RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
APPEAL NO. 433 OF 2022
(Against the judgment/order dated 01-04-2022 in Complaint Case
No.23/2021 of the District Consumer Commission, Aligarh)
- Managing Director & Chief Executive Officer
(CEO) of SBI Card, 10th to 12th Floor
DLF Infinity Tower, Tower-C
Block-2, Building-3, DLF Cyber City
Gurgram, Haryana-122 2
Through Manager
- Chief Manager
State Bank of India
Main Branch, Samad Road, Aligarh
District Aligarh-202001 (U.P.)
... Appellants
V/s
Subedar Major/Clk (SD)
Shambhu Dayal (Retd.)
S/o Late Vavu Ram
R/o Vaishno Colony, Ward No.51
Keshav Nagar
District Aligarh-202001 (U.P.)
...Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT
HON’BLE MR. VIKAS SAXENA, MEMBER
For the Appellant : Sri Rajnish Kr. Srivastava, Advocate
For the Respondent : Sri Shambhu Dayal in person
Dated : 29-03-2023
JUDGMENT
PER MR. VIKAS SAXENA, MEMBER
The instant appeal has been filed by Managing Director & Chief Executive Officer (CEO) of SBI Card and another under Section-41 of the Consumer Protection Act, 2019 against the judgment and order dated 01-04-2022 passed by the District Consumer Commission, Aligarh in Complaint Case No. 23/2021, Subedar Major/Clk (SD) Shambhu Dayal V/s Managing Director & Chief Executive Officer (CEO) of SBI Card and another.
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Sri Rajnish Kr. Srivastava, learned Counsel appeared on behalf of the appellants and Sri Shambhu Dyal, respondent/complainant is present in person.
Brief facts of the case are that the complainant has filed the complaint under Section 35 of the Consumer Protection Act, 2019 to issue notice to the opposite parties to quash the impugned charges made by the SBI card Authority and to direct the opposite parties to refund the excess amount Rs.46,507.68 with interest along with the cost The complainant also prayed for issuing direction to the opposite parties not to further deduct the amount from the DSP account.
It has been stated in the complaint that the complainant had retired from army services on 28-02-2014 and draws the pension from the State Bank of India Main Branch Aligarh. While the complainant was in service and posted in the office of Joint Secretary (Air) Ministry of Defence South Block, New Delhi one representative of the SBI Card contacted the complainant and advised to use the SBI Card. On 19-02-2018 the complainant received SBI Credit Card bearing Number 4226 4277 5489 6140 and paid the amount time to time as per the items purchased from Army canteen and other market shops through SBI Card.
It has been further stated by the complainant in his complaint that on the monthly statements dated 02-03-2019 to 02-08-2019 the complainant had raised observations and requested to opposite party No.01 vide letter dated 12-08-2019 to refund/credit a sum of Rs.4,304.22 which were wrongly debited but no response received. On 05-10-2019 the matter was discussed with the customer care officer and on receiving no positive response. The complainant again raised observation on statements dated 02-03-2019 to 02-10-2019 vide letter dated 11-10-2019 and requested the opposite party No.01 to refund/credit a sum of Rs.1,260/- which were wrongly debited, but no response received. On 28-02-2020 the complainant approached opposite party No.2 regarding wrongly making debit of Rs.7,924/- through his DSP saving account with copy to opposite party No.01 along with original SBI Card in connection with closing credit card and refund of Rs.1,268.56 but no response received.
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The complainant has alleged in his complaint that on 01-12-2020 the complainant made a complaint to the Bank Lokpal and requested to refund a sum of Rs.24,826/- which were wrongly debited. On receipt of reply from nodal officer SBI Card, complainant appraised to him in the light of letter dated 01-12-2020. On 06-01-2021 the complainant again made a complaint to bank lokpal and requested to refund a sum of Rs.25,026/- which was wrongly debited. On 10-01-2021 Nodal Officer informed that the complaint was under consideration. On 20-03-2021 complaint was closed without considering the fact and as per message dated 04-04-2021 received from opposite party No.01 it revealed that a sum of Rs.3,926/- was still outstanding against the complainant and the SBI Card was not closed till date.
Thereafter the complainant filed the complaint before the learned District Consumer Commission, Aligarh with the following prayer:-
“That, in the aforesaid facts and circumstances of the case, it is expedient and necessary in the interest of justice that this Hon’ble Commission/Court may graciously be pleased to allow this application with cost and to (i) Issue notice to the Opposite Party, (ii). Quash the impugned charges made by SBI Card authorities (iii) direct opposite parties to refund/revert the excess amount Rs.46,507.68 with interest alongwith cost of this application (iv) direct opposite parties to do not further deduct the amount from above mentioned DSP account during the pendency of present application before this Hon’ble Commission/Court otherwise the applicant shall suffer irreparable loss and injury.
And/or pass such other and further order which this Hon’ble Commission/Court may deem fit and proper in the facts and circumstances of the case.”
The opposite parties No. 01 has filed the written statement before the learned District Consumer Commission but did not appear to contest the case before the learned District Consumer Commission.
It has been stated by the opposite party No.01 in its written statement that the complaint is not maintainable before the learned District Consumer Commission, Aligarh and is liable to be dismissed. It has been stated in the written statement that the complainant is a credit
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card holder of the opposite party and the scrutiny conducted of the card account details revealed that due date for repayment for complete outstanding were missed in several instances due to which complainant was charged.
It has been further stated in the written statement that in case the payments are missed or outstanding on the card is received less than the total amount due then the interest charges are applied on the balance amount and this is also with incremental charges. The complainant was advised to pay total amount due as per monthly statement to avoid any charges. The charges levied were explained with reasoning. The opposite party has reversed one month charges Rs.1,325.30 as a service gesture to resolve the matter. It is pertinent that till date complainant’s SBI Card account stands inactive for usages and is outstanding dues Rs.7,854.02 as on 10-09-2021 payable to the opposite party.
The opposite party No.02 has also filed the written statement before the learned District Consumer Commission and contested the case.
It has been stated by the opposite party No.02 in its written statement that the relief claimed by the complainant is against opposite party No.01 and the opposite party No.02 has been impleaded without any cause. The office of the opposite party No.01 is at Gurgaon Hariyana and Commission has no jurisdiction to hear the case.
The parties have filed their affidavits and papers in evidence before the learned District Consumer Commission, Aligarh.
The learned District Consumer Commission after perusing the materials available on record and considering the evidence of the parties and after considering the arguments raised by the parties it came to the conclusion that as the transaction took place at Aligarh, the Commission has jurisdiction to try the present case and both the opposite parties are necessary parties to decide the dispute and the opposite party No.01 has been rightly impleaded in the case. The learned District Consumer Commission also opined that opposite party No.2 is bound to close the SBI Card issued to the complainant and to refund/credit the amount claimed by the complainant.
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In view of the aforesaid reasons recorded by the District Consumer Commission the following order has been passed by the learned District Consumer Commission, Aligarh.
''Opposite parties are directed to close the SBI Card No. 4226 4277 5489 6140 issued to the Complainant to refund/credit the amount of Rs.46,507.68 to his account within two weeks, failing which complainant shall be entitled get to get interest at the rate of 9% per annum on the said amount till the date of actual payment. Opposite parties are also directed not to further deduct/debit the amount from the DSP Account of the complainant.”
Feeling aggrieved with the impugned judgment and order the opposite parties Managing Director & Chief Executive Officer of SBI Card and Chief Manager, State Bank of India have come up in appeal.
We have heard the learned Counsel for the appellants as well as the respondent/complainant Sri Shambhu Dayal who is present in person.
We have perused the impugned judgment and order passed by the District Consumer Commission as well as records.
Learned Counsel for the appellants has argued that the judgment and order is wholly illegal and erroneous and against the facts, law and record.
It has been argued by the learned Counsel for the appellants that the complaint of the complainant is wholly misconceived, baseless and unsustainable in law and devoid of any merit and is nothing but an abuse of the process of the law and is thus liable to be dismissed under the provisions of the Consumer Protection Act of 1986.
It has further been argued by the learned Counsel for the appellants that no cause of action has arisen to the complainant against the appellants and the complaint is baseless and not maintainable against the appellants, hence stands to be dismissed at the very outset.
It has been contended by the learned Counsel for the appellants that the respondent/complainant did not approach the Hon’ble District Consumer Commission, Aligarh in consonance with the equitable principle of ‘coming with clean hands’. The respondent/complainant has approached the learned District Consumer Commission with a malafide
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Intention and to harass the appellants. The respondent/complainant has thus indulged into illegal acts and conducts amounting to overreaching this Hon’ble Forum and causing obstruction in administration of justice by the District Commission in terms of the law laid down by the Hon’ble Supreme Court of India in the case of S. P. Chengalvaraya Naidu .....Vs...... Jagannath and others (AIR 1994 SC 853) wherein the Hon’ble Supreme Court has observed that ‘we have no hesitation to say that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.’
It has been argued by the learned Counsel for the appellants that the respondent/complainant was advised to pay total amount due as per monthly statements to avoid any charges or have the option to pay at least minimum amount due to avoid late payment charges. This process continuous till the complete outstanding is cleared. It is pertinent that the appellants have communicated the same vide monthly statements, MITC and website.
It has been further contended by the learned Counsel for the appellants that the respondent/complainant’s account is mapped on Salary Sweep Payment (SSP), wherein in case of non-receipt of payment on SBI Card account, minimum amount due is debited from cardholder’s beneficiary account. The SSP was activated on the card account post receipt of complainant’s consent alongwith SBI card application. In case the payments are missed or outstanding on the card is received less than the total amount due, then interest charges are applied on the balance amount, this is also applicable on all the fresh charges incurred in the same month. The finance charge will be levied at 3.35% per month plus service tax as per applicable charges.
It has been contended by the learned Counsel for the appellants that the respondent/complainant has misrepresented certain facts and thus filed the complaint before the District Consumer Commission under false impressions, without application of mind. The complaint is liable to be dismissed since the respondent/complainant has been unable to submit any proof to substantiate his claims as far.
It has been further argued by the learned Counsel for the appellants
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that the burden to prove deficiency of service is on the respondent/complainant and that the respondent/complainant has failed to discharge the same. The above view has been observed by the Hon’ble Supreme Court of India in the case of Ravneet Singh Bagga V/s KLM Royal Dutch Airlines (2000) 1 SCC 66. The learned District Consumer Commission has passed the said judgment and order on the basis of conjecture and surmises, therefore it would be expedient and in the interest of justice to set aside the impugned judgment and order.
It has been argued by the respondent/complainant that the order passed by the learned District Consumer Commission is perfectly correct and the learned District Consumer Commission has committed no illegality in passing the impugned judgment and order.
It has been further argued by the respondent/complainant that the District Consumer Commission has jurisdiction to entertain and adjudicate the complaint and cause of action accrued to the complainant to file the complaint before the learned District Consumer Commission.
It has been contended by the respondent/complainant that while the complainant was in service and posted in the office of Joint Secretary (Air) Ministry of Defence South Block, New Delhi one representative of the SBI Card contacted him and advised to use the SBI Card and also he explain that no any extra charges required to be paid by complainant. On the above said advice, the complainant has submitted application to them for obtaining SBI Credit Card. On 19-02-2018 the complainant received SBI Credit Card bearing Number 4226 4277 5489 6140 and paid the amount time to time as per the items purchased from Army canteen and other market shops through SBI Card.
It has been contended by the respondent/complainant that the complainant has paid the actual amount in time to time, which were purchase from the various shops, but the appellants/opposite party unnecessary charges the amounts. Complaint of the complainant is wholly correct and maintainable and the appeal of the appellants is not maintainable in the eye of law.
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It has been contended by the respondent/complainant that the complainant neither made any false allegations on the appellants regarding the deficiency in services nor the appellants made due efforts to aid the needs and resolve the queries as raised and reverse the amounts till date.
It is submitted by the respondent/complainant that at the time of submission of application for SBI credit Card, no such type of conditions were explained by the representative of SBI Card to the complainant, but he intimated that it is better than other card and no extra charges are applicable. The calculation of extra charges made by SBI Card authorities is not correct.
It has been further argued by the respondent/complainant that at the time of submission of application, the representative of SBI Card obtain the signature on undertaking authorisation to the bank for Debit Sweep and other documents. However, in case SBI Credit Card payment not credit in their account on due date and received late due to some reason, then on the basis of undertaking dated 05-02-2018, why the appellants/opposite parties not Close SBI Card and debit the full amount instead of deduction of partially payment from the respondent/complainant, DSP SBI account continuously till 28 Feb, 2022 as per records.
It has been contended by the complainant that on the monthly statements dated 02-03-2019 to 02-08-2019 the complainant had raised observations and requested to opposite party No.01 vide letter dated 12-08-2019 to refund/credit a sum of Rs.4,304.22 which were wrongly debited but no response received. On 05-10-2019 the matter was discussed with the customer care officer and on receiving no positive response. The complainant again raised observation on statements dated 02-03-2019 to 02-10-2019 vide letter dated 11-10-2019 and requested the opposite party No.01 to refund/credit a sum of Rs.1,260/- which were wrongly debited, but no response received. On 28-02-2020 the complainant approached opposite party No.2 regarding wrongly making debit of Rs.7,924/- through his DSP saving account with copy to opposite party No.01 alongwith original SBI Card in connection with closing credit card and refund of Rs.1,268.56 but no response received.
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The respondent/complainant has argued that on 01-12-2020 the complainant made a complaint to the Bank Lokpal and requested to refund a sum of Rs.24,826/- which were wrongly debited. On receipt of reply from nodal officer SBI Card, complainant appraised to him in the light of letter dated 01-12-2020. On 06-01-2021 the complainant again made a complaint to bank lokpal and requested to refund a sum of Rs.25,026/- which was wrongly debited. On 10-01-2021 Nodal Officer informed that the complaint was under consideration. On 20-03-2021 complaint was closed without considering the fact and as per message dated 04-04-2021 received from opposite party No.01 it revealed that a sum of Rs.3,926/- was still outstanding against the complainant and the SBI Card was not closed till date.
The learned District Consumer Commission has given categorical findings in its judgment and order that the complainant observed infirmities in monthly statement of 02-03-2019 to 02-08-2019 and conveyed to the opposite party No.01 through letter dated 12-08-2019 with request to refund as sum of Rs.4, 304.22. The complainant further observed in the statements 02-03-2019 to 02-10-2019 and conveyed to the opposite party No.01 through letter dated 11-10-2019 with request to refund a sum of Rs.1,260/-. The complainant approached on 28-02-2020 to opposite party No.2 regarding wrongly making debit of Rs.7,924/- through DSP saving account with opposite party No.01 alongwith original SBI Card with request to close the credit card and to refund Rs.1,268.56 but no result. The complainant also moved Bank Lokpal on 01-12-2020 and made a complaint to Bank Lokpal on 06-01-2021 but the matter could not be resolved.
The complainant has filed copies of statements and the letter of correspondence made with opposite parties and Bank Lokpal with his affidavit. The opposite party No.02 has not specifically controverted the infirmities observed by the complainant in the statements and opposite party No.2 has simply denied allegation made by the complainant. The statement made by the opposite party No.2 in the written statement cannot be said to be sufficient to rebut the allegations made by the complainant.
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The complainant has requested to the opposite parties to close SBI Card and he sent original SBI Card to close the card ND refund the money. The complainant has filed letter dated 28-02-2020 whereby SBI Card in original has been returned to the opposite party No.2 for closing and further action on the subject matter. It is evident that SBI Card was not closed by the opposite party No.2 and it remained continue to be operated. It is surprising to note that if a consumer denied to receive the services to be given by the service provider how it can be compelled to receive the services. The opposite party No.02 is bound to close the SBI Card issue to the complainant and to refund/credit the amount claimed by the complainant.
We find force in the argument of learned Counsel for the appellant. The District Consumer Commission has wrongly jumped into a conclusion that the appellant should refund/credit the amount claimed by the complainant and has also committed deficiency in service. The agreement entered in to between the bothin the agreement entered into between both the parties it is clearly mention that the grace period of interest free transaction would be 20 to 50 days depending upon the response of the merchant with whom the transaction has been executed by the consumer. It is also clearly mention in the terms and conditions that if the payment has not been made within the period stipulated in the agreement, the extra charge would be imposed and taken from the account of the consumer. It is further provided that if the consumer does not clear is dues in full then in that event extra finance charge i.e. Service charges shall be taken by the bank. A High rate to the tune of 3.35 percent per month which comes to 40.2% interest on the due amount as Finance-charge i.e. Service charge has been provided in the agreement. The terms and conditions provided in the agreement of the credit card are as following: —
“D. Charges
- Charges and fees, as may be applicable from time to time, are payable by Cardholders for specific services provided by SBICPSL to the Cardholder or for defaults committed by the Cardholder with reference to his Card account.
- SBICPSL retains the right to alter any charges or fees from time to time or to introduce any new charges or fees, as it may deem appropriate, with due intimation to cardholders.
- Interest Fee Grace Period
The interest free credit period could range from 20 to 50 days subject to submission of claims by the merchant. However, this is not applicable if the previous month’s balance has not been cleared in full or if the Cardholder has availed of cash from any ATM
- Finance Charges (Service Charges)
Finance Charges are payable at the monthly interest rate on all transactions including unpaid EMI instalments from the date of transaction in the event of the Cardholder choosing not to pay his balance in full, and on all cash advances taken by the Cardholder, till they are paid back.
If the Cardholder makes partial or no payment of Total amount due(TAD) before Payment due date (PDD); i.e. the Customer has outstanding balance from previous months and in the current month, full payment of Total amount due is made before Payment due date then Finance charges will be levied on the closing balance till the payment date.
The current rate of finance charges is iupto 3.35% per month (40.2% per annum) from the transaction date and is subject to change at the discretion of SBI Cards & Payment Services Limited (SBICPSL). Finance charges, if payable, are subject to levy of applicable taxes and are debited to the Caredholder’s account till the outstanding on the card is paid in full. The minimum amount of Finance Charge levied on all transactions in the event of the Cardholder choosing not to pay his balance in full within payment due date, and on all cash advances taken by the Cardholder will be Rs.25 each, exclusive of applicable taxes.
- Finance charges on cash advances are applicable from the date of transaction until the payment is made in full.
This is a settled law that the terms and conditions of the agreement should be followed in all transactions between the consumer and the
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service provider. Honorable Apex Court in the judgementNew Bihar Biri Leaves Co. & Ors vs State Of Bihar & Ors on 6 January, 1981 Reported in 1981 AIR 679 has held that:-
“It is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim is qui approbat non reprobat, (one who approbates cannot reprobate). This principle, though originally borrowed from Scots Law, is now firmly embodied in English Common Law. According to it, a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest. That is to say, no party can accept and reject the same instrument or transaction (Per Scrutton L.J. Verschures Creameries, Ltd. v. Hull & Netherlands Steamship Co.; See Douglas Menzies v. Umphelby;)”
In view of the aforesaid judgement of the Honorable apex court it may be concluded that the complainant (as well as the bank)is bound to follow the terms and conditions of the agreement of the credit-card taken by him. The credit card account of the complainant has been submitted by the opposite party Bank which clearly shows that on most of the occasions of the transactions entered into by the complainant from the merchants in the purchase of goods, he did not pay the full amount or made a partial payment to the bank and thus delayed the remaining amount and in this way did not clear his account in full. The statement of account submitted by the bank is given below: —
The complainant has not controverted this above mentioned account statement submitted by bank and has not forwarded any other calculations and details of amount spent by him through the credit card therefore, under section 4 of the Bankers’ Book Evidence Act,1891 these account details taken to be proof of the transactions. This statement of account clearly shows that the bank has rightly debited the amount from the account of the component. On the other hand, the complainant has been failed to adduce any evidence or details of calculations with can show that the bank has wrongly debited the amount from his account. Consequently, no relieve can be granted to the complainant a short in the complaint.
Having heard the learned Counsel for the parties, and after going through the material and evidence available on record we are of considered opinion that no relief can be granted to the complainant as sought in the complaint. The complaint fails and deserves to be
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rejected. The judgement and findings recorded by the learned District Consumer Commission are fit to be set aside.
ORDER
The appeal is allowed. The judgment and order of the learned District Consumer Commission is set aside.
Let copy of this order be made available to the parties as per rules.
Rs.23,254/- deposited by appellant in appeal under Section 41 of the Consumer Protection Act, 2019 shall be refunded to the appellant alongwith interest accrued.
The Stenographer is requested to upload this order on the website of this Commission at the earliest.
( JUSTICE ASHOK KUMAR ) ( VIKAS SAXENA )
PRESIDENT MEMBER
Pnt.
