CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016.

Case No. 199/2011

Sh. Surinder Pal Singh

S/o Late Sh. Bhupender Singh Bhatia

R/o B-8/36, Sector-3, Rohini,

New Delhi-110085                                           ……Complainant  

                                      Versus

SBI Cards & Payment Services Pvt. Ltd.

SBI, Local Head Office, 11, Parliament Street

New Delhi-110001

Also at:

Plot No.90A, Sector-18, Udyog Vihar,

Gurgaon-122015 (Haryana)                                        ……Opposite Party

                                                Date of Institution:   10.06.2011                        Date of Order         :   06.04.2017

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

O R D E R

Sh. N.K. Goel, President

The complaint pertains to the grievance of the complainant with regard to his alleged harassment having taken place at the hands of the OP by sending unnecessary summons, notices and getting NBW issued from the court inspite of the fact that the complainant had got the outstanding amount cleared vide receipt bearing No.2279523 and 2555801 dated 25.09.04 and 18.10.04 respectively following which the OP had issued a ‘No Dues Certificate’ to the complainant on 13.01.05.  The intimation was sent at his old office address at Lodhi Road inspite of the fact that he had intimated his new office address of Noida to the OP which caused defamation to him at his work place thereby affecting his image in the society. The details of the notices received by the complainant from the OP have been given in para No.7 of the complaint. It is stated that the matter was taken up with the Banking Ombudsman where the OP offered a sum of Rs.50,000/- vide letter dated 12.04.10 to the Complainant as compensation but the Complainant declined to accept the said offer through email dated 14.04.10 as the amount was meager and disproportionate to the agony undergone by him. Hence, pleading gross negligence on the part of OP, the Complainant has filed the present complaint before this forum for seeking the following reliefs:-

(a)      Direct the OP to pay a sum of Rs.5 lacs to the Complainant as compensation on account of unnecessary harassment, mental agony, misery, torture and distress caused by the OP to the Complainant,

(b)     Direct the OP to pay the costs of the proceedings/litigation expenses to the tune of Rs.25,000/- to the Complainant.

In the written statement OP has inter-alia stated that the complainant is not a “consumer” as defined in Section 2 (1) (d) of the Consumer Protection Act and that the complaint is also barred by the principles of res-judicata as the complainant had already filed a complaint before the Banking Ombudsman and hence the present complaint cannot be filed on the same grounds.  Para No.5 & 6 of the reply are material and the same are reproduced as hereunder:-

“5.     That, it is respectfully submitted here that, the complainant is bound by the jurisdiction set forth in the agreement executed between himself and SBI Cards and payment Services (P) Ltd. This a matter of record that, as per card holder agreement there is an arbitration clause, which stipulates that in all events of dispute/difference between the card  holder and the SBI Cards, the same shall be resolved by appointment of a sole arbitrator and the O.P. shall have the powers to appoint the arbitrator. As such this learned forum is devoid of jurisdiction to entertain the complaint as the complainant is bound by the terms and conditions which were supplied to him along with a book let through a welcome kit before the complainant had made any transaction  through the credit card.

6.      That it is specifically denied that the Respondent Company had indulged in any unfair trade practices and doing any kind of threatening calls/recovery messages to the complainant as alleged or otherwise. It is also mentioned here that the company sent the statement of account to the complainant at the address which was provided by the complainant himself at the time of taking the Credit card facility from the respondent company.”

Complainant has filed a rejoinder.

Complainant has filed his own affidavit in evidence and has relied on copies of the documents Ex. CW-1/A to Ex. CW-1/J.  OP has filed the affidavit of Sh. Punit Babbar, Constituted Attorney in evidence who has relied on the document Ex. RW1/1.

Written arguments have been filed on behalf of the parties. 

We have heard the oral arguments of the Counsel for Complainant.  None has appeared to advance oral arguments on behalf of the OP. We have gone through the file very carefully.

Without going into the details of the matter or examining the documents in detail, we are of the considered opinion that there is sufficient evidence on the record that despite issuing “No Dues Certificate” to the complainant vide communication dated 13.01.05 (copy Ex. CW1/A) in respect of his SBI Card No. 0004006661037396574 the OP continued to send notices to him and also filed a complaint U/s 138 of the Negotiable Instrument Act against him which was later on withdrawn. Feeling totally dissatisfied, frustrated and agitated with the behaviour of the OP the complainant ultimately approached the Banking Ombudsman. As is not denied in the written statement and also mentioned in the order of the Banking Ombudsman copy of which has been filed on the record, the OP had offered Rs.50,000/- to the complainant towards compensation  but, however, the said offer was not accepted by the complainant. We mark the copy of the order of Banking Ombudsman as Mark ‘AA' for the purposes of identification.

The Banking Ombudsman is a statutory authority.  However, in our considered opinion, the Banking Ombudsman does not have the statutory powers to settle the questions of facts and law between the parties. It has to allow the complaint or dismiss it on the basis of the facts and documents placed before it and it is not supposed to determine the questions of facts and law. Moreover, it was not the Banking Ombudsman who had directed the OP to pay Rs.50,000/- to the complainant towards compensation. It was the OP only who had offered to pay the said amount to the complainant towards compensation. Therefore, the order of Banking Ombudsman is not an order which can attract the principles of res-judicata. Therefore, we hold that the complaint is not barred by the principles of res-judicata.

The complainant used to be a cardholder of the OP bank. Therefore, he was a “consumer” as defined in the Consumer Protection Act. He did not accept the amount of Rs.50000/- from the OP as compensation towards full and final settlement. Feeling not satisfied with the approach adopted by the Banking Ombudsman he has filed the present complaint before this Forum.  Therefore, in our judgment, the complainant is a ‘consumer’ as defined in the Consumer Protection Act.

We hold the OP guilty of serious deficiency in service. Hence, we allow the complaint and direct the OP to pay Rs.1,25,000/- towards compensation to the complainant alognwith interest @ 6% per annum from the date of this order till the date of realization and Rs.10,000/- towards cost of litigation within a period of 30 days from the date of receipt of copy of this order failing which OP shall become liable to pay interest @ Rs.9% per annum on the above said amount of Rs. Rs.1,25,000/- from the date of this order till the date of realization.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on 06.04.17.