BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 08^TH DAY OF SEPTEMBER 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1.         This complaint has been filed through Power of attorney holder of the complainant under section 35 of C.P.Act 2019 (herein after referred as “Act”) against the OPs for the following reliefs.

1. Direct the OPs to return the gold jewellery pledged by the complainant by receiving the loan amount and interest payable.
2. Direct the OPs to pay a sum of Rs.1,00,000/- as damages to the complainant for mental agony, pain and sufferings, suffered by the complainant due to such action and inaction of the OP.
3. Award costs and litigation expenses.
4. Pass such order or direction that the Hon’ble Forum deems fit to grant in the interest of justice and equity

2. The brief case of the complaint is as follows:

The complainant borrowed a loan from the OP bank by pledging golden ornaments weighing 107.6 grams under loan account No.15826400051679 on 27.08.2019.  The OP had issued notice dated 15.10.2019 and 24.10.2019 calling the complainant to make the payment of interest within 15 days of receipt of this notice.  But complainant had requested the OP to grant some time.

3. It is further case of the complainant that later on she had approached the OP bank to accept the amount and discharge her jewellary, but OP failed to do so.  OP without furnishing any information and violating the trust sold away her golden ornament and OP has credited excess amount.  In response to the legal notice OP contended that they have credited the excess amount of auctioned jewellary. The act of OP amount to deficiency of service.  Hence this complaint.
4. In response to the notice, OPs appeared and filed version. They admit that the complainant borrowed sum of Rs.2,15,000/- on 27.08.2018 by pledged golden ornament net weight of 105.5 grams.  But complainant failed to repay the loan within 12 months commencing from 27.08.2018.  Accordingly by issuing notice dated 05.10.2019 and 21.10.2019, the OP was forced to sell the pledged golden ornaments to recover its dues.  Golden ornaments were sold in public auction for consideration of Rs.3,40,400/-. An amount of Rs.2,47,850/- was credited to the loan account and balance amount of Rs.92,750/- was credited to the S.B. Account of the complainant in two installments of Rs.53,570/- on 02.06.2020 and Rs.39,000/- on 04.06.2020.
5. The complainant has made baseless allegation that golden ornaments were sold by voluntarily  the principles of natural justice.
6. The complainant files affidavit evidence and relies on 6 documents.  OPs have filed affidavit evidence of Assistant vice President /branch head of OP1 and relies on 10 documents. OPs have filed written argument.  The complainant neither filed written argument nor canvassed the arguments.
7. The points that would arise for our consideration are as under:-

1. Whether the complainant proves deficiency of service on the part of the OPs?
2. Whether the complainant is entitled to reliefs mentioned in the complaint?
3. What  order?

8. Our answer to the above points are as under:

       Point No.1 :- Negative

      Point No.2 :- Negative

       Point No.3:- As per the final order.

                                REASONS

9. Point No.1 and 2:     Even though both the parties have reiterated the respective contention in their affidavit evidence, but most of the facts and documents produced by both the parties are not in dispute.
10. The question arises weather complainant is able to prove the alleged deficiency of service on the part of the OP.  At the first instance, we would like to refer the documentary evidence produced by both the parties which is not in dispute.  Annexure A1 produced by the complainant indicates that the complainant availed gold loan of Rs.2,15,000/- on 27.08.2018, which was supposed to be closed on 27.08.2019.  The complainant is referred wrong date of loan as 27.08.2019 in the complaint as well as in her affidavit evidence.  Ex.A2 and A3 are the two notices dated 15^th October 2019 and 24.09.2019 issued by the OPs calling the complainant to clear the duties or renew the pledge within 15 days from the date of receipt of notice failing which OP was constrained to auction/private sale the item pledged by the complainant.  Despite receipt of these notices, the complainant has not issued any reply.  Even though complainant asserts that on receipt of notice dated 15.10.2019 and 24.10.2019 she had approached the OP to accept the amount and discharge her jewellary but she has not supplied date of approaching OPs to accept the amount and discharge her jewellary.  It is also relevant to note that this complaint is proceeded of legal notice of the complainant dated 27.06.2020, wherein the complainant has asserted that she had approached the OP to accept the money and to discharge her jewellary.  If the complainant had such an intention, we failed to understand why she had not sent her dues by means of a bank draft to the OP under registered post to prove her honesty.  The inaction of the complainant by not tendering the amount by means of DD is a clear intention that the complainant has taken untenable contention that after receipt of notice dated 15.10.2019 and 24.10.2019 she had approached the OP to receive the dues and discharge her jewellary.
11. It is also relevant to note that the conduct of the complainant after the sale, she requested to credit excess proceeds to her S.B. Account by letter dated 29.05.2020 produced as Annexure B8 by the OP.  Ex.P5 and P6 are the copies of postal receipt and postal acknowledgement.  In response to the legal notice dated 29.06.2020, OP had issued a reply dated 07.07.2020 stating that despite notice dated 05.10.2019 and 21.10.2019 and publication in Vijayavani Daily newspaper about selling of pledged gold ornaments. At this stage it is relevant to refer the document produced by the OP.
12. Annexure B1 is the copy of the loan application submitted by the complainant. It indicates that the complainant had applied for grant of gold loan of Rs.2,15,000/- repayable in 12 months from 27.08.2019.  The complainant failed to repay the loan within 12 months from 27.08.2018.  The clause No.C of loan application clearly indicates that the complainant was to pay interest at 14.5% p.a., with monthly rest and bank was at liberty to dispose the pledged articles either by private sale or public auction.
13. Ex B2 is the gold loan proposal certificate which indicates that the complainant had applied for gold ornaments weighing 107.60 grams with net weight of 105.5 and the value of the pledged golden ornaments was Rs.2,86,854.50 ps.  Ex.B3 reports receipt of Rs.2,15,000/- by the complainant.  Ex.B4 is the postal acknowledgement containing the signature of the complainant dated 02.10.2019.  Ex.B5 is another postal acknowledgement of the complainant.  Ex.B6 is the copy of application for loan.  It is relevant to note that Ex.B7 is the copy of the gold loan account of the complainant bearing No.15826400051679.  It indicates that on 27.08.2018 the complainant drawn Rs.2,15,000/- from her loan account maintained by the OP.  It further indicates that notices were issued to the complainant on 27.09.2019 and 18.10.2019.  It further indicates that the OP charged Rs.500/- to the gold loan account of the complainant towards paper publication.  It also indicates that loan account came to be closed on 23.12.2019 after expiry of 12 months from the date of taking the loan by depositing R.2,47,830/-.  It is further case of the OP that by conducting the auction the gold ornaments were sold for Rs.3,40,400/-, sum of outstanding amount is R.2,47.850/- was adjusted to the loan account and balance of Rs.92,570/- was credited to the S.B. account of the complainant.  Ex.B8 is the letter of the complainant dated 29.05.2020 in which the complainant requested to release the excess sale proceeds of the gold loan to her S.B. account No.15820100119647.  The OP has produced Ex.B9 copy of the S.B. Account of the complainant.  It clearly indicates that gold loan of Rs.2,15,000/- was credited to the S.B. account of the complainant on 27.08.2018.  It further indicates that on 02.06.2020, the OP had credited the gold auctioned proceeds of Rs.53,570/- and on 04.06.2020 credited R.39,000/- remaining proceeds to the S.B. account of the complainant.  It is also relevant to note that prior to 02.06.2020 the complainant had credited balance of Rs.13,396/- in her S.B. account.  This complaint came to be filed on 27.08.2020.  Ex.B9 copy of the S.B. account of the complainant also indicates that between 26.06.2020 till 26.08.2020 the complainant drawn amount from her S.B. account on different dates. On 26.08.2020 a sum of Rs.10,210/- was the credit balance in the S.B. account of the complainant.  Thereafter only this complaint is filed.  The complainant not only requested the OP to credit the excess sale proceeds of the auction to her S.B. Account and she has drawn the amount from her S.B. Account before filing this complaint.  The complainant has suppressed all these material facts.  It clearly indicates that the complainant has not approached the commission with clean hands.  Under such circumstances, complainant is not right in saying that there is deficiency of service on the part of the OP.  Thereby, complainant is not entitled to any of the relief. Accordingly we answer point NO.1 and 2.
14. POINT NO.3: In view of the discussion referred above, complaint requires to be dismissed. We proceed to pass the following;

                             O R D E R                            

1. Complaint is dismissed without cost.
2. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 08^th day of September, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :

HAV*