HDFC Bank Limited vs Sujatha

Subhash Chandra, Presiding Member

The present revision petition has been filed under section 58 (1) (b) of the Consumer Protection Act, 2019 (in short, ‘the Act’) challenging the impugned order dated 08.07.2021 passed by the Karnataka State Consumer Disputes Redressal Commission, Bengaluru (in short, ‘the State Commission’) in First Appeal no. 348 of 2019.

The brief facts of the case as narrated by the petitioner are that the respondent’s late husband R Venkataramana working with M/s Reliance Home Finance Pvt. Ltd., had availed a personal loan of Rs.4,79,000/- from the petitioner, HDFC Bank, on 28.06.2013. The respondent’s late husband had agreed to pay the loan in 48 monthly instalments and had executed a loan agreement on 28.06.2013. The respondent was holding a savings bank (SB) account with the petitioner Bank and the loan amount was credited in full to his SB account. The respondent was also maintaining a salary account with the petitioner bank and EMI of the loan was debited from this salary account. The petitioner Bank marked ‘Hold Funds’ on 03.09.2016 on the SB account and credited the available amount in the SB account to the loan account, exercising its rights to lien. The husband of the respondent expired due to ill health on 09.07.2016. On 10.08.2016 the respondent received a mail from the employer of her late husband that a full and final settlement amount of Rs.1,46,481.22/- has been credited to the petitioner’s bank. She informed the petitioner Bank about the untimely death of her husband and requested the Bank to release the balance amount held in the husband’s account as the respondent was the nominee to that account. The petitioner bank informed the respondent that the account had been put on ‘Hold Fund’. The respondent has also stated that the respondent was not aware of any loan availed by her late husband. Petitioner avers that the amount credited in the account of the deceased customer cannot be termed as retirement benefits. Petitioner contends that the fora below have wrongly held the petitioner guilty of deficiency in service.

As there was no positive response from the petitioner Bank, the respondent approached the District Consumer Disputes Redressal Forum, Bangalore (Urban) (in short, ‘the District Forum’) by way of a consumer complaint, bearing no. 1365 of 2016.  Vide order dated 02.01.2017, the District Forum after hearing the parties allowed the complaint and directed as under:

From the available materials on record it is crystal clear that complainant being a legal heir widow and mother of two children also a nominee has a prerogative right over the retirements benefits of her husband. Hence, she is entitled to claim the amount standing in the account of her deceased husband. Complainant is not aware and has not signed any loan documents or stand as surety to the alleged loan. Hence, denial of the legitimate claim of the complainant, claiming the retirement benefits of her deceased husband by OP amounts to deficiency in service on the part of the opposite party. We are satisfied that complainant proved deficiency in service against OP. Under the circumstances, we are of the considered view that OP is liable to pay/ transfer Rs.1,14,374/- standing in SB account of deceased Venkataramana Reddy to the account of the complainant within 30 days from the date of receipt of this order along with litigation cost of Rs.3000/- failing which to pay interest at the rate of 9% per annum from the date of this order till realisation. Accordingly, we proceed to pass the following;

(i) The complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 is allowed in part;

(ii) Opposite party shall pay Rs.1,14,374/- standing in the account of the deceased Venkataramana Reddy to the complainant with litigation cost of Rs.3000/- within 30 days from the date of receipt of this order, failing which to pay the said amount along with interest at the rate of 9% per annum from the date of this order till realisation.

Aggrieved by the order of District Forum, the petitioner Bank approached the State Commission in appeal. The State Commission vide its order dated 08.07.2021 had dismissed the appeal and held that:

“8. From the available materials on record it is crystal clear that complainant being a legal heir widow and mother of two children also a nominee has a prerogative right over the retirements benefits of her husband. Hence, she is entitled to claim the amount standing in the account of her deceased husband. Complainant is not aware and has not signed any loan document or stand as surety to the alleged loan. Hence, denial of the legitimate claim of the complainant, claiming the retirement benefits of her deceased husband by opposite party amounts to deficiency in service on the part of OP. We are satisfied that complainant proved deficiency in service against OP. Under the circumstances, we are of the considered view that OP is liable to pay/ transfer Rs.1,14,374/- standing in SB account of deceased Venkataramana Reddy to the account of the complainant within 30 days from the date of receipt of this order along with litigation cost of Rs.3,000/- failing which to pay interest at the rate of 9% per annum from the date of this order till realisation. Accordingly, we proceed to pass the following:

(i) The complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 is allowed in part;

(ii) Opposite party shall pay Rs.1,14,374/- standing in the account of the deceased Venkataramana Reddy to the complainant with litigation cost of Rs.3,000/- within 30 days from the date of receipt of this order, failing which to pay the said amount along with interest at the rate of 9% per annum from the date of this order till realisation.”

Hence, the present revision petition seeking the setting aside of this order.

I have heard the learned counsel for the petitioner as well as the respondent and have given thoughtful consideration to the material on record.

Learned counsel for the petitioner in his written arguments has stated that the respondent’s late husband had availed a personal loan of Rs.4,79,000/- from the petitioner on 28.06.2016 and had agreed to pay the loan in 48 monthly instalments and also executed a loan agreement dated 28.06.2013. Learned counsel for the petitioner states that as clause 11.6 of the loan agreement dated 28.06.2013 executed between the petitioner and the deceased husband of the respondent specifically provides for right of setoff and in exercise of Bank’s general lien, the petitioner marked ‘hold funds’ on the account of the respondent’s deceased husband. Learned counsel for the petitioner has stated that the entire loan was recalled and a recall notice was issued on 20.04.2016 calling upon the deceased husband to pay the outstanding due of Rs.2,65,021.91 along with applicable interest within 7 days from the date of notice. The said notice was returned with remarks ‘unclaimed/ intimation delivered’. Despite the notice/intimation, the deceased husband of the respondent did not come forward to pay the outstanding amount. The petitioner was constrained to invoke clause 28 of the Loan Agreement dated 28.06.2013 and appointed a Sole Arbitrator.  Learned counsel for the petitioner states that notice of appointment of arbitrator dated 29.04.2106 was sent to the deceased husband of the respondent and the said notice was returned ‘unclaimed’. A claim petition was also filed before the sole Arbitrator. The claim petition was allowed and an award passed on 30.08.2016 in claim petition no.289 of 2016 holding the respondent’s deceased husband liable to pay a sum of Rs.2,65,021.91 with cost and interest at the rate of 18% from the date of filing till realisation. As the respondent’s deceased husband did not pay the amount, the petitioner was constrained to mark ‘hold funds’ on 03.09.2016 and subsequently an amount of Rs.1,14,374.26 was debited to the loan account. Learned counsel for the petitioner states that even after adjusting the set off amount till 13.10.2021, an amount of Rs.3,33,470/- remains in balance.

Learned counsel for the petitioner has stated that the respondent approached the District Forum stating that her deceased husband was working with Reliance Home Finance Private Limited and had a salary account with the petitioner Bank. Due to the death of her husband, the respondent received an e mail from the employer of her late husband stating that an amount of Rs.1,46,481.22 has been credited to the petitioner’s Bank account. The respondent was not aware of any loan availed by her deceased husband and the respondent requested the petitioner on 15.08.2016 to release the amount.  The petitioner did not release the amount and thereafter the respondent filed a consumer complaint before the District Forum.

Learned counsel for the petitioner submitted that a notice was issued by the District Forum to the petitioner to appear on 16.11.2016. Due to delay in communication and oversight, the petitioner was not able to enter appearance and the District Forum placed the petitioner ex parte and posted the matter for filing evidence of the respondent on 05.12.2016 and after filing of the evidence by respondent, the matter was posted on 02.01.2017 for orders. Learned counsel for the petitioner contends that the petitioner was not granted an opportunity to state his case before the District Forum which passed the order directing the petitioner to pay a sum of Rs.1,14,374/- along with Rs.3000/- as litigation cost with interest at the rate of 9% per annum.

Thereafter, the petitioner approached the State Commission in appeal which also dismissed the appeal. Learned counsel for the petitioner has relied on the judgment of this Commission HDFC Bank vs Anish Munjal in RP no. 1737 of 2012 decided on 23.01.2019, which held that under the Right to Lien

‘The bank, at any time and without notice will have lien and right to set off on all monies belonging to the card member and/ or add on card member standing to their credit in any account/custody of the bank, if upon demand by the bank, the balance amount on the card account is not repaid within the prescribed time’.

In view of the aforesaid clause, the petitioner bank was entitled to set off the credit card due at any point of time, without any notice to the complainant.

Learned counsel for the petitioner has further relied upon the judgment of this Commission Canara Bank and Ors., vs C D Patel in FA nos. 604 of 1996 and 22 of 1997 decided on 28.02.2001, wherein on an appeal the Hon’ble Supreme Court referred to the terms of the agreement for furnishing the security. The relevant stated that:-

The Bank is at liberty to adjust from the proceeds covered by the aforesaid deposit/ receipt/ certificate or form process of other receipts/ certificates issued in renewal thereof at any time without any reference to us, to the said loan/ OD account.

It is the petitioner’s case that it was therefore, justified in setting off the deposit in the savings account of the deceased husband of the complainant against his loan account.

Learned counsel for the respondent in his written arguments has stated that the deceased’s husband passed away on 09.07.2016 while he was working with Reliance Home Finance Pvt. Ltd.  The amount in the SB account was transferred by the employer of the husband for the immediate help and assistance to the respondent to perform the last rites.  She has also stated that the Manager of the petitioner Bank had arbitrarily, adamantly and with malafide intentions flatly refused to release the fund to the respondent. He also states that the act of the petitioner is illegal and unlawful and amounts to deficiency in service.  He further states that the orders passed by the lower fora are completely legal, justified and in favour of natural justice and the revision petition filed before this Commission may be rejected.

From the records it is apparent that the petitioner was noticed by the District Forum. It is admitted that he remained unrepresented before the District Forum by oversight.

From the records it is also apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal. The concurrent findings on facts of these two foras are based on evidences led by the parties and documents on record. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess, re-appreciate the evidence which cannot be done in revisional jurisdiction. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse. The foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner. It is seen that the orders of these fora are based on evidence on record.

The Hon’ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., (2011) 11 SCC 269 held that:

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”

Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors  (2016) 8 Supreme Court Case 286 held:

“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

Again, the Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors, dated 05.04.2019 held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

In a recent judgment, the Hon’ble Apex Court in Rajiv Shukla vs Gold Rush Sales and Services Ltd., and Ors., (2002) 9 SCC 31 while affirming its earlier view taken in the case of Rubi (Chandra) Dutta vs United India Insurance Company (2011) 11 SCC 269 held that the National Commission has no right to interfere with the concurrent finding of facts of the Fora below in its Revisional Jurisdiction, as under:

“At this stage, it is required to be noted that on appreciation of evidence on record the District Forum as well as the State Commission concurrently found that the car delivered was used car. Such findings of facts recorded by the District Forum and the State Commission were not required to be interfered by the National Commission in exercise of the revisional jurisdiction. It is required to be noted that while passing the impugned judgment and order the National Commission was exercising the revisional jurisdiction vested under Section 21 of the Consumer Protection Act, 1986. As per section 21 (b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21 (b) of the Consumer Protection Act.”

This Commission has limited revisional jurisdiction under the Act.  In view of the settled proposition of law that where two interpretation of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail.

I, therefore, find no illegality or infirmity or perversity in the impugned order. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.