National Consumer Disputes Redressal
Omesh Kaplish vs Hdfc Bank & Anr on 27 November, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1549 OF 2015 (Against the Order dated 15/09/2014 in Appeal No. 289/2012 of the State Commission Punjab) 1. OMESH KAPLISH S/O SHRI PREM KUMAR KAPLISH RESIDENT OF PROFESSOR COLONY, CHANDIGARH ROAD KHANNA LUDHIANA PUNJAB ...........Petitioner(s) Versus 1. HDFC BANK & ANR POST OFFICE ROAD MANDI GOBINDGARH, THROUGH ITS BRANCH MANGER, 2. HDFC BANK, HEAR RANI EYE HSOPITAL, OPPOSITE BUS STAND, G.T. ROAD KHANNA THROUGH ITS BRANCH MANAGER. ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER HON'BLE MR. C. VISWANATH,MEMBER
For the Petitioner : Ms. Deepa Chacko, Advocate For the Respondent : Mr. Sharique Hussain, Advocate
Dated : 27 Nov 2020 ORDER
This revision petition has been filed by the petitioner Omesh Kaplish against the order dated 15.09.2014 of the State Consumer Disputes Redressal Commission, Punjab, (in short 'the State Commission') passed in First Appeal no.289 of 2012.
2. The brief facts of the case are that the petitioner was having a credit card bearing no.4346781003145330 issued by the respondent bank on 29.01.2008 and the limit of the credit card was Rs.1,75,000/-. The complainant was regularly using the credit card and was repaying the outstanding amount, however, the outstanding amount reached to a level of Rs.1,22,113/- on 09.02.2009. The bank made a settlement with the complainant on 16.02.2009 and the settled amount was Rs.90,000/- which was to be paid in four equal instalments of Rs.22,500/- starting from the same month. The first instalment of Rs.22,500/- was paid on 16.02.2009 itself. The instalments were to be paid before 25th of each month, however, the complainant paid only Rs.12,000/- before 25th March and remaining Rs.10,000/- was paid in first week of April. The payment of other instalments was also delayed and the payment was made in bits and pieces on different dates. In the complaint, the complainant has alleged that he has paid Rs.98,310/- including the interest.
3. The complainant also took a loan against gold jewellery from the respondent bank for Rs.1,53,000/- vide loan sanction letter dated 03.12.2010. This loan was for 180 days @ 12.50% p.a. interest. The complainant deposited Rs.1,50,000/- on 25.03.2011 in his saving bank account with the bank. It has been alleged by the complainant that this amount was deposited as repayment against the gold loan. The bank recovered Rs.1,25,783/- from this amount on 09.04.2011 as outstanding dues against the credit card. The bank has not thus returned the gold jewellery of the complainant. Aggrieved by this action of the bank, the complainant filed a consumer complaint bearing no.180 of 2011 before the District Forum, Fatehgarh Sahib. The complaint was resisted by the opposite party bank on the ground that as per settlement agreement between the complainant and the bank, if the instalments for payment of the settled amount were not paid by the complainant in the stipulated time, the settlement would become null and void and therefore, interest and penalty piled up in the credit card account and the total outstanding became about Rs.1,28,000/- and the bank under the general lien recovered the amount of Rs.1,25,783/- from the account of the complainant. The District Forum, however, allowed the complaint and passed the following order on 09.12.2011:-
"Hence we accept this complaint and order the opposite parties to give back the gold jewellery on which the complainant had taken the loan of Rs.1,50,000/- while the complainant has already deposited Rs.1,50,000/- on 25.3.2011 and he has not withdrawn the amount from his saving account after that. Therefore to withdraw an amount of Rs.1,25,783/- from the A/c of the complainant and to issue notice to sell the jewellery of the complainant is a deficiency of service on the part of the opposite parties. Hence we accept this complaint and order the opposite parties to release the jewellery pledged by the complainant which is to be released on 25.3.2011 and to give Rs.10,000 as mental tension & harassment and also give Rs.5000/- as litigation charges within one month of receiving this order."
4. Aggrieved by the order of the District Forum, the opposite party bank preferred an appeal bearing no.289 of 2012 before the State Commission. The State Commission has accepted the appeal and dismissed the complaint vide its order dated 15.09.2014.
5. Hence the present revision petition.
6. Heard the learned counsel for the parties and perused the record. The learned counsel for the petitioner stated that the petitioner is a petty shopkeeper and due to his financial condition he could not deposit the instalments in time and deposited the settled amount along with interest in a piecemeal method. As against the settled amount of Rs.90,000/-, the complainant has deposited Rs.98,310/- by December, 2009. Thus, there should have been no outstanding in the credit card account of the complainant. Complainant had never used the credit card after the settlement and therefore, the complainant was convinced that the credit card account has been finally settled and closed. The learned counsel argued that the loan against the jewellery was a separate loan and the money deposited for repayment of this loan should not have been adjusted against credit card dues if any. This is a clear deficiency on the part of the bank. The District Forum has allowed the claim of the complainant and has directed the opposite party to return the gold jewellery of the complainant, but the State Commission has relied upon the general lien of the bank on the deposited amount and has allowed the appeal of the respondent bank. The learned counsel stated that after the settlement in respect of the credit card dues, no communication was received by the complainant and the complainant was sure that the total payment has been made. It was argued by the learned counsel that after the settlement of the credit card account, no interest and penalty etc. can be added to the account against the complainant because more than settled amount was already paid. It was requested that the opposite party may be directed to return the gold jewellery.
7. Learned counsel for the complainant also argued that as per Section 39 of the Indian Contract Act, 1872, as the bank has accepted the payment made by the complainant and has not objected to such payment, it would be deemed that the bank has extended the time limits for payment of instalments and their silent consent is implied. Therefore, the settlement cannot be treated as null and void. It would be treated as having been continued till last payment was made by the complainant in December, 2009. Accordingly, the total dues stand cleared by December, 2009,
8. On the other hand, learned counsel for the respondent bank stated that the conditions of the settlement are very clear and as per one of the condition of the settlement, if the instalments were not paid in time, the settlement would become null and void and the complainant would be liable to pay the outstanding amount at that point of time. On the directions of this Commission, the respondent bank has filed the statement clearly showing an outstanding of Rs.1,28,000/- against the credit card account and the notice was given to the complainant dated 25.3.2011 to clear this amount. When the complainant did not make any payment against the credit card account, the amount of Rs.1,25,783/- was recovered from his saving bank account on 09.04.2011 under the general lien of the bank on all the deposited amount in the bank. The learned counsel for the bank stated that as per Section 171 of the Indian Contract Act, the bank has general lien on the amount deposited by its customer and the bank has every right to recover the dues from the account holder by debiting the account. The learned counsel further mentioned that the amount of Rs.1,50,000/- was deposited in the saving bank account of the complainant and not against the gold loan account. There was no instructions also given to the bank to adjust the gold loan amount out of this account. The money was deposited on 25.03.2011 and the recovery has been made on 09.04.2011. If the complainant had deposited this amount for repaying the gold loan and if the amount was not debited from his saving bank account till 09.4.2011, complainant should have inquired about the repayment of his gold loan. It is thus, clear that there was no instruction to the bank to adjust gold loan amount from this account. The bank is fully justified in recovering this amount as against the outstanding credit card dues from the saving bank account of the complainant.
9. We have carefully considered the arguments advanced by the learned counsel for the parties and have examined the material on record. The credit card account statement submitted by the opposite party bank shows that there was an outstanding of Rs.1,22,113/- on 09.02.2009 and the bank entered into settlement with the complainant on 16.02.2009. As per this settlement, the outstanding was reduced to Rs.90,000/- to be paid in four equal monthly instalments of Rs.22,500/- each and the following conditions are mentioned in the settlement:-
"Terms and conditions of the settlement
Please be aware that the above instalments for repayment of the settlement amount will have to be realized by the Bank on or before the agreed date of repayment in this letter. No payments will be accepted by the Bank in the settlement terms post the 25th of every calendar month except the first instalment.
Please note that your above mentioned Credit Card account will continue to accrue interest & 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. "
The Settlement terms detailed above are in addition to, and not in derogation of, the Card Member Agreement and the Terms & Conditions governing the usage of the HDFC Bank Credit Card.
All payments made with regard to the above settlement program are valid subject to the payment being made against a serially numbered receipt issued by the Bank.
Kindly sign the copy of this settlement letter as your acceptance for the Terms & Conditions of the settlement program."
10. It is important to note that the bank has not issued any letter about the breach of settlement as soon as the breach was made or even otherwise till the sanction of the gold loan and even thereafter till 25.3.2011 when the bank informed the outstanding dues of the credit card to the complainant. Section 39 of the Indian Contract Act, 1872 reads as under:-
"39. Effect of refusal of party to perform promise wholly. When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance."
11. From the above Section, in the present case, it seems that the promisee (the bank) by its conduct i.e. by not objecting to the breach of the settlement and by not writing any letter for recovery of the outstanding amount till about a year after the breach, would be deemed to have extended the time limit of the settlement. Even though one of the conditions of the settlement is that if the complainant defaulted in payment of instalments, the settlement would be rendered null and void, the bank has accepted the payments given by the complainant even after breach of the settlement. It can very well be argued by the bank that payments were accepted as the payment against the outstanding at that time and the payments given by the complainant were not over and above the outstanding amount. The State Commission has observed that the statement of accounts of the credit card have been filed by the bank clearly showing the outstanding amount against the complainant, but the question is whether the complainant was informed by the bank that the settlement has been breached and the original outstanding has become due for payment.
12. A perusal of the settlement shows that settled amount is only Rs.90,000/-, which was to be paid in four equal instalments of Rs.22,500/- each. Each instalment was to be paid before 25th of each month. From the account statement, it is clear that Rs.22,500/- (first instalment) and Rs.12,000/- has been paid within time, and the remaining amounts have been paid in breach of the settlement i.e. after the stipulated time given in the settlement. In total, the amount of Rs.98,310/- has been paid by the complainant as stated in the complaint. The bank has reflected Rs.75,870/- in their statement of account, however, remaining Rs.22,500/- is not reflected and this amount was given to the agent Sarvjeet as alleged in the complaint. In the written statement filed by the bank, the bank has not objected to this payment as would be clear from the following portion of the written statement filed by the bank:-
"That the content of the paragraphs above may be read as part of the reply to this paragraph. Without repetition, it is submitted, that though it has been admitted by the complainant that the one-time settlement was required to be paid in four equal instalments over be 22,500/- each, admittedly as mentioned in this paragraph the same was not adhered to. Hence the payment was not made in accordance with the one-time settlement. And the one-time settlement ceased to exist for all facts and purposes and became null and void, thereby entitling the bank to claim the full amount due under the credit card account. It is wrongly to state that nothing was due of against the complainant on the payment of Rs.98,310/-. Thus as on 09.04.2011, the complainant was liable to pay an amount of Rs.1,28,864.72/- and hence the bank exercised its right of lien."
13. A perusal of the terms and conditions of the settlement would show that the credit card account will keep on adding interest and penalties as per the normal conditions and after the payment of all the four instalments, the reversals and waivers will be processed. In fact, no promise is reflected on the part of the bank in the settlement offer. If the interest and penalties were to be added in the account and the reversals and waivers were to be processed after the payment of EMIs, the commitment on the part of the bank is not clear in the settlement. Only one thing is clear that the bank has restricted its recoverable amount on 16.02.2009 to be only Rs.90,000/-. In fact, when a matter is settled between the parties, the responsibility and liabilities of both the parties should be strictly clear. In this settlement, the responsibility of the complainant was very clear, however, the responsibility and liability of the opposite party bank was not specifically made clear. In fact, meaning of such settlement would be that the outstanding amount has been reduced to Rs.90,000/- and the same was to be deposited in four instalments. The settlement would only mean that if all four instalments are deposited as per the time given in the settlement, the outstanding would become nil on the payment of 4th instalment. As the complainant had paid Rs.34,500/- during the stipulated time as per the conditions of the settlement, the outstanding as on 25.03.2009 would be Rs.55,500/- (Rs.90,000 - Rs.34,500/-). Clearly, complainant has not paid further amount in time as per the settlement and therefore, the opposite party bank would be entitled to levy interest on the amount of Rs.55,500/- as per the terms and conditions of the credit card though it was not correct on the part of the bank to have waited to issue notice to the complainant for recovery of the credit card dues till 25.3.2011, however, because the credit card account was not closed, therefore, interest would accrue on this amount.
14. Clearly as per Section 171 of the Indian Contract Act, 1872, the bank has a general lien on the amount deposited by its customer if there is no contrary agreement between them. In the present case, the complainant has not placed on record any contract which is contrary to this general provision. Hence, we agree with the observation of the State Commission that the bank had the general lien on the amount kept in the saving bank account of the complainant for recovery of their dues.
15. Based on the above discussion, the revision petition no.1549 of 2015 is partly allowed and we pass the following order:-
ORDER
16. The respondent bank will realise the credit card dues treating outstanding on 25.03.2009 to be Rs.55,500/- along with interest as leviable under the conditions of the credit card after adjusting the amounts paid by the complainant after 25.03.2009 on different dates which are to the tune of Rs.63,810/-. This outstanding shall be calculated upto 09.04.2011. This amount will be treated as deducted from the saving bank account of the complainant on 09.04.2011. As an amount of Rs.1,25,783/- has been deducted by the bank, the excess amount so deducted will be adjusted against the repayment of gold loan on the same date i.e. 09.4.2011. The remaining gold loan amount will be paid by the complainant as per the provision of the gold loan account. The respondent bank will communicate this remaining outstanding against the gold loan calculated on the above basis to the complainant within 30 days from the date of receipt of this order. The bank will return the gold jewellery of the complainant after payment of the gold loan as ordered above within a period of one week after such clearance of the gold loan.
...................... PREM NARAIN PRESIDING MEMBER ...................... C. VISWANATH MEMBER