NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1610 OF 2011
(From the order dated 28.10.2010 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in Suo Motu RP No. 35 of 2010)
Tushar Dhananjay Mandlekar
L- 37, Yashwant Nagar Petitioner
Nagpur
versus
1. Abhay Kumar Singh
C.E.O., SBI Cards & Payment Services Pvt. Ltd
11 Parliament Street, New Delhi
2. Milind Deshpande
Manager, M/s G. E. Money Financial Services Ltd
Sanskrutik Sankul, Second Floor
Jhansi Rani Chowk Respondents
Sitabuldi, Nagpur
3. Kunal Sahani
Proprietor, M/s Sai Financial Services Ltd
Chaudhary Cutpiece Centre, Swami Samarth Sankul
Gokulpeth, Nagpur
4. Maharashtra State Consumer Disputes Redressal Commission
Mumbai
BEFORE:
HON’BLE MR. ANUPAM DASGUPTA PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA MEMBER
Petitioner In person
For the Respondents Mr. Sudhir Nandrajog, Sr. Advocate with Mr. Suman, Advocate
Pronounced on 10th April 2012
ORDER
ANUPAM DASGUPTA
The petitioner in this revision petition was the complainant before the District Consumer Disputes Redressal Forum, Nagpur (in short, ‘the District Forum’).
2 (i) He alleged that after he opened a savings bank account with the State Bank of India (SBI), Ambajhari Branch in January 2004, he received an offer in July 2004 for an international credit card from the SBI Card Payments and Services Pvt. Ltd. (OP 1 before the District Forum), which he availed of. However, till 30.11.2005 he did not use the credit card.
(iii) By a letter dated 30.11.2005, OP 1 informed him that he had been approved for a personal loan of Rs.23,000/- without having to apply or furnish any guarantor. This was stated to be because of his good credit record. By a communication dated 02.12.2005, OP 1 intimated inter alia the amount of equated monthly installment (EMI) of Rs.2,108.33 for repayment of the loan of Rs.23,000/-. According to the complainant, he deposited a total amount of Rs.9,259/- in four monthly installments by 03.04.2006. He then sought to pre-pay the balance amount of the loan as he learned that the rates of interest and other charges for such loans were excessive. On being informed by OP 1 that he still owed Rs. 14,373/-, the complainant paid Rs.14,400/- by a cheque dated 27.05.2006 to completely liquidate the outstanding loan with interest. Though OP 1 realised the amount by cashing the cheque, it did not acknowledge the receipt of the amount. Instead, within about a week or so, OP 1 sent him a bill dated 02.06.2006 seeking payment of the EMI of Rs.2,108/-. During December 2006 – August 2009, OP 1 continued to send bills for payment of large sums though the complainant stopped the use of the credit card since 02.12.2006. Finally, alleging deficiency in service on the part of the OPs, he filed a consumer complaint before the District Forum.
3. The OPs 2 and 3 failed to remain present before the District Forum despite service of notice and were proceeded against ex parte. Though OP 1 appeared through counsel, it did not file its written version for quite some time. The District Forum then proceeded against OP1 without its reply. After consideration of the pleadings, evidence and documents brought on record by the complainant, the District Forum held, by its order of 29.12.2009, the OPs guilty of deficiency in service and partly allowed the complaint by awarding a compensation of Rs.5,000/- to the complainant on account of physical and mental harassment and cost of Rs.2000/-, to be paid within 30 days of receipt of the order.
4 (i) The complainant served this order on the OPs by Registered Post on 19.01.2010. However, instead of complying with the order of the District Forum, OP 1 sent another bill of Rs. 23,449.93 to the complainant on 02.03.2010. Further, between 19.01.2010 and 19.04.2010 various employees of the OPs 2 and 3 also called him repeatedly on his cell phone to pay up the aforesaid amount.
(ii) On 15.04.2010, the complainant wrote letters to the officers of the 3 OPs by Registered Post bringing to their notice the fact of non-compliance of the District Forum’s order by OPs and advising them of the consequence of non-compliance.
5. This led the complainant to file an application dated 04.05.2010 for execution of the District Forum’s order dated 09.12.2009 in accordance with the provisions of section 27 of the Consumer Protection Act, 1986 (in short, ‘the Act’). In this application, the complainant prayed for imposition of the punishment of six months’ imprisonment and fine of Rs.10,000/- on each of 3 officers of the 3 OPs and grant of compensation of Rs.10,000/- to the complainant for further harassment.
6. By its order dated 15.05.2010, the District Forum issued notice to the 3 officers of the 3 OPs named in the execution application for appearance on 16.06.2010. When none appeared on that date, the District Forum issued bailable warrants of arrest against these 3 officers. Thereafter, the officers of OPs 2 and 3 appeared before the District Forum and secured bail. However, OP/respondent 1 (Abhay Kumar Singh, Chief Executive Officer, SBI Card Payment Service Ltd., New Delhi) did not appear. On 09.08.2010, OP/respondent 1 filed an application for exemption from personal appearance. The District Forum allowed the request for that date but directed the OP to remain present on the next date and furnish bail.
7. Against this (interim) order of the District Forum, OP/respondent 1 filed an appeal before the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) under section 27A of the Act on 21.08.2010. The complainant appeared before the State Commission on 28.10.2010 and filed his reply to the appeal. According to the complainant, the State Commission heard the matter on 28.10.2010 and reserved the order. The State Commission then passed two orders, both dated 28.10.2011, on this matter: one treating the appeal as what the State Commission termed as “suo motu” revision petition and the other dealing with the matter on merits as a revision petition. Though these orders are dated 28.10.2010, according to the complainant the State Commission actually passed them on 31.03.2011 and the complainant received free copies thereof on 15.04.2011.
8. At this stage, it will be useful to reproduce the relevant parts of the State Commission’s order, which is under challenge in this revision petition. Thus:
“This order is objected mainly on the ground that revision petitioner no. 1 was not initially party to the complaint no. 9/559 and that an amount of Rs.7,000/- which was directed to be paid in said complaint, has (sic – ‘had’) been already paid, and thus, there was no cause for filing execution application under section 27 of Consumer Protection Act, 1986.
In complaint no. 9/559 opponent no. 1 was/is described as, “SBI Card and Payment Services Pvt. Ltd., SBI Legal Head Office, 11 Sansad Marg, New Delhi – 110 001. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. The said complaint was decided on 29.12.2009 and it was directed to the opponent in the said complaint that towards credit card in question no amount should be claimed and recovered and by way of mental harassment Rs.5,000/- were granted to the complainant and cost of Rs.2,000/- was also granted. It is to be noted that though it is directed that said amount shall be paid within period of 30 days there was/is no further penal interest charged in case of lapse of said period of 30 days. Therefore, ultimate payment which was/is to be given and to be paid under the said order was/is Rs.7,000/-.
It is to be noted that while filing such application under section 27 name of the revision petitioner no. 1/Abhay Kumar Singh has shown as ‘Chief Executive, SBI Cards and Payments Services Pvt. Ltd.”. However, in the complaint this Abhay Kumar Singh was/is not shown as opponent and/or representative of opponent no.1. Complaint was filed as against the private limited company only and in complaint it has not stated as to who should represent the said opponent. Therefore, grievance of the revision petitioner was/is that he was not party to the said proceedings and it is an error on the part of the complainant to add him directly as a party in the execution application. We find substance in the said contention. Therefore, it was an error on the part of the complainant to join “Abhay Kumar Singh” directly as party to the criminal complaint.
xxx xxx xxx xxx xxx … in respect of corporate bodies or co-operative societies whenever complaint is filed under section 27 of Consumer Protection Act, 1986 the opponents are required to follow the procedure as laid down under section 305 of Cr.P.C. and the same view has been taken by the State Commission in case of Revision Petition no. 60 of 2010 – M/s Kesari Tours Private Ltd., vs Mr. Harishchandra Babulal Daspute decided on 06.05.2010. The application under section 27 should have been filed only as against the SBI Card and Payment Services Pvt. Ltd., and two others as were shown as parties in the complaint and the said private limited company would have followed section 305 of Cr.P.C. and nominated its representative to represent in said proceeding. Therefore, it is not necessary in each and every case the Chief Executive Officer of the said company or corporate body shall appear before Consumer Fora. It is further to be noted that in respect of corporate body under these circumstances the punishment or imprisonment cannot be imposed as against representative nominated under section 305 Cr.P.C. Only punishment of penalty can be imposed and that too not against the person who represented said body but it will be said punishment against said corporate body and Forum has overlooked this provision and committed an error in directing Abhay Kumar Singh to remain present before District Consumer Disputes Redressal Forum.
Apart from this, if it is factually correct that on 25.03.2009 (sic) the cheque of Rs.7,000/- has been given by the opponents to the complainant, then the monetary claim as per decision of complaint no. 9/ 559 is satisfied and application under section 27 cannot be filed. The so called injunction not to recover any amount will operate in respect of amount which are claimed and tried to be recovered from the opponents for period prior to filing of complaint i.e. any amount claimed by the opponent for a period prior to filing of complaint cannot be recovered by opponent. But if said credit card is being used during the pendency of the complaint and/or after the decision of the complaint, amounts which are due on the said credit card, can be recovered by the opponent no. 1. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxHence, we pass the following order:
(i) Suo motu revision petition no. 10/35 stands allowed.
(ii) District Consumer Disputes Redressal Forum shall find out as to whether the amount of Rs.7,000/- has been received by complainant. The District Consumer Disputes Redressal Forum shall obtain particulars of bills which are being recovered by opponent on the basis of use of credit card and shall obtain particulars from complainant in respect of use of credit card. If it is found that the said SBI credit card was/is used by complainant to purchase goods in the market or otherwise for a period subsequent to the date of institution of complaint, the application under section 27 be dismissed. Said execution application may proceed only if the complainant satisfies prima-facie that the recovery being carried out by opponent company is for a period prior to filing of original complaint only. The District Consumer Disputes Redressal Forum shall keep in mind provisions of section 305, Cr. P.C. and implement them as observed in the order, in case original opponent no. 1 shall follow procedure as stated in section 305 Cr. P.C.
(iii) Parties are left to bear their own costs.”
9. We have heard the petitioner/complainant in person and Mr. Sudhir Nandrajog, Senior Advocate for the respondents and carefully gone through the records produced before us.
10(i) The petitioner does not dispute that he has received a demand draft for Rs.7,000/- from the respondents, in accordance with the order dated 29.12.2009 of the District Forum.
(ii) However, he points out that even in March 2010 (i.e., well after he had sent copies of the District Forum’s order of 29.12.2009 by registered post to the OPs on 19.01.2010) he received a bill from the SBI Cards for payment of Rs.23,449.93 and also a letter dated 02.03.2010 intimating that if he failed to pay the outstanding amount of Rs. 23,449.93 within 7 days of receipt of the letter, SBI Cards might be “compelled to initiate appropriate legal proceedings as deemed fit for recovery of its dues along with interest, cost and other charges”.
(iii) The petitioner further points out that SBI Cards issued another bill dated 02.06.2010 for a total outstanding of Rs. 25,608.02 against the petitioner/complainant, which too was accompanied by a letter dated 02.06.2010 on the same lines as that of 02.03.2010. On the other hand, by her letter dated 03.06.2010, the Senior Manager, Customer Services of SBI Cards informed the petitioner/complainant that there were no dues payable to the SBI Cards by him on his credit card account.
(iv) It is also seen that though OP 1 issued a draft dated 08.06.2010 for Rs.7,000/- in favour of the petitioner/complainant on, it was not produced before the District Forum on 16.06.2010 (to show compliance of the order dated 29.12.2009), allegedly due to inaction of the counsel for the OPs. The complainant finally received the demand draft under protest before the District Forum on 04.08.2010 when the OPs moved an application, clearly on receipt of the bailable warrants for appearance before the District Forum on 09.08.2010, to deposit the awarded amount in compliance of the order of the District Forum.
(v) The records produced by the petitioner/complainant further show that he had arranged to send copies of his application under section 27 of the Act to each of the respondents/non-applicant named therein application by Speed Post on 09.06.2010 and yet none of the OPs/non-applicants remained present before the District Forum on the date of the notice. That is why, on an application being made by the complainant on 07.07.2010, the District Forum issued bailable warrants to secure personal presence of the OPs/non-applicants on 09.08.2010.
11. The main contentions of the complainant in this revision petition are that (i) the State Commission erred in treating the appeal filed by OP 1 as a revision petition on its own accord (by terming it a suo motu revision petition), (ii) no appeal under section 27A would lie against an interim order of a District Forum passed in a proceeding under section 27, i.e., appeal under section 27A would lie only against a final order of the District Forum to the State Commission and so on and (iii) it was very much legal to implead the Chief Executive of OP 1 by his name in the proceedings under section 27 because OP 1 had defaulted in complying with the order of the District Forum which had attained finality qua the OPs and hence, in accordance with the provision of section 5 of the Companies Act, 1956, the Chief Executive Officer could be impleaded as an “officer who is in default”.
12. After considering the facts and circumstances of the case carefully, we are of the view that the order dated 29.12.2009 of the District Forum having been fully complied with by 09.08.2010, action under section 27 could not be continued beyond that date. Hence, the substance of the State Commission’s order does not cause any prejudice to the petitioner’s entitlement to enforcement of the order of the District Forum. However, it can also not be overlooked altogether that respondent/OP 1 woke upto the need for compliance of the District Forum’s order only after proceedings under section 27 were initiated by the petitioner; the action of OP 1 in issuing two successive bills and letters of March and June 2010 to the petitioner/complainant was clearly violative of the District Forum’s order and that it failed to comply with that order till as late as 04.08.2010. Hence, we are of the view that the interest of justice would be served adequately if we dispose of this revision petition by (a) directing respondent/OP 1 to pay to the petitioner Rs. 5,000/- by way of costs for these proceedings within 4 weeks and (b) leaving the legal issues raised by the petitioner open till a better case comes up. We order accordingly.
Sd/-
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[Anupam Dasgupta]
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[Suresh Chandra]
