Ld Advocates for the parties are present. Judgement is ready and pronounced in open Commission in 8 pages 4 separate sheet of papers.

BY -    SRI ASISH DEB, PRESIDENT

Brief facts of the complainant’s case is that the Complainant is a permanent inhabitant of above mentioned address and O.P. No.01, which is established at above mentioned address within this jurisdiction. The O.P. No. 02 is a necessary party in c/w the subject matter of this case, and having same liabilities with O.P. NO.-01. The Complainant is a service holder of an educational institute, namely Global Institute of Science & Technology, Hatiberia, Haldia, Purba Medinipur. The Complainant opened a bank account at O.P’s branch at Haldia by instruction from the said Institution, for receiving salary of the Complainant, which is also treated as a Salary A/C, like other colleagues at branch of O.P. No.-1. The Complainant opened a bank account at O.P. No.-1 AXIS Bank Ltd. Haldia Branch bearing A/C No.- 910010006056008. At the time of opening said salary account ,officer of O.P. No.-1 approached to sign several documents and papers for opening account and the Complainant signed everything on good faith as per instruction of O.P No.-1.After some days from the opening of said account of the Complainant, O.P. No.-1 Haldia Branch sent two credit cards one in the name of the Complainant and another in the name of his wife bearing credit card No. 5305620200576623 & 5305620200576631 accordingly, on the same day the Complainant  approached to O.P., No.1 for returning the said credit cards as these were not necessary, but on request of the Officer of O.P. No.-1, Haldia  Branch the Complainant and his wife kept said cards ; but till date the Complainant or his wife did not use said cards in anywhere for a single time. The Complainant and his wife never applied for credit card to O.P. members but said both Credit Cards were issued by O.Ps in the year 2015. The Complainant’s mobile NO. 9434453227 was registered for getting SMS with details of all transaction as Bank’s norms in connection with the said A/c including account relating to said card. As per instruction from the said Institution, the Complainant closed his account through an application on dated 21.12.2017 by submitting Pass Book, Debit Card, Credit Card, Cheque Book to O.P. No.-01 Bank. The said salary A/c of the Complainant was closed on 21.12.2017 and he surrendered as well as returned his Debit & Credit Cards in O.P’s Haldia Branch, thereafter the Complainant received one message in his mobile phone regarding blockage of his debit card but bank further sent said credit cards to the Complainant. At the same time O.P bank refused to accept the said Credit Card, at that time bank disclosed before the Complainant that Credit Cards processing is not done by the op-1 and they refused it. Thereafter, unfortunately the Complainant received one message on 16.05.2018 regarding payment of Rs. 9065/- and after receiving of said message he met with O.P. No.1 Haldia Branch and informed regarding the matter but it is great regret that bank/Ops did not help him. On the same day complainant agitated before personal manager as well as other officers and they assured him for solving the problems and investigate the matter. Since the opening date of A/C till 26.04.2018 there was no disturbance, but on 27.04.2018 suddenly the Complainant received a message on the said mobile No. that “Now convert the outstanding on this Axis Bank Credit Card into easy EMIS, Simply call 18605005555 to avail the offer. Offer ends on 07.05.2018. To Apply from: BW_AXISNR.”. On 16.05.2018 again the Complainant received a message that “The Credit Card payment is seriously over due. Please clear min dues of INR 9056 within 24 hrs. BH AXIS BANK.” After getting such types of message immediately the Complainant met with O.P’s bank, but O.P. NO.-01, Haldia Axis Bank officials did not help to the Complainant on that day. Again the Complainant went to the branch on 17.05.2018, for getting help from Personal Manager and then on officer provided him a statement of the said Unauthorized Transaction, the officer shared with the Complainant that the Unauthorized Transaction was made by using a mobile App namely “Pay Zapp Wallet Lad”. And advised the Complainant to lodge a General Dairy to the nearest Police Station and advised to contact after 7-8 days to the bank of O.P. No.-01. The Complainant lodged a GDE No.-900 dated 17.05.2018 before Haldia P.S. and it was informed to O.P. No.-01. Thereafter, O.P. No.-01 received complaint from the Complainant and supplied him a statement details and O.P. assured to the Complainant to solve the problems within 7 days but in vain. The personal manager of O.P.-1 Haldia Branch supplied a copy of complaint/information regarding said mater on 25.05.2018 to the Complainant and advised to contact after some days. On 04.06.2018, Personal Manager of the said bank gave a information that, the Unauthorized Transaction was made by Nita, Taherpur, Mob” 7699679160, th Floor, Nagaland House, 11 Shakespeare Sarani, Kolktata-700071 on 7^th June, 2018, on or around 11 a.m. to 12 a.m. They advised to the Complainant at their best, they said that it is under process of Head Branch, Axis Bank, Mumbai and complainant will get back a reply from them within 1-2 months. After several reminder and request to O.P. members and their Kolkata head office to solve the matter but in vain. O.Ps intentionally, deliberately, grossly neglected to save their consumer and for that they are fully liable and responsible. It is great regretting the O.Ps intentionally, deliberately, afterthought , with ill intention and ill motive they sent to the Complainant a demand notice on dated 28.09.2018 through “Om Gurjar Law Chambers” and illegally demanded Rs. 59,000/- from the Complainant. The demand of said amount from the Complainant by the Ops is fully false, baseless, illegal, unlawful and bad in law; no such payment was due from the complainant. After receiving of said notice the Complainant sent reply to the Ops on 25.10.2018 through registered post and same was received by O.P members. Thereafter O.P. intentionally sent demand notice through their advocate on 31.10.2018 demanding amount of Rs. 75,928,11/- along with future interest of 21% p.a. from the Complainant, said demand is fully false, baseless, illegal, The Complainant day after day requested to Ops for issuing the clearance certificate and solve the matter but in  vain. No such payment was due from the Complainant. The Complainant did not use the credit cards for a single time ;so no such dues are pending to the O.Ps after several demand on several occasion O.P. No.-01 did not supply any clearance certificate or no dues certificate or close or stop the credit cards.. The Complainant on several occasions requested to the O.P. No.-01 for issuing NOC or clearance certificate and take return back the credit card from the Complainant but no fruitful result comes out from O.ps side.  Owing to said occurrence and such types of behaviour of O.P. NO.-1, the Complainant fell in a hardship and suffering a lot of mental pain and agony. After dated 31.10.2018 the Complainant several times met with O.P. No.-1 but it intentionally harassed day after day to the Complainant. The complainant submits that, the Ops are not interested to solve the problems. The cause of action arose on and from 16.05.2018 and 31.10.2018 accordingly. In the aforesaid circumstances,  the Complainant has been constrained to take the shelter of law. Under such circumstances, the Complainant humbly prays for passing necessary order directing the ops for providing NOC/Clearance certificate/No dues certificate to the Complainant in respect of the credit cards of the Complainant and his wife, for closing the A/c in connection with credit cards in respect of account No. 910010006056008, for compensation for harassment, mental pain and agony etc. of Rs. 50,000/-, for litigation cost of Rs. 10,000/-.

Notices of the case were duly served upon the ops. The OPs have contested the case by filing a joint written version thereof. The sum and substance of the written version can be stated as follows: The Complainant can not get any relief from the Opposite Party which he has prayed in this complainant. According to ops this case is liable to be dismissed with cost. The ops have added that the Complainant himself admits in paragraph 15 of the complaint that he visited the branch on 17.05.2018 i.e. more than 1 month after the first challenged transaction made on his credit card on 05.04.2018. It is pertinent to mention that the complainant did not contact the Bank even after receiving of the SMS on 27.04.2018 for conversion of the expenses into EMI. All the credit card holders are guided by the card member agreement. It is clearly laid down in clause 20.1 of the said card members agreement that the card holder shall immediately report to the bank of any unauthorized transaction and he must also lodge an FIR and supply the Bank with a copy of the same. A copy of the card members agreement is annexed hereto and marked with Annexure “D”. In the instant case the Complainant nor informed the bank about such unauthorized transaction immediately neither produced a copy of the FIR till date. The Complainant has not come up with clean hand and is trying to evade the amount due to the bank. It is specifically denied that the bank has advised the complainant to lodge a GDE and contacted the bank after 7-8 days. The Complainant himself has created the concocted stories to evade the responsibility of payment of the dues. It is also denied that any such information in regard to one Nita taherpur mob 7699679160 email. . The said transactions were done through a secured mode and no one can have access to the said transactions without the card details i.e. the card number, expiry date and the CVV number. The complainant has been in possession of the card all the time and has been receiving SMS in his registered mobile number all the time as the same has already been admitted by the complainant. Even for a stretch of imagination if it is that the said transactions were fraudulent in nature then also the said transactions could not have happened if the complainant did not have shared his card details and the OTP number received in his mobile number. For the fault of the complainant the OP bank could not be made liable. With reference to paragraph 19-20 of the complaint, ops deny and dispute all the allegations therein save and except what are the matters on record. It is specifically denied that the OP bank has stated he complainant that he will get a reply within 1-2 months. With reference to paragraph 21-34, the OP bank denies and disputes all the allegations save and except what are the matters on record. It is false to allege that Opposite Parties sent demand notice dated 28.09.2018 through “Om Gurjar Law Chambers” or illegally demanded Rs. 59,000/- from the complainant or demanding said amount from the complainant is fully false, baseless or illegal or unlawful or bad in law or no such payment was due from the Complainant or after receiving such notice the Complainant sent reply to Opposite Parties on 25.10.2018 through regd. Post or same was received by Opposite Party members or Opposite Party intentionally or malafidely sent notice through their Advocate on 31.10.2018 demanding a sum of Rs. 75928.11 or along with future interest of 21% per annum from the Complainant or such demand is fully false or baseless illegal or unlawful or bad in law or no such payment was due from the Complainant. The OP bank has already sent a reply to the Complainants application on 19.09.2018 addressing to the Complainants quarry. The said reply has been annexed hereto and marked as Annexure “E”. It is only after the said reply explaining the current situation to the Complainant; the OP bank has issued the said demand notice through its advocate. The Op bank has followed the due process of law and justice by asking the Complainant to clear of the dues. The Op Bank cannot be held responsible for the negligence of the complainant. In fact the complainant is trying to evade the repayment of the dues by creating such situation. It was the duty of the Complainant to provide the bank with the copy of the FIR which the Complainant ill date has not provided. It is denied that the Complainant has not used the credit card for a single time. It is baseless to claim that the complainant did not use credit card for a single time or no such dues to be pending or after several demand or on several occasion Opposite Party No.-1 did not supply any clearance certificate or no dues certificate or close or stop the credit card or complainant day after day or ever requested Opposite Parties for issuing clearance certificate or solve the matter or in vain or the complainant or on several occasion or ever requested Opposite Party No.-1 for issuing NOC or clearance certificate or return back the credit cards from the Complainant or with no fruitful result or Opposite Parties did not take any proper step over the  matter or Opposite Parties deliberately or willfully or intentionally did send NOC or did not return back credit card from the complainant or due to any alleged occurrence or any type of behavior of Opposite Party No.1 put the complainant in hardship or suffered mental pain or agony or after 31.10.2018 or ever or Opposite Parties are not interested to solve the problem. As the due of the said credit card is still outstanding hence the question of issuance of NOC does not and cannot appear at all. The OP bank has already initiated Arbitration proceedings in the said matter and the complainant by filing the instant application trying to avoid the due process of law. The dispute arisen herein is Arbitrable in nature and the complainant is always free to appear before the Ld. Arbitrator and address his grievance. A copy of the reference letter is annexed hereto and market as annexure ‘F’. Section 5 & 8 of the Arbitration Act also bars the jurisdiction of any judicial authority to entertain any app0lication wherein arbitration agreement is existing in between the parties. Clause 33.1 of the card member agreement already annexed s annexure “D” clearly states that any dispute and or differences shall be referred t arbitration, hence, this complaint is liable to be dismissed and the complainant may be directed to appear before the Ld. Arbitrator to resolve its dispute. It may be noted that the complainant and his wife applied for separate credits cards which were issued as per their request and those credits cards remained in their custody up to 18.05.2018 on the date when the complaint made an application to the Opposite party Bank for blocking those cards.According to the ops there was no deficiency of service on the part of the ops which will be evident from the averments of the complaint itself; as such the case is liable to be rejected summarily.

Upon careful reading of the pleadings of the parties and anxious consideration of the rival arguments of the Ld Counsel for the parties following points for determination are framed.

Points for determination are:                                                  

1. Is the case maintainable in its present form and in law?    

2. Is the Complainant entitled to the relief(s) as sought for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

We have carefully perused and assessed the complaint on affidavit of the complainant, written version filed by op, evidence of both parties, and other documents.We have given thoughtful consideration of the rival arguments of Ld Advocates for both parties.

Having regards had the facts and circumstances of the case it is evident that Complainant opened a bank account at O.P. No.-1 AXIS Bank Ltd. Haldia Branch bearing A/C No.- 910010006056008. After some days from the opening of said account of the Complainant, O.P. No.-1 Haldia Branch sent two credit cards one in the name of the Complainant and another in the name of his wife bearing credit card No. 5305620200576623 &5305620200576631. The complainant now alleges that the ops have committed some deficiency in service and unfair trade practice. bundle of facts indicate that the complainants have cause of action against the ops. The case is maintainable in its present form and in law.

After careful consideration of the facts and circumstances of the case and on perusal of documents filed by the complainant that complainant is not at all at fault in the instant case and took all kinds of possible action to report the unauthorized transactions to police. On 16.05.2018 the Complainant received a message that “The Credit Card payment is seriously over due. Please clear min dues of INR 9056 within 24 hrs. BH AXIS BANK.” After getting such types of message immediately the Complainant met with O.P’s bank, but O.P. NO.-01, Haldia Axis Bank officials did not help to the Complainant on that day. Again the Complainant went to the branch on 17.05.2018, for getting help from Personal Manager and then on officer provided him a statement of the said Unauthorized Transaction, the officer shared with the Complainant that the Unauthorized Transaction was made by using a mobile App namely “Pay Zapp Wallet Lad” and advised the Complainant to lodge a General Dairy to the nearest Police Station and advised to contact after 7-8 days to the bank of O.P. No.-01. The Complainant lodged a GDE No.-900 dated 17.05.2018 before Haldia P.S. and it was informed to O.P. No.-01. Thereafter, O.P. No.-01 received complaint from the Complainant and supplied him a statement details and O.P. assured to the Complainant to solve the problems within 7 days but in vain.The personal manager of O.P.-1 Haldia Branch supplied a copy of complaint/information regarding said mater on 25.05.2018 to the Complainant and advised to contact after some days. On 04.06.2018, Personal Manager of the said bank gave a information that, the Unauthorized Transaction was made by Nita, Taherpur, Mob” 7699679160, th Floor, Nagaland House, 11 Shakespeare Sarani, Kolktata-700071 on 7^th June, 2018, on or around 11 a.m. to 12 a.m. They advised to the Complainant at their best, they said that it is under process of Head Branch, Axis Bank, Mumbai and complainant will get back a reply from them within 1-2 months. After several reminder and request to O.P. members and their Kolkata head office to solve the matter but in vain. O.Ps intentionally, deliberately, grossly neglected to save their consumer and for that they are fully liable and responsible.

It appears that the complainant has left no stone unturned as per practicable for general customer to resolve the matter of unauthorized transaction but the ops did take any positive step to unearth the source of such fraudulent act .It has been admitted by op-1 that on 18.05.2018 the complaint made an application to the Opposite party Bank for blocking those cards. If that be sohow a transaction of Rs. 2450/- could be made by the complainant as alleged by the op; due to the negligence acts of the ops such type of incident of transaction may occur by any third person even. No investigation was done by the ops. The op-1 has nexus with op-2 ;the Credit Cards are issued at the behest of the op-1;sometime they share same premises or tables side by side to operate their business with the customer who opens accounts in the bank and when any fraudulent acts are reported ,the bank officials try to wash their hands like the case in hand.The ops in their written version falsely stated It is false to allege that Opposite Parties sent demand notice dated 28.09.2018 through “Om Gurjar Law Chambers” or illegally demanded Rs. 59,000/- from the complainant or demanding said amount from the complainant is fully false, baseless or illegal or unlawful or bad in law or no such payment was due from the Complainant or after receiving such notice the Complainant sent reply to Opposite Parties on 25.10.2018 through regd. Post or same was received by Opposite Party members or Opposite Party intentionally or malafidely sent notice through their Advocate on 31.10.2018 demanding a sum of Rs. 75928.11 or along with future interest of 21% per annum from the Complainant or such demand is fully false or baseless illegal or unlawful .

The ops instead of giving a satisfactory investigatory report regarding the  alleged transaction, the OP bank has issued the demand notice through its Advocate. Even, the ops initiated Arbitration proceedings in the said matter.

There is no iota of evidence on record on the part of the ops that its took any action following the circular No. RBI/2017-18/15 DBR.NO. Leg.BC.78/09.07.005/2017-18 dated July 6,2017 issued byRBI on the C P Act- limited liability of customers in unauthorized Electronic Banking Transactions as well as earlier circular no-DBODLEG.BC.86/19.07.007/2001-2002dated April 8,2002. With a view to redressing the grievances of the customer in this regard  in cases where banks are at fault the banks should compensate customer without demur; in case where neither  the bank is at fault nor the customer is at fault but the fault lies elsewhere in the system, then also the bank should compensate the customer. From the preponderance of evidence it is evident that the Complainant closed his account through an application on dated 21.12.2017 by submitting Pass Book, Debit Card, Credit Cards, Cheque Book to O.P. No.-01 Bank. The said salary A/c of the Complainant was closed on 21.12.2017 and he surrendered as well as returned his Debit & Credit Cards in O.P’s Haldia Branch, thereafter the Complainant received one message in his mobile phone regarding blockage of his debit card but bank further sent said credit cards to the Complainant. At the same time O.P bank refused to accept the said Credit Cards, at that time bank disclosed before the Complainant that Credit Cards processing is not done by the op-1 and they refused it. The ops ought to have taken necessary steps for closing the Credit Cards along with the closure of account. Besides, the ops have failed to establish that ops sent any detailed message about the impugned transaction in the registered mobile number of the customer. It is crystal clear that ops had dealt with the complain of  its customer very negligently which put them into the mischief zone of unfair trade practice and deficiency in service. The complainant is entitled to getNo Dues Certificatefrom the ops, who are jointly and severally liable, in respect of the credit cards of the Complainant and his wife for closing the A/c in connection with credit cards in respect of account No. 910010006056008.

Both the points are disposed of accordingly.

Thus, the case succeeds.

Hence, it is

O R D E R E D

That CC/35 of 2019 be and the same is allowed on contest against the ops.

The ops, who are jointly and severally liable , are hereby directed to issue No Dues Certificate to the complainants in respect of the credit cards (of the Complainant and his wife) for closing the A/c in connection with credit cards in respect of account No. 910010006056008within 45 days from the date of this order.

In default, the complainant will get Rs. 200/- per day since after the date of expiry of said 45 days till the date of issuing No Dues Certificate.

 The Complainants would be at liberty to put the order into execution as per law.

Let a copy of the judgment be supplied to each of the parties free of cost.