M/s SBI Cards & Payments Services Pvt. Ltd vs Yogesh Champalal Jain

R.K. Agrawal, J., President

By this Revision Petition, M/s SBI Cards & Payments Services Pvt. Ltd. (hereinafter referred to as the Petitioner) calls in question the correctness and legality of the Order dated 01.03.2018, passed by the Maharashtra State Consumer Disputes Redressal Commission at Mumbai (hereinafter referred to as the State Commission) in Appeal No. A/15/518, preferred by both the Opposite Parties in the Complaint, including the Petitioner herein.  By the Impugned Order, the State Commission, while upholding the Order dated 31.12.2014, passed by the District Consumer Disputes Redressal Commission, Raigad at Alibag (hereinafter referred to as the District Commission) in Consumer Complaint No. 110/2010, preferred by the Complainant (hereinafter referred to as the Respondent), had dismissed the Appeal.  By its Order dated 31.12.2014, the District Commission had held that the Opposite Parties in the Complaint, including the Petitioner herein, were jointly and/or severally responsible and guilty of deficiency in service and unfair trade practice for not transferring the funds as assured to the Respondent and, consequently, partly allowed the Complaint and directed them to jointly and severally pay ₹75,000/- to the Respondent towards compensation within 30 days from obtaining the said Order, failing which the interest @ 9% was directed to be paid from 30.10.2007 till realization.  The District Commission had further held that the Respondent was not liable to pay the amount of ₹39,750.18 ps. to the Opposite Parties.

The Respondent had an Account/Debit Card, bearing No. 4052 3812 0900 0614, issued by the Bank of India, Khopoli Branch.  In the month of October, 2007, the Officers of the Opposite Parties called the Respondent and informed him about their Scheme regarding Balance Transfer. The Respondent had to transfer an amount of Rs.12,000/- and was assured by the Opposite Parties that the amount could be transferred from one Card to other Card.  The Respondent requested the Opposite Parties for transfer of the said amount in his account/Debit Card issued by the Bank of India, Khopoli Branch, upon which on 30.10.2007 the Opposite Parties intimated the Respondent that the said amount had been transferred.  However, upon receipt of monthly statement, the Respondent found that the said amount of Rs.12,000/- was shown due along with interest on that amount.  He made enquiry about the same with the Opposite Parties.  On 03.07.2009, the Opposite Parties had issued a Clearance Certificate, informing that the said amount had been transferred to Bank of India account of the Respondent.  On 28.07.2009 the Respondent given a letter to the Bank of India to verify if the said amount was credited in his account or not, in response to which Bank of India vide letter dated 28.08.2009 informed him that the said amount was not credited to his account.  The Respondent followed up the matter with the Officers of the Opposite Parties and also sent a legal notice to them but nothing was done by the Opposite Parties in the matter.  Alleging deficiency in service on the part of the Opposite Parties in not transferring the amount of Rs.12,000/-, the Respondent filed the afore-noted Complaint, praying for certain directions.

Though the District Commission had issued notice to the Opposite Parties, including the Petitioner herein, but there was no representation on their behalf nor any Written Statement had been filed by them.  Accordingly, vide its Order dated 25.11.2013, the District Commission ordered for proceeding ex-parte against them.  However, subsequently the District Forum permitted the Petitioner herein to file the Written Arguments on legal points, wherein, by way of preliminary objections, the maintainability of the Complaint had been challenged on the grounds of jurisdiction and limitation.  As regards the merits of the Complaint, it was stated by the Petitioner that State Bank of India and SBI Cards were separate legal entities.  As per request of the Respondent, on 30.10.2007 the Petitioner had sent Balance Transfer (BT) of ₹12,000/- by way of cheque bearing no. 781830 in favour or Bank of India Card No. 4052 3812 0900 0614 of the Respondent.  The said cheque had been paid to the beneficiary account on 27.11.2007.  Accordingly, there was no deficiency in service and unfair trade practice on their part and the Complaint was liable to be dismissed.

Upon consideration of the documents and evidence adduced by the Respondent as also the Written Arguments filed by the Petitioner on the aforesaid legal points of jurisdiction and limitation, the District Commission negated the said pleas raised by the Petitioner.  In the opinion of the District Commission there was deficiency in service and unfair trade practice on the part of the Opposite Parties, including the Petitioner herein, in not transferring the funds.  The District Commission partly allowed the Complaint, with the following directions:-

“1.   Complaint No. 110.2010 is partly allowed.

It is declared that the OP No. 1 and 2 are jointly and/or severally held responsible and guilty for deficiency in service and for unfair trade practice for not transferring the funds as assured to the complainant.

It is declared that the complainant is not liable to pay amount Rs.39,750+18 to the Ops.

Ops are directed to pay jointly and severally Rs.75,000/- (Rs. Seventy five thousand only) to the complainant towards compensation within 30 days from obtaining this order, failing which the interest @ 9% shall be paid from 30.10.2007 to till realization.”

As noted above, aggrieved with the Order passed by the District Forum, the Opposite Parties, including the Petitioner herein, filed the Appeal before the State Commission.  However, the State Commission upheld the Order of the District Forum and dismissed the Appeal.  Hence, the present Revision Petition by the Petitioner.

We have heard the learned Counsel for the Parties and gone through the material available on record.

Learned Counsel for the Petitioner stated that the finding of the Fora below that there is deficiency in service on the part of the Opposite Parties, including the Petitioner herein, is erroneous.  In support of his submission, the learned Counsel has, inter alia, taken the grounds, viz.: (i) the Email dated 07.07.2014, issued by the Bank of Travancore and the copy of the cheque, showing that the amount of Rs.12,000/- was collected by the Bank of India in clearing house, has not been considered by the State Commission; (ii) before the Cheque Truncation System (CTS) was implemented by Reserve Bank of India, the cheques were sent in physical form to the clearing house and in such a situation the Fora below ought to have called for the evidence from the Bank of India regarding non-receipt of the payment; (iii) the Complaint was bad for non-joinder of parties, inasmuch as Bank of India was a necessary party, which had not been impleaded as a party, and in the absence of the said party the issue as to why the amount of Balance Transfer was not credited to the Respondent’s account could not have been properly decided; and (iv) the Certificate issued by the Bank of India ought to have been corroborated with their account statement.

Learned Counsel for the Respondent stated that the Fora below have rightly come to the conclusion that there was deficiency in service on part of the Opposite Parties, including the Petitioner, and, therefore, the Orders passed by the Fora below need no interference.

We have given our thoughtful consideration to the rival pleas made by the Parties and, for the reasons recorded hereinafter, we are of the considered opinion that the Revision Petition is bereft of any merit.

As far as Opposite Party No.2, i.e. Manager, Cards Department, State Bank of India, Mahalaxmi Engineering Estates, Mahim, is concerned, the matter has attained finality qua the said Opposite Party as it is not before us in the present Revision Petition.

Initially, on 25.11.2013 the Opposite Parties, including the Petitioner herein, were set ex-parte before the District Commission as even after issuance of notice to the Opposite Parties, there was no representation on their behalf nor any Written Version had been filed by them.  It is also not the case of the Petitioner that it had not received any notice from the District Commission. Subsequently, on 30.06.2014 appearance was entered into before the District Commission on behalf of Opposite Party No.1, i.e. the Petitioner herein, and an Application to file the Written Arguments on legal points was filed, stating that the Complaint was not maintainable under the following circumstances:

“(i)  The complaint should be filed at the place where the office of respondents is situated; and

(ii)   For want of cause of action, limitation and jurisdiction.”

As stated in the Order dated 31.12.2014 passed by the District Commission, the District Commission had considered all the material placed before it, including the papers, documents, affidavit of evidence filed by the Respondent and the Written Arguments filed by Opposite Party No.1 (Petitioner herein), by which the Petitioner had challenged the maintainability of the Complaint on the aforesaid legal points.  It may be mentioned here that no Written Statement/Reply had been filed by the Opposite Parties, including the Petitioner herein, before the District Commission.  It was only after appreciation of the said material that the District Commission negated the pleas taken by the Petitioner, by way of legal points, relating to the Complaint being not maintainable for want of jurisdiction and limitation, and recorded a finding that there was deficiency in service and unfair trade practice on the part of the Opposite Parties, including the Petitioner, in not transferring the aforesaid amount.

In this view of the matter, it is not open for the Petitioner to take the pleas, as noted above in Para-7 of this Order.  Except for the plea relating to the production of Email dated 07.07.2014 and not consideration of the same by the State Commission, the other pleas taken in the said Para relate to the merits of the Complaint, which has not been contested by the Opposite Parties, including the Petitioner herein, by filing the Written Statement/Reply.

As regards the Email dated 07.07.2014 issued by the Bank of Travancore, referred to above, we find that the Complaint was filed before the District Commission on 31.12.2010 and it was decided on 31.12.2014, after consideration of the legal pleas, referred to above, taken by the Petitioner.  The Petitioner had not acted swiftly in the matter and did not enter appearance before the District Commission nor file any Written Statement/Reply, leave aside the Email dated 07.07.2014.  In such a situation, if the Petitioner wanted to rely upon the said Email, it ought to have taken up the matter in this perspective before the State Commission and taken appropriate steps, including filing of an Application for taking on record the additional document/evidence, i.e. the aforesaid Email dated 07.07.2014, while pursuing the Appeal before the State Commission which had been filed in the year 2015.  However, from a perusal of the material on record, we find that no such Application had been filed by the Petitioner before the State Commission nor any such ground was taken in the Memo of Appeal filed before it.

We are of the considered opinion that the finding recorded by the District Commission that there was deficiency in service and unfair trade practice on the part of the Opposite Parties, including the Petitioner herein, in not transferring the amount, is based on appreciation of evidence and material on record before the District Commission at that point of time and the State Commission has rightly upheld the Order passed by the District Commission and dismissed the Appeal, preferred by the Opposite Parties, including the Petitioner herein.

In this view of the matter, the Revision Petition lacks merit and is dismissed accordingly.