STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                Date of Institution: 07.04.2017

                                                          Date of final hearing: 23.11.2023

                                                     Date of pronouncement: 19.01.2024

First Appeal No.415 of 2017

IN THE MATTER OF:-

1. HDFC Bank Ltd., Plot No. 1, Rajesh Nagar Colony, Ambala Road, Yamuna Nagar, Jagadhari, Haryana-135003 through its Branch Manager.
2. HDFC Bank, Cards Division, 8, Lattice Bridge Road, Thiruvanmiyur, Chennai 600041 through its legal manager.
3.  
4.  

Santok Singh S/o Sh. Sardara Singh, R/o Village Kotar Khana, District Yamuna Nagar.…..Respondent

CORAM:             Sh. Naresh Katyal, Judicial Member

Argued by:-       Sh. Jatin Sehrawat, proxy counsel for Sh. Mohit Garg, counsel for appellants.

None for respondent.

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:-

          Challenge in this appeal No.415 of 2017 of appellants/OPs/bank has been invited to the legality of order dated 27.02.2017 passed by District Consumer Disputes Redressal Forum-Yamuna Nagar (In short “District Consumer Commission”) in complaint case No.493 of 2011, vide which complainant’s complaint has been allowed.

2.      Factual matrix: Complainant/respondent opened saving account No. 08721000005822 with OPs-Bank/appellants, who represented him that they are going to issue ‘Credit Card’ to him up to limit of Rs.20,000/- as he is smoothly running his saving account with them. Complainant started using card. After some time, he found huge balance shown to the extent of Rs.40,421.29. When he approached officials of OP No.1, then they disclosed that: if credit card is used below Rs.300/- and more than Rs.900/- in single time, then surcharge would be applied and said amount (Rs.40,421.29) has taken place due to this. When, complainant refused to make said illegal payment, then officials of OP No.1 asked him that: if Rs.15,500/- is paid, they will settle his account. Accordingly, official of OP No.1 issued settlement letter, in which, Rs.15,500/- has been shown, to be paid in 7 monthly instalments. Complainant deposited Rs.9,145/- on 28.01.2011 i.e. four instalments from October-2010 to January-2011; also deposited Rs.2115/- on 08.02.2011. As per plea, two instalments for March & April-2011 of Rs.2,120/- each, were due against him, towards OP No.1.  In his saving account, Rs.24,094/- as on 15.01.2011 was lying  and he had issued cheque No. 039247 to one Narender to tune of Rs.23,320/- on 14.01.2011, which had been dishonoured by OP No.1-Bank on 21.01.2011 with the reason “Fund Insufficient” whereas, in said account, sufficient balance was in existence. Due to dishonour of cheque, reputation of complainant has been jeopardized in general public and said person is threatening him to implicate in criminal proceedings. Complainant received letter from OP No.2 in March-2011, which had been issued on 16.01.2011, by virtue of which, entire balance of saving account had been transferred i.e. Rs.24,094/- in Credit Card, whereas in that account; settlement had already been taken place and complainant had already deposited amount in said account according to settlement  and only two instalments of March-2011 and April-2011 were due. By pleading deficiency in service and unfair trade practice on part of OPs-Bank; this complaint has been filed by further asserting that complainant is suffering due to act and conduct of OPs-Bank.

3.      OPs/appellants/bank raised contest. In defence so entered; it is pleaded that: complaint is not maintainable; complainant has no locus standi; he is estopped from filing complaint due to his own act and conduct; he has concealed true and material facts from Forum; there is no relationship of consumer and supplier between parties. It is pleaded that complainant himself had approached OPs-Bank and requested to issue credit card. Prior to issuance of credit card; all terms and conditions were narrated to him and after satisfying for himself; he purchased credit card. The moment, card member signs on reverse side of card or start using it he/she is deemed to have been accepted the terms and conditions set out in card member agreement. Timely payment of card’s due is essential and it is condition of card agreement that all payments towards minimum amount due must reach HDFC bank, on or before, the payment due date, indicated in monthly statement of account. If minimum amount is not made within the payment due date; late payment fee and finance charged will be levied on card account, as specified in tariff sheet and it is subject to change, as per discretion of HDFC Bank. Non-payment of card dues shall also render the card member liable to risk of instance withdrawal of the card membership without prior notice. This is applicable to all customer of appellant-bank including complainant.  Complainant remained defaulter in making payment of amount due and requested OPs-Bank to waive off amount and accordingly, OPs Bank at his request, arrived at compromise with him and asked him to pay Rs.15,500/- in 7  monthly installments against outstanding amount of Rs.38,511.13 which was duly agreed by complainant. Settlement letter No.Sol. No. S 85225 dated 20.10.2010 was issued to him, in which, terms and conditions had been mentioned and same had also been read over to him (Complainant) and it was told to him that he is bound to make payment on due date, failing which, this settlement offer would be rendered null and void and he would be required to pay entire outstanding amount. Complainant, instead of complying with terms and conditions of settlement letter, has not deposited settled monthly installments and make payment on 28.01.2011 of Rs.9,145/- and thereafter on 08.02.2011 of Rs.2115/- instead of making payment from 20.10.2010. Therefore, settlement became void and he is liable to pay entire outstanding amount till realization. As per Section 171 of Contract Act; bank/appellant has every right to lien and right of set off, which has been legally done by it. There is no negligence and deficiency in service on the part of OPs-bank. Complainant cannot take benefit of his own wrong.

4.      Parties to this lis led their respective evidence; oral as well documentary.

5.      On critically analyzing the same, learned District Consumer Commission-Yamuna Nagar vide order dated 27.02.2017 has allowed complaint; directed OPs-appellants/bank to refund Rs.19,854/- to complainant within 30 days after preparation of copy of order failing which amount shall fetch interest @ 7% p.a. from the date of filing of complaint, till payment.

6.      Feeling aggrieved; OPs/bank has filed this appeal.

7.      Learned counsel for appellants has been heard at length. Record of complaint has also been perused.

8.      Learned counsel for the appellants/bank has urged that settlement has been arrived at between complainant and appellant-bank, vide which: Rs.15,500/- was agreed to be paid by complainant to bank, in seven monthly installments starting from 20.10.2010 to 07.04.2011. First installment date of payment was of 20.10.2010 and Rs.2800/- was to be paid in cash. Second installment date of payment was 07.11.2010 and Rs.2115/- was to be paid in cash. Third installment date of payment was 07.12.2010 and Rs.2115/- was to be paid in cash. Fourth installment date of payment was 07.01.2011 and Rs.2115/- was to be paid in cash. Fifth installment date of payment was 07.02.2011 and Rs.2115/- was to be paid in cash. Sixth installment date of payment was 07.03.2011 and Rs.2120/- was to be paid in cash and seventh and final installment date of payment was 07.04.2011 and Rs.2120/- was to be paid in cash. It is urged that complainant has not adhered to pay the amount, as per schedule, till 28.01.2011. Bank sent him letter dated 16.01.2011 and outstanding liability against complainant on that day to pay was Rs.40,421.29. It is urged that agreement stipulates that: in event of repayment schedule not being adhered to, and any of the cheque not been honored, the  settlement offer would be rendered as null and void and complainant was required to pay outstanding at that point of time. It is urged that complainant cannot wriggle out from terms and conditions of amicable settlement. On these submissions; learned counsel has urged for acceptance of appeal.

9.      There is no representation on behalf of complainant/respondent in this appeal. Sh. S.K. Galhotra, Advocate appeared on 21.12.2017. From 18.04.2022 till 23.11.2023 (when arguments were heard in this appeal from appellants), for 10 consecutive dates, nobody appeared on behalf of complainant/respondent.

10.    Admittedly, complainant/respondent has saving bank account with appellants-bank and he availed credit card facility from appellants-bank. As per complainant’s case; on account of using of credit card there was huge balance shown to the extent of Rs.40,421.29. When he approached appellants-bank it was disclosed to him that if credit card is used below Rs.300/- and more than Rs.900/- in a single time, then surcharge would be levied and amount (Rs.40,421.29) is on account of that. Integral part of dispute in this complaint is on this front. Admittedly, complainant approached appellants-bank to waive off this amount and appellants-bank arrived at amicable settlement with complainant as per which; against outstanding amount of Rs.38,511.13 complainant was asked to pay Rs.15,550/- in seven installments. Payment by complainant of installment amount was to begin from 20.10.2010. It is urged that as per terms and conditions of settlement; in event of default in repayment schedule by complainant in payment of monthly installment; the settlement would become null and void which would make complainant to pay entire due amount. Complainant deposited Rs.9,145/- on 28.01.2011 which was the consolidated amount of four installments due from October-2010 to January-2011. He also deposited Rs.2115/- on 08.02.2011 (amount meant for fifth installment). Meaning thereby, two installments were due against him, in favour of bank appellants which were of the months of March & April-2011 of the amount of Rs.2120/- each (total amounting to Rs.4240/-).

11.    Contention on behalf of appellants-bank is that once complainant is defaulted in making payment of four monthly installment’s amount, in furtherance to settled amount of Rs.15,550/-, then entire amount due against him would surface again thereby making complainant liable to pay the same. It is urged that even if, appellants bank has accepted Rs.9145/- on 28.01.2011 (collective amount of four monthly installments starting from October-2010 to January-2011), still it will not preclude and foreclose the right of appellants-bank to enforce recovery of entire outstanding amount from complainant in view of his proved default in not strictly adhering to repayment schedule of installment amount. Complainant has made payment of fifth installment amount of Rs.2115/- on 08.02.2011; which was due on 07.02.2011. Meaning thereby, there was default on the part of complainant even with regard to payment of fifth installment amount also. This contention has no credence. Be that, as it may, appellants bank has accepted amount of Rs.11,260/- (Rs.9145/- accepted on 28.01.2011 and Rs.2115/- accepted on 08.02.2011) yet it would legally imply that appellant bank too has expressly deviated from agreed terms and conditions of its agreed settlement with complainant. Appellants bank should not have accepted the amount, if there was continuous fault on the part of complainant, in not strictly adhering to repayment schedule. After accepting the amount; the bank-appellant cannot be allowed to invoke doctrine of election and to adopt practice of approbating and reprobating. Appellants-Bank has withdrawn Rs.24,094/- from the account of complainant on 31.01.2011. Hence after 08.02.2011; existing liability against complainant and in favour of appellant-bank was of Rs.4,240/- i.e. amount meant for last two monthly installments of March & April-2011. Rs.19,894/- has been withdrawn in excess by appellant-bank. Rightly, this amount has been refunded to complainant by learned District Consumer Commission through its order dated 27.02.2017 (impugned herein). This Commission does not find any justifiable ground to upset the well reasoned finding recorded by learned District Consumer Commission-Yamuna Nagar through its order dated 27.02.2017 and to interfere in same. Resultantly, impugned order dated 27.02.2017 is maintained, affirmed and upheld. Present appeal, being devoid of any substance is dismissed on merits as well.

13.    A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

14.    File be consigned to record room.

Date of pronouncement: 19^th January, 2024.

                                                                             Naresh Katyal                      

                                                                              Judicial Member

                                                                           Addl. Bench-II