Sri Jagadish Chandra Barman,  MEMBER,

            The facts leading to the filing of the instant case by the complainant may be epitomized as follows:-

           The complainant Mrs. Fatema Laskar filed this instant case being no- C.C. 138/2019 before this LD. Commission on 20/8/2019 under section 12 of the Consumer Protection Act 1986.

           The complainant stated that she took a loan of Rs. 80,000=00 only from the  ICICI Bank, Diamond Harbour Branch on 18/7/2017. The loan amount was credited into her account no.- 052405003252 of the  ICICI Bank, Diamond Harbour Branch. The complainant had pledged gold ornaments as collateral security to get loan. The pledged ornaments were as follows: - 

             The ICICI Bank, Diamond Harbour Branch sanctioned Rs. 80,000=00 only to the complainant after signing a sanctioned letter dated 18/7/2017. As per sanctioned letter, interest rate is Rs. 12.60% p.a., period of loan is 12 months and scheduled date for repayment was fixed on 18/7/2018.

  Thereafter, as per statement, the complainant had forgotten the date of repayment and did not refund any amount to the O.P. bank. Accordingly, the O. P. Bank had arranged auction and sold all ornaments. The complainant did not know any information as to the auction held. As per statement, no prior notice had been served upon the complainant as to the auction conducted by the O. P. Bank. Thereafter, the complainant tried to contact with the O. P. Bank; but the O. P. Bank did not co- operate with the complainant. OP Bank had harassed and insulted her.

          Hence, the complainant sent a legal notice through an advocate on 13/07/2019 to the O. P. Bank. The said notice, to get information as to the auction held, was served on 15/7/2019 as per postal track report.  But the O. P. Bank did not reply to the legal notice. Thereafter, the complainant met with the O. P. Bank on 2^nd August 2019 and challenged by saying that she could not get any prior information as to the auction held. The O. P. Bank could not show any document regarding prior intimation sent to the complainant as to auction held on 20th Feb. 2019.

         Aggrieved upon the activities of the O. P. Bank, the complainant filed this instant case before this Ld. Commission for adjudication and has sought for the following relieves:-

1. To issue an order upon the O. P. Bank to refund the excess amount arising out  by selling  deposited golden ornaments  in the auction after deduction of loan amount with interest.
2. To issue an order upon the O. P. Bank to pay compensation amount Rs. 1,00,000=00 only for unfair trade practice and deficiency of service.
3. To issue an order upon the O. P. Bank to pay a litigation cost of Rs. 25,000=00 only;
4. To issue an order upon the O. P. Bank as the Ld. Commission may deem fit.

            After receiving the complaint petition, the Ld. Commission sent show cause notices to the O.P. and the O. P. Bank received the notice on 15/7/2019. The O. P. Bank appeared and filed their written version on 24/10/2019 before the Ld. Commission.

In the reply, the opposite party bank has stated that this instant case is not maintainable and the O. P. Bank has denied each and every allegation mentioned in the complaint petition.The opposite party bank has also stated that there is no cause of action to file this complaint petition against the O. P. Bank. The present case has been filed by the complainant to make monetary gain only. Hence it is liable to be dismissed.

The O. P. Bank has also pointed out that the Complainant has understood the terms and conditions of the sanctioned letter and thereafter signed in the sanctioned letter. So the complainant was well aware that the loan should be repaid with interest on July 18, 2018. But the complainant did not repay the loan amount and became a defaulter.

The O. P. Bank has pointed out that the appraised value of the pledged gold ornaments was then Rs. 82,695/- only and it was done by the valuer Mr. Nityaranjan Karmaker.The valuer and the ICIC Bank official signed dated 16/3/2019 on the Revaluation Certificate. But there is no signature of the complainant in the Revaluation Certificate.The O. P. Bank has also denied that the market value of the pledged ornament was Rs. 2,00,000/- only.

As per W. V., the bank issued notices on 6^th August, October 6, 2018 to the complainant informing the date of maturity was July 18, 2018 and requested to pay the sum of Rs. 90,108/- only to clear the loan amount. But the complainant did not repay the loan to renew or to redeem the gold ornaments. The O. P. Bank also issued third notice on 25th January, 2019 demanding a sum of Rs. 90,108/-only as principal amount except interest to be calculated on the date of repayment. It was also informed her [complainant] that if she could not repay the loan amount with interest, the O. P. Bank would be compelled to arrange auction of her pledged gold in order to recover the loan amount. The auction date was fixed 20^th February 2019 from 12.30 p.m. to 3.30 p.m. But auction was not done on 20^th Feb. 2019. It was held on 8^th March 2019. The notice of auction was also published in two daily news papers. One Bengali newspaper ‘Bartaman’ and another is English ‘Millenium Post’ dated 9^th day of February, 2019. The complainant got eight months time to renew the loan account or to redeem the account but she did not take any positive steps. As per statement of O. P. Bank, gold ornaments were sold to the highest bidder and the amount obtained in auction was adjusted against the loan account. But the names of the persons who took participation in the auction are not mentioned in any statement submitted by the O. P. Bank.

Therefore, there is no unfair trade practice occurred on behalf of the O. P. Bank and the complainant is not entitled to get any compensation amount and cost of litigation with any other relieves.

             Upon the averments of the complaint petition and W. V. etc. of both sides, the following points are formulated:-

                                                            POINTS FOR DETERMINATION.

1].    Is the complainant a ‘Consumer’?

2]    Is the O. P.  guilty of deficiency in services, negligence  and unfair trade practice as alleged by the complainant?

3]      Is the complainant entitled to get relief /relieves as prayed for?

EVIDENCES, QUESTIONNAIRES, BNA OF THE COMPLAINANT AND O. P.

            The Complainant filed evidences on affidavit on 03.03.2020 and the O.P. filed evidences on affidavit on 13/4/2021.  Both parties filed their respective questionnaires, replies and Brief Notes of Arguments in time.

                                                            DECISIONS WITH REASONS.

Points No. 1, 2, & 3.

            The Complainant stated that she took a loan of Rs. 80,000=00 only from the ICICI Bank, Diamond Harbour Branch on 18/7/2017. The loan amount was credited into her account no.- 052405003252 of the  ICICI Bank, Diamond Harbour Branch. The complainant had pledged gold ornaments as collateral security to get loan. The pledged ornaments were as follows: - 

        As per sanctioned letter, interest rate is Rs. 12.60% p.a., period of loan is 12 months and scheduled date to make repayment was  18/7/2018.

        Hence, the complainant is a ‘Consumer’ under definition of Section 2 (D) of the Consumer Protection Act 1986 and the Opposite Party Bank is a service provider in this instant case being no C. C. 138/2019.

         In relation to point for determination no. 2 “Is the O. P. Bank  guilty of deficiency of services, negligence  and unfair trade practice’’ as alleged by the complainant?”,-  it is very much worthy to mention that the complainant took a loan of Rs. 80,000=00 only from the O.P. Bank. But she [complainant] did not repay the loan in time. As per statement, the O. P. Bank sent several notices upon the complainant to repay the said loan. But the Complainant had challenged before this Ld. Commission to the O. P. Bank to prove that the O. P. Bank had sent notices upon the complainant satisfactorily. The O. P. Bank could not produce the original postal receipts along with the postal track reports or any other genuine original documents in support of the O. P. Bank.

         Several directions were given by the Hon’ble bench of this Ld. Commission to the O.P. Bank to produce original documents under order nos. 5 dated 15/11/2019, 6 dated 2/12/2019, 7 dated 3/1/2019, 8 dated 13/01/2020, yet  the O. P. Bank was unable to produce the original documents to prove that the O. P. Bank had sent notices upon the complainant satisfactorily. The O. P. Bank submitted only photo copies of some documents on 10.2.2020 and these documents do not have any signature of the complainant as receiver.

       As per statement, the O. P. Bank published 2 notices for auction gold ornaments in 2 daily newspapers dated 9^th day of February, 2019. The O. P. Bank was directed to file the original copy of at least one original either Bengali or English newspaper dated 9^th day of February, 2019. But the O. P. Bank could not produce any original newspaper.

       It is very much worthy and pertinent to mention that the O.P. Bank was directed by the Ld. Commission under order no- 30 dated- 13/6/2022 as, “ O. P. Bank is directed to produce the original documents on 22.7.2022  regarding auction and the names of the persons who participated in the auction along with the  original newspapers containing the notice of auction etc.”  But the O. P. Bank had blatantly refused and expressed his/her inability to file any original documents of auction and notices sent to the complainant.

         Therefore, it is clear to us that auction was not conducted by the O. P. Bank. The O. P. Bank intended to grab the pledged gold ornaments of the complainant.  Ergo, there has been occurred intentional unfair trade practice by the O. P. Bank.

        It is very much worthy to mention that the O. P. Bank appraised the value of the pledged gold ornaments of 63.200 grams   Rs. 92,075/- only and it was done by the valuer Mr. Nityaranjan  Karmaker.  Signatures of the valuer and the ICIC Bank official  are available in Revaluation Certificate. But there is no signature of the complainant in the Revaluation Certificate. Hence, it is clear to us that value of gold was not calculated reasonably and properly as per market value but arbitrarily and wilfully in the absence of the complainant. Ornaments were pledged to the O. P. Bank on 18/7/2017 as collateral security and revaluation was done on 16/3/2019 by the O. P. Bank with the contracted goldsmith. This is completely an example of unfair trade practice.

       Besides it, we know very well that ornaments are made normally from 22 carat gold. But  valuer Mr. Nityananda Karmaker with Bank official of ICCI Bank in  Revaluation  Certificate had treated  the pledged gold ornaments as 18, 19, 20 carat intentionally in order to show lower rate of valuation of the pledged gold ornaments of the complainant . The gold ornaments are not made from 19, 20 carat.  Hence, this is completely an example of unfair trade practice under Section 2[r] of the Consumer Protection Act 1986 occurred on behalf of the O. P. Bank.

           In relation to point no. 3, “Is the complainant entitled to get relief /relieves as prayed for?”- it is relevant to say that the O. P. Bank  did not produce/unable to produce/blatantly refused to file any original document in relation to the particulars of auction. Whereas, the O. P. Bank stated in the written version that the pledged gold ornaments of the complainant were sold to the highest bidder in the auction dated on 8^th March 2019 .Therefore, the W. V. submitted by the O. P. Bank is totally false, fake and manufactured.   No auction was held at all.  Hence the O.P Bank is liable to be penalised.

       Ergo, the complainant is entitled to get relieves as follows:-

      The O. P. Bank is directed to return the pledged gold ornaments described in the complaint petition within 45 days from the date of issuing this order.

     OR ,  Alternatively, in case of failure to return the pledged gold ornaments to the complainant , the  O. P. Bank shall pay at the rate of  Rs 50,000=00 [ today’s rate of gold 22 carat] per 10 grams.  The total value of pledged gold ornaments is Rs. 3,20,950/- only for 64.19 grams and making charge Rs. 963.00 on at the rate of Rs.15/- per gram making charge. In total Rs. 3, 21,913.00 only to be paid by the ICICI Bank to the complainant within 45 days from the date of issuing this order.

       The O. P. Bank is directed to pay Rs. 1,00,000=00 only to the tune of compensation for  unfair trade practice and mental agony, pain, harassment  suffered by the complainant.

      The O. P. Bank is liable to pay Rs. 1,00,000=00 only as penalty amount for not producing all original documents/particulars of auction and for submission of false, fake and manufactured statement in relation to action.

       The O. P. Bank is liable to pay Rs. 25,000=00 only as cost of litigation.

      The complainant is also directed to repay the loan amount Rs. 80,000=00 only with 12.60% p. a.  Interest from 18/7/2017 to the date of issuing this order. The complainant is given liberty to adjust her loan amount with the compensation and penalty amount.

      Ergo, the complaint case is succeeded.  

      Hence, it is

                                                                                        ORDERED

        That the complaint case be and the same is hereby allowed on contest against the Opposite Party Bank with cost Rs 25,000=00 [Rupees Twenty five thousand] only.

        The O. P. Bank is directed to return the pledged gold ornaments described in the complaint petition within 45 days from the date of issuing this order.

          OR , Alternatively, in case of failure to return the pledged gold ornaments to the complainant , the  O. P. Bank shall pay at the rate of  Rs. 50,000=00 [ today’s rate of gold- 22 carat] per 10 grams.  The total value of pledged gold ornaments at present is Rs. 3,20,950 only for 64.19 grams and making charge Rs. 963.00  only at the rate of Rs. 15 per gram.  In total Rs. 3, 21,913.00 [ Rupees Three lakhs twenty one thousand nine hundred and thirteen] only to be paid by the ICICI Bank to the complainant within 45 days from the date of issuing this order.

       The O. P. Bank is directed to pay Rs. 1,00,000=00 [Rupees One lakh] only to the tune of compensation for unfair trade practice and for mental agony, pain, harassment suffered by the complainant.

    The O. P. Bank is liable to pay Rs. 1,00,000=00 [Rupees One lakh] only as penalty amount for not producing all original documents/particulars of auction and for submission of false, fake and manufactured statement in the w. v. in relation to auction.

        The O. P. Bank is liable to pay to the complainant Rs. 25,000=00 [Rupees Twenty five thousand] only as cost of litigation.

        The complainant is also directed to repay the loan amount Rs. 80,000=00 only with 12.60% p. a.  interest from 18/7/2017 to the date of issuing this Order.  The complainant is given liberty to adjust her loan amount with the compensation and penalty amount.

        All the payment should be completed within 45 days from the date of issuing this Order. In default, the O. P. Bank shall have to bear 9% p. a. simple interest from the date of issuing this order till the date of realization.

       The complainant is given liberty to file an ‘Execution Case’ before this Ld. Commission, if the order is not complied with by the ICICI Bank, after the expiry of 45 days.

         Let copies of the order be supplied to all the parties concerned in either speed post /registered post free of cost as per rule.

         The final order be also available in www.confonet.nic.in .

         Dictated and Corrected by me.

      ( Sri Jagadish Chandra Barman)       

                     (Member)