DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)

                                        ISBT KASHMERE GATE DELHI

CC/ 427/2007

No. DF/ Central/

SH VIBHU KUMAR

711, SHAKUNTALA BUILDING,

NEHRU PLACE,

NEW DELHI                                                                               

 VERSUS

 STANDARD CHARTERED BANK
EXPRESS BUILDING
910, BAHADUR SHAH ZAFAR MARG
NEW DELH 110002

                                                                                               …..OPPOSITE PARTY

                                                              ORDER                                       

Rekha Rani, President

1.  This is an old case of 2007. Sh. Vibhu Kumar  (in short the complainant)  filed  the instant complaint  U/s 12  of the Consumer Protection Act 1986  as amended up to date (in short the Act) alleging  therein that he has  credit card account with Standard Chartered Bank (in short the OP) since 1996. OP assigned a sum of Rs. 2,47,000/- as the credit limit of the complainant’s account. Since January 2006 the complainant has made the following payments to the OP in  his account:

Complainant has been requesting the OP to furnish details of payments made to the OP and to specify under which head these payments were being made. Instead of sending detailed statement as requested OP sent a letter dated 06.02.2007 intimating the complainant that his account was invalidated.  Complainant sent reminders to the OP vide  his  letters dated 28.03.2007 and 03.03.2007 asking for details of the add on cards.  Complainant was surprised to note that in statement sent to him available credit limit was shown to be zero which is not true because the total amount due never exceeded the credit limit assigned to the complainant.  Complainant accordingly sent a legal notice dated 10.04.2007 to the OP asking for refund of the  excess amount  received from him,  reversion of extra charges as raised by the OP in the statements sent by it to the complainant and to restore the account of the complainant which was arbitrarily invalidated. OP vide their letter 17.05.2007 replied to the legal notice raising false and frivolous defense. The details of payment made by the complainant as highlighted by the OP in their reply to complainant’s legal notice is in contradiction to OP’s statement of account since January 2006 which is tabulated below:

OP has been charging fraudulently against various cards of the complainant. OP has fraudulently and unlawfully levied charges ranging from Rs. 5000/- to Rs. 12,000/- in a month even when purchases made by the complainant are either negligible  or nil. Fraud committed by the OP is evident  from the fact that a card bearing no. 4669 shows outstanding amount of Rs. 1,12,180/- till date. Complainant was never  liable to pay the said amount as the actual purchase made on said card is negligible.  OP further fraudulently showed a purchase of more than Rs. 10000/- in the month of October 2006 on the said card even when the complainant did not make any purchase on the said card in the said month. The complainant has not used the said card for the last more than three years. OP has failed to provide the details of the purchase made on the said card and the amount of the purchase shown on the said card are incorrect. Since January 2006 till date complainant has made purchases for a sum of about Rs. 17,000/- and till date he has paid about Rs. 1,19,840/- to the OP. OP has charged the complainant for the purchases  he never made and has failed to give the details of the purchases as alleged by OP in the statement. OP’s fraud is evident from the fact that complainant has made a payment of Rs. 6100/- on 26.06.2006 but the said amount was not adjusted by the OP. In the month of September 2006, complainant made a payment of Rs. 16,500/- whereas OP showed payment of Rs. 9023/- in its statement. The complainant is entitled to punitive damages for the fraudulent act of the OP. The instant complaint is filed seeking direction to OP:

1. To refund the excess amount as taken by the opposite Party
2. To  revert the extra charges as raised by the opposite Party in their statements.
3. To withdraw the arbitrary and  illegal bills raised in the name of the complainant.
4. To immediately restore  the account of the complainant which has been illegally invalidated.
5. Grant compensation of Rs. 1,00,000/-  for loss suffered by the complainant for mental agony, and harassment to the complainant.
6. Grant Punitive Damages to the tune of Rs. 15 lacs  to the complainant. 
7. Any other relief which this Hon’ble Forum thinks fit and appropriate. 

2. On receipt of notice the OP appeared and contested  the claim vide its written statement wherein it is  stated that issues raised by the complainant are of complicated nature which cannot be adjudicated by this forum in a  summary procedure.  It is also stated that no cause of action has accrued against the OP. It is stated that  complainant was holder of many credit cards issued by  the OP and was given the card’s members rules at the time of issuance of the credit card and the charges levied by the OP in the card account of the complainant are as per card-members’ rules.  It is further stated that all payments made  by the complainant were duly credited to his credit card accounts and the charges have been levied as per card member’s rules. OP has given the chart showing the payments made by the complainant and the credit of the same was indicated :

           It is also stated that since the complainant was not making payment as per the statement of account, the amount paid was apportioned between  various card accounts of the complainant which OP was  authorized to do as per the terms of the card member rules and regulations. It is denied that the Complainant sent various letters to the OP requesting to send correct statement of account.  It is submitted that the card accounts of the Complainant had been invalidated as the Complainant was not maintaining financial discipline in his credit card accounts. It is also stated that  on account of non-clearance of the outstanding dues to the OP credit limit of the complainant was decreased. It is denied that statement of accounts sent by OP were fraudulent or arbitrary. It is denied that payments made by the complainant were not indicated in the statement of accounts.   It is denied that complainant has made any excess payment to the OP. It is stated that the chart reproduced above matches with the payments made by the complainant. It is denied that complainant did not make any purchases for which he has been charged.  It is denied that OP has committed any fraud with the complainant or is liable to make any refund or reverse any extra charges as alleged.

3. Both the parties have adduced evidence by way of affidavits. We have heard Sh.Gautam Panjwani counsel for complainant and Ms. Suchita Sharma counsel for OP.
4. Learned counsel for the complainant submitted  that complainant had various add-on cards in the name of his family members. Grievance of the complainant is that the amount paid by him was not correctly reflected in the statement of accounts. It is also his grievance that the outstanding amount due from him was fraudulently enhanced in the statement of accounts. 

Learned counsel for the complainant has drawn our attentionto the submissions made in para 7 and para 8 of the additional affidavit filed on behalf of OP which is as under:

8. I say that the other card numbers specified in the letter dated 06.02.2007 were also of Complainant, but the amounts shown against each of the card numbers were incorrectly specified on account of some inadvertent error.”

Learned counsel argued that this statement indicates that complainant paid Rs. 6200/- on 12.01.2006 and Rs. 8100/-on 12.07.2006.Learned counsel argued that this amount is not indicated in the chart showing payments received in different credit card numbers available on page 146 of the paper book which indicates receipt ofpayment of Rs 11700/- in the month of January 2006.It is also stated that the payment received in the month of July 2006 was not indicated in the statement of accounts of OP. Learned counsel for the complainant has further drawn our attention totwo credit card cash payment slips available at page 266 of the paper book. One credit card cash payment slip against credit card no. 4129038286104706 shows an amount of Rs. 100/- and another credit card cash payment slip against credit card no. 4129058685080646 shows an amount of Rs. 400/-. There are various such credit card cash payment slipsavailable from page 266 onwards which according tolearned counsel for the complainant do not match with the statement of accounts.Learned counsel for the complainant has stated that the statements of account are forged , fabricated and OP is liable to be prosecuted for perjury.

6. Learned counsel for the OP, on the other hand, has argued that complainant is holder of multiple credit cards. It is submitted that procedure for transaction through credit card is technical. It is also stated that complainant sometimes made payments by way of cheques and sometimes in cash. It is stated that as per card member’s rules the complainant was required to mentionthecredit card number against which the payment was made whichwas not specified by the complainant at the back of his cheques and thereforeOP had toapportion payments against various card accounts in view of the terms and conditions which are printed at the back of every statement of account sent to the complainant. The said instructionsare that :

“In case of Multiple card account holders: the card numbers with instruction for allocation of payment should be mentioned on the reverse of the cheque. If multiple cheques are being issued for each account , then the card number should clearly mention “Not to allocate” on the reverse in the absence of any specific instruction on the reverse of the instrument, the bank will apply the funds first towards clearance of the Minimum amount due in respect of all the cards and any excess payment will be allocated sequential towards the account with highest balance.In case the payment made is lesser than the minimum amount due, the payments will be prioritized to the overdue accounts first as per the internal policy. For cash payments, fund transfer and payment through net banking, individual payment should be made against each of the accounts.”

7. Learned counsel for OP  has further argued that it is not in dispute that complainant had various credit card accounts. It is submitted that credit  cards    were extensively used by the complainant  but he failed to  remit due payment within prescribed  time and  as such the payment made by him were apportioned between various accounts of the  complainant as per card member’s rules and regulations. It is further stated OP has truly indicated the payments received   from the complainant as well as  the amount outstanding against him. 

8. Learned counsel for complainant had referred  to  the judgment of National Commission in Awaz, Punita Society & Anr Vs. Reserve bank of India & Ors. III (2008) CPJ 98 (NC).   Per contra learned counsel for the OP has stated that the operation of the said order has been stayed by the Apex Court in Civil Appeal No. 5273 of 2008 titled Hongkong  & Shanghai Banking Corp. Ltd. Vs. Awaz & Ors.  vide order dated 03.02.2009.

9. The instant case remained pending on the board of this forum for  more than 10 years. Till date it is not clarified by the complainant as to how much amount  he is claiming from the OP towards refund of excess charges, how much amount he  is claiming to be reverted as extra charges in terms of his prayer clause. The prayer clause is absolutely vague.   During the course of the arguments learned counsel for the complainant himself stated that complainant is a senior citizen and is unable to calculate the exact amount which was allegedly charged in excess by the OP from the complainant. It is not in dispute that complainant has been using various credit cards and there are multiple entries in the statement of accounts. If complainant himself is not able to calculate  as  to what  exact amount is due from the OP  how can   he    expect this forum in summary proceedings to calculate the same. He has disputed various entries in the statement of accounts. He has argued that he did not make various purchases against which he has been charged.  It is submitted on behalf of the OP transaction from credit card is a technical process which cannot take place unless and until the card is physically swiped on the EDC machine.  Since there are multiple entries in the statement of accounts against alleged user of multiple credit cards,   it is difficult to ascertain in summary proceedings whether complainant made any purchase against a particular credit card  on a particular day or not.  Learned counsel for the OP has stated that apportionment of various payments made by the complainant against various credit cards held  by him was made  on account of failure of  the complainant to make payments in time and sometimes on account of his failure to mention as to against which credit card he was making the payment. Learned counsel for the complainant stated that most of the payments were made in cash but some payments were made by cheque. 

10. The complaint lacks in material particulars. No where either in the body of the complaint or in the prayer clause complainant has specified as to how much amount is due from OP  to him.  He himself has not been able to calculate the exact amount which OP charged in excess and  that is the reason that in his prayer clause he has simply prayed that OP be directed to refund excess amount taken from him. What exactly is the excess amount complainant himself is not able to calculate. The reason is that the there are multiple credit card accounts and multiple entries in the statement of accounts. It is not a case  of one, two or few entries in the statement of accounts. It is the case of multiple entries and multiple transactions. Complainant has disputed that  he has been charged   for the purchases he never made. Since it is a case multiple transactions and multiple entries in the statement of accounts the complainant himself  has not taken the trouble of calculating the exact amount which is allegedly due to him from the OP. Even OP has filed an additional affidavit  which is  by way of rectification and explanation to its  previous affidavit. 

11. Similar issue had arisen before Delhi State Consumer State Commission in Appeal No. 176/2017 titled Praveen Kumar Jain V/s HDFC Bank Ltd decided on 29.05.2017. The facts  of the case before the State Commission were that the complainant was in possession of  credit card issued by HDFC Bank. On 30.05.2014  between  12.42AM to 12.56AM the card was used and multiple transactions were done worth Rs. 24000/-. Complainant alleged that he did not make any transaction on 30.05.2014.He filed a complaint before the District Forum. District Forum held that complaint involved  question of disputed entries  and fraud which required proper investigation and trial which could not  be done in the summary proceedings on the basis of affidavits filed under provisions of the Act and dismissed  the complaint. The order was upheld by the State  Commission.

12.  Effective and complete adjudication of the instant case requires production of various documents, examination and  detailed cross examination of witnesses to prove which transactions were done by the complainant on which date and time  by using which credit card as he has been using multiple credit cards and there are various credit cards accounts having a large number of entries.  A case of adjudication of one , two or few  entries can be decided by the Consumer Forum but not of multiple transactions, multiple entries in multiple accounts particularly in a case where  the complainant himself has not given any valuation  of  his claim in his complaint for the purpose of even pecuniary jurisdiction because he has not  been able to calculate the  same. Prayer clause is also left vague and blank.  It is also to be highlighted that even OP  is not clear about its case which necessitated filing of an additional affidavit by way of rectification and clarification. During the course of arguments learned counsel for the  complainant submitted that although OP has stated that an amount of Rs. 3,92,947/- is due to OP from the complainant in its  reply   to complainant’s legal notice dated 10.04.2007,    till date OP  has not initiated any action against the complainant for recovery thereof. To this submission learned counsel for the OP could not furnish any satisfactory explanation  for not initiating any action against complainant for recovery of the said amount  allegedly due from the complainant to the OP.

13. In Oriental Insurance Company ltd Vs Munimahesh Patel , IV (2006) CPJ 1 (SC) a Civil Appeal No. 4091 of 2006 was filed before the Apex Court against judgment of National Consumer Disputes Redressal Commission New Delhi (in short the commission). The commission had upset the order of the State Commission and held that the appellant (insurance company) was liable to pay  Rs 5 lacs with interest @ 6% p.a. from the date of complaint. The commission accepted that there was no dispute regarding the genuineness of the insurance policy but it noted that  there was dispute about disclosure made in the proposal form. It accepted that she was not employed as stated  in the proposal form. Commission did not consider it necessary to go into that question and held that though there may have been some information given which had no relation with the actual state of affairs, yet the factum of the accident resulting in death and policy was not in dispute and, therefore, the claim of the complainant was allowed.                                                        Appellant had brought on record a copy of the proposal in which the complainant was shown as a teacher. It was specific stand of the appellant that there was concealment of fact regarding the occupation of the complainant’s wife the insured  in the proposal form and complainant was not entitled to any relief. Hon’ble Apex Court held that commission was not justified to deal with the matter in view of disputed factual position. Hon’ble Apex Court observed:

“10. Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions

should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.

11.The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done.

12. The nature of the proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission.”        

14. In view of the aforesaid discussion the complaint is dismissed. However the complainant shall be at liberty to approach civil court in case so advised and may take advantage of the observations made in the case of Laxmi Engineering Works Vs. PSG Industrial Institute, II (1995) CPJ1 (SC) =(1995) 3 SCC 583, to seek exclusion of the time spent before the Consumer Fora under section 14 of the Limitation Act. Copy of this order be sent  to the parties as statutorily required. File be consigned to record room. 

Announced on this 3^rd Dayof May 2018.