STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

HDFC Bank Limited, SCO 76-77, Sector 8-C, Chandigarh and also at Senapati Bapat Marg, Lower Parol, Mumbai

……Appellant/OP

V e r s u s

Raj Kumar s/o Lal Chand, 2412, Sector 23C, Chandigarh

              ....Respondent/complainant

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:          Sh. Sandeep Suri, Adv. for the appellant

                   Sh. B.S. Bisht, Adv. for the respondent.

PER  JAGROOP  SINGH   MAHAL, MEMBER

                    This appeal is directed against the order dated 27.9.2010 rendered by the ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainant/respondent and directed the appellant/OP to issue the No Due Certificate; refund the excess amount of Rs.500/-, pay compensation of Rs.10,000/- for mental harassment and pain and Rs.5,000/- as costs of litigation to the complainant within 30 days of the receipt of certified copy of the order failing which to pay the amount of Rs.10,500/- alongwith interest @ 18% per annum since the date of filing of the complaint i.e. 27.3.2009, till realization, besides paying costs of Rs.5,000/-.

2.                      The facts, in brief, are that in the year 2004, the complainant availed the Credit Card facility from the OPs and was regular in paying the amount due. He, however, noticed that the OPs were raising unnecessary amount without mentioning any details of the usage of the card. He entered into one time settlement with the OPs with regard to the Credit Card whereby the OPs offered settlement on payment of Rs.24,000/- vide letter dated 30.11.2007, but no statement of outstanding dues was provided to him. Believing the OPs and to avoid harassment, he agreed for one time settlement. The OPs received the full and final payment of Rs.24,500/- against the amount of Rs. 24,000/- till 7.6.2008. He requested OPs to issue No Due Certificate but instead of issuing ‘No Due Certificate’, the OPs issued a vague letter dated 16.9.2008 showing balance of Rs.24,914.98 in his credit card account. He immediately approached the Bank and was told that the letter was issued in routine by mistake, therefore, he should ignore the letter. However, thereafter he was shocked to receive legal notice dated 30.12.2008 on behalf of OPs wherein an amount of 28,593.93 was shown due against him. He immediately approached the office of OPs  with the letter of one time settlement and the receipts and was assured that his account would be closed and ‘No Due Certificate’ would be issued in a month’s time.  Subsequently even an amount of Rs.5,352/- was debited from his salary account by the OPs without any authorization.  It was alleged that the aforesaid acts of the OPs amounted to deficiency in service and unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed.

3.                       The OPs in their written reply took some preliminary objections, regarding maintainability of the complaint. It was pleaded that the settlement offered in the year 2004 was null and void as the complainant was to pay Rs.24,000/- in four installments starting from 29.11.2007 and ending with 20.02.2008 but the payments were not made on the due dates.  It was averred that as the full amount was not paid by 20.02.2008 and the Complainant made the last payment only on 07.06.2008, the accounts settlement repayment schedule account was not met with and hence the same was null and void. It was stated that the amount was deposited by the Complainant of his own accord without any force or coercion and the Complainant cannot be allowed to take benefit of his own wrongs.  Remaining averments were denied, being wrong.  Pleading that there was no deficiency in service or unfair trade practice on their part, OPs prayed for dismissal of the complaint. 

4.                      Parties led evidence in support of their case.

5.                      After hearing the ld. Counsel for the parties and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated above.

6.                      Feeling aggrieved, the instant appeal has been filed by the appellant/OP.

7.                      We have heard the ld. Counsel for the parties and have gone through the evidence on record of the case carefully. 

8.                      Annexure C-1 is the letter of settlement dated 30.11.2007 vide which the dispute was settled for Rs.24,000/- and the installments were to be paid on 29.11.2007 (Rs.3,080/-), 20.12.2007 (Rs.6,920/-), 20.1.2008 (Rs.7,000/-) and 20.2.2008 (Rs.7,000/-).  One of the terms of this settlement is that if the payment schedule was not adhered to or any of the cheques not being honoured, the settlement offer would be rendered null and void and the complainant was required to pay the entire outstanding at that point of time.  The first installment of Rs.3,080/- was paid in time on 30.11.2007 itself vide Annexure C-2.  The next installment of Rs.6,920/- was to be paid by 20.12.2007 but only a sum of Rs.3,000/- was paid on 19.12.2007 and, therefore, the complainant did not adhere to the payment schedule.  The next installment of Rs.7,000/- (plus the remaining amount of the second installment) was to be paid on 20.1.2008 but again there was default because only Rs.300/- were paid on 16.1.2008.  Thereafter, Rs.1,700/- were paid on 4.2.2008, Rs.14,400/- were paid on 19.12.2008 and Rs.1,500/- were paid on 7.6.2008. The contention of the ld. Counsel for the complainant/respondent is that the entire amount of Rs.24,000/- was paid by 7.6.2008 as mentioned in the settlement letter (Annexure C-1) and, therefore, the order passed by the ld. District Forum should be maintained.  We do not find any merit in this argument. The settlement could sustain only if the amounts of installments were paid in full by their due dates.  However, in the present case, the installments of Rs.6,920/- and Rs.7,000/- due on 20.12.2007 and 20.1.2008 were not paid in full by the complainant and, therefore, the figure of Rs.24,000/- could no longer be adhered to by the OP.  The complainant also paid Rs.1,500/- on 7.6.2008 but this payment cannot be said to be in full and final settlement of the claim because till 7.6.2008 he had paid only a sum of Rs.23,980/- and not Rs.24,500/- as claimed by him. The appellant/OP then issued a letter dated 16.9.2008 (Annexure C-8) requiring the complainant to pay Rs.24,914.93 and thereafter the notice dated 30.12.2008 (Annexure C-9) to pay Rs.28,593.93. Annexure C-12 is the notice dated 7.3.2009 showing that a sum of Rs.30,747.49 was due till 7.3.2009.  The ld. District Forum while allowing the complaint observed that after the one time settlement, the OP never gave it in writing or communicated to the complainant declaring the settlement offer as null and void for not adhering to the schedule.  In our opinion, it was not necessary to be intimated because the settlement (Annexure C-1) itself records this fact and the same has already been signed by the complainant.   No other notice was required in this respect. 

9.                      It was also mentioned by the ld. District Forum that the OPs have willingly and without any objection, whatsoever, accepted all the payments in the credit card account during the said period which proves that the complainant had repaid and liquidated his entire outstanding amount to their complete satisfaction and nothing remained due.  This observation is also factually not maintainable.  As per the terms and conditions of the settlement, a particular amount was to be paid by a particular date and in order to liquidate the same, the complainant could pay any amount even prior to that. If the complainant paid only Rs.3,000/- on 19.12.2007, instead of Rs.6,920/-, the OP could not refuse to receive  the payment because the remaining amount of installment could be paid by the complainant on the next date.  Once the schedule was violated by the complainant, the entire amount had become due and the OP/appellant, therefore, could not refuse to accept either Rs.300/- on 16.1.2008 or Rs.1,700/- on 4.2.2008 or Rs.14,400/- on 19.2.2008. The making of these subsequent payments, therefore, did not amount to the payments made in full and final settlement of the claim.

10.                   Since the amount in excess of Rs.24,000/- was due from the complainant, the OP were fully justified in transferring the amount of Rs.5,352/- from his salary account to the credit card account.  It cannot be said to be an unfair trade practice on the part of the OP.

11.                   The above facts show that the default was committed by the complainant/respondent in adhering to the payment schedule of the one time settlement and the same, therefore, no longer remained valid. The complainant, having not paid the entire amount due from him, was himself a defaulter and there was no deficiency in service or unfair trade practice on the part of the OP/appellant.  The complaint filed by the complainant could not succeed. We, therefore, accept the appeal, set aside the impugned order dated 27.9.2010 and dismiss the complaint, leaving the parties to bear their own costs.

                    Copies of this order be sent to the parties free of charge.

Pronounced.

18^th August, 2011

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

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