(1)
Govt. of West Bengal
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION –NADIA
170, DON BOSCO ROAD, AUSTIN MEMORIAL BUILDING
KRISHNAGAR, NADIA, PIN 741101, Telefax (03472) 257788
PRESENT : Shri dAMAN pROSAD BISWAS, PRESIDENT
: SMT MALLIKA SAMADDAR MEMBER
: SHRI NIROD BARAN ROY CHOWDHURY MEMBER
Case No. CC/168/2018
COMPLAINANT :1. Salma Khatun Sk
Wife of Manirul Sk. and
daughter of Khabiruddin Sk. of
Uttar Hatkhola, Halderpara,
Hatkhola, Near 4 No. Gate Chapra,
Dist. Nadia, Pin-741123, P.S. Chapra.
V-E-R-S-U-S
OPPOSITE PARTIES / 1.Manager Axis Bank Limited at ‘Axis House’,
C-2, Wadia International Centre,
Pandurang Budhkar Marg, Worli,
Mumbai – 400025.
(service through Axis Bank, Krishnagar
Branch, 12 MM Ghosh Street, Opp. Town Hall,
P.O. Krishnagar, Dist. Nadia, Pin-741101,
P.S. Kotwali)
2. Senior Vice President & Head-Retail
Banking Operations & Principal Nodal
Officer, Axis Bank Ltd. Corporate Office,
Bombay Dyeing Mills Compound,
Pandurang Budhkar Marg, Worli, Mumbai-
400 025(service through Axis Bank, Krishnagar
Branch, 12 MM Ghosh Street, Opp. Town Hall,
P.O. Krishnagar, Dist. Nadia, Pin-741101,
P.S. Kotwali)
3. Manager Axis Bank, Krishnagar Branch, at 12
M.M. Ghosh Stree, Opp. Town Hall,
P.O. Krishnagar, Dist. Nadia, Pin-741101,
P.S. Kotwali.
(2)
Ld. Advocate(s)
For Complainant: Md. Baharuzzaman
For OP/OPs : Anindyo Mukhopadhyay
Date of filing of the case :10.10.2018
Date of Disposal of the case :16.08.2023
Final Order / Judgment dtd.16.08.2023
Complainant above named filed the present complaint against the aforesaid opposite parties u/s 11 & 12 of the Consumer Protection Act, 1986 praying for direction to produce all documents in original before this Commission, payment of Rs.9,83,973/- in favour of the complainant, interest over the aforesaid amount of Rs.9,83,973/- and other reliefs.
She alleged that she had availed one gold loan for Rs.1,74,500/- on 05.02.2018. Complainant pledged 92.300 gms golden ornaments. Loan tenure was 24 months. Complainant was informed by the OP Bank that her loan account already been liquidated through auction sale of the pledged gold. Before auction no notices was served upon the complainant.
On 06.07.2017 complainant was told by the OP bank that the golden ornaments pledged with the bank has been auctioned. Complainant was shocked. She gave representation to the OP NO.1 & 2 but did not get any fruitful result. Hence, the complainant filed this case.
OP contests the case by filing a W/V. He denied the entire allegations of the complainant. He further stated that complainant has started defaulting in repayment of the monthly instalment right from the first instalment. OP had first issued an irregularity notice to the complainant on 07.04.2018 for giving an opportunity to the complainant to pay the overdue of the first instalment.
A loan recall notice was issued to the complainant by the OP/Bank on 17.04.2018 and on that date outstanding amount was Rs.1,75,605/-. In spite of several communications by the OP/Bank , the complainant did not get any initiative to repay the outstanding amount and ultimately OP sent final reminder notice on 27.04.2018 to the complainant with a request to repay the entire loan amount of Rs. 1,75,605/-. Said notice had returned back to the Bank with the Postal endorsement. As per guideline of RBI said loan account was declared as NPA on 31.05.2018. OP /Bank issued another notice on 13.06.2018 to the complainant for auction of gold ornaments pledged with the bank. OP /Bank had also caused newspaper publication on 13.06.2018 and 20.06.2018 for auction of the gold ornaments pledged with the bank by the complainant. Copy of newspaper publication has marked as annexure C. OP issued another letter on 06.07.2018 and 18.07.2018. He prays for dismissal of the case.
(3)
Trial
During trial complainant filed affidavit in chief. He also filed certain documents.
During trial she did not file any original documents.
Documents
Complainant filed the following documents.
- Xerox copy of letter issued by complainant to OPs dated 18.07.2018.........(Four sheets)
- Xerox copy of Track Report.............(Two sheets)
- Xerox copy of India Post dated 19.07.2018..........(One sheet)
- Xerox copy of letter issued by complainant to OPs dated 03.08.2018........(One sheet)
- Xerox copy of Track Report..........(One sheet)
- Xerox copy of letter issued by Superintendent of Post Offices, Nadia, Krishnagar to complainant dated 07.08.2018..........(One sheet)
- Xerox copy of Track Report............(One sheet)
- Xerox copy of letter issued by Sub Post Master Bangaljhi, S.O. to complainant dated 30.07.2018............(One sheet)
- Xerox copy of Track Report..........(One sheet)
10)Xerox copy of letter issued by complainant to Branch Manager, Axis Bank, Krishnagar, Nadia............(One sheet)
11)Xerox copy of letter issued by complainant to Manager, Axis Bank dated 07.07.2018.......(One sheet)
12)Xerox copy of Reply letter issued by Axis Bank, Kolkata to complainant dated 07.07.2018...........(One sheet)
13)Xerox copy of document of address of complainant............(One sheet)
14)Xerox copy of Track Report..............(One sheet)
15)Xerox copy of notice issued by Ld. President, DCDRF, Nadia to Manager, Axis Bank Ltd dated 27.11.2018..........(One sheet)
Brief Notes of Argument
Complainant filed BNA.
(4)
Decision with Reasons
We have carefully gone through the petition of complaint filed by the complainant, W/V filed by the OP, affidavit in chief filed by the complainant and BNA filed by the complainant. We have carefully considered these documents.
Complainant in her affidavit in chief corroborated the allegation which he stated in the petition of complaint. It is the allegation of the complainant that she took loan of Rs.1,74,500/- and on that time pledged 92.3 gms golden ornaments but OP without giving any intimation sold the same.
OP after filing of the W/V did not appear in this Commission, nor they are contesting the case and accordingly we cannot hear the argument of the OP NO.1-3 on the point as to why they sold the golden ornament without giving the notice to the complainant.
OP filed W/V and in his W/V referred loan agreement as annexure A, notice dated 04.07.2018 annexure B, copy of newspaper publication as annexure C and copy of letters issued by complainant and replies made by OP have annexed with marked D, but OP did not produce those documents with the W/V even they did not produce those documents during trial. In absence of those documents it is not possible for this Commission to believe those contentions.
Complainant by affidavit in chief stated before this Commission that she took loan of Rs.1,74,500/- on 05.02.2018 and pledged golden ornaments went to 92.3 gms but OP without giving any prior notice to her sold the same.
It is settled principles of law that financial authority cannot sold the pledged gold without giving prior notice to the person who pledged gold.
As the OP lost the opportunity to file questionnaire , so in this situation, we do not find any reason to disbelieve the affidavit in chief of the complainant.
Placing reliance upon the affidavit in chief of the complainant we have no other alternative but to hold that the complainant after pleading 92.3 gms golden ornaments took loan of Rs.1,74,500/- from the OP.
We have carefully gone through The Security Interest Enforced Rules framed by Ministry of Finance and Company Affairs (Department of Economic Affairs) (Banking Division) dated 20.09.2018 Rule 4 have been framed relating to sale of movable secured asset. As per Rule 4 one authorised officer will be entrusted for the said purpose. He shall take the possession of movable property. Authorised officer shall take possession of such movable property in presence two witnesses. After preparing
(5)
Panchnama in appendix I. authorized officer shall make or cause to be made an inventory of the property and copy of such inventory be handed over to the borrower. Borrower shall be intimated by notice. Authorized officer shall obtain the estimated value of the movable secured assets and thereafter, if considered Authorized officer, fix in consultation with the secured creditors the reserve price of the assets to be sold in realisation of the dues of the secured creditor. In rule 6 methods of sale has been described. Authorized officer shall serve to the borrower a notice of 30 days for sale of the movable secured asset under sub-rule (1). He shall cause a public notice in the format given in appendix II-A to be published in two leading news papers including one in vernacular language having wide circulation in the locality.
In this context, we have carefully gone through appendix II-A as per the said format papers publication shall contain the date of sale, recovery amount, name of borrowers, name of guarantors, reserve price and the urnest money deposit. Said format also contain the details of the link for correspondence.
In the present case no such documents have produced before us in support of the fact that OP NO.1-3 complied the aforesaid directions as per aforesaid rules.
In absence of any such document we have no other alternative but to hold that OP NO.1-3 violated the aforesaid rules.
Complainant mentioned in the petition of complaint that he has one Axis mutual fund of gross initial purchase on line of Rs.2,99,000/- dated 27.02.2018. He also purchased a Max Life Insurance (Max Life First Track Super) from the OP No.1-3. Complainant prayed for direction upon the OP NO.1 for refund of Rs.9,83,973/-. But complainant did not produce any document before this Commission relating to aforesaid Access Mutual fund of gross initial purchase on line and Max Life Insurance (Max First Track Super) before this Commission. Accordingly we are unable to consider the aforesaid two investment of the complainant.
In view of above, it is clear before us that OP NO.3 has no authority to sale the aforesaid golden ornaments without giving prior notice to the complainant. Accordingly we find that the aforesaid act of the OP No.3 who is the representative of OP NO.1 & 2 are nothing but deficiency in service.
On perusal of record, we find that complainant is a consumer and OP NO.1-3 are the service provider.
Having regard to the facts and circumstances of this case evidence on record, we are of the firmed view that complainant has established his grievance by sufficient documents beyond reasonable doubt and accordingly complainant is entitled to relief as per his prayer.
(6)
In the result present case succeeds.
Hence,
It is
Ordered
that the present case be and the same is allowed on contest against the OP NO.1-3 with cost of Rs.5,000/- (Rupees five thousand) to be paid by OP NO.1-3 in favour of the complainant.
OP NO.1-3 jointly or severally are directed to pay the value of 92.3 gms gold amounting to Rs.2,99,144/-(Rupees two lakh ninety nine thousand one hundred forty four) in favour of the complainant within 45 days from this day. Liberty is given to the OP NO.1-3 to deduct the principal amount of loan of Rs.1,74,500/- (Rupees one lakh seventy four thousand five hundred) along with interest applicable in the said scheme for the period from 05.02.2018 to till date of auction of the golden ornament.
OP NO.1-3 are further directed to pay compensation amounting to Rs.1,00,000/- (Rupees one lakh) for harassment, mental pain and agony of the complainant within 45 days from this day failing which aforesaid amount shall carry interest at the rate of 9% per annum from this date to till the date of actual payment.
Let a copy of this final order be supplied to both the parties as free of costs.
Dictated & corrected by me
............................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
We concur,
........................................ .........................................
MEMBER MEMBER
(NIROD BARAN ROY CHOWDHURY) (MALLIKA SAMADDAR)
