That lien alleged to be marked on 05.08.2017 without knowledge of complainant. It is on account of this lien that one cheque issued by complainant stood dishonoured, due to which dishonouring charges were recovered from him. Moreover, complainant apprehends that proceedings under Section 138 of Negotiable Instruments Act regarding dishonour of cheque will be initiated against him and his CIBIL score will be adversely affected. Therefore, prayer made for removal of said lien.
6. In reply to this application, it is claimed that OP No.2 has not marked any lien on his account because entry regarding credit of amount of Rs.44,000/- dated 05.08.2017 incorporated on the basis of NEFT transaction. It is claimed that complainant has not approached this Forum with clean hands because he has impleaded OP No.2 as a party unnecessarily.
7. Bank certainly has general lien as per Section 171 of Indian Contract Act and as such if lien marked on saving account of complainant by OP No.2, then it committed no illegality. It is for complainant to prove that any agreement exists contrary to the provisions of Section 171 of Indian Contract Act, in pursuance of which OP bank abandoned its right of exercising general lien. No such agreement alleged or claimed and as such if the general lien marked on the account of complainant, then the same is in accordance with the statutory legal provisions.
8. Even after going through Clause-13 (s) of terms and conditions, on the basis of which PNB credit card was issued, it is made out that the card holder agrees and confirms that the bank always will be at liberty to stop making advances or cancelling the credit facility at any time without prior notice and without assigning any reason, even though the credit limit/credit facility has not been fully availed of. This Clause 13(s) is contained in Ex.OP-1 and as such in view of the fact that this clause is in consonance with the provisions of Section 171 of Indian Contract Act, it has to be held that complainant himself agreed about the right of OP bank to exercise general lien by stopping making of advance or cancelling the credit facility. As such if the general lien exercised without notice to complainant by OP, then it committed no illegality or irregularity. So application for removal of general lien being not maintainable is hereby dismissed.
ON MERITS
9. After going through Ex.C-4 the email reply dated 10.08.2016, e-mail reply Ex.C-6 dated 12.08.2016, it is made out that OPs informed complainant as if EMI has been created. These replies sent by OPs to complainant in response to his e-mails Ex.C-3 and Ex.C-5. In view of this admission suffered by OPs, it is obvious that case of the complainant is fully believable that he was given facility of offer of EMI with respect to purchase of mobile. That facility was provided to the extent of Rs.13,990/-, but despite that full debit of the amount of Rs.13,990/- made from the account of complainant on 28.07.2016 in favour of Anoml Watches and Electronics is reflected in Ex.C-2. So it is obvious that though OPs acknowledged about affording of EMI facility to complainant to the extent of Rs.13,990/- with respect to purchase of mobile made by him from Anmol Watches & Electronics on 28.07.2016, but despite that said facility denied to him. That certainly is deficiency in service on part of OPs.
10. As complainant holds saving bank account with OP No.2 and as such it is but natural that complainant purchased the credit card from PNB Credit Division at New Delhi through OP No.2. Being so, submissions advanced by counsel for OPs has no force that OP No.2 has no role in issue of credit card. OP No.2 is also a branch of Punjab National Bank who issued credit card in favour of complainant and moreover account of the complainant is maintained with OP No.2 branch and as such OP No.2 cannot escape from liability of not affording due EMI facility.
11. Though it is admitted by complainant that he after paying 3 EMIs stopped payment of remaining EMIs, but despite that fault remains with OPs due to non providing of promised EMI facility. Minimum due amounts are mentioned in the credit card statements numbering 5 and as those amounts not paid and as such it is contended that fault lays with complainant. Fault attributable to complainant occurred due to non fulfilling of obligation of providing of EMI facility and as such OPs cannot escape from their liability.
12. After going through credit card statements of complainant, it is made out that he has been using credit card for making payments to persons, from whom he had been making purchases and name of those sellers specifically mentioned in these statements and as such certainly complainant had been getting information of the amounts standing in his account from time to time. So before issue of cheque, it was the duty of complainant to ensure that due amount is available in his account. Had that precaution been taken by complainant, then certainly dishonour of issued cheque by complainant, would not have taken place. So for dishonour of the cheque issued by complainant without verifying his balance, OPs cannot be blamed.
13. Though it is claimed by complainant that he has suffered loss of Rs.8,400/-, on account of payment of interest and penalty amount, but he is unable to disclose details of the same. Even the details of the same not workable from the card statements numbering 5 placed on record as Ex.C-2 alongwith 4 continuing pages. So complainant failed to establish that OPs illegally and arbitrarily charged Rs.8,400/- from him. However, due to non providing of EMI facility, complainant suffered mental harassment and agony and even is dragged in this litigation and as such he is entitled for compensation for deficiency in service as well as for mental harassment and agony and also to litigation expenses. Keeping in view the nature of transactions, the amounts must be reasonable and not exorbitant at all.
9. As a sequel of above discussion, application for removal of lien dismissed through this detailed order. Compensation for deficient services, on account of non providing of EMI facility of an amount of Rs.2,000/- allowed in favour of complainant and against OPs. Additional compensation for mental harassment and agony of Rs.3,000/- and litigation expenses of Rs.2,000/- more allowed in favour of complainant and against OPs, whose liability held as joint and several qua these amounts. Payment of this total amount of Rs.7,000/- be made within 30 days from the date of receipt of certified copy of order, failing which complainant will be entitled to interest @ 6% per annum on the above referred amount of Rs.7,000/- with effect from today till payment.
Since there is shortage of postal stamps in this Forum, therefore, the parties through their counsel are directed to receive free certified copy of the order by hand and it will be the responsibility of the learned counsel for the parties to inform them accordingly. This direction issued by following the principle laid down by Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh in Consumer Complaint No.956 of 2017 titled as Partap Rai Sharma Vs. Greater Mohali Area Development Authority (GMADA), decided on 25.01.2018. Certified copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.
Announced
March 22, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
