Tushar Dhananjay Mandlekar vs Mr Abhaykumar Singh, Ceo Sbi Cards ...

on 10 April, 2012

National Consumer Disputes Redressal

Tushar Dhananjay Mandlekar vs Mr Abhaykumar Singh, Ceo Sbi Cards ... on 10 April, 2012

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

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-

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 Tushar Dhananjay Mandlekar vs Mr Abhaykumar Singh, Ceo Sbi Cards ... on 10 April, 2012

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

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 Tushar Dhananjay Mandlekar vs Mr Abhaykumar Singh, Ceo Sbi Cards ... on 10 April, 2012

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:

HONBLE
MR. ANUPAM DASGUPTA PRESIDING
MEMBER

HONBLE
MR. SURESH CHANDRA MEMBER

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 Tushar Dhananjay Mandlekar vs Mr Abhaykumar Singh, Ceo Sbi Cards ... on 10 April, 2012

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

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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.

(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 Forums 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
Forums 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 Commissions order,
which is under challenge in this revision petition. Thus:

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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
O f f i c e , 1 1 S a n s a d M a r g , N e w D e l h i 1 1 0 0 0 1 .
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.

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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
Forums 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

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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
Commissions order does not cause any prejudice to the petitioners 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 Forums 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 Forums 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.

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Sd/-

[Anupam Dasgupta] Sd/-

..

[Suresh Chandra]

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