27.01.2017
MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.
Instant Appeal under Section 15 of the C. P. Act, 1986 has been filed challenging the judgment and order dated 16.02.2015 passed by the Ld. District Forum, Kolkata, Unit – II in C.C. Case No. 384 of 2014 allowing the complaint with the directions as under :-
“That the complaint be and the same is allowed on contest with cost of Rs.5,000/- against the O.P.
Op is directed to comply the order and judgment of this Forum as per guideline and direction as made in the body of the judgment and findings and comply the order with 45 days from the date of this order and if it is not complied by the op within 45 days after giving complaint a chance to be heard, in that case op shall not be any way able to realize any amount from the complainant in respect of those accounts under any circumstances and in default all the accounts shall be treated as closed without any outstanding and in that case NOC shall be issued in favour of the complainant by the op, in default, op shall have to pay penal damages of Rs.1,00,000/- to this Forum. Even if it is found that op is reluctant to comply the order within the stipulated period as mentioned in the ordering portion in that case, penal action shall be started against the op for which further penality and fine shall be imposed against the op”.
The facts of the case, in a nutshell, were that the Appellant/Complainant obtained from the Respondent/O.P. Bank a Gold Reward – Primary Credit Card bearing No. 4196-0749-4882-9396. The Respondent/O.P. Bank being satisfied with the regularity in making payment by the Appellant/Complainant through the said card against purchases made by him offered the Appellant/Complainant a loan of Rs.2,50,000/- subject to the acceptance of the terms and conditions of such offer by the Appellant/Complainant on his satisfaction.
The Respondent/O.P. Bank, thereafter, sent one Bankers cheque amounting to Rs.2,50,000/- vide unnumbered letter dated 18.12.2012 containing the terms and conditions of the said loan to the Appellant/Complainant who accepted the said loan and being satisfied with the given terms and conditions, encashed the cheque. the Appellant/Complainant then purchased some goods worth of Rs.42,000/- using the Gold Reward-Primary Credit Card. The said loan of Rs.42,000/- being offered by the Respondent/O.P. Bank to be convertible to a loan repayable in 24 monthly instalments, was given assent to such offer of conversion by the Appellant/Complainant and the amount was accordingly converted to loan by the Respondent/O.P. Both the loans, as subsequently revealed on perusal of the composite statements showing against the said two loans, were named the ‘Instabuy’s account’ bearing No. 9356-5008-0839-5719. The composite monthly statements, as alleged were never revealing about the amounts outstanding for payments in respect of the said two loans.
The Respondent/O.P. subsequently sent two Bankers cheques amounting to Rs.1,13,000/- and 1,55,000/- respectively against two types of loans of separate nomenclature as indicated in the unnumbered and undated letters accompanying the cheques. The letters, on the reverse side narrated the terms and conditions of the loan which the Appellant/Complainant was not agreed to. The cheques were, accordingly, returned by the Appellant/Complainant to the Respondent/O.P. Bank.
The Respondent/O.P. Bank, as alleged, issued in favour of the Appellant/Complainant another Platinum Primary Credit Card bearing No. 5444-3887-5622-8260 as back as in the year 2009. The Appellant/Complainant without using or signing the card, sent back the said Platinum Primary Credit Card to the Respondent/O.P. Bank. Further, in the month of July, 2012, the said Platinum Primary Credit Card bearing same number was once again sent to the Appellant/Complainant by the Respondent/O.P. Bank, which was returned to the Respondent/O.P. Bank by the Appellant/Complainant as before.
The Respondent/O.P. Bank, as alleged, very irregularly maintained the accounts related to aforesaid Gold Reward-Primary Credit Card, the Instabuy’s Account and the Platinum Primary Credit Card.
There were instances of
- Allegedly illegal realization of processing fees in respect of two loans which the Appellant/Complainant refused to accept and returned the loan cheques to the Respondent/O.P. Bank. The processing fee so allegedly illegally charged, however, was reversed on protest from the Appellant/Complainant.
- Illegal recording of purchase in excess of the permissible limit and deducting over limit charges although no purchase was actually made. The over limit charges, so illegally realized was not reversed so far, as alleged.
- Irregular adjusting of payment made against wrong account creating cause for the Appellant/Complainant being recorded as defaulter in respect of the account for which the payment was actually made.
- Claiming only processing charges, service tax and cess against the unused and returned Platinum Primary Credit Card.
Besides above, there were other allegations of excess debiting and claiming irregularly the late fee charges, late fees, interest service charges etc.
Repeated requests by the Appellant/Complainant to the Respondent/O.P. for making good the anomalies in the account being gone in vain, the Respondent/O.P. filed the Complaint Case No. 384/2014 before the Ld. District Forum. The impugned judgment and order relates to the said complaint case.
Heard the Ld. Advocate appearing on behalf of both the parties. The Ld. Advocate appearing on behalf of the Appellant/Complainant submitted that the instant appeal was filed by the Complainant being aggrieved against the only point that the impugned order was silent about any compensation for the deficiency in service rendered by the Respondent/O.P. Bank.
It was also submitted that the Learned District Forum had rightly examined the case and pointed out the negligence on the part of the Respondent/O.P. Bank in rendering the services while allowing complaint but remained silent as regards awarding of compensation which was due to the Appellant/Complainant.
It was admitted by the Ld. Advocate that the Appellant/Complainant received from the Respondent/O.P. Bank an amount of Rs.5,000/- being the cost and the NOC in terms of the directions in the impugned order.
The Appellant/Complainant in favour of his argument, as above, referred to the judgment and order in Appeal (Civil) 7173 of 2002 passed by the Hon’ble Supreme Court (Ghaziabad Development Authority – vs. – Balbir Singh) having reference of other C.A. Nos. mentioned therein which does not seem to be applicable in the present context since the issues are not identical in nature.
With the above submission, the Ld. Advocate prayed for allowing the appeal with the direction upon the Respondent/O.P. to pay to the Appellant/Complainant the claimed amount of compensation.
The Ld. Advocate appearing on behalf of the Respondent/O.P., on the other hand, submitted that the Appellant/Complainant did not submit copies of the evidence furnished before the Ld. District Forum with this appeal. the pleading without the copies of evidence, as submitted, was difficult.
The summary proceedings, as the Ld. Advocate continued, were hardly enough to examine and adjudicate properly on a complaint containing 60 paragraphs and having reference of so many deficiencies allegedly committed by the Respondent/O.P. The Ld. Advocate put emphasis on transferring the case to the appropriate forum for proper adjudication and order in view of the above.
In the above context, the Ld. Advocate relied on the judgment of the Hon’ble Supreme Court in Appeal (Civil) Case No. 4091 of 2006 [Oriental Insurance Company Limited – vs. – Munimahesh Patel] wherein the Hon’ble Supreme Court was pleased to observe that “proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated”. The Hon’ble Supreme Court was further pleased to observe therein “the nature of the proceeding 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”.
Drawing the notice of the Bench to page No. 17, being the last page of the impugned order wherein the Ld. District Forum observed that “after issuance of those statements if it is found that there is any fault in that case O.P. shall have report to the complainant which shall be paid by the complainant”. The very sentence, as the Ld. Advocate continued, itself was indicative that the Ld. District Forum was in two minds while passing the impugned judgment and order which, prima facie, was more a guess work than any firm finding.
Moreover, as the Ld. Advocate maintained the Respondent/O.P. Bank took steps against all the allegations in strict adherence to rules.
As submitted, the Respondent/O.P. Bank paid Rs.5,000/- and issued NOC to the Appellant/Complainant in terms of the directions of the Ld. District Forum in the impugned order. The amount and NOC were received by the Appellant/Complainant without any objection thereto. The Appellant/Complainant thus received the benefit of the impugned order and thereafter filed the instant appeal with prayer for order towards a very exorbitant cost and compensation of Rs.2,00,000/- and 15,00,000/- respectively against the disputed amount of Rs.2,92,000/- without any justification of such claim. The reasons were sufficient for the prayer to be summarily rejected which was not done by the Ld. District Forum. With the above submissions, the Ld. Advocate prayed for the appeal to be dismissed affirming the impugned judgment and order.
Perused the papers on record. It appears that the instant hearing has been fixed after two successive dates for final hearing being adjourned and on neither of the two previous occasions the difficulty in pleading in absence of evidence has been focused on behalf of the Respondent/O.P. Bank.
In the instant appeal, the Appellant/Complainant’s sole grievance was against the fact that the impugned order was silent about awarding him any compensation for the deficiency in rendering due service to him by the Respondent/O.P. Bank. Further, admittedly, the Appellant/Complainant received a cost of Rs.5,000/- and the NOC in terms of the direction of the impugned order from the Respondent/O.P. Bank. This indicates that the Appellant/Complainant first availed the benefit of the impugned order and thereafter filed the instant appeal with a view to deriving greater benefit in the form of compensation as prayed for. The Appellant/Complainant, as it appears, was not in the right footing in filing the instant appeal when he had already availed the benefit of the impugned order.
Taking into consideration the facts and circumstances narrated hereinabove, we are of the considered view that the impugned judgment and order does not call for any intervention from this Commission. The appeal, therefore, stands dismissed. The impugned judgment and order is affirmed. No order as to costs.
