State Consumer Disputes Redressal Commission
Hdfc Bank Ltd., vs Anthony Pillay on 20 June, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION :: HYDERABAD.
(ADDITION AL BENCH)
F.A.No.404/2018 AGAINST ORDERS IN
C.C.No.45/2015 ON THE FILE OF
DISTRICT COMMISSION, RANGA REDDY.
Between:
H.D.F.C.Bank Ltd.,
Hitech City Branch,
Podum Floor, Next to Thomas Cook
Cyber Towers, Madhapur,
Hyderabad,
Represented by its Manager-Legal
And authorized signatory
Mr.VenkateshVogaldas,
S/o.Late Krishna, R/o.Hyderabad. ... Appellant/
Opposite party
And
Antony Pillay, S/o.Mathew Pillay,
Age 41 years, Occ:Pvt.Employee,
R/o.Hyderguda, Hyderabad. ... Respondent/
Complainant
Counsel for the Appellant : M/s.Lotus Law Associates
Counsel for the Respondent : M/s.Thomas Joseph Lloyd.
QUORUM: HON'BLE, SRI V.V.SESHUBABU MEMBER - (J)
&
HON'BLE SMT R.S. RAJESHREE, M EMBER - (NJ)
TUESDAY, THE TW ENTIETH DAY OF JUNE,
TW O THOUSAND TWENTY THREE.
Order :(Per Hon'ble Smt. R.S.Rajeshree, M ember - (NJ)
*****
01). This appeal is filed u/s.15 of C.P.Act,1986 by the opposite
party aggrieved by the order passed in C.C.NO.45/2015 by
District Forum, Rangareddy Dist. by way of orders dt.17.3.2017
wherein the Forum has passed the following orders:
" In the result, the opposite party is directed to pay an
amount of Rs.51,752/- (Rupees Fifty One Thousand
Seven Hundred and Fifty Two only) with interest at 6%
p.a. from 01.10.2014 till the date of realization. The
opposite party is further directed to pay Rs.5,000/-
(Rupees Five Thousand only) as compensation for the
2
mental agony suffered by the complainant along with
costs of Rs.2,000/- ( Rupees Two Thousand only). The
complaint is partly allowed accordingly. Time for
compliance is one month."
02). For the sake of convenience, the parties are arrayed as
complainant and opposite party.
03). The case of the complainant is that he is employed at Bank
of America and has salary account in the opposite party bank,
Hitech City Branch, vide account no.50100037642722 and in the
month of October 2014 he received his salary in the said account
and his opening balance was Rs.51,752/- as on 1.10.2014; that on
1.10.2014 , when he visited the ATM to withdraw some amount for his family needs, but he was shocked to know that the opposite party had put his salary account on hold on the pretext that there were dues for the credit card no.4617863005556525 alleged to be that of the complainant. On the same day, the complainant had made a complaint to the Grievance Cell seeking the details of payment record of the credit card and also to defreeze his salary account. On 7.10.2014 he received a reply mail from the opposite party informing that his complaint would be looked into and would responded within seven business days, but to his utter shock he did not receive any response from the opposite parties, but the amount of Rs.51,752/- was transferred from his account to that of the opposite parties, leaving his balance as zero. As there was no response, he got issued a legal notice. In response to the legal notice, the opposite party sent a mail without furnishing any details of the credit card dues nor had given any valid reasons for transferring the amount from his account, but had merely demanded to pay balance amount of Rs.15,399.77 ps. and further stated that card was invalidated and that as on 21.10.2014 the balance due was shown as Rs.2,67,220.80 .
This act of opposite party in withholding the salary account without any intimation and subsequently transferring the amount to their account without furnishing any details of credit card dues is illegal and against the banking rules which amounts to deficiency of service. These acts of opposite party have not only caused financial loss, but also had caused severe physical and 3 mental agony. As such, having no other alternative, the complaint was filed.
04). The opposite party filed their written version while admitting the salary account of the complainant and also the transfer of sum of Rs.51,752/- from the complainant's account to their account, had pleaded that the same was done as there were some pending dues in the credit card of the complainant and that the said transfer was done in exercise of its right of general lien over the funds available in savings account of the complainant and further pleaded that in reply to the legal notice, they have clearly mentioned that they have exercised the said right of general lien and further informed that even after such adjustments, there were dues of Rs.2,67,220.80 ps. The opposite party had further relied on Syndicate Bank vs. Vijay Kumar ((AIR)1992 SC 1066), Smt.Nagalambika vs. Corporation Bank & Anr., in Paget's Law of Banking, 8th Edition, page 498, United Commercial Bank vs. Bank of India & others ( SC), Canara Bank vs. N.Palani & another 1999, Union of India vs.Jyothi Chit Fund & Finance (AIR 1976 SC 1163) and pleaded that in all the above cases, the Courts have stated that the Bank is at liberty to exercise their general lien on the other deposits lying with them and that they have done the same which does not amount to deficiency of service and which is justified based on the agreement entered between the Bank and the complainant and prayed that the complaint be dismissed.
05). Before the District Forum, the complainant filed his evidence affidavit and got marked Exs.A1 to A8. The opposite party did not choose to file any evidence affidavit, but had filed a memo stating that his written version be treated as evidence affidavit. No documents were marked on behalf of opposite party. The District Forum after hearing the complainant counsel and going through the record, had passed the orders, as stated supra.
06). Aggrieved by the said orders, the appellant/opposite party has filed present appeal on the following grounds and prayed that the appeal be allowed by setting aside the order of the District Forum :
4 That the District Forum had erred in not
considering the terms in "Usage Guide" wherein
the Bank has a lien to set off all monies that
are in their custody;
The District Forum had failed to consider that in Syndicate Bank vs. Vijay Kumar, the Supreme Court has held that in mercantile system, the Bank has general lien over all forms of security or negotiable instruments deposited by or on behalf of customers in the ordinary course of banking business.;
The District Forum failed to consider that as per Section 171 of Indian Contract Act, it is clear that unless a contract to the contrary is established by the plaintiff, the bank's right of lien will have to be accepted (Smt.K.S.Nagalambika vs. Corporation Bank) ;
The District Forum failed to consider that the respondent/complainant is well aware of the usages made by him by using the credit card ;
The District Forum failed to consider that the respondent/complainant had not filed even a single receipt to show that he has paid the outstanding dues;
The District Forum failed to consider that there was no deficiency on the part of the appellant/opposite party, but the said deductions from the account of the respondent/complainant were done in exercise of their general lien that is available to the Banker.
07). Heard the appellant/opposite party counsel. The respondent/complainant though made his appearance through an advocate, but did not choose to make his oral submissions. Perused the record and also the impugned order.
08). The points that arise for consideration are i. Whether the impugned order as passed by the District Commission suffers from any error or 5 irregularity or whether it is liable to be set aside, modified or interfered with in any manner?
ii. To what relief 09). Before discussing the merits of the case, we would like to make a mention that the appellant/opposite party has filed I.A.No.1570/2022 along with the appeal to receive certain
documents. The respondent/complainant though received notice in the said I.A., did not choose to file any counter nor made any oral submissions. Perused the accompanying affidavit filed along with the petition. It is the contention of the petitioner/appellant that the respondent/complainant had availed two different credit cards by submitting two different pan cards and had obtained two credit cards one in the year 2007 and concealing the said fact had availed another credit card on 7.3.2012 and after thorough investigation, the said fact has come to the notice of the Bank, as such the documents could not be filed before the District Forum and prayed that the documents be received.
10). Perused the documents. The said documents are i) old credit card application; ii). New credit card application; iii) statement of account; iv) correspondence for lien. As all these documents pertain to availing of credit card by the respondent/complainant, we feel that the same may be received in order to come to a truthful conclusion. Hence the same are received subject to proof and relevancy and marked as Ex.B1 to B4.
11). Point no.i : The specific grievance of the respondent/ complainant is that the appellant/opposite party had illegally, without intimating the complainant, transferred a sum of Rs 51,752/- i.e. total amount from his account to their account towards credit card dues, and when details of the credit card dues was sought, appellant/opposite party failed to provide the details. On the other hand the appellant/opposite party had contended that as they have a general lien over all the funds available with them for collection of dues, in exercise of the same, the amount was adjusted towards the dues of credit card.
6Before the District Commission the appellant/opposite party failed to file their evidence affidavit and did not choose to file any documents in support of their contention. As such, the District Commission had passed the orders based on the evidence placed by the respondent/complainant. Hence, it cannot be said that the District Commission has given an erroneous order. But as the appellant/opposite party failed to file any evidences, the District Commission has passed the order considering the documents filed by the respondent/complainant.
12). Before the District Commission the appellant/ opposite party had never pleaded that the respondent/complainant had two credit cards, that apart did not even choose to give the credit card number of the respondent/complainant in their written version, but however the appellant/opposite party counsel had vehemently argued that the respondent/complainant had obtained two credit cards by submitting two different pan cards and relying on statement of account had pleaded that the respondent/ complainant is due a sum of rupees Rs.2,67,220.80 by the month of October,2014. Exs.B1 and Ex B2 are the applications for credit cards, which do not disclose the credit card noumbers. Ex B3 is the statement of account wherein the card no. is mentioned as 0001014010000078619 and in Ex B4 the card no. is mentioned as 5566********0210.
13). Transferring of money by appellant/opposite party from the account of the respondent/complainant is an admitted fact and based on the documents filed by the Appellant/ opposite party, only two points need to be considered i.e. :
1. whether there was any amount due by the respondent/complainant towards the credit card?
2. whether the opposite party was justified in transferring the full amount from the complainant's account to their account without intimating the complainant/Respondent?
As said supra Ex B1 & B2 do not disclose any credit card number, the credit card number mentioned in Ex B3 & B4 are not one and the same, even if the contention of the Appellant/opposite party is to be believed that the respondent/complainant has taken two 7 credit cards but the appellant/opposite party had safely skipped mentioning the credit card numbers in the written version, grounds of appeal, mail communications under Ex A1 to A4 and also in the I.A. filed to receive the documents. When the respondent/complainant is specifically denying the two credit cards and had given his credit card number,(4617863005556525) the burden is on the appellant/opposite party to prove that the statement of account filed under Ex B3 is that of the credit card issued to the respondent/complainant, in order to come to a conclusion that the respondent/complainant is due certain amount.
That apart even if it is believed that the credit card mentioned in EX B3 statement of account is that of the respondent/complainant we fail to understand, why the appellant/ opposite party did not make any demand for the dues for se ven long years, since a perusal of Ex B3 statement account reveals that in the month of November, 2008 a payment of Rs 7254/- was made and after a lapse of se ven years in the month of October, 2014 the deduction was done by the appellant/opposite party from the account of the respondent/complainant to the tune of Rs.51,752/-. As the appellant/opposite party has failed to prove that the respondent/complainant was having two credit cards and the card numbers mentioned in Ex.B3 - Statement of Account and Ex.B4 -Reply, both these card numbers are not tallying with the credit card number as stated by the respondent/complainant, in such case, it is for the appellant/opposite party to prove that credit cards as mentioned in Ex.B3 and B4 were issued to the respondent/complainant and that there is a due payable by the respondent/complainant towards the said credit card loan account. The burden to clear the ambiguity in the Credit Card numbers is on the appellant/opposite party, which was not done by the appellant/opposite party.
14. Based on the above discussion, we are of the view that the appellant/opposite party has failed to prove that the respondent/complainant is due any amount towards the credit card availed by him.
The other ground on which, the appellant/opposite party had relied is that - as per Section 171 of Contract Act, the Bank 8 enjoys general lien over all the deposits and securities of the customers in recovering the dues. In support of the same, had relied upon several judgements i.e. Syndicate Bank vs. Vijay Kumar, AIR 1992 SC 1066, Smt.K.S.Nagalambika vs. Corporation Bank AIR 2000 Karnataka 201, United Commercial Bank vs. Bank of India and others, Canara Bank Vs. N.Palani and Anr.,1999(95) Madras 457, Union Bank of India vs. Jyothi Chit Fund and Finance, AIR1976 SC 1163 and based on the above judgements had vehemently argued that in exercise of said lien, they have deducted the amount from the salary account of the respondent/complainants.
In all the above cases, it has been held that the Bank has general lien over the securities and other instruments and the same can be recovered towards the dues of the account holder. The lien given to the banker is not denied. The Act itself entitles the banker to exercise such lien in case of any dues from the customer. The said fact is not denied. But in the instant case, the appellant/opposite party had transferred the total salary amount of Rs.51,752/- thereby making his bank balance as zero. The principles of natural justice demand that prior to such deductions, the appellant/opposite party was duty bound to issue a notice, which has not been done by the appellant/opposite party. Had the respondent/complainant issued any cheque with regard to any debts to any other third person, considering the balance available in his account, he would have faced criminal case of cheque bounce. That apart¸ the appellant/opposite party cannot deduct the total salary amount without even leaving 1/3 rd share for his livelihood which is against the principles of natural justice. This act of appellant/opposite party of transferring the total amount to their account towards credit card dues, without intimating the respondent/complainant is illegal and arbitrary which certainly amounts to deficiency of service and failure on part of appellant/opposite party to give the details of Credit Card dues from October,2014 and for the first time, in this appeal such details of dues were provided by filing Ex.B3 statement of account, this act of delay and casual approach of appellant/opposite party towards the consumers needs to be curtailed.
915). In view of the above discussion, we are of the view that it was unfair on the part of the appellant/opposite party to deduct the total salary from the respondent/complainant's account without intimating the same that too when the appellants/opposite party had failed to prove that there were any dues from the complainant. As such, we see no reason to interfere with the order passed by the District Forum. Though the same was passed without any evidence led by the appellant/opposite party and though the appellants/opposite party has filed documents before this Commission, but could not prove that respondent/complainant was due any amount towards the credit card. As such we have no hesitation to confirm the order of the District Forum .
16). In the result, the appeal is dismissed by confirming the order of the District Forum to be complied within one from the date of this order.
(Typed to dictation on system, corrected and pronounced by us in the open Court on this 20th day of June,2023).
MEMBER(J) MEMBER(NJ)
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Dated : 20.6.2023 As per the orders in FAIA.1570/2022, the following documents are marked on behalf of the appellant/opposite party:
Ex.B1 : True copy of Credit Card application submitted on behalf Respondent/complainant to appellant/opposite party. Ex.B2 : True copy of Credit Card application submitted on behalf Respondent/complainant to appellant/opposite party. Ex.B3 : Statement of account.
Ex.B4 : Mail correspondence.
MEMBER(J) MEMBER(NJ)
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Dated : 20.6.2023