Delhi

West Delhi

CC/16/477

GULSHAN BHATIA - Complainant(s)

Versus

ICICI Bank - Opp.Party(s)

30 Aug 2022

ORDER

BEFORE THE CONSUMER DISPUTE REDRESSAL FORUM,

WEST DISTRICT, JANAKPURI,

NEW DELHI

 

CC No. 477/16

In re:-

Gulshan Bhatia (Deceased)

Through LRs

 

1. Parveen Bhatia

W/o Late Sh. Gulshan Bhatia

R/o SH-18/286, New Moti Nagar

New Delhi – 110015

 

2. Himanshu Bhatia

S/o Late Sh. Gulshan Bhatia

R/o SH-18/286, New Moti Nagar

New Delhi – 110015

 

3. Mansi Bhatia

     D/o Late Sh. Gulshan Bhatia

R/o SH-18/286, New Moti Nagar

New Delhi – 110015

 

 

                                                                                   ………..Complainant

 

VERSUS

ICICI Bank

Block No.-II, WHS Kirti Nagar

New Delhi-110015                                                   .............   Opposite Party

 

 

Coram:                                                                             

1. SONICA MEHROTRA (PRESIDENT)
2. RICHA JINDAL (MEMBER)
3. ANIL KOUSHAL (MEMBER)

 

Present: Ms. Mansi, daughter of complainant.

Date of Institution: 18.07.2016

Judgment reserved on: 13.07.2022

Date of Decision:30.08.2022

 

Order by – RICHA JINDAL (Member)

 

O R D E R

 

1. The complainant has filed a present complaint under section 12 of the Consumer Protection Act,1986. Brief facts of the complaint are as follows:-

 

1. On 10th December 2015, the complainant dropped a cheque from Oriental Bank of Commerce bearing account no. 5201*****5659, having sufficient balance, dated 10.12.2015 bearing cheque no. 53330 of amount 54000/-, drawn in favour of OP toward the payment of credit card dues of credit card account No. 4477-4736-6399-4007 in the drop box of OP branch situated at Kirti Nagar, New Delhi, though the due date of payment of credit card bill was 13.12.2015,but the complainant did not receive any SMS update about cheque clearance till 18.12.2015.

 

2. On 18.12.2015, the complainant personally visited the OP branch situated at Kirti Nagar and enquired about the whereabouts of his cheque bearing cheque no. 53330 from the bank official, the bank in the presence of the complainant forwarded his query and sent a mail to their collection centre situated at Jhandewalan, New Delhi,

 

3. On 19.12.2015, the complainant received a call from the collection centre of OP wherein they state that the official of OP informed the complainant that his cheque bearing cheque no. 53330 has been withheld because the complainant has only written the first and last four digits of his credit card no., the complainant, however, informed the official that for the security purpose of maintaining confidentiality, the complainant had written only the first and last four digits of the card no. at the back of the cheque.

 

4. The official of OP further asked the complainant "what should be done to the cheque?", the complainant informed the official that he has given the cheque for payment of his credit card dues, thus kindly processing the clearance of the cheque.

 

5. On 19.12.2015, the complainant's cheque got cleared and payment of 54000/ towards the credit card account no. 4477-4736-6399-4007 was credited in favour of OP.

 

6. Further in the month of January, the next bill of the credit card bearing account no. 4477-4736-6399-4007 received by the complainant showed a penalty amount of 4000/- for late payment of the previous bill of 54000/- generated in December. The penalty levied was inclusive of service tax charge, late payment charge and interest charge.

 

7. Thereafter, the complainant made numerous calls to customer care helpline no. and even contacted the bank through emails, the bank official in one of the conversations through email proposed to revert the payment of Rs 2400/- but the complainant refused to pay the balance amount of Rs. 3600/- and demanded the penalty in full should be reverted as the complainant was nowhere at fault.

 

8. On 05.07.2016, the complainant received a letter with ref no 0000409091603-SP-AD from OP informing the complainant that the outstanding amount of the complainant's credit card has already been up to Rs 7102.09 in complainant's credit card account no. 4477-4736-6399-4007 and the same has been lien marked towards the outstanding dues will be set off from the complainant's saving account no. ****1531 if the dues are not paid within 10 days from the date of the letter even though the above-mentioned saving account no. is a joint account (jointly held by the complainant and his wife).

 

1. The complainant claims that when his cheque was withheld by the bank for any reason whatsoever, the complainant was never informed that his cheque is on hold even though the complainant had provided his mobile no, at the back of the cheque nor the cheque was returned to the complainant, on the contrary, it was only after the complainant himself visited the bank on 18.12.2015, that the complainant received a call on 19.12.2015 from the collection centre of OP. Also, the fact must be taken into consideration that the OP bank itself writes the same way on the credit card bills showing the due amount for any particular month when the credit card statements are sent to the customers.

 

10. The fact should also be taken into consideration that the complainant is a holder of credit card account no. 4477-4736-6399-4007 from the past 11 years and there have been no instances in the history of the complainant of any late payment nor the complainant has ever been levied any late payment fine or interest on late payment or service charge.

 

11. Finding no other option the complainant filed the present complaint before this Commission wherein the complainant prayed for the following reliefs :

1. Revert the whole sum of 7,102.09/- being penalty imposed along with interest, late payment charge and service tax; 
2. pay a sum of Rs. 10,000/- towards the physical strain and mental agony suffered by the complainant and his family members (compensation) and the cost of litigation

2. Accordingly, on 21/07/2016 after hearing arguments on admission, notice was issued to OPs returnable on 22/09/2016. Counsel for OP appeared before the Commission on 22/09/2016 and took an adjournment for filing a reply. However, OP again appeared on 1/12/2016, filed vakalatnama and requested for an adjournment to explore settlement possibilities before Lok Adalat, but the settlement failed and finally reply was filed on 2/2/2017, wherein OP took the following Preliminary Objections: -

 

1. The complaint against the opposite party is not maintainable as the complainant has not raised any grounds of deficiency against the opposite party. Hence the complaint is liable to be dismissed.

 

2. The instant complaint does not disclose any cause of actionagainst the Opposite Parties.The dispute as alleged by the complainant has not taken place, since it is evident from the Statement of Account of the complainant as charges have been levelled on the complainant's card. There are no late payment charges, and no interest on the said amount has been levied. Therefore, averments made by the complainant are wrong, false and denied. Hence the present complaint is liable to be dismissed against the answering opposite party.

 

3. The complaint is liable to be dismissed on the ground that the complainant had admitted he had not mentioned his 16-digit credit card number on the cheque and had only written the first and last four digits. For this reason, the cheque could not be sent for clearing and the payment of thecredit card dues could not be credited to his account.

 

4. In the monthly credit card statements sent to all its customers, it is clearly mentioned that a 16-digit card number should be mentioned in the cheque. However, despite this, the Ops have not taken any penal action against the complainant. Therefore,the liability of the bank vis-à-vis any dispute does not arise.

 

5. As the complainant stopped making payments of his outstanding amount on the credit card the bank as per law marked a lien from his savings account. Despite several reminders and requests from the answering Opposite Party the Complainant deliberately neglected to make the payment of credit card dues. Hon'ble Supreme Court of India has recognized the banker's right of general lien on the money or money belonging to the customer in its hand in the case of Syndicate Bank vis Vijay Kumar &Or’s; MANU/SC/0196/1992; AIR1992SC1066; (1992)2SCC331.

 

6. The said act of the bank is within the legal rights of the bank as provided in Section 171 of the Indian Contract Act and subsequent judgements of the court of law. Therefore,a complainant is making false allegations to make wrongful gain to himself and cause wrongful loss to the bank. Hence the complaint is liable to be dismissed.

 

7. It is evident from the documents annexed with the complaint, that the complainant has himself stated that said cheque was not filled and was having incomplete information, therefore the averment that the bank is at fault for not crediting the amount is false and incomprehensible. Hence the present complaint is liable to be dismissed with a heavy cost to the complainantunder Section 26 of the Act.

 

8. The Complainant has failed to show even an iota of deficiency or negligence on the part of the Opposite Party. As per the law settled by the Hon'ble Supreme Court in the matter of Ravneet Singh Bagga: the onus to prove deficiency is upon the complainant and in the present case the complainant has miserably failed to prove any deficiency on the part of the opposite parties. Hence the present case should be dismissed.

 

1. That complainant is estopped by his act and conduct. On the side,the complainant is alleging that the opposite party is guilty of deficient service yet he has failed to prove the same and has documents annexed that do not show that there has been any wrong done to the complainant.

 

10. At the outset opposite party deniesevery fact and averment in the instant complaint until and unless the same has been specifically admitted.

 

11. The Complainant has failed to show even an iota of deficiency on the part of the Bank Hence this complaint is fit for an outright dismissal.

 

• The prayers of the complainant are wrong and are denied. It is denied that there is any unfair trade practice or there is any deficiency of service. The allegations are false and fictitious Since as per the judgment of the Hon'ble Supreme Court, the onus to prove deficiency is on the person alleging it, in the present case the complainant has failed to prove the same. The complainant is not liable for any compensation.

3. Further, the matter was adjourned to 24/07/2017 for filing rejoinder and complainant’s evidence. The complainant filed a rejoinder and evidence by way of an affidavit testifying to all the facts stated in the complaint along with documents exhibit CW-1/1 to CW-1/5 affirming the facts alleged in the complaint. The complainant has filed his evidence as CW1/A by way of his affidavit and he has proved the following documents.:

1. A The copy of the email dated 18/12/2015 is Ex. CW-1/1.
2. The copy of the complainant’s passbook records is enclosed herewith as Ex. CW-1/2
3. Copy of statement of January 2016 is EX-CW-1/3
4. The copy of the history of payment made on said card during last year is EX-CW-1/4
5. Letter dated 05-07-2016 sent by OP to the complainant regarding payment of overdue is EX. CW-1/5

 

4. Thereafter Sh. Paramjeet Singh Manager of OP, filed his affidavit in evidence on behalf of the respondents on 23-02-2018 testifying to all the facts stated in the written statementand affirming the facts alleged in the reply.

 

5. In the meantime, the complainant filed an application under section 106 of the Indian Evidence Act, for bringing on record pictures of cheques deposited by the complainant for payment of credit card dues prior to December 2015. OP filed a reply on 4/5/2018. Finally, after hearing arguments, said application was allowed vide order dated 26/7/2018, thereby OP was directed to produce a picture view of cheques deposited by the complainant for payment of credit card dues prior to December 2015 having both first and last four digits in respect of said credit card.

 

6. Thereafter, the matter was dismissed in default vide order dated 20/03/2019 due to the non-appearance of the complainant, however on 14/10/2019, the order was set aside by the Hon’ble SCDRC and the complaint was restored to its original position after receiving the Hon’ble State Commission direction vide order dated 13/08/2019. On the same day, an application was filed to implead the legal heirs of the complainant as the complainant had expired on 7/3/2019. Thereafter the matter was again adjourned to 5/12/2019 for OP evidence.

 

7. Thereafter despite various opportunities, OP not only failed to appear before this commission, but they did not comply with the order dated 26/7/2018 also hence their right to file any document is stuck off vide order dated 5/12/2019.

 

8. The complainant filed Written submissions on 3/2/2020. Thereafter despite several opportunities counsel for OP never appeared before Commission to address arguments. Finally, oral arguments on behalf of the complainant were heard on 13/07/2022 and the order was reserved.

 

9. During the arguments, the complainant argued that the bank is deficient in service for holding the cheque of the complainant beyond the due date even though the complainant had dropped the cheque well before the due date and had also written his mobile no. at the back of the cheque. the complainant was diligent enough to pursue the matter and himself visited the bank regarding the non-clearance of the cheque and it was the callous attitude of the bank officials who slept over the due date despite receiving the cheque well before the due date. Levy of penalty charge for late payment is a deficiency in service as the bank had the cheque in its possession before the due date of payment of credit card dues. The picture view of previous cheques as filed by the OP/Bank solves the dispute in question as the cheque(s) confirm the stand/defence of the complainant of making the payment the same way as the complainant "used to do in the past.The OP/Bank has been harassing the complainant by continually levying unnecessary charges upon the complainant in the form of unreasonable penalties and charges.Till today the bank has been levying charges upon the complainant and has been making threats to the complainant to make the payment of the same.The bank has no defence in its favour and has even stopped appearing in the present matter on so many dates. after the presentation of a picturesque view of previous cheques, there survives no dispute in the present matter and the deficiency in service on the part of the bank is proved by the presentation of previous cheques.

 

10. We have carefully gone through the record of the case and have heard submissions of the complainant and perused the pleadings filed by OP, which shall be taken into consideration as per settled law by Hon’ble National Commission in N V Deoras V/s Bank of India 1997 (3) CPR 63 (NC), wherein Hon’ble National Commission held that

 

• Opposite party if not represented on the subsequent day on which the case was taken up for hearing it is obligatory to consider a written version of the opposite party on the file and examine tenability or otherwise of the contention raised therein before proceeding to decide the case on the merits.”

 

11. We have perused the material available on record. The short question for adjudication in this complaint is whether the late payment charges and interest levied by the OPs suffer from any infirmity as also lien marking complainant’s account  held with it and if so, whether the complainant is entitled to refund of amount so debited by OP as “lien marked” outstanding dues.

 

12. The OP categorically stated in his reply thatthe dispute as alleged by the complainant has not taken place, since it is evident from the Statement of Account of the complainant that only charges have been levelled on the complainant's card. There are no late payment charges, and no interest on the said amount has been levied.However, OP did not file any document to prove his case. On the other hand,the complainant filed a credit card statement dated 26/12/2015 (Annexure 2/3), wherein late payment charges of Rs. 700/-, Interest charges of Rs. 2786/- and taxes etc. were levied. Thereafter complainant filed a Lien Notice dated 5/07/2016 issued by OP to the complainant wherein they directed the complainant to clear the outstanding dues amounting to Rs 7,102/- within 10 days from the date of this letter failing which they will exercise their right of lien and set off in conformity with the terms and conditions of said credit card. Thereafter finally the OP exercises the lien and debited the said amount from the bank account of the complainant on 18/07/2016.

 

13. It is well established that when a complaint is filed, initially the onus lies upon the complaint, who has sought relief from the Court and failure to prove its case would disentitle him from getting any relief. Once the complainant can prove his caseprimarily then the burden shift to OP. The onus shifts from stage to stage. The distinction between the “burden of proof” and ‘onus’ has been discussed by the Apex Court in para 19 of its judgment in (Anil Rishi Vs. Gurbaksh Singh, AIR 2006 SC 1971). The said paragraph reads as under:

“There is another aspect of the matter, which should be borne in mind. A distinction exists between a burden of proof and an onus of proof.

 

In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto…..

 

The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of the onus of proof has greater force than the question of which party is to begin. The burden of proof is used in three ways :

(i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later;

(ii) to make that of establishing a proposition as against all counter-evidence; and

(iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.”

 

14. As held in A. Raghavamma v. A. Chenchamma {AIR 1964 SC 136} there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. The onus of proof shifts. Such a shifting of the onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on the title once the plaintiff has been able to create a high degree of probability to shift the onus on the defendant, it is for the defendant to discharge his onus and in the absence, thereof the burden of proof lies on the plaintiff shall be held to have been discharged to amount to proof of the plaintiff’s title.”

 

15. The Hon’ble Supreme Court in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami& V.P. Temple, reported in (2003) 8 SCC 752 has held as under:-

 

" In our opinion, in a suit for possession based on the title once the plaintiff has been able to create a high degree of probability to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence, thereof the burden of proof lies on the plaintiff shall be held to have been discharged to amount to proof of the plaintiff's title."

16.     The Hon’ble Supreme Court in the case of Gian Chand and Bros Vs. Rattan Lal, reported in (2013) 2 SCC 606 has held as under:-

“It is a well-settled principle of law that a person who asserts a particular fact is required to affirmatively establish it. In Anil Rishi v. Gurbaksh Singh [(2006) 5 SCC 558] (SCC p. 561, para 9), it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues and not the party who denies it and the said principle may not be universal in its application and there may be an exception thereto. The purpose of referring to the same is that if the plaintiff asserts that the defendant had acknowledged the signature, it is obligatory on his part to substantiate the same. But the question would be what would be the consequence in a situation where the signatures are proven and there is an evasive reply in the written statement and what should be construed as substantiating the assertion made by the plaintiff.

 

17. In Krishna Mohan Kul v. Pratima Maity [(2004) 9 SCC 468] it has been ruled thus: (SCC p. 474, para 12) "12. ... When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation."

 

18. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529] a Constitution Bench of this Court, while dealing with a mode of proof of a will under the Succession Act, 1925 observed that where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same.

 

19. In National Insurance Co. Ltd. vs. Rattani, reported in (2009) 2 SCC 75 (at page-79), it has been held:

 

"The question as to whether the burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought up on record to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden lies could still be liable to produce sufficient evidence."

 

20. I am view, the complainant had proved his case beyond doubt and he argued at length that the complaint of the complainant is based on true and correct facts. He further submitted that the allegation levelled by the opposite parties that the clearance of cheque towards credit card got delayed due to the fault of the complainant himself does not sustain in the eyes of law since the picture view of the photocopies of cheque deposited by the complainant regarding payment of credit card previously to OP itself proved the case as such cheques were duly passed for clearance of complainant. Hence the claim petition of the claimant is very much maintainable in the eyes of law and the same is liable to be allowed. Hence we hold that the OP is liable to credit back the sum of Rs 7,102/- being illegally debited by OP from the bank account of Complainant as Lien marked as “Lien Mark” was deficiency of service on the part of OP for no default by the complainant.

 

21. Therefore, we allow the complaint of the complainant and it is directed that:-

(i)    The OPs will credit back the lien marked a sum of Rs.7,102.09/- (Rs. Seven ThousandOne Hundred two only) to the complainant’s account within 30 days from the date of this order.

(ii)    The OPs will pay interest @ 6% p.a. on the above amount of Rs.7,102.09/- from the date of filing of the complaint i.e. 18.07.2016 till realization.

(iii)   The OPs will also pay a sum of Rs.5,000/- (Rupees Five Thousand) towards the cost of litigation to the complainant.

(iv)   The OPs will also pay a sum of Rs.5,000/- towards harassment mental agony loss of time to the complainant.

22. Let the order be complied with by OP within 30 days from the date of receipt of the copy of this order.
23. Let a copy of this order be given to each party free of cost after receiving the application for obtaining the certified copy of the final order per direction received from the Hon’ble State Commission.
24. File be consigned to record room.
25. Announced on 30.08.2022. 

 

 

 

 

(Richa Jindal)    Member

(Anil Kumar Koushal)         Member

(Sonica Mehrotra)             President