CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

Udyog Sadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110016

   . Case No.626/2013

MR. VIVEK ARORA,

TETS N RAI, E-46/5

OKHLA PHASE – II

NEW DELHI- 110020                              …..COMPLAINANT

Vs.   

1. THE BRANCH MANAGER  HDFC BANK, PLOT NO. 4,

CAPITAL TRUST HOUSE- II

MAA ANANDMAYI MARG,

OKHLA IND AREA PHASE- I

NEW DELHI

2. HDFC BANK CARDS DIVISION

8. LATTICE BRIDGE ROAD,

THRIUVANMIYUR, CHENNAI

3. HDFC BANK LTD.

HDFC BANK HOUSE,

SENAPATI BAPAT MARG,

LOWER PAREL (WEST) MUMBAI.…..RESPONDENTS

  Date of Institution-09.12.2013

  Date of Order- 22.10.2022

      O R D E R

MONIKA SRIVASTAVA – PRESIDENT

The complainant is seeking refund of Rs. 86,023.93 with interest @18% from the date of deduction along with Rs. 50,000/- towards professional loss, Rs. 10,00,000/-as compensation as pecuniary damages towards mental agony, cost and deduction of amount without any valid reason.

1. It is stated by the complainant that he was holding a membership of Hyatt hotel since 2001 vide number 7486741F. In the month of August 2001, he visited London and stayed at Churchill Hyatt hotel from 21.08.2010 to 28.08.2010.

2. It is further stated that as per the standard procedure of the hotel at the time of checking in, the credit card of the customer is swiped for security towards securing the bills of customers likewise the international card number of the complainant of HDFC Bank was swiped to create security but was not swiped to deduct money.

3. It is stated by the complainant that he paid GBP 823 in cash for his stay at the hotel but unfortunately afterwards an amount of 400 GBP was deducted from his credit card which is an extra amount.

4. It is further stated by the complainant that he was quite surprised to see this amount being deducted from his account as he had stayed in the hotel several times and in the same way payment was made but never any amount was deducted from his account.

5. The complainant further states that he tried to resolve the problem with the OP bank amicably and therefore sent numerous emails to them but the OP bank failed to resolve the problem.

6. The complainant also requested OP bank to produce credit card slip signed by the complainant which was given by Hyatt hotel, London but no such slip was ever provided by the OP bank nor any cogent proof regarding the payment was given.

7. The complainant also procured a clarification from Hyatt hotel, London via emails according to which the complete payment was made at Churchill hotel in cash and travellers cheques and no charge slip was signed by the complainant.

8. The complainant further states that he first received the disputed amount of Rs. 29,024.83/- in September 2010 and after deducting this payment of Rs. 29,024.83/- he made a payment of Rs.1,45,237/- on 24.09.2010.

9. It is stated by the complainant that he had opened a current account in the name of its firm M/s Tets N Rai International with OP 1 bank but the OP bank, without asking the complainant and without giving any valid reason debited Rs. 86,693.93/- from the said current account.

10. It is stated by the complainant that he was cheated by OP bank which did not make any effort to resolve the matter amicably and with malafide intention caused wrongful loss to the complainant by debiting his current account instead of resolving the dispute of Rs.29,024.83/-.

11. It is further stated by the complainant that he sent various emails to the OP but all went in vain. It is further stated by him that he has various accounts with various banks globally but nowhere such issue has ever been arisen.

12. It is further stated by the complainant that he is a bona fide customer and therefore even when the credit card account was closed on 31.07.2012 he had made a payment of Rs. 5 to 6 lakhs well before the due date excluding the disputed amount of Rs. 29,024.83/-.

13. The Complainant in an affidavit filed after filing of written arguments has also relied on a circular of the RBI dated 22.09.2011 relating to Security Issues and Risk mitigation measures related to Card Present transactions wherein a direction is issued to the bank for “EMV chip card and PIN to be issued to customer who have evidenced at least one purchase using their debit/credit card in a foreign location” and this task was to be completed by June 30th 2013.

14. In the same affidavit, he has also stated that he exchanged the EURO traveller’s cheques with British Pound Sterling at London and at the time of checkout date British pound traveller cheque amount into 400 GBP and 423.49 GBP in cash total amounting to 823.49 GBP being payment of his bill of Churchill Hyatt hotel, London.

15. On the other hand the OP has taken the preliminary objection that the complaint has suppressed material facts and that there is no cause of action for filing the present complaint.

16.     It is stated by the OP that the complaint is    misconceived, groundless, unsustainable in law as the complainant is the wrong doer and is wrongfully withholding the lawful dues of the OP. It is stated that the complainant was irregular in making payments towards credit card account and did not bother to make the payment of even the minimum amount due on his card.

17. It is stated that there are complicated disputed questions of fact in law which requires a long comprehensive and complete trial. It is stated that the OP has no liability whatsoever to pay any sum to the complainant by way of compensation and in fact it is the OP who has suffered monetary loss.

18. It is also stated that for a consumer complaint to be maintainable it is incumbent upon the complaint to elucidate deficiency in service on the part of the OP.

19. It is also stated that the complaint is time barred as the alleged cause of action arose on 25.08.2010 and the complaint was filed in 2013.

20. It is further stated by the OP that the complainant had availed a credit card ending with 0709 in the month of July 2010 and on receiving an oral complaint of a transaction dispute on 27.02.2012, the card ending with 0709 was blocked as per process and was replaced with a new card ending with 4402. However, for want of written request, the physical plastic card ending with 4402 was not issued to the complainant.

21. It was also stated that the complainant was having a bank account with the OP and at that time he was made clear about all the terms and conditions governing the usage of the credit card. The complainant was aware of the terms and conditions stated in the card member agreement and by using the credit card it is deemed acceptance of the said terms and conditions.

22. It is stated that as per the card member agreement, the OP bank has a right of lien and right to set off on the amount deposited with the bank which belonged to the card holder to adjust towards the dues on the credit card account. In addition to this, there is a Banker's right of Lien envisaged under section 171 of the Indian Contract Act 1872.

23. It is further stated that on 16.07.2012 there was a total outstanding of Rs.86,693.93/- against the complainant on  account of the above stated credit card for which Banker’s lien and right to set off notice was sent by the OP to the complainant. Despite the said notice and repeated reminders, the complainant did not make the payment therefore the OP created Banker’s lien on complainant bank account and the amount was set off on 31.07.2012 as per the card member agreement.

24. In this regard, OP has also quoted the judgement of the Hon’ble NCDRC in State Bank of India vs M/s Agarwal Karogency I (1996) 250 (NC) which has recognised the Banker’s right of general lien on the money belonging to the customer in its hand.

25. The OP has also placed reliance on the judgments of the Hon’ble Supreme Court in Syndicate Bank vs Vijay Kumar AIR 1992 SC 1066

26. On merits, it is stated that the OP had corresponded with the complainant and sent return request dated 26.10.2010 along with the document received from the merchant confirming the total bill for 823.49 GBP (400+23 GBP) was paid by cash and the remaining 400 GBP was paid by card. It was told to the complainant that in case he was not in agreement with the above transaction then a valid proof from the merchant confirming cancellation of the above charge would help the OP to do the needful in this regard. Copy of the said letter dated 26.10.2010 is Exhibit OP1/5.

27. The OP has negated the theory of the complainant that the swipe of the credit card was only for security reason and was not for making payment at the hotel. It is stated that while the complainant disputed the above transaction he has not adduced any proof in support of his contention that he had used any alternate payment mode.

28. It is also reiterated by the OP that the recovery of Rs. 86,693.93/- was lawfully made by invoking the clause in the card member agreement for Bankers lien and right to set off after duly notifying the complainant. Therefore, the act of recovering the outstanding dues by the OP cannot be termed as an act of deficiency of service on their part.

29. It is also stated that though the complainant has disputed the transaction as per the merchant’s confirmation, the total bill at Hyatt hotel was 823.49 GBP for which the complainant had made a payment of 423.49 by cash and the remaining amount was billed on the card account. These details have been confirmed by the merchant.  To support this contention, the OP has placed on record fax received by Churchill Hyatt Hotel, London where in it has been clarified that the total bill of the guest was 823.49 and the complainant paid 423.49 in cash only, the remaining balance was charged to the card holders Visa Card ending 0709 for the total amount of 400. This is dated 12.10.2010.

This Commission has gone through the entire material on record i.e Complaint, reply, evidence affidavits of both the parties as well as their written arguments as also the additional affidavit filed by the complainant.

 It is clear from the documents filed on record that the OP has placed the fax from the merchant where the complainant is stated to have made the payment by using his card at Churchill Hyatt Hotel, London. However, the complainant has not been able to place on record any document to support his version. Therefore, this Commission is of the view that this complaint is devoid of merits and merits dismissal. No order as to costs.

Copy of the order be provided to the parties as per rules and the file be consigned to the record room. Order be uploaded on the website.