Date of Filing: 06/09/2011

        Date of Order: 24/12/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  24^th DAY OF DECEMBER 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.Sc.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

C.C. NO.1646 OF 2011

Mr. Amitav Roy,

House No.156, Reliable Residency,

Haralur, Agara Post,

Bangalore-560 034.

(Rep. by Sri..Manohar, Advocate)                                                          ….  Complainant.

V/s

(1) The Senior Manager,

Customer Services, SBI Cards & Payment

Services Pvt. Limited, DLF Infinity Towers,

Tower C, 12^th Floor, Block 2, Building 3,

DLF Cyber City, Gurgaon-122 002. (Haryana).

(Rep. by Sri.M.H.Hidayathulla, Advocate)

(2) Mr. Umesh Sheety, Manager,

Home Loans Department,

State Bank Of India, Personal Banking

Branch, Koramangala, Bangalore-560 034.

(Rep. by Sri.Ranganatha Gowda, Advocate)                    …. Opposite Parties.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that led to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party No.1 to pay Rs.2.7 lakhs and opposite party No.2 to pay Rs.30,000/- and the opposite party No.1 to remove all the dues related to the cheque No.158515 from CIBIL and the 2^nd opposite party to execute a copy of the property legal and valuation report, are necessary:-

The complainant was having the SBI card No.4317-5756-0449-2810 of the 1^st opposite party, using it and making timely payments of all his dues.  In January-2005 the 1^st opposite party offered a balance transfer facility of Rs.65,000/- and the cheque was issued to the account of the complainant with a 2^nd opposite party which has been repaid by the complainant.  On 15.06.2005 the opposite party offered balance or transfer facilities and issued cheque No.158515 for Rs.49,000/- to the card of the complainant with the 2^nd opposite party bearing No.4026-5700-0201-8095.  This was lost by the 2^nd opposite party and this was intimated to the opposite party No.1.  But the opposite party No.1 ignored it and was charging interest, penal interest, etc.,.  The 1^st opposite party requested the complainant to obtain cheque clearance certificate from the 2^nd opposite party which was obtained from the 2^nd opposite party and it was intimated to the 1^st opposite party on 05.11.2005, stating that this amount has not been received nor credited to the complainant’s card with the 2^nd opposite party.  Thus the cheque has not been received or encashed by the complainant.  The complainant has also surrendered the card.  The opposite party No.1 informed the complainant on 13.11.2005.  The opposite party No.1 started sending collection agent who collected the cheque for Rs.3,500/- forcibly and the complainant issued a stop payment letter and that cheque was not encashed, since he has not received any money towards cheque No.158515.  Hence the complainant is not liable to pay any amount.  As things stood thus in first week of February-2007 the complainant applied for SBI Teaser rate home loans with the 2^nd opposite party who delayed processing for two months and ultimately returned it on 31.08.2010 stating that because of the CIBIL report it cannot sanction the loan.  The complainant approached other Bank and obtained loan by paying heavy interest.  Hence the complaint.

2(a).  In brief the version of the opposite party No.1 are:-

          The complainant is not a consumer.  As per the rules the amount has been calculated and the complainant is due towards the credit card amount.  As per the credit card account amount due Rs.3,89,092.17 paise and it has been informed to the CIBIL.  There is no deficiency of service.  All the allegations to the contrary are denied.

2(b).  In brief the version of the 2^nd opposite party are:-

          There is no relationship of consumer and trader between the parties.  No transaction took place between the parties.  The opposite party by individual name cannot be as a party.  The 2^nd opposite party is not subsidiary to 1^st opposite party.  As per the CIBIL report the loan sought was not granted.  There is no deficiency in service.

3.       To substantiate their respective cases the parties have filed their respective affidavits.  The arguments were heard.

4.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether there exists a relationship of consumer and trader between the opposite party No.2 and the complainant?
2. Whether the complainant is a consumer vis-à-vis opposite party No.1?
3. Whether there is deficiency in service with respect to opposite party No.1?
4. Whether there is deficiency in service with respect to opposite party No.2?
5. What Order?

5.       Our findings are:-

Point (A) to (E):       As per the final Order

                             for the following:- 

-:REASONS:-

Point A to E:-

6.       Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that the complainant had approached the 2^nd opposite party for a housing loan in the 1^st week of February 2011 and the rate of interest was 9.5% per annum.  Second opposite party closed the said loan application and returned it to the complainant rejecting sanctioning of the loan on the ground of the name of the complainant is in CIBIL as intimated by opposite party No.1.  The complainant has alleged that he has taken housing loan from the others by paying interest heavily and the difference in interest has to be paid by the opposite party No.2.  This is an untenable contention.  Here it is an admitted fact that the sanctioning of loan or rejecting of the loan is in the discretion of the concerned bank, this Forum cannot compel the bank to grant or reject the loan.  A Forum is not the appellate authority of the Banks in question.  Here the complainant has not paid any consideration for sanctioning of the loan.  It is the loan amount that has to be granted to the complainant by the opposite party.  Merely the complainant had paid the processing fee it does not mean that the processing fee is the consideration for this loan to be granted.  Processing fee is to process the paper that’s all.  Ultimately it was the discretion of the Bank either to grant or to reject the loan.  In this case the opposite party No.2 has rejected in granting the loan.  Whatever may be the consideration for rejecting the loan that cannot be considered by this forum.  No jural relationship of consumer and trader exists between the parties i.e., the complainant and the 2^nd opposite party.  Merely the 2^nd opposite party has not sanctioned the loan as sought for by the complainant, for whatever reasons it cannot be held to be deficiency in service.  Merely the complainant has not obtained loan or complainant obtained loan from others it does not mean the 2^nd opposite party is liable to pay damages, pay the difference of interest.  If the complainant has suffered any tort his remedy is to approach the civil court and not agitate the matter before this forum.  If the complainant approaches the concerned court, this order will not come in that way. 

7.       Even otherwise in this case the 2^nd opposite party has been arrayed as Umesh Shetty, who has not acted in his individual capacity.  It is the State Bank of India that should have been 2^nd opposite party, but not Umesh Shetty in his individual capacity.  But as such he has been impleaded, hence the complaint as against 2^nd opposite party is also not maintainable.

8.       Even otherwise the 2^nd opposite party is not the loan sanctioning authority, nor loan disbursing authority.  The 2^nd opposite party has received the loan application from the complainant forwarded it to the higher authorities who on verification of the same rejected it and this was intimated to the complainant through the concerned State Bank of India.  Hence the 2^nd opposite party has nothing to do with this case.  Hence the complaint against him is not maintainable as rightly contended and there is no such jural relationship of consumer and service provider exists between 2^nd opposite party and the complainant.

9.       In this case it is seen that the complainant had a credit card of the 1^st opposite party.  Regarding the credit card the 1^st opposite party had transferred balance transfer cheque No.158515 on 15.06.2005 to the account of the complainant with the 2^nd opposite party and this was a loan.  This cheque was not received or encashed by the 2^nd opposite party and no amount has been transferred to the account of the complainant by the 1^st opposite party admittedly.  This was intimated to the 1^st opposite party by the complainant.  When the amount is not received by the complainant the question of repaying the said amount by the complainant does not arise and the opposite party No.1 charging interest or penal interest does not arise.  The complainant had informed to the opposite party No.1 in June, July, August-2005 in the matter.  The opposite party No.1 was charging interest etc.,.  The 1^st opposite party wanted cheque clearance certificate from the 2^nd opposite party, this was also obtained by the complainant and furnished to the opposite party No.1 in the year 2005 itself, i.e., on 05.11.2005, even then opposite party No.1 has written stating that it is under consideration.  But the opposite party No.1 without paying any amount is demanding return money from the complainant with respect to the said cheque.  When the amount has not been received by the complainant, he is not bound to pay any interest or any amount with respect to the same.

10.     Even the complainant stopped using the credit card and sought cancelation of the credit card with the opposite party No.1.  Even then the opposite party No.1 is claiming the amount of Rs.49,900/- and add with penal interest,  late fee charges etc.,.  This is nothing but deficiency in service and unfair trade practice. 

11.     The opposite party No.1 has also written to the CIBIL with respect to this cheque and this entry which touches the credit worthiness of the complainants.  This is an unfair trade practice.  Hence under these circumstances if we direct the opposite party No.1 to get the name of the complainant cleared and removed from the CIBIL with respect to the transactions of cheque No.158515 dated: 15.06.2005 as not due and get his name removed from the CIBIL as defaulter and to issue no due certificate to the complainant by cancelling the credit card and directing the 1^st opposite party to pay certain amount as compensation and costs we think that will meet the ends of justice. 

12.     Hence we hold the above points accordingly and proceed to pass the following:-

-: ORDER:-

1.        The complaint is Allowed-in-part.

2.        The opposite party No.1 is directed to get the name of the complainant removed from the defaulters list with respect to the cheque No.158514, dated: 30.06.2005 within 30 days from the date of this order.

3.        The opposite party No.1 shall issue No Due Certificate with respect to the credit card of the complainant bearing No.4317 5756 0449 2810 and close the credit card permanently.

4.        The opposite party No.1 is also directed to pay Rs.10,000/- as compensation to the complainant.

5.       The opposite party No.1 is also directed to pay Rs.2,000/- to the complainant towards cost of this litigation.

6.       The complaint against opposite party No.2 is dismissed with costs.  The complainant is directed to pay Rs.2,000/- as costs of this litigation to opposite party No.2.

7.       Both parties are directed to send the amounts as ordered at Serial Nos.1 to 6 above through DD by registered post acknowledgment due and submit the compliance report to this Forum with necessary documents within 45 days.

8.       Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.

9.       Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 24^th Day of December 2011)

MEMBER                                                 MEMBER                                       PRESIDENT