Charanjit Singh, President;

1        The complainant Sarabjit Singh has filed the present complaint under Section 10, 11, 12 and 13 of the Consumer Protection Act (herein after called   as 'the Act') against ICICI-Bank, Sarhali road Branch, Tarn- Taran through its Manager and others (Opposite parties) on the allegations of deficiency in service and negligence in service on the part of the opposite parties.  The complainant has prayed that the opposite parties be directed to restore and release the entire gold weighing of 201.82 Grams which includes Bracelets-4-weighting 52.97 Gram, Braceltets-2-weighting 32.67 Grams, Necklace-1- weighting 59.60 Grams, Tikka-1-weighting 8.67 –Grams, Necklace-1-weighing 22.80 Grams, Ear ring-5-weighting 17.66 Grams, and Ring-1-weighting 7.45 Grams to the complainant by receiving the entire legal outstanding  balance of the loan from the complainant. The complainant also prayed Rs. 5,00,000/- as damages and compensation and Rs. 30,000/- as counsel fee.

2        The case of the complainant in brief is that he is operating an Saving Bank Account bearing account No.050505001744- with ICICI-Bank, Sarhali Road  Branch, Tarn Taran (Opposite party No.1), as such the complainant is defined as a consumer under the Provisions of Consumer Protection Act-1986, and as such has a right to file the present complaint against the opposite parties in the matter. On 23-04-2015 the complainant raised a loan of Rs, 03 lacs from the opposite party against his above mentioned account by pledging gold weight of 201.82- Grams, with the opposite party vide token Card dated 23.04.2015. The complainant pledged Bracelets-4-weighing 52.97-Grams, Bracelets-2-weighing 32.67-Grams,  Necklace-1-weighing 59.97-Grams, Tikka-1-weighing 08.67-Grams, Neclace-1-weighing 22.80-Grams, Ear rings-5-weighing 17.66-Grams and Ring-1-weighing 7.45 Grams with the opposite party.  At the time of raising the above mentioned loan by the complainant by pledging his above mentioned golden ornaments with the opposite party, it has orally been transpired and told to the complainant by the opposite parties that the above mentioned gold which had been pledged by the complainant with the opposite party shall not be auctioned by the opposite party under any circumstances till that period that the amount of loan and its interest is not gone above from the market value of the said gold. The market value/price of the pledged gold is not less than Rs.06 lacs.  In the month of April-2016, the complainant approached to the opposite parties to deposit part payment of the said loan but the opposite parties refused to receive part payment of the loan and demanded entire outstanding amount from the complainant. The complainant is running his hotel business at Dalhousie and as such, in the month of May, 2016, the complainant sent his close confident Gurwinder Singh to the opposite parties to deposit the entire outstanding amount of the said loan but again the opposite parties refused to receive the amount from Gurwinder Singh by saying that personal presence of the complainant is required for this proposes. Thereafter, on 23-07-2016, the complainant approached to the opposite parties to deposit the entire amount of said gold loan as was asked by the opposite parties but at this time, it has been brought to the knowledge of the complainant by the representative of the opposite parties that they sold entire gold of the complainant on 21.07.2016 for the total sums of Rs. 456,780/- and after deducting an amount of Rs. 01,00,000/- credited to the saving account of the complainant. It was told to the complainant that the complainant could withdraw the same from his account but the complainant did not withdraw the same. Under the Banking rules, there is no provision which authorizing or empowering the Banks to sell the pledged gold of a loaner until and unless the amount of loan and its interest is not gone above the market value of such gold. Secondly, in case there are such circumstances that amount of loan and its interest gone above than the market value of such pledged gold, then prior written permission from the concerned loaner is required to auction the said gold to recover the said amount. In this present case in hand outstanding amount of concerned gold loan is just Rs. 3,56,780/- and market value of the pledged gold is above than Rs. 6,00,000/-, so there was no need or any legal requirements for the opposite parties to sell the gold valuing above Rs.6,00,000/- just for Rs.4,56,780/- to recover the normal outstanding amount of loan. In fact, the gold of the complainant is not sold through legal process by the opposite parties and all of them under their common intention and conspiracy grabbed and embezzled the valuable property/ gold of the complainant for their own personal interest. An amount of Rs. 3,56,780/- which also includes the Principal amount of loan and its interest has become due and outstanding as on 10.06.2018 towards the complainant as per statement of account of the complainant. The said amount of Rs.3,56,780/- is very much below from the value of the market value of the said gold which pledged by the complainant.  The opposite parties No.2 and 3 of their own without notice to the complainant and without getting prior permission from the complainant has sold out the above mentioned gold of the complainant illegally and un-authorisedly. There are no provisions in the Banking Rules and regulations to sell out the pledged gold without taking proper and legal procedure as envisaged in the Banking rules and regulations, without notice and written permission of the loaner/ complainant. The gold of the complainant is not sold by the opposite parties No.2 and 3 in open auction. In fact the opposite parties No.2 and 3 misused and embezzled the entire gold on their personal means and purposes and usurp and grab the gold. Religious sentiments, heartiest feelings and attachments of the family of the complainant of the complainant are attached to the said gold as the complainant and his families are preserving the said gold as a symbol of Athens’s since time of their forefathers. The aforesaid act of the opposite parties amounts to deficiency in service, unfair trade practice and as well as gross negligence on their part

3        After formal admission of the complaint, notice was issued to Opposite Parties and Opposite Parties appeared through counsel and filed written version contesting the complaint on the preliminary objections that the complainant has not come to this Forum with clean hands and has concealed actual facts from this Forum. The fact is that the complainant has approached Tarn Taran branch of ICICI Bank for availing Gold Loan Facility and the details of the facility to the tune of Rs. 3,10,000/- under the Gold Loan Scheme of the bank by pledging gold items.  At the time of execution of the loan documents, he had agreed and undertaken to comply and abide by all the terms and conditions governing the facility and regularly make payments in accordance with the transaction documents. However, he violated the terms and conditions of the loan documents and did not make the payments regularly. In this regard the official of the bank had contacted him on numerous occasions over phone and by way of written communications informing him about the dues payable but he did not respond. Even the bank had sent reminders to the complainant time and again but to no effect and ultimately a demand notice dated 6.05.2016 followed by loan recall notice dated 23.05.2016 but to no effect. While serving the notice, the complainant was called upon to approach the ICICI Bank and clear all the outstanding Borrower’s Due’s failing which ICICI Bank shall, among other rights available to it under the Transaction documents, have a right to sell the Assets pledged with the Bank to recover the Borrower’s Dues. Ultimately, notice dated 13.06.2016 was also served by the bank on the borrower for enforcement of security. Despite the notices, he neither made the payment nor responded to the said notices and as such, under the compelled circumstances , the said jewels were auctioned on July 21,2016 for an amount of Rs. 4,78,123,00 and the said amount was adjusted towards repayment of the Borrower’s Dues as detailed below:-

After giving credit of the said sale proceeds towards the outstanding, at present there is an excess credit balance of Rs. 1,04,773/-. It is also submitted that as per process before auction, the bank did valuation of ornaments and fixing the Minimum Bid Price before auctioned Revaluation was done before auction by the auction Branch. Even at the time of auction, the complainant was requested to visit the branch along with valid photo identity proof [voter ID, PAN, ADHAR Card] and the token Card IF available) and meet our Deputy Branch manager, Mr. Jasmeet Walia for collection of excess amount at the branch.When the Bank is granting any facility in favour of any customer it is not the plain principal amount which has to be returned to the Bank and it always carry the interest part along with the principal amount. Therefore, the amount which is conveyed to him for closure of the loan, is inclusive of the interest on the loan amount and cost of advertisement which is collected as per the (clause 57(ii) of – terms and conditions). Further, as per the contract act, the bank has the charge and lien over the pledged gold. Moreover, as already conveyed, the bank is a trustee of public funds. Those who take loan and avail financial facilities from the Bank are contractually bound to repay the amount strictly in accordance with the terms of the contract. Any lapse, in such matters in viewed seriously and the Bank is not only entitled, but also duty bound to recover the amount by adopting all legally- permissible methods. Therefore, the bank has not committed any wrong by putting the pledged gold items to auction if in order to recover the dues from the complainant. The complainant is the borrower of the complainant who had committed defaults in payment of dues of the bank and as such, is not a consumer qua the opposite party. The present complaint against opposite parties 2 to 4 who are the officers of the bank and have acted in discharge of their official duties for effecting recovery of the bank and as such, the complaint filed against the opposite parties 2 to 4 is not maintainable.On merits, it was pleaded that complainant was bound by the terms and conditions of the loan documents clause No. 20 (reproduced below) the bank has the right to sell the said pledged gold items in the event of defaults committed by the borrower and not in spite of due notice served on him.

The bank has every right, title and interest to sell the pledged gold in the event of defaults committed by the borrower in repayment of the loan alongwith interest accrued thereon.  All the other allegations in the complaint have been denied by the opposite parties and prayer was made for dismissal of the complaint with costs. 

4        In order to prove their case, the complainant tendered in evidence his affidavit Ex. C-1, affidavit of Gurinder Singh Ex. C-2, alongwith documents Ex. C-3 to Ex. C-6 and closed evidence and thereafter Ld. counsel for the opposite parties tendered in evidence affidavit of Jasmeet Singh Walia Ex. OPs/1 alongwith documents Ex. OPs/2 to Ex. OPs/15 and closed the evidence.

5        We have heard the Ld. Counsel for parties and have gone through the evidence and documents placed on the file by the parties.

6        Ld. counsel for the complainant argued that the market value/price of the pledged gold is not less than Rs.6,00,000/-.   He further argued that in the month of April-2016, the complainant approached to the opposite parties to deposit part payment of the said loan but the opposite parties refused to receive part payment of the loan and demanded entire outstanding amount from the complainant. The complainant is running his hotel business at Dalhousie and as such, in the month of May, 2016, the complainant sent his close confident Gurwinder Singh to the opposite parties to deposit the entire outstanding amount of the said loan but again the opposite parties refused to receive the amount from Gurwinder Singh by saying that personal presence of the complainant is required for this proposes. Thereafter, on 23-07-2016, the complainant approached to the opposite parties to deposit the entire amount of said gold loan as was asked by the opposite parties but at this time, it has been brought to the knowledge of the complainant by the representative of the opposite parties that they sold entire gold of the complainant on 21.07.2016 for the total sums of Rs. 4,56,780/- and after deducting an amount of Rs. 01,00,000/- credited to the saving account of the complainant. It was told to the complainant that the complainant could withdraw the same from his account but the complainant did not withdraw the same. He further argued that under the Banking rules, there is no provision which authorizing or empowering the Banks to sell the pledged gold of a loaner until and unless the amount of loan and its interest is not gone above the market value of such gold. He further argued that in case there are such circumstances that amount of loan and its interest gone above than the market value of such pledged gold, then prior written permission from the concerned loaner is required to auction the said gold to recover the said amount. In this present case in hand outstanding amount of concerned gold loan is just Rs. 3,56,780/- and market value of the pledged gold is above than Rs. 6,00,000/-, so there was no need or any legal requirements for the opposite parties to sell the gold valuing above Rs.6,00,000/- just for Rs.4,56,780/- to recover the normal outstanding amount of loan. On the other hand, Ld. counsel for the opposite party contended that the complainant has violated the terms and conditions of the loan documents and did not make the payments regularly and he further contended that the opposite parties have served demand notice Ex OPs/5, Ex. OPs/6, Loan recall notice Ex. OPs/7, Ex, OPs/8, notice for enforcement of security Ex. OPs/13, Ex. OPs/14.  He further argued that the gold was auctioned for Rs. 4,78,123/- and after giving credit of the said sale proceeds towards the outstanding, at present there is an excess credit balance of Rs. 1,04,773/-.

7        It is not disputed in the present case that the complainant has availed gold loan from the opposite party after pledging his gold ornaments, as per token card Ex. C-3 and Ex. OPs/3 on the record in which the gross weight of the gold ornaments is shown as 201.82 grams.

8        In the present case the point involved is that the opposite parties have auctioned the gold for an amount of Rs. 4,78,123/- less price than the actual market value of the gold. As per Ex. OPs/7, Ex. OPs/8, Ex. OPs/ 13 and Ex. OPs/14, the amount payable by the complainant to the opposite party is Rs.3,56,780/- and the opposite party mentioned in the written version that they have auctioned the pledged gold for an amount of Rs. 4,78,123/-. It is admitted fact as per Ex. C-3 and Ex. OPs/3 that the complainant has pledged the gold to the opposite parties gross weight of which is 201.82 Grams and net weight is 186.50 Grams.  The opposite parties in their written reply themselves gave the rate of gold in the month of July, 2016 as Rs. 31,465/-  and when we calculated the pledged gold with this rate, then the amount comes to Rs. 5,86,822/- (186.50 x 31465) and the opposite parties themselves written that the bid value of the gold is Rs. 4,78,123/-. The opposite parties have auctioned the gold on the less amount than the actual market value of the gold and the opposite parties have not placed on record the name and details of the auction purchaser in this case which all creates doubt in the case of the opposite parties. If we considered that the complainant is defaulter of the opposite parties and an amount of Rs. 3,56,780/- is due against him of the opposite party then the opposite parties are liable to return the amount of Rs. 2,30,042/- (586822-356780= Rs. 230042/- to the complainant. However the opposite parties have already credited an amount of Rs. 1,04,773/- in the account of the complainant, as such, the complainant is entitled to receive Rs. 1,25,269/- (Rs. 230042-125269=Rs. 125269 ). The complainant is not entitled to receive the gold ornaments as the same were pledged with the opposite parties against the loan amount and as per version of the opposite parties the same have been auctioned.  By auctioning the gold on a very less amount than the actual market value of the gold, the opposite parties have committed deficiency in service on the part of the opposite parties.

9        In light of the above discussion, the complaint succeeds and the same is hereby partly allowed with costs in favour of the complainant and against the Opposite Parties. The opposite parties are directed to return the amount 1,25,269/- (Rs. One Lac twenty five thousand two hundred and sixty nine only) to the complainant alongwith interest at the rate of  Rs. 6% per annum from the date of filing the complaint till realization on the awarded amount. The complainant is also entitled to Rs. 7,500/- (Rs. Seven Thousand and five hundred only) as compensation on account of harassment and mental agony and Rs 5,000/- ( Rs. Five thousand only) as litigation expenses. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation.  Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.