Chandigarh

DF-I

CC/579/2014

Savitri Mani - Complainant(s)

Versus

Kotak Mahindra bank - Opp.Party(s)

Vikram Singh

05 Aug 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/579/2014
Date of Institution	:	29/08/2014
Date of Decision	:	05/08/2015

 

Savitri Mani w/o late Sh. M. Subramaniam Mani office address A.P. Paper Mills, Plot No.245, Industrial Area, Phase-I, Chandigarh

…..Complainant

V E R S U S

1.     Kotak Mahindra Bank, SCO 153-154-155, Sector 9-C, Chandigarh through its Branch Manager.

2.     Kotak Mahindra Bank, Office at : Zone-4, 5^th Floor, Kotak Infinity Park, Off. Western Express Highway, General A.K. Vaidya Marg, Malad (E) Goregaon Malad Link Road, Malad East, Mumbai through its General Manager.

……Opposite Parties

 

QUORUM:	P.L.AHUJA	PRESIDENT
	MRS.SURJEET KAUR	MEMBER

                                               

                       

ARGUED BY	:	Sh. Vikram Singh, Counsel for complainant
	:	Sh. Mohit Sareen, Counsel for OPs

 

PER P.L.AHUJA, PRESIDENT

1.         Smt. Savitri Mani, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Kotak Mahindra Bank and another, Opposite Parties (hereinafter called the OPs), alleging that she took a credit card from the OPs in the year 2007 and as she was not satisfied with the services of the OPs, she decided to close down the said card.  It has been averred that at the time of closure of the said credit card in January 2009, some amount was outstanding, which was duly paid and settled by the complainant.

                According to the complainant, on 24.8.2014, after more than 5 years of clearing all the dues and closing of above said card, OPs served a notice regarding initiation of arbitration proceedings with the motive to extract money from her. The complainant has averred that the OPs had never communicated any notice regarding any pending amount in all those years and they had tried to file a police complaint in November-December 2013, but, that was also a frivolous complaint and no action had been taken by the police authority.  The complainant has contended that the OPs even sent musclemen to her office for recovery of the amount in the last week of June 2014.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint. 

2.         In their joint written statement, OPs have taken a number of preliminary objections including that complicated questions of facts and law and rendition/settlement of accounts cannot be decided in summary proceedings; that the complainant has not approached the Forum with clean hands; that the complaint cannot be decided by Consumer Fora after an arbitration award has already been passed. It has been averred that the complainant was issued the Kotak Trump Gold card (Credit card) with special features. It has further been averred that the complainant was made aware of the terms and conditions of the said card and after understanding the same, she signed the declaration with her own free will and consent. It has been denied that the complainant after closing down the card in January 2009 had paid the balance outstanding amount to the OPs. It has been pleaded that the complainant was regularly intimated on month to month basis about the amount due and the last date for making payment, but, she remained irregular in making the repayments on due dates and often only the minimum amount had been received by the OPs.  It has been denied that after more than 5 years of clearing of all amounts and dues by the complainant, the OPs had initiated arbitration proceedings against her.  It has been pleaded that the complainant remained a defaulter and never paid any amount to the OP bank in spite of repeated promises and settlement. It has been contended that the complainant showed her inability to make the outstanding payment for the usage of the credit card and approached the OPs for some solution.  The OPs offered one time settlement waiving off the penalties and interest part and vide settlement dated 27.12.2013, the complainant was required to pay a total amount of Rs.40,000/- in two equal monthly installments. However, the complainant again defaulted in making the payment and as the settled amount remained unpaid, the settlement became void with efflux of time. Pleading that there is no deficiency in service or unfair trade practice on their part, OPs have prayed for dismissal of the complaint. 
3.         In her rejoinder, the complainant has controverted the stand of the OPs and reiterated her own. It has been contended that the complainant never entered in any settlement with the OP Bank and the settlement letter is a forged one. 
4.         The parties led evidence in support of their contentions.
5.         We have gone through the entire evidence, written arguments submitted by both sides and heard the arguments addressed by the learned Counsel for the parties. 
6.         At the outset, it is pertinent that the complainant has pleaded that at the time of closure of the credit card in January 2009, the outstanding amount was duly paid and settled.  However, she has contended that the settlement letter has been misplaced due to passage of time.  The contention of the complainant is not supported by any documentary evidence. The copies of the account statements at Annexure C-1 (colly.) show that as per the statement dated 20.11.2008, the total outstanding amount towards the complainant was Rs.42,634.60 and as per the account statement dated 20.12.2008, the total outstanding against the complainant was Rs.52,448.81. The OPs have specifically pleaded that the complainant never made any payment towards the outstanding amount. No such document has been produced which could show that this amount of Rs.52,448.81 was actually paid by the complainant and nothing was outstanding against her in January 2009. 
7.         Secondly, a perusal of the copy of application form (Annexure R-3) shows that the complainant was offered a Kotak Trump Gold card (credit card) and she signed a declaration on it.  The said declaration, as reproduced in para 3 of the written statement, reads as under :-

“I hereby declare that the particulars contained hereinabove are complete, true and correct to the best of my knowledge and Kotak Mahindra Bank is entitled to verify the same directly or through any third party agency.  I undertake to notify the bank immediately of any change in the above details and information given by me. I confirm that I am a resident of India.  I further undertake that the bank may at its sole discretion accept or reject this application. I further agree to be fully liable and authorize the bank to debit my credit card account for all spends, feeds and other charges and interest etc. on my card. Service tax and surcharge at applicable rates will be charged on all fees, charges, interest etc.

Further I hereby further confirm that I have read and understood the terms and conditions governing the entire business relationship with the bank and relating to various services including but not limited to cardholder agreement and the same has also been shared to all customers of the bank through the website of the bank i.e. www.kotakcards.com.”

In accordance with the abovesaid declaration, the complainant is bound by the terms and conditions enumerated in the said agreement.  As per the account statements (Annexure R-4 to R-45) placed on record by the OPs, the total outstanding amount against the complainant on 20.11.2011 was Rs.71,727.84. According to the OPs, these bills were generated periodically and the complainant remained irregular in making payments on due dates.  It is well settled that the question of rendition/settlement of accounts cannot be decided in summary proceedings under the Consumer Protection Act because the adjudication of the same requires detailed evidence and cross-examination of the witnesses.

8.         Thirdly, a perusal of the copy of arbitration proceedings (Annexure C-2) shows that Shri Prakash K. Hushing (Retired Judge) was appointed as sole arbitrator vide letter dated 1.8.2014, whereby Kotak Mahindra Bank Ltd. had invoked arbitration clause contained in the Cardholder Agreement to arbitrate the dispute between the parties. Both the parties were directed to appear before the arbitrator on 25.8.2014.  The copy of the award dated 29.12.2014 (Annexure R-47) shows that the complainant did not appear before arbitrator despite final notice. The complainant was directed to pay to the OP a sum of Rs.71,727.84 and further interest @ 18% per annum on that amount from 21.7.2014 to the date of payment as per Section 31 of the Arbitration and Conciliation Act, 1996.  It has been held in S. Balwant Singh Vs. Kanpur Development Authority, III (2007) CPJ 425 (NC) that if the petitioner is not satisfied with the award of the arbitrator, then the remedy lies in proceeding against that order of the arbitrator as per law. No complaint under Consumer Protection Act is maintainable. Consumer Fora are not appellate authorities of the arbitrator.  In the instant case, when an arbitration award has already been passed, we feel that it would govern the dispute between the parties and this Forum cannot pass an order by overlooking the award. The appropriate remedy available before the complainant is to file objections under Section 34 of the Arbitration and Conciliation Act before the learned District Judge and it has been submitted by the learned counsel for the OPs during arguments that the said objections have already been filed. 
9.         Lastly, as per case of the OPs, on 27.12.2013, one time settlement was offered to the complainant after waiving off the penalties and she was required to pay a total amount of Rs.40,000/- in two equal monthly installments.  The copy of the settlement letter dated 27.12.2013 is at Annexure
   R-46. But, the complainant defaulted in making the payment of the settlement amount. However, the learned counsel for the complainant has urged that the said settlement is totally forged and fabricated document and does not bear the signatures of the complainant.  Forgery is beyond the purview of the summary jurisdiction of this Forum, therefore, it is for the civil court to decide whether any settlement (Annexure R-46) was arrived at between the parties or not.
10.         For the reasons recorded above, the complainant has failed to establish any deficiency in service or unfair trade practice on the part of the OPs. Consequently, the complaint fails and is dismissed, leaving the parties to bear their own costs. However, it is made clear that the complainant shall be at liberty to raise the issues involved in the complaint before the civil court. 
11.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

		Sd/-	Sd/-
05/08/2015		[Surjeet Kaur]	[P. L. Ahuja]
hg		Member	President