Murari Mohan Sen,

S/O late Santosh Kumar Sen,

10/20, Sitanath Bose Lane, Salkia,

Howrah – 711 106,---------------------------------------------------  COMPLAINANT.

-          Versus   -

1.      SBI Cards & Payments Services Pvt. Ltd.,

SBI Local Head Office, 11, Parliament Street,

Hew Delhi – 110 001

2.      The Executive Officer, Customer Correspondence Unit,

DLF Infinity Towers, TowerC, 12^th floor, Bolck-2 Building – 3,

DLF Cyber City Gurgaon, Haryana – 122 002.

3.      Manager, State Bank of India

61, Sri Aurobindo Road, P.S. Golabari

Howrah 711 106 --------------------------------------------OPPOSITE PARTIES.

                                                P    R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

      Member       :     Smt. Jhumki Saha.     

                                                 F  I   N   A    L       O    R   D    E     R

1.      This to consider an application U/S 12 of  the C .P. Act, 1986 ( as amended upto

date ) filed by Shri Murari Mohan Sen holding a Master International Credit Card being no. 5546199406003004 w.e.f. 31-03-2002 subsequently converted to CITI ( Titanam Master Card ) bearing no. 5546379105838005 w.e.f. 06-09-2003 alleging deficiency in service including unfair trade practice U/S 2(1)(g) & 2(1)( o ) and 2(1) ( r ) against O.Ps. nos. 1 to 3 and prayed  for refund of excess amount paid to O.Ps. together with compensation and litigation costs including relief as he entitled to.

2.      The brief facts of the case is that the complainant holding internat8onal credit card

with initial drawing money upto 38,000/- and subsequently increased credit limit of drawing money 40% cash and 60% through credit card to R s. 1,01,000/-. While go through the record of the accounts  the complainant surprisingly noticed that he paid Rs. 5,79,611/- against the limit of total drawn amount as per terms and conditions during the period 1^st June,2002 to June,2012. Being aggrieved the complainant through his advocate issued a letter on the dated 24-12-2012 with a copy to RBI Kolkata on 10-01-2013 through registered with  A/D giving ;details of the payment and claimed for refund of excess amount paid to O.Ps. which was duly acknowledged by the O.Ps. and further claimed an amount of Rs. 1,31,515.83 on the dated 08-01-2013 despite valid demand made by the complainant to the bank authority through his lawyer. The o.p.s. did not pay any heed to it and outright rejected. Finally no other alternative the complainant is compelled to file this case against this O.P. before the Forum praying for relief and compensation.

3.        The O.Ps. on the other hand through their written version contending itneralia

admitting the facts for holding the complainant a master international credit card and the allegation made by the complainant are not only false and baseless but devoid any substance whatsoever inasmuch as the rate of interest charged on the unpaid due amount in the contractual rate  with the complainant, as a customer and a credit card member agreed to pay while accepting the credit card. Moreover, the complainant is stopped from making any allegation whatsoever against the outstanding dues after availing of the credit card and as such allegations is only an after though by the complainant to evade payment of legitimate dues towards the above credit card account. Moreover, such dispute arise by the complainant cannot be summarily adjudicated in a proceeding U/S 13 of the C.P. Act, ;1986 ;and is liable to be dismissed on the ground that he is not a consumer within the meaning of C.P. Act, 1986 and as such no right, whatsoever to seek redress of his alleged grievance before the Forum, it necessary that he could approach banking ombudsman for redressed of such grievances. Moreover, the O.Ps. denied received of any excess amount viz-viz refund of excess amount to the complainant for which the question of adoption the unfair trade practice and deficiency in service upon this answering O.Ps. does not hold good.

4.         Upon pleadings of both parties two points arose for determination :

            i)          Is the complaint maintainable before this Forum in its present form ?

ii )        Is there any deficiency in service & unfair trade practice on the part of

            the O.Ps.      ?

iii)      Whether the complainant is  entitled to get any relief and compensation

            as prayed for ? 

DECISION  WITH   REASONS      :

5.      All the  points are taken up together for consideration. The O.P. nos. 1 & 2 in their

written version as well as in the argument categorically stated that the instant complaint is barred by the principle of doctrine of estoppels and resjudicate among the parties. It has being further argued by this answering O.Ps. that the instant case is barred by limitation and also in view of the clause of arbitration as enjoined in the agreement and as soon as he agreed to enjoy the credit card facilities.

6.      In fact the case is quite maintainable in view of the Section 3 of the  C.P. Act,

1986 wherein it has been laid down that the provision of this Act shall be in addition to and not in derogation of the provision of any other law for the time being in force. Therefore, the provision of this Act give the consumer an additional expeditious remedy inasmuch as the complainant entered into an agreement with the O.Ps. for the purpose of using credit card facilities, the complainant became the consumer within the meaning of Section 2(1)(d) of the C.P. Act, 1986. That apart the conducts of the O.Ps. comes within the purview of  Section 2(1)( r ) i.e. unfair trade practice of the said  Act. The O.Ps. in fact made mockery of the existing laws in force in adopted unfair method and deceptive practice to extort the excess money from the complainant. Accor8dngly the O.Ps. cannot take refuge to the provisions and the terms of the agreement which is virtually unilateral and the complainant did not have any scope to go through the agreement in between lines, and thereby rather compelled by circumstances to overlook or ignore the particular terms of the agreement involving intricate question of law and procedure and naturally the O.Ps. cannot reap extra benefit or mileage from the agreement as canvassed.

7.      Likewise, the case cannot be barred by limitation as the complainant as it is in

continuous process of action with respect to the agreement, the jurisdiction of this Forum has been excluded. We are of the view that such contention is not tenable in view of the observation of the Hon’ble Apex Court in the judgment reported in  Supreme Court Order where Hon’ble Apex Court held the existence of the Arbitration Clause in the agreement is no bar to entertain the complaint under the   C.P. Act, 1986 as the remedy under this act is in addition to the provision of any other law.    

8.       Therefore, in view of the settled principle of law on this score after the

pronouncement of the Hon’ble Apex Court we are of the view that the dispute over the exclusion of jurisdiction of this  Forum in view of incorporation of Arbitration Clause in the Agreement is set at rest. The case is quite maintainable.

9.      In this instant case the complainant unlike and other dormant consumer decided to

use CITI Bank Master Card time to time and deposited and paid the different amount to the bank of the O.Ps. ;without any default starting from 1^st June, 2002 to 1806-2012, completely believing the statements of the account of the bank in spite of the facts that the complainant further surprisingly found that an amount of  Rs. 5,79,611/- was paid during the period as stated above. But during scrutinizing the track record of the O.Ps. already realized nearby 600% more than principal amount against amount drawn by the complainant through AT M / in cash / purchase. From the record we have also noticed that the complainant more or less Rs. 2,10,774/- approx. as per ;record through different process / instrument like regular system. Moreover, the O.Ps. further claim service charges / ATM renewal charges, membership fees including service tax of total amount comes in the range more or less  Rs. 2,29,550/- approx. as per record submitted by the complainant which not inconformity with the rate of the schedule nationalized bank.

10.  Moreover, when we go through the entire case history we noticed that it is a

classic example of the adamancy of the O.P. nos. 1 & 2 whom have been trying to deprive the complainant against his genuine demand for not getting the proper justice against refund the excess payment arbitrarily demanded without care to maintain the minimum guideline of the Reserve Bank of India. The complainant as  a senior citizen being overloaded for payment of such huge extra amount resultant he was very much aggrieved and annoyed and requested the O.Ps. for get rid of his anxiety through different letters including a notice through his ld. Advocate, who as respondent bank did not pay any heed to it and struck to its fantastic demand which as if seems to be hypothetical, imaginary and incredible.   

11.  This is a case that spells out some specific message to the innocent consumers. The

fabric of faith hitherto bestowed upon  the O.Ps., that the trust reposed upon it for cheating with the innocent complainant.

12.              Therefore, we arrive irresistible conclusion that the O.P. nos. 1 & 2

organization adopted gross unfair trade practice within the meaning of Section 2(1)( r ) in duping the complainant to bear such type of burden where he paid Rs. 5,79,611/- time to time against total amount withdrawn under the head of different instrument like ATM/ liquid cash / purchase amounting to Rs. 2,10,774/- approx. with further claim amount as a service charge / interest charge / other charges of Rs. 2,29.550/- approx., committed deficiency in service within the meaning of Section 2(1)(g) of the C.P. Act, 1986. We are therefore, of the view that this is a fit case where the prayer of the complainant shall be allowed.   

13.  To strike a balance between the gross unfair trade practice coupled with

sophisticated fraud perpetuated upon the complainant and the degree of award and at the same time to establish the reach  of the C.P. Act, to punish the fraudsters we think that the O.P. nos. 1 & 2 must be saddled with exemplary damages to compensate the degree of humiliation melted out to the complainant. 

14.              Accordingly partly rely upon the documents filed by the complainant

considering as a unchallenged documents by the O.P. who failed to substantiate the genuinity claim of the complainant we think taking into consideration all the aspects that a sum of Rs. 90.000/- to be refunded to the complainant as an excess payment.

Both the points are accordingly disposed of.

      Hence,

O     R     D      E      R      E        D

      That the C. C. Case No. 89  of 2013 ( HDF 89  of 2013 )  be  allowed on contest with costs against o.p. no. 1

      The O.P. no. 1  be directed to refund the complainant of Rs. 90, 000/- as an excess payment within 30 days from the date of this order.

      The O.P. no. 1 does pay a sum of Rs. 10,000/- as compensation for the mental pain, agony and prolonged harassment.

      The complainant is  further entitled to litigation costs of Rs. 5,000/- from the O.P.  no. 1.  

      The O.P. no. 1 is directed to pay the entire amount within 30 days from the date of this order failure of which an interest @ 9% will be levied till realization.

      The complainant is at liberty to put the decree into execution after expiry of the appeal period.

      Supply the copies of the order to the parties, as per rule.

DICTATED  &    CORRECTED

BY   ME.  

    (   P. K. Chatterjee )                                                          (    P. K. Chatterjee)

  Member,  C.D.R.F.,Howrah.                                       Member,  C.D.R.F.,Howrah.

        (  T. K. Bhattacharya  )

     President,  C.D.R.F.,Howrah.