DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __27_ _ OF ___2017
DATE OF FILING :_23.2.2017 DATE OF PASSING JUDGEMENT:1.02.2019
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker
COMPLAINANT : Dinesh Chandra Naskar, son of late Kanai Chandra Naskar of Saraswati Nivas, Flat no.3A, 2nd Floor, 212, Subodh Park, Bansdroni, Kolkata-70.
O.P/O.Ps : 1. Karun Vyasya Bank Ltd. at Central Office Boroda Road, Karur, No.-639002 , Post Box no.-21, State- Tamil Nadu.
2. The Manager, Karur Vysya Bank Limited, Baruipur Branch , 33, Kulpi Road, Padmapukur, Baruipur, P.S Baruipur, Kolkata-144.
3. Branch Manager, Karur Vysya Bank, Garia Branch, N.S.C Bose Road, Kolkata-47.
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J U D G M E N T
The O.P Bank has unlawfully sold away the gold ornaments of the complainant and this allegation of the complainant has galvanized him to file the instant case under section 12, C.P Act, 1986, alleging deficiency in service and unfair trade practice on the part of the O.P Bank.
The facts leading to the filing of the instant case may be epitomized as follows.
The complainant took a loan of Rs.2,62,000/- from the O.P Bank in three phases i.e on 24.10.2013, 25.10.2013 and 29.10.2013 , having pledged the gold ornaments weighing 258.58 gms. The complainant continued to pay interest , but not regularly. He paid Rs.44000/- in all and thereafter, he defaulted in repayment of interest. Therefore, the O.P bank sold away the gold ornaments in public auction without giving any notice of such auction to the complainant. The complainant has, therefore, filed the instant case ,praying for return of the gold ornaments, compensation etc. Hence, the case.
The O.P has been contesting the case by filing written statement ,wherein it is contended inter alia that the complainant took loan against pledge of gold ornaments in the month of October, 2013 and the loan was repayable in 12 months i.e within October, 2014. But, he defaulted in repayment of the loan and payment of interest in terms of the agreement between the parties , inspite of several reminders issued to the complainant from the bank. Therefore, the Bank sold the gold ornaments in public auction on 5.2.2015 after giving due notice to the complainant and also after publication of auction in the newspaper. According to the O.P Bank, they have sold away the gold ornaments in accordance with the provisions of Law and, therefore, they have not caused any deficiency in service or any unfair trade practice as alleged by the complainant. The complaint as is lodged by the complainant is barred by limitation and there is no merit to entitle the complainant to any relief as prayed for. So, the complaint should be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the case barred by limitation as alleged by the O.P Bank?
- Is there any deficiency in service and unfair trade practice on the part of the O.P bank as alleged by the complainant ?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit is filed on behalf of the complainant. The O.P has also filed evidence on affidavit and the same is kept in the record after consideration. BNAs filed by the parties are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 :
Ld. Lawyer ,appearing for the O.P Bank, has contended that the case is palpably barred by limitation , as the public auction of gold was held on 5.2.2015 and the instant complaint is filed by the complainant on 23.2.2017 i.e after expiry of two years of the cause of action.
It is true that the complaint has been filed after expiry of two years from the date of cause of action i.e from 5.2.2015 –the date on which the auction was held by the O.P Bank. But, this issue has already been disposed of by the Forum under section 24A , C.P Act, 1986 and the delay of the complainant in filing the instant case has been condoned on the ground of sufficient cause vide order no.6 dated 6.6.2017. So, any further discussion on this point at this stage appears to be redundant.
Point no. 1 is thus disposed of at a preliminary stage in favour of the complainant.
Point no.2 & 3 :
It is admitted fact of both the parties that the complainant took loan of Rs.2,62,000/- in three phases from the O.P Bank against pledge of gold ornaments weighing 258.58 gms. It is also undisputed fact that the complainant could not repay the loan amount and interest as agreed upon between the parties in terms of the agreement , and that he has been a defaulter in payment of loan and the interest thereon to the O.P Bank. it also goes undisputed that the loan was renewed from time to time by the O.P Bank on the request of the complainant in order to enable the complainant to repay the loan and the interest accrued thereon. When the complainant did not discharge his liability in accordance with the terms of the agreement, the O.P Bank decided to sell the gold ornaments in public auction and the said Bank actually sold the gold ornaments in public auction on 5.2.2015.
But the Law requires that the O.P Bank will have to observe some guidelines mandatorily before proceeding to sell something in auction. The said provision is laid down under section 176, Contract Act. Section 176 of Contract Act reads as follows:-
“176. – Pawnee’s right where the pawner makes default – if the pawner makes default in repayment of the debt, or performance, at the stipulated time of the promise, in respect of which the goods were pledged, the Pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security; or he may sell the thing pledged on giving the pawnor reasonable notice of the sale.
If the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater than the amount so due, the Pawnee shall pay over the surplus to the pawnor”.
Section 177 deals with defaulting pawnor’s right to redeem before sale and it runs as follows :-
“177.- Defaulting pawnor’s right to redeem- If a time is stipulated for the payment of the debt, or performance of the promise, for which the pledge is made, and the pawnor makes default in payment of the debt or performance of the promise at the stipulated time, he may redeem the goods pledged at any subsequent time before the actual sale of them; but he must, in that case, pay in addition, any expenses which have arisen from his default”.
First of all, we proceed to see whether the complainant is a consumer or not in accordance with the provisions under section 2(1)(d) , C.P Act, 1986. The complainant avails of the services of the O.P Bank; the O.P Bank advanced loan to the complainant and the complainant agreed to pay interest on the loan amount. So, it is found that the payment of interest on the loan amount taken by the complainant is the consideration for the service of advancing loan to the complainant by the O.P Bank. The ingredients of section n 2(1)(d) of C.P Act, 1986 stands satisfied and this being so, the complainant is a consumer and the instant case is quite maintainable before the Forum in accordance with the provisions of Consumer Protection Act, 1986.
That apart, the term “Banking “has also been included within the definition of ‘service’ under section 2(1)(o) of C.P Act, 1986. Regards being had to all these, we are of the opinion that the complainant is a consumer of the O.P Bank and, therefore, the instant case is lawfully maintainable under the provisions of C.P Act, 1986.
Now to see, whether the mandatory provisions of Law as laid down under section 176, Contract Act have been squarely followed by the O.P Bank while proceeding to sell the pledged gold ornaments of the complainant. There are two options given by the O.P Bank by the Law and the O.P Bank could have instituted a suit for recovery of its dues from the complainant ,having retained the gold ornaments as collateral security. It has also the option to sell the gold ornaments without intervention of the court for recovery of its dues from the complainant. The O.P Bank has exercised the second option; it has sold away the pledged gold ornaments of the complainant in order to recover its dues from the complainant. But there is a rider imposed by Law i.e section 176 and this requires that the O.P Bank will have to give a reasonable notice of auction to the complainant. According to the complainant, no such notice has ever been given to him by the O.P Bank. But, it is the case of the O.P Bank that they had given notice of auction to the complainant by a letter dated 2.2.2015 and also by way of publication in newspaper on 1.2.2015. A Xerox copy of the newspaper publication and also the notice dated 2.2.2015 has been filed before the Forum on behalf of the O.P Bank. A notice by way of publication in newspaper does not appear to be sufficient , where there is scope of personal service of notice. Publication in newspaper is always regarded as a substitute for ordinary or normal service. A perusal of the copy of notice dated 2.2.2015 reveals that the notice was issued on 2.2.2015. There is no evidence on record to prove on which date, the said notice was accepted by the complainant. Be that as it may, still we proceed to see whether the said notice is a reasonable one to satisfy the terms of section 176, Contract Act. Now, we have to first consider what is the purpose of this notice. The purpose of this notice is to enable the debtor to exercise his right under section 177 of the Contract Act, which has conferred the defaulting debtor a right to redeem the pledged goods. As there is a right bestowed to the debtor under section 177 , and which right is considered very much important, it is laid down under section 176 of Contract Act, that the notice must be a reasonable one. Such a notice is a mandatory notice and in absence of such notice, the sale becomes void. Upon the touch-stone of requirement of section 177, Contract Act, we will have to examine whether the alleged notice dated 5.2.2015 of the O.P Bank is sufficient , proper and reasonable to satisfy the requirement of section 176 of Contract Act read with Section 177 thereof. This notice is not sufficient notice, because there were only two days left in between the date of notice and date of auction. Two days are never considered to be sufficient to enable a debtor to exercise his right of redemption of pledged goods in terms of Section 177, Contract Act. So, we feel very much to say that the notice is not a sufficient one. This notice does not also contain the outstanding amount which is due to the O.P Bank. If the outstanding amount due to the O.P Bank is not mentioned in the notice, it will never be possible for the debtor to exercise his right under section 177, Contract Act. So, we do say, that the said notice is not also proper and reasonable. At the same time, we feel constrained to say that the notice was given by the O.P Bank to the complainant and thereby the complainant was informed that the public auction would be held on 5.2.2015. We have already held that the notice was not sufficient, proper and reasonable ,as it fails to sub- serve the purpose of section 177 read with section 176 , Contract Act. But, the notice is not void ; it is unlawful and the Pawnee i.e the O.P Bank is liable for damages to the Pawner for the loss sustained by the pawner.
In the result, the case succeeds .
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.PS Bank with a cost of Rs.5000/-.
The O.Ps are directed to pay the price of the gold ornaments pledged with them by the complainant at the market rate prevailing on the date of auction i.e on 5.2.2015 after having deducted their dues from the complainant , without realizing any delayed interest and also to pay a sum of Rs.10,000/- as compensation for loss sustained by the complainant owing to harassment and mental agony, within a month of this order ,failing which the compensation amount and the decreetal amount to which the complainant is entitled , will bear interest @8% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member
Dictated and corrected by me
President
