BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.440 of 2014

Date of Instt. 11.12.2014

Date of Decision :15.09.2015

Manmohan Singh aged about 50 years son of Bakshish Singh R/o 88, New Jawahar Nagar, Jalandhar.

..........Complainant Versus

1. The Legal Manager, Retail Portfolio Management and Legal Support-Credit Cards, HDFC Bank Cards Division, 8, Lattice Bridge Road, Thiruvanmiyur, Chennai-600041.

2. Branch Manager, HDFC Bank Ltd, Plot No.911 GT Road, Nr.Narinder Cinema, Jalandhar, Punjab-144001.

.........Opposite parties.

Complaint Under the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.JPS Kohli Adv., counsel for complainant.

Sh.Sushil Mehta Adv., counsel for opposite parties.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under the Consumer Protection Act, against the opposite parties on the averments that the complainant is maintaining a saving bank account No.00461000229380 in the name of Manmohan Singh with the opposite party No.2 since 4.1.2009. A International Titanium Credit Card bearing No.5289455003325468 with a credit limit of Rs.60000 was issued to the complainant by the bank. The complainant had been using the credit card and had been paying the dues regularly as and when fell due. A dispute arose when the opposite party No.2 charged and demanded high penal interest alongwith finance charges @ 5% per month on the out standing amount in the month of July, 2012. The complainant objected to the illegal demand and protested against it by giving a representation in writing to the opposite party No.2. The opposite party No.2 vide reference DMD-SC-AUG12-2733 dated 24.9.2012 confirmed and processed amicable settlement to the account to the tune of Rs.32,200/- to be paid by the complainant in three installments commencing from August 2012 to October 2012. The payment of Rs.32,200/- was to be paid in the following manner i.e Rs.3700/-on 27.8.2012, Rs.14250/- on 10.9.2012 and last installment of Rs.14250/- on 10.10.2012 as per the settlement letter No.1164006 dated 27.8.2012.The complainant agreed to the proposal and paid Rs.3700/- vide cheque No.475093 dated 28.8.2012 against receipt No.28749211 dated 28.8.2012. The complainant also issued two cheques No.510472 dated 20.10.2012 and cheque No.510473 dated 25.10.2012 for Rs.14,250/- each against receipt No.29018122-23 as agreed to clear the outstanding amount in the above mentioned account. The opposite parties were adamant in raising the illegal demand of Rs.36241/- vide credit card bill statement dated 1.9.2012 inclusive of the penal charges and finance charges irrespective of the settlement confirmed by them as per letter No.116006 dated 27.8.2012. It is pertinent that the complainant as per settlement was supposed to pay Rs.32,200/- inclusive of all charges on account of full and final payment towards the credit bill account. The demand over and above the settlement amount of Rs.32,200/- is unjustified, illegal, intentional, bias, malafide and against the fair trade practice. The complainant brought to the notice of the opposite party No.2 about the illegal demand and opposite party No.2 assured the complainant to make the payment to the tune of Rs.32,200/- as per the settlement letter dated 27.8.2012. The complainant agreed to and replying on the assurance given by the opposite party No.2 made the balance payment of Rs.28,500/- in the following manner:-

Date Amount

31.10.2012 Rs.1800/-

29.11.2012 Rs.6000/-

24.11.2012 Rs.14250/-

06.02.2013 Rs.6450/-

2. Inspite of making full and final payment against the credit card, the complainant was shocked to receive a notice dated 7.3.2014 issued by the opposite party No.1 with regard to illegal demand of Rs.31,615.95 still due against credit card and further that the funds in the saving account No.00461000229380 being maintained by the complainant with the opposite party No.2 has been put on hold while exercising that "Bankers" lien and right of set off "Option". The complainant was further shocked to know that on 12.4.2014 that an amount of Rs.18000/- and Rs.12699/- has been debited on 22.3.2014 and 12.4.2014 from the above mentioned saving account without the knowledge and intimation to the complainant. The deduction of amount from the account without informing to the complainant tantamounts to illegal, unjust, malafide against the fair trade practice and against the banking norms. On such like averments, the complainant has prayed for directing the opposite parties to refund the amount of Rs.30699.08/- illegally deducted from his account alongwith interest. He has also claimed damages and litigation expenses.

3. Upon notice, opposite parties appeared and filed a written reply pleading that as per the bank records, initial credit card No.4346771009062663 (visa silver personal) was issued to complainant on 17.10.2005 on the basis of his credit card application form and subsequently the aforesaid card was upgraded to another card No.5289455001648564 (MC New Titanium) and subsequently the aforesaid card was upgraded to another card No.5289455003 325468 (MC New Titanium) and the aforesaid card account was declared NPA/Write off on 31.10.2013. The complainant while applying for the said credit card conclusively accepted to be bound by the terms and conditions of the Card Member Agreement pursuant to which he was issued the credit card. Further the use of the credit card by the complainant is deemed acceptance of the said terms and conditions. Hence the complainant was well aware of all the terms and conditions i.e (Payment of 'Fee and Service Charges' & 'Interest, Payment & Monthly Repayment, Statement of accounts') stipulated in the Card Member Agreement Booklet. For the purpose of convenience and better understanding the charges referred to in the Card Member Agreement were extracted and notified separately to the complainant under the head "Most Important Terms and Conditions (MTC)". This document contains complete information on 'Fee & Charges', 'Cash Advance Fee', Late fee charges', 'Finance Charges' and the 'Schedule of Charges' were also explained in the MITC, which are applicable to all the customers of the opposite party including the complainant, the said document was sent to the complainant alongwith Credit Card and Card Member Agreement. Hence, the complainant was completely aware of the charges applicable to him when he was issued the credit card. The bank has been regularly issuing the statement of account to the complainant every month but the complainant has never disputed the same at that time. The card statements also stated the outstanding dues payable by the complainant to the opposite parties pertaining to his credit card and thus being aware of his outstanding dues payable by him to the opposite parties willfully defaulted in payment of his outstanding dues. While the complainant has been repeatedly called upon to repay his dues, he has intentionally and fraudulently failed to make payment due, despite of several reminders and requests. Further no payment has been made by the complainant despite last payment received was a sum of Rs.18,000/- on 22.3.2014 and Rs.12,699.08/- on 12.4.2014 by way of Banker's Lien and Right of Set-Off Notice dated 7.3.2014 and 28.3.2014 on complainant from bank account # 00461000229380.

Vide letter dated 27.8.2012. opposite parties agreed to the proposal of amicable settlement pertaining to the credit card No.5289455003 325468.The settlement amount was of Rs.32,200/- payable in three shots and as per the terms and conditions of the settlement and as per the repayment schedule below:-

Date of Payment Amount

27.8.2012 3700/-

10.9.2012 14250/-

10.10.2012 14250/-

4. As per the clause # 3 & 6 of the settlement letter mentioned in the terms and conditions of the settlement which is reproduced as under:-

" In the event of the above repayment schedule not being adhered to and any of the cheques not being honoured this settlement offer would be rendered null and void and you would be required to pay the entire outstanding at that point of time. The bank also reserves the right to initiate legal action on the dishonoured cheques.

All transactions incurred on the credit card subsequent to the initiation of this settlement and prior to the date of issuance of this settlement letter, that does not part of this settlement, shall be payable separately by the card holder, over and above the settlement amount. The bank reserves its right to demand and recover any such amount from the card holder regardless of this settlement".

5. Since the complainant has failed to comply with the terms and conditions of the settlement, the settlement offer has rendered null and void. The default in the repayment of the amount as agreed or within the time stipulated under the settlement has invalidated the settlement and render the same void.

6. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA/1 alongwith copies of documents Ex.C1 to Ex.C29 and closed evidence.

7. On the other hand, learned counsel for the opposite parties has tendered affidavit Ex.OA alongwith copies of documents Ex.O1 to Ex.O21 and closed evidence.

8. We have carefully gone through the record and also heard the learned counsels for the parties.

9. It is not disputed that the complainant has obtained credit card from the opposite parties and in the year 2012 some dispute arose between the parties regarding payment and parties entered into an agreement/settlement Ex.23. Vide this settlement Ex.23, the complainant was required to make payment as follow:-

10. This settlement has also been pleaded by the complainant. The complainant failed to make payment as per settlement. So the settlement became null and void. In the settlement Ex.C23 which is signed by the complainant, it is specifically mentioned that

"Please note that your above mentioned credit card account will continue to accrue interest and penal charges as per the Bank's existing policy till the last EMI is repaid in total. Post the realization of all EMI's, reversals & waivers will be processed on your account as per agreement vide this settlement.

In the event of the above repayment schedule not being adhered to and any of the cheques not being honoured this settlement offer would be rendered null and void and you would be required to pay the entire outstanding at that point of time. The bank also reserves the right to initiate legal action on the dishonoured cheques".

11. So complainant was liable to pay the full amount due from him before the date of settlement minus the payment of Rs.3700/- made by him. Ex.O8 is statement of account produced by the opposite parties and in it payment of Rs.3700/- is mentioned. It is shown to have been made on 29.8.2012. The complainant has failed to show if he paid the remaining amount to the opposite parties as per settlement. From para 6 of the complaint, it is evident that the complainant has not made payment of the settled amount to the opposite parties as per settlement. So the settlement became null and void and no value can be attached to the same. The opposite parties have placed on record statement of accounts Ex.O8 to Ex.O21. The complainant was required to pay late fee, financial charges and service tax etc as per terms and conditions of the agreement. Ex.O2 are terms and conditions regarding the credit card. Learned counsel for the complainant has failed to show any wrong entry in the above mentioned statement of accounts. Counsel for the complainant contended that the opposite parties were not entitled to exercise right of lien without giving prior notice to the complainant. In support of this contention, he has relied upon Arti Krishnan Vs. HDFC Bank, First Appeal No.FA/12/910, decided on 1.7.2013 by Hon'ble Maharashtra State Commission, Mumbai. We have carefully considered the above contention advanced by learned counsel for the complainant. There is no dispute regarding the law laid down in the above cited authority but where there is specific term and condition regarding exercising right of lien without notice then no notice is required to be given to the consumer. In Ex.O2 i.e terms and conditions, clause 6 provides as under:-

"The bank, at any time and without notice will have lien and right to set-off on all monies belonging to the card member and/or add on card member standing to their credit in any account/custody of the bank, if upon demand by the bank, the balance amount on the card account is not repaid within the prescribed time".

12. So there is specific condition regarding exercising right of lien without notice, as such no notice was required to be given to the complainant by the opposite parties before exercising right of lien.

13. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

15.09.2015 Member Member President