DISTRICT CONSUMER DISP0UTES REDRESSAL FORUM, KANDHAMAL, PHULBANI
C.C.NO. 16 OF 2014
Present: Sri Rabindranath Mishra - President.
Miss Sudhira Laxmi Pattanaik - Member.
Muna Singh aged 30 years
S/O: Sibadani Singh,
At: Dhipasahi, PO/PS: Phulbani Town,
Dist: Kandhamal ……………… Complainant.
Versus.
Branch Manager, I.C.I.C.I, Bank,
At Main Road, Phulbani,
PO/PS: Phulbani Town,
Dist: Kandhamal. ……………….. Opp. Party
For the Complainant: Sri R.K Pradhan Advocate, Phulbani
For the Opp. Party : Sri M.K Panda and his associates.
Date of Order : 23-04-2015
O R D E R
The case of the Complainant in brief is that on 20-04-2012 he had mortgaged one golden Har and one pair of golden Zhika consisting weight of 32.920 gram for Rs. 39.782.30 paisa before the Opposite Party. The date of repayment was 20-10-2012 but due to accidental sickness of his wife he could not deposit the require amount for which he reported the matter to the O.P and requested him to give more time to repay the loan amount. Latter he could know that the O.P has sold his ornaments without his knowledge and also without any prior notice .The Cheque bearing No. 202896 dated. 01-01-2014 was released in favor of him by the Opposite Party for Rs. 12,256/- without any intimation letter. The market value of the ornaments is more than one lakh Rupees .As the action of the opposite Party amounts to deficiency in service; he has filed this complaint due to irreparable loss and injury
The following reliefs are claimed by the Complainant:-
a)The Opposite Party may be directed to return back the golden ornaments on payment of bank dues.
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b) In case of failure, the value of the ornaments along with interest from the date of mortgage excluding the bank dues may be awarded.
c)Compensation of Rs. 60,000/- may be awarded for mental agony and for loss of properties.
d)Litigation cost of Rs. 5000/- may be awarded and other reliefs as deem fit may be granted.
The case of the Opposite Party as per his version is that the
Complainant agreed to repay the said loan within 6 months it is by 20-10-2012 along with simple interest of 13 % per annum. As the Complainant did not repay the loan along with interest the demand notice dated. 10-11-2012 was issued to the Complainant in his residential address. Since no response was received from the Complainant the O. P Bank recalled the loan facility by sending the recall notice dated. 28-12-2012 through registered post. Since the loan dues remain unpaid the O.P Bank was constraint to issue notice for enforcement of security on 22-12-2012. The O.P Bank was constraint to enforce its security interest by way of selling the pledged gold ornament on 24-01-2013. On 04-01-2013 the Complainant approached the O.P Bank for enhancement and renewal of loan facility by paying Rs. 3,956.00 an accrued interest. Hence, the loan amount was enhanced to Rs.43,500/- on 04-01-2013 and the loan term was renewed for another term of six months till 04-07-2013.Since the Complainant failed to make payment till 04-07-2013 the demand notice dated 13-08-2013 was issued to him. Since no response was received from the Complainant the O.P Bank recalled the loan facility as per loan recalled notice dated. 28-08-2013 sent to him through registered post. The loan recall notice had returned to the O.P Bank with postal remark “Addressee left Return to Sender”. Then the O.P Bank issued notice for enforcement of security on 21-09-2013 to enforce security interest by way of selling the pledged gold ornaments on 18-10-2013. On 08-10-2013 the O.P Bank published gold auction cum invitation notice in an English daily “The political Business Daily” and Oriya daily “Prajatantra” intimating the auction of pledged ornaments. Since the complainant did not turn-up the pledged gold ornament was auctioned on 26-12-2013 for a sum of Rs. 62,500.00 which was credited to the account of the Complainant. After adjusting the loan dues and other charges the loan account was closed with a surplus of Rs. 12,256/- which was sent to the Complainant vide demand draft through separate post. Hence, the Opposite party has never rendered any deficiency in service. As the Complaint filed by the Complainant is not maintainable, the same is liable to be dismissed with cost.
We have gone through the complaint petition, version of the opposite party and documents filed by both the parties in support of their case. We have heard the complaint and the learned counsels appearing for both the parties. It is submitted by learned counsel of the Complainant that the cost of the golden
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ornaments are more than one lakh Rupees as per market value. It is fairly admitted by him that the Complainant had received the demand draft of Rs. 12,256/-, but he has not deposited the said draft in any Bank. In the mean time the said draft was invalid as the same was valid for three months only. The learned counsel of the Complainant has submitted that the steps taken by the O .P bank are only paper transaction. The learned counsel of the O.P vehemently opposed towards the submission of the advocate of the Complainant.
It is seen from the record that the Complainant had received the bank draft issued by the O.P Bank in his residential address but the plea of the O.P Bank is that the loan recalled notice returned to the O.P bank with postal remark that “the Addressee left returned to the sender”. This plea is not believable. Moreover it is seen from the credit facility application form that the mobile No of the Complainant was mentioned but the O.P Bank failed to use the same to give an opportunity to the Complainant to know regarding the position of his loan. The O.P bank has failed to adduce any evidence regarding this aspect which creates doubt in our mind regarding the authenticity of steps taken by the O.P Bank before selling gold ornaments in auction sale. Due opportunity should be given to the Complainant to know regarding the auction transaction. It is not clear from the copy of the letter dated.23-04-2015 submitted by the Advocate of the Opposite Party regarding the numbers and names of bidders participated at the time of auction sale. The highest bidder was not examined by the Opposite Party in order to prove the auction sale and market value of the golden ornaments.
On perusal of gold price history in Indian Rupees (INR) supplied by the Complainant, it is seen that on 26-12-2013, the date of auction sale, the gold price per gram was Rs. 2404.01-00. So, the value of the ornaments of 32.920 Gram is Rs. 79.143/- on the date of said auction. But the ornaments were auctioned for a sum of Rs. 62,500/- which is less than the market price. The gold price history obtained by the Complainant from the source of ICICI Lambard General Insurance Company Limited. Hence the Complainant is entitled to get the differential amount of Rs. 16,643/- as per market value. It is admitted by the Complainant that he had received a demand draft of Rs. 12,256=00 from the Opposite Party which was not yet encashed. As per submission of the Complainant he should get total amount of Rs. 28,899/- with interest.
The opposite Party has not mentioned the standard and carattage of the gold ornaments in any of their documents at the time of mortgage. No evidence was led by the Opposite Party to prove that the Complainant had received the letters or any intimation from the Opposite party before the auction sale which amounts to deficiency in service on their part. The prayer of the Complainant to return the gold ornaments on payment of Bank dues is not possible at this stage as the ornaments were sold by the Opposite Party by way of an auction.
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In the above circumstances the Opposite Party is directed to pay Rs. 28,899/- with 9% interest per annum from the date of auction i.e 26-12-2013 along with Rs. 5000/- as compensation and Rs. 2000/- as litigation fee to the Complainant within 30 days from the receipt of this order on production of original demand Draft by the Complainant.
The Complaint is allowed in part and the C.C is disposed of accordingly.
Supply free copies of this order to both the parties at an early date.
MEMBER PRESIDENT
