State Consumer Disputes Redressal Commission
Kotak Mahindra Bank Ltd. And Another vs Bikramjit Singh on 4 September, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.642 of 2022
Date of Institution : 01.08.2022
Reserved on : 20.08.2024
Date of Decision : 04.09.2024
1. Kotak Mahindra Bank Limited, SCO No.120, Ground Floor,
Ferozepur Gandhi Market, Ludhiana, Punjab-141001, through
its Authorized Representative Shri Parveen Kumar.
2. Kotak Mahindra Bank Limited, having registered office at 27
BKC, C27, G Block, Bandra Kurla Complex, Bandra (E),
Mumbai-400051, through Nodel Officer, Consumer Rank, Kotak
Infiniti, 6th Floor Bldg. No.21, Infinity Park, Off. Western Express
Highway, General AK Vaidhya Marg, Malad (E), Mumbai-97,
through its Authorized Representative Shri Parveen Kumar.
........Appellants/Opposite Parties
Versus
Bikramjit Singh aged 30 years, S/o Shri Sarabjit Singh, R/o 274-R,
Model Town, Aroma Market, Ludhiana, Punjab.
.....Respondent/Complainant
Appeal under Section 41 of the Consumer
Protection Act, 2019 to challenge the
order dated 06.05.2022 passed by the
District Consumer Disputes Redressal
Commission, Kapurthala Camp Court at
Ludhiana in RBT/C.C. No.812 of 2016.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Mr. Vishav Kant Garg, Member Present:-
For the Appellants : Sh. Devinder Singh, Advocate For the Respondent : Sh. Munish Goel, Advocate 2 First Appeal No.642 of 2022
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No JUSTICE DAYA CHAUDHARY, PRESIDENT:-
The Appellants/OPs being aggrieved by the impugned order dated 06.05.2022 passed by the District Consumer Disputes Redressal Commission, Kapurthala Camp Court at Ludhiana RBT/C.C. No.812 of 2016, have filed present Appeal under Section 41 of the Consumer Protection Act, 2019, (in short the 'Act'), whereby the Complaint filed by the Respondent/Complainant had been partly allowed by issuing directions to the Appellants/OPs to activate the Credit Card of the Complainant with further direction to compensate the Complainant for an amount of Rs.20,000/- for causing mental tension, harassment and agony and also to pay Rs.7500/- as litigation expenses. The compliance of the order was to be made within a period of 1 month from the date of receipt of the copy of the order.
2. The Complainant filed the Complaint before the District Commission stating therein that the Complainant (Bikramjit Singh) had hired the services of the OPs for obtaining the Credit Card facility subject to annual charges/fee of Rs.499/-. The OPs had issued League Platinum Credit Card whereby the Complainant was allowed to use the card upto credit limit of Rs.1,20,000/- as well as total cash limit of Rs.25,000/- with the available cash limit of 3 First Appeal No.642 of 2022 Rs.25,000/-. However, subsequently the Credit Card was blocked without any intimation to the Complainant. The Complaint was filed with the grievance that the action of the OPs in rendering the service was deficient and negligent and they had adopted 'unfair trade practice' due to which the Complainant had suffered mental tension, harassment and loss as the Complainant had been deprived of using the services of Credit Card and OPs be directed to activate the Credit Card without any charge for the period of de-activation and the OPs be punished for their inaction/ action and penalized for an amount of Rs.75,000/- alongwith litigation expenses of Rs.7500/-.
3. Notice in the Complaint was issued to the OPs and in response to the notice, the OPs filed written version wherein certain preliminary objections were raised mentioning therein that the Complaint was liable to be dismissed as there was no negligence or any deficiency in service on the part of the answering OPs and Complaint was liable to be dismissed. Further it was stated that the Complainant had filed the Complaint by concocting a false story and wrong facts were mentioned. The other averments made in the Complaint were specifically denied and it was mentioned that the Complaint was liable to be dismissed on merits as well.
4. By considering the averments made in the Complaint and reply thereof filed by both the OPs and also by hearing the oral arguments raised by Counsel representing both the parties, the Complaint filed by the Complainant was partly allowed vide order 4 First Appeal No.642 of 2022 dated 06.05.2022. Said order passed by the District Commission has been challenged in the Appeal. The relevant portion of said order as mentioned in para No.12 is reproduced as under :-
"12. In view of above discussion, we partly allow this Complaint and OPs are directed to activate the Credit Card of the Complainant. The OPs are directed to compensate the Complainant for Rs.20,000/- on account of mental tension, harassment and agony and Rs.7500/- as litigation expenses. Compliance of the order be made within one month from the date of receipt of copy of the order. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and therefore, the file be consigned to the record room after compliance."
5. Mr. Devinder Singh Advocate, learned Counsel for the Appellants has submitted that the District Commission has wrongly allowed the Complaint without giving any finding qua to jurisdiction as the District Commission Ludhiana was not having jurisdiction to entertain, try and decide the Complaint as is clear from Clause 32.1 of the Terms and Conditions as in case any dispute relating to usage of card has to be referred to the Arbitration under the relevant provisions of Arbitration Act. Learned Counsel has further submitted that the District Commission had also not taken into consideration certain documents which were executed between the Complainant and the Appellants/OPs wherein it was specifically mentioned that the Complainant had read the terms and conditions for the Bank Credit Card and he had agreed that he will be bound by those terms and conditions including the excluding and limiting the Bank liability. 5 First Appeal No.642 of 2022 Further it has been submitted that the District Commission has also ignored a material fact that the impugned order was obtained by the Complainant on the basis of misrepresentation of the facts. As per the averments of the Complainant, the last due date for paying the outstanding amount of Rs.1275.70 paisa was 16.12.2015. However, the Credit Card statement shows that same was to be paid immediately. Learned Counsel has further submitted that the Complainant himself had not adhered to the terms and conditions of the Credit Card which were in violation of Clause 6 & 7 of the terms and conditions. Further the Complainant had misled the District Commission by way of projecting a concocted and fabricated story by twisting the facts and by ignoring the relevant documents and facts and as such the impugned order is liable to be set aside. Learned Counsel has further submitted that the District Commission had also ignored a material fact that the Complainant himself had admitted in para No.9 of the Complaint that the OPs were having right to cancel the Credit Card even without giving any prior notice as mentioned in last part of para No.7 of the Most Important Terms and Conditions. Learned Counsel has further submitted that the Complainant himself had been paying the amount late and even after the last date so due and as such the computer system used to calculate the late payment due and service tax on it as is clear from the statement of account for the period of the month of February, 2015 to November 2015. Learned Counsel has further submitted that it is clear from the statement of August, 2015 to October 2015 and also for the month of 6 First Appeal No.642 of 2022 November, 2015. The due date for making the payment was mentioned as 'Immediate'. However, the Complainant had been paying the amount late. The District Commission had also failed to take into consideration the documents i.e. letter dated 01.11.2016 which was issued by the Appellants/OPs by intimating the Complainant regarding withdrawal of all the credit facility entered with the Complainant and the same were terminated. Learned Counsel has further submitted that the Complainant had been irregular in paying the amount towards total amount due on the Credit Card as is clear from the payment history as reflected in the statements of accounts for the period i.e. 25.12.2014 to 25.11.2015. At the end, it has been submitted that the impugned order has been passed without any application of mind and without giving any cogent reasons therein whereas there was not major transactions or any irregularity to the extent of blocking the Card and as such the order was passed in haste without any application of mind. It has been further submitted that the District Commission has also failed to mention any cogent reason for non-applicability of Clause 6 and 7 of the terms and conditions with regard to holding of Credit Card whereas Clause 6 pertains to the default and said Clause deals with the termination/revocation of the Cardholdership. Both the said Clauses above have not wrongly been made applicable by the District Commission whereas no such reason has been mentioned in the order. It has also been submitted by the learned Counsel for the Appellant that the District Commission had not taken into 7 First Appeal No.642 of 2022 consideration a material fact that the Complainant had availed the appropriate remedy by filing the Complaint with the Banking Ombudsman and even said Authority had closed the Complaint vide order dated 15.04.2016. Thereafter, being aggrieved by the order of the Banking Ombudsman, the Complainant/Respondent had filed the Complaint before the District Commission which is contrary to the Rules and Regulations of Banking Ombudsman Scheme 2006 as formulated under the provisions of Reserve Bank of India. It has been specifically provided that in case anyone who aggrieved with the decision of the Ombudsman, the concerned person may approach the Appellate Authority within a period of 30 days of the alleged decision. However, this fact has been ignored by the District Commission and had passed the order in a mechanical manner without dealing with this issue.
6. Mr. Munish Goel Advocate, learned Counsel for the Respondent/Complainant has opposed the submissions made by learned Counsel for the Appellants as the order passed by the District Commission is based on proper appreciation of documents, evidence and oral arguments. The Complaint filed by the Complainant was allowed by issuing direction to activate the Credit Card or the Respondent/Complainant without any charge or penalty for the period of deactivation. Further a direction was issued to pay compensation and litigation expenses. Learned Counsel has further submitted that it is clear from Ex.C-2 that the Credit Card limit was not exceeded and the maximum amount used by the Respondent/Complainant was only 8 First Appeal No.642 of 2022 Rs.16,838/- against the Credit Card limit of Rs.1,20,000/-. The Respondent Complainant had paid an amount of Rs.17,000/- against the outstanding amount on 13.02.2015. The statement shows the major transaction and no irregularity had happened and there was no other reason to block the Credit Card for such a meager amount. Learned Counsel has further submitted that the last entry shows that an amount of Rs.1276/- was to be paid by the respondents upto 16.12.2015 as an amount of Rs.2000/- had already been paid prior to said date and thereafter the card was blocked. Further it has been also submitted that even the last late payment charges were also reversed by the Appellants/OPs. The Respondent/Complainant cannot be treated under Clause 6 of the terms and conditions of the Credit Card as the Respondent/Complainant was not a willful defaulter. Moreover the termination of Credit Card is clearly a case of 'deficiency in service' on the part of the Appellants and by considering this material fact and reasons, the District Commission had rightly allowed the Complaint and as such the Appeal is liable to be dismissed.
7. We have heard the arguments raised by learned Counsel for the parties and have also gone through the relevant record of the case.
8. Admittedly, the Complainant had hired the services of Appellants/OPs for obtaining Credit Card facility subject to annual charges/fee of Rs.499/-. The Complainant was allowed to use the 9 First Appeal No.642 of 2022 Credit Card upto the credit limited of Rs.1,20,000/- with total cash limit of Rs.25,000/-. Initially the Complainant had used the Credit Card for purchasing some expensive goods and items but subsequently usage of said Card was limited/restricted at the instance of the Complainant for purchasing small things/items to meet out the emergency requirement. Thereafter, the said Credit Card was used of Rs.1276/- and the due date for payment was 16.12.2015 as per version of the Complainant. The Complainant had deposited the said amount on 16.12.2015 but thereafter his card was blocked.
9. It is also the argument of learned Counsel for the Appellants that the District Commission was not having jurisdiction to entertain, try and decide the Complaint as there was an Arbitration Clause as mentioned in Clause 32.1 of Most Important Terms and Conditions of Credit Card. It is also the stand of the Appellants that the Complainant had approached the Banking Ombudsman and his case was closed and instead of challenging the same, he had approached the District Commission which was contrary to the Rules and Regulations of Banking Ombudsman Scheme 2006 as formulated under the provisions of Reserve Bank of India. It is also pertinent to mention here that the existence of Arbitration Clause or any other provision does not bar the Consumer to file a Complaint before the District Commission.
11. The three Judges Bench of Hon'ble Supreme Court of India in case i.e. Civil Appeal No.923 of 2017 (Arising out of SLP 10 First Appeal No.642 of 2022 (C) No.28615 of 2016) titled as "Vodafone Idea Cellular Ltd. Versus Ajay Kumar Agarwal" decided on 16.02.2022, had held in para No.20 as under :-
20. The above position was reiterated in IREO Grace Realtech (P) Ltd. v. Abhishek Khanna by a three-judge Bench of this Court, of which one of us (Justice DY Chandrachud) was a part. Justice Indu Malhotra, speaking for the Bench invoked the doctrine of election, which provides that when two remedies are available for the same relief, the party at whose disposal such remedies are available, can make the choice to elect either of the remedies as long as the ambit and scope of the two remedies is not essentially different. These observations were made in the context of an allottee of an apartment having the choice of initiating proceedings under the Act of 1986 or the RERA. In the present case, the existence of an arbitral remedy will not, therefore, oust the jurisdiction of the consumer forum. It would be open to a consumer to opt for the remedy of arbitration, but there is no compulsion in law to do so and it would be open to a consumer to seek recourse to the remedies which are provided under the Act of 1986, now replaced by the Act of 2019. The insertion of the expression 'telecom services' in the definition which is contained in Section 2(42) of the Act of 2019 cannot, for the reasons which we have indicated be construed to mean that telecom services were excluded from the jurisdiction of the consumer forum under the Act of 1986. On the contrary, the definition of the expression 'service' in Section 2(o) of the Act of 1986 was wide enough to comprehend services of every description including telecom services."
The ratio of aforesaid judgment of Hon'ble Supreme of India is fully applicable in the present case. Accordingly, we find no force in this argument of the learned Counsel for the Appellants.
12. As per the arguments raised by learned Counsel for the Appellant, the District Commission had failed to mention any cogent reasons for non-applicability of Clause 6 and 7 of the terms and conditions with regard to holding of Credit Card. The Credit Card statement (Ex.R-2) shows the payment of Rs.1275.70 which was to 11 First Appeal No.642 of 2022 be paid 'immediate' but the Complainant had deposited the same on 16.12.2015 and the Complainant had violated Clause 6 & 7 of the Most Important Terms & Conditions and as such the Appellants had rightly blocked the card. It is pertinent to mention here that the Complainant had deposited an amount of Rs.2000/- instead of Rs.1275.70 paise which was accepted by the Appellant Company. On perusal of documents available on the file, the Credit Card was used by the Complainant within its limit. Meaning thereby that there were no major transactions but still the Credit Card was blocked by the Appellants/OPs. As per the stand of the Respondent/Complainant, late payment charges were also reversed by the Appellants. The Complainant had deposited the last payment on 16.12.2015 with late payment charges but no date was mentioned by the Appellants/OPs when the Credit Card was blocked. The Appellants/OPs were having right to charge late payments charges/interest charges, as per the Terms and Condition (Ex.R-1) as placed on record by the OPs before the District Commission but instead of charging the late payment charges, the Appellants/OPs had chosen to block the Credit Card. However, Clause 6 (Default) of the terms and conditions is relevant in the present case. The relevant part of Clause 6 is reproduced as under:-
"6. Default If Cardholder does not pay at least the Minimum Amount Due, Cardholder(s) will be reminded in each subsequent statement to pay their dues. Balance outstanding for a period greater than 6 months will result in the Cardholder being 12 First Appeal No.642 of 2022 reported as a 'willful defaulter'. In the event of default, follow- ups may be done by post, fax and telephone, electronic mail, SMS messaging and/or engaging third parties to remind follow up and collect dues. XXXXXXX."
The Appellants/OPs has placed on record three statements i.e. 25.08.2015, 25.10.2015 and 25.11.2015, wherein 'immediate' word has been mentioned for payment. As Clause 6, the Complainant was not declared 'willful defaulter'. In case the Complainant was willful defaulter, the Appellants should have sent follow-ups by post, fax & telephone, electronic mail, SMS messaging or by engaging third parties to remind for follow up and to collect the dues but this practice had not been adopted by the Appellants. No evidence had been placed on record by the Appellants/OPs before the District Commission as well as before this Commission to prove that they had declared the Complainant as willful defaulter and had sent the message by any of the modes as mentioned in Clause 6 (Default). Meaning thereby, the Complainant cannot be said to be a willful defaulter. The District Commission while relying upon the judgment of the case titled as "Surjit Singh Sood Vs. BOBCARDS Ltd. & another" 2003(2) CLT-68 passed by this Commission, wherein it was held that it was the duty of the OPs to inform the Complainant of his default, if any, but in the present case no such default was ever conveyed and Credit Card was blocked without giving any prior notice.
13First Appeal No.642 of 2022
13. In view of above detailed discussion and reasons, we do not find any merit in the contentions raised by learned Counsel for the Appellants, accordingly, the Appeal is dismissed.
14. The Appellants had deposited an amount of Rs.13,750/- at the time of filing of the Appeal with this Commission. Said amount, alongwith interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The Respondent/Complainant may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law.
15. Since the main case is decided, the pending applications, if any, are also disposed of.
16. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER (VISHAV KANT GARG) MEMBER September 04, 2024 (MM)