KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.291/2021

JUDGEMENT DATED: 10.10.2022

(Against the Order in C.C.No.221/2019 of DCDRC, Kollam)

PRESENT:

APPELLANT:

(by Adv. S. Laila)

Vs.

RESPONDENT:

JUDGEMENT

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT

          This appeal is filed by the opposite party in C.C.No.221/2019 on the files of the Consumer Disputes Redressal Forum, Kollam (hereinafter referred to as the District Forum for short).  The appellant is aggrieved by an order dated 27.02.2021 of the District Commission, allowing the complaint.  As per the said order, the appellant has been directed to return to the respondent herein the value of 40grams of gold pledged by him, at the prevailing market rate as on the date of payment after deducting the principal amount, interest and penal interest if any, payable as per the loan agreement.  In addition, a compensation of Rs.1,00,000/-(Rupees One Lakh) and a further amount of Rs.5,000/-(Rupees Five Thousand) as costs of the proceedings have also been directed to be paid.  The amounts are ordered to carry interest @9% per annum, if not paid within forty-five days of receipt of a copy of the order.  According to the appellant, the order of the District Commission is unsustainable and liable to be set aside.  The respondent herein is the complainant before the District Commission.

          2.       The complaint was filed by the respondent on the following allegations.  The respondent has been the holder of SB Account No.3022959732 for the past ten years with the appellant bank.  At the time of opening the account, the respondent had furnished his full postal address for communication, in the account opening form itself, along with his mobile number 9388951179.  He had also submitted a photocopy of his Aadhar card, on the request of the appellant bank.  The address mentioned in his Aadhar card is, B. Bhasi, Nandanam, Snehanagar 32A, Eravipuram, Kollam, Kerala – 691 011.  The respondent had been pledging gold ornaments with the appellant bank whenever he was in need of funds.  According to him, during the past ten years he had pledged gold ornaments to the tune of Rupees Thirty Lakhs.  It was the usual practice of the bank to inform him of the expiry of the period to redeem the pledge.  Such intimation used to be conveyed over telephone or by a letter in the address furnished by him.  Upon such intimation, the respondent used to go to the bank and clear the loan amount outstanding or, if he was unable to do so, he used to renew the gold loan by paying the interest.  According to him, he had executed a construction contract for a customer of the bank who had taken a housing loan.  The banker’s cheque for more than twenty lakhs rupees was issued to the customer by the bank and the cheque was encashed by the respondent through his bank account. 

          3.       On 27.12.2017 the respondent had pledged a gold chain weighing 40grams and availed a loan of Rs.82,000/-(Rupees Eighty Two Thousand) as per gold loan No.45/23/41.  The loan amount was computed at the then existing market rate of gold, which was Rs.16,000/-per gram.   On 13.08.2019, when he approached the bank for closing the gold loan account, he was informed by the bank officials that the gold ornament pledged by him was already sold in auction.  When he pointed out that he had not been intimated either over telephone or through a letter regarding the auction, he was informed that they had issued three letters to the respondent but that they were returned with the endorsement, “no such addressee”.  It was thereafter that the bank had sold the pledged gold ornament in auction.  According to the respondent, the market price of one sovereign gold at the time of auction was Rs.28,500/-(Rupees Twenty Eight Thousand Five Hundred).  Therefore, it is alleged that the pledged ornament was sold when it was worth Rs.1,42,500/-(Rupees One Lakh Forty Two Thousand Five Hundred) plus ten percent making charges.  Therefore, it is alleged that the bank had obtained illegal profit by conducting the auction.  Had the respondent been given notice of the auction, he would have got an opportunity to redeem the gold.  Therefore, the conduct of the bank amounts to a clear deficiency in service and unfair trade practice.  According to him, had the notice been issued in his current address he would have received the same and taken back the gold.  The bank had conducted the auction with malafide intentions, without complying with the statutory formalities, causing monetary loss to him.  Therefore he claimed compensation for the monetary loss and mental agony caused to him.

          4.       Though notice was issued to the appellant, he did not appear before the District Forum.  Nor did he file version.  Therefore, the District Forum proceeded with the trial of the complaint, ex-parte.

          5.       The respondent filed proof affidavit in terms of the averments contained in his complaint.  Exhibits A1 to A5 documents were produced and marked by him on his side.  Exhibit A1 is the copy of the pass book issued by the appellant bank to the respondent.  Exhibit A2 is the receipt received for pledging the gold ornament.  Exhibit A3 is a copy of the aadhar card of the respondent.  Exhibit A4 is the election identity card of the respondent.  Exhibit A5 is the copy of the driving licence of the respondent.

          6.       The respondent who appeared in person was heard by the District Forum.  On a perusal of the documents produced, the District Forum came to the conclusion that the respondent had pledged a gold chain of 40 grams with the appellant bank on 27.12.2017 for Rs.82,200/-(Rupees Eighty Two Thousand Two Hundred) and when he approached the bank on 13.08.2019 for redeeming the gold ornament, he was informed that the ornament had been sold in auction.  Though the bank officials had told him that they had issued three letters to him before the auction was conducted, he did not receive any such communication.  According to him, the letters were not sent in his correct address.  Since there was no contra evidence, the District Forum accepted the case of the respondent and directed the bank to pay the value of the gold ornament, as on the date of making payment to the respondent, after deducting the principal amount, interest and penal interest if any payable by him as per the terms of the loan agreement.  A compensation of Rs.1,00,000/-(Rupees One Lakh) and Rs.5,000/-(Rupees Five Thousand) as costs was also ordered to be paid.

          7.       Along with the appeal memorandum, the appellant has produced before us a number of additional documents in support of their contention that notices had been issued to the respondent before the auction was conducted.  However, we are not inclined to consider the said documents for the reason that, no version was filed by the appellant before the District Forum nor was any document produced by them, before the District Forum.  Therefore, the District Forum had proceeded to finally dispose of the complaint after setting the appellants exparte.  Since that is the procedure required to be adopted in cases where no version is filed by an opposite party in a complaint within the statutory time limit, we find no infirmity in the procedure adopted.  In appeal, we are also bound to follow the same procedure.  Therefore, we have called for the Lower Court Records and perused the documents.  We have heard Advocate S. Laila who appears for the appellants and the respondent who appeared in person.  We have considered the contentions put forward before us, anxiously. 

          8.       Exhibit A2 receipt of the pledged ornament establishes the case of the respondent that he had pledged the same before the appellant bank.  The respondent has produced and marked as Exhibits A3, A4 and A5 copies of his aadhar card, election ID and driving licence, all of which bear his correct postal address.  According to him, he has not received any intimation from the appellant bank regarding auction of the gold ornament pledged by him.  Though it is contended by the appellant that intimations had been issued to the respondent, there is nothing on record to evidence the said fact.  There is also no evidence on record to show that they had complied with all necessary formalities before conducting the auction of the respondent’s gold ornament.  The District Forum cannot, in the above circumstances, be found fault with for having allowed the complaint, placing implicit reliance on the unchallenged evidence on the respondent’s side.  The documents produced by the appellant in these proceedings cannot improve matters in any manner for the reason that, the said documents have not been proved by examining a competent witness.  For the above reasons, we find no grounds to interfere with the order appealed against.

          9.       According to the learned counsel for the appellant, the operative portion of the order does not stipulate that the appellant bank was entitled to deduct the principal amount due as per the loan account, from the value of the gold ordered to be paid to the respondent.  However, we notice that in the portion of the order where the District Forum has concluded the issue, it has been specified that the principal amount would also be recovered from the value of the gold.  In view of the above, it is clarified that the bank shall be at liberty to recover the principal amount, the interest thereon and penal interest if any payable by the respondent from the value of the gold computed in terms of the order appealed against.  With the above clarification, the order appealed against is confirmed.

          For the foregoing reasons, this appeal is dismissed.  No costs.

SL