Per Justice Sham Sunder , President This appeal is directed against the order dated 11.6.2010 passed by the District Consumer Disputes Redressal Forum-II, U.T.Chandigarh (hereinafter to be referred as the District Forum only), vide which it dismissed the complaint. 2. The complainant, held an account with OP No.3 Bank, in the year 2006, when he was working with Exl Services Ltd. at Noida . After shifting to Chandigarh, he was still, operating the same account, from Chandigarh Branch of the OPs. The letter dated 24.9.2008 Annexure C-1 was received by the complainant from OP No.2 on 1.10.2008 that some dues were pending against his Credit Card Account No.43467711005474326 and, therefore, they withheld a sum of Rs.56,092.79P, against his savings bank account, on the ground, that he failed to pay such an amount to the OPs. It was stated that the complainant neither got any Credit Card from the OPs, nor used the same, nor received any such letter earlier to Annexure C-1, showing any outstanding dues against him. He brought this matter to the notice of the OPs, through e-mail, and requested them not to withhold his account or any amount therein, on any such ground but, they did not pay any heed. Ultimately, legal notices were sent to the OPs, on 22.11.2008, and 21.1.2009, but the same were not replied to. Inspite of all that, the OPs illegally and fraudulently withdrew an amount of Rs.56,125.85Ps from the account of the complainant on 10.10.2008, as a result whereof, a cheque in the sum of Rs.40,000/- issued to one Sunil Arthur by the complainant, was dishonoured, due to insufficient funds in his account. It was further stated that the above acts of the OPs, amounted to deficiency, in service, and indulgence into unfair trade practice. It was further stated that due to dishonouring of the cheque, the complainant had to suffer mental tension, physical harassment and financial loss. When the grievance of the complainant, was not redressed, left with no alternative, he filed a complaint U/s 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only). 3. The OPs, in their written reply, stated that the complainant was issued the Credit Card, he received the same, and utilized the same. It was further stated that the credit availed of by him, against the Credit, Card was credited to his savings bank account. It was further stated that the complainant failed to clear the dues, against him, and the bank traced his another account, opened by him, with the OPs and in exercise of its right of lien, imposed a hold on his account. It was further stated that, in these circumstances, the OPs were neither deficient, in rendering service, nor indulged into unfair trade practice. 4. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint. 5. Feeling aggrieved, the instant appeal, was filed by the Appellant/complainant . 6. When the appeal was listed for arguments on 11.5.2011, none put in appearance, on behalf of the appellant. A perusal of the appeal file shows that none put in appearance, on behalf of the appellant, on 20.1.2011, 31.1.2011 and 24.3.2011. This clearly showed that the complainant was not interested in pursuing the appeal. However, we are of the considered opinion that the appeal should be decided, on merits, than by default. 7. We have heard the Counsel for the respondents, and have gone through the evidence, and record of the case, carefully. 8. The Counsel for the respondents, submitted that, the complainant opened a saving bank account with the OPs, in the year 2006, at Noida, when he was posted there. He further submitted that thereafter he shifted to Chandigarh, but he continued operating that account. He further submitted that a credit card was issued to the complainant, and he utilized the same. He further submitted that a sum of Rs.56,125.85p was due against the credit card, which was issued, and was utilized by the complainant. When despite notices, the payment was not made, by the complainant, left with no other alternative, a lien was created, in respect of that amount on his saving bank Account, in exercise of the right of the OPs under the provisions of law. He further submitted that, as such, withdrawal of amount of Rs.56,125.85p, which was due against the complainant, against the credit card, from his saving account, did not amount to deficiency in service, nor indulgence into unfair trade practice. 9. After giving our thoughtful consideration, to the submissions made by the Counsel for the respondents, and, on going through the grounds of appeal, and also the record of the case, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. The first question, that falls for consideration, is ,as to whether, the complainant was actually issued the credit card, on the basis of his request, made to the OPs, and he utilized the same. Annexure B is the duplicate statement/credit card statement showing the number of the credit card as 4346 7710 0547 4326 which was issued to Nishant Rao complainant. It is evident, from this document, that he utilized the facility of this card on 10.12.2004. It is further evident from Annexure ‘A’ a document produced by the OPs, that there is an entry dated 2.11.04 with regard to Cash on Call of Credit Card and the number of the credit card mentioned was 4346 7710 0547 4326 which was issued in the name of the complainant. Annexure ‘C’ is the document which was placed, on record. It is also evident from Annexure C that credit card NO. 4346 7710 0547 4326 was issued in the name of the complainant, by the OPs. Similar is the position reflected in Annexure ‘D,’ another document placed, on record, by the OPs. It is also evident from this document that this Credit Card was duly utilized, by the complainant. No cogent and convincing evidence, contrary to these documents, was produced by the complainant, to prove his assertion, that he was neither issued the Credit Card nor he utilized the same. The District Forum was, thus, right in coming to the conclusion, on the basis of these documents, that the Credit Card aforesaid, was issued, in the name of the complainant and he utilized the same. 10. The next question, that falls for consideration, is, whether the bank can mark its lien, on the saving bank account of the customer, if he fails to make payment, due against him, on the basis of credit card. Notice Annexure P-1 dated 24.9.2008 was issued to the complainant, by the OPs, whereby, he was intimated that the Credit Card balance as on 24.9.2008, against him, was Rs.56,125.85p. It was made clear that, in case, he did not clear the outstanding balance, against the Credit Card, within 30 days, from the date of receipt of the notice, then this amount shall be deducted from A/c No.00881140106086 which was being operated by him, in the bank of the OPs. Section 171 of the Contract Act, dealing with general lien of bankers, factors, wharfingers, attorneys and policy brokers reads as under ; “Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain, as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain as a security for such balance, goods bailed to them, unless there is an express contract to that effect.” 11. In Bank of the Baroda Vs D.Radha Krishna Reddy and Others, SA No.636 decided on 18.2.2008, the Andhra High Court on the basis of the principle of law, laid down by the Hon’ble Supreme Court in Bombay Dying and Manufacturing Co. Vs State of Bombay AIR1958 S.C.328 and Punjab National Bank and Others Vs. Surendra Prasad Sinha, AIR1992 S.C.,1815, observed as under ; “From the aforesaid decisions it is amply clear that though the remedy to recover the debt from the principal debtor is barred by limitation, the liability still subsists and the bank is entitled to appropriate the debt due from the amounts which are in its possession either belonging to the principal debtor or the surety, as it is settled law that the liability of the surety is co-extensive with that of the principal debtor. The bank has a general lien over all forms of securities or negotiable instruments deposited by or on behalf of the customer in the ordinary course of banking business and that the general lien is a valuable right to the banker judiciously recognized and in the absence of agreement to the contrary by virtue of statutory provisions under Section 171 of the Contract Act the banker has a general lien over such securities and amounts in its possession. He has the right to use the proceeds towards adjustment of the debt due to him from the customer. Such a lien is also applicable to negotiable instruments including fdrs of the customer which are lying with the bank. Merely because the said fixed deposit was created subsequent to the loan transaction it would not make any difference. The bank has a right to adjust all the amounts which are in their possession and which belong to the customer on the date they adjust the said amount irrespective of the date on which the transaction which gave rise to the said claim took place.” 12. From the provisions of Section 171 of the Contract Act as also from the principle of law, laid down, in the aforesaid cases, the bank could hold a lien to the extent of the balance amount of Credit Card on the saving bank account of the complainant. The District Forum, was also right in holding so. 13. It is evident from the grounds of appeal, that a plea was taken by the complainant, to the effect, that since a period of three years had expired from the date when the OPs made a claim for recovering the outstanding dues, the same could not be recovered, being barred by limitation. Section 28 of the Limitation Act provides that when the period limited to a person for instituting a suit for possession of any property has expired, his right to such property, is extinguished, and when the property is incapable of possession, such as debt, the section has no application and lapse of time does not extinguish the right of a person thereto. Similar principle of law was laid down in Bombay Dying and Manufacturing Co. Vs State of Bombay AIR1958 S.C.328 (supra) . It was not that the bank had filed a suit for recovery. The right of the bank to withdraw the amount from the saving bank account of the complainant, still subsisted, It was on account of this reason that they exercised lien on the saving bank account to the extent of the amount, due to it, against the complainant, on the basis of Credit Card. The District Forum, was also right, in coming to such a conclusion. The order of the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. 13. For the reasons recorded above, the appeal, being without merit, must fail, and the same is dismissed with costs quantified at Rs.5000/- 14. Certified Copies of this order be sent to the parties, free of charge. 15. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
