Haryana

Karnal

CC/270/2021

Raj Kumar Sharma - Complainant(s)

Versus

SBI Card And Payment Service Private Limited - Opp.Party(s)

Surinder Sharma

13 Sep 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 270 of 2021

                                                        Date of instt.08.06.2021

                                                        Date of Decision:13.09.2023

 

Raj Kumar Sharma, Advocate, Chamber no.409, presently chamber no.236, Lawyers Chamber Building, District Courts, Karnal, resident of house no.625, Sector-2, Urban Estate, Kurukshetra.

 

                                               …….Complainant.

                                              Versus

 

1. SBI Cards and Payment Services Pvt. Ltd. (Regd. Office), unit 401, 402, 4^th floor, Aggarwal Millennium Tower, E-1,2,3, Netaji Subhash Place, New Delhi-110034.

 

2. Regional Office, State Bank of India, Shakti colony, Mall Road, Karnal through its Manager.                                                                                                   …..Opposite Parties.

       

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

 

Before   Sh. Jaswant Singh……President.

              Sh. Vineet Kaushik……Member 

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Surinder Sharma, counsel for the complainant.

                    Shri Rakesh Malik, counsel for the OP no.1.

                    OP no.2 deleted, vide order dated 01.12.2021.

 

                    (Dr. Rekha Chaudhary, Member)

ORDER:                     

          

                 The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that on 10.01.2020, complainant took loan of Rs.5,49,000/- through S.B.I. Card no.0004377487816376640 of credit card bearing account no.0004377487812360283 and the said loan amount was to be returned in 48 equal monthly installments of Rs.15488.61 till 2024. The monthly installment of the loan amount was deducted from the account no.220228670900 maintained with State Bank of India, Sector-5, Kurukshetra. The complainant never made any purchase through SBI card, but the OP fraudulently collected heavy fine and showed purchase through SBI. Rather, the complainant never made any purchase through SBI card. The complainant was under legal obligation to pay a monthly installment of Rs.15488/-, but the OP has deducted the amount illegally as per detailed given below:

Date	Monthly installment	Amount deducted by the OP illegally
07.02.2020	15488/-	26573/-
09.03.2020	15488/-	19828/-
07.04.2020	15488/-	16746/-
08.05.2020	15488/-	71222/-
08.06.2020	15488/-	16705/-
08.07.2020	15488/-	28540/-
07.08.2020	15488/-	16664/-
07.09.2020	15488/-	35908/-
12.10.2020	15488/-	14526/-
07.11.2020	15488/-	17940/-
14.12.2020	15488/-	14542/-
11.01.2021	15488/-	17169/-
09.03.2021	15488/-	17169/-
18.03.2021	15488/-	18214/-
Total	216832/-	335343/-

 

Complainant was liable to pay SBI credit card Rs.216832/- as monthly installment from February, 2020 to March, 2021, but OP illegally and fraudulently has deducted Rs.3,35,343/- from the account of the complainant. In March, 2021, the balance amount payable by the complainant was Rs.3,32,168/- after deducting Rs.216832/-paid in 14 installments of Rs.2,16,832/- (15488x14) i.e. Rs.5,49,000/- 216832=332168, but when the complainant contacted the officials of OP for closing the account after receipt balance amount at one and the complainant felt that OP is indulging in illegal activities and mal-practice and is extracting huge amount from the complainant illegally. The OP has deducted Rs.3,35,000/- instead of Rs.2,16,832/- which was to be deducted as per monthly installments. The complainant requested the OP to take the balance amount of Rs.3,32,168/- at one time and to close the account of the complainant. The officials of the OP told the complainant that if the complainant wants to pay the entire balance loan amount at one time, the complainant is liable to pay Rs.4,53,000/- and thereafter the excess amount received by the OP would be returned. The complainant trusted the version of the officials of the OPs and deposited Rs.4,53,000/- on 22.03.2021, vide cheque no.930143 out of his account no.20228670900 and the complainant got closed his account. In this way, OP has received a total sum of Rs.788473/-.

2.             It is further averred that if the complainant used to deposit the amount in 48 monthly installments of Rs.15488/- and in this way the complainant could only deposit Rs.743424/- with interest, whereas the OP has received a total sum of Rs.7,88,473/- including the 14 installments of Rs.15488/-. OPs have charged interest from March 2020 to September, 2020 of the lockdown period and also charged heavy fine, whereas during the said period, there was a complete lockdown was imposed in India due to covid-19 Panademic and the Hon’ble Supreme Court of India issued instructions for not charging any interest on monthly installments by the financial institutions and the loanee had to pay only the principal amount without interest of the lockdown period. It was also instructed by the Hon’ble Supreme Court of India that no fine can be charged by the financial institutions, but the OPs have deducted interest amount alongwith fine from the account of the complainant. Complainant closed his account on 22.03.2021 and paid excessive amount more than payable by the complainant, but OPs again raised the demand of Rs.16542/- on 18.05.2021. On enquiry, OPs told that the complainant that above amount has been charged on account of closing of account, whereas the OPs have already charged Rs.50000/- at the time of closing of account for closing of account. In this way OP has charged an excessive amount of Rs.2,50,000/- from the complainant and the OP is liable to return the abovesaid amount alongwith interest till realization of the amount.  OP visited the office of OP so many times and requested to refund the amount of Rs.2,50,000/- but OP did not pay any heed to the request of complainant. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

3.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability; jurisdiction as per card holder agreement there is an arbitration clause, which stipulated that in all events of dispute/different between the card holder and SBI cards, the same shall be resolved by appointment of a sole arbitrator and the OP shall have the powers to appoint the arbitrator and concealment of true and material facts. On merits, it is pleaded that complainant has taken the encash facility of Rs.5,49,000/- for 48 months at the rate of 15.75% pr annum with monthly EMI of Rs.15,488.61/- from OP. The complainant used the card for purchases basis which statements were billed every month and this also includes the encash EMIs. Hence payments were debited from his bank account as per the statements including the spends made on monthly basis. Further, as per statement dated 18.02.2021 his total card outstanding was Rs.4,78,669/- with total amount due of Rs.56062/- which was payable by March 10,2021. As per records complainant did not remitted any payment as per terms hence payment of Rs.17169/- and Rs.18214/- was debited from his bank account under SSP payment mode on March 09, 2021 and March 18, 2021. The post encash foreclosure and adjustment of total amount due reflecting in March 18, 2021 next statement dated April 18, 2021 was generated with total amount due of Rs.14608/- with payment due date May 08, 2021 and instructions were sent to his bank to debit the amount basis auto debit instructions, however, it was rejected by his bank due to insufficient funds hence further charges were accrued in subsequent statement as per schedule of charges. Further, complainant has never approached us or raised concern towards the payments towards auto debit. Complainant has directly approached us in March, 2021 wherein he has foreclosed the complete EMI plan and paid the total dues. Further, as exceptional service gesture OP has also reversed the foreclosure fee, charges plus taxes amounting to Rs.16,247/- and zeroized the card account of the complainant. It is further pleaded that complainant used the card for purchases basis which statements were billed every month and this also includes the Encash EMIs. Hence payments were debited from his bank account as per the statements including the spend made on monthly basis. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Initially, Shri Pardeep Gupta Advocate appeared on behalf of OP no.2. Learned counsel for OP no.2 moved an application for deleting the name of OP no.2 in the array of the parties. The said application was allowed, vide order dated 01.12.2021 of the Commission and the name of the OP no.2 was deleted.

5.             Parties then led their respective evidence.

6.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.C1, copy of application dated 24.05.2021 by complainant to OP regarding request for recovery/refund of the excess amount Ex.C2, copy of payment receipt dated 22.03.2021 Ex.C3, copy of email regarding No Dues remarks Ex.C4, copy of cheque no.930143 of SBI Ex.C5, copy of statement of account from 1^st January to 31.12.2020 Ex.C6, copy of statement of account from 01.01.2021 to 18.03.2021 Ex.C7 and closed the evidence on 12.01.2022 by suffering separate statement.

7.             On the other hand, learned counsel for the OP no.1 has tendered into evidence affidavit of Punit Babbar Ex.OP1/A, copy of monthly statement Ex.OP1, copy of purchase and payment annexure Ex.OP2, copy of application forms Ex.OP3 and Ex.OP4, copy of declaration form Ex.OP5, copy of PAN card Ex.OP6, copy of aadhar card Ex.OP7, copy of pre-approved data Ex.OP8 and closed the evidence on 10.11.2022 by suffering separate statement.

 8.            We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

9.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that on 10.01.2020, complainant took a loan of Rs.5,49,000/- through S.B.I. Card and the said loan amount was to be returned in 48 equal monthly installments of Rs.15488.61 till 2024. The complainant never made any purchase through SBI card, but the OP fraudulently collected heavy fine and showed purchase through SBI. Complainant was liable to pay SBI credit card Rs.216832/- as monthly installment from February, 2020 to March, 2021, but OP illegally and fraudulently has deducted Rs.3,35,343/- from the account of the complainant. In March, 2021, the balance amount payable by the complainant was Rs.3,32,168/- after deducting Rs.216832/-paid in 14 installments of Rs.2,16,832/- (15488x14) i.e. Rs.5,49,000/- 216832=332168. The complainant requested the OP to take the balance amount of Rs.3,32,168/- at one time and to close the account of the complainant. The officials of the OP told the complainant that if the complainant wants to pay the entire balance loan amount at one time, the complainant is liable to pay Rs.4,53,000/- and thereafter the excess amount received by the OP would be returned. The complainant trusted the version of the officials of the OPs and deposited Rs.4,53,000/- on 22.03.2021, vide cheque no.930143 and the complainant got closed his account. In this way, OP has received a total sum of Rs.788473/-. Complainant could only deposit Rs.743424/- with interest, whereas the OP has received a total sum of Rs.7,88,473/- including the 14 installments of Rs.15488/-. OPs have charged interest from March 2020 to September, 2020 of the lockdown period and also charged heavy fine, whereas during the said period, there was a complete lockdown was imposed in India due to covid-19 Panademic and the Hon’ble Supreme Court of India issued instructions for not charging any interest on monthly installments by the financial institutions and the loanee had to pay only the principal amount without interest of the lockdown period. Complainant closed his account on 22.03.2021 and paid excessive amount more than payable by the complainant, but OPs again raised the demand of Rs.16542/- on 18.05.2021. On enquiry, OPs told that the complainant that above amount has been charged on account of closing of account, whereas the OPs have already charged Rs.50000/- at the time of closing of account for closing of account. In this way OP has charged an excessive amount of Rs.2,50,000/- from the complainant and the OP is liable to return the abovesaid amount alongwith interest and lastly prayed for allowing the complaint.

10.           Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that there is an arbitration clause, which stipulated that in all events of dispute/different between the card holder and SBI cards, the same shall be resolved by appointment of a sole arbitrator. Complainant has taken the encash facility of Rs.5,49,000/- for 48 months at the rate of 15.75% per annum with monthly EMI of Rs.15,488.61/- from OP. As per statement dated 18.02.2021 his total card outstanding was Rs.4,78,669/-. Complainant did not remitted any payment as per terms hence payment of Rs.17169/- and Rs.18214/- was debited from his bank account under SSP payment mode on March 09, 2021 and March 18, 2021. Complainant has directly approached  the OPs in March, 2021 wherein he has foreclosed the complete EMI plan and paid the total dues. Further, as exceptional service gesture OP has also reversed the foreclosure fee, charges plus taxes amounting to Rs.16,247/- and zeroized the card account of the complainant. The complainant used the card for purchases basis which statements were billed every month and this also includes the Encash EMIs. Hence payments were debited from his bank account as per the statements including the spend made on monthly basis and lastly prayed for dismissal of the complaint.

 11.          We have duly considered the rival contentions of the parties.

12.           Firstly, we decide whether this Commission has jurisdiction to try and entertain the present complaint or not?

13.           The OPs have taken a plea there is an arbitration clause, which stipulated that in all events of dispute/different between the card holder and SBI cards, the same shall be resolved by appointment of a sole arbitrator.  In this regard, we are of the considered view that if for the sake of argument it may be considered that there exists an arbitration agreement between parties, in that case also this Commission has jurisdiction to try and entertain the present complaint as it is a settled proposition of law that complaint under Consumer Protection Act, being an additional remedy, despite there being an arbitration agreement, the proceedings before Consumer Commission have to go on. The remedy under Consumer Protection Act is a remedy provided to a consumer when there is a defect in any goods or services. In this regard, we place reliance on the case titled “M/s Emaar MGF Land Limited Versus Aftab Singh, review petition © Nos.2629-2630 of 2018 (SC), wherein Hon’ble Supreme Court of India held in para no.55 as under:-

“We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration.”  

 

14.           Keeping in view the ratio of law laid down in the abovesaid judgment, this Commission has jurisdiction to entertain and try the present complaint.

15.           The complainant has alleged that OP has charged excessive amount of Rs.2,50,000/-. To prove his version, he has placed on record documents Ex.C2 to Ex.C7, which clearly proves that bank has charged excessive amount of interest during the covid period in form of total amount of Rs.3,35,345/- instead of Rs.2,16,062/-. The fact relating to the deposition of Rs.3,35,345/- has not been denied by the OP, which shows that complainant had deposited the excessive amount in fourteen installments, instead of Rs.2,16,832/-. Furthermore, complainant has deposited Rs.4,53,000/- through cheque Ex.C5 dated 22.03.2021. Thus, the OP has received a total amount of Rs. 7,88,473/- (3,53,343/-+4,53,000/-=7,88,473/-). The complainant closed his account on 22.03.2021 and paid the excessive amount of Rs.2,50,000/-. It becomes clear that the complainant has taken the loan of Rs.5,49,000/- on 10.01.2020 and paid the total amount of Rs.7,88,473/-. Therefore, complainant has paid excessive amount of Rs.2,39,473/- (788473-549000=2,39,473). Hence, OP is liable to pay the excessive charged amount i.e. Rs.2,39,473/- alongwith interest, compensation for harassment, mental pain and agony and towards the litigation expenses.

16.           Thus, as a sequel to above said discussion, we partly allow the present complaint and direct the OP to pay Rs.2,39,473/-to the complainant alongwith interest @ 9% per annum from the date of filing of the complaint i.e. 08.06.2021 till its realization. We further direct the OP to pay Rs.10,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.5500/-for the litigation expense. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:13.09.2023 

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                     Member                        Member