BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

                                                                   Complaint  No.409 of 2017

                                                                   Date of Instt. 25.10.2017

                                                                   Date of Decision: 22.07.2019

Ajay Prashar, Proprietor M/s Prashar Brothers, Grain Market, Kartarpur, District Jalandhar.

                                                                             ..........Complainant

Versus

1.       Yes Bank through, The Regional Manager, Sector 17, Chandigarh.

2.       Yes Bank through, The Manager, Kartarpur Branch, Kartarpur District Jalandhar and

3.       Sh. Daljit Singh, Dealing Officer/Cluster Head, BMC Chowk, Yes Bank, Jalandhar.

                                                                           ….….. Opposite Parties

         Complaint Under the Consumer Protection Act.

Before:        Sh. Karnail Singh              (President)

                              Smt. Jyotsna                      (Member)

Present:        Sh. M. S. Sachdev, Adv Counsel for the Complainant.

                             Sh. Dinesh Sahni, Adv Counsel for the OPs No.1 to 3.

Order

                   Karnail Singh (President)

1.              This complaint has been filed by the complainant Sh. Ajay Prashar, who alleged that he is running the concern M/s Prashar Brothers’s, Grain Market, Kartarpur District Jalandhar as Proprietor. This firm is being run by him for earning his livelihood and the complainant and his entire family and old parents are dependent upon the income of said concern. The OP No.3  is the cluster head of the OP No.1 and he approached the complainant for the purpose of shifting credit facility of an amount of Rs.40,00,000/-, which was taken by the complainant from Capital Small Finance Bank Ltd., to his bank. It was told by him by way of assurance that the OP would provide lesser rate of interest and better facilities and accordingly, after coming into his words, the complainant opened an account bearing No.02738460000087 in the bank of OPs No.1 and 2 and thereafter, at the asking of OPs deposited Rs.25,000/- in the said account.

2.                That the complainant came into the words of the respondents due to false representation and assurance to the effect that the small amount would be used as processing fee which includes charges to purchase stamp paper and which includes necessary miscellaneous expenses. Accordingly, at the asking of OP, complainant paid another sum of Rs.5000/- in cash to OPs No.1 and 2. The representative of the OPs No.1 and 2 assured the complainant that his bank would provide lesser rate of interest and better facilities to the complainant. However, thereafter, the conduct of the OPs was not very good and satisfied and as such, the account was not shifted from Capital Small Finance Bank Ltd. to the bank of the OP and a request was made by the complainant to refund the amount deposited in the bank. Initially OP No.3 Sh. Daljit Singh Cluster Head and Manager of the bank promised and assured the complainant that entire amount would be refunded at the earliest, after completion of all the formalities. The formalities as required by the OP were fulfilled, but later on, instead of refunding the amount, the OP forfeited the amount, which was paid to the OP. The forfeiture of the amount of Rs.30,000/- is illegal, unlawful and is an unfair trade practice. Thereafter, a legal notice was served, but in its reply, a plea was taken that amount of Rs.27,477.88 was credited in the account of the complainant on 30.08.2017, but it appears that the said amount was later on debited by the bank of the OP on the very next date i.e. on 01.09.2017 because the amount was never allowed to be withdrawn nor the said amount has been paid to the complainant. Even otherwise, the question of paying only Rs.27,477.88 does not arise and after debiting of the amount on the very next date is an unfair trade practice. It is to be mentioned here that without even completing all the formalities by the complainant, the OP with an idea to create evidence had transferred the amount of Rs.27,45,000/- in the account of the complainant and had also intentionally and willfully debited Rs.20,000/- and Rs.3000/- as processing fee. Thereafter, they had also debited the interest amounting to Rs.845.45, the said amount was automatically withdrawn by the OP. No notice was ever sent to the complainant by the OP prior to debiting and crediting the amount. It appears that a manipulation has been done by the OP just to seek an amount of Rs.23,000/- as processing fee and the interest of Rs.26,215.58, Rs.4516.85 and Rs.845.45. The said amount which has been shown as interest is also an illegal transactions. The said debit entry was never made at the instance and behest of the complainant, rather, it was unilaterally done by the OP with the sole idea to charge Rs.23,000/- as processing fee and interest, in total amount of Rs.27,061.03. The said act is illegal and is an unfair trade practice. The said amount is liable to be refunded by the OP. It is further pertinent to mention here that the bank pass book and cheque book were also never issued by the OP to the complainant at any stage. It was also came to the notice of the complainant that originally a payment order was prepared by the OP in favour of Capital Small Finance Bank Ltd. and the said payment order was sent to Capital Small Finance Bank Ltd., but they refused to accept the same. That thereafter, the OP without informing the complainant debited the amount of the said payment order in the account of the complainant. The OP had not even intimated regarding debiting of the said amount in the account of the complainant. It clearly shows that this act has been done by the OP with the sole idea to create evidence. No transaction was ever done by the complainant nor any services were ever availed by the complainant, so the question of crediting and then debiting the entire amount does not arise at all and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the amount of Rs.30,000/- alongwith interest @ 18% per annum from the date of payment and further damages to the tune of Rs.50,000/- for causing mental tension and harassment to the complainant along with interest and further Rs.10,000/- may also be ordered to be paid for mental tension and harassment and Rs.10,000/- may also be ordered to be paid as litigation expenses.

3.                Notice of the complaint was given to the OPs and accordingly, OPs No.1 and 2 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable and hence, the same deserves to be dismissed and further alleged that there is no cause of action against the answering OPs and even the complainant has no locus-standi to file the present complaint against the answering OPs. It is further alleged that the present complaint is absolutely false, frivolous and vexatious and deserves to be dismissed and further alleged that the complainant is not the consumer within the definition of ‘Consumer’ as per Consumer Protection Act and further averred that the complaint should be dismissed at the first instance for non-joinder of necessary parties i.e. Small Capital Finance Bank is a necessary party. It is further submitted that the complainant has not approached this Forum with clean hands rather the real facts are that the complainant had approached the answering OP and requested the answering OP for financial credit facility to the tune of Rs.40,00,000/- and requested the answering OP No.2 to take over the facility granted by the Capital Small Finance Bank, Kartarpur. That the answering OP considered the request of the complainant and sanctioned the financial facility to the tune to Rs.40,00,000/- with repayment rate of interest at MCLR rate of interest i.e. 8.85% plus 2.4% margin, vide its Facility Letter bearing reference No.YBL/CHD/BB/FL/979 2016-17 dated February 20, 2017. On the sanction of the financial facility of Rs.40,00,000/- by the answering OP No.2, the complainant duly signed the said facility letter dated 20.02.2017 in token of agreeing to the terms and conditions of the sanction of credit financial facility. That as per the Clause-2 of the Facility Letter, the complainant agreed to pay Processing Fees at 0.50% of the Facilities Inclusive Applicable Taxes payable upfront at the time of acceptance of the facility letter. That the said facility letter also clearly mentioned that all the charges/fees paid to the bank pursuant grant of credit facilities are non-refundable. In consideration of sanctioning of the credit financial facility by the answering OP No.2, the complainant duly signed and executed numerous documents i.e. letter dated 22.02.2017, Debit Authorization Letter dated 22.02.2017, Demand Promissory Note, Deed of Hypothecation, Deed of undertaking-cum-indemnity, Working Capital Master Facility Agreement, Letter of Continuing Guarantee dated 22.02.2017, Letter of continuity for D. P dated 22.02.2017, Declaration dated 22.02.2017 and Letter of Consent. It is further alleged that the complainant after getting processed and sanctioning and granting of the credit facility, to the tune of Rs.40,00,000/- have no right and authority to seek the refund of charges as agreed to be paid by the complainant under the terms and conditions of the agreement. On merits, the factum in regard to availing the term credit facility is accepted and admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

4.                OP No.3 filed its separate reply, but took all the similar preliminary objections as have been taken by OPs No.1 and 2 and similar reply has been given on merits and lastly prayed that the complaint of the complainant is without merit, the same may be dismissed.

5.             In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA along with some documents Ex.C-1 to Ex.C-6 and closed the evidence.

6.                Similarly, counsel for the OPs No.1 to 3 tendered into evidence affidavit of Sh. Ravinder Pal Singh as Ex.OP1&2/A and affidavit of Sh. Daljit Singh Sodhi as Ex.OP3/A along with some documents Ex.OP3/1 to Ex.OP3/13 and then closed the evidence.

7.              We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

8.              It is admitted case of the complainant that he has been availing credit facility from Capital Small Finance Bank Ltd. to the extent of Rs.40,00,000/- and further the complainant approached to OP No.1 through its Cluster Head i.e. OP No.3, who gave assurance to the complainant that the OP would provide lesser rate of interest and better facilities and accordingly upon the assurance of the OP No.3, complainant opened an account bearing No.02738460000087 in the bank of OPs No.1 and 2 by depositing Rs.25,000/- and thereafter, again deposited Rs.5000/-. No doubt, the complainant furnished all the documents, which are required for credit facility, with the OP, but it is admitted and legal aspect that the OP bank, prior to providing credit facility to the complainant must have to get shifted the credit facility from Capital Small Finance Bank Ltd., where the complainant is already availing the said facility. It is not disputed that no one can availed cash credit facility from two banks at one time, whenever any customer got a credit facility, he has to submit an affidavit that he has not obtained the same facility from any other bank, but in this case, the complainant has categorically disclosed to the OP that he has been already availing credit facility from Capital Small Finance Bank Ltd. and where-from the OP has to get shifted the credit facility account of the complainant in its own bank and until, the same is not shifted, the OP cannot generate the second credit facility amount of the complainant in its own bank. Admittedly, the complainant filled all the documents on 20.02.2017 or some documents on 22.02.2017, means thereafter, the OP has to get shifted the credit facility account of the complainant from other bank i.e. Capital Small Finance Bank Ltd. in its own bank and then provide a facility to the complainant from 01.03.2017, but the OP did not to do so and then complainant sent a request through email dated 22.06.2017 to the OP bank that he dropped the idea of transfer the credit facility from Capital Small Finance Bank Ltd. and further requested to stop the process of transfer and close the account and refund the amount of Rs.25,000/-. The said email message was sent by the complainant on 22.06.2017, but as per version of the complainant that till 22.06.2017, the credit facility account of the complainant from Capital Small Finance Bank Ltd. was not got shifted by the OP in its own bank and as such, he is not liable to pay any interest or any charges because he has not availed the services of the OPs. Then complainant took a plea in Para No.9 of the complaint that a notice dated 30.08.2017 was served upon to the OP and on receipt of that legal notice, the OP immediately credited an amount of Rs.27,45,000/- in the account of the complainant on 01.09.2017 and there-from debited a sum of Rs.20,000/- and Rs.3000/- as processing fee and later on, also debited an interest amount. In reply to Para No.9 of the complaint, the OP vehemently denied that the amount was not credited on 30.08.2017, but no date has been mentioned by the OP in reply to that query of the complainant, in Para No.9 of the Written Reply, which shows the version put forth by complainant that on receipt of legal notice, the amount was credited in the account of the complainant on 30.08.2017 is admitted and proved, which is virtually the OP credited the said amount, just to save its skin from the legal liability, when the complainant has already sent an email notice dated 22.06.2017 Ex.C-6, then what was the necessity to the OP to credit the amount in the account of the complainant on 30.08.2017, which shows that there is a manipulation on the part of the OP and further complainant took a plea in Para No.10 of the complaint, the OP has debited the processing fee of Rs.20,000/- and Rs.3000/- as well as also debited interest amount from the account of the complainant, which was generated by the OP after receipt of the notice. So, we find that the said processing amount is wrongly and arbitrarily debited from the account of the complainant and also interest was wrongly and illegally debited. The complainant further took a plea in Para No.10 of the complaint that no pass book or cheque book were ever issued to the complainant at any stage, in reply to this version of the complainant, the OP gave evasive reply. So, if after 3 or 4 months, the pass book or cheque book is not issued to the complainant, then how he can avail the services of the credit facility, which shows that the complainant never got any services from the OP and as such, the question does not arise to credit and then debiting any amount from the account generated by the OP later on.    

9.                 Further, the complainant took a plea in Para No.11 of the complaint that originally a payment order was prepared by the OP in favour of the Capital Small Finance Bank Ltd. and the said payment order was sent to the Capital Small Finance Bank Ltd., but they refused to accept the same, but even then the OP debited the amount of the said payment order in the account of the complainant. In reply to Para No.11 of the complaint, OP alleged that the Capital Small Finance Bank Ltd. refused to pay order/demand draft of the OP bank at the instance of the complainant. So, if the previous bank of the complainant i.e. Capital Small Finance Bank Ltd. refused to pay order/demand draft, then it means the credit facility account of the complainant was not got shifted by the OP in its own bank, if so, then the second account of the credit facility cannot be generated or processed, if do the OP, the same is illegal, null and void and the act of the OP tantamount to prove the same is deficient in service as well as unfair trade practice and accordingly, the case of the complainant is established for which the complainant is entitled for the relief.

10.              In view of the above detailed discussion, the complaint of the complainant is partly accepted and OPs No.1 and 2 are directed to reimburse the amount deposited by the complainant i.e. Rs.30,000/- along with interest @ 18% per annum from the date of process of the credit facility account i.e. 20.02.2017, till its realization and OPs No.1 and 2 are further directed to pay compensation of Rs.15,000/- for causing mental tension and harassment to the complainant and further OPs No.1 and 2 are directed to pay litigation expenses of Rs.5000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.  

11.               Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                                     Jyotsna                                Karnail Singh

22.07.2019                            Member                             President