Date of Hearing the 16th Day of November, 2015
Date of Judgment Monday, the 23rd Day of November, 2015
JUDGMENT
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) is at the instance of Opposite Party to impeach the Order No.42 dated 27.06.2014 passed by the Ld. Kolkata District Consumer Disputes Redressal Forum, Unit-I (For short, Ld. District Forum) in Consumer Complaint No.343 of 2009.
The Respondent herein being Complainant initiated the Consumer Complaint under Section 12 of the Act alleging that he is S.B. Account Holder under the Opposite Party vide Account No.000221160003983. He has obtained personal loan from the Opposite Party vide Account No.11268288 and 13431037 and has been paying EMI regularly. He placed a cheque amounting to Rs.2,60,000/- drawn on ICICI Bank and the same was duly credited in his account. On 12.08.2009 from net banking he came to know his balance has been wiped out along with his previous balance of Rs.2100.59P. On13.08.2009 he issued a legal notice seeking explanation but it yielded no result. Hence, the case against the Opposite Party for deficiency in service with the following reliefs, namely, viz. – (a) a direction upon the Opposite Party to give credit of Rs.2,62,100.59 in favour of him immediately; (b) compensation of Rs.1,00,000/- for harassment and mental agony etc.
The Opposite Party by filing a Written Version has stated that the outstanding in the Credit Card Account of the Complainant bearing No.4181362000107018 is Rs.6,70,408.30P. The Opposite Party submits that they have placed their right of ‘hold on fund’ and the same was duly informed to the Complainant by notice on 12.08.2009. The Opposite Party has further stated that the ‘Banker’s right of lien and set off’ is a lawful process of recovering the money of exchequer and the Bank is bound to deal with due care and caution.
Relying upon the evidence on record and having heard the Ld. Advocates for the respective Parties the Ld. District Forum allowed the Complaint on contest with a direction upon the Opposite Party to give credit of Rs.2,62,100.59P. in favour of the Complainant, a sum of Rs.40,000/- as compensation for harassment and mental agony and litigation costs of Rs.10,000/-, which prompted the Opposite Party to prefer this appeal.
The point arises for consideration in this appeal as to whether or not Ld. District Forum was justified or not in allowing the Consumer Complaint.
Having heard the Ld. Advocates for the respective Parties and on going through the materials on record it emerges that the Complainant has a S.B. Account with the Opposite Party. The Complainant also possesses a Credit Card being 4181362000107018 with the Opposite Party/Bank. According to the Complainant there was no outstanding over the said Account. However, it reveals that in the said Credit Card there was an outstanding of Rs.6,70,408.34P.
The materials on record clearly indicate that ‘Indraneel Roy’ and ‘Indranil Roy’ is the same and identical person being holder of PAN No.ACYPR7588N.
In the impugned Order Ld. District Forum observed, - ‘From documents submitted by Opposite Party we have seen that both the addresses for ‘Indraneel Roy’ and ‘Indranil Roy’ are same. Opposite Party should check the name of the person before issuing the Credit Card in same address. But Opposite Party did not do the same’. Ld. District Forum has blamed the Opposite Party Bank but it is the Complainant who initiated action and as such, he should have made it clear that he approached Court/Forum with a clean hand. The manner by which the Complainant had applied for two Credit Cards by showing two different names it clearly indicates that the Complainant has tried his level best to ‘eyewash’ the Bank.
As there was a huge amount of Rs.6,70,000/- and odd was due and payable by the Complainant in favour of the bank with regard to his Credit Card, the proceeds of the cheque amounting to Rs.2,60,000/- being cheque No.365695 drawn on ICICI Bank Ltd. and also the previous balance of Rs.2,100.59P. aggregating Rs.2,62,100.59 was ‘hold on funds’ by the Bank.
In order to ascertain the rights and contention of the Parties it would be worthwhile to have a look to Clause 6 of the terms and conditions. Clause 6 of the said terms and conditions relating right of lien which provides, - ‘the Bank, at any time and without notice, will have lien and right to set-off on all monies belonging to the Cardmember and/or add on Cardmember standing to their credit in any account/custody of the Bank, if upon demand by the Bank, the balance amount on the Card account is not repaid within the prescribed time’,
The materials on record indicate that on 12.08.2009 the Opposite Party Bank issued a notice upon the Complainant mentioning that he has to remit the sum outstanding into his Credit Card Account within 7(seven) days from date failing which the balance outstanding shall be debited on 27.8.2009 to the Bank Account on ‘cross default’ Clause of the ‘Card Member Agreement’ towards part payment of the said outstanding. Therefore, the allegation of the Complainant that he issued legal notice from his Ld. Advocate on 13.08.2009 appears no significance.
Mr. Diganta Das, Ld. Advocate appearing for the Appellant has placed reliance to several decisions like M. Mallika – Vs. – State Bank of India, reported in IV 2006 CPJ 1 (NC), Canara Bank v. C.D. Patel reported in II (2001) CPJ 19 (NC) and also the decision of the Hon’ble Supreme Court of India reported in (1992) 2 SCC 330 (Syndicate Bank v. Vijaya Kumar) wherein it was consistently held that Banks can exercise their power of general lien over the accounts and securities even those are connected with oither Accounts than the concerned one, if there is a default by the customer in discharging his/her liabilities to the Bank.
In that view of the matter we must say that the Ld. District Forum has failed to appreciate that the lien notice was issued on 12.08.2009 and set off date was 27.08.2009 after 15 days from the issuance of the said lien notice in accordance with the terms and conditions of the Bank. Even after receiving lien notice the Complainant failed to make payment the demand amount to the Bank for that reason Rs.2,62,100.09 was set off by the Opposite Party/Bank.
Therefore, relying upon the materials on record and in view of the decisions referred herein above we have no hesitation to hold that the Appellant/Bank has right to set off the outstanding amount of the Credit Card over which the Bank has general lien. Accordingly, since there was no deficiency in service and unfair trade practices on the part of the Appellant/Bank the Ld. District Forum should have dismissed the instant Consumer Complaint.
In view of the above, we are constrained to interfere with the Order impugned. As a result, the appeal should be allowed and in consequence thereof the impugned Order is liable to be set aside. However, considering the facts and circumstances, we do not like to impose any costs.
For the reasons aforesaid, the instant appeal is allowed on contest but without any order as to costs.
The Order No.42 dated 27.06.2014 passed by the Kolkata District Consumer Disputes Redressal Forum, Unit-I in Consumer Complaint No.343 of 2009 is hereby set aside.
