Complaint filed on: 18-08-2011
Disposed on: 18-07-2012
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.1526/2011
DATED THIS THE 18th JULY 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
Mr.Binu Jose,
S/o. Josey Abraham,
Aged about 45 years,
R/o. No.E-10, East Trinity Acres,
Sarjapur Road, Bangalore-34
V/s
Opposite party: -
The Manager,
(The Hong-Kong and Shanghai
Banking Corporation Limited)
MG Road, Bangalore
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP, under section 2 (1) (c) (iii) of the Consumer Protection Act, praying to pass an order, directing the OP not to send any letters, notices and their agents to his residence, and to pay damages of Rs.2,00,000=00 alongwith interest.
2. The brief facts of the complaint can be stated as under.
The complainant has obtained credit card from the OP bearing account no.4563420008478522 and from the date of obtaining the credit card till Sept. 2003, the complainant has paid regular payments for using the credit card. In the month of Sept.2003 was cleared all the balance payment and also sent a cancellation letter alongwith the broken credit card to close the account as instructed by the OP. In the month of Dec.2010, the complainant learnt through reliable sources that the complainant has defaulted in paying the amount of the OP bank, immediately, the complainant went to OP head office situated at MG Road to make enquiry and requested the OP that he wants to know the details of the said credit card, but the OP refused to give details stating that there is no facility to give the details with regard to credit card. However, the complainant requested the OP that, he wants to meet the manager or the person in charge of the credit card and the OP said that there is no such persons to contact and also the said it is only through the email his grievances can be sent. So the complainant sent email to HSBC India net on 06, 07, 10, 13, 14, 17, 18 and 20 January 2011 and also stated that he wants the copy of the cancellation letter sent by him. The complainant received the email from HSBC India Net stating that the copy of the cancellation letter is unable to trace further confirms that the complainant card account has been invalidated by bank with effect from 5/1/2005 and there is an outstanding of INR 108426.24 and also payable as on date. The OP agents are frequently visiting and circulating the comments to the neighbors that the complainant is defaulted in paying the amount. The complainant requested several times to the OP not to send any agent near the residence and not to pass any defamatory statements about the complainant and not to harass the complainant, but till today the OP agents are harassing the complainant. The complainant issued a legal notice on 2-4-2011, and after receiving the notice, the OP has not sent any reply. The complainant has cleared all the dues payable to the OP bank and closed the account without any dues. The complainant is a reputed practicing doctor and highly reputed in and around the society. The OP recovery agencies are frequently visiting and circulating the comments to the neighbors that the complainant is defaulted in paying the amount, and due to the act of the OP, the complainant is defamed in the society and the neighbors started ill-treating the complainant. The complainant has undergone mental stress and wasted his precious time by going to bank for enquiring and sending emails. The action of the OP has caused grave inconvenience and loss to the complainant for which the OP is responsible and there is a deficiency of service. So the present complaint is filed.
3. After the service of notice, the OP has appeared through his counsel and filed objections, contending interalia as under:
The OP is a reputed banking institution and striving to provide excellent and best methods of business to the public. The complaint of the complainant is not maintainable, as the complaint is filed only on illusions. The complainant is a credit card holder and utilized the credit card and it was issued in the year Dec. 2002, the credit card limit was Rs.20,000=00, the outstanding amount is Rs.1,52,516=00 as on Oct.2011. Due to the unsatisfactory history and track record it was closed on 5-1-2005. As per the credit card application form and card agreement he was required to strictly adhere to the terms and conditions of the use of the said card. The complainant is liable to repay the outstanding amount as per the SOA received by him every month. The complainant has repaid the outstanding till Sept.2003; the OP has not received any cancellation request from the complainant. The complainant is put to the strict proof. The statement of accounts for the above card was regularly sent to the complainant, the OP has replied to the entire complainant’s email correspondence from Jan.2011. The OP has requested the complainant to provide the cancellation letter but the complainant was unable to provide cancellation letter and credit card surrender documents. The OP has replied the email. The OP had closed the card from Jan.2005 since the outstanding due was more than the credit limit and for not making payment, the OP has suspended the credit card when the outstanding balance will become immediately due and payable. As per the RBI directions the bank has to report the card account information to CIBIL owing to non payment of dues for more than 180 days, the card account is termed as non performing asset, so they had to write off the outstanding account. The complainant has not come before the forum with clean hands as the complainant himself is a defaulter. The OP has acted prudently and diligently and strictly adhered and followed the banking norms. The complainant is well aware of the terms and conditions of the agreement, and there is no cause of action to file the complaint. The claim of the complainant is under the guise of deficiency in service, but is a recovery proceedings, there is no deficiency of service as alleged by the complainant. There is no justification in filing the complaint and the compensation of Rs.2,00,000=00 and other relief does not arise as the same are imaginary by the complainant. Hence, it is prayed to dismiss the complaint with exemplary cost.
4. So from the averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration.
1. Whether the complainant proves that, the OP has caused grave inconvenience and loss to him, and there is deficiency of service?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
5. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: In view of the negative findings on the
Point no.1, the complainant is not entitled
to any relief as prayed in the complaint
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 five documents as Annexure-A to E. On the other hand, one Narendra Singh, POA, has filed his affidavit on behalf of the OP and produced four documents as Annexure-A to D. We have heard the arguments of both sides, and we have gone through the oral and documentary evidence of both parties scrupulously.
7. The complainant by name Mr.Binu Jose has stated in his affidavit that, he has obtained credit card from the OP bearing no.4563420008478522 and from the date of obtaining the credit card till Sept. 2003, he has paid regular payments for using the credit card, and in the month of Sept.2003 he has cleared all the balance payment and also sent a cancellation letter alongwith the broken credit card to close the account as instructed by the OP. In the month of Dec.2010, the complainant learnt through reliable sources that, he has defaulted in paying the amount of the OP bank, immediately, he went to head office of OP situated at MG Road to make enquiry and requested the employee of the OP to know the details of the said credit card, but the employee of the OP refused to give details stating that there is no facility to give details with regard to credit card. However, he requested the OP to meet the manager or the person in charge of the credit card and the OP said that there is no such person in respect of credit card facilities and also the said it is only through the email his grievances can be sent. So, on 06, 07, 10, 13, 14, 17, 18 and 20 January 2011 he sent emails to HSBC India net for details and also he wants the copy of the cancellation letter sent by him, and he received email from HSBC India Net stating that the copy of the cancellation letter is unable to trace and further confirmed that his credit card account has been invalidated by bank with effect from 5/1/2005 and there is an outstanding of INR 108426.24, and the agents of OP are frequently visiting and circulating the comments to the neighbors that he is defaulted in paying the amount, and he requested the OP several times not to send any agent near the residence and not to pass any defamatory statements about him to the neighbours and not to harass him, but till today the agents of OP are harassing him to enter into a settlement with the OP, he issued a legal notice to OP, but the OP did not reply, he has cleared all the dues payable to the OP bank and closed the account, and he is a practicing doctor and highly reputed in and around the society. Due to the act of the OP, he was defamed in the society and the neighbours started ill-treating him and due to that, he could not concentrate on his patients, and he has undergone mental stress and wasted his precious time by going to bank for enquiring and sending emails. The action of the OP has caused grave inconvenience and loss to him for which the OP is responsible and there is a deficiency of service, hence, the present complaint is filed. So he prays to pass an order as prayed in the complaint.
8. By reading the averments of the complaint and evidence of the complainant as mentioned supra, it is made unambiguously clear that, the complainant has tendered his evidence in accordance with the averments of the complaint. Let us have a look at the relevant documents of the complainant to know whether the oral evidence of the complainant is supported by any documentary evidence or not. Annexure-A of the complainant document is copy of email letter issued by HSBC India Net dated 6-1-2011, stating that the HSBC will not be liable for any transactions processed prior to the card being reported as lost as per the bank records, and on page no.12 of the annexure-A, there is one more email dated 10-1-2011 sent by the OP to the complainant, stating that, the card account has been invalidated by bank with effect from 5-1-2005, and there is an outstanding of INR 108426.24, and they have proposed an option for settlement of the card. Annexure-B is the copy of email letter of the OP. Annexure-C is the copy legal notice issued to the OP by the complainant’s counsel dated 2-4-2011, stating that, the complainant has cleared all the dues payable to the OP and closed the account. The agencies of the OP go to residence of the complainant and sending the letter directing to pay Rs.1,08,426.24, organization recovery agencies are visiting frequently and circulating the comments to the neighbours that, the complainant is a defaulter in paying the amount, due to the act of the OP, the complainant has been defamed in the society and the neighbours started ill-treating the complainant. The rest of the two documents of the complainant are postal acknowledgement card and postal receipt.
9. The documents of the complainant as mentioned above are insufficient to hold that, the complainant has cleared all the dues and closed the account, and agencies of the OP are visiting the residence of the complainant and giving trouble as stated in the complaint. No documentary evidence is produced by the complainant to prove that, he has paid the entire arrears and closed the account. In the absence of vouchsafing any documentary evidence, the oral testimony of the complainant in this regard is unworthy of acceptance. On the other hand, one of the email letters of OP produced by the complainant in annexure-A discloses that, the complainant is a defaulter in paying the balance amount, relating to the credit card facilities availed by him, and there is a balance amount of Rs.1,08,426.24 to be payable by the complainant. So also no scrape of documentary evidence is produced by the complainant that agencies of the OP do come to his house oftenly and give trouble to him as stated in the complaint. The evidence of the complainant in relation to giving trouble by agents of the OP and spread the rumors in the neighborhood of the complainant is not fortified by plausible documentary evidence. So, the oral testimony of the complainant cannot be taken into consideration as gospel truth. On the other hand, the OP has stated both in the version and during the course of evidence that, the complainant is a credit card holder of their bank and utilized the credit card and the outstanding amount is Rs.1,52,516=00 on Oct.2011 and due to the unsatisfactory history and tract record the card was closed on 5-1-2005. The complainant is liable to repay the outstanding amount of the credit card and credit card application form is produced at annexure-A. They acted according to the directions of the RBI. The complainant has not acted in terms of agreement entered into between himself and the bank. The OP has not acted negligently, and there is no deficiency of service on the part of the OP. The last documents of the OP is the transaction details of the OP, and that document goes to show that, the complainant is still liable to pay a sum of Rs.1,52,516.44 to the OP bank. The evidence of employee of the OP bank that, the complainant who being the credit card holder has not paid the balance amount, and closed the account, and he is a defaulter and his dues is a sum of Rs.1,52,516=00 stands corroborated by letter of the OP bank. Taking the material evidence of the complainant, and compare the same with the oral and documentary evidence of the OP, it is vivid and clear that, the material evidence of the OP is more probable trust worthy and acted upon than the evidence of the complainant. On making careful scrutiny of the material evidence of both parties, it is transpired that the complainant after taking the credit card facilities from the OP has not paid the balance amount and he became a chronic defaulter in paying the arrears of OP bank. When the complainant has availed the credit card facilities from the OP bank as per the terms and conditions of the OP, it is imperative on the part of the complainant to pay the arrears of OP regularly without committing any default. Instead of doing so, the complainant went on making baseless attribution against the OP that, the agencies of the OP are harassing him and spreading false rumors in his neighborhood, that he is a defaulter in paying the arrears. In view of committing default in paying the arrears of OP bank, the complainant is disentitled to claim any relief much less injunctive relief against the OP as prayed in the complaint. The complainant who knocks the doors of this forum seeking relief has failed to prove this point with satisfactory evidence that, the OP has caused grave inconvenience and loss to him, and there is deficiency of service on the part of the OP. On the contrary, the complainant is a defaulter in paying the amount of OP bank and instead of clearing the balance amount he has made false allegations against the OP, without any basis. There is a latches on the part of the complainant in not paying the arrears of the OP bank. In fact, the complainant who comes to this forum seeking relief has not approached with clean hands, and accordingly, we answer this point in a negative.
10. In view of our negative findings on the 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 forgoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed. So, under the circumstance, both parties shall bear their own cost.
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 18th day of July 2012.
MEMBER MEMBER PRESIDENT
