Delhi High Court
Dr. Nidhi Bhatnagar And Anr. vs Citi Bank N.A. And Ors. on 14 December, 2007
Equivalent citations: 147(2008)DLT349
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
ORDER Shiv Narayan Dhingra, J.
1. By this order I shall dispose of an application under Order 7 Rule 11 CPC filed by the defendants for rejection of the plaint of the plaintiffs on the ground that the plaint does not disclose any cause of action and the suit filed by the plaintiffs was barred by law.
2. A perusal of plaint, filed by the plaintiffs would show that the plaintiffs are husband and wife, doctors by profession and were credit card holders of defendant No. 1 bank. Plaintiffs filed this suit claiming that the defendants were adopting discriminating credit card policy towards Indian citizens. The policy of defendant bank in case of credit card towards US citizens was of 'zero liability' against misuse/unauthorized use while for UK citizens, the liability was restricted to 50 Sterling Pounds in case of misuse/unauthorized use but in India the policy was that credit card member would not be liable for any misuse after the card member had intimated the Citibank that the card has been lost or stolen and after Citibank has temporarily suspended the card account and listed the Card number in the Warning Bulletin, provided that Card Member has not acted fraudulently or with gross negligence. It is pleaded that the policy of the bank towards Indian citizens was different from the one towards US and UK citizens and this Court should restrain the defendant bank from practicing discriminatory credit card policy in India for misuse/unauthorized use of stolen/lost credit cards.
3. It be noted that plaintiffs had filed a claim before Consumer Forum against the defendants claiming therein a damage of Rs. 14 lac from the defendants on the ground that defendants raised bill for misuse of the credit card. The credit card of the plaintiffs was valid up to 11th June, 2003. It was not got renewed despite a renewal demand made by the defendants. However, the card was used on 11th July, 2003 and a transaction was made on this card from Sunaina Commodities Pvt. Ltd. worth Rs. 34,700/-. The plaintiffs disputed their liability to pay this amount, when the bill was raised by the defendants. However, it be noted that after the transaction was made defendant bank found that the transaction did not seem to be improper and informed the plaintiffs about this transaction and only after the information received from the defendant bank, the plaintiffs had filled the form about misplacing/loss of the credit card. It seems that defendant bank insisted on payment of this bill and raised the bill time and again. The plaintiffs filed a claim before the Consumer Forum of Rs. 1 lac for each instance of raising bill by the defendants. Since the same bill was raised 14 times, the claim filed by the plaintiffs before Consumer Forum was of Rs. 14 lac, alleging that the plaintiffs suffered harassment, mental agony, inconvenience and interference into their professional lives because of defendant bank.
4. Plaintiffs have stated in the plaint of this case that the defendants in its reply to the claim before Consumer Forum described the plaintiffs as 'negligent' and 'Shylock'. The words used by the defendants for the plaintiffs were designed to defame the plaintiffs. Similarly, use of word 'negligent' for the plaintiffs was humiliating and defamatory. The plaintiffs belonged to a highly reputed profession of doctors and doctors cannot be negligent, especially the doctors of the repute of the plaintiffs can never afford to be negligent. To be cautious and careful was not only a routine but natural for a doctor. It was also a requirement of their profession, so calling the plaintiffs as 'negligent' was a blot on their character and profession. Plaintiffs, therefore, claimed that defendants were liable to pay to the plaintiffs Rs. 20,05,000/- for defamation, humiliating them, causing harassment to them and for their character assassination as well as for bringing dis-repute to the profession of doctors.
5. It is submitted by the defendants that as far as policy towards Indian Credit Card Holders is concerned, the plaintiffs cannot have grievance, nor the suit is maintainable since the defendant bank was carrying on operations in accordance with guidelines/regulations prescribed by RBI and the Circular No. FSC.BC. 123/24.01.019/99-2000 dated 12th November, 1999, provides as under:
Security and other aspects:
a. the bank shall ensure full security of the smart card. The security of the smart card shall be the responsibility of the bank and the losses incurred by any party on account of breach of security, failure of the security mechanism shall be borne by the bank.
e. The cardholder shall bear the loss sustained up to the time of notification to the bank of any loss, theft or copying of the card but only up to a certain limit (of fixed amount or a percentage of the transaction agreed upon in advance between the cardholder and the bank), except where the cardholder acted fraudulently, knowingly or with extreme negligence.
d. Each bank shall provide means whereby his customers may at any time of the day or night notify the loss, theft or copying of their payment devices.
e. On receipt of notification of the loss, theft or copying of the card, the bank shall take all action open to it to stop any further use of the card.
(iii) The terms shall put the cardholder under an obligation to notify the bank immediately after becoming aware: of the loss or theft or copying of the card or the means which enable it to be used;
(iv) The terms shall specify a contact point to which such notification can be made. Such notification can be made at any time of the day or night.
6. It is apparent that this suit has been filed by the plaintiffs, as far as allegations of discrimination are concerned, by way of a Public Interest Litigation. This Court has no jurisdiction to entertain Public Interest Litigation. There is a different Bench where the plaintiffs should have raised these issues. The relief sought by the plaintiffs in this respect is liable to be rejected. The other reason for rejecting the prayer is that this Court has no jurisdiction to entertain such a prayer. The job of giving license for doing banking operations in India is of Union of India and Reserve Bank of India. It is for Union of India and Reserve Bank of India to consider as to on what conditions foreign banks are to be given permission to operate in India. Rules and regulations are framed by Reserve Bank of India. This Court cannot frame rules and regulations for operations of foreign banks in India as it is an Executive function and not a judicial function.
7. The plaintiffs in their plaint have reminded the defendants as to what Father of Nation had to say about the customers:
A customer is the most important visitor on our premises. He is not dependent on us. We are dependent on him. He is not an interruption in our work. He is the purpose of it. He is not an outsider in our business. He is part of it. We are not doing him a favor by serving him. He is doing us a favor by giving us an opportunity to do so.
I think the plaintiffs need to be reminded that Father of Nation did advocate 'Swadeshi'. The plaintiffs, who are highly educated, had option to obtain credit card from Indian banks since there are several Indian banks, that issue credit cards. It is the plaintiffs, who discarded Indian banks and chose to obtain credit card from a foreign bank despite being aware of the discriminatory policy of the foreign banks. If an educated plaintiff can discriminate between Indian bank and foreign bank, can he find fault with a foreign bank when foreign bank discriminates between Indian citizens and foreign citizens.
8. The claim of the damages by the plaintiffs for defaming the plaintiffs and describing the plaintiffs as 'negligent' is also not tenable under law. The use of words 'Shylock' by the defendants in their reply to the claim of the plaintiffs before Consumer Forum cannot said to be defamatory because the plaintiffs in their own pleadings used same word as under: 'The above-mentioned acts of the Defendants can be best described as the modernized version of the Shylock's pound of flesh. The Defendants seem to be interested only in themselves at any cost.'
9. Plaintiffs also cannot claim any immunity from being called 'negligent' by the defendants. If the defendants tell the Court that the plaintiffs were negligent that does not amount to any defamation. The plaintiffs' claim about the profession of doctors and that the doctors can never be negligent, seems to be an imagination of the plaintiffs. It need not be reminded that there had been many cases where doctors have been found to be extremely negligent. The cases of leaving operation instruments, towels, cotton gauzes into the operated area of body have been repeatedly reported. Operating left eye instead of right eye etc. are also not unknown. All professions suffer from one or the other kind of negligence, given to them by human beings. There is no profession, the practitioners of which are absolutely non-negligent. In each profession there shall be such persons who are professionally negligent and may be negligent in their personal dealings. So calling 'negligent' in the WS in context of loss of credit card is no defamation. Even otherwise under law of defamation, the test of defamatory nature of a statement is its tendency to incite an adverse opinion or feeling of other persons towards the Plaintiffs. Where a person alleges his reputation has been damaged it only means he has been lowered in the eyes of right thinking people of society or his friends or relatives. It is not enough for a person to sue for words which merely injure his feelings or annoys him. Injuries to feelings of a man cannot be made a basis for claiming of damages on the ground of defamation. For defamation the words must be such which prejudice to man's reputation or are so offensive as to lower the man's dignity in the eyes of others. Insult in itself is not a cause of action for damages on the ground of defamation. In the present case, the words which have been used by the defendants have been used in the pleadings before a Court and it has not been alleged by the plaintiffs anywhere in the plaint that by use of these words, the plaintiffs' image has got lowered in the eyes of his friends and relatives. The entire reading of the plaint shows that the plaintiffs in themselves felt annoyed because of use of these words for them and filed the present suit. No cause of action arose in favor of plaintiffs and the plea taken by the defendants that the suit does not disclose any cause of action is justified.
10. It is also to be noted that plaintiffs are already contesting a claim for damages before Consumer Forum for harassment and inconvenience. Plaintiffs cannot make same claim before two forums. In the present case, the plaintiffs have also made vague allegations against the defendants in respect of use of muscle men without specifying any date, time and place where muscle men were sent and what was the activity of muscle men. In fact plaintiffs have made general averments that muscle men are sent by such like banks as defendants for recovery of their dues and plaintiffs have made a prayer that this Court should stay all unlawful collection proceedings initiated and instituted by the defendant No. 1 against all Indian citizens pertaining to and involving mis-use and/or unauthorized use of their stolen and/or lost credit cards issued by the defendant No. 1. Plaintiffs have not filed this suit in the representative character neither plaintiffs have been authorized by any other Indian citizen to file the suit on his behalf. Neither the plaintiffs sought leave of the Court to file such a suit as required under Section 91(1)(b) of CPC.
11. In view my above discussion, the application made by the defendants is allowed and I consider that the plaint is bereft of any cause of action and is hereby dismissed.