Andhra Pradesh

East Godwari-II at Rajahmundry

CC/13/2015

Sunkara Udaya Kumar - Complainant(s)

Versus

The Branch Manager, Indusind Bank - Opp.Party(s)

Ch.V. Prasad

29 Aug 2016

ORDER

                                                                                                                   Date of filing:   11.02.2015

                                                                                                                   Date of Order: 29.08.2016

 

BEFORE THE DISTRICT CONSUMER FORUM-II, EAST GODAVARI

DISTRICT AT RAJAMAHENDRAVARAM

 

                                       PRESENT:   Smt H.V. Ramana, B.Com., L.L.M.,   PRESIDENT(FAC)

                      Sri A. Madhusudana Rao, M.Com., B.L., MEMBER          

    

             Monday, the 29^th day of August, 2016

 

C.C.No.13 /2015

Between:-

 

Sunkara Udaya Kumar, S/o. Bhaskara Rao,

Hindu, aged about 50 years, 3^rd Floor,

Lalitha Apartment, Prakash Nagar, Rajahmundry.                            …        Complainant

 

                                    And

 

The Branch Manager, Indusind Bank,

Rajahmundry.                                                                                      …        Opposite party

 

 

            This case coming on 04.08.2016 for final hearing before this Forum in the presence of Sri Ch.V. Prasad, Advocate for the complainant and Sri E. Murali Sreedhara Babu, Advocate for the opposite party, and having stood over till this date for consideration, this Forum has pronounced the following:  

 

O R D E R

[Per Sri A. Madhusudhana Rao, Member] 

This is a complaint filed by the complainant U/Sec.12 of Consumer Protection Act 1986 to direct the opposite party to pay a sum of Rs.2,14,877/- towards compensation; award interest at 12% p.a. from the date of complaint till the date of realization and award costs.

2.         The case of the complainant is as follows:- It is submitted that the complainant is credit card holder vide No.4412850062709003 up to the credit limit of Rs.4,50,000/-. The said credit card allotment made against the deposit of Rs. 5 lakhs in the opposite party bank by name Indusind Bank, Rajahmundry. The above card is allotted the same to the complainant to enable to use the amount on credit basis accordingly. There from the allotment of credit card, the complainant used the same and accordingly made payments to his availed the amounts so far. The complainant further submitted that on 1.8.2013 where outstanding credit amount of Rs.2,43,718/- and same is confronted the opposite party bank. Thereby, the complainant was to discharge entire amount of Rs.2,43,718/- out of which the complainant paid Rs.45,000/- through cheque dt.30.7.2013 and subsequently day i.e. 1.8.2013 the complainant delivered another cheque for Rs.1,98,218/- and the same is kept into the opposite party bank box as usually. The same is intimated the opposite party call center as if on the same day, the complainant used to attend the opposite party bank for the payment, but the day, bank closed due to A.P. Bifurcations Protestants and called the bank closed as the day declare as bandh. Therefore, the complainant discharged the amount as on the day itself. Subsequently, the complainant received the information about the collection of the said cheque of Rs.1,98,218/-. The complainant further submitted that the opposite party bank did not accounted the said cheque payment but counted interest so far the amount and imposing unwarranted charges against the complainant account. The complainant further submit that the complainant deposits the amount of Rs.5 lakhs to the opposite party on 13.9.2012 and the opposite party bank promised to provide the rate of interest at Rs.9.5% p.a. and it was matured on 18.10.2013 and the complainant re-deposited the same. The same is matured on 23.11.2014. During course of credit card transaction being held between the complainant and the opposite party. While so before the maturity, the opposite party cancel the said deposited, credited the amount of Rs.5,24,671.45ps by deducting Rs.62,630.97ps without consent of the complainant. The complainant further submit that the opposite party of gross negligent manner by rate of Rs.19,089-26ps and imposed interest regularly and continuously and also adding unwarranted charges against the said reversed amount and thereby deducting the same from re-deposit of Rs.5,44,222/- same is recovered from immature deposit and not allowing the same at 9.5% interest and not allowing the same till 23.11.2014. By these acts, the complainant great loss and mental tension apart from the financial loss. Finally, the complainant got issued legal notice dt.21.10.2014 and 29.10.2014 to the opposite parties. The opposite parties received the same and kept quiet. Hence, the complaint.   

3.         The opposite party filed its written version and denied the allegations made by the complainant and the complaint is not maintainable either under law or on facts. This opposite party submits that this Forum has no territorial jurisdiction to entertain and prosecute the case, since under Cl. 41.2 of the agreement entered by the complainant and the opposite party, “all disputes are subject to the exclusive jurisdiction of the courts at Mumbai irrespective of whether any other court may have concurrent jurisdiction in the matter. In view of said understanding between the parties, this Forum jurisdiction is ousted. This opposite party further submits that the jurisdiction of civil court and consumer Forum are ousted since a specific arbitration clause is incorporated in the Agreement. This opposite party submits that, even after August, 2013, the complainant used the card till December, 2013. As per the accounts of the opposite party, the complainant is due a sum of Rs.3,51,382.72ps for the period 31.12.2013 to 12.1.2014. The total outstanding amount due under his credit card account is Rs.4,09,54.50 by such date. The relevant statement of account is sent to the complainant. The opposite party submits that as per the terms of the agreement Rs.5.00 lakhs which was deposited by the complainant is towards the security for the credit card issued by the opposite party to the complainant and it is pertinent to mention here that, in the event the complainant commits default in payment of the amount payable by him on the respective due dates, the opposite party has liberty and it is its discretion entitled to withdraw the credit facility immediately without notice to the card holder and besides that the opposite party having lien on the FDR can exercise its right of lien by pre-closing the FDR for recovery of the amount due. As the complainant failed to discharge his obligation, having waited for a considerable period, the opposite party had pre-closed the FDR on 21.10.2014 and recovered an amount of Rs.62,630.97ps from the FDR account of the complainant, the remaining balance under the FDR, with interest entitled on the said FDR, during that period, is credited to his SB A/c, the act of the opposite party is strictly in accordance with the agreement and there is no violation whatsoever. As is mentioned supra, the amount of interest or other charges claimed by the opposite party are in accordance with the agreement which is binding on the complainant, and there is no illegality in claiming said amounts from the complainant by the opposite party. The allegation that “the complainant is not allowed to transact the card” is due to his fault for not adhering to the payment schedule of the agreement, due to that, the opposite party is forced to keep the credit card in black list. The complainant is not entitled for any reliefs. Hence, there is no deficiency of service on the part of this opposite party and the complaint is liable to be dismissed with exemplary costs.

4.         The proof affidavit filed by the complainant and Exs.A1 to A7 have been marked for the complainant. The proof affidavit filed by the opposite party and Exs.B1 to B8 have been marked for the opposite party.

5.         Heard both sides.

6.         Points raised for consideration are:

 

1. Whether there is any deficiency in service on the part of the opposite party?

            2. Whether the complainant is entitled for the reliefs asked for?

            3. To what relief?

 

7.  POINT Nos.1 & 2:  On perusal of the record, we observed that the complainant herein is a credit card holder of the opposite party bank at Rajahmundry vide Credit Card No.4412850062709003 under Ex.A2 with a credit limit of Rs.4,50,000/-. Further, the complainant deposited an amount of Rs.5,00,000/- on 13.9.2012 with the opposite party bank vide Ex.A1 FDR Receipt and then the opposite party bank issued Credit card with a credit limit of Rs.4,50,000/-. The opposite party bank informed that an amount of Rs.2,43,718/- is outstanding in the credit card account of the complainant. Out of which, the complainant paid Rs.45,000/- on 30.7.2013 through cheque and the remaining balance of Rs.1,98,218/- also paid through cheque on 1.8.2013 which was dropped in the cheque box of the opposite party bank with information to the call centre of the bank. But, the opposite party did not credit the above said payment into the credit account of the complainant and calculated interest on the amounts amounting to Rs.19,089-26ps, though the complainant reminded the same to the bank, but the bank authorities did not rectify the mistake committed by the officials. The complainant got issued Exs.A5 & A6 notices on 21.10.2014 and on 29.10.2014 to the opposite party and the same were served to the opposite party vide Ex.A7 acknowledge-ments.

            The opposite party bank re-deposited the FDR amount deposited by the complainant on 13.9.2012 after it was matured on 18.10.2013 and the proceeds of FDR amounting to Rs.5,44,222/- was retained with a promise to pay 9.5.% interest on that and the maturity date of the FDR is extended up to 23.11.2014 as per Ex.B1 account copy. But, the opposite party bank prematurely cancelled the FDR and deducted Rs.62,630.97ps contained in Ex.A3 account statements pertaining to the complainant towards interest and charges on 12.11.2014 and the outstanding is ‘0’ debit balance. The opposite party bank credited the balance amount of Rs.5,27,671.40ps to the S.B. Account of the complainant without information though the maturity of the said F.D.R. is on 23.11.2014. But, we observed that the opposite party bank after deduction of the said interest and charges and informed the same to the complainant vide their letter dt.22.10.2014 under Ex.A4 and the balance amount of Rs.5,27,671.40ps credited to the account No.100012811471 as per Ex.B2 S.B. Account statement.     

            The opposite party denied the allegations made by the complainant and further contended that this Forum has no territorial jurisdiction to entertain this complaint as the jurisdiction as per the agreement entered by the complainant and the opposite party within the jurisdiction of Mumbai courts only and even as per the agreement, all disputes differences shall be settled by Arbitration Act, 1996 and the award given by such an Arbitrator shall be final, but not under this proceedings.

            The opposite party contended that the interest amount of Rs.19,089.26ps is legally entitled by the bank as per the agreement entered into by the complainant with the opposite party bank as per Ex.B4 Platinum Credit Card Agreement at the time of obtaining credit card.  So, as there was a delay in payment of regular amounts by the complainant on the respective due dates. The opposite party further submitted that even after August, 2013, the complainant used the credit card till December, 2013 and as per the account, the complainant is due a sum of Rs.3,51,382.72ps for the period from 31.12.2013 to 12.1.2014, the total outstanding amount is Rs.4,09,054.50ps under Ex.B3 account statement. Further, the F.D.R. obtained by the complainant for Rs.5,00,000/- is towards security for the credit card issued by the opposite party to the complainant. The opposite party has liberty and entitled to withdraw the credit facility immediately without notice to the cardholder besides having lien on the F.D.R. can exercise its right of lien by pre-closing the F.D.R. for recovery of the amount due. As the complainant failed to discharge the obligation, the bank waited for a considerable time, then pre-closed the F.D.R. obtained by the complainant on 21.10.2014 and recovered an amount of Rs.62,630.97ps. So, there is no negligence or deficiency in service committed by the bank in this case. The opposite party agreed that they did not issue any reply to the complainant’s demands in the notices as the contents of the notices are false, concocted and invented by the complainant.

            We observed that as per Exs.B5 to B7 account statements pertaining to the complainant maintained by the opposite party, the complainant failed on several occasions to pay the due installment amounts to the opposite party bank and so, the opposite party bank used to collect charges on the closing balances on the credit card account pertaining to the complainant from 12.7.2013 to 12..5.2014 as per Ex.B8 abstract of charges levied by the bank. We further observed that the bank authorities kept the complainant’s credit card in blacklist due to the fault by the complainant for not adhering to the payment schedule as per the agreement. We further observed that the opposite party contended that they have lien on the F.D.R. obtained by the complainant and as the credit balance including interest is crossing the credit limit of the complainant, they have no other option, but to cancel the F.D.R. to recover their amounts from the complainant credit cardholder on 22.10.2014 and the complainant withdrawn an amount of Rs.5,34,000/- from the said S.B. Account on 12.01.2015.

            The opposite party cited the clauses enunciated in the Credit Cardholders Agreement as per Clause 22.1 under loan installments programmes: IndusInd Bank reserves the right to, at its sole discretion, make available to individual Cardholder loan installment programmes on the Credit Card, without prejudice to the obligation of the Cardholder to make immediate payment on the incurring of a charge. The Cardholder acknowledges that the installment facility is available at the sole discretion of the Bank and only to select Cardholders; (i) no Cardholder may claim a vested right to avail of such facility; (ii) such facility will be available for such period as the Bank may decide; (iii) the interest component, down-payment, transaction fee, tenure of payment of the Equated Monthly Installments (EMIs) may be Cardholder specific as decided by the Bank from time-to-time.   

As per Default Clause 26 under 26.1: The occurrence of any of the following events shall be deemed as an instance of default. Events that qualify as an instance of default are as under:

26.1.1 : The Cardholder fails to pay any amount due to the Bank within the stipulated period.

26.1.2: The Cardholder fails to perform the obligations as per these terms and conditions or contravenes any of the terms and conditions herein.

26.2: In the event of default, the Cardholder will be sent reminders from time-to-time by representatives of IndusInd Bank including third parties appointed by IndusInd Bank for settlement of any outstanding on the Card Account, by post, fax, and telephone, electronic mail, SMS messaging and/or engaging its representatives to remind, follow up and collect dues and further withdraw all Credit Card facilities under (26) 2.1, demand the Cardholder to pay immediately on outstanding balance of the card. As per Clause (26) 2.3 exercise the bank right to lien and set off the amount outstanding against any monies/deposits maintained by the Cardholders with the Bank and proceed independently any right of lien/letter of to recover outstanding in lawful manner. The bank without prior notice to the Cardholder disclose RBI or CIBIL or any other Credit Bureau authority or any government authority, the identity of the Cardholder and the bank shall be entitled to withdraw any default report at its sole discretion in the event.   

 

 

            The opposite party bank relied upon the following judgment in Tarun Kumar Banerjee Vs. Bank of India & Anr. : III (2015) CPJ 13 (NC), in which it was held that as per contract, bank had lien over fixed deposit receipts of complainant and it was entitled to exercise right of set-off between the amount due and payable to bank against the deposits, securities and other assets of complainant, which is rightly applicable to the facts and circumstances of the present case.

            With the discussion held supra and after perusal of the above decision relied on by the opposite party bank, we are in the considered opinion that there is no deficiency of service on the part of the opposite party bank and the complaint is liable to be dismissed.      

                                      

8.   POINT No.3:  In the result, the complaint is dismissed, without costs.

 

Typed to dictation, corrected and pronounced by us in open Forum, on this the  29^th day of August, 2016.

    

                Sd/-                                                                                                Sd/-

              MEMBER                                                                              PRESIDENT(FAC)

         

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

 

FOR COMPLAINANT: None.                                         FOR OPPOSITE PARTY: None.

 

DOCUMENTS MARKED

 

FOR COMPLAINANT:

 

 

Ex.A1    Deposit Bond.

Ex.A2    Credit card issued by the opposite party.

Ex.A3    Statements served by the opposite party.

Ex.A4    Letter served by the opposite party.

Ex.A5    Legal notice dt.21.10.2014.

Ex.A6    Legal notice dt.29.10.2014.

Ex.A7    Postal Receipts.

 

 

FOR OPPOSITE PARTY:-  

 

Ex.B1    Indus Ind Bank Credit Card Holders Agreement.

Ex.B2    Indus Ind Bank Platinum Credit Card Statement of the complainant.

Ex.B3    Statement of account of complainant in respect of his SB account.

Ex.B4    Statement of account of complainant in respect of his FDR account.

Ex.B5    Copy of Features and Benefits and Terms and conditions of credit card.

Ex.B6    Statement.

Ex.B7    Statement.

Ex.B8    Abstract of charges.

 

                  Sd/-                                                                                             Sd/-

              MEMBER                                                                              PRESIDENT(FAC)