Hon’ble Mr. Haradhan Mukhopadhyay, President.
The basic fact of the case of the Complainant in few words is that, the Complainant Amit Sarkar is a Medical Representative having Salary account cum SB Account bearing No. 00691140007958 at HDFC Bank, Ahmedabad branch. The Complainant received a Credit card as per proposal of the OP with a Credit limit upto Rs.3,00,000/-. At the time of delivery of Credit card by OP-1, he did not sign any terms and conditions. After receiving such Credit card, the OP offered interest free loan upto Rs.18,000/- which the Complainant availed of on 13.01.2017. The OP received EMI from 05.02.2017 to 05.01.2018 Rs.18,000/- with interest Rs.1179.20/- from the Complainant. The Complainant regularly paid loan and the OP issued Credit card facility. Bill was also prepared against purchase from 16.12.2016 to 15.01.2017. Total amount was deducted by the OP unfortunately from the SB Account of the Complainant on 05.02.2017. The OP deducted only Rs.1,824/- on 05.02.2017 instead of Rs.4758.32/-. Thus the OP illegally deducted lesser amount and illegally charged for financing charge for minimum due from the account of the Complainant in every month. But the Complainant had sufficient balance for Rs.67,505.42/-. The Complainant purchased to the tune of Rs.38,794.24/- + Rs.18,000/- loan amount i.e. total Rs.56,794.24/- as received by the Complainant. But the OP illegally received finance charge from the Complainant for Rs.24,180.82/-, late fee Rs.2,868/-, total Rs.27,048.82/- illegally. The Complainant served a legal notice to the OP on 22.02.2019 for such illegal deduction of finance charges and late fees. The Complainant filed a written complaint to the OP to stop credit facility by registered post on 25.04.2019 but the OP did not reply. The Complainant also filed RTI petition against which they also did not reply. Hence the present case is filed. The cause of action arose on 16.12.2016 and on subsequent dates. The Complainant therefore prayed for an award for refund of Rs.27,048/- towards finance charges and late fees with up to date interest, Rs.25,000/- against non-reply of RTI petition, Rs.1,00,000/- towards deficiency in service and Rs.30,000/- towards litigation cost.
The OP HDFC Bank contested the case by filing written version wherein they have denied most of the allegations. The positive defence case of the OP in brief is that, Bank/financial institution never provide any interest free loan. The EMI deducted on account of the insta loan of Rs.18,000/- was divided into two parts: (1)installment principle and (2)installment interest which clearly shows that the interest was charged on the loan from the very first day. The Complainant intentionally waited and enjoyed the service of the credit card by swiping it at various places till 05.01.2018. The monthly statements indicating the dues were regularly sent to his registered email address. The SMS intimations were also sent to the Complainant on a monthly basis since September'2017. In spite of receiving all the monthly statements regularly, the Complainant did not raise any objection or dispute regarding the same within the prescribed sixty days time frame. At the time of application of the credit card on 25.11.2016, the Complainant selected the option TAD (Total Amount Due) which means that the Complainant was ready and willing to pay the total due amount as and where the statement is generated. Subsequently on 14.12.2016 at 5.35 p.m. the Complainant lodged net banking with his personal ID and verified with password and changed the option of TAD to MAD (Minimum Amount Due). Since the Complainant himself had selected MAD option, he cannot expect the Bank to deduct the total outstanding. Thereafter, he himself had once again changed the auto pay mode from Minimum Amount Due to Total Amount Due on 10.07.2017 via net banking. An SMS was also sent to the Complainant on 13.07.2017. The Complainant again changed the mode on 30.07.2017. Again SMS was sent on 02.08.2017. The same thing continued for months and a corpus amount was accumulated as unpaid balance of credit card. The Complainant himself changed the mode and the Bank simply compiled as per the request of the Complainant. The self prepared calculation sheet by the Complainant does not have any acceptability legally since the Complainant has submitted the statement of account generated by the OP as per the RBI rules and guidelines. The Complainant admitted that he purchased goods for Rs.56794/- using the credit card but forgotten that the excess amount charged is the interest over the balance amount accumulated every month after deducting the Minimum due and the interest kept on accruing. Having received the legal notice, the OP replied through their advocate Krishanu Poddar on 18.04.2019 stating the factual position and that the Complainant was in possession of the documents connected to the credit card like card-member agreement and MITC but failed to abide by the card usage guidelines. The OP did not receive any request from the Complainant to stop the credit card facility. Moreover, the facility cannot be stopped until and unless the dues are clear. The dues are public money and after a stage would turn into an NPA which cannot be stopped at the whims of a defaulting customer. It is true that the OP sent an email dated 05.07.2019 and claimed legal amount of Rs.30,842.68/-. The said account was set on hold as per banker's lien and right of set off which are mentioned in the card-member agreement and MITC(Most Important Terms & Conditions). The OP appeared before the CA&FBP, Cooch Behar on 13.08.2019 but the matter was not settled. The financial dispute related to transactions by using credit card led the Complainant to file the present case against the OP for unauthorized deduction of money and charging interest upon the Complainant. In order to proper adjudication of all the questions involved in this case, the following points are required to be decided.
POINTS FOR DETERMINATION
- Whether the present case is maintainable in its present form and prayer?
- Whether the Complainants are entitled to get any relief as prayed for?
- To what other relief if any the Complainants are entitled to get?
DECISION WITH REASONS
Point No.1.
The OP challenged the case on two main points on the ground that the present case is not maintainable and this Commission does not have jurisdiction to entertain the present case.
In course of argument, Ld. Defence Counsel did not agitate over those two points. However, having perused the pleadings of the parties and evidence on record that the case is maintainable in its present form and prayer. The relief claimed is well within the pecuniary jurisdiction as well as territorial jurisdiction of this Commission.
Accordingly, point no. 1 is answered in affirmative in favour of the Complainant.
Point No.2 & 3.
These points relate to ascertainment as to the entitlement of relief by the Complainant.
The Complainant in order to substantiate the case, adduced both oral evidence in the form of evidence on affidavit and documents in different annexures like Annexure-A to L.
It is the admitted position that the Complainant had a credit card bearing No. 5522605002048282 with a Credit limit upto Rs.3,00,000/- with the OP Bank. The Complainant claimed that he did not sign any terms and conditions. The specific case of the Complainant is that after receiving the credit card, the OP offered interest free loan upto Rs.18,000/- which the Complainant availed on 13.01.2017 with 12 EMIs. OP received the EMI on 05.02.2018 to 05.01.2018. Annexure-A is the statement of account which supports the contention of the Complainant.
It is further case of the Complainant that the OP received EMI on 05.02.2017 to 05.01.2018 and interest charged Rs.1179.20/- is illegal. The credit card statement filed by the Complainant reveals that the Complainant used the said card on different dates for purchase.
Although the Complainant took the plea that he did not sign any terms and conditions, yet it is the settled position of law that the user of the card has to follow and abide by certain terms and conditions.
It is the specific defence plea that, OP Bank never ever offered interest free loan to the Complainant. In fact, there is no document to show that the said loan was free from any interest. As per the defence case, Annexure-C provides for that the EMI deducted on account of insta-loan of Rs.18,000/- was divided into two parts: (1) installment principle, (2) installment interest which was very well within the knowledge of the Complainant. The Complainant would have approached the Bank when the first statement was generated on 05.02.2017. The Complainant intentionally waited and enjoyed the services of the credit card by swiping at various places till 05.01.2018.
Annexure-C series supports the defence contention.
Accordingly, the OP could discard the said case of the Complainant.
The Complainant did not cross-examine the OP on the said specific defence case. The OP further defended the case on the ground that the SMS intimations were sent to the Complainant on a monthly basis since September, 2017. Email statements were also sent. Despite receiving the monthly statements, the Complainant did not raise any objection.
That part of defence case stands unchallenged since there is no cross-examination in this respect.
It is the further defence case that the Complainant selected the option TAD which means that the Complainant was ready and willing to pay the total due. Subsequently on 14.12.2016 at 5.35 p.m. the Complainant loged in to Bank’s net banking and changed the option of TAD to MAD.
Annexure-B supports the contention of the OP. Thereafter the Complainant once again changed the auto pay mode from MAD to TAD on 10.07.2017. He once again changed the auto pay mode from TAD to MAD on 30.07.2017. Annexure-B supports the contention of the OP. Thus the defence plea that the Complainant changed the mode of debit and the bank simply complied with the request of the Complainant stands established. So, the defence contention that allegation of deduction less amount is not acceptable stands proved.
The OP further contented that the Complainant purchased goods amounting to Rs.56,794/- using the Credit card but the excess amount that accumulated every month after deducting the minimum due only every month and the interest kept on accruing.
The OP also proved Annexure-A being the credit card brochure in the name of the Complainant Amit Sarkar which shows that the Complainant duly signed the said application form. He also put a tick mark on the consent box of the declaration portion.
Therefore, the contention of the Complainant that he did not sign the terms and conditions of the credit card does not hold good.
The Complainant further claimed that he filed written petition to the OP to stop the credit facility through registered post on 25.04.2019 but the OP did not stop it despite receiving the notice. In this respect, he filed a letter to the Branch Manager, HDFC Bank, Cooch Behar. The OP denied it to have served upon them. The Complainant could not prove any supporting document like AD Card or Postal receipt or track report of postal department to establish that the said letter was served upon the OP. Since the OP denied to have received the said notice, so the Complainant had to prove it upto the hilt that the said letter was served upon them.
The OP further pleaded in defence and also made a prayer to the Commission for treating their W/V as evidence on affidavit. Accordingly, as per Order No.18 dated 02.11.2021, the W/V was treated as evidence on affidavit Contention of the OP that the said account was set on hold as per Banker’s lien and right to set off as per RBI guidelines, MITC and card-member agreement. “Annexure-L” is a letter dt.11.11.2019 sent by the O.P to the Complainant wherein the O.P informed the Complainant about the dues.
The Complainant could not discard the said defence plea in as much as Annexure-A filed by the OP contains different terms & conditions against the credit card brochure cum application form, wherein the Complainant signed the declaration.
In the backdrop of the aforesaid discussion made herein above and the conclusions arrived at thereon, the Commission comes to the finding that the Complainant failed to establish the case upto the hilt.
Accordingly, points No. 2 & 3 are answered in negative.
Consequently, the Complaint case fails.
Hence, it is
Ordered
That the Complaint Case No. CC/121/2019 be and the same is dismissed on contest without cost. Case is accordingly disposed of.
DA to note in the Trial Register.
Let a plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.
