CC   55  2011

Between:

Tej  Prakash Agarwal

S/o. Roopchand Agarwal

Age: 58 years, Business

R/o. 8-2-28, Bharat Gas Bhavan

Contractor Basthi,

Bellampalli, Adilabad Dist.                         ***                           Complainant

                                                                   And

1)  State Bank of India

Rep. by its Managing Director

8^th Floor, State Bank Bhavan

Madana Cama Marg

Nariman Point

Mumbai-400 021

2)  State Bank of India

Rep. by its Manager

Bullion Branch

Lower Ground Floor

Cotton Exchange Building

Kalbadevi Road

Mumbai-400 002.

3)  State Bank of India

Rep. by its Chief General Manager

Bank Street, Koti

Hyderabad. 

                                                                   ***                           Opposite Parties

Counsel for the Complainant:                     M/s.   Shyam S. Agarwal

Counsel for  Opposite Party:                 M/s.  Vamaraju Srikrishnudu

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT  

                                            SMT. M. SHREESHA, MEMBER

&

                                            SRI S. BHUJANGA RAO, MEMBER

TUESDAY,  TWELFTH DAY OF JUNE TWO THOUSAND TWELVE

ORAL ORDER:  (Per Hon’ble Sri Justice D. Appa Rao, President)

***

1)                This is a complaint filed u/s  17 of the Consumer Protection Act  directing the opposite party bank to deliver gold deposit certificate  or in the alternative pay the amount covered under  the certificate  at the  prevailing rate and compensation of Rs. 5 lakhs  and Rs. 50,000/- towards  expenses. 

2)                The case of the complainant in brief is that   he deposited six pieces  of gold bars weighing 1089.85 grams  with  0.995 purity with Op3 on 19.5.2009 pursuant to the  scheme floated by the bank under the name and style  ‘ State Bank of India  Gold Deposit Scheme’.  It has informed that it would be sending the gold deposit certificate. When the said certificate was not  sent  he lodged a complaint with the Banking Ombudsman for which the bank gave  reply stating that  it was waiting for the economic quantity to be accumulated  at the branch, and it has been initiating  the steps to transfer  the available quantity  of gold  deposited to  Op2 and also arrange delivery of final certificate of purity and quantity.  Basing on which the matter was closed on 13.10.2009.   Despite assurances and umpteen notices nothing turned out.      While so, Op3 handed over Photostat copy of certificate    However, he did not receive original certificate and asked them to show delivery of certificate.  However, there was no response.  Though they are under obligation to issue certificate they were not doing it causing mental agony which he quantified at Rs. 5 lakhs.    He got issued registered lawyer notice for which Op2 gave reply stating that the certificate was already issued and directed to execute indemnity bond to issue duplicate certificate.   He immediately gave rejoinder.  The opposite parties did not comply and  on to execute indemnity bond.  It was only to cover up their mistake.  Alleging that it amounts to deficiency in service he filed the complaint to deliver the gold deposit certificate together with compensation and costs. 

3)                 Op3 filed counter adopted by Ops 1 & 2 denying the facts mentioned in the complaint.     Op1 has no concern with the transaction and was un-necessarily impleaded.  It alleged that on deposit of gold by the complainant under the scheme of the bank a provisional receipt

was issued.  In fact gold deposit certificate was sent to him on 11.11.2009 through Overnight Express Couriers and the same was delivered to him.  Since the complainant was disputing receipt of certificate it had requested the complainant to submit indemnity bond as per the rules and regulations laid down by the bank to enable it to issue duplicate certificate.      It has sent several letters to execute indemnity bond, even gave reply to the legal notice.    There was no deficiency in service on its part.    In fact it has also sent courier receipt.  The courier company is a necessary party for adjudication of the complaint.  The provisional certificate issued by it is valid till the date of issue of gold deposit certificate by Op2.  As the minimum economic quantity of gold to be sent to Op2 was insufficient, and as sufficient quantity was not received it could not be sent to Op2.  In the meantime the complainant approached the Banking Ombudsman.  On that it has taken the matter as a special case and was sent to Op2.   When the  complainant informed that  as on 19.11.20010 he had not received the certificate, it has furnished a Photostat copy of the certificate and informed that it was already sent through  courier  and also advised him to execute  an indemnity bond  and procedure adopted in cases where duplicate  certificate has to be issued.   Interest would be paid from 30^th day of the deposit to the bank.   Interest of the complainant was safeguarded.    He did not sustain any loss.   Therefore there is no cause of action for the complainant to file the complaint.    He is not  to resolve the matter.  The case has to be decided by a competent civil court.  He is not entitled to any damages, compensation or costs.  Therefore it prayed for dismissal of the complaint with exemplary costs. 

4)                The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A20 marked while the Chief Manager filed his affidavit evidence on behalf of Ops 1 to 3 and got Exs. B1 to B4 marked. 

5)                 The points that arise for consideration are:

1. Whether the complainant is entitled to gold  certificate?
2. Whether there is any deficiency in service on the part of bank?
3. Whether the complainant is entitled to any compensation? 
4. To what relief? 

6)                It is an undisputed fact that the complainant has deposited six pieces of gold bars weighing 1089.85   with  0.995 purity with Op3 on 19.5.2009 pursuant to the  scheme floated by the bank under the name and style ‘ State Bank of India  Gold Deposit Scheme’ evidenced from Ex. A2= Ex. B2   the maturity date being 19.6.2014 evidenced under Ex. A6.   While the complainant asserts that he did not receive original gold deposit certificate pursuant to Ex. A2 the bank alleges that it has sent through Overnight Express courier service vide courier receipt Ex. B4.   It may be stated herein that the complainant consistently reminding the bank not only by notice vide Exs. A7 to A9 and A11, A12, A14, A15 but also followed by legal notice.  

7)                 fact remains that original gold deposit certificate was not delivered.  The bank pleads that it has already sent through courier service and if the complainant is of the view that he did not receive he has to execute an indemnity bond in favour of the bank.  The complainant asserts that when he did not receive the said certificate it is up to the bank to give the certificate,    however, he cannot be made to execute an indemnity bond as he did not commit any wrong.    In the process he not only suffered mental agony but also borrowing money by depositing said certificate in cases of emergency.    The bank alleges that when it has sent   a Photostat copy of the courier receipt the complainant ought to have issued a notice and impleaded the courier company as party for effective adjudication of the matter. 

8)                A perusal of Ex. B4 Photostat copy of courier  shows that it does not bear the signature of the complainant showing that it was tendered to him.    Obviously the courier company has misplaced the gold deposit certificate for which the complainant could not be found fault with.   Having taken the responsibility  to issue original gold deposit certificate to the customers  and if the bank has chosen a particular courier service, if there was any deficiency in service   on its part, it is for the bank to take action.  The complainant cannot be directed to take action against the courier company.   He is not a party to it.  It is a strange contention taken by the bank.    There is no reason why the bank has not taken up the matter with the courier service.  It could have traced out the certificate and delivered it to the complainant.  Instead it is insisting for execution of an indemnity bond by the complainant in its favour on the ground that rules and regulations prescribe for such procedure.  The bank did not file those   in order to appreciate its defence. 

9)                It may be stated herein that if the complainant was guilty of mis-placing the gold deposit certificate, and if he intends either to  en-cash or  gold to be received back the bank can insist  furnishing  indemnity bond, in view of the fact that a third party  may  claim basing on original bond receipt.    However  herein the very bank  could not tender  the said certificate to the complainant.  In fact it could   issued the certificate personally to him in order to  obviate  all these complications.   When the bank is at fault for not furnishing the certificate or having taken the stance that certificate was in fact sent to him, and despite the proof that he did not receive,   the bank did not take any steps to see  gold deposit certificate is given.  It  have given a duplicate certificate  with endorsement  that original  certificate that was issued was lost at their end while sending it through courier.    In fact  before the Banking Ombudsman  the bank seems to have  submitted that  ‘they have initiated steps  to  transfer, arranged to deliver final  certificate  and explained about the same to the complainant’,  In the light of undertaking  the Banking Ombudsman  closed the matter.  However, the bank did not forward the  deposit certificate even up till today.    The complainant as long back as on 22.8.2010  under Ex. A8 had informed the bank that he was losing the facility of taking loan against certificate in case of emergency as he became old, and amount be needed for  in a contingency.    Undoubtedly non-furnishing of the   amounts to deficiency in service.   

10)              In the circumstances, we are of the opinion that the bank having taken the deposit did not   any interest to right the wrong committed by it.    It has been   the complainant to furnish  indemnity bond on  a Rs.  200/- stamp  and another undertaking on a non-judicial stamp paper  to show his bonafides vide Ex. A17 without any basis.    All this is unfortunate.    It looks as though the bank has every right to commit mistake.    has not only  committed  mistake but insisting the customers to follow its instructions though not warranted.    In the light of the fact that gold deposit   was not tendered to the complainant, the bank is undoubtedly  liable to issue duplicate certificate.    The bank cannot insist on indemnity bond when the mistake   on its part.    Because of that   put the complainant  to  inconvenience, and it is not known  as to what would happen,  at the time when he  intends  to recover the same  on expiry of the period.   It would undoubtedly  to pay one ground  or the other, and may go to an extent of insisting the original certificate.  The   as we could see  is taking all implausible  defences to get over its obligation to furnish the original bond.    adamant attitude  on its part would undoubtedly cause mental agony for which it  was liable to pay compensation. 

11)               In the result the complaint is  in part  directing the bank to deliver the gold deposit certificate  or duplicate of it  mentioning that it has received 1085.111 gms of gold  with effective date of payment of interest @ 1.50%  (cumulative) from 19.5.2009 with a clear indication  that original  is lost at their end, and the same  will be treated as original for all purposes.   The bank is also directed to pay compensation of Rs. 1 lakh together with costs of Rs. 10,000/-.   

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

3)      ________________________________

 MEMBER           

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

COMPLAINANT                                                              OPPOSITE PARTIES

            None                                                                                                    None

DOCUMENTS MARKED FOR COMPLAINANT:

Ex  A-1           Brochure of the opp. parties of gold deposit scheme.           

Ex A-2                        Provisional receipt issued by the opposite party no.3

Ex A-3                        letter of the complainant to the opposite party no.1 24.6.2009

Ex A-4                        Reply filed the opposite party no.3 before Ombudsman.

Ex A-5                        Order of the Ombudsman 13.10.2009

Ex A-6                        Copy of the certificate shown by the opp. party no.3

Ex A-7                        letter addressed by the complainant. 8.4.2010

Ex A-8                        letter addressed by the complainant. 22.8.2010

Ex A-9                        letter addressed by the complainant. 19.11..2010

Ex A-10          letter addressed by the complainant. 20.11..2010

Ex A-11          letter addressed by the complainant. 22. 11 

Ex A-12          letter addressed by the complainant. 24.11.2010

Ex A-13          copy of the undertaking given by the complainant

Ex A-14          letter addressed by the complainant  Dt : 8.12.2010

Ex A-15          letter addressed by the complainant (by mail) 22.12.2010

Ex A-16          office copy of the legal notice 5.1.2011

Ex A-17          Reply notice of the opposite party no.1

Ex A-18          office copy of the rejoinder notice issued by the 10.2.2011

Ex A-19          second reply notice of the opposite party no.1 7.3.2011.

Ex A-20          Newspaper cutting showing the rate of gold rates 6.4.2011

DOCUMENTS MARKED FOR OPPOSITE PARTIES:

Ex B-1             SBI Gold deposit Scheme Application

Ex B-2             SBI Gold deposit scheme provisional receipt.

Ex B-3             covering letter

Ex B-4             courier receipt

Ex B-5             letter addressed by bank to M/s.

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

3)      ________________________________

 MEMBER           

12/06/2012

*pnr