Complaint filed on: 21-11-2011
Disposed on: 13-04-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.2105/2011
DATED THIS THE 13th APRIL 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
U.Madhav Kamath
Aged about 60 years,
S/o. Srinivas,
Syndicate Bank Colony,
Magadi Main Road,
Bangalore-79
V/s
Opposite parties: -
1. The Manager card services,
The HDFC Bank cards division,
P.O. Box no.8654, Thiruvanmiyur, Chennai-41
2. The Manager,
HDFC bank credit cards division,
HDFC building,
Richmond circle,
Bangalore
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OPs no.1 and 2, under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OPs to close the loan account pursuant to his letter dated 6-5-2009, and subsequent letters and to reactivate the credit card bearing no.5176350000 187423 to its original position and to pay Rs.1,00,000=00 towards the damages with interest and cost.
2. The brief facts of the complaint can be stated as under.
The complainant had availed a credit card facility from the OP bank in Oct-2008 bearing credit card No.0005176350000 187423. The complainant had availed a loan by name PL to CC-Jumbo cash on 10-10-2008 for a sum of Rs.1,27,000=00 at the rate of 1.65% interest per month for a period of 36 months from the OP. The monthly installment is of Rs.4,706.84. Eventhough, the monthly EMI towards the loan agreed Rs.4,706.84, the OP used to charge morethan the agreed charge i.e. Rs.4,965.84 in the monthly installment itself. On coming to know about the difference of the EMI, the complainant made a repeated request to rectify the same and informed the OP that the EMI which the OP charging is not feasible to the complainant. The OP kept silent about this request of the complainant, the complainant used to make the repayment of the loan regularly by way of cheque. In view of non taking the action by the OP in respect of the excess charging of EMI, the complainant sent an e-mail dated 6-5-2009 and intimated the OP bank that he will close the entire loan amount by paying the amount due to the bank as on that date. The amount outstanding as on the date of the letter was Rs.1,07,790=00. The complainant sent a cheque dated 5-5-2009 bearing no.617143 for a sum of Rs.1,08,000=00 towards the full and final settlement of the credit facility due as on the date of issuance of the cheque. In the e-mail dated 6-5-2009 itself the complainant had offered to close the said account in full settlement of the loan which has been accepted by the OP bank by en-cashing the said cheque. This fact has been repeatedly informed to the OP bank whenever the OP sent a statement to the complainant. Further, on 4-5-2010 the complainant got issued one more e-mail and also letter to the OP to close the loan account and to send the closure certificate for the said credit card loan account of the complainant. The OP has issued a letter dated 29-3-2011 stating that they have enhanced the loan facility from Rs.1,27,500=00 to Rs.2,55,000=00. In the meanwhile to the shock and surprise of the complainant, he received a legal notice from the OP bank dated 10-6-2011 stating that the complainant is in arrears of the loan amount and he should repay the same. The complainant got issued a reply to the said notice through his advocate. Eventhough the complainant had cleared the loan facility and was making payment of the credit card bills regularly, the OP bank all of a sudden in the month of June 2011 blocked the credit card arbitrarily without giving proper intimation or reasons. The complainant has also brought the said aspect to the OP bank through e-mail dated 21-7-2011, due to in action of the OP bank the complainant had addressed three more e-mails to the OP bank, the OP has not bothered to reply. However, finally on 14th October, the reply was sent. The OP bank again on 7-9-2011 issued one more notice stating that the last payment made by the complainant was Rs.1,08,000=00 on 11-5-2009 as reflected in the statement dated 13-5-2009, and pre-closure of the loan account was levied with the bank chargers of 3% applicable on the remaining principle outstanding amount as on the date of closure of the loan. The action of the OP bank is against to the natural justice and the same is opposed to law. The OP bank instead of closing the loan account as per the request of the complainant in the year 2009 itself, started to harass and threaten the complainant. The OP bank is not supposed to act at their whims and fancies. The OP bank ought to have closed the loan account on receipt of the letter from the complainant and also ought to have closed the loan account after encashing the cheque issued by the complainant towards the full and final settlement of the loan account. Further the complainant again on 20-10-2011 addressed a letter to the advocate of the OP, the OP had sent a letter to the complainant stating that he has won some free base fare Indigo Air line ticket. The OP has deliberately done these misdeeds with an intention to make unlawful gain. The OP has played a fraud on this complainant. The action of the OP in this matter nothing but its deficiency in service and the complainant is a consumer as defined under the Act. The OP is a banking institution and is rendering services to the consumer as defined under Consumer Protection Act. The complainant left with no other alternative remedy to redress his grievance except to approaching this forum. Hence this complaint is filed against the OPs praying to pass an order, directing the OPs no.1 and 2 to close the loan account pursuant to the letter dated 6-5-2009 and subsequent letters and to reactivate the credit card bearing no.5176350000187423 to its original position, and to pay a sum of Rs.1,00,000=00 towards damages alongwith interest and cost.
3. After filing of the complaint, the notices were issued to the OPs, the OPs have appeared through their counsel, and filed their objection, contending inter-alia as under:
The complainant is not a consumer as per the provisions of the Consumer Protection Act, as the relationship between the complainant and OP is debtor and creditor, hence the complaint is liable to be dismissed. The OP is a banking organization offering varied facilities and services to its customers. The complainant in the year 2006 availed credit card for the first time in card no.5176521002704924, subsequently this card was replaced for other card in no.5176521005802451 and further the said card was upgraded twice in card no.5243681000327265 and in card no.5523441000640469 respectively alongwith this card, the complainant also availed supplementary card termed as Add on card on his spouse name Smt.Aarti Madhav. Having availed cards from the OP bank, the complainant impliedly agreed to abide by the terms and conditions of the card member agreement. Pursuant to availing of cards, the complainants started using to is maximum thereby availing all kinds of facilities like EMI loans, Jumbo Cash loans etc. Similarly, in Oct.2008, the complainant availed Jumbo Cash Personal Loan account no.5176350000187423 for a sum of Rs.1,27,000=00 on the agreed terms and conditions of such loan agreement towards his card account. The loan availed by the complainant was repayable in 36 equated monthly installments with the charged interest rate @ 1.65% p.m. and each installment payable of sum of Rs.4,706.84 accordingly. At the time of availing card the complainant was very much aware of the interest rate charged and further having agreed to the same he had availed the said loan. However the complainant was not able to carryout the loan obligation owing to his heavy financial loss suffered due to recession. Hence to overcome his incapacity to pay EMIs, the complainant intended to close the alleged loan account and not because of the interest rate as disputed. The complainant has falsely averred that the OP bank has charged him sum of Rs.4,965.84 as opposed to agreed to sum of Rs.4,706.84. In the amortization schedule the figures mentioned in principal and interest amount appears different from month to month because the total principal outstanding amount and total interest amount applicable to the whole loan tenure has been divided for 36 months, so that each EMI sum will be sum of Rs.4,706.84. Further the principal amount when added to interest amount, the total derived is sum of Rs.4,706.84 only and not Rs.4,965.84 as alleged by the complainant. So the OP bank has not charged excess sum for EMI payment. The complainant is put to the strict proof of the same. Besides the letter dated 6-5-2009 produced by the complainant, the complainant himself states due to recession he has lost heavily in financial matters. Hence, he has liquidated all his available assets. So he is closing his all possibilities as he is not sure whether he can repay it later. Hence he has dropped cheque no.6127143 for Rs.1,08,000=00 in full and settlement of above said loan. So the complainant has been falsely alleging on the OP bank to evade his monetary liability which towards his loan account. Replying to the said letter by mail, the OP bank stated to the complainant pre-closing of loan account prior to loan tenure attracts pre-closure charges. So the OP bank requested the complainant to pay the Pre-closure chargers in order to process his request for the closure of account. However, the complainant went on evading payment of pre-closure charges despite much requests and reminders by the OP bank. Owing to such default such unpaid pre-closure charges attracted bank charges and accumulation to the principal outstanding dues towards the said loan account. Hence, due to non receipt of further payment the loan was automatically pre-closed on 14-8-2011 required the complainant to pay sum of Rs.34,1390.33 and the said pre-closure is reflected in personal loan account and as on statement of accounts dated 13-9-2011. Subsequently, the OP bank issued notice dated 7-9-2011 to the complainant answering all his queries and further calling the complainant to pay outstanding dues sum of Rs.33,639.32. However, the complainant inspite of all explanations to his queries went on alleging falsely that the OP bank had charged more than agreed sum. It is crucial to state that the card transaction held between the parties is an implied agreement. The loan availed on the card is an agreement between the parties. Therefore, any decision taken by the complainant requires the approval of the OP bank and accordingly the complainant abruptly issuing a letter stating that he has finally settled and closed account without fulfillment of formalities required for foreclosure of account. Since 2009 the OP bank has been answering all the queries and repeatedly convincing the complainant that the alleged loan account cannot be closed until complete payment of outstanding dues therein. Therefore despite being aware of liability the complainant has willfully defaulted in payment. In the said circumstances the OP bank sent demand notices calling upon the complainant to pay the outstanding dues of Rs.33,639.32 as on dated 7-9-2009, the complainant owes sum of Rs.37,609.95 towards the said account. Viewed from any angle, the OP has diligently rendered its service to the complainant without any latches. The complainant owing to his default has made the OP to suffer loss. The complainant having violated the terms and conditions laid down in card member agreement has committed breach of the contract. So, the complainant is liable to pay damages to the OP bank, so it is prayed to dismiss the complaint and direct the complainant to pay outstanding amount sum of Rs.37,609.95 in the interest of justice and equity.
4. So from the averments of the complaint of the complainant and objection of the OPs, the following points arise for our consideration.
1. Whether the complainant proves that, the action of the OP in not closing the loan account after encashing the cheque issued by him amounts to deficiency in service
2. If point no.1 is answered in favour of the complainant, whether the complainant is entitled to claim the amount as prayed in the complaint.
3. What order?
5. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: In the Negative
Point no.3: For the following order
REASONS
6. So as to prove the case, the complainant has filed his affidavit by way of evidence, and produced 19 documents. On the other hand, one Jayakrishnan Nambiar, designated as manger in the OP has filed his affidavit and produced documents which were marked as Annexure-A to G. We have heard the arguments of both sides. We have gone through the oral and documentary evidence of both parties meticulously.
7. One U.Madhav Kamath has stated in his affidavit that, he had availed a credit card facility from OP bank during October 2008 bearing credit card no.000517630000187423, and he had availed a loan facility by name PL to CC-Jumbo cash on 10-10-2008 to the tune of Rs.1,27,000=00 at the rate of 1.65% interest per month for a period of 36 months from the OP. The monthly installment of the said loan was Rs.4,706.84. Eventhough the monthly EMI was Rs.4,706.84, the OP used to charge morethan the agreed rate and they used to charge Rs.4,965.84 from the first installment itself and on coming to know about the difference of the EMI, he made request with the OP to rectify the same, the EMI which the OP is charging is not feasible to him. But the OP kept silent about this request. Eventhough there were discrepancies in the EMI of the loan account, he used to make the repayment of the loan regularly by way of cheque. In view of non taking of the action by the OP bank, he sent an e-mail dated 6-5-2009 stating that he will close the entire loan accounts by paying the amount due to the bank as on that date. Even according to the statement of account the amount outstanding as on 5-5-2009 was Rs.1,07,790=00. By considering the statement of account he sent a cheque dated for a sum of Rs.1,08,000=00 dated 5-5-2009 bearing no.616143 towards full and final settlement of the credit card facility due from him to the OP bank and in the e-mail, he had offered to close the said account in full settlement of the loan which has been accepted by the OP bank by en-cashing the said cheque and requested the OP bank to issue No Due Certificate. On 4-5-2010 he got issued one more e-mail and also letter to the OP to close the loan account and to issue closure certificate. The OP has issued a letter dated 29-3-2011 stating that they have enhanced the credit card limit from 1,27,500/- to 2,55,000/- and to his shock and surprise he had received a legal notice from the OP bank dated 10-6-2011 stating that he in arrears of the loan amount and he should repay the same. Again on 5-7-2011 the OP got issued one more legal notice and he gave reply through his advocate. Even though he had cleared the loan facility and he was making payment of the credit card bills regularly, the OP bank all of sudden, in the month of June-2011 blocked the credit card arbitrarily without giving proper intimation and he had brought the said aspects to the OP bank through e-mail dated 21-7-2011 and he had addressed 3 more e-mails, for these e-mails the OP has not bothered to reply. However, finally on 14th Oct the reply was sent. The OP issued one more notice dated 7-9-2011 stating that the last payment by him towards PL-CC account was RS.1,08,000=00 and pre-closure of the loan account levied with the bank charges of 3% on remaining principal outstanding amount as on the date of closure of the loan. The action of the OP is against to the natural justice and the same is opposed to law. The OP bank instead of closing the loan account as per his request, in the year 2009, it started to harass and threaten him. The OP bank is not supposed to act accordingly to their whims and fancies. The OP bank ought to have closed the loan account on receipt of the letter from him and also after encashing the cheque issued by him towards the full and final settlement of the loan account. The OP has played fraud on him, the action of the OP in this matter is nothing but deficiency in service and he is a consumer as defined under the Act. The OP is a banking institution and is rendering service to the consumer as per the CP Act. So he filed this complaint, and it is prayed to allow the complaint as prayed for.
8. On perusal of the complaint, affidavit of the complainant and version of the OP in between line, it is an undisputed fact between the parties that on 10-10-2008, the complainant had availed a credit card facility by name PL to CC-Jumbo cash for a sum of Rs.1,27,000=00 at the rate of 1.65% interest per month from the OP bank, on monthly installment of Rs.4,706.84=00, and the said loan was to be repayable within 36 months. The complainant has agreed to the terms and conditions of the OP bank and put signature to the important papers of the bank. The complainant has produced loan sanction letter dated 10-10-2008, wherein the total loan availed by the complainant was Rs.1,27,000=00 at the rate of 1.65% interest, and the said loan was to be paid within 36 months at the rate of Rs.4,706.84 and alongwith sanction letter amortization schedule was enclosed. If we make calculation by adding principle amount and interest of first installment and also other installment, as per the schedule, the total will be all most Rs.4,706.84 and not Rs.4,965.84 as stated in the complaint. It is no doubt true that, both in the complaint and during the course of evidence of the complainant, it is stated that, the OP used to charge more than agreed charge i.e. Rs.4,965.84 in the first installment itself. But, it is pertinent note that, no documentary evidence is produced by the complainant to demonstrate before the forum that, the OP used to charge more than agreed charge i.e. Rs.4,965.84. We are unable to understand on what basis, the complainant has stated that, the OP has charged more than agreed charge i.e. Rs.4,965.84. The document no.2 of the complainant is the copy of e-mail dated 6-5-2009 addressed to the OP by the complainant stating that, he has lost heavily in financial matters and he has liquidated all of his available assets, so he is closing his all possible liabilities. So, he has dropped the cheque for Rs.1,08,000=00 in the OP bank in full settlement of the said loan and requested to cancel his credit card limit also. The said e-mail of the complainant makes it abundantly clear that, as the complainant has lost heavily in financial matter, so he has dropped the cheque for Rs.1,08,000=00 in box of the OP bank towards full settlement of the loan availed and not charging more than agreed charge by OP, as stated in the complaint and in the evidence of the complainant. The grounds made out in the complaint, evidence of the complainant and ground made out in the e-mail for taking decision by the complainant to close the credit card loan by sending cheque for Rs.1.08,000=00 are having no consistency and amity for the reasons best known to the complainant. It is no doubt true that, the cheque sent by the complainant for Rs.1,08,000=00 was encashed by the OP and taken the same towards principle and interest as per the sanction letter issued by the OP. In fact, the complainant ought to have gone to the OP bank and verified his loan account in respect of the balance amount and paid the same by issuing cheque towards full and final settlement of the credit card loan facility. Instead of doing so, the complainant has calculated the balance amount of loan at his whims and caprices and dropped the letter dated 6-5-2009 along with cheque for Rs.1,08,000=00 in the box of the OP bank, without ascertaining the balance of the loan amount from the concerned officer of the OP bank. The complainant is not an ordinary person and from the correspondence made between the parties, it is revealed that, the complainant has worked as officer in the bank and retired. The complainant knew fully well about the procedure while closing particular loan in the bank. There is a total latches on the part of the complainant in not verifying the balance amount of loan in the OP bank. When the complainant has taken loan from the OP bank by signing important papers after agreeing to the terms and conditions of the bank, it is duty of the complainant to ascertain the balance loan amount in the bank before dropping the letter and cheque for Rs.1,08,000=00 in box of the OP bank and pay the same i.e. principle and interest and also the penalty charges to the satisfaction of the OP bank. The document no.8 and 9 of the complainant being the copies of legal notices issued by the OP bank go to shows that the complainant was in arrears of Rs.31,310.79 and 32,109.04 and the complainant became a defaulter in paying the arrears. So, on account of committing default in paying the arrears by the complainant, the OP bank has blocked credit card as per terms and conditions of the bank. The OP has produced the card member agreement. A careful reading of terms and conditions of the agreement, version of the OP and also affidavit of the OP, it is made unambiguously clear that, the OP bank has entered into an agreement with the complainant while giving credit card facilities to the complainant and the OP has taken cheque for Rs.1,08,000=00 sent by the complainant alongwith letter and adjusted the same to the principle and interest, as per sanction letter and amortization schedule and still the complainant was in arrears of loan amount. So the notices were issued to the complainant to clear off the dues. Since, the complainant did not discharge the entire loan, so the OP has blocked the credit card as per the terms and conditions. The action taken by the OP while issuing legal notices and blocking the credit card is strictly in accordance with the terms and conditions of the agreement of the OP, and the OP has not violated the terms and conditions entered into between the parties. On the other hand, the complainant has made his own calculation in respect of balance amount of loan and dropped the cheque alongwith letter in the box of the OP bank without making any enquiry, personally in the bank about the arrears of loan and filed this complaint against the OP claiming compensation from the OP bank. The said conduct of the complainant shows that the complainant has acted contrary to the terms and conditions of the loan availed, and he has not approached this forum with clean hands. So looking to the case of the complainant, on the back ground of terms and conditions of sanction letter of OP, card member agreement produced by the OP, and conduct of the complainant in dropping the cheque for Rs.1,08,000=00 towards full satisfaction of the loan, as per his own calculation. So any making enquiry in the bank about the balance of the loan amount, we are of the considered opinion that, the complainant is defaulter in paying the arrears of the loan amount to the OP bank and he has acted against the terms and conditions of the bank and he is negligent in discharging the loan of bank correctly, and there is no deficiency in the service of the OP. The oral evidence of the complainant in this regard is lacking in its credibility. So, in view of the discussion made hitherto, we are of the firm opinion that, the complainant has failed to prove this point satisfactorily, and accordingly, we answer this point in a negative.
9. In view of the negative findings on point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed with cost of Rs.500=00 to the OP.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 13th day of April 2012.
MEMBER MEMBER PRESIDENT
