Delhi

StateCommission

A/09/240

HDFC BANK LTD. - Complainant(s)

Versus

SHILPE SARIN - Opp.Party(s)

17 Aug 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

                                              Date of Arguments: 17.08.2016

     Date of Decision: 30.08.2016

 

Appeal No. 240/09

In the matter of:

 

HDFC Bank Ltd.

5.  

Rajouri Garden

New Delhi                                               ……Appellant

Versus

 

       

        Shri Shilpe Sarin

        D-13/A, East of Kailash

        New Delhi                                               …..Respondent

         

 

CORAM

 

 

 

O.P. Gupta, Member (Judicial)

 

1. Whether reporters of local newspaper be allowed to see the judgment? 

 

•  

 

  2.      To be referred to the reporter or not? Yes    

 

 

 

JUDGEMENT

          The OP has come in the present appeal against order dated 7.11.08 passed by District Forum, New Delhi in complaint- case No. 945/06.  The case presented by complainant/respondent was that he had a credit card issued by OP, when monthly statement of Sept., 2004  in respect of his card came he immediately contacted the customer cell of OP and informed about the unauthorized debit charges of Rs. 5,000/-  which were never incurred by him. Reminder was issued on 27.11.05 but OP made threatening calls at which he lodged FIR on 06.05.06.  OP threatened that it would issue letter to other banks that complainant was a defaulter.  Complainant was shocked when he discovered that OP had attached Rs. 12,346.31P  from his salary account due to which certain cheques issued by him were bounced. The complainant sought reversal of invalid charges of Rs. 22,147.89P and refund of Rs. 13,000/-.

2.   OP filed a reply stating that complainant did not pay outstanding dues of Rs. 22,147.89P, it denied that complainant ever made any complaint before customer cell regarding monthly bill from 15.08.04 to 15.09.04.

 

3. The District Forum found that instead of looking into the grievance of the complainant, OP escalated the amount from Rs. 5,000/- to Rs. 22,147.89P and attached salary account of the complainant.as a result of which the banker of the complainant was compelled to remit Rs. 13,000/- to the OP. This amounted to unfair trade practice.  Similarly threats to put the complainant in the list of defaulter of all other banks, credit institutions an d finance banks is unfair. Hence, the district forum directed the OP to reverse Rs. 22,147.89P from the credit card statement of complainant and to pay Rs. 13,000/- to the complainant withdrawn by it from the account of complainant and forthwith cancel credit card given to the complainant, Further OP was directed to pay Rs. 50,000/- as compensation for mental agony, harassment and deficiency of service, Rs. 10,000/- as cost of litigation.

 

4.   In appeal the grievance of the OP is that as per card member agreement, complainant agreed that OP was to have a Lien and right of setoff on account deposited with the OP.  As per statement dated 09.04.06 Rs. 22,147.89 was due in the credit card account, so it exercised its right of lien and transferred amount of Rs. 515/- on 28.09.,06, Rs. 12,346.31 on 29.07.06.  Still on 04.10.06 outstanding balance of Rs. 10,789.02 remained.  The complainant used the credit card till 21.04.05 when credit limit was exhausted.  Section 171 of the Indian Contract Act provide right of  liento banker and the same was recognized by National Commission in State Bank of India vs. M/s Agarwal Karojency 1 (1996) CPJ 250, in Branch Manager, Union Bank of India vs. Tele Surya Rao II (1997) CPJ 67 and Canara Bank vs. C B Patel  II (2001) CPJ 19.

 

5. I have gone through the material and heard the arguments.  The question is not whether appellant bank is entitled to exercise lien.  The question is whether respondent has any liability to pay the disputed amount.  First the appellant has to justify the liability of the respondent and only then it can recover the amount.

 

6. The controversy originated from the debit charges of Rs. 4970/- on 16.08.04 against bill from Sikka & Sons as per annexure C II at page 36 of the bunch of papers filed by the appellant.  The complainant made a protest of the same.

 

7. The counsel for appellant relied upon note at the bottom of aforesaid annexure C II which recites that all contents of the statement will be deemed to be correct and accepted by the holder of the card unless he informed the bank of any discrepancy within 10 days from the date of statement.  He wanted to make out that complainant did not inform the discrepancy within 10 days but that is a matter of fact which has not been seriously taken up in District Forum or in this Commission. The appellant has no where mentioned in the ground of appeal that respondent did not inform about said wrongful debit.

 

8. The Counsel for the appellant submitted that it was for the complainant to prove that he did not use this credit card by producing the voucher from the concerned firm i.e. Sikka & Sons but  the complainant did not do so.

 

9. The Counsel for respondent refuted the above argument by relying upon the guidelines dated 21.11.05 issued by Reserve Bank of India to all Commercial Banks/NBFC.  The guidelines dealing with wrongful billing provides that card issuing bank should ensure that wrong bills are not raised and issued to customers.  In case customer protests in bill,  the bank should provide explanation and if necessary documentary evidence to the customer within maximum period of 60 days with a spirit to amicably redress the grievance.  Thus the burden to provide documentary evidence was on the bank.

 

10. Counsel for the respondent went on to elaborate his submission by contending that aforesaid requirement is in consonance with natural justice.  The copy of the bill should be with the bank.  It cannot be with the customer when the customer denied having used the credit card and made purchase.

 

11. The appellant never provided the evidence to the customer, so it could not recover the amount and that too by escalating the amount of Rs. 4970/- to Rs. 22,147/- just within a span of 20 months from  August 2004 to April 2006.  The interest exceeding principal amount is against the principal of Damduput i.e interest cannot exceed principal amount.  In the light of above discussion the question of exercising right of lien by the appellant falls to the ground.

 

12. The appellant did not dispute attachment of salary account of complainant to the extent of Rs. 12,346.31P withdrawing the said amount.  Otherwise also the complainant has annexed copy of his statement of account reflecting the said deduction as Annexure ‘E” to the complainant.  The appellant is liable to refund the said amount to the respondent.
13. Now turning to the quantum of the compensation it may be observed that complainant pleaded that attaching of Rs. 12,346.31P from his salary account resulted in dishonour of cheques issued by the complainant.  This is bound to create annoyance and mental agony to the complainant.   His image in the eyes of his creditors must have spoiled and damages for the same cannot be ascertained.  The same can merely be assessed to a reasonable extent. Viewed from that angle the compensation of Rs. 50,000/- is not on higher side.

 

14. The cost of litigation fixed as Rs. 10,000/- by district forum does not call for interference.

 

15. For the foregoing reasons the appeal fails and is dismissed. The appellant is directed to reverse charges of Rs. 22,147.89P adjusted from the account of complainant.  Rs. 12,346.31P withdrawn from the salary account of complainant, pay Rs. 50,000/- towards compensation for mental agony, Rs. 10,000/- towards cost of litigation.  The order be complied with within 30 days failing which the amount awarded would carry interest @ 12% per annum.
16. Copies of the order be sent to both the parties free of cost.
17. One copy of the order be sent to District Forum for information.

 

 

 

 

 

 (O.P.GUPTA)

MEMBER (JUDICIAL)