Case record is put up today. Case is fixed for judgement. Judgement has been passed in this case. Which is in 10 pages, separately attached with the record. As per judgement case of the complainant is dismissed on contest but without cost. Office is directed to furnish free copy of judgement to both parties for their information. Office is also directed to keep the record in record room.    

IN THE COURT OF DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION

WEST SINGHBHUM AT CHAIBASA

                                 Present: - 1. Sri Vijai Kumar Sharma, President,

                                2. Sri Rajiv Kumar, Member

                               3. Smt. Aparna Mishra, Member.

                          C. C. Case No. 53/2016

                 Chaibasa, Dated: 30^th March 2022

                 Ruby Sao wife of Bhaskar Sao resident of European Quarter opposite Gandhi Maidan Chaibasa, West Singhbhum,                                       Jharkhand…………….………………..…....Complainant

                                                                             Vs.

                               Branch Manager of ICICI Bank at Chaibasa West Singhbhum,Jharkhand………..Opposite Party

                                  Counsel for Complainant………Sri Rajiv Kr. Sinha and Sri Shiv Das Dey, Advocates

                                 Counsel for Opposite Party….…….Sri S. K. Gupta and Sri C. S. P. Roy, Advocates

Judgment

    This case has been filed by the complainant Ruby Sao wife of Bhaskar Sao resident of European Quarter opposite Gandhi Maidan Chaibasa, West Singhbhum, Jharkhand against opposite party Branch Manager of ICICI Bank Chaibasa for grant of time for repaying of outstanding loan amount against the mortgaged gold further for direction to opposite party to maintain status quo till the disposal of the case from the court.

     Briefly stated case of the complainant Ruby Sao is that she took two loans from the opposite party by pledging ornaments and both loan ware taken from the O.P. and at present value of the pledged ornaments is Rs.208900.00 and Rs.478000.00 only.  Further that mortgaged gold is still in the custody and possession of the official authority ICICI Bank branch Chaibasa.

     Further that in course of granting the loan O.P. retained gold ornaments and sanctioned the loan by taking some signature on the official loan papers without disclosing terms and conditions of the loan paper. Further that after receiving the loan amount complainant demanded loan documents from the O.P. but O.P. assured complainant that the same will be sent at his address. When loan documents were not sent by the O.P. after passing of reasonable time then complainant made contact to the official of the O.P. and further made demand for the loan paper but could not get the same.

     Further that complainant due to slip of mind could not approach in the office of O.P. Bank and O.P also did not sent the loan paper to the complainant, rather in the month of May & June 2016. Complainant came to know from reasonable sources that O.P. is trying to sale the mortgaged gold of the complainant then again complainant visited office of the O.P and made enquiry about the fact, then official of the O.P. said that, O.P is going to sale the mortgaged ornaments because complainant did not return the loan amount after passing of one year, on this complainant again asked O.P that when loan was granted for the period of 2 years, then under what circumstances O.P is going to sale the mortgaged ornaments within one year.  Further due to such action of opposite party complainant got shocked due to illegal activity of the opposite party and misuse of signature of the complainant on official paper at the time of granting the loan further complainant shocked due to such conduct of the opposite party as loan paper was not supplied to her despite several requests made by the complainant and without serving the notice properly, opposite party is trying to sale the mortgaged ornaments.  Further that complainant was making request for grant of time to return loan amount but in vain.

     Further that cause of action of the case arose in the month of May 2016 and June 2016 when complainant came to know that opposite party Bank is trying to sale the mortgaged gold ornaments without serving any proper notice as well as by misusing the signature of the complainant on loan paper and also due to denial of the O.P for grant of time for return of the loan amount and due to intention of the O.P to sale the mortgaged gold ornaments.  Further that jurisdiction also lies before the Forum because complainant is the consumer of the opposite party and as such this case has been filed before this forum.

     After admission of the case notice was issued to the opposite party and opposite party has appeared and filed written statement with intention to contest the case.  On perusal of the written statement it appears that in addition to fact some legal ground has also been taken on behalf of the opposite party.  Ground of maintainability, misjoinder and non-joinder of necessary party and protection under principal of waiver and estoppels and acquiescence has also been taken further plea has been taken that complainant is not consumer of the opposite party as has been described under the provisions of Consumer Protection Act 1986 rather there is relation between the parties like creditor and debtor.  Further that ground of jurisdiction of the court has also been taken in the written statement.  Further it has been stated that opposite party has granted loan to the complainant in 2014 and 2015 on the basis of terms and conditions of the credit facility against pledging of gold ornaments.  Further that after reading and having understood the terms and conditions of the credit facility/loan complainant submitted a Loan Application bearing Number JL370733 on 19^th February 2014 and and Loan Application bearing Number 14001428008 on 12^th March 2015 and deposited loan ornaments as security and after observing necessary formalities i.e. inventory and valuation of such gold ornaments and after obtaining consent and approval of the complainant loan was granted for 12 months and loan amount was Rs.208980.00 and Rs.478000.00 against the gold deposit worth 117.40 gram and 329.41 gram and complainant agreed to pay the same loan amount on or before 18.05.2016 and 12.03.2016 rate of interest was payable by the complainant @ 14% per annum and default interest rate being 6 percent more than the said agreed rate of interest and loan account number was 063405000778 and another loan account number was 063405001012.  Further that renewal date of above loan account number was on 19.02.2015 and complainant approached opposite party Bank for renewal of the above loan facility and the same was renewed on 18.05.2015 by paying Rs.40000.00 to the opposite party Bank for another 12 months before renewing the loan facility O.P. again performed the formality of valuation of the pledged ornaments and fresh value was fixed by the Value Rs.196292.00 as on 18.05.2015 and gross weight of ornaments was 1117.4 gram.  After valuation the complainant agreed and accepted inventory and revaluation of the gold ornament and on the request of the complainant fresh loan facility of Rs.196200.00 was sanctioned to the complainant at new interest @ 14% per annum and default interest rate 6% and additional loan amount Rs.196200.00 was disbursed to loan account No.063405000778 and the loan amount was sanctioned for the period of 12 months and as per agreement loan amount was to be repaid by the complainant to O.P on or before 18.05.2016 but despite being bound with the terms and condition of the credit facilities complainant has defaulted in repayment of dues of the Bank, then Bank O.P. was constrained to issue a demand notice dated 19^th March 2016 for Loan Account No.063405001012 and demand notice dated 07^th June 2016 for Loan Account Number 06340000778 requesting the complainant to visit the branch within 15 days from the date of issuance of notice to either renew the same loan facility or redeem the same upon payment of the outstanding dues facility failing which appropriate action shall be taken by Bank for realisation of its dues but complainant after having received both notice dated 19^th March 2016 and 07^th June 2016 the complainant failed and neglected to pay the dues within the stipulated period and subsequently to which O.P. Bank was constrained to recall the same loan facility and accordingly a loan recall notice dated 04^th April 2016 for Loan Account No.063405001012 and another loan recall notice dated 22 June 2016 for Loan Account No.06340000778 and the above mentioned notices were issued demanding Rs.545287.00 and Rs.224377.00 respectively which was due and payable by the complainant and 10 days’ time was given to the complainant failing which Bank shall proceed for sale for the pledged gold ornaments.  Further that notices were received by the complainant and despite receipt of such notices complainant failed and neglected to pay the dues as agreed then Bank O.P. exercised its rights and remedies as per term and condition of the contract and an online auction was scheduled on 20^th May 2016 from 12.30 P.M. onward for jewel auction through the empaneled service provider of the O.P in respect of above mentioned Loan Account No.063405001012 and 06340000778. Further that before exercising such auction a paper publication was carried out in newspapers mentioning there in that Bank deserve a right to change the auction date without any prior notice to the complainant and such notice was also served upon the complainant.  Further that having received of such notice complainant approached the Bank seeking time to repay the dues where in it was conveyed to the complainant that no further time can be allowed in favour of the complainant because more than several months have already been elapsed since the first notice issued to the complainant and thereafter auction procedure was performed on the schedule dated on 20^th May 2016 and after auctions gold ornaments were put on sale and highest bidding amount was Rs.296321.00 for Loan Account No.063405000778 and Rs.716671.00 for Loan Account No.063405001012 and outstanding amount was due as Rs.233459.00 and Rs.587450.00 respectively on August 2016.  Further that after adjusting of the sale proceed balance excess amount of Rs.126921.00 in respect of Loan Account No.063405001012 and Rs.60562.00 in respect of Loan Account No.063405000778 was returned back to the complainant vide Demand Draft No.209448 and 209450 respectively drawn in favour of the complainant and the above demand drafts were duly collected by the complainant and also stood encased by the complainant.

     Further Case of the O.P is that complainant has also filed a petition before P.L.A. Chaibasa (Permanent Lok Adalat) for settlement of dispute vide P.L.A. Case No.149/2016 and after appearing in that case O.P. had brought in knowledge of PLA various facts and reminder of notices which were sent to the complainant and after perusal of the document filed on behalf of the opposite party and hearing of the both side court disposed of the case for having no merits.  Further that O.P. Bank has always followed the terms and condition of the policy and agreement and also refunded the excess amount obtained from the auction to the complainant through Bank demand draft and further that case of complainant has got no merit and prayer has been made to dismiss the complaint with exemplary cost.

     In order to prove the pleadings both parties have adduced evidences in this case.  Complainant has filed only her affidavit in the shape of affidavited evidence.  On the other hand opposite party has filed affidevited evidence and documentary evidences which have been marked exhibits which are as follows:-

1. Photocopy of demand notice to complainant Ruby Sao dated 19^th March 2016 and 07^th June 2016 in 2 sheets. (Exhibit A)

2. Photocopy of loan recall notice to the complainant Ruby Sao dated 22^nd June 2016 and 04^th April 2016 in 5 sheets. (Exhibit B)

3. Photocopy of notice for enforcement of security to complainant Ruby Sao dated 22^nd April 2016 and 14^th July 2016 in 3 sheets. (Exhibit C)

4. Demand Drafts for Rs.60562.00 and Rs.126921.00 payable to Ruby Sao, which had been received by the complainant dated 10.03.2017. (Exhibit D)

5. Photocopy of judgment of PLA (Permanent Lok Adalat) dated 06.06.2016 in 3 sheets. (Exhibit E)

6. ICICI Bank Limited (All India) standard terms and conditions for facilities against gold in 4 sheets. (Exhibit F)

     After hearing arguments of both sides case has been filed for judgment.  On the Basis of above oral and documentary evidences finding will be given in this case.

FINDING

 Learned Counsel for the complainant has argued that opposite party has auctioned the pledged gold ornaments without following prescribed procedure.  Further that before auction O.P. had not got received several notice to complainant and hurriedly auction procedure has been done and due to such action of O.P. complainant has suffered mental and economic loss because complainant has also prayed time from the O.P. before auction took place and his request was turned down by the O.P. Further that written statement filed by the opposite party should not be taken into consideration in this case because written statement has been filed beyond the stipulated period as it has been prescribed under the Consumer Protection Act.  Further that no reasonable explanation has been assigned by the opposite party regarding finding written statement at beyond the stipulated period.  In support of the contention Learned Counsel has relied upon the decision reported in 2020 AIR (Supreme Court) page 1266, notification issued by the RBI dated 16^th September 2013 to all NBFCs (Non-banking financial companies) notification regarding guideline with respect to auction of gold accepted as collateral by the NBFC further guideline issued with respect to process of gold loan auction.

     On the other hand learned counsel for the opposite party has argued that notice has properly been issued to the complainant before adapting procedure of auction and in this regard Paper Publication has also been done by the opposite party for intimation about the auction procedure.

     Further argued that complainant has filed this case before the Consumer Forum but as a matter of fact there is no relation of consumer and service provider between the parties. Rather there is relation of creditor/debtor between the parties because complainant has obtained the loan by placing ornaments as security against the loan as complainant has willfully defaulted in paying the due of the loan amount and this fact was well known to the complainant before auction date as complainant herself was admitted that she has visited the Bank before auction and made request for time to pay due amount and further that his request was turned down by the opposite party.

     Further that complainant should approach before the civil court having competent jurisdiction to try the case which has not been done by the complainant, so his case is not maintainable before this court and this fact has been made very much clear by the decision Hon’ble National Commission as well as other State commissions.

     Further that complainant has not come with clean hand and she has obtained other platform like Permanent Lok Adalat which is not proper and fair conduct on the part of the complainant because during pendency of this case in the Forum complainant has also filed a case before Permanent Lok Adalat West Singhbhum Chaibasa which is against the spirit of the Permanent Lok Adalat.  In support of the contention learned counsel has also relied upon the decision reported in (Manu Patra) MANU/CF/0036/1997, MANU/CF/0214/2001, terms and conditions of ICICI Bank regarding loan against gold ornaments. Xerox copy of publication of notice in newspaper.

      After hearing argument of both parties and perusal of the case record we find that learned Counsel for the complainant has heavily relied upon the issue that notice had been not served by the O.P. to the complainant and secondly that auction has not been done as per the settled guidelines of the Bank auction procedure. Further points has been raised that written statement filed by the O.P. should not be considered in this case and the same has been filed beyond the stipulated period which has been fixed by the Consumer Protection Act.

     We take first point that whether the complainant has got notice or information about the auction of his pledged gold ornaments. In this regard perusal of the complaint petition is relevant on perusal of the para 4 of the complaint petition we find that complainant herself has made averment that in the month of May 2016 and June 2016 she came to know from reasonable sources that the O.P. is trying to sale the mortgaged gold ornaments of complainant so, she visited the office of the O.P. and apprised the matter to the bank official and got confirmation about this fact from the official body and further complainant was told by the official that since she did not pay the loan amount after expiry of one year, Bank is going to take alternative option for recovery of loan amount, on this complainant raised questions that loan was granted for two years then why such proceeding is being started by the O.P. Further complainant had made averment that she made request to O.P. to grant the time for its return of the loan amount which was turned down by the O.P.

     So from perusal of the para-4 of complaint petition it is clear that before auction proceeding complainant was well known about the auction procedure which was going to be performed by the O.P. In this regard  judgment relied upon by the complainant side goes to show that in the case of manager M/S Muthooth FIN Corporation Ltd Vs Rajesh Kumar judgment delivered on 6th August -2019 by Kerala State Consumer Dispute Redressal Commission matter of issuance of notice has been discussed and after perusal of the judgment and para-4 of the complaint petition we find that decision of the above stated commission will not help to the complainant because fact of the case in hand is different from the fact of the case in which principle of the service of notice has been discussed.  Fact is different in the sense that complainant of the case in hand was well aware about the auction procedure and she has personally visited the bank office and made request about the adjournment for repaying the loan amount which was turned down by the O.P. while in the reported case matter was discussed regarding the charging of extra interest rate of the installment which was found false.  Moreover appeal was partly allowed and auction portion finding was not set-aside, only cost and compensation portion was upheld by the state commission. One thing is also worthy to mention that complaint of the case in hand received surplus amount sent by the O.P. through the demand draft and encashed the same which amount was found surplus from the loan amount which was due and complainant has received Demand Draft of Rs.54775.00 only and conduct of the complainant has shown that she has no grievance about the auction and auction conducted by the O.P. otherwise she must have refused to take the demand draft sent by the O.P. and she should not have encashed the same. So we are of the opinion that principle of estoppel by taking any actions against O.P. by the complainant should apply here.  Further we are of the considered view that service of notice of such cases has got no importance and in the result we are unable to accept the argument advance this regard by the learned counsel of the complainant.

     Learned counsel of the complainant has further argued that written statement filed on behalf of the O.P should not be accepted in this case and in support of the contention learned counsel has relied upon on decision reported in 2020 Supreme  (S.C.) page-234.  On perusal of the above decision we find that Honorable Apex court had laid down principle regarding provision mentioned in Section-13(2a) of Consumer Protection Act 1986. As well as provision of order-viii rule 1&10 CPC-1908 and further in the last line Honorable Court has been pleased to hold that principle of judgment will operate prospectively. Moreover we are of the view that even if the written statement is not considered in this case but for the just decision of the case if the relevant decision have been relied upon by the counsel of the O.P. and the same have been submitted in this case then such judgment can certainly be considered before arriving at any conclusion.

     So on perusal of the cited decision on behalf of the O.P. we find that Hon’ble National Consumer Dispute Redressal Commission has given finding in the case of Standard Chartered Bank vs P.N. Tentia & others reported in MANU/CF/0036/1997 that in case of Bank loan or keeping the shares as pledged in the bank such activity will not come under the preview of consumer and service provider, such rights and duties of the pledger and pledger are set out clearly under section-176 of the Contract Act. Further that such matter should be filed in a competent court of law and not before the District Forum because in such cases there is a relation of creditors/debtor and complainant can proceed against the bank by way of Civil suit by way of damages on account of the loss suffered by the complainant and complainant cannot resort the remedies provided under the Consumer Protection Act. Such principal was again applied by the National Consumer Dispute Redressal Commission in the case of D.K Lawani & Others vs The President, Indians Bank Mutual Fund & others decided on 13.12.2001 Kerala State. Further Consumer Dispute Redressal Commission has also followed above discussed principle in the judgment of appeal no.617 and 664 of 1998.

     After hearing both side, perusal of oral and documentary evidence and cited decision of both side in which settled principal of law have been laid down by the Hon’ble Courts we have come to the conclusion that complainant of this case has got full information about initiation of auction proceeding by O.P and complainant has received surplus amount from O.P which was surplus after adjusting outstanding loan amount. Further surplus amount has been received by Complainant through Demand Draft and the same has been received without objection. So in such circumstances service of notice to Complainant by O.P has lost its importance and meaning as purpose and sprit of notice is only to give information about any proceeding. Further we have come to the conclusion that Complainant is not Consumer in this case rather there is relation of Creditor and Debtor between the parties and for any relief Competent Court is Civil Court and this Court has got no jurisdiction to entertain such dispute. So on the basis of above facts and Circumstances we finally come to the conclusion that Complainant is not entitled to get any relief from this court rather case of the Complainant is fit for dismissal.

Accordingly it is there fore

ORDER

That case of the Complainant is dismissed on Contest but without Cost. Let a free copy of judgement be furnished to both parties for their information.

 Rajiv Kuma                                       Aparna Mishra                                                             (Vijai kumar Sharma)                                                Member                                                    Member                                                                            President